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Hiniiiiinii
4 9015 00289 1142
Non-
Circulating
ibm<f
CASES ARGUED AND DECIDED
SUPEEME COUET
or TBI
TJKETED STATES
239, 240, 3 tl U. S.
BOOK 60,
LAWYERS' EDITION.
Cited "Law. ifiu "
COMFLBTB WTTR HBAD LINES, HEAD NOTES, STATEMENTS OP CASES, POINTS AH9
▲UTHOEITIBB OP COUNSEL, FOOT NOTES AND PARALLEL RSFEBSNCEab
BT
THE PUBTJSHKBS' EDITORIAL STAFF
TH» LAWTEBS CO-OPERATIVE PUBLISHING COMI'ANT.
ROCHESTER, NEW YORK.
1926.
CoTYBiGiiT f) 1916 nr
THK LAWYKUS CO-OPLKATIVI:: PUL'LISHING CO.
•OLed
JUSTICES
or THI
SUPfiEME COUET OF THE UNITED STATES
DUBlIfO TMX TIME OF THS8B BEPOBT0.
OHm* JUSTIOEi
HON. EDWARD DOUGLASS WHITE.
ABSOOIATX JUBTIGtt,
Hon. JosEi'H McKsirifA,
Hun. Ouver Wendell Holmes,
Hon. William R. Dat,
Hon. Chablbs Evans Hughes/
Hon. Willis Van Devanteb,
Hon. Mahlon Pitney,
Hon. James Clark MoRETNOLMy
Hon. Louis Dembitz BiANDEUy'
attorney general,
Hon. Thomas Watt Gbegort.
SOUIOITOR general,
Hon. John W. Davis.
clerk,
James D. Maher, Esq.
reporter,
Hon. Charles Henry Butler.
MARSHAL,
Frank K. Green, Esq.
s Reaigiu6, Jane 10, 191S.
* Appointed to sacceed Justice Joseph Backer LaniAr, who died JannAiy f, 1016. CoamiMicii
ordered recorded, Jnne 5, 1016.
ILLOnOENT. XTO, OV THB
JUSTICES OF THE SUPBEMB CODBT OF THE UNITED STATES
l>om Oetober 19, 1914 to Jmm 18, 19ie.
TOQwnam with the datm of thub com missions amd com
or sasTicB, EUpacnTiLT.
For Order of Conrt If aklng Allotment, Me 69 L. ed.. Appendix IT. p. 1629.
NaUBS of JUSnOBB, AITD
Whence Affoihted.
Absooiate Justice
OUVBR WENDELL HOLBIES,
Massachuietts.
Absociatb Justice
CHARLES E. HUGHES,
New York.
Associate Justice
MAHLON PITNEY,
New Jersey.
Chief Justice
EDWARD D. WHITE,
Louisiana.
Associate Justice
JOSEPH R. LAMAR,
Georgia.
Associate Justice
WILLIAM R. DAY,
Ohio.
Associate Justice
JAMES C. McREYNOLDS,
Tennessee.
Associate Justice
WILLIS VAN DEVANTER,
Wyoming.
Associate Justice
JOSEPH McKENNA,
California.
Bt Whom
Appointed.
President
Roosevelt.
President
Tait.
President
Taft.
President
Tavt.
President
Taft.
Presidsnt
Roosevelt.
President
Wilson.
President
Taft.
Preddent
McKlNLET.
ClBOUITS.
1914, 1916.
First.
Me., N. H.,
Mass*, R. L,
PoBTO Rioe.t
Second.
Vebhont, Conn.,
New Yobk.
Thibd.
New Jersey,
Pa., Del.
Fourth.
Md., Va., N. 0,
W. Va., S. a
Fifth.
Ga., Ala., Fla.,
Miss., La., Tex.
Sixth.
Kt., Tenn., Ohio,
Mich.
Commis-
sioned.
1902.
(Dee. 4.)
1910.
(May 2.)
1912.
(Mar. IS.)
Sworn
1902.
(Dee. 8.)
1910.
(Dee. 12.)
1910.
(Oct 10.)
1912.
(Mar. 18.)
1910.
(Dee. 19.)
1910.
(Dee. 17.)
1911.
(Jan. 8.)
Ind., III., Wis.
Eighth.
BfnrN., Iowa, Mo.,
Kan., Ark., Neb.,
Colo., N. D.,
8. D., Utah,
Wto., Oklahoma,
New Mex.
Ninth.
Gal., Or., Nev.,
Mont., Wash.,
Idaho, Alaska,*
ABiSQirA, Hawaii.* |
1908.
(Feb. 28.)
1914.
(Aug. 29.)
191C.
(Deo. 16.)
1908.
(Mar. 2.)
1914.
(Oct 12.)
1911.
(Jan. 8.)
1898.
(Jan. 21.)
1898.
(Jan. 20.)
* Territories assigned to drcoits by order of the Supreme Court
t Porto Rico added to first dreuit Iqr act of Coogress of Jaanary 28^ 1916 (88 Stet
siiL. 803, chap. 22;.
4
ALLOTMENT, BTG., OV THB
JUSTICES OF THE 8UPBEME COUBT OF THE UNITED STATES
Jnaa 18, 19ie.
TOOBTHIB WITH THB DATIS OF THUB COMMISSIONS AND COMMBNCSMHNT
OF SBBTICa, EBSFaCTITILT.
For Order of Conrt Msklog Allotment, see pott. Appendix VIII. p. 1268.
Nahes or Justices, and
Whence Apfoimeo.
Associate Justice
OLIVER WENDELL HOLMES,
Massachusetts.
AssociATB Justice
LOUIS D. BRANDEIS,
Massachusetts.
AssooiATx Justice
MAHLON PITNEY,
New Jersey.
Chief Justice
EDWAHD D. WHITB,
LottisiaiUL
Associate Justice
WILLIAM R. DAY,
Ohio.
Associate Justice
JAMES C. McREYKOLDS,
Tennessee.
Associate Justice
WILLIS VAN DEVANTER,
Wyoming,
Associate Justice
JOSEPH McKENNA,
California.
Bt Whom
Appointed.
President
Roosevelt.
ClKCUITS.
1914, 1915.
President
WiLSOlf.
President
Taft.
President
Taft.
President
Roosevelt.
President
Wilson.
President
Taft.
Fibst.
MEi, N. H.,
Mass., R. I.,
Pobto Rico.f
SsroifD.
Vebmont, Coif If.,
New Yobk.
Thibd.
New Jbbsbt,
Pa., Del.
Commis-
sioned.
1902.
(Dee. 4.)
^ Fourth. ">
Md.. Va., N. C,
W. Va., S. C.
Fifth.
Ga., Ala., Fla.,
Miss., La., Tkx.
President
McKllfLET.
Sixth.
Kt., TEN:f., Ohio,
Mich.
SEVEIfTH.
Ikd., III., Wis.
Eighth.
Minn., Iowa, Mo.,
Kan., Ask., Neb.,
Colo., N. D.,
8. D., Utah,
Wto., Oklahoma,
New Mex.
Ninth.
Cal., Ob., Nev.,
Mont., Wash.,
Idaho, Alaska,*
Abizona, HAWAn.*
1916.
(Junel.)
1912.
(Mar. 13.)
SWOEN
IN.
1902.
(Dee. 8.)
1910.
(Dec. 12.)
1903.
(Feb. 23.)
1914.
(Aug. 29.)
1910.
(Dec. 16.)
189S.
(Jan. 21.)
1916.
(June 6.)
1912.
(Mar. 18.)
1910.
(Dec 10.)
1903.
(Mar. 2.)
1014.
(Oct 12.)
191L
(Jan. 3.)
1898.
(Jan. 26.)
* Territories assigned to circuits Yty order of the Supreme Court,
t Porto Rico added to first drcuit by act of Congress of January 28, 1916 (38 Stal
at L. 803, chap. 22).
GENERAL TABLE OF CASES REPORTED
I]Sr THIS BOOK.
VOLUMES 239, 240, 241.
Abbott T. Brown (241 U. S. 606, 36
Sup. Ct. Rep. 689) 1199
Abercrombie ft F. Co. v. Baldwin
(Mem.) (239 U. S. 649, 36
Sup. Ct. Rep. 284) 485
Ackerlind v. United States (240 U. S.
631, 36 Sup. Ct Rep. 438) 783
\dani8on y. Gililland (Mem.) (241 U.
S. 663, 36 Sup. Ct. Rep.
450) 1227
Akron, Cuyahoga River Power Co. v. 743
Alabama Interstate Power Co., Mi.
Vernon-Woodbury Cotton
Duck Co. V 607
Albert, Interstate Amusement Co. t. 439
Alexander, Minneapolis, St. P. ft S.
Ste. M. R. Co. V. (Mem.) . . 479
Alice State Bank v. Houston Pasture
Co. (Mem.) (241 U. S. 674,
36 Sup. Ct. Rep. 724) .... 1231
Allen T. Compton Co. (Mem.) (239
U. S. 662, 36 Sup. Ct. Rep.
169) 486
National Bank of Commerce y.
(Mem.) 482
Strosnider V. (Mem.) 1216
Alkn ft W. Co. V. Hanover Star Mill.
Co. (240 U. S. 403, 36 Sup.
Ct Rep. 367) 713
Allen, Idaho use of. Title Guaranty ft
Surety Co. v. (240 U. S.
136, 36 Sup. Ct. Rep. 345) 666
American Rotary Valve Co. v. Moor-
hend (Mem.) (239 U. S.
64 J, 36 Sup. Ct. Rep. 161) 482
American Sugar Ref. Co., McFarland
V. 899
American Surety Co. t. Idaho use of
Mills (Mem.) (241 U. S.
690, 36 Sup. Ct. Rep. 553) 1237
American Well Works Co. v. Layne
ft B. Co. (241 U. S. 267, 36
Sup. (X Rep. 686) 987 ,
€0 Ii. ed.
Anderson v. Forty-Two Broadway Ca
(239 U. S. 69, 36 Sup. Ct.
Rep. 17) 152
Thome v 554
Tyee Realty Co. v 564
Andrews v. Osborn (Mem.) (239 U. S.
629, 36 Sup. Ct. Rep. 166) 476
United States v 641
Arana de Villanueva v. Villanueva
(239 U. S. 293, 36 Sup. Ct.
Rep. 109) 293
Arant, United States ex rel., v. Lane
(Mem.) (241 U. S. 677, 36
Sup. Ct. Rep. 727) 1233
Archer, United States v 918
Arkansas, St. Louis, I. M. ft S. R. Co.
V 776
Armour ft Co. v. North Dakota (240
U. S. 610, 36 Sup. Ct. Rep.
440) 771
Arrigo v. Hyers (Mem.) (239 U. S.
653, 36 Sup. Ct. Rep. 161) 487
Atchison, T. ft S. F. R. Co. v. Harold
(241 U. S. 371, 36 Sup. Ct.
Rep. 666) 1050
Male V 644
y. Public Service Commission
(Mem.) (239 U. S. 666, 36
Sup. Ct. Rep. 167) 488
y. Swearingen (239 U. S. 339,
36 Sup. Ct. Rep. 121) 817
T. United States (Mem.) (289
U. S. 646, 36 Sup. Ct Rep.
166) 483
Atlantic Coast Line R. Co. v. Bur-
nette (239 U. S. 199, 36
Sup. Ct. Rep. 75) 226
T. Glenn (239 U. S. 388, 86
Sup. Ct. Rep. 164) 344
B.
Backus, Chin Fong y 869
Choy Gum v. (Mem.) 486
Chu Tai Ngan y. (Mem.) 1236
Healy y. (Mem.) 1224
CASES REPOBTED.
Baocm & Sons t. Kinkead (Mem.)
(241 U. S. 680, 36 Sup. Ot
Rep. 728) 1234
Badden v. United States (240 U. S.
391, 36 Sup. a. Rep. 367) 706
Baddsn Clothing Co. t. Burnham-
Munger-Root Dry Gkx>da
Co. (Mem.) (241 U. S. 678,
36 Sup. Ct Rep. 727) .... 1233
Baiiey ▼. Baker Ice Maeh. Co. (230
U. S. 268, 36 Sup. Ct Rep.
60) 276
T. Yates (240 U. 6. 541, 36 Sup.
Ct. Rep. 429) 788
Baird, Morris Canal k Bkg. Co. ▼. ... 177
Baker, Broussard y. (Mem.) 1215
Baker Ice Mach. Co., Bailey y 275
Baldwin, Abercrombie k F. Co. t.
(Mem.) 485
Ballinger t. West Pub. Co. (Mem.)
(239 U. 8. 646, 30 8up. Ct.
Rep. 167) 484
Baltic Min. Co., Stanton y 546
Baltimore y. United R. k Electric Co.
(Mem.) (241 U. S. 671, 36
Sup. Ct. Rep. 722) 1230
Baltimore & O. R. Co., Fouts y.
(Mem.) 478
T. Hostetter (240 U. S. 620,
36 Sup. Ct. Rep. 475) 829
Reedy. (Mem.) 481
Bank, Alice State, y. Houston Pasture
Co. (Mem.) (241 U. & 674,
36 Sup. Ct Rep. 734) ... 1231
Bronx Nat., y. Rosenthal
(Mem.) (241 U. S. 672,
36 Sup. Ct. Rep. 723) 1230
Century Say., Moody y. (239
U. S. 374, 36 Sup. Ct Rep.
Ill) 336
Commercial Nat, y. Canal-
Louisiana Bank k T. Co.
(239 U. S. 520, 36 Sup. Ct
Rep. 194) 417
Commercial Nat, Martin y.
(Mem.) (241 U. S. 662, 36
Sup. Ct Rep. 449) 1227
Coon Rapids Nat, y. Lee
(Mem.) (239 U. S. 659, 36
Sup. Ct Rep. 284) 489
Farmers k M. Nat., t. Ridge
Aye. Bank (240 U. S. 498,
36 Sup. Ct Rep. 461) 767
Farmers k M. State, y. Park
(Mem.) (241 U. S. 645, 36
Sup. Ct Rep. 451) 1218
First Nat, y. Eberhart (Mem.)
(239 U. S. 626, 36 Sup. Ct
Rep. 162) 473
First Nat, t. Hoggson Bros.
(Mem.) (241 U. S. 670, 36
Sup. Ct Rep. 727) 1233
Bank, First Nat, t. Kehnast (Mem.)
(241 U. 6. 664, 36 Sup. Ct
Rep. 724)
Jones Nat, y. Yates (240 U.
S. 541, 36 Sup. Ct Rep.
429)
National, y. Shackelford (239
U. S. 8}, 36 Sup. Ct Rep.
17)
National, of Commerce y. Allen
(Mem.) (239 U. S. 642, 36
Sup. Ct. Rep. 163)
National, of Commerce y. Equi-
table Trust Co. (Mem.)
(239 U. S. 648, 36 Sup. Ct.
Rep. 221)
National, of Commerce, Russo-
Chinese Bank v. (241 U. S.
403, 36 Sup. Ct Rep. 652)
National, of Commerce y. Unit-
ed States (Mem.) (241
U. S. 658, 36 Sup. Ct Rep.
287)
New Hampshire Say., Haines
TUe k Mantel Co. y. (240
U. S. 617, 36 Sup. Ct Rep.
409)
New Hampshire Say., Jackson-
Walker Coal k Material
Co. y. (240 U. S. 617, 36
Sup. Ct. Rep. 409)
New Hampshire Say., Vamer y.
(240 U. S. 617, 36 Sup. a.
Rep. 409)
Ridge Aye., Farmers k M. Nat.
Bank y. (240 U. S. 498, 36
Sup. Ct. Rep. 461)
Russo-Chincse, y. National
Bank of Commerce (241
U. S. 403, 36 Sup. Ct Rep.
652)
Utica, y. Yates (240 U. S. 541,
36 Sup. Ct Rep. 429)
Bank k T. Co., Canal-Louisiana, Com-
mercial Nat Bank y. (239
U. S. 520, 36 Sup. Ct Rep.
194)
Bankers Trust Co. y. Texas ft P. R.
Co. (241 U. S. 205, 36 Sup.
Ct. Rep. 660)
Bank of SUplehurst y. Yates (240 U.
S. 541, 36 Sup. Ct Rep.
429)
i^wwif^ Co. y. California ex reL
Webb (240 U. S. 142, 36
Sup. Ct Rep. 338)
Barber Asphalt Paying Ca y. St. Paul
(Mem.) (230 U. S. 644, 36
Sup. Ct. Rep. 166)
Barlow t. Northern P. R. Co. (240
U. S. 484, 36 Sup. Ct. Rep.
456)
Barnard, Curtice Bros. Ca y. (MemO
1223
788
158
482
486
1065
1225
828
828
828
767
1065
788
417
1010
788
560
488
760
1236
nABiM RKPOKIXD.
BuBow, United SUtM T. IH
B«MO T. United 8UtM (UQ U. S. 80E,
SB Sop. Ck B^ e2S) .... 4U
Bate Cmutr v. Hippie (HanL) (241
U.8.ST8,S0 8ap.CtBep.)
723) 1281
BMgham V. Hew York. P. ft N. R. Co.
(£41 U. 8. 2S7, M Sup. CL
Rep. 6M) 077
BMndi7, Dredging ft
T. (Hem.).. 481
Bwiker, N v. 1100
Bder ■7>i
K (Mem.)
(241 U. 6. M7, Se Bvp. Ct
Rep. 681) 1220
BerrrUU, Ourk CHI Co. t. (Mem.) ... 48T
Bettendorf Axle Cck, Onuuly Tnut
Co. T. (Mem.) 12S0
Bettman t. United SUtei (Mem.)
(23a U. S. 642, S6 Sup. CI
Eep. 183) 4B2
Bigger. Tewe ft P. E. Co. * 810
Bi-Met»Ilic Inveat Co. t. SUte Bd.
(239 U. B.
Rq>. lil) 872
Binghun U. B. 811,
^ Rep. 834).... 1130
Bidier, Hamilton Tnwt Co. t. (Hem.) 482
Bidiop Y. Pryor (Hem.) (241 U. B.
878, 38 Sup. Ct Rep. 727) 1233
BUek, Sheridan ft Wilaon, Hudge v.
(Mem.) 482
Bllih UUl. Co., Georgia, F. ft A. R.
Co. T 1MB
Blumenthal t. Btrat (Mem.) (241 U.
B. 882, 38 Sup. Ct Rep.
449) 1227
Boarman, United State* ex rel. LouUl-
aua V. (Hem.) 482
(Hem.) .... 1217
8B7
Bombolla, MlnneapoUa ft St L. R. Co.
» 081
Bond, Chltago, R. I. ft P. R. Q>. T. . . . 788
Booth, United SUtea V. (Hem.) 12SS
Borland t. Northern Tnut S. D. Co,
(Mem.) (241 U. B. 00«, 38
Svp. Ct Rep. 447) 12SS
Boaton ft U. R. Co„ Peterborangb R.
Co. V. (Mem.) 474
Boaton T. Co., Baton v. 7S8
Botkin, Ft a ft H. a
Co. ■
Laak
Bottlara Seal Co., Uontgomery T.
(Mem.) 4S1
Bonlanger ▼. LonUiana (Hem.) (230
U. e. 884, 86 Sup. Ct Rep.
168) 487
Bowdltch T. Jackion Co. (Hon.) (230
U. S. 827, 86 Sup. Ct Rep.
l«t) 474
•• Ii. ed.
Bowen v. Dteka PraiB Guard Hfg. Co.
(Hem.) (241 U. S. 871, 38
Snp. Ct Rap. 722}
Bower, Chleago ft N. W. R. Co. v.. . .
Bradley, Bingluun v
*. Spokane ft I. E. R. Co.
(Mem.) (241 U. S. 639, 36
Sup. Ct. Rep. 285)
Wakefield V. (Hem.)
Brady, Dodge v
V. Kern (Mem.) (230 U. S.
043, 38 Bup. Ct Rep. 164)
Bramlett, Southern R. Co. t. [Uao.)
Brandt Rx parte (Mem.) (241 U. S.
643, 36 Sup. Ct. Rep. 446)
Bray v. United SUtea Fidelity ft G.
Co. (Mem.) (230 U. B. 028,
30Sup. Ct Rep. 164)
Braiee y. Michigan (241 U. S. 340,
S6 Sup. Ct Rep. SOI)
Brlgga T. United Shoe Machinery Co.
(830 U. B. 4S, 38 Sup. Ct
Hep. 6)
British 8. S. Co. v. Clarke (Hem.)
(241 U. S. 673. S6 Snp. Ct
Rep. 723)
Brogan t. National Surety Co. (Hem.)
(241 U. S. 870, 30 Sup. Ct
Rep. 721)
Bronx Nat Bank v. Roaenthal (Hem.)
(241 U. S. 072. 30 Sup. Ct
Hep. 723)
BrouBcard v. Baker (Mam.) (241 U.
8. 639, 30 Bup. Ct Rep.
285)
T. Smith. See BROoaaaBD T.
Baku.
Brown. AblMtt t.
Bngliah v. (Hem.)
Hapai V
Harmon y, (Mem.)
V. Pacific Coaat Coal Co. (241
U. B. 571, 36 Sup. Ct Rep.
701)
St. LonU ft 8. F. R. Co. T. ...
Bruahaher v. ffi 240 U.
S. 1. 36 Sup. Ct. Rep. 236]
Bukva, Ex parte (Mem.) (241 U. 8.
647, 36 Sup. Ct. Rep. 482)
BuUen ▼. Wiaoonain (240 U. S. 826, 38
Sup. Ct Rep. 473)
Burka Electric Co., Pneu-
matic T( Uem.)
Bnra«tt^ Atlantio Coaat Line R. Co.
1237
1177
Buraham-Mnnger-Root Dry Qooda Coq
Baddeia ClotUng Co. v.
(Mem.) 1283
Borrongha ▼. Chamben (Mem.) (23V
U. 8. 849, 38 Sup. Ct Rep.
284) 486
CASES REPORTED.
Busch V. Stromberg-CarlBon Teleph.
Mfg. Co. (Mem.) (239 U.
S. 644, 86 Sup. Ct. Rep.
166) 483
Butler, Gardiner v. (Mem.) 1226
y. Perry (240 U. S. 328, 36 Sup.
Ct. Rep. 268) 672
Byera, Southern Exp. Co. v 826
Byrne, Inter-Ialand Steam NaT. Co. ▼. 382
a
Caldwell t. Donaghey (Mem.) (241 U.
S. 690, 36 Sup. Ct. Rep.
554) 1238
California ex rel. Webb, Banning Co.
V 669
Callaghan v. Massachusetts (Mem.)
(241 U. S. 667, 36 Sup. Ct.
Rep. 651) 1229
Calumet Transit Co., Smith Co. v.
(Mem.) 1234
Cambria Iron Co. ▼. Carnegie Steel
0>. (Mem.) (239 U. S. 644,
36 Sup. Ct. Rep. 166) 483
Campbell, Southern R. Co. v 166
Spokane & L E. R. Co. v 1125
Ccmal-Louisiana Bank A. T. Co., Com-
mercial Nat. Bank v 417
Cardona v. Quifiones (240 U. S. 83,
36 Sup. Ct. Rep. 346) 538
Carey v. Donohue (240 U. S. 430, 36
Sup. Ct. Rep. 386) 726
Carlin Constr. Co., Guerini Stone Co.
V 636
Camahan, Chesapeake & 0. R. Co. t. 979
Carnegie Steel Ck>., Cambria Iron Co.
V. (Mem.) 483
▼. United SUtes (240 U. S. 166,
36 Sup. Ct. Rep. 342) 676
Carolina, C. & 0. R. Co., Shewalter v.
(Mem.) 476
Carolina Glass Co. v. Murray (240 U.
S. 306, 36 Sup. Ct. Rep.
293) 658
▼. South Carolina (240 U. S.
305, 36 Sup. Ct. Rep. 293) 658
Caasill, South Dakota v. (Mem.) 1236
Catani, Swift k Co. v. (Mem.) 1238
Causey v. United States (240 U. S.
399, 36 Sup. Ct. Rep. 365) 711
Central R. Co. ▼. United States
(Mem.) (241 U. S. 658, 36
Sup. Ct. Rep. 446) 1226
Central Trust Co., Chicago Audi-
torium Asso. T 811
▼. Chicago Auditorium Asso.
(240 U. S. 581, 36 Sup. Ct.
Rep. 412) 811
T. Lueders & Co. (239 U. S. 11,
36 Sup. Ct. Rep. 1) 119
Century Sav. Bank, Moody t 836
10
Gerecedo ▼. United States (289 U. 8.
1, 36 Sup. Ct. Rep. 8) . . . . 118
Cerri v. Pagano (Mem.) (241 U. &
693, 36 Sup. Ct. Rep. 726) 1289
Chambers, Burroug^ ▼. (Mem.) .... 486
Chappel, Gidney v 910
Chase, United States t. (Mem.) .... 1229
Chaves, De Elzaburu ▼. 290
Chesi^eake & O. R. Co. ▼. Carnahan
(241 U. S. 241, 86 Sup. Ct
Rep. 594) 979
▼. De Atley (241 U. S. 310, 36
Sup. Ct. Rep. 564) 1016
▼. Dwyer. See Chesapeake &
0. R. Co. V, Gainet.
V. Gainey (241 U. S. 494, 86
Sup. Ct. Rep. 633) 1124
▼. Kelly (241 U. S. 485, 36
Sup. Ct. Rep. 630) 1117
▼. Proffitt (241 U. S. 462, 36
Sup. Ct. Rep. 620) 1102
Chicago, Mulcare v. (Mem.) 1221
Chicago & A. R. Co. t. Public Service
Commission (Mem.) (239
U. S. 655, 36 Sup. Ct.
Rep. 167) 488
▼. Wagner (239 U. S. 452. 30
Sup. Ct. Rep. 135) 379
Chicago & N. W. R. Co. v. Bower (241
U. S. 470, 36 Sup. Ct. Rep.
624) 1107
Menasha Paper Co. v 885
Chicago Auditorium Asso. ▼. Central
Trust Co. (240 U. S. 581,
36 Sup. Ct. Rep. 412) 811
Central Trust Co. v 811
Chicago, B. & Q. R. Co. v. Harrington
(241 U. S. 177, 36 Sup. Ct.
Rep. 517) 941
Lindsay V. (Mcti.) 1233
Missouri v 1148
T. Public Service Commission
(Mem.) (239 U. S. 653. 36
Sup. Ct. Rep. 167) 488
Chicago City R. Co., Venner v. (Mem.) 488
Chicago, L. S. & S. B. R. Co., Fellers
v. (Mem.) 1281
Chicago, M. A, St. P. R. Co. t. Public
Service Commission (Mem.)
(239 U. S. 655, 36 Sup. Ct.
Rep. 167) 488
Chicago, R. I. & P. R. Co. ▼. Bond
(240 U. S. 449, 36 Sup. Ct
Rep. 403) 786
T. Devine (289 U. 8. 52, 86
Sup. Ct Rep. 27) 140
▼. Public Service Commission
(Mem.) (289 U. S. 655, 36
Sup. Ct. Rep. 167) 488
T. Whiteaker (239 U. S. 421,
36 Sup. Ct. Rep. 152) 360
▼. Wright (289 U. S. 548, 36
Sup. Ct Rep. 186) 431
CASES REPORTSD.
Chieog Ah Sui v. McCoy (2C0 U. S.
139, 86 Sup. Ct. Rep. 96) . . 188
ChUders, Meen V. (Mem.) 1227
Chin Fong ▼. Backus (241 U. S. 1,
36 Sup. Ct. Rep. 400) 869
Chin Quock Wah v. White (Mem.)
(241 U. S. 689, 36 Sup. Ct.
Rep. 660) 1287
Choy Gum ▼. Backus (Mem.) (239
U. S. 640, 36 Sup. Ct. Rep.
284) 486
Christenscn, National Brake A, Elec-
tric Co. V. (Mem.) 1226
Christianson v. King County (239 U.
S. 366, 36 Sup. Ct. Rep.
114) 327
Church Co. v. Hilliard Hotel Co.
(Mem.) (241 U. S. 665, 36
Sup. Ct Rep. 651 ) 1228
Chu Tai Ngan v. Backus (Mem.) (241
U. S. 084, 36 Sup. Ct. Rep.
286) 1236
Ciffo T. Ciffo (Mem.) (241 U. S. 660,
36 Sup. Ct. Rep. 448) 1226
Cincinnati, N. 0. & T. P. R. Co., Day-
ton Coal & I. Co. V 376
▼. Massingale (Mem.) (241 U.
S. 693, 36 Sup. Ct. Rep.
724) 1230
▼. Rankin (241 U. S. 319, 36
Sup. Ct. Rep. 655) 1022
aarke, British S. S. Co. v. (Mom.) .. 1231
Classen, Northern P. R. Co. v 342
Clement v. James (Mem.) (241 U. S.
657, 36 Sup. Ct. Rep. 286) 1226
▼. Whittaker (Mem.) (241 U.
S. 679, 36 Sup. Ct. Rep.
727) 1233
Cleveland, C. C. & St. L. R. Co. v.
Dettlebach (239 U. S. 688,
36 Sup. Ct. Rep. 177) 463
Coates v. District of Ck>lumbia (Mem.)
(239 U. S. 636, 241 U. S.
637, 36 Sup. Ct. Rep. 445)
479, 1216
Colbum ▼. United States (Mem.)
(239 U. S. 643, 36 Sup. Ct.
Rep. 163) 483
Coleman, Levindale Lead A, Zinc Min.
Co. V 1080
CoUini ▼. Phillips (Mem.) (241 U. S.
682, 36 Sup. Ct. Rep. 284) 1235
Colorado City v. Harrison (Mem.)
(241 U. S. 664, 36 Sup. Ct.
Rep. 649) 1227
Commercial Acetylene Co., Fireball
Gas Tank & Illuminating
Co. V 191
Commercial Nat. Bank ▼. Canal-
Louisiana Bank ft T. Co.
(239 U. S. 620, 36 Sup. Ct.
Rep. 194) 417
Martin ▼. (Mem.) 1227
•0 li. ed.
1235
482
1211
489
1232
1234
1226
478
1216
1238
Commons, Hallowell v 409
Comp ton Co., Allen V. (Mem.) 486
Concannon, Northern P. R. Co. t 342
Congregaci6n de la Mision de Sen
Vincente de Paul v. Reyes
y Mijares (Mem.) (241 U.
S. 686, 36 Sup. Ct. Rep.
447)
Consolidated Arizona Smelting Co.,
Hinchman v. (Mem.) ....
Conway, Holmes v
Coon Rapids Nat. Bank v. Lee (Mem.)
(239 U. S. 669, 36 Sup. Ct.
Rep. 284)
Cooper ▼. United SUtes (Mem.) (241
U. S. 676, 36 Sup. Ct. Rep.
726)
Corrugated Bar Co., Trussed Concrete
Steel Co. ▼. (Mem.)
Ck>urtney v. Georger (Mem.) (241 U.
S. 660, 36 Sup. Ct. Rep.
448)
Court of First Instance, Director of
Prisons v. (Mem.)
Cousins, Illinois C; R. Co. v. (Mem.)
Craig V. Kentucky (Mem.) (241 U.
S. 602, 36 Sup. Ct. Rep.
722)
Cramp ft Sons Ship ft Engine Bldg.
Co. V. United States (239
U. S. 221, 36 Sup. Ct. Rep.
70) 23b
Crane v. New York (239 U. S. 195, 36
Sup. Ct. Rep. 85) 218
Crescent Mill. Co. ▼. Strait Mfg. Co.
(Mem.) (241 U. S. 673, 36
Sup. Ct. Rep. 724) 1231
Crocker t. United States (240 U. S.
74, 36 Sup. Ct. Rep. 245) 633
Crutchley v. National Fireproofing Co.
(Mem.) (241 U. S. 664, 36
Sup. Ct. Rep. 549) 1228
Cubbins v. Mississippi River Commis-
sion (Mem.) (241 U. S.
601, 36 Sup. Ct. Rep. 554) 1238
▼. Mississippi River (Commis-
sion (241 U. S. 361, 36
Sup. Ct. Rep. 671) 1041
Cunningham v. Floumoy (Mem.)
(241 U. S. 687, 36 Sup.
Ct. Rep. 460) 1236
Curtice Bros. Co. v. Barnard (Mem.)
(241 U. S. 686, 36 Sup. Ct.
Rep. 447) 1286
Curtis T. West End Street R. Co.
(Mem.) (241 U. S. 685, 36
Sup. Ct. Rep. 286) 1236
Curtiss, Stead v. (Mem.) 478
Cuyahoga River Power Co. v. Akron
(240 U. S. 462, 36 Sup. Ct.
Rep. 402) 748
0A8B8 BEPOBTED.
D.
Daeehe ▼. Bollsohweiler (Mem.) (241
U. 8. 641, 36 Sup. Ct. Rep.
446) 1217
Davis, Ohio ex rd., ▼. Hildebrant (241
U. S. 665, 86 Sup. Ct Rep.
708) 1172
.Virginia R. ft Power Ca ▼.
(Mem.) 1281
Dayton t. Stanard (241 U. S. 688, 36
Sup. Ct. Rep. 696) 1190
Dayton Coal & I. Co. v. Cincinnati, N.
0. A T. P. R. Co. (239 U.
S. 446, 36 Sup. Ct. Rep.
137) 875
De Atley, (]lhe8i4>eake & 0. R. Co. v. . . 1016
Deaton v. Kentucky (Mem.) (241 U.
S. 683, 36 Sup. Ct Rep.
284) 1285
De Elzaburu v. Caiaves (289 U. S. 288,
86 Sup. Ct. Rep. 47) 290
De la Rama v. De la Rama (241 U. S.
154, 36 Sup. Ct. Rep. 518) 932
Delaware, L. & W. R. Ck>., Shanks ▼. 486
T. Yurkonis (Mem.) (239 U. S.
652, 36 Sup. Ct. Rep. 160) 486
Del Pozo y Marcos, Wilson Cypress
CJo. V. (Mem.) 1222
Des Moines, Northwestern Laundry t. 896
Detroit & M. R. Co. v. Michigan R.
Commission (240 U. S.
564, 36 Sup. Ct. Rep. 424) 802
Dettlebach, Cleveland, C. C. & St L.
R. CJo. V 453
Deupree v. Watson (Mem.) (239 U.
8. 656, 86 Sup. Ct Rep.
167) 488
Devine, Chicago, R. I. & P. R. Co. v. 140
Dicks Press Guard Mfg. Co., Bowen
V. (Mem.) 1230
Diener v. Lane (Mem.) (239 U. S.
632, 36 Sup. Ct Rep. 219) 477
Dillingham, Thompson A. F. Lumber
Co. V. (Mem.) 484
Director of Prisons v. (}ourt of First
Instance (Mem.) (239 U.
S. 633, 36 Sup. Ct Rep.
220) 478
District of Columbia, Coates v.
(Mem.) 479, 1216
▼. Washington Caslight Co.
(Mem.) (241 U. S. 676, 86
Sup. a. Rep. 725) 1232
Dodge ▼. Brady (240 U. 8. 122, 86
Sup. Ct. Rep. 277) 560
▼. Osbom (240 U. S. 118, 36
Sup. Ct Rep. 275) 557
Donagh^, Caldwell v. (Mem.) 1238
Donald v. Philadelphia & R. Coal ft
1. Ck>. (241 U. 8. 829, 86
Sup. Ct Rep. 563) 1027
Donat, Pennsylvania Co. v 189
11
Donohue, Carey ▼
Dowd V. United Mine Workers* (Mem.)
241 U. S. 692, 36 Sup. (X
Rep, 722)
Downej ▼. Hartford F. Ins. Co.
(Mem.) (241 U. a 671, 86
Sup. Ct Rep. 721^)
Duel T. Hollins (241 U. 8. 523, 36
Sup. Ct. Rep. 615)
Duncan, Ex parte (Mem.) (289 U. S.
630, 36 Sup. Ct Rep. 165)
Dunham v. Kauffman (Mem.) (241 U.
S. 658, 86 Sup. Ct Rep.
728)
Dunlevy, New York L. Ins. Co. v. . . .
Da Pont de Kemours Powder Co. v.
Masland (Mem.) (289 U.
S. 646, 36 Sup4 Ct. Rep.
219)
Dure ▼. Wright (Mem.) (241 U. S.
658, 86 Sup. Ct Rep. 287)
Duval ▼. Louisiana (Mem.) (239 U.
8. 626, 36 Sup. Ct Rep.
162)
Dwyer, Chesapeake ft 0. R. Co. ▼
725
1288
1280
1148
476
1222
1140
484
1228
474
1124
Eaton V. Boston Safe Deposit ft T.
Co. (240 U. S. 427, 36 Sup.
Ct Rep. 391 ) 723
T. Shiawassee County (Mem.)
(289 U. S. 647, 86 Sup. Ct.
Rep. 221) 484
Eberhart, First Nat Bank v. (Mem.) 478
Eichel V. United States Fidelity ft G.
Co. (Mem.) (239 U. S. 629,
86 Smp. Ct. Rep. 165) 475
El Dla Ins. Co. v. Sinclair (Mem.)
(241 U. 8. 661, 36 Sup. Ct
Rep. 449) 1226
Elkan ▼. Maryland (Mem.) (239 U.
a 634, 36 Sup. Ct Rep.
221)
Embree ▼. Kansas City ft L. Boule-
vard Road Dist (240 U. S.
242, 36 Sup. Ct Rep. 317)
English V. Brown (Mem.) (241 U. S.
667, 36 Sup. Ct Rep. 551) 1229
Enright v. Tancey (Mem.) (241 U. 8.
678, 86 Sup. Ct. Rep. 727) 1288
Equitable Trust Co., National Bank of
Commerce v. (Mem.) .... 485
Erie R. Co. v. Prowski (Mem.) (241
U. 8. 686, 86 Sup. Ct Rep.
447) 1236
Essex V. New England Teleg. Ca (289
U. 8. 818, 86 Stq>. Ct Rep.
102) 801
Eugene, Grelle v. (Mem.) 484
Everett, Hollins v. (Mem.) 1226
Hollins ft Co. V. (MenL) .... 1282
478
624
CASES REPORTED.
parte Brandt (Mem.) (241 U. S.
643, 36 Sup. Ct. Rep. 448) 1218
Bukva (Mem.) (241 U. S. 647,
30 Sup. Ct. Rep. 452) 1219
Duncan (Mem.) (239 U. S. 630,
36 Sup. Ct. Rep. 166) 476
Griffin (Mem.) (241 U. a 650,
36 Sup. Ct. Rep. — ) 1221
Lamar (Mem.) 241 U. S. 643,
36 Sup. Ot Rep. — ) .... 1217
Motion Picture Patents Co.
(Mem.) (241 U.*S. 691, 36
Sup. Ct. Rep. 554) 1238
Robinson (Mem.) (241 U. S.
652, 36 Sup. Ct. Rep. 722) 1222
Robinson (Mem.) (241 U. S.
655, 36 Sup. Ct. Rep. — ) 1224
Sage (Mem.) (241 U. S. 647,
36 Sup. Ct. Rep. 452 ) 1219
Sears (Mem.) (241 U. S. 656,
86 Sup. Ct. Rep. 726) 1224
Uppercu, 239 U. S. 435, 36 Sup.
Ct. Rep. 140) 368
Watto, W. ft Co. (Mem.) (241
U. S. 655, 36 Sup. Ct. Rep.
726) 1224
Whitt (Mem.) (239 U. S. 636,
36 Sup. Ct. Rep. 283) 479
F.
Fairbanks Steam Shovel Co. ▼. Wills
(240 U. S. 642, 36 Sup. Ct
Rep. 466) 841
Fajardo Sugar Co., Richardson v 879
Faloo ▼. Mulet (Mem.) (241 U. S. 646,
36 Sup. Ct. Rep. 451) 1219
Fall City Constr. Co., United States
ex rel., Jimmerson v.
(Mem.) (329 U. S. 641,
36 Sup. Ct. Rep. 163) 482
Fargo, Johnson ▼ 243
Fargo, Reid v 1156
Farmers' & M. Nat. Bank ▼. Ridge
Ave. Bank (240 U. S. 498,
36 Sup. Ct. Rep. 461) 767
Farmers A M. State Bank v. Park
(Mem.) (241 U. S. 645,
36 Sup. Ct. Rep. 451) 1218
Famham v. United SUtes (240 U. S.
637, 36 Sup. Ct. Rep. 427) 786
Faulk A Co., Steiner v. (Mem.) .... 481
Federal Title A T. Co., Nisbet ▼.
(Mem.) 1229
Fellers t. Chicago, Lb S. A S. B. R.
Co. (Mem.) (241 U. 8. 672,
36 Sup. Ct. Rep. 723) 1231
Fewell, Morley V. (Mem.) 488
Fideli^ A D. Co. ▼. Pennsylvania (240
U. S. 819, 36 Sup. Ct. Rep.
298) 664
Filler t. Steele (Mem.) (241 U. S.
648, 36 Sup. Ct Rep. 550) 1220
•0 If. e^
Fireball Gas Tank A Illuminating Co.
▼. Commercial Acetylene
Co. (239 U. S. 156, 86 Sup.
Ct Rep. 86) 191
First Nat Bank v. Eberhart (Mem.)
(239 U. S. 626, 36 Sup. Ct
Rep. 162) 478
T. Hoggson Bros. (Mem.) (241
U. S. 679, 36 Sup. Ct. Rep.
727) 1233
▼. Kehnast (Mem.) (241 U. S.
654, 36 Sup. Ct Rep. 724) 1223
Fleitmann v. Shaw (240 U. S. 27, 36
Sup. Ct. Rep. 233) 505
T. Welsbach Street Lighting Co.
(240 U. S. 27, 36 Sup. Ct.
Rep. 233) 505
Floumoy, Cunningham v. (Mem.) .. 1236
Ford V. United States (239 U. S. 608,
36 Sup. Ct. Rep. 224) 464
Forty Barrels A Twenty Kegs, United
States V 995
Forty-Two Broadway Co., Anderson ▼. 152
Fouts ▼. Baltimore A 0. R. Co.
(Mem.) (239 U. S. 633, 36
Sup. Ct Rep. 220) 478
Frank v. Union P. R. Co. (Mem.)
(241 U. S. 694, 36 Sup. Ct.
Rep. 728) 1239
Frear v. Western U. Teleg Co. (241
U. S. 329, 36 Sup. Ct. Rep.
563) 1027
Free v. Western U. Teleg. Co. (Mem.)
(241 U. S. 656, 36 Sup. Ct.
Rep. 726) 1224
V. Western U. Teleg. Co.
(Mem.) (241 U. S. 684, 36
Sup. Ct Rep. 286) 1235
Freed, Weber v 308
Freeman, United States ▼. 172
Fuller Co. v. Otis Elevator Co. (Mem.)
(241 U. S. 665, 36 Sup. Ct
Rep. 650) 1228
Fushey, Monadnock Mills ▼. (Mem.) 1228
G.
Gage, Southern Oregon Co. ▼. (Mem.) 1236
Gaines A Co. v. Hellman Distilling Co.
(Mem.) (241 U. S. 668, 36
Sup. Ct Rep. 552) 1220
Rock Spring Distilling Co. ▼.
(Mem.) 484
Gftiney, Chesapeake A O. R. Co. t. ... 1124
Gallardo y Seary, Goenaga y Olsa t.
(Mem.) 1237
Gardiner v. Butler (Mem.) (241 U. S.
660, 36 Sup. Ct. Rep. 448) 1226
Gardiner Invest. Co. ▼. Jackson Co.
(Mepo.) (239 U. 8. 628, 36
Sup. Ct Rep. 164) 4T&
\^
CASES REPORTED.
G«8t Realty & Invest. Co. v. Schneider
Granite Co. (Mem.) 36
Sup. Ct. Rep. 400) 1239
▼. Schneider Granite Co. (240
U. S. 65, 60, 36 Sup. Ct.
Rep. 264, 255, 400) . . .523, 626
Geary, Phosnix R. Co. v 287
Gegiow T. Uhl (239 U. S. 3, 36 Sup.
Ct. Rep. 2) 114
Georger, Courtney t. (Mem.) 1226
Georgia, Heimer y. (Mem.) 1237
▼. Tennessee Copper Co. (240
U. S. 650, 36 Sup. Ct. Hep.
465) 846
Georgia, F. & A. R. Co. t. Blish Mill.
Co. (241 U. S. 190, 36 Sup.
Ct. Rep. 541) 948
Georgia Southern ft F. R. Co., Town-
send V. (Mem.) 483
Gidney v. Chappel (241 U. S. 99, 36
Sup. Ct. Rep. 492) 910
GiliUand, Adamson v. (Mem.) 1227
Gillette, Press Pub. Co. v. (Mem.) ... 1226
Glass T. Newell. See Glass v. Wood-
man.
▼. Woodman (Mem.) (241 U.
S. 646, 36 Sup. Ct. Rep.
461) 1219
Glenn, Atlantic Coast line R. Co. ▼. 344
Glenwood Light ft Water Co. ▼.
Mutual Light, Heat ft P.
Co. (239 U. S. 121, 36 Sup.
Ct. Rep. 30) 174
Goenaga y Olsa v. Gallardo y Seary
(Mem.) (241 U. S. 688, 36
Sup. Ct. Rep. 451) 1237
Gold Medal Camp Furniture Mfg. Co.
y. Telescope Cot Bed Co.
(Mem.) (241 U. S. 666, 36
Sup. Ct. Rep. 551 ) 1228
Goodrich, Houston Oil Co. v. (Mem.) 1225
Grand Trunk R. Co. ▼. United States
(Mem.) (241 U. S. 681, 36
Sup. Ct. Rep. 728) 1234
Grant, Standard Fashion Co. v.
(Mem.) 1187
Gray, New York C. ft H. R. R. Co. v. 451
Osborne v 865
Southern R. Co. v 1030
Great Northern R. Ck>. v. Knapp (240
U. S. 464, 36 Sup. Ct. Rep.
399) 745
T. Otos (239 U. S. 349, 36 Sup.
Ct. Rep. 124) 322
T. Wiles (240 U. S. 444, 36 Sup.
Ct. Rep. 406) 732
Greenlees v. Morris (Mem.) (239 U.
S. 627, 36 Sup. Ct Rep.
163) 474
Grelle v. Eugene (Mem.) (239 U. S.
647, 36 Sup. Ct. Rep. 219) 484
Griffin, Ex parte (Mem.) 241 U. S.
660, 36 Sup. Ct Rep. — .. 1221
J4
Griffin,KellyT 861
Gromer, Palmer t. (Mem.) 488
Grosman, Union Trust Ck>. v. (Mem.) 1227
Gaell T. Insular Collector of Customs
(239 U. a 93, 36 Sup. Ct.
Rep. 89) 163
Guaranty Trust Co. ▼. Bettendorf Axle
Co. (Mem.) (241 U. S. 671,
36 Sup. Ct. Rep. 722) ... 1230
Guardian Trust Ck>., Kansas City
Southern R. Co. v 579
Guerini Stone Co. ▼. Carlin Constr.
Co. (240 U. S. 264, 86 Sup.
Ct Rep. 300) 636
Gundall t. Manhattan R. Co. (Mem.)
(239 U. S. 664, 36 Sup. Ct
Rep. 162) 487
Guth T. Guth Chocolate Co. (Mem.)
(2(39 U. S. 640, 36 Sup. Ct.
Rep. 161) 481
Guth Chocolate Co., Guth t. (Mem.) 481
H.
Hadacheck ▼. Sebastian (239 U. S.
394, 36 Sup. Ct Rep. 143) 348
Hagan v. Larkin (Mem.) (241 U. S.
685, 36 Sup. Ct. Rep. 447) 1230
Haines Tile ft Mantel Co. t. New
Hampshire Sav. Bank (240
U. S. 617, 36 Sup. Ct Rep
409) 828
Halifax Tonopah Min. Co. ▼. Lawson
(Mem.) (239 U. S. 632, 36
Sup. Ct. Rep. 220) 477
Hallowell v. Commons (239 U. S. 506,
36 Sup. Ct Rep. 202) 409
Hamburg- Amerikanische Packet Co. v.
United States (239 U. S.
466, 36 Sup. Ct. Rep. 212) 387
United SUtes v 387
Hamilton, Kitchens v. (Mem.) ..480, 1215
HamiHon-Brown Shoe Co. v. Wolf
Bros, ft Co. (240 U. S. 251,
86 Sup. Ct. Rep. 269) 62f>
Hamilton Trust Co. v. Bisher (Mem.)
(239 U. S. 641, 36 Sup. a.
Rep. 161) 482
Hanish v. United SUtes (Mem.) (230
U. S. 645, 36 Sup. Ct. Rep.
167) 484
HanoTer Star Mill. Co., Allen ft W.
Co. V 713
V. Metcalf (240 U. S. 403, 36
Sup. Ct Rep. 357) 718
Hapai ▼. Brown (239 U. S. 502, 36
Sup. Ct Rep. 201) 407
Hare, Mackenzie v 297
Harmon v. Brown (Mem.) (241 U. S.
688, 36 Sup. a. Rep. 451) 1237
T. United SUtes (Mem.) (241
U. S. 676, 36 Sup. Ct. Rep.
725) • 1232
CASES REPORTED.
Harold, Atchiaon, T. & S. F. R. Co. t. 1060
Harriqgtoa, Chicago, B. k Q. R. Co. v. 941
Harrison, Colorado City v. (Mem.).. 1227
Hartford & N. T. Transp. Co., Lehigli
k W. Coal Co. ▼. (Mem.) 1282
Hartford F. Ins. Co., Downey v.
(Mem.) 1230
Harvey, Stowe y 963
Hawgood k A. Traniit Co. ▼. Mea-
ford Transp. Co. (Mem.)
(241 U. S. 682, 36 Sup. Ct.
Rep. 728) 1234
T. WillUms (Mem.) (241 U. S.
682, 36 Sup. Ct. Rep. 728) 1234
Hays T. United States (Mem.) (241
U. S. 674, 36 Sup. Ct. Rep.
724) 1231
Healy ▼. Backus (Man.) (241 U. S.
655, 36 Sup. Ct. Rep. 726) 1224
Helm V. McCall .(239 U. S. 176, 36
Sup. Ct. Rep. 78) 206
Heimer ▼. Georgia (Mem.) (241 U. S.
680, 36 Sup. Ct. Rep. 650) 1237
Hellman Distilling Co., Gaines & Co.
V. (Mem.) 1229
Hemmer, United States v 1056
Hennepin County, Rogers v 469
Rogers ▼ 594
Herbert ▼. Shanley Co. (Mem.) (241
U. S. 666, 36 Sup. Ct. Rep.
651) 1228
Hildebrant, Ohio ex rel. Davis v 1172
Hill V. Lovewell (Mem.) (239 U. S.
644, 36 Sup. Ct. Rep. 166) 483
Hilliard Hotel Co., Church Co. v.
(Mem.) 1228
Hilton-Green, Mutual L. Ins. Co. ▼. 1202
Hinchman v. Consolidated Arizona
Smelting Co. (Mem.) (239
U. S. 640, 36 Sup. Ct. Rep.
161 ) 482
Hippie, Bates County v. (Mem.) 1231
Hise V. Western Coal &, Min. Co.
(Mem.) (241 U. S. 666, 36
Sup. Ct. Rep. 661 ) 1228
Hitchman Coal ft Coke Co. v. Mitchell
(Mem.) (241 U. S. 644, 36
Sup. Ct. Rep. 460) 1218
Hoggson Bros., First Nat. Bank v.
(Mem.) 1233
Hollinger, United States use of
National Surety Co. v.
(Mem.) (241 U. S. 687, 36
Sup. Ct. Rep. 450) 1236
Hollins, Duel v 1143
▼. Everett (Mem.) (241 U. S.
661, 36 Sup. Ct. Rep. 448) 1226
Wiener, L. ft Co. v. 1143
Hollins ft Co. V. Everett (Mem.) (241
U. S. 676, 36 Sup. Ct. Rep.
726) 1232
Holmes ▼. Conway (241 U. S. 624, 36
Sup. Ct. Rep. 681) 1211
LewU T. (Mem.) 481
•0 li. ed.
Home Bond Co. v. McChesney (289
U. S. 668, 36 Sup. Ct. Rep.
170)
Hopkins t. Hull (Mem.) (241 U. S.
669, 36 Sup. Ct. Rep. 662)
Horton, Seaboard Air Line R. Co. v.
Hostetter, Baltimore ft 0. R. Co. v.
Houck V. Little River Drainage Dist.
(239 U. S. 264, 36 Sup. Ct.
Rep. 68)
Houston Oil Co. v. Goodrich (Mem.)
(241 U. S. 667, 36 Sup. Ct.
Rep. 286)
Houston Pasture Co., Alice State Bank
V. (Mem.)
Huff V. United States (Mem.) (241 U.
S. 667, 36 Sup. Ct. Rep.
651)
Hull, Hopkins V. (Mem.)
Hyers, Arrigo v. (Mem.)
Indovina t. (Mem.)
444
1229
468
829
266
1225
1231
1228
1229
487
487
Iberia ft St. M. Drainage Dist., Myles
Salt Co. V
Idaho use of Mills, American Surety
Co. V. (Mem.)
use of Allen, Title Guaranty ft
Surety Co. v
Idaho-Oregon Light ft P. Co., Westing-
house Electric ft Mfg. Co.
V. (Mem.)
Illinois C. R. Co. v. Cousins (Mem.)
(241 U. S. 641, 36 Sup. a.
Rep. 446)
▼. Messina (240 U. S. 395, 36
Sup. Ct. Rep. 368)
▼. Pelton (Mem.) (239 U. S.
665, 36 Sup. Ct. Rep. 166)
▼. Skaggs (240 U. S. 66, 36
Sup. Ct. Rep. 249)
T. Slaughter (Mem.) (239 U.
S. 651, 36 Sup. Ct. Rep.
169)
Illinois Surety Co. v. United States use
of Peeler (240 U. S. 214, 36
Sup. Ct. Rep. 321 )
Independent Pneumatic Tool Co. v.
Burke Electric Co. (Mem.)
(241 U. S. 682, 36 Sup. Ct.
Rep. 728) *
Indian Territory Illuminating Oil Co.
▼. Oklahoma (240 U. S.
522, 36 Sup. Ct. Rep. 453)
Indovina v. Hyers (Mem.) (239 U. S.
654, 36 Sup. Ct. Rep. 161)
Ingram, Wallbrecht v. (Mem.)
Innes v. Tobin (240 U. S. 127, 86
Sup. Ct. Rep. 290)
Insular Collector of Customs, Gsell v.
Ins. Co., El Dia, v. Sinclair (Mem.)
(241 U. S. 661, 36 Sup. Ct.
Rep. 449)
392
1237
666
1234
1216
709
488
628
486
609
1234
770
487
473
562
163
lt2A
CASES BEPOBTED.
InB. Co., Hartford F., Downey ▼.
(Mem.) (241 U. S. 671, 36
Sup. Ct. Rep. 722 1230
MMsaehuBetts Bonding k, v.
Bealty Trust Co. (Mem.)
(241 U. S. 687, 36 Sup. Ct.
Bep. 451) 1287
MiBsouri State L., Stine ▼.
(Mem.) (241 U. S. 642, 36
Sup. Ct. Bep. 447) 1217
Mutual L., v. Hilton-Green (241
U. S. 613, 36 Sup. Ct. Bep.
676 1202
New York L., v. Dunlevy (241
U. S. 518, 36 Sup. Ct. Bep.
613) 1140
Insurance Co. of N. A., McCoach ▼.
(Mem.) (241 U. S. 674, 36
. Sup. Ct. Rep. 724) 1231
Inter-Island Steam Nav. Co. ▼. Byrne
(239 U. S. 450, 36 Sup. Ct.
Bep. 132) 382
International Steam Pump Co., Lewis
V. (Mem.) 1232
Interstate Amusement Co. t. Albert
(239 U. S. 560, 36 Sup. Ct.
Bep. 168) 439
Iowa Washing Macb. Co., Ward & Co.
V. (Mem.) 1234
J.
Jackson Co., Bowditch v. (Mem.) .. 474
Gardiner Invest. Co. v. (Mem.) 476
Jackson- Walker Coal & Material Co. v.
New Hampshire Sav. Bank
(240 U. S. 617, 36 Sup.
Ct. Bep. 409) 828
Jacobs ▼. Southern B. Co. (241 U. S.
229, 36 Sup. a. Bep. 588) 970
Jacoby ft Co., Pennsylvania B. Co. v.
(Mem.) 476
James, (dement v. (Mem.) 1225
Jersey City, Wells F. k Co. v. (Mem.)
485, 1224
Jimmerson t. United States ex rel.
Fall City Constr. Co.
(Mem.) (239 U. S. 641, 36
Sup. Ct. Bep. 163)
Jin Fuey Moy, United States ▼. ....
John Deere Plow (^. v. Mowry (Mem.)
(239 U. S. 652, 36 Sup. Ct.
Bep. 160)
Johnson ▼. Fargo. See Johnson v.
Tatlob.
▼. Louisville Woolen Mills
(Mem.) (241 U. S. 665, 36
Sup. Ct. Bep. 549) 1228
T. Biddle (240 U. S. 467, 36
Sup. Ct Bep. 393) 752
▼. Boot Mfg. Co. (241 U. S. 160,
36 Sup. Ct. Bep. 520) 934
T. Taylor (239 U. S. 234, 36
Sup. Ct. Bep. 62) 243
16
482
1061
487
Johnson ▼. Wells F. ft Co. (239 U. &
234, 36 Sup. Ct Bep. 62) 24S
Williams t 3M
Jones, Kansas City Southem B. Co. ▼. 94S
Jones Nat. Bank ▼. Ymtes (240 U. S.
541, 36 Sop. a. Bep. 429) 788
Judge T. Powers (MeoL) (241 U. S.
686, 36 Sup. Ct Bep. 449) 1236
JudMA T. Nash (Mem.) (241 U. S.
689, 36 Sup. Ct Bep. 549) 1237
Kanawha ft M. B. Co. v. Kerse (289
U. S. 576, 36 Sup. Ct. Bep.
174)
Kansas City, St. Louis ft K. C. Land
Co. V
Stewart ▼
Kansas City ft Lb Boalevard Boad
Dist, Embree v
Kansas City, Ft. S. ft M. B. Co. ▼.
Botkin (240 U. S. 227, 36
Sup. Ct. Bep. 261)
Kansas City, M. ft 0. B. Co. t. Texas
(Mem.) (241 U. S. 650, 86
Sup. Ct Bep. 553)
Kansas City Southern B. Co. v. Guard-
ian Trust Co. (240 U. S.
166, 36 Sup. Ct. Bep. 384)
T. Jones (241 U. a 181, 36 Sup.
Ct Bep. 518)
▼. Public Service Commission
(Mem.) (239 U. S. 655, 36
Sup. Ct. Bep. 167)
Kansas City Western B. Co. v. Mc^
Adow (240 U. S. 51, 86
Sup. Ct Bep. 252)
Kathleoi Oil Co., Lancaster v
Kauflinan, Dunham v. (Mem.)
Elearsarge Land Co., von Baumbach
V. (Mem.)
Kehnast, First Nat Bank v. (Mem.)
Kelly, Chesapeake ft 0. B. Co. v
V. Griffin (241 U. S. 6, 86 Sup.
Ct Bep. 487)
Kennedy, New York ez rd., v. Becker
(241 U. S. 556, 86 Sup. Ct.
Bep. 705)
Kenney, Seaboard Air Line B. Co. ▼.
Kentucky, Craig v. (Mem.)
Deaton v. (Mem.)
Provident Sav. Idle Assur. Soc
V.
Kern, Brady v. (Mem.)
Kerse, Kanawha ft M. B. Co. ▼
Keyser v. Milton (Mem.) (241 U. 8.
661, 36 Sup. Ct Bep. 448)
KUlmer y* Stewart (Mem.) (239 U.
8. 653, 36 Sup. Ct Bep.
161)
King County, Christianscm v
Kinkead, Baeon ft Sons v. (Mem.) . .
448
1072
120
624
617
1221
679
948
488
520
1161
1222
483
1223
1117
861
1166
762
1288
1235
167
483
448
1226
487
827
1284
CASS8 RBRfSISD.
Kinnear, Washington Dredging ft
Improv. Co. ▼. (Mem.) ..
Kinnej t. Plymouth Rock Squab Co.
(Mem.) (241 U. 8. 653, 36
Sup. Ct. Rep. 723)
Kitchens t. Hamilton (Mem.) (239
U. 8. 637, 241 U. S. 638,
36 Sup. Ct. Rep. 446) 480,
Knapp, Great Northern R. Co. t. ....
Koennecke, Seaboard Air Line R. Co.
▼.
Kutz, Terminal Taxicab Co. ▼•
• • • • •
477
1223
1215
745
324
984
La Compafiia General de Tabaeos,
M(mtelibano 7 Ramos ▼. . .
Laird, Thrift ▼. (Mem.)
Lake Shore ft M. 8. R. Co., United
States ▼. (Mem.)
Lamar, Ex parte (Mem.) (241 U. 8.
643, 36 Sup. Ct. Rep. — )
▼. United States (240 U. 8. 60,
36 Sup. Ct. Rep. 255)
T. United States (241 U. 8. 103,
36 Sup. Ct. Rep. 535)
La Mere, Railway Transfer Co. ▼.
(Mem.)
Lancaster ▼. Kathleen Oil Co. (241 U.
8. 551, 36 Sup. Ct Rep.
711)
T. Thacker (Mem.) (239 U. S.
625, 36 Sup. CH;. Rep. 162)
Lane, Diener y. (Mem.)
United States ex rel. Arant ▼.
(Mem.)
▼. United States ex rel. Micka-
diet (241 U. 8. 201, 36 Sup.
Ct. Rep. 539)
Larabee Flour Mills Co., Missouri P.
R. Co. V. (Mem.)
Larkin, Hagan ▼. (Mem.)
La Roque ▼. United SUtes (239 U. 8.
62, 36 Sup. Ct. Rep. 22)
Latta ft T. Constr. Co. ▼. The Raith-
moor (241 U. 8. 166, 36
Sup. Ct. Rep. 514)
Lawson, Halifax Tonopah Min. Co. t.
(Mem.)
▼. Louisiana (Mem.) (241 U. 8.
692, 36 Sup. Ct. Rep. 722)
Layne ft B. Co., American Well Works
Leamer, O'Neill v
Lee, Coon Rapids Nat Bank ▼.
(Mem.)
Lehigh ft W. Coal Co. ▼. Hartford ft
N. Y. Transp. Co. (Mem.)
(241 U. 8. 675, 36 Sup.
Ct. Rep. 725)
Ldiigh Valley R. Co., Loomis ▼. ....
Leser, Wagner ▼
•0 I«. cd.
1099
1238
1238
1217
526
912
486
1161
473
477
1233
956
1220
1236
147
937
477
1238
987
249
489
1232
517
230
Lerindale Lead ft Zinc Min. Co. t.
Coleman (241 U. 8. 432, 36
Sup. Ct. Rep. 644)
Lewis ▼. Holmes (Mem.) (239 U. 8.
639, 36 Sup. Ct Rep. 160)
T. International Steam Pump
Co. (Mem.) (241 U. 8. 676,
36 Sup. Ct Rep. 725) ....
Pacific Live Stock Co. ▼
Lincoln t. Power (Man.) (241 U. 8.
651, 36 Sup. Ct. Rep. 721)
Lindsay t. Chicago, B. ft Q. R. Co.
(Mem.) (241 U. 8. 678, 36
Sup. Ct. Rep. 727)
Line, Pendleton t. (Mem.)
Little, Tanner ▼
Little River Drainage Dist., Houck
▼
Lloyd, Southern R. Co. t
Long ▼. Shepard (Mem.) (241 U. 8.
652, 36 Sup. Ct. Rep. 722)
Long Bell Lumber Co. v. Moses (Mem.)
(239 U. 8. 625. 36 Sup.
Ct Rep. 162)
Loomis ▼. Lehigh Valley R. Co. (240
U. S. 43, 36 Sup. Ct Rep.
228)
Loth T. St Louis (Mem.) (241 U. 8.
683, 36 Sup. Ct Rep. 285)
Louisiana, United States ex rel., ▼.
Boarman (Mem.) (239 U.
8. 641, 36 Sup. Ct Rep.
163)
Boulanger V. (Mem.)
I>uval V. (Mem.)
Lawson V. (Mem.)
Maroun ▼. (Mem.)
Louisville ft N. R. Co., Stewart t. . .
V. Stewart (241 U. 8. 261, 36
Sup. Ct. Rep. 586)
Louisville Woolen Mills, Johnson ▼.
(Mem.)
Lovewell, Hill ▼. (Mem.)
Lueders ft Co., Central Trust
Co. V
Lusk ▼. Botkin (240 U. 8. 236, 36
Sup. Ct. Rep. 263)
M.
McAdow, Kansss City Western R. Co.
V
McAlester Edwards 0>al Co. ▼. Trapp
(Mem.) (239 U. 8. 651, 36
Sup. Ct Rep. 159)
MeCaiferty, Mellon Co. ▼.
McCall, Heim ▼
McChesney, Home Bond Co. ▼.
McClelland ▼. Missouri, K. ft T. R. Co.
(Mem.) (241 U. S. 683, 36
8up. Ct. Rep. 285)
Rose ▼. (Mem.)
1080
481
1232
1084
1222
1233
1232
691
266
402
1222
473
617
1235
482
487
474
1238
476
989
989
1228
483
119
621
.........
......
2
620
486
181
206
444
1286
1229
CASES REPORTED.
HeCoadi ▼. Insurance Co. of N. A.
(Mem.) (241 U. S. 674, 36
Sup. a. Rep. 724) 1231
IfeComb ▼. Pennsylvania (Mem.) (239
U. 8. 060, 36 Sup. Ct. Rep.
169) 436
McConnell, New York C. ft H. R. R.
Co. V. (Mem.) 478
HeCoy, Chi^g Ah Sui v « 183
McFarland v. American Sugar Ref. Co.
(241 U. S. 79, 36 Sup. Ct.
Rep. 498) 899
Maciel, St. Liouis Southwestern R. Co.
V. (Mem.) 1226
Mackenzie v. Hare (239 U. S. 299, 36
Sup. Ct. Rep. 106) 297
McLaughlin, St. Louis Southwestern
R. Co. V. (Mem.) 1233
Macon County Supply Co., Tallulah
Falls R. Co. v. (Mem.) .. 1216
Madison, Southern Wisconsin R. Co. v. 739
Maldonado & Co. v. New York &, C.
Mails. S. Co. (Mem.) (241
U. S. 680, 36 Sup. Ct. Rep.
728) 1234
Male ▼. Atchison, T. & S. F. R. Co.
(240 U. S. 97, 36 Sup. Ct.
Rep. 351) 644
Manchester v. Water Comrs. (Mem.)
(3 Cases) (241 U. S. 649,
36 Sup. Ct. Rep. 552) ... 1221
Manhattan R. Co., Oundall v. (Mem.) 487
Manila Invest. Co. v. Trammell (239
U. S. 31, 36 Sup. Ct. Rep.
12) 129
Marconi Wireless Teleg. Co. v. Simon
(Mem.) (241 U. S. 676, 36
Sup. a. Rep. 726) 1232
Maroun ▼. Louisiana (Mem.) (239 U.
S. 630, 36 Sup. Ct. Rep.
166) 476
Martin ▼. Commercial Nat. Bank
(Mem.) (241 U. S. 662, 36
Sup. Ct. Rep. 449) 1227
Maryland, EUcan V. (Mem.) 478
Maryland Dredging & Contracting Co.
V. United States (241 U. S.
184, 36 Sup. Ct. Rep. 646) 946
Masland, Du Pont de Nemours Pow-
der Co. ▼. (Mem.) 484
Mason ft H. Co. ▼. Sharon (Mem.)
(241 U. S. 670, 36 Sup. Ct.
Rep. 664) 1280
Maaaaehusetts, Callaghan v. (Mem.) 1229
Maasaohusetts Bonding ft Ins. Ck>. ▼.
Realty Trust Co. (Mem.)
(241 U. S. 687, 36 Sup. Ct.
Rep. 461) 1237
Massingale, Cincinnati, N. 0. ft T. P.
R. Co. T. (Mem.) 1239
Meaford Transp. Co., Hawgood ft A.
Transit Co. ▼. (Mem.) .. 1234
Medina Valley Irrig. Co., Seekaiz ▼.
(M«n.) 1219
IB
Meers v. Childers (Mem.) (241 U. 8.
663, 36 Sup. Ct. Rep. 460) 1227
Meese, Northern P. R. Co. v 467
Mellon, St. Louis Union Trust Co. ▼.
(Mem.) 486
St. Louis Unicm Trust Co. v.
(Mem.) 1226
Mellon Co. t. McCafferty (239 U. S.
134, 36 Sup. Ct. Rep. 94) 181
Menasha Paper Co. v. Chicago ft N. W.
R. Co. (241 U. S. 56, 36
Sup. Ct. Rep. 501 ) 886
Merriam Co. v. Saalfidd (241 U. S.
22, 36 Sup. Ct. Rep. 477) 868
Merrill-Rackgaber Co. v. United Stat^
(241 U. S. 387, 36 Sup. Ct.
Rep. 662) 1058
Messina, Illinois C. R. Co. v 700
Metcalf, Hanover Star Mill. Co. v. . . 713
Michigan, Brazee v 1034
Michigan R. Commission, Detroit ft
M. R. Co. V 802
Mickadiet, United States ex rel., Lane
V. (241 U. S. 201, 36 Sup.
Ct. Rep. 599) .966
Uniler V. Strahl (239 U. S. 426, 36
Sup. a. Rep. 147 ) 364
Mills, Idaho use of, American Surety
Co. V. (241 U. S. 690, 36
Sup. Ct. Rep. 553) 1287
Milton, Keyser t. (Mem.) 1226
Mims, Supreme Lodge, K. P. v 1179
Miner v. Symington Co. (Mem.) (241
U. S. 674, 36 Sup. Ct. Rep.
725) 1231
Minneapolis ft St. L. R. Co. v. Bom-
holis (241 U. S. 211, 36
Sup. Ct. Rep. 596) 961
Minneapolis, St. P. ft S. Ste. M. R.
Co. v. Alexander (Mem.)
(239 U. S. 635, 30 Sup. Ci.
Rep. 283) 479
Mississippi River Commission, Cubbins
V 1041
Cubbins V. (Mem.) 1238
Missouri ▼. Chicago, B. ft Q. R. Co.
(241 U. S. 633, 36 Sup. Ct.
Rep. 716) 1148
Missouri ex rel. St. Louis, Missouri P.
R. Co. V. (Mem.) 488
Missouri, K. ft T. R. Co., McClelland
V. (Mem.) 1236
▼• Public Service Commission
(Mem.) (239 U. S. 666, 36
Sup. Ct. Rep. 167) 488
Missouri P. R. Co. v. Larabee Flour
Mills Co. (Mem.) (241 U.
S. 649, 36 Sup. Ct. R'ep.
652) 1220
V. Missouri ex rel. St. Louis
(Mem.) (239 U. S. 667, 36
Sup. C^. Rep. 167> 48S
CA8E8 REPORTED.
MisBouri P. R. Co. ▼. Public Service
Commission (Mem.) (239
U. 8. 656, 36 Sup. Ct. Rep.
167) 488
MlsMmri State Lb Ins. Co., Stine v.
(Mem.) 1217
Mitchell, Hitchman Coal ft Coke Co.
V. (Mem.) 1218
Monadnock Mills ▼. Fushcy (Mem.)
(241 U. S. 666, 36 Sup.
Ct. Rep. 561) 1228
Monroig, Parker v 159
Montelibano v Ramos v. La Compafiia
General de Tabacos (241 U.
S. 456, 36 Sup. Ct Rep.
617) 1099
Montgomery v. Bottlers Seal Co.
\Mem.) (239 U. S. 638, 36
Sup. Ct. Rep. 160) 481
Moody Y. Century Sav. Bank (239 U.
S. 374, 36 Sup. Ct. Rep.
Ill) 336
Moorhead, American Rotary Valve Co.
V. (Mem.) 482
Morgan, Virginia V. (Mem.) 487
Ward V. (Mem.) 485
Morley v. Fewel (Mem.) (239 U. S.
657, 36 Sup. Ct. Rep. 167) 488
Morris, Greenlees V. (Mem.) 474
Morris Canal ft Bkg. Co. v. Baird
(239 U. S. 126, 36 Sup. Ct
Rep. 28) 177
Morrison, United States v 599
I.oser, United States v. (Mem.) .,. 489
Moses, Long Bell Lumber Co. v.
(Mem.) 473
Moss T. Ramey (239 U. S. 538, 36 Sup.
Ct. Rep. 183) 425
Motion Picture Patents Co., Ex parte
(Mem.) (241 U. S. 691, 36
Sup. Ct. Rep. 654) 1238
Motlow ▼. Tennessee (Mem.) (239 U.S.
663, 36 Sup. Ct. Rep. 161) 487
Moulden v. Parlin ft 0. Implement Co.
(Mem.) (241 U. 8. 669, 36
Sup. Ct. Rep. 553) 1230
Moun Day ▼. United States (Mem.)
(239 U. S. 646, 36 Sup. Ct
Rep. 167) 484
Mounts, St. Louis ft S. F. R. Co. v.
(Mem.) 1228
Mt Vcmon-Woodberry Cotton Duck
Co. ▼. Alabama Interstate
Power Co. (240 U. S. 80,
36 Sup. Ct. Rep. 234) .... 607
Mowry, John Deere Plow Co. v.
(Mem.) 487
Mraz, Valley S. S. Co. v. (Mem.) .. 1217
Mudge ▼. Black, Sheridan ft Wilson
(Mem.) (230 U. S. 642, 36
Sup. Ct. Rep. 163) 482
Mulcare ▼. Chicago (Mem.) (241 U.
8. 660, 36 Sup. Ct. Rep.
553) 1221
Mulet, Falco ▼. (Mem.) 1210
•0 L. ed.
Hurray, Carolina Glass Co. ▼
▼. Post Pub. Co. (Mem.) (241
U. S. 675, 36 Sup. Ct. Rep.
725) 1282
Mutual L. Ins. Co. ▼. Hilton-Green
(241 U. 8. 613, 36 Sup. Ct.
Rep. 676) ' 1202
Mutual Light, Heat ft P. Co., Glen-
wood Light ft Water Co. t. 174
Myles Salt Co. V. Iberia ft St M.
Drainage Dist. (289 U. 8.
478, 36 Sup. Ct Rep. 204) 802
Nash, Judson t. (Mem.) 1237
National Bank v. Shackelford (239 U.
S. 81, 36 Sup. Ct Rep. 17 ) 158
National Bank of Commerce v. Allen
(Mem.) (230 U. 8. 642, 36
Sup. Ct. Rep. 163) 482
▼. Equitable Trust Co. (Mem.)
(239 U. 8. 648, 36 Sup. Ct
Rep. 221) 485
Russo-Chinese Bank v 1065
▼. United States (Mem.) (241
U. 8. 668, 36 Sup. Ct. Rep.
287) 1225
Nati(mal Brake ft Electric Co. ▼. Chris-
tensen (Mem.) (241 U. 8.
659, 36 Sup. Ct Rep. 447) 1225
National Carbon Co. v. Ohio Motor
Car Co. (Mem.) (241 U. 8.
673, 36 Sup. a. Rep. 724) 1231
National Fireproofing Co., Crutchley
V. (Mem.) 1228
National Metal Molding Co., Tubular
Woven Fabric Co. v.
(Mem.) 1227
National Surety Co., Brogan v.
(Mem.) 1230
▼. United States use of Hol-
linger (Mem.) (241 U. 8.
687, 36 Sup. Ct. Rep. 460) 1236
Nelson v. Wood (Mem.) (239 U. 8.
637, 241 U. S. 637, 36 Sup.
Ct Rep. 446) 480, 1215
Newell, Glass v. (Mem.) 1219
New England Teleg. Co., Essex v. . . . 301
New Hampshire Sav. Bank, Haines
Tile ft Mantel Co. v 828
Jackson -Walker CobI ft Material
Co. V 828
Vamer v. 828
New Orleans v. Penn Bridge Co.
(Mem.) (239 U. S. 639, 36
Sup. Ct. Rep. 160) 481
New Orleans-Belize Royal Mail ft C.
A. S. 8. Co. V. United SUtes
(239 U. 8. 202, 36 Sup. Ct.
Rep. 76) 227
New South Farm ft Home Ca, United
States V 800
New York ex rel. Kennedy ▼. Becker
(241 U. 8. 556, 86 Sup. Ct.
Rep. 705) WW
\%
0A8B8 BEPOBTBD.
lf«w York, Crane ▼ 218
▼. Sage (239 U. 8. 67, 86 Sup.
Ct. Rep. 25) 143
Kew York & C. Mail S. S. Ck>., Mai-
donado & Co. v. (Mem.) . . 1234
New York ft P. R. 8. S. Co., United
States V 161
Kew York C. ft H. R. R. Co. ▼. Gray
(239 U. S. 583, 36 Sup. Ct
Rep. 176) 451
T. MoConnell (Mem.) (239 U.
S. 633, 36 Sup. Ct. Rep.
220) 478
New York L. Ins. Co. ▼. Dunlevy (241
U. S. 518, 36 Sup. Ct. Rep.
613) 1140
New York, N. H. ft H. R. Co., York
ft \y. Co. V. (Mem.) 477
New York, P. ft N. R. Co., Baugham
▼ 977
▼. Peninsula Produce Exch.
(240 U. S. 34, 36 Sup.
Ct. Rep. 230) 511
New York Scaffolding Co., Whitney
T. (Mem.) 482
Nice, United SUtes t 1192
Nisbet y. Federal Title ft T. Co.
(Man.) (241 U. S. 669,
36 Sup. Ct Rep. 553) 1229
Noel, Quincy, 0. ft El. C. R. Co. t.
(Mem.) 486
Normile, United States ▼ 319
T. United States (239 U. S.
344, 36 Sup. Ct. Rep. 122)
North Carolina v. Tennessee (240 U.
S. 652, 36 Sup. Ct Rep.
604)
North Dakota, Armour ft Co. t. ...
Northern Exp. Co. ▼. Washington
(Mem.) (241 U. S. 686,
36 Sup. Ct Rep. 449) ... 1236
Northern P. R. Co., Barlow v 760
▼. Classen (36 Sup. Ct. Rep.
158) 342
▼. Coneannon, 239 U. S. 382,
36 Sup. Ct. Rep. 156).. 842
▼. Meese (289 U. S. 614, 36
Sup. Ct. Rep. 223) 467
V. Shade (86 Sup. Ct Rep.
158) 842
▼. Wall (241 U. S. 87, 36 Sup.
Ct. Rep. 493) ....: 905
Northern Trust S. D. Co., Borland
T. (Mem.) 1225
Northwestern Laundry ▼. Des Moines
(239 U. S. 486, 86 Sup. a.
Bep. 206) 396
Norton ▼. Whiteside (239 U. S. 144,
36 Sup. Ct. Bep. 97) 186
Noiaseme Hosiery Co., Straus ▼. •• 590
819
847
771
0.
Ohio ax rel. Davis ▼. Hilderbrant
(241 U. S. 565, 36 Sup. Ct
Rep. 708) 1172
Ohio Motor Car Co., National Car-
bon Ck>. T. (Mem.) 1281
CKeefe ▼. United States (240 U. S.
294, 36 Sup. Ct Rep. 318) 661
Oklahoma, Indian Territory Illumi-
nating Oil Co. V 779
Southern Surety Co. t 1187
OliTer ▼. United States (Mem.) (241
U. 8. 670, 36 Sup. Ct. Rep.
721) 1230
CNeiU y. Leamer (239 U. S. 244, 36
Sup. Ct. Rep. 54) 249
Oregon-Washington R. ft Nay. Co. v.
Pfeiffer (Mem.) (239 U. S.
658, 36 Sup. Ct Rep. 222) 489
Osbom, Andrews y. (Mem.) 475
Dodge y 557
Osborne v. Gray (241 U. S. 16, 36
Sup. Ct Rep. 486) 865
Otis Elevator Co., Fuller Co. v.
(Mem.) 1228
Otos, Great Northern R. Co. v 822
Overton v. United States (Mem.)
(239 U. S. 658, 36 Sup. Ct.
Rep. 220) 489
Ozark Oil Co. v. Berryhill (Mem.)
(239 U. S. 655, 86 Sup.
Ct Rep. 165) 487
P.
Pacific Coast Coal Co., Brown v. .... 1177
Pacific Exp. Co., Rosenberger v 880
Pacific Live Stock Co. v. Lewis (241
U. S. 440, 36 Sup. Ct. Rep.
637) 1084
Pacific Mail S. S. Co. v. Schmidt (241
U. S. 245, 36 Sup. Ct. Rep.
581) 982
Pagano, Cerri v. (Mem.) 1239
Palmer v. Gromer (Mem.) (239 U. S.
657, 36 Sup. Ct. Rep. 219) 488
Park, Farmers ft M. State Bank v.
(Mem.) 1218
Parker v. Monroig (239 U. 8. 88, 36
Sup. Ct. Bep. 42) 150
Parker V. (Mem.) 483
V. Parker (Mem.) (239 U. S.
643, 36 Sup. Ct Bep. 164) 483
Parlin ft O. Implement Co., Moulden
v. (Mem.) 1280
Peabody, Washington ez rel., v.
Seattle (Mem.) (239 U. 8.
659, 36 Sup. Ct Bep. — ) 489
Pease v. Bathbun-Jones Engineering
Ck>. (Mem.) (241 U. S. 659,
86 Sup. Ct Bep. 448) 1226
CASES REPORTED.
T. Rathbun-Jones Engineering
Co. (Mem.) (241 U. S.
665, 36 Sup. Ct. Rep. 551)
Pecos k N. T. R. Co. v. Rosenbloom
(240 U. S. 439, 36 Sup. Ct.
Rep. 390)
Peeler, United States use of, Illinois
Surety Co. v. (240 U. S.
214, 36 Sup. Ct. Rep. 321)
Pelton, Illinois C. R. Co. t. (Mem.)
Pendleton v. Line (Mem.) (241 U. S.
677, 36 Sup. Ct. Rep. 726)
Peninsula Produce Exch., New York,
X . ft rw . xv. \jO, y
Penn Bridge Co., New Orleans ▼.
(Mem.)
Pennsylvania, Fidelity ft D. Co. t. . .
McComb ▼. (Mem.)
Pennsylvania Co. v. Donat (239 U.
S. 50, 36 Sup. Ct. Rep. 4)
Pennsylvania R. Co. v. Jacoby ft Co.
(Mem.) (239 U. S. 631,
36 Sup. Ct. Rep. 166) ..
T. Setera (Mem.) (241 U. S.
691, 36 Sup. Ct. Rep. 721)
Perry, Butler v
Peterborough R. Co. v. Boston ft M.
R. Co. (Mem.) (239 U. S.
627, 36 Sup. Ct. Rep. 164)
Pfeiffer, Oregon-Washington R. ft Nav.
Co. V. (Mem.)
Philadelphia ft R. Coal ft I. Co.,
Donald v
Philadelphia ft R. R. Co., Reese v...
v. United States (240 U. S.
334, ie Sup. Ct. Rep. 354)
Whalley V. (Mem.)
Philipo, Scott V. (Mem.)
Philips, Ck)llins v. (Mem.)
Phoenix R. Co. v. Geary (239 U. 8.
277, 36 Sup. Ct. Rep. 46)
Pieper, White Dental Mfg. Co. v.
(Mem.)
White Dental Mfg. Co. v.
( Mem. )
Pinel, Pinel v.
v. Pinel (240 V. S. 594, 36 Sup.
Ct. Rep. 416)
Pitney v. Washington (240 U. S. 387,
36 Sup. Ct. Rep. 385)....
Pittsburgh Water Heater Co., Beler
Water Heater Co. v.
(Mem.)
Plymouth Rock Squab Co., Kinney t.
( Mem. )
Porter ▼. Wilson (239 U. S. 170, 36
Sup. Ct. Rep. 91)
Portland, Postal Teleg. Co. v. (Mem.)
Postal Teleg. Co. v. Portland (Mem.)
(241 U. S. 693, 36 Sup. Ct.
Rep. 726)
Post Pub. Co., Murray v. (Mem.) ..
Power, Lincoln v. (Mem. )
Powers, Judgs ▼. (Mem.)
•0 li. cd.
1228
730
609
488
1232
611
481
664
486
139
476
1238
672
474
489
1027
384
675
1237
489
1235
287
484
1237
817
817
703
1229
1223
204
1239
1239
1232
1222
1236
Prescott, Southern R. Co. ▼
Press Pub. Co. v. Gillette (Mem.)
(241 U. 6. 661, 86 Sup.
Ct. Rep. 448)
ProfRtt, Chesapeake ft O. R. Co. t. . .
Provident Sav. Life Assur. Soa t.
Kentucky (239 U. S. 108,
36 Sup. Ct. Rep. 34)
Provo Bench Canal ft Irrig. Co. t.
Tanner (239 U. S. 323, 86
Sup. Ct. Rep. 101)
Prowski, Erie R. Co. v. (Mem.) ....
Pryor, Bishop v. (Mem.)
Public Service Commission, Atchison,
T. ft S. F. R. Co. V. (Mem.)
Chicago ft A. R. Co. v. (Mem.)
Chicago, B. ft Q. R. Ca ▼.
(Mem.)
Chicago, M. ft St. P. R. Co. t.
(Mem.)
Chicago, R. I. ft P. R. Co. v.
(Mem.)
Kansas City Southern R. Co.
▼. (Mem.)
Missouri, K. ft T. R. Co. t.
( Mem. )
Missouri P. R. Co. v. (Mem.)
St. Ix)ui8 ft S. F. R. Co. V.
(Mem.)
St. Louis, I. M. ft S. R. Co.
V. (Mem.)
St. Louis, K. C. ft C. R. Co.
V. (Mem.)
St. Louis Southwestern R. Co.
V. ( Mem. )
Purcell V. Quaker Realty Co. (Mem.)
(239 U. S. 635, 36 Sup. Ct.
Rep. 283)
Q.
Quaker Realty Co., Purcell ▼. (Mem.) 479
Quincy, 0. ft K. C. R. Co. v. Noel
(Mem.) (239 U. S. 652,
36 Sup. Ct. Rep. 159).. 486
Quifiones, Cardona v 538
Quiver, United States v 1196
R
Raich, Truax ▼ 181
Railroad Commission, Seaboard Air
Line R. Co. ▼
Railroad Co., Atlantic Coast line, v.
Bumette (239 U. S. 199,
36 Sup. Ct. Rep. 75)
Aitlantic Coast Line, ▼. Gleni»
(239'U. S. 388, 36 Sup. Ct.
Rep. 154) 844
Baltimore ft O., Fonts ▼.
(Mem.) (239 U. S. 63», 86^
Sup. Ct Rep. 220) 478r
1229
1102
167
807
1289
1288
488
488
488
489
488
489
488
488
488
488
488
488
479»
999
CASES REPORTED.
Railroad Co., Baltimore & 0., v. Hos-
tetter (240 U. S. 620, 86
Sup. Ct. Rep. 475) 829
Baltimore k 0,, Reed v. (Mem.)
(289 U. S. 640, 36 Sup. Ct
Rep. 160) 481
Boeton k M., Peterborough R.
Co. V. (Mem.) (239 U. S.
* 627, 36 Sup. Ct Rep. 164) 474
Central, ▼. United States
(Mem.) (241 U. S. 668,
36 Sup. Ct Rep. 446) 1226
Chicago k A., t. Public Service
Commission (Mem.) (239
U. S. 656, 36 Sup. Ct. Rep.
167) 488
Chicago k A., v. Wagner (239
U. S. 452, 36 Sup. Ct. Rep.
136) 379
Chicago, B. k Q., v. Harring-
ton (241 U. S. 177, 36 Sup.
Ct. Rep. 517) 941
Chicago, B. k Q., Lindsay ▼.
(Mem.) (241 U. S. 678, 36
Sup. Ct Rep. 727) 1233
Chicago, B. k Q., Missouri ▼.
(241 U. S. 533, 36 Sup. Ct.
Rep. 716) 1148
Chicago, B. k Q., ▼. Public Serv-
ice Commission (Mem.)
(239 U. S. 655, 36 Sup. Ct
Rep. 167) 488
I>elaware, L. k W., Shanks v.
(239 U. S. 556, 36 Sup. Ct.
Rep. 188) 436
Delaware, L. k W., v. Turkonis
(Mem.) (239 U. S. 652, 36
Sup. Ct. Rep. 160) 486
Erie, v. Prowski (Mem.) (241
U. S. 686, 36 Sup. Ct Rep.
447) 1236
Illinois C, v. Cousins (Mem.)
(241 U. S. 641, 36 Sup. Ct.
Rep. 446) 1216
Illinois C, v. Messina (240 U.
S. 395, 36 Sup. Ct Rep.
368) 709
Illinois C, V. Pelton (Mem.)
(239 U. S. 655, 36 Sup. Ct
Rep. 166) 488
Illinois C, V. Skaggs (240 U.
S. 66, 36 Sup. Ct. Rep.
249) 528
Illinois C, V. Slaughter (Mem.)
(239 U. S. 651, 36 Sup. Ct
Rep. 169) 486
Lehigh Valley, Loomis v. (240
U. S. 43, 36 Sup. Ct. Rep.
. 228) 517
Louisville k N., v. Stewart (241
U. S. 261, 36 Sup. Ct. Rep.
586) 989
33
Railroad Co., LouisvUle k N., Stewart
V. (241 U. S. 261, 36 Sup.
Ct Rep. 586)
Minneapolis k St L., v. Bom-
bolU (241 U. S. 211, 36
Sup. Ct. Rep. 595)
Minneapolis, St. P. k S. Ste
M., V. Alexander (Mem.)
(239 U. S. 635, 36 Sup.
Ct. Rep. 283)
New York C. & H. R. R., v.
Gray (239 U. S. 583, 36
Sup. Ct. Rep. 176)
New York C. & H. R. R., v.
McConnell (Man.) (239 U.
S. 633, 36 Sup. Ct. Rep.
220)
New York, N. H. k H., York k
W. Co. V. (Mem.) (239 U.
S. 631, 36 Sup. Ct Rep.
166)
New York, P. k N., Baugham
V. (241 U. S. 237, 36 Sup.
Ct. Rep. 592)
New York, P. k N., v. Penin-
sula Produce Exch. (240 U.
S. 34, 36 Sup. Ct. Rep.
230)
Oregon-Washington, k Nav., v.
Pfeiffer (Mem.) (230 U. S.
658, 36 Sup. Ct. Rep. 222)
Pennsylvania v. Jacoby k Co.
(Mem.) (239 U. S. 631,
36 Sup. Ct. Rep. 166)
Pennsylvania, v. Setera (Mem.)
(241 U. S. 69i; 36 Sup. a.
Rep. 721)
Peterborough, v. Boston k M.
R. Co. (Mem.) (239 U. S.
627, 36 Sup. Ct. Rep. 164)
Quincy, 0. k K. C, v. Noel
(Mem.) (239 U. S. 652, 36
Sup. Ct Rep. 159)
St. Louis k S. F., v. Brovm
(241 U. S. 223, 36 Sup. Ct.
Rep. 602)
St Louis k S. F., v. Monts
(Mem.) (241 U. S. 654,
36 Sup. Ct. Rep. 726)
St Louis k S. F., v. Public Serv-
ive Commission (Mem.)
(239 U. S. 655, 36 Sup. a.
Rep. 167)
St. Louis k S. F., v. Shepherd
(240 U. S. 240, 36 Sup.
Ct Rep. 274)
St Louis, K. C. k C, v. Pub-
lic Service Commission
(Mem.) (239 U. S. 655, 36
Sup. Ct. Rep. 167 )
Spokane k I. E., Bradley v.
(Mem.) (241 U. S. 630, 36
Sup. Ct Rep. 285)
989
961
479
451
478
477
977
511
489
476
1238
474
486
966
1223
488
622
488
1215
CASES REPORTED.
Bailroad Co., Spokane k I. E., ▼.
Campbell (241 U. S. 407,
36 Sup. Ct. Rep. 683) 1125
Spokane & I. E., v. United
States (241 U. S. 344, 36
Sup. Ct. Rep. 668 ) 1037
Union P., Brushaber v. (240 U.
S. 1, 36 Sup. Ct. Rep. 236) 403
Union P., Frank ▼. (Mem.)
(241 U. S. 604, 36 Srp. Ct.
Rep. 728) 1230
Union P., v. Zitnik (Mem.)
(230 U. S. 650, 36 Sup. Ct.
Rep. 150) 486
Vandalia, v. Stilwell (Mem.)
(230 U. S. 637, 241 U. S.
638, 30 Sup. Ct. Rep. 445) 480
1215
Vandalia, v. United States
(Mem.) (230 U. S. 642, 36
Sup. a. Rep. 163) 482
Railway Co., Atchison, T. k S. F.,
V. Harold (241 U, S. 371,
36 Sup. Ct. Rep. 665) 1050
Atchison, T. k S. F., Male v.
(240 U. S. 07, 36 Sup. Ct.
Rep. 351) 644
Atchison, T. k S. F., v. Pub-
lic Service Conimiaaion
(Mem.) (230 U. S. 655, 36
Sup. Ct. Rep. 167 ) 488
Atchison, T. k S. F., v. Swear-
ingen (230 U. S. 330, 36
Sup. a. Rep. 121) 317
Atchison, T. k S. F., v. United
SUtes (Mem.) (230 U. S.
645, 36 Sup. Ct. Rep. 166) 483
Carolina, C. k 0., Shewalter v.
(Mem.) (230 U. S. 630, 36
Sup. Ct. Rep. 166 ) 476
Chesapeake k #., v. Camahan
(241 U. S. 241, 36 Sup.
Ct. Rep. 504) 070
Chesapeake k O., v. De Atley
(241 U. S. 310, 36 Sup.
Ct. Hep. 564) 1016
Oiesapeake & 0., ▼. Gainey,
(241 U. S. 404, 36 Sup.*
a. Rep. 033) 1124
Chesapeake k 0., v. Kelly (241
U. S. 485, 36 Sup. Ct. Rep.
630) 1117
Chesapeake k 0., v. Proffitt
(241 U. S. 462, 36 Sup. Ct.
Rep. 620) 1102
Chicago k N. W., v. Bower
(241 U. S. 470, 36 Sup. Ct.
Rep. 624) 1107
Chicago k N. W., Menasha
Paper Co. v. (241 U. S.
55, 30 Sup. Ct. Rep. 501) 885
Chicago City, Venner v. ( Mem. )
(239 U. S. 657, 36 Sup. Ct.
Rep. 220) 488
«0 Ii. ed.
Railway Co., Chicago, L. S. & S. B.,
Fellers v. (Mem.) (241 U.
S. 672, 36 Sup. Ct. Rep.
723)
Chicago, M. k St. P., v. Pub-
lic Service Conunission
(Mem.) (230 U. S. 655, 36
Sup. Ct. Rep. 167)
Chicago, R. I. ft P., v. Bond
(240 U. S. 440, 36 Sup.
Ct. Rep. 403)
Chicago, R. I. & P., v. Devine
(230 U. S. 52, 36 Sup. Ct.
Rep. 27)
CWcago, R. I. k P., V. Pub-
lic Service Commission
(Mem.) (230 U. S. 655, 36
Sup. Ct. Rep. 167 )
Chicago, R. I. k P., v. White-
aker (230 U. S. 421, 86
Sup. Ct. Rep. 152)
Chicago, R. I. k P., v. Wright
(230 U. S. 548, 36 Sup. Ct.
Rep. 185)
Cincinnati, N. O. k T. P., Day-
ton Coal k I. Co. V. (230
U. S. 446, 36 Sup. Ct. Rep.
137)
Cincinnati, N. 0. k T. P., v.
Massingale ( Mem. ) ( 241
U. S. 603, 36 Sup. Ct. Rep.
724)
Cincinnati, N. O. k T. P., v.
Rankin (241 U. S. 310, 36
Sup. Ct. Rep. 555)
Cleveland, C. C. k St. L., v.
Dettlebach (230 U. S. 588,
36 Sup. Ct. Rep. 177)
Detroit k M., v. Michigan R.
Commission (240 U. S. 564,
36 Sup. Ct. Rep. 424)
Georgia, F. k A., ▼. BHsh Mill.
Co. (241 U. S. 100, 36
Sup. Ct. Rep. 541)
Georgia Southern k F., Town-
send V. (Mem.) (230 U. S.
643, 36 Sup. Ct. Rep. 164)
Grand Trunk, v. United States
(Mem.) (241 U. S. 681,
36 Sup. Ct. Rep. 728) ...
Great Northern, v. Knapp (240
U. S. 464, 36 Sup. Ct. Rep.
300)
Great Northern, ▼. Otos (230
U. S. 340, 36 Sup. Ct. Rep.
124)
Great Northern, ▼. Wiles (240
U. S. 444, 36 Sup. Ct. Rep.
406)
Kanawha k M., ▼. Kerse (230
U. S. 576, 36 Sup. Ct. Rep.
174)
1231
488
735
140
488
360
431
375
1230
1022
453
802
048
483
1234
745
322
732
448
CASES REPORTED.
Bailway Co.» Kansas dtj, Ft S. ft M.,
T. Botkin (240 U. 8. 227,
36 Sup. Ct. Rep. 261) 617
Kansas City, M. & 0., ▼. Texas
(Mem.) (241 U. S.'660, 86
Sup. Ct. Rep. 653) 1221
Kansas City Southern, ▼. Guard-
ian Trust Co. (240 U. S.
166, 36 Sup. Ct. Rep. 334) 579
Kansas City Southern, v. Jones,
(241 U. S. 181, 36 Sup. Ct.
Rep. 513) 043
Kansss City Southern, ▼. Pub-
lic Senrice Commission ^
(Mem.) (230 U. S. 655, 36
Sup. Ct. Rep. 167) . . .T. . 488
Kansss City Western, v. Mc-
Adow (240 U. S. 61, 36
Sup. Ct. Rep. 252) 620
Lake Shore ft M. S., United
States T. (Mem.) (241 U.
S. 601, 36 Sup. Ct. Rep.
721) 1238
Manhattan, Qundall ▼. (Mem.)
(230 U. S. 654, 36 Sup. Ct.
Rep. 162) 487
Missouri, K. ft T., McClelland
▼. (Mem.) (241 U. S. 683,
36 Sup. Ct. Rep. 285) ... 1235
Missouri, K. ft T., v. Public Serv-
ice Commission ) ( Mem. )
(239 U. S. 655, 36 Sup. Ct.
Rep. 16/) 488
Missouri P., v. Larabee Flour
Mills Co. (Mem.) (241 U.
S. 640, 36 Sup. Ct Rep.
552) 1220
Missouri P., ▼. Missouri ez rel.
St. Louis (Mem.) (230 U.
S. 667, 36 Sup. Ct. Rep.
167) 488
Missouri P., t. Public Service
Commission (Mem.) (230
U. S. 655, 36 Sup. Ct. Rep.
167) 488
Northern P., Barlow v. (240 U.
S. 484, 36 Sup. Ct. Rep.
456) 760
Northern P., v. Classen (36
Sup. Ct. Rep. 158) 342
Northern P., ▼. Concannon (230
U. S. 382, 36 Sup. Ct. Rep.
166) 342
Korthem P., ▼. Meese (239 U.
S. 614, 36 Sup. Ct. Rep.
223) 467
Northern P., ▼. Shade (36 Sup.
Ct Rep. 158) 342
Northern P., ▼. Wall (241 U.
S. 87, 36 Sup. Ct Rep.
403) 005
Pecos ft N. T., ▼. Rosenbloom
(240 U. S. 430, 36 Sup. Ct
Rep. 800) 780
Railway Co., Philadelphia ft R., Reese
▼. (280 U.'S. 463, 36 Sup.
Ct Rep. 184) 384
Philadelphia ft R., ▼. United
States (240 U. S. 384, 36
Sup. Ct Rep. 354) 675
Philadelphia ft R., Whalley ▼.
(Mem.) (241 U. S. 680,
36 Sup. Ct. Rep. 540) 1237
Phoenix, v. Qeaxj (230 U. S.
277, 36 Sup. Ct Rep. 45) . . 287
Rio Grande Western, ▼. String-
ham (230 U. S. 44, 36 Sup.
Ct Rep. 5) 136
St. Louis ft Suburban, ▼. St.
Louis (Mem.) (241 U. S.
648, 36 Sup. Ct Rep. 550) 1220
St. Louis, I. M. ft S., V. Arkan-
sas (240 U. S. 518, 36 Sup.
Ct. Rep. 443) 776
St Louis, L M. ft S., ▼. Pub-
lic Service Commission
(Mem.) (230 U. S. 655, 36
Sup. Ct. Rep. 167 ) 488
St. Louis, I. M. ft S., United
States V. (Mem.) (241 U.
S. 603, 36 Sup. Ct. Rep.
724) • 1230
St Louis Southwestern, ▼.
Maciel (Mem.) (241 U. S.
660, 36 Sup. Ct. Rep. 448) 1226
St. Louis Southwestern, v. Mc-
Laughlin (Mem.) (241 U.
S. 670, 36 Sup. Ct. Rep.
727) 1233
St Louis Southwestern, v. Pub-
lior Service Commission
(Mem.) (230 U. S. 655, 36
Sup. Ct. Rep. 167) 488
San Antonio ft A. P.. v. Streets
Western eStable Car Co.
(Mem.) (230 U. S. 650, 36
Sup. Ct Rep. 284 ) 486
San Antonio ft A. P., ▼. Wagner
(241 U. S. 476, 36 Sup. Ct.
Rep. 626) 1110
Seaboard Air Line, v. Horton
(230 U. S. 505, 36 Sup. Ct.
Rep. 180) 458
Seaboard Air Line, v. Kenney
(240 U. S. 480, 36 Sup. Ct.
Rep. 458) 762
Seaboard Air Line, ▼. Koen-
necke (230 U. S. 352, 36
Sup. Ct. Rep. 126) 324
Seaboard Air Line, v. Railroad
Commission (240 U. S. 824,
86 ISup. Ct. Rep. 260) 660
Seaboard Air Line, ▼. Renn
(241 U. S. 201, 36 Sup. Ct.
Rep. 567) 1006
Southern, v. Bramlett (Mem.)
(230 U. S. 651, 86 Sup. Ct.
Rep. 160) 486
CASES REPORTED.
BaUwaT Go., Southern, t. CuiipMl
(239 U. S. 99, M Sup. Ct
Rep. 88) 166
Southern, v. Gray (2«L U. S.
333, 3« Sup. Ct. Rep. 658) 1080
Southern, Jacobs ▼. (241 U. S.
229, 36 Sup. Ct. Rep. 688) 970
Southern, ▼. Uoyd (239 U. S.
406, 36 Sup. Ct. Rep. 210) 402
Southern, v. Prescott (240 U. S.
632, 86 Sup. Ct. Rep. 460) 886
Southern, ▼. Thurston (Mem.)
(241 U. S. 642, 86 Sup. Ct.
Rep. 446) 1217
Southern Wisconsin, ▼. Madi-
son (240 U. S. 457, 36 Sup.
Ct. Rep. 400) 739
Tkllulah Falls, v. Macon Coun-
ty Supply Co. (Mem.)
(241 U. S. 640, 36 Sup. Ct.
Rep. 446) 1216
Texas k P., Bankers Trust Co.
y. (241 U. 8. 295, 86 Sup.
Ct. Rep. 569) 1010
Texas & P., ▼. Bigger (239
U. S. 330, 36 Sup. Ct Rep.
127) 310
Texas ft P., v. Rigsby (241 U.
S. 33, 36 Sup. Ct Rep.
482) 874
United, v. St. Louis (Mem.)
(4 Cases) (241 U. S. 648,
36 Sup. Ct Rep. 550) .... 1220
United, ▼. St. Louis (Mem.)
( 241 U. S. 647, 36 Sup. Ct.
Rep. 550) 1220
United R. ft Electric, Baltimore
y. (Mem.) (241 U. & 671,
36 Sup. Ct Rep. 722) 1230
Virginia R. ft Power, y. Davis
(Mem.) (241 U. S. 672,
36 Sup. Ct Rep. 723) .. 1231
West End Street, Curtis y.
(Mem.) (241 U. S. 685,
36 Sup. Ct Rep. 286) ... 1235
West End Street, Young y.
(Mem.) (241 U. S. 684, 86
Sup. Ct. Rep. 286) 1235
Railway Transfer Co. y. La Mere
(Mem.) (239 U. S. 651,
36 Sup. Ct. Rep. 159) 486
Raithmoor, The. See Latta ft T.
CoNSTB. Co. V. Ths Raith-
ICOOB.
The, Latta ft T. Constr. Co. y. 937
Bamej, Moss y 425
Rankin, Cincinnati, N. 0. ft T. P.
R. Co. y 1022
Bast T. Van Deman ft L. Co. (240
U. S. 342, 86 Sup. Ct Rep.
370) 679
Hathbon-Jones Engineering Co., Pease
y. (Mem.) 1226
Pease y. (Mem.) 1228
•0 Ii. ed.
Realty Trust Co., Massaehusette Bond-
ing ft Ins. Co. y. (Mem.)
Reed y. Baltimore ft 0. R. Co. (Mem.)
(289 U. S. 640, 36 Sup. Ct
Bep. 160)
Reese t. Philadelphia ft R. R. Co.
(239 U. S. 463, 36 Sup. Ct
Rep. 134)
Reid y. Fargo (241 U. S. 544, 36
Sup. Ct. Rep. 712)
Renn, Seaboard Air Line R. Co. y...
Reyes y Mi j ares Congregaci6n de la
Mision de San Vincente de
Paul y. (Mem.)
Richards, South Dakota ex rel., y.
Whisman (Mem.) (241 U.
S. 643, 36 Sup. Ct Rep.
449)
Richardson y. Fajardo Sugar Co. (241
U. S. 44, 36 Sup. Ct Rep.
476)
Riddle, Johnson y
Ridge Aye. Bank, Farmers' ft M. Nat.
Bank v
Riefler, United SUtes Fidelity ft G. Co.
y
Rigsby, Texas ft P. R. Co. y
Rio Grande Western R. Co. y. String-
ham (239 U. S. 44, 36 Sup.
Ct. Rep. 5)
Roberta y. Roberts (Mem.) (239 U.
S. 639, 36 Sup. Ct. Rep.
190)
Roberts y. (Mem.)
Robinson, Ex parte (Mem.) (241 U.
S. 652, 36 Sup. Ct Rep.
722)
Ex parte (Mem.) (241 U. S.
656, 36 Sup. Ct. Rep. — )
Rock Spring Distilling Co. y. Gaines
ft Co. (Mem.) (239 U. S.
647, 36 Sup. Ct. Rep. 221)
Rogers y. Hennepin County (239 U. S.
621, 36 Sup. Ct. Rep. 217)
y. Hennepin County (240 U. S.
184, 36 Sup. Ct. Rep. 265)
Root Mfg. Co., Johnson y
Rose y. McClelland (Mem.) (241 U.
S. 668, 36 Sup. Ct Rep.
552)
T. United SUtes (Mem.) (239
U. S. 647, 36 Sup. Ct Rep.
219)
Rosenberger y. Pacific Exp. Co. (241
U. S. 48, 36 Sup. Ct. Rep.
510)
Rosenbloom, Pecos ft N. T. R. Co. y.
Rosenthal, Bronx Nat Bank y.
(Mem.)
Ross, United States y
Rue y. United States (Mem.) (241
U. & 663, 36 Sup. Ct. Rep.
450)
Rule, Sioux County t. (Mem.) ....
1287
481
384
1156
1006
1235
1218
879
752
767
121
874
136
481
481
1222
1224
484
469
594
984
1229
484
880
780
1280
422
1227
1216
1%
CASES REPORTED.
Rusao-Chinese Bank ▼. National Bank
of CcMnmerce (241 U. S.
403, 36 Sup. Ct. Rep. 652) 1066
Ryle T. United States (Mem.) (230
U. S. 658, 36 Sup. Ct. Rep.
221) 489
S.
868
1210
143
1235
488
1220
1220
1215
1220
Saalficld, Merriam Co. v
Sage, Ex parte (Mem.) (241 U. S.
647, 36 Sup. Ct. Rep. 4.)2)
New York v
St. Louis, Loth ▼. (Mem.)
Missouri ez rel., Missouri P. R.
Co. ▼. (Mem.)
St. Louis ft Suburban R. Co. v.
(Mem.)
St. Louis Transit Co. ▼. (Mem.)
Thompson y. (Mem.) ....480,
United R. Co. ▼. (Mem.)
St. Louis ft K. C. Land Co. v. Kansas
aty (241 U. S. 419, 36
Sup. Ct. Rep. 647)
St. Louis ft S. F. R. Co. v. Brown
(241 U. S. 223, 36 Sup. Ct.
Rep. 602)
T. Mounts (Mem.) (241 U. S.
654, 36 Sup. (X Rep. 725)
▼. Public Service Commission
(Mem.) (239 U. S. 65&, 36
Sup. Ct. Rep. 167 )
T. Shepherd (240 U. S. 240, 36
Sup. Ct. Rep. 274)
St. Louis ft Suburban R. Co. v. St.
Louis (Mem.) (241 U. S.
648, 36 Sup. Ct. Rep. 550)
St. Louis, I. M. ft S. R. Co. v. Arkan-
sas (240 U. S. 518, 36 Sup.
Ct. Rep. 443)
T. Public Service Commission
(Mem.) (239 U. S. 655, 36
Sup. Ct. Rep. 167 )
United States v. (Mem.) ....
St. Louis, K. C. ft C. R. Co. v. Pub-
lic Service Commission
(Mem.) (239 U. S. 655, 36
Sup. Ct. Rep. 167) 488
St. Louis Southwestern R. Co. ▼. Ma-
ciel (Mem.) (241 U. S. 660,
36 Sup. Ct. Rep. 448) .... 1226
T. McLaughlin (Mem.) (241 U.
S. 679, 36 Sup. Ct. Rep.
727) 1233
T. Public Service Commission
(Mem.) (230 U. S. 655, 36
Sup. Ct. Rep. 167) 488
St. Louis Transit Co. v. St. Louis
(Mem.) (241 U. S. 648, 36
Sup. Ct. Rep. 550) 1220
St. Louis Union Trust Co. v. Mellon
(Mem.) (241 U. S. 657, 36
Sup. Ct. Rep. 286) 1225
1072
066
1223
488
622
1220
776
488
1239
St. Louis Union Trust Co. v. Mellon
(Mem.) (239 U. S. 648, 36
Sup. Ct Rep. 221 ) 485
St. Paul, Barber Asphalt Paving Co. v.
(Mem.) 488
San Antonio ft A. P. R. Co. v. Streets
Western Stable Car Co.
(Mem.) (239 U. S. 650, 36
Sup. Ct. Rep. 284) 486
▼. Wagner (241 U. S. 476, 36
Sup. Ct. Rep. 626) 1110
Sangamon Loan ft T. Co. v. United
Shoe Machinery Co. (Mem.)
(239 U. S. 649, 36 Sup. Ct.
Rep. 284)
Sargent Land Co., von Baumbach v.
(Mem.)
Schmerts Wire Glass Co., Western
Glass Co. ▼. (Mem.)
Schmidt, Pacific Mail S. S. Co. v
Schneider Granite Co., Gast Realty ft
xnvesv. v/'O. v. ...........
Gast Realty ft Invest. Co. v.
(Mem.)
Scott ▼. Philipo (Mem.) (239 U. S.
659, 36 Sup. Ct. Rep. 283)
Seaboard Air Line R. Co. v. Horton
(239 U. S. 595, 36 Sup.
Ct. Rep. 180)
T. Kenney (240 U. S. 489, 36
Sup. C^. Rep. 458)
T. Kocnnccke (2.39 U. S. 352, 36
Sup. Ct. Rep. 126)
T. Railroad Commission (240 U.
S. 324. 36 Sup. Ct. Rep.
260)
T. Renn (241 U. S. 290, 36 Sup.
Ct. Rep. 567)
Sears, Ex parte (Mem.) (241 U. S.
656, 36 Sup. Ct. Rep. 726)
Seattle, Washington ex rel. Peabody v.
( Mem. )
Sebastian, Hadacheck v
Seekatz v. Medina Valley Irrig. Co.
(Mem.) (241 U. S. 646,
36 Sup. Ct. Rep. 461)
Setera, Pennsylvania R. Co. v. ( Mem. )
Seven Cases v. United States (230 U.
S. 510, 36 Sup. Ct. Rep.
190)
Shackelford, National Bank v
Shade, Northern P. R. Co. v
Shanks v. Delaware, L. k W. R. Co.
(239 U. S. 556, 36 Sup. Ot.
Rep. 188)
Shanley Co., Herbert v. (Mem.)
Sharon, Mason ft H. C/O. v. (Mem.)
Shattuck V. Title Guaranty ft Surety
Co. (Mem.) (239 U. S. 637,
241 U. S. 638, 36 Sup. Ct.
Rep. 446) 480, 1215
Shaw, Fleitmann v 505
Shepard, Long v. (Mem.) 1222
Shepherd, St. Louis ft S. F. R. Co. t. 622
• • • •
485
483
485
082
523
1239
489
458
762
324
669
1006
1224
489
348
1219
1238
411
158
342
436
1228
1230
CASES REPORTED.
Shewalter ▼. Carolina, C. & 0. R. Co.
(Mem.) (239 U. S. 630, 36
Sup. Ct. Rep. 166) 476
Shiawassee County, Eaton v. (Mem.) 484
Sibray, Yee Kong v. (Mem.) 1225
Simon, Marconi Wirel^s Teleg. Co.
V. (Mem.) 1232
Simpson v. United States (Mem.) (241
U. S. 668, 36 Sup. Ct. Rep.
552) 1229
Sinclair, El Dia Ins. Co. ▼. (Hem.) 1226
Sioux County v. Rule (Mem.) (241 U.
S. ^40, 36 Sup. Ct. Rep.
285) 1216
Six Cases v. United SUtes (239 U. S.
510, 36 Sup. Ct Rep. 190) 411
Skaggs, Illinois C. R. Co. v. . . .' 528
Slaughter, Illinois C. R. Co. v. (Mem.) 486
Smith, Broussard v. (Mem.) 1215
Smith Co. V. Calumet Transit Co.
(Mem.) (241 U. S. 681, 36
Sup. Ct. Rep. 728) 1284
South Atlantic S. S. Co., Wilson ft Co.
V. (Mem.) 1233
South Carolina, Carolina Glass Co. v. 658
South Dakota v. Cassill (Mem.) (241
U. S. 686, 36 Sup. Ct. Rep.
449) 1236
ex rel. Richards v. Whisman
(Mem.) (240 U. S. 643, 36
Sup. Ct. Rep. 449) 1218
Southern Exp. Co. v. Byers (240 U.
S. 012, 36 Sup. Ct. Rep.
410) 825
Southern Oregon Co. v. Gage (Mem.)
(241 U. S. 685, 36 Sup. Ct.
Rep. 447) 1236
Southern R. Co. v. Bramlett (Mem.)
(239 U. S. 651, 36 Sup.
Ct. Rep. 150) 486
T. Campbell (239 U. S. 99, 36
Sup. C^. Rep. 33) 165
T. Gray (241 U. S. 333, 36 Sup.
Ct. Rep. 558) 1030
Jacobs V 970
T. Lloyd (239 U. S. 496, 36
Sup. Ct. Rep. 210) 402
T. Prescott (240 U. S. 632, 36
Sup. Ct. Rep. 469) 836
T. Thurston (Mem.) (241 U.
S. 642, 36 Sup. Ct. Rep.
446) 1217
Southern Surety Co. v. Oklahoma (241
U. S. 582, 36 Sup. Ct. Rep.
692) 1187
Southern Wisconsin R. Co. t. Madison
(240 U. S. 457, 86 Sup.
Ct. Rep. 400) 739
Spokane & I. E. R. Co., Bradley v.
(Mem.) 1215
▼. Campbell (241 U. S. 497, 36
Sup. Ct. Rep. 683) 1125
T. United States (241 U. S. 344,
36 Sup. Ct. Rep. 668) ... 1037
•0 li. ed.
Stanard, Dayton ▼ 1190
Standard Fashion Co. ▼. Grant
(Mem.) (239 U. S. 654, 36
Sup. Ct. Rep. 164) 487
Stanton ▼. Baltic Min. Co. (240 U. S.
103, 36 Sup. Ct. Rep. 278) 546
State Bd. of Equalization, Bi-Metallio
Invest. Co. v 872
Stead ▼. Chirtiss (Mem.) (239 U. S.
634, 36 Sup. Ct. Rep. 221) 478
Steams Coal & Lumber Co. v. Van
Winkle (Mem.) (241 U. S.
670, 36 Sup. Ct. Rep. 554) 1230
Steele, Filler V. (Mem.) 1220
Steiner v. Faulk ft Co. (Mem.) (230
U. S. 638, 36 Sup. Ct. Rep.
160) 481
Steinfdd ▼. Zeckendorf (230 U. S. 26,
36 Sup. Ct. Rep. 14) 125
Stewart t. Kansas City (239 U. S. 14,
36 Sup. Ct. Rep. 15 120
Killmer V. (Mem.) 487
T. Louisville ft N. R. Co. (241 U.
S. 261, 36 Sup. Ct. Rep.
586) 989
Louisville ft N. R. Co. ▼ 989
Stilwell, Vandalia R. Co. v. (Mem.)
480, 1216
Stine T. Missouri State L. Ins. Co.
(Mem) (241 U. S. 642, 36
Sup. Ct. Rep. 447 ) 1217
Stokes ▼. Williams (Mem.) (241 U. S.
681, 36 Sup. Ct. Rep. 728) 1234
Stout ▼. United States (Mem.) (241
U. S. 664, 36 Sup. Ct. Rep.
549) 1227
Stowe V. Harvey (241 U. S. 199, 36
Sup. Ct. Rep. 541 ) 053
▼. Taylor (Mem.) (241 U. S.
658, 36 Sup. Ct. Rep. 286) 1225
▼. Taylor (Mem.) (241 U. S.
687, 36 Sup. Ct. Rep. 450) 1236
Strahl, Miller v 364
Strait Mfg. Co., Crescent Mill. Co. v.
(Mem.) 1231
Strat, Blumenthal v. (Mem.) 1227
Stratton, Stratton v 142
V. Stratton (239 U. S. 55, 36
Sup. Ct. Rep. 26) 142
Straus V. Notatseme Hosiery Co. (240
U. S. 179, 36 Sup. Ct. Rep.
288) 590
T, Victor Talking Mach. Co.
(Mem.) (241 U. S. 662, 36
Sup. Ct. Rep. 449) 1227
Streets Western Stable Car Co., San
Antonio ft A. P. R. Co. v.
(Mem.) 485
Stringkam, Rio Grande Western R. Co.
V 186
Stromberg-Carlson Teleph. Mfg. Co.,
Busch V. (Mem.) 483
Strosnider v. Allen (Mem.) (241 U. 8.
640, 36 Sup. Ct. Rep. 285) 1210
%1
CASES REPORTED.
SaUivan t. United States (Mem.) (241
U. S. 666, 36 Sup. Ct Rep.
661) 1228
Supreme Lodge, K. P. v. Mime (241 U.
S. 674, 36 Sup. Ct. Rep.
702) 1179
Sutton Land Co., von Baumbach v.
(Mem.) 483
Swearingen, AtchiBon, T. & S. F. R. Co.
T 317
Swift & Co. ▼. Catani (Mem.) (241 U.
S. 690, 36 Sup. Ct. Rep.
664) 1288
Symington Co., Miner v. (Mem.) .... 1231
T.
Tallulah Falls R. Co. t. Macon County
Supply Co. (Mem.) (241 U.
S. 640, 36 Sup. Ct Rep.
446) 1216
Tanner ▼. Little (240 U. S. 369, 36
Sup. Ct. Rep. 379) 691
Provo Bench Canal k Irrig. Co.
V 807
Taylor, Johnson ▼ 243
Stowe V. (Mem.) 1225
Stowe V. (Mem.) 1236
Telescope Cot Bed Co., Gold Medal
Camp Furniture Mfg. Co.
V. (Mem.) 1228
Tennessee, Motlow V. (Mem.) 487
North Carolina v 847
Tennessee Copper Co., Georgia v 846
Terminal Tazicab Co. v. Kutz (241 U.
S. 252, 36 Sup. Ct. Rep.
683) 984
Texas, Kansas City, M. ft O. R. Co. t.
(Mem.) 1221
Texas & P. R. Co., Bankers Trust Co.
V 1010
T. Bigger (239 U. S. 830, 36
Sup. Ct. Rep. 127 ) 310
T. Rigsby (241 U. S. 33, 86
Sup. Ct. Rep. 482) 874
Thacker, Lancaster y. (Mem.) 473
Thatcher v. United States (Mem.)
(241 U. S. 644, 36 Sup. Ct
Rep. 460) 1218
Thompson v. St Louis (Mem.) (239 U.
S. 636, 241 U. S. 637, 86
Sup. Ct. Rep. 445) ...480, 1216
niompson k F. Lumber Co. ▼. Dilling-
ham (Mem.) (239 U. S.
646, 36 Sup. Ct Rep. 219) 484
Thome t. Anderson (240 U. 8. 116, 36
Sup. Ct. Rep. 281 ) 554
Thrift ▼. Laird (Mem.) (241 U. S.
691, 36 Sup. Ct. Rep. 554) 1238
Thurston, Southern R. Co. t. (Mem.)
1217
Title Guaranty k Surety Cob t. Idaho
use of Allm (240 U. S. 136,
86 Sup. Ct Rep. 346) ....
IS
666
Title Guaranty ft Surety Ck)., Shattuck
▼. (Mem.) 480, 1216
Tobin, Innes ▼ 662
Townaend t. Georgia Southern ft F.
R. Co. (Mem.) (239 U. S.
643, 36 Sup. Ct Rep. 164) 488
Trading Stamp Cases. See Tanitkb v.
Little.
Trammell, Manila Invest. Co. v 12(^
Trapp, McAlester Edwards Coal Co. v.
(Mem.) 48d
Trinity Gold Dredging ft Hydraulic Co.
▼. Beaudry (Mem.j (239 U.
S. 638, 36 Sup. Ct Rep.
160) 481
Truax v. Raich (239 U. S. 33, 36 Sup.
Ct Rep. 7) 131
Trussed Concrete Steel Co. v. Ck>rru-
gated Bar Co. (Mem.) (241
U. S. 681, 36 Sup. Ct Rep.
728) 1234
Tubular Woven Fabric Co. v. National
Metal Molding Co (Mem.)
(241 U. S. 663, 36 Sup. Ct
Rep. 450) 1227
Tucker t. United States (Mem.) (241
U. S. 668, 36 Sup. Ct Rep.
652) 122U
Turner Constr. Co., Union Terminal
Co. ▼. (Mem.) 1238
Tyee Realty Co. ▼. Anderson (240 U.
S. ai5, 36 Sup. Ct Rep.
281) 554
U.
Uhl, Gegiow ▼ 114
Unione Austriaca de Navigazione,
WatU, W. &, Co. ▼. (Mem.) 1232
Union Mfg. Co., United States v 822
Union Naval Stores Co. v. United
States (240 U. S. 284, 36
Sup. Ct Rep. 308) 644
Union P. R. Co., Brushaber v 493
Frank v. (Mem.) 123»
V. Zitnik (Mem.) (239 U. S.
650, 36 Sup. Ct Rep. 159) 486
Union Terminal Co. v. Turner Constr.
Co. (241 U. S. 678, 36 Sup.
Ct. Rep. 727) 1233
Union Trust Co. v. Grosman (Mem.)
(241 U. S. 662, 36 Sup. Ct
Rep. 449) 1227
United Mine Workers, Dowd ▼.
(Mem.) 1238
United R. ft Electric Co., Baltimore ▼.
(Mem.) 123(^
United R. Co. v. St Louis (Mem.)
(4 Cases) (241 U. S. 648,
36 Sup. Ct Rep. 550) 1220"
T. St Louis (Mem.) (241 U.
S. 647, 36 Sup. Ct Rep.
660) 1220*
CASES REPORTED.
Halted Shoe Machinery Co., Brigge t. 138
Suigunon Loan ft T. Co. t.
(Mem.) 485
Itaited T. 783
1. Andrews 1240 U. B. M, 36
Sup. Ct. Rep. 340) 641
T. Archer (241 U. 8. 119, 30
Sup. Ct. Rep. G21 ) giS
Aldiiaon, T. & S. F. R. Co. t.
(Mem.) 483
Baddera t. 708
V. BaiiMW 1230 U. S. 74, 38
Sup. Ct Sep. 10} 150
BaMo V. 462
Bettmaa t. (Mm.) 482
a rel. Louisiana t. Boarraan
(Mem.) (239 U. S. S41,
36 Sup. Ct Rep. 163) .. 482
▼. Booth (Mem.) (241 U. S.
S8S, 36 Sup. Ct. Rep. 2S5) 1235
Carnegie Steel Co. » 676
Cauaey y 711
Central R. Co. t. (Mem.) .... 1225
Cerecedo t 113
T. Chase (Mem.) (241 D. S.
66S, 36 Sup. Ct Rep. S03) 1220
Colbun V. (Mem.) 483
Cooper V. (Mem.) 1832
Cramp & Sou Ship 4 Engine
Bldg. Co. T 838
Crocker », 633
Fnmham y, 786
Ford *. 464
T. Forty Barrels ft Twenty
Kege, (241 V. 8. 266, 36
Sup. Ct. Rep. S73) 005
V. Freeman (239 U. S. 117, 36
Sup. Ct Rep. 32) 178
Grand Trunk B. Co. v. (Mem.) 1234
Hamburg-Amerikanische Pack-
et Co. t 887
T. Hamburg - Amerilcauiache
Packet Co. (830 U. S. 46B,
36 Sup. a. Rep. 812) .... 387
Hanish v. (Mem.) 484
Harmon T. (Men.) 1232
Haya V. (Mem.) 1231
T. Hemmer (241 U. S. 370, 36
Sup. Ct. Rep. eSO) 1066
Huff V. (Mem.) 1228
) of Peeler, lllinoig Soret;
Co.
600
•X rel. Fall City Constr. Co.
■m^^m (Mem.) .. 488
T. SS (241 U. S.
394, S6 Sup. Ct. Rep. 658) 1061
T. Lake Shore ft M. S. R. (3o.
(Uem.) (841 U. S. 691,
86 Sup. Ct. Rep. 781) .. 1838
Lamar v 526
Lamar ». . . . . ; 018
ex rel. Arant T. Iahc (Hem.)
(241 U. S. «77, S6 Sup.
Ct. Rep. 787) 1833
•• I^ ed.
United State* ex rel. Mickadiat, Lue
». D66
La Loqna v 147
V. Lombaido (241 U. 8. 78, 86
Sup. (X Rep. 608) BB7
Maryland Dredging ft Contract-
046
Co. T 1058
V. Morrison (240 U. S. 108,
86 Sup. .... 500
T. Moaer (Mem.) (230 U. S.
658, 36 Sup. Ct Rep. 44S) 480
Houn Day v. (Mem.) 484
National Bank ot Commerce
V. (Mem.) 1226
tne of Hollinger, National
(Mem.) .. 1236
New Royal Mail
ft C. A. 8. S. Co. T 227
T. New South Farm ft Home Co.
(241 U. S. 64, 36 Sup. Ct
Rep. 505) 8M
T. New York ft P. R. 8. 8. Co.
(230 U. S. 88, SB Sup. Ct
Rep. 41) 161
V. Nice (241 U. 8. 501, 36 Sup.
Ct. Hep. 609) 1192
Normile y 310
T. Normile (230 U. S. 344, 36
Sup. Ct. Rep. 122) 319
mm. ■
ft R. R. Co. T. . .
675
r. Quiver (241 U. S. 902, 8(
Sup. a. Rep. 690)
1106
V. Ross (230 U. S. 630, 36 Sup
Rue *. (Mem.)
1227
T. St. Louie, I. M. ft 8. R. Co
(Mem.) (241 U. 8. 693. 3(
Sup. Ct Rep. 724)
1238
Simpson V. (Mem.)
122(1
411
Spokane ft I. E. R. Co. t
1037
Stout V. (Mem.)
1227
Snllivan v. (Mem.)
1228
Thatcher V. (Mem.)
1219
Tucker v. (Mem.)
1220
». Union Mfg. Co. (240 U. 8
605, 36 Sup. Ct. Hep. 420)
822
Union Naval Stores Co. v
644
f. United Statea Steel Corp.
(240 U. 8. 448, 36 8up. Ct
Uterhart v
810
VandaliaR. Co. t. <Mem.)....
488
Weeks T. (Mem.)
1227
CA6BS REPORTED.
United States Fidelity & G. Co., Bnj
▼. (Mem.) 476
Eichel V. (Mem.) 475
▼. Riefler (239 U. 8. 17, 36 Sup.
Ct. Rep. 12) 121
United States Steel Ckyrp., United
States ▼ 731
Uppercu, Ex parte (239 U. S. 436,
36 Sup. Ct. Rep. 140) 368
Uterhart v. United States (240 U. S.
698, 36 Sup. Ct. Rep. 417) 819
Utica Bank v. Yates (240 U. S. 641,
36 Sup. Ct Rep. 429) 788
V.
Vall^ S. S. Co. V. Mraz (Mem.) (241
U. S. 642, 36 Sup. Ct. Rep.
447) 1217
T. Wattawa (Mem.) (241 U.
S. 642, 36 Sup. Ct Rep.
447) 1217
Vandalia R. Co. ▼. Stilwell (Mem.)
(239 U. S. 637, 241 U. S.
638, 36 Sup. Ct. Rep. 446)
480, 1216
T. United States (Mem.) (239
U. S. 642, 36 Sup. Ct. Rep.
163) 482
Van Deman ft L. Co., Rast ▼ 679
Van Winkle, Stearns Coal ft Lumber
Co. V. (Mem.) 1230
Varner ▼. New Hampshire Sav. Bank
(240 U. S. 617, 36 Sup.
Ct. Rep. 409) 828
Venner v. Chicago City R. Co. (Mem.)
(239 U. S. 667, 36 Sup. Ct.
Rep. 220) 488
Victor Talking Mach. Co., Straus t.
(Mem.) 1227
Villanueva, Arana de Villanueva v. . . 293
Virginia v. Morgan (Mem.) (239 U.
8. 653, 36 Sup. Ct Rep.
161) 487
▼. West Virginia (241 U. S.
631, 36 Sup. Ct Rep. 719) 1147
Virginia R. ft Power Co. v. Davis
(Mem.) (241 U. S. 672, 36
Sup. Ct. Rep. 723) 1231
von Baumbach v. Kearsarge Land Co.
(Mem.) (239 U. S. 646,
36 Sup. Ct. Rep. 167) 483
T. Sargent Land Co. (Mem.)
(239 U. S. 646, 36 Sup. Ct.
Rep. 167) 483
T. Sutton Land Co. (Mem.)
(239 U. S. 646, 36 Sup. Ct.
Rep. 167) 483
W.
Wagner, Chicago ft A. R. Co. v 879
V. Leser (239 U. S. 207, 36 Sup.
Ct. Rep. 66) 230
SO
Wagner, San Antonio ft A. P. R. Co.
V 1110
Wakefield v. Bradley (Mem.) (241
U. S. 688, 36 Sup. Ct. Rep.
640) 1237
Waldo, Wilson V. (Mem.) 1231
Wall, Northern P. R. Co. v 905
Wallbrecht v. Ingram (Mem.) (239
U. S. 626, 36 Sup. Ct. Rep.
162) 473
Ward V. Morgan (Mem.) (239 U. S.
648, 36 Sup. Ct Rep. 221) 485
Ward ft Co. v. Iowa Washing Mach.
Co. (Mem.) (241 U. S. 680,
36 Sup. Ct Rep. 728) 1234
Washington, Northern Exp. Co. v.
.. (Mem.) 1236
Pitney v 703
ex rel. Peabody t. Seattle
(Mem.) (239 U. S. 659,
36 Sup. Ct. Rep. — , 48;>
Washington Dredging ft Improv. Co. v.
Kinnear (Mem.) (239 U.
S. 632, 36 Sup. Ct. Rep.
220)
Washington Gaslight Co., District of
Columbia v. (Mem.)
Water Comrs., Manchester v. (Mem.)
Watson, Deupree v. ( Mem. )
Wattawa, Valley S. S. Co. v. (Mem.)
Watts, W. ft Co., Ex parte (Mem.)
(241 U. S. 655, 36 Sup.
Ct. Rep. 726)
T. Unione Austriaca de Navi-
gazione (Mem.) (241 U.
S. 677, 36 Sup. Ct Rep.
726) 1232
Webb, California ex rel. Banning Co.
V. (240 U. S. 142, 36 Sup.
Ct Rep. 338) 669
Weber v. Freed (239 U. S. 326, 36
Sup. Ct Rep. 131) 30S
Weed, William Filene's Sons Co. v.
(Mem.) 1226
Weeks v. United States (Mem.) (241
U. S. 664, 36 Sup. Ct.
Rep. 462) 1227
Wells F. ft Co. V. Jersey City (Mem.)
(239 U. S. 660, 241 U. S.
666, 36 Sup. Ct Rep. 284)
486,
Johnson v. •.
Welsbach Street Lighting Co., Fleit-
mann v
West End Street R. Co., Curtis v.
(Mem.)
Toung V. ( Mem. )
Western Coal ft Min. Co., Hise v.
(Mem.)
Western Glass Co. v. Schmertz Wir •
Glass Co. (Mem.) (239 U.
8. 648, 36 Sup. Ct Rep.
222) 486
477
1232
1221
488
1217
1224
1224
24:{
505
1235
1235
1228
CASES REPORTED.
Western U. Teleg. Co., Frear t 1027
Free v. ( Mem.) 1224
Free ▼. (Mem.) 1236
WcitiiighouBe Electric & Mfg. Co. ▼.
Idalio-Oregon Light & P. Co.
(Mem.) (241 U. S. 680, 36
Sup. Ct. Rep. 728) 1234
West Pub. Co., Ballinger v. (Mem.) 484
Weat Virginia, Virginia v 1147
Whalley v. Philadelphia ft R. R. Co.
(Mem.) (241 U. S. 689, 36
Sup. Ct. Rep. 549) 123<
Vfhisman, South Dakota ex rel. Rich-
ards v. (Mem.) 1218
White, Chin Quock Wah v. (Mem.) . . . 1237
▼. United States (241 U. S.
149, 36 Sup. Ct. Rep. 532) 929
T. United States (239 U. S. 608,
36 Sup. Ct. Rep. 224) 464
T. Wyoming (Mem.) (241 U.
S. 655, 36 Sup. Ct. Rep.
726) 1224
Whiteaker, Chicago, R. I. & P. R. Co.
V 860
White Dental Mfg. Co. ▼. Pieper
(Mem.) (239 U. 8. 646, 86
Sup. Ct. Rep. 219) 484
T. Pieper (Mem.) (241 U. S.
690, 36 Sup. Ct. Rep. 553) 1237
Whiteside, Norton v 186
Whitney t. New York Scaffolding Co.
(Mem.) (230 U. S. 640,
36 Sup. Ct. Rep. 161) 482
Whitt, Ex parte (Mem.) (239 U. S.
630, 36 Sup. Ct. Rep. 283) 479
Whittaker, Clement v. (Mem.) 1233
Wiener, L. & Co. v. Hollins (241 U.
S. 523, 36 Sup. Ct. Rep.
616) 1143
Wilckens v. Wilckens (Mem.) (239
U. S. 639, 36 Sup. Ct Rep.
160) 481
Wilckens V. (Mem.) 481
Wiles, Great Northern R. Co. ▼ 732
William Filene's Sons Co. v. Weed
(Mem.) (241 U. 8. 659, 36
Sup. Ct. Rep. 448) 1226
Williams, Hawgood & A. Transit Co.
V. (Mem.) 1234
▼. Johnson (239 U. S. 414, 36
Sup. Ct. Rep. 150) 868
•0 li. ed«
Williams, Stokes v. (Mem.) 1234
Willink V. United States (240 U. S.
672, 36 Sup. Ct. Rep. 422) 808
Wills, Fairbanks Steam Shovel Co. v. 841
Wilson, Porter v 204
▼. Waldo (Mem.) (241 U. 8.
673, 36 Sup. Ct. Rep. 724) 1281
Wilson ft Co. V. South Atlantic S. S.
Co. (Mem.) (241 U. S. 679,
86 Sup. Ct. Rep. 727 ) .... 1288
Wilson Cypress Co. ▼. del Poso 7 Mar-
cos (Mem.) (241 IJ. S. 662,
36 Sup. Ct. Rep. 721) .... 1222
Wisconsin, Bullen v 830
Zodrow V. (Mem.) 475
Wolf Bros, ft Co., Hamilton-Brown
Shoe Co. V 62D
Wood, Nelson v. (Mem.) 480, 1215
Woodman, Glass v. ( Mem. ) 1219
Wright, Chicago, R. I. ft P. R. Co. v. 431
Dure V. (Mem.) 1225
Wyoming, White t. (Mem.) ..•;.••• 1224
Y.
1233
788
788
788
788
1225
Yancey, Enright ▼. (Mem.)
Bank of Staplehurst ▼
Jones Nat. Bank v
Utica Bank ▼
Yee Kong v. Sibray (Mem.) (241 U.
S. 667, 86 Sup. Ct. Rep.
286)
York ft W. Co. V. New York, N. H. ft
H. R. Co. (Mem.) (239 U.
S. 631, 86 Sup. Ct. Rep.
166) 477
Young ▼. West End Street R. Co.
(Mem.) (241 U. 8. 684, 86
Sup. Ct Rep. 286) 1285
Yurkonis, Delaware, L. ft W. R. Co.
T. (Mem.) 486
Z.
Zeckendorf , Steinf eld t. 125
Zitnik, Union P. R. Co. t. (Mem.) .. 486
Zodrow Yi Wisconsin (Mem.) (239 U.
S. 629, 36 Sup. Ct. Rep.
166) 475
SI
CASES
ARGUED A.ND DECIDED
SUPREME COUET
or THB
UNITED STATES
AT
OCTOBER TEUM, 1916.
Vol. 239.
60 Ik ed.
B£FEB£NG1 TABLB
OF 8U0B OABU
DEOIDKD IN V. S. 8UPBEMK OOTTBX
OOTOBSB TBBM, Mli,
Zit
Title.
•riSPuTI «^
la.
Sit
Seaboard Air line R. Go.
4a
Beaaa t. PhiladalpUa 4 B.
T. Koenneoka
324
R. Oa.
304
M m
320 404-406
m m
300
M m
327
400-400
M m
007
«•
ChrtrtlantiMi t. King Oooa-
«7
327
400
United States ▼. Hamharf>
Amerikanische Paekal-
aS7-3M
^ m m
328
Fahrt-Aetien GaaellMhaft
007
»»-^io
m m
320
460-460
M M
300
MO
« m
330
460-472
m ' m
000
ltl-M2
m «
3311472-474
m m
000
992rM6
M «
332 1 474-477
m m
301
M»-Jt7
m M
333 1 477-478
M m
002
MT-^O
m M
334
470
Mylca Salt Go. t. Iberia
170-372
m «
335
4 St liary Drainage
t7a-«78
M M
336
Diat
302
S74
Moody T. Caoturr Sar^*
t— • -
470-401
m m
304
Eank
386
401-403
m
306
no-470
M «■
330
400-406
M M
000
370-470
« «■
340
400
Northwestern Laundrj t.
ro-301
m m
341
Dee Moinee
300
302
« «
342
480^01
M M
400
30t
Northern P. R. Go. t. Om-
481-483
M m
401
eannoB
342
403-406
M M
402
300-384
«t «t
342
400
Southern R. Oo^ t. liord
402
304-387
m m
343
407-400
M a
405
307-000
m m
344
400-601
m m
406
300
Atlantic Ooaat liaa R. Co.
601-602
m m
407
▼. GleoB
344
602
Hapai T. Bmmm
407
300-401
M M
346
603-600
408
301^04
M «
347
506-400
M «
400
304
348
506
HalloweU t. Gommoaa
400
404-405
M M
354
507-500
«■ «<
410
406-408
4M M
355
508
M M
411
408-411
M m
356
510
Seren Gaeea t. United
411--113
m «
357
Statea
411
413-414
M 4M
358
512
m m
414
414-416
WilliamA t. JalinaoB
358
512-416
m m
416
410^10
<« m
350
515-517
M M
410
410^421
M M
360
517-610
U «
417
421
Chicago, R. L & P. R. Co.
520
Commercial Nat. Banlc v.
y. Whiteaker
360
420-424
(« M
363
T. Co.
417
424-425
M «
364
522-423
M m
410
420
MUler T. Sirahl
364
523-626
M m
420
428-430
«■ M
366
526^20
m M
421
430-433
« M
367
528-630
M M
422
433-435
M «
368
530-631
United Statea t. Roea
422
436
Ex parta Upparen
368
531-434
M «
423
430-430
••
371
534-436
M m
424
430-441
m
372
536-630
M M
426
441
Bi-Mttanie InTMt. Co. t.
538
Moee T. Rami^T
426
SUta Bd. of BqualizatioB
372
644-640
M H
430
440-444
M •
374
546-647
M m
ai
444-440
m M
376
648
Chicago, R. L 4 P. R. Go.
T. Wriest
440
Dajton Obal 4 I. Go. ▼.
Oincinnatt, N. C. ft T. P.
ai
640
M m
480
R. Go.
375
549-452
H m
404
447-440
M «
377
552-664
M «
400
440^61
m
378
554-555
M m
400
451
M «
370
556
Shanks v. Delaware, Lb 4
4tt
Chicago 4 A. R. Go. T.
W. R. Go.
400
Wagner
370
550-067
u m
437
4f4-456
^'m M
380
667-660
m m
480
400-407
m «
381
660^600
M m
400
407-460
« •
382
560
Interstate AMOBement Go.
400-400
Inter-Ialaad Steam NaT. Go.
T. Albert
400
vBjn..
382
564-666
M M
441
400-402
383
566-400
M m
441
m iifj
« m
004
600
m m
444
M li.
Su^l tWa.
^
"5JT «*»^
^
668
Heme Bond Go. T. Mo-
600
Chicago, a C. 4 8t L. B.
Chemaj
444
Oa. T. DattUbaoh
408
ii9-<(72
•« " m
440
000
Saaboard Air Line R. Co.
i71-<74
m m
448
T. Horton
408
074-476
m m
447
606-607
M M
400
fTfr-«76
m m
448
607-000
m M
401
f7t
Kanawha 4 IL R. Go. t.
000-008
«■ M
402
Kana
448
008
BaMO T. United SUtea
402
078
M «
440
004-000
M «
408
f78-Ml
m m
460
600-008
« M
404
681-082
m M
461
000
White T. United Statea
404
088
New York a 4 H. R. R.
011-018
M M
400
Go. T. Oraj
461
018-014
M M
467
080^080
m M
462
614-017
Northern P. R. Co. t.
080-087
«■ «■
468
Heeee
407
088
Glayaland, a a 4 St L. R.
017-010
M M
408
Go. T. Datttabach
408
010-020
M M
469
088-000
M M
466
021
Rogera v. Hennepin County
400
000^08
m m
460
021-022
M M
471
088-000
m m
467
If 5 iCT
Mamorandnm Daaiaiona 473|M80
880 U. A.
THE DECISIONS
or THB
Supreme Court of the United States
AT
OCTOBER TERM, 1915,
MANUEL. CERECEDO, Andrea Graiasca.
and Carlos Valle, PlfTa. in Err.,
V.
UNITED STATES.
(See S. C. Reporter's ed. 1-3.)
Error to Porto Rico district court —
Jurisdiction — dismissal.
1. A writ of error to tiie district court
of the United States for the district of
Porto Rico must be dismissed where there
is no bill of exceptions in the record and
nothing which enables the court lawfully to
ascertain the existence of the constitutional
questions relied upon to confer jurisdiction.
(For other cnses, see Appeal and Error, VII.
i, 4. in Digest Sup. Ct. 1908.]
Appeal — motion to dismiss — decision.
2. The postponing of the consideration
of a motion to dismiss a writ of error from
the Federal Supreme Court until the hear-
ing on the merits is not a decision in the
afHrmative of the question of the power to
review.
(On motions to dismiss appeal, generally, see
Appeal and Error, VII. u, lu Digest Sup.
Ct. 1908.]
[No. 285.]
Argued and submitted %October 13, 1915.
Decided October 25, 1015.
IN ERROR to the District Court of the
United States for Porto Rico to review
convictions of conspiracy. Dismissed for
want of jurisdiction.
See same case below, 6 Porto Rico Fed.
Rep. 626.
Messrs. Paul Fuller and Howard
Thayer Kingsbury submitted the cause for
plaintiffs in error.
Note. — On appellate jurisdiction of Fed-
eral Supreme Court over Porto Rican
courts — see note to Garrozi t. Dastas, 51
L. ed. U. S. 369.
60 L. cd.
Assistant Attorney General Warren ar-
gued the cause and filed a brief for defend-
ant in error.
Solicitor General Davis also filed a brief
for defendant in error.
Memorandum opinion by Mr. Chief Jus-
tice White, by direction of the court:
The plaintiffs in error prosecute this writ
under the assumption that the court below
denied rights asserted [3] by them tinder
the Constitution, by refusing, as prayed, to
return papers taken from them under a
search warrant, and in permitting the pa-
pers over objection to be offered in evidence.
There is no bill of exceptions in the record,
and nothing which enables us to lawfully as-
certain the existence of the constitutional
questions relied upon. Clune v. United
States, 159 U. S. 500, 40 L. ed. 260, 16 Sup.
Ct. Rep. 125 ; Metropolitan R. Co. v. District
of Columbia (Metropolitan R. Co. v. Mac-
farland) 105 U. S. 322, 49 L. ed. 219, 26
Sup. Ct. Rep. 28; Porto Rico v. Emmanuel,
235 U. S. 251, 255, 59 L. ed. 215, 217, 35
Sup. Ct. Rep. 33.
There is nothing, therefore, before us un-
less there be merit in contentions to the
contrary which are pressed and which we
briefly dispose of. First: On the face of
things it is obvious that the postponing at
the last term of the consideration of a mo-
tion to dismiss was not a decision of the
question of power to review. Second : Even
indulging, for the sake of the argument
only, in the assumption of the correctness
of the proposition urged that an extraor-
dinary discretion might exist in some ex-
treme case to supply the entire absence of
a bill of exceptions, we see no ground what-
ever for the premise that this is a case of
that character.
Dismissed for want of jurisdicUoTi.
8 \\^
SUPREME CX)URT OP THE UNITED STATES.
Oct. TwMMr
All GEGIOW and Sabas Zarikoew, Peti-
tioners,
V.
BYRON H. UHL, as Acting Commissioner
of Immigration at the Port of New York.
(See S. C. Reporter's ed. 3-10.)
Habeas oorpns — immigration cases.
1. An alien, whom the commissioner of
immigration has detained for deportation
for a reason not recognized as sufficient by
the immigration act of February 20, 1007
(34 Stat, at L. 898, chap. 1134), § 2, as
amended by the act of March 26, 1910 (36
Stat, at L. 263, chap. 128, Comp. Stat. 1913,
S 4244), § 1, numerating the conditions
upon which the allowance to land mav be
denied, — is entitled to demand his release
upon habeas corpus.
[For other cases, see Habeas Corpus, 18-18,
188-191, in Digest Sup. Ct. 1908. J
Courts ^ conclusiveness of decisions of
immigration officer.
2. The conclusiveness of the decisions
of immigration officers under the immigra-
tion act of February 20, 1907 (34 SUt. at
L. 898, chap. 1134), § 25, is conclusiveness
upon matters of fact, not upon questions of
law.
[For other cases, see Courts, I. e, 4, in Digest
Sup. Ct. 1908.1
Aliens ^ deportation ^ public ciiarges.
3. Alien immigrants cannot be deported
under the immigration act of February 20,
1907 (34 Stat, at L. 898, chap. 1134), § 2,
as amended by the act of March 26, 1910
(36 Stat, at L. 263, chap. 128), § 1, as
''persons likely to become a public charge,''
merely because the labor market in the
city of. their immediate destination is over-
stocked.
I For other cases, see Aliens, VI. a, in Digest
Sup. Ct. 1908.J
[No. 340.]
Argued October 13 and 34, 1915. Decided
October 25, 1915.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Second Circuit to review a decree which
affirmed a decree of the District Court for
the Southern District of New York, dis-
missing a writ of habeas corpus. Reversed.
See same case below, 131 C. C. A. 641,
215 Fed. 573.
The facts are stated in the opinion.
Messrs. Bfax J. Kohler and Morris
Jablow argued the cause, and, with Messrs.
Note. — On habeas corpus in the Federal
courts — see notes to Re Reinitz, 4 L.RJl.
•236; State ex rel. Cochran v. Winters, 10
LJI.A. 616; and Tinsley v. Anderson, 43
L. ed. U. S. 91.
On treaty guaranties to aliens, see note to
Candolfo v. Hartman, 16 L.R.A. 277.
114
Abram L Elkus and Ralph Bamett, fikd
a brief for petitioners:
The right to due process of law under
the 5th Amendment in immigration cases is,
of course, well established, and this for-
bids unlawfully assuming facts not cocrni.
zable on the theory of judicial notice; and
also deciding a case on such undisclosed
facts without giving the immigrant notice
of such intention or an opportunity to meet
such matter by proof.
Chin Yow v. United SUtes, 208 U. S. 8,
52 L. ed. 369, 28 Sup. Ct. Rep. 201: Jap-
anese Immigrant Case (Yamataya t.
Fisher) 189 U. S. 86, 100, 47 L. ed. 721,
725, 23 Sup. Ct. Rep. 611; Re Can Pon,
03 C. C. A. 635, 168 Fed. 479; Davies v.
Manolis, 103 C. C. A. 310, 179 Fed. 818;
United States ex rel. Huber v. Sibray, 17S
Fed. 144; Hanges v. Whitfield, 200 Fed.
675, affirmed in 138 C. C. A. 199, 222 Fed.
745; Rodgers v. United States, 81 C. C. A.
454, 152 Fed. 340; 'Re Monaco, 86 Fed. 117;
Re Gottfried, 89 Fed. 9; Roux v. San Fran-
cisco, 121 C. C. A. 523, 203 Feil. 413; Ex
parte Petkos, 212 Fed. 275, reversed in 131
C. C. A. 274, 214 Fed. 078 ; Re Kommehl, 87
Fed. 314; Ex parte Un«r King lenjr. 2ia
Fed. 119; Ex parte Wong Tucy lling, 213
Fed. 112; Re Gin Funjj, 89 Fcd.'lSS: United
States ex rel. Bosny v. Williams, 185 Fed.
598; United States v. Wong Chung, 92 Fed.
141; Re Chinese Relators, 38 Fed. 554. See
also Interstate Commoroc Commission v.
Louisville A N. R. Co. 227 U. S. 88, 01, 93,
57 L. ed. 431, 433, 434, 33 Sup. Ct. Rep,
185 ; United SUtes v. 1500 Bales of Cotton,
Fed. Cas. No. 15,958; Thayer, Ev. pp. 309,
310.
All the cases relied upon by the govern-
ment below herein, and cited in the opinion
of the circuit court of appeals (other than
the Nishimura Ekiu v. United States, 142
U. S. 651, 35 L. ed. 1146, 12 Sup. Ct. Rep.
336, which arose under a materially dif-
ferent law), arose under the Chinese ex-
clusion laws, and not under the general
immigration laws. * The courts have strong-
ly emphasized the fact that differences in
the statutes render these two classes of
cases inapplicable to each other, for an en-
tirely different procedure is established by
the Chinese exclusion laws than is pre-
scribed by the immigration law.
Rodgers v. United States, 81 C. C. A. 464,
152 Fed. 352; United States v. Sing Tuck,
194 U. 8. 161, 170, 48 L. ed. 917, 921, 24
Sup. Ct. Rep. 621; Gonzales v. Williams,
192 U. S. 1, 10, 48 L. ed. 317, 322, 24 Sup.
Ct. Rep. 177.
Even under the looser procedure appli-
cable to Chinese exclusion cases, such de-
parture from due process of law as is here
989 U. S.
1916.
OE<$IO?P#. UHL.
involved has b«en held to authorize judicial
review.
Re Can Pon, 93 C. C. A. 635, 168 Fed.
479.
The decision of the court in Nishimura
Ekiu V. United States, supra, relied upon so
much below, is not now applicable in view
(a) of the marked changes in the statute
since that case was decided, creatin«; a quasi
judicial board required to take testimony,
and in the direction of conferring on the
physicians, and not the lay inspectors, sole
jurisdiction to note and certify physical, as
well as mental, defects in immigrants
(United SUtes v. Petkos, 131 C. C. A. 274,
214 Fed. 978); (b) the later decisions of
this court limiting it, especially *the Jap-
anese Immigrant Case (Yamataya v. Fish-
er) 189 U. S. 8G, 47 L. ed. 721, 23 Sup.
Ct. Hep. 611, where it was distinguished on
constitutional grounds; (c) the fact that
here unlawful procedure, and no mere ques-
tion of existence of facts, is involved; (d)
because, despite our statute, the record here
fails to show that relators were excluded
on account of anything observed by the
inspectors in their appearance; and (e) be-
cause the right since established of de-
termining finally even rights to citizenship
and otiier difficult questions of law and
fact under the later acts in these admin-
istrative proceedings requires closer con-
formity to judicial procedure as necessary
due process of law. It should also be noted
that, (f) in general immigration cases the
statute imposes tlie burden of proof on the
government, wliile in Chinese cases it is on
the alien, except in the single instance of
"assisted immigrants," under the general
immigration laws, in which case § 2 ex-
pressly throws it on the alien. 26 Ops.
Atty. Gen. 414: I'nited States ex rel. Castro
V. Williams, 203 Fed. 156; Rodgers v.
United States, 81 C. C. A. 454, 152 Fed.
352; Chin Bak Kan v. United States, 186
U. S. 193, 200, 4(1 L. ed. 1121, 1125, 22 Sup.
Ct. Rep. 891; United States ex rel. De
Rienzo v. Rodgers, 182 P'ed. 274, affirmed in
107 C. C. A. 452, 185 Fed. 334; Ex parte
Petkos, 212 Fed. 275; Ex parte Gregory, 210
Fed. 080; Ark Foo v. United States, 63
C. C. A. 249, 128 Fed. 698; United SUtes
V. Lee Qiung, 206 Fed. 367.
There being no competent proof whatever
in the record of the alleged employment
conditions in Portland, nor of the alleged
inability of petitioners to speak any dialect
except their own unfamiliar one, or of other
disability likely to affect ability to earn a
living, their exclusion on the ground of
likelihood to become a public charge is
without any evidence, and is reviewable in
the courts on habeas corpus, even independ- 1
ently of the errors of procedure involved. '
•0 L. ed.
Lewis V. Frick, 233 U. S. 291, 297-300,
58 L. ed. 967, 971-973, 84 Sup. Ct. Rep*
488 ; Zakonaita t. Wolf, 226 U. S. 272, 274,
67 L. ed. 218, 220, 33 Sup. Ct. Rep. 31;
Bryant v. United States, 167 U. S. 104, 42
L. ed. 94, 17 Sup. Ct. Rep. 744; People
ex rel. Kasschau v. Police Comrs. 155 N. Y.
40, 49 N. £. 257 ; Interstate Commerce Com-
mission V. Louisville & N. R. Co. 227 U. 8.
88, 57 L. ed. 431, 33 Sup. Ct. Rep. 185;
Williams v. United States, 124 C. C. A. 366,
206 Fed. 460, approving 189 Fed. 915;
United States ex rel. Rosen v. Williams, IIS
C. C. A. 632, 200 Fed. 541; United State»
ex rel. Bauder v. Uhl, 128 C. C. A. 660, 211
Fed. 628; United States ex rel. Goldberg
V. Williams, 204 Fed. 828; Ex parte Petkos,
212 Fed. 275, reversed in 131 C. C. A. 274,
214 Fed. 978; Re Feinknopf, 47 Fed. 447;
Re Cummings, 32 Fed. 75; Ex parte Sara*
ceno, 182 Fed. 955; Frick v. Lewis, 116 C. C-
A. 493, 195 Fed. 693; Davies v. Manolis,
103 C. C. A. 310, 179 Fed. 821; United
States v. Passavant, 169 U. S. 16, 20, 21, 42
L. ed. 644, 645, 646, 18 Sup. Ct. Rep. 219;
United States v. Haviland, 167 Fed. 414,
affirmed in 100 C. C. A. 637, 177 Fed. 175;
certiorari denied in 216 U. S. 618, 54 L. ed.
640, 30 Sup. Ct. Rep. 573; American School
V. McAnnulty, 187 U. S. 94, 108, 47 L. ed.
90, 96, 23 Sup. Ct. Rep. 33; Public Clear-
ing House V. Coyne, 194 U. S. 497, 615, 48
L. ed. 1092, 1101, 24 Sup. Ct. Rep. 789;
Howe V. Parker, 111 C. C. A. 466, 190 Fed.
746; Williams v. United States, 208 Fed.
460; Whitfield v. Hanges, 138 C. C. A. 199,
222 Fed. 745; Japanese Immigrant Case
(Yamataya v. Fisher) 189 U. S. 86, 47 L.
ed. 721, 23 Sup. Ct. Rep. 611; Chin Yow
V. United States, 208 U. S. 8, 52 L. ed. 36»,
28 Sup. Ct. Rep. 201; Low Wah Suey V.
Backus, 225 U. S. 460, 56 L. ed. 1165, 32
Sup. Ct. Rep. 734; Tang Tun v. Edsell, 223
U. S. 673, 56 L. ed. 606, 32 Sup. Ct. Rep.
359; Macy v. Browne, 140 C. C. A. 45, 224
Fed. 359.
A person cannot be excluded as likely to
become a public charge unless there be some
evidence of substantial affirmative disabili-
ties, and all the agencies at the disposal
of the immigrant to aid him in his new
home, including the assistance of relativeii
not legally obligated to support him, and of
friends, must be taken into account in de-
ciding the "likely to become a public charge'^
issue.
Re Feinknopf, 47 Fed. 447 ; Re O'Sullivan,
31 Fed. 447; Re Bracmadfar, 37 Fed. 774;
Re Day, 27 Fed. 678; United States t.
Lipkis, 56 Fed. 427 ; Ex parte Saraceno, 182
Fed. 955; Ex parte Petkos, 212 Fed. 276;
Williams v. United States, 124 C. C. A. 366,
206 Fed. 460; United States ex rel. Gold-
berg y. Williams, 204 Fed. 828.
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbm,
Even as regards matters judicially notice-
able, the authority relied upon should be
produced in court, and the fact of judicial
notice being taken spread upon the record
before the close of the case, so that proof
can be adduced by the other fide to meet
the same.
McKinnon v. Bliss, 21 N. Y. 214; Kaola-
type Engraving Go. ▼. Hoke, 30 Fed. 444;
Walton V. SUfford, 14 App. Div. 310, 43
N. Y. Supp. 1049 ; Dominici ▼. United States,
72 Fed. 46; Arkansas v. Kansai k T.
Coal Co. 183 U. S. 185, 189, 190, 46 L.
ed. 144, 146, 147, 22 Sup. Ct. Rep. 47;
Thayer, £v. chap. 7, p. 281; Ex parte Pet-
koa, 212 Fed. 275, reversed in 131 C. C. A.
274, 214 Fed. 978; Whitfield v. Hanges, 138
C. C. A. 199, 222 Fed. 745.
Where courts take judicial notice of facts,
and err in their assumed facts, a question
of law is presented.
United SUtes v. 1600 Bales of Cotton,
Fed. Cas. No. 15,958; Ex parte Petkos, 212
Fed. 275, reversed in 131 C. C. A. 274, 214
Fed. 978.
Statutes like the immigration laws fall
within the general class of statutes in dero-
gation of personal liberty which should be
construed in favor of individual liberty and
personal right.
Moflitt V. United States, 63 C. C. A.
117. 128 Fed. 378; Tsoi Sim v. United
SUtes, 54 C. C. A. 154, 116 Fed 920;
Redfem v. Halpert, 108 C. C. A. 262,
186 Fed. 150; Japanese Immigrant Case
(Yamataya v. Fisher) 189 U. S. 86, 47 U
ed. 721, 23 Sup. Ct. Rep. 611; Lieber, Her-
meneutics 3d ed. pp. 128, 129, 137; Martin
▼. Goldstein, 20 App. Div 206, 46 N. Y.
Supp. 961, 26 Am. & Eng. Enc. Law, 2d ed.
pp. 646, 648, 659, 661, 662.
Such uncertain, complex, ever-varying
facts, changing constantly in point of time,
and differing at the same time as to dif-
ferent places and lines of industry, and re-
lating to distant places, — as labor conditions
in their relation to a particular person's
being able to get employment either in his
specialty or any other, — cannot be noticed
judicially by the courts.
Smid V. Bernard, 31 Misc. 38, 63 N. Y.
Supp. 278; Market Nat. Bank v. Pacific
Nat. Bank, 27 Hun, 465; Whitfield v.
Hanges, 138 C. C. A. 199, 222 Fed. 745; Ex
parte Petkos, 212 Fed. 275, reversed in 131
C. C. A. 274, 214 Fed. 978.
Facts of recent occurrence relating to a
limited section of country cannot be con-
sidered as covered by judicial knowledge, as
matter of history.
16 Cyc. 868; Morris v. Harmer, 7 Pet.
654, 558, 8 L. ed. 781, 783; McKinnon v.
Bliss, 21 N. Y. 216; North Hempstead v.
Gregory, 53 App. Div. 355, 65 N. Y. Supp.
B67; Market Nat Bank v. Pacific Nat. Bank,
27 Hun, 465 ; Smid v. Bernard, 31 Misc. 35,
63 N. Y. Supp. 278.
Matters constantly changing materially,
and not definitely fixed and **known by
everybody," cannot thus be noticed.
16 Cyc. 871; Adams v. Elwood, 176 N. Y.
106, 68 N. E. 126 ; Kokes v. State, 55 Neb.
701, 76 N. W. 467; First Nat. Bank v.
Ayers, 160 U. S. 660, 40 L. ed. 573, 16 Sup.
Ct. Rep. 412.
The courts should hesitate to take judicial
notice of facts in controversy in the ac-
tion.
North Hempstead v. Gregory, 53 App. Div.
350, 65 N. Y. Supp. 867; Patent Button
Co. V. Consolidated Fastener Co. 84 Fed.
189; Walton v. Stafford, 14 App. Div. 313,
43 N. Y. Supp. 1049.
The limitations upon the right to notice
facts judicially are more, not less, Stringent,
as applied to administrative bodies, which
naturally are commonly composed of men
of much less intelligence, judgment, and in-
dependence than are our courts, and es-
pecially as against aliens denied the right
to counsel and advisers until after exclu-
sion by the board, and commonly unfamiliar
with our language and procedure.
Interstate Commerce Commission v. Louis-
ville & N. R. Co. 227 U. S. 88, 91, 93. 57
L. ed. 431, 433, 434, 33 Sup. Ct. Kep. 185:
Hanges v. Whitfield, 209 Fed. 675; People
ex rel. Clarke v. Roosevelt, 168 N. Y. 488,
61 N. E. 783.
To vest such sweeping power in $l,800-a-
year inspectors under the immigration laws,
who are notoriously lacking in education
and weak in general, but who are vested witli
power to pass on the rights of over a mil-
lion persons a year, including claims to
citizenship, would be a public calamity; and
the present instance is the first one in
which any court, in any reported decision,
has sustained such claim.
Ex parte Petkos, 212 Fed. 275, reversed
in 131 C. C. A. 274, 214 Fed. 978; Wil-
liams V. United States, 124 C. C. A. 366,
206 Fed. 460; United States ex rel. Bosny
V. Williams, 185 Fed. 598; Roux v. San
Francisco, 121 C. C. A. 523, 203 Fed. 413;
Leung Jun v. United States, 96 C. C. A.
369, 171 Fed. 413; United States v. Chin
Len, 109 C. C. A. 310, 187 Fed. 544 ; United
States V. Wong Chung, 92 Fed. 141 ; Whit-
field V. Hanges, 138 C. C. A. 199, 222 Fed.
745; Jouras v. Allen, 138 C. C. A. 210, 222
Fed. 756.
Even if such facts r^arding economic
conditions can be noticed judicially, the al-
leged newspaper reports here involved could
not lawfully be considered as the basis for
judicial notice, and there is no other proof
of the alleged facts in question.
Walton V. Stafford, 14 App. Div. *10, 43
989 U. S.
1015.
GEGIOW ▼. UHL.
8
y. Y. Supp. 1049; WheUn t. Lynch, 60
N. Y. 469, 19 Am. Rep. 202; DownB ▼.
New York C. R. Co. 47 N. Y. 83, 6 Am.
Neg. Cae. 142; Langlej t. Smith, 3 N. Y.
S. R. 276; Harrii t. Panama R. Co. 3
Boflw. 7; McKinnon ▼. Bliss, 21 N. Y. 215;
Caldwell v. National Mohawk V^alley Bank,
64 Barb. 333; Greenl. £v. § 440, note;
Morris ▼. Harmer, 7 Pet. 554, 8 L. ed. 781;
Whitfield T. Hanges, 138 C. C. A. 109, 222
Fed. 745.
Where the courts on habeas corpus as-
sume jurisdiction to review an order of ex-
clusion, they are themselves to determine
the question of admissibility, and not merely
to remand relator for a new hearing to the
immigration authorities...
Chin Yow v. United SUtes, 208 U. S.
8, 13, 52 L. ed. 369, 370, 28 Sup. Ct Rep.
201; United States v. Petkos, 131 C. C. A.
274, 214 Fed. 978; Whitfield v. Hanges,
138 C. C. A. 199, 222 Fed. 745; United
SUtes ez reL I^Amato v. Williams, 193 Fed.
228.
Solicitor General Davis argued the cause
and filed a brief for respondent:
Congress has complete power to exclude
all aliens and to determine the conditions
of their entry.
Laplna v. Williams, 232 U. S. 78, 88, 58
L. ed. 515, 518, 34 Sup. Ct. Rep. 196;
United SUtes v. Ju Toy, 198 U. S. 253,
49 L. ed. 1040, 25 Sup. Ct. Rep. 644.
The administrative determination made
the condition of entry need not be based
upon a hearing at which the alien has an
opportunity to present evidence.
Buttfield V. Stranahan, 102 U. S. 470,
48 L. ed. 525, 24 Sup. Ct. Rep. 349; Oceanic
Nat. Co. v. Stranahan, 214 U. S. 320, 53
L. ed. 1013, 29 Sup. Ct. Rep. 671; Origet
T. Hedden, 155 U. S. 228, 39 L. ed. 130,
15 Sup. Ct. Rep. 92.
When Congress has made a favorable ad-
miniatrative decision the sole and indispen-
sable condition precedent to entry, and has
declared an adverse decision to be final, the
isourU have no power to review the evidence
upon which the latter is based.
Nishimura Ekiu v. United States, 142
U. S. 651, 660, 35 L. ed. 1146, 1149, 12
Sup. Ct. Rep. 336.
In the immigration act Congress has made
the fact of the decision by immigration of-
ficials the sole condition of entry. The fact
of the decision being esUblished, any in-
quiry into the evidence is improper.
1. The act (§ 25) in unmistakable terms
declares that the adverse administrative
decision ''shall be final."
•0 L. ed.
Pearson ▼. Williams, 202 U. S. 281, 60
L. ed. 1029, 26 Sup. Ct. Rep. 608.
I 2. The statute imports that want of any
susUining evidence shall not of itself con-
stitute a ground for judicial impeachment
of the adverse administrative decision.
(a) The officers do not lose exclusive
jurisdiction by judging all the evidence er-
roneously.
Chin Yow ▼. United States, 208 U. S.
8, 13, 52 L. ed. 369, 370, 28 Sup. Ct. Rep.
201; Harlan v. McGourin, 218 U. S. 442, 54
L. ed. 1101, 31. Sup. Ct. Rep. 44, 21 Ann.
Cas. 849.
(b) Want of any susUining evidence in
the record does not per te esUblish fraud
or lack of good faith.
White V. Gregory, 130 C. C. A. 282, 21S
Fed. 768 ; Nishimura Ekiu v. United SUtes,
142 U. S. 651, 660, 35 L. ed. 1146, 1149,
12 Sup. Ct. Rep. 336.
3. Under this act the courU have no
jurisdiction to review the evidence.
Fok Yung Yo v. United SUtes, 185 U.
S. 296, 46 L. ed. 917, 22 Sup. Ct. Rep.
686; Fong Yue Ting v. United States, 149
U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep.
1016; White v. Gregory, 130 C. C. A. 282,
213 Fed. 768; Lee Gon Yung v. United
SUUs, 185 U. S. 306, 46 L. ed. 021, 22 Sup.
Ct Rep. 690; Lee Yung v. Patterson, 186
U. S. 175, 46 L. ed. HIO, 22 Sup. Ct, Rep.
795; Lem Moon Sing v. United States, 158
U. S. 538, 39 L. ed. 1082, 15 Sup. Ct. Rep.
967; Nichimura Ekiu v. United SUtes,
supra.
4. Cases under sUtutes providing for ad-
ministrative proceedings of a different kind
are not applicable.
Interstate Commerce Commission v. Louis-
ville & N. R. Co. 227 U. S. 88, 57 L. ed.
431, 33 Sup. Ct. Rep. 185 ; Lewis v. Frick,
233 U. S. 291, 58 L. ed. 967, 34 Sup. Ct
Rep. 488; American School v. McAnnulty,
187 U. S. 94, 47 L. ed. 90, 23 Sup. Ct Rep.
33; Zakonaite v. Wolf, 226 U. S. 272, 57 L.
ed. 218, 33 Sup. Ct. Rep. 31.
Mr. Justice Holmes delivered the opinion
of the court:
The petitioners are Russians seeking to
enter the United SUtes. They have been
deUined for deportation by the Acting Com-
missioner of Immigration, and have sued
out a D^rit of habeas corpus. The writ was
dismissed by the district court and the
circuit court of appeals. 211 Fed. 236; 131
C. C. A. 641, 215 Fed. 573. By the return
it appears that they are part of a group
of • illiterate laborers, only one of whom, it
I seems, Gegiow, speaks even the ordinary
\\1
S-10
SUPREME COURT OF THE UNITED STATES.
Oct. Temu,
Russian tongue, and in view of that fact it
was suggested in a letter from the acting
commissioner to the Commissioner General
that their ignorance tended to make them
form a clique to the detriment of the com-
munity; but that is a trouble incident to
the immigration of foreigners generally
which it is for legislators, not for com-
missioners, to consider, and may be laid
on one side. The objection relied upon in
the return is ihat the petitioners were
''likely to become public charges for the
following, among other reasons: That they
arrived here with very little money [$40
and $25, respectively], and are bound for
Portland, Oregon, where the reports of in-
dustrial conditions show that it would be
impossible for these aliens to obtain employ-
ment; that they have no one legally obli-
gated here to assist them; and upon all the
facts, the said aliens were upon the said
grounds duly excluded," etc. We assume
the report to be candid, and, if so, it shows
that the only ground for [0] the order was
the state of the labor market at Portland at
that time; the amount of money possessed
and ignorance of our language being thrown
in only as makeweights. It is true that the
return says for that "among other reasons.''
But the state of the labor market is tnc
only one disclosed in the evidence or the
facts that were noticed at the hearing, and
the only one that was before the Secretary
of Labor on appeal; and as the order was
general for a group of twenty it cannot fair-
ly be interpreted to stand upon reasons
undisclosed. Therefore it is unnecessary
to consider whether to have the reasons
disclosed is one of the alien's rights. The
only matter that we have to deal with is
the construction of the statute with ref-
erence to the present case.
The courts are not forbidden by the stat-
ute to consider whether the reasons, when
they are given, agree with the requirements
of the act. The statute, by enumerating
the conditions upon which the allowance to
land may be denied, prohibits the denial in
other cases. And when the record shows
that a commissioner of immigration is ex-
ceeding his power, the alien may demand
his release upon habeas corpus. The con-
clusiveness of the decisions of immigration
officers under § 25 is conclusiveness upon
matters of fact. This was implied in Nishi-
mura Ekiu v. United States, 142 U. S. 651,
35 L. ed. 1146, 12 Sup. Ct. Rep. 336, relied
on by the government. As was said in
Gonzales v. Williams, 102 U. S. 1, 15, 48
L. ed. 317, 322, 24 Sup. Ct. Rep. 177, "as
Gonzales did not come within the act of
1801 [26 Stat, at L. 1084, chap. 551], the
118
commissioner had no jurisdiction to detain
and deport her by deciding the mere ques-
tion of law to the contrary." Such a case
stands no better than a decision without a
fair hearing, which has been held to be
bad. Chin Yow v. United SUtes, 208 U. S.
8, 52 L. ed. 360, 28 Sup. Ct. Rep. 201. See
furtlier Zakonaite v. Wolf, 226 U. S. 272,
57 L. ed. 218, 33 Sup. Ct. Rep. 31; Lewis v.
Frick, 233 U. S. 201, 207, 68 L. ed. 067, 071,
34 Sup. Ct. Rep. 488.
The single question on this record is
whether an alien can be declared (ikely to
become a public charge on the ground that
the labor market in the city of his immedi-
ate [10] destination is overstocked. In the
act of February 20, 1007, chap. 1134, § 2,
34 Stat, at L. 808, as amended by the act of
March 26, 1010, chap. 128, § 1, 36 Stat, at
L. 263, Comp. Stat. 1013, § 4244, determin-
ing who shall be excluded, "Persons likely
to become a public charge" are mentioned
between paupers and professional beggars,
and along with idiots, persons dangerously
diseased, persons certified by the examining
surgeon to have a mental or physical defect
of a nature to affect their ability to earn a
living, convicted felons, prostitutes, and so
forth. The persons enumerated, in short,
are to be excluded on the ground of per-
manent personal objections accompanying
them irrespective of local conditions unless
the one phrase before us is directed to dif-
ferent considerations than any other of
those with which it is associated. Pre-
sumably it is to be read as generically
similar to the others mentioned before and
after. •
The statute deals with admission to the
United States, not to Portland, and in § 40
contemplates a distribution of immigrants
after they arrive. It would be an amazing
claim of power if commissioners decided not
to admit aliens because the labor market
of the Unitod States was overstocked. Yet,
as officers of the general government, they
would seem to be more concerned with that
than with the conditions of any particular
city or state. Detriment to labor condi-
tions is allowed to be considered in § 1, but
it is confined to those in the continental
territory of the United States, and the mat-
ter is to be determined by the President.
We cannot suppose that so much greater a
power was intrusted by implication in the
same act to every commissioner of immigra-.
tion, even though subject to appeal, or that
the result was intended to be effected in
the guise of. a decision that the aliens were
likely to become a public charge.
Order reversed.
289 U. S.
1W5. CENTRAL TRUST CO. v. GEORGE LUEDERS k CO. 11, 12
(111 CENTRAL TRUST COMPANY OF not belonging to that class, even though the
ILLINOIS and the Covington Savings operation of the act must be restrained
Bank &, Trust Company, as Trustee of the within narrower limits than its literal
1. Rheinstrom k Sons Company, Bank- words import.
nipt, Appts., United States ▼. American Bell Teleph.
▼. Co. 159 U. S. 548, 40 L. ed. 255, 16 Sup.
GEORGE LUEDERS k CO., G. S. Nicholas Ct. Rep. 69; Petri v. Commercial Nat. Bank,
k Co., D. A. White Co., the E. Berghausen 142 U. S. 644, 660, 36 L. ed. 1144, 1146,
Chemical Co., the E. A. Conkling liox Co., 12 Sup. Ct. Rep. 325; Church of the Holy
T. A l^ecker, B. F. Goodrich Co., and Trinity v. United States, 143 U. S. 457, 459,
Hazel-Atlas Glass Co. 4^3^ 3^ L. ed. 226, 228, 229, 12 Sup. Ct.
(See S. C. Reporter's ed. 11-13.) ^^F'J^l' .Y""'^. ^^*^ ""' ^*>i°<>^i«^'
*^ '238 U. S. 78, 59 L. ed. 1211, 36 Sup. Ct
Appeal ^ from circuit court of appeals ^®P* ®®^'
— bankruptcy cases. Where the correctness of a judgment of
Causes requiring the determination the circuit court of appeals depends upon
«f the validity of a state statute under the the construction or application of the Con-
Federal Constitution are comprehended hy stitution of the United States, the defeated
tit.PTo"o."l ""K *T ^ ^^o ""l '^^"n'if.'^o^?' party, provided it has asserted its consti-
ifa^Lf«nr(ex^c\^^^ rutiLf rights from the outset, is entitled,
bv certiorari) "the judgments and decrees as of right, to a re-exammation of the judg-
of the circuit courts of appeals in all pro- ™«"* ^y ***»« court, even though the decree
ceedings and cases arising under the bank- of the district court was rendered sitting in
niptcy act and in all controversies arising bankruptcy.
in such proceedings and cases." Spreckels Sugar Ref. Co. v. McClain, 192
[For other cn»e.H, see Appeal nnd Error, III. tt s 307 40 i oA 40A 2A Run P<l Ra»
d, 2, c, in Digest Sup. Ct. 1908.] ^'^' JW/, 45 J^ ea. wo, ^4 Hup. ut. ttep.
378.
[No. 445.] ^^' Walter A. DeCamp submitted the
cause for appellees. Messrs. Dudley V. Sut-
^Submitted October 12, 1915. Decided Octo- pl^in* Leo J* Brumleve, Jr., Edwards F.
•ber 2o, 1915. Peters, and Paul V. Connolly were on the
brief :
APPEAL from the United States Circuit As this is one of the class of cases of
Court of Appeals for the Sixth Circuit which the courts of appeal have final ju-
to review a decree which affirmed a decree risdiction, and as the case has been deter»
of the District Court for the Eastern Dis- mined by the court of appeals on its merita»
trict of Kentucky, allowing certain liens another appeal cannot be maintained to
upon the property of a bankrupt. Dis- this court, even though the case involves
missed for want of jurisdiction. constitutional rights. Such case can be
See same case below, 137 C. C. A. 387, taken to the Supreme Court only upon
221 Fed. 829. certiorari.
,, - ^^ WW ^ w^ , „«_>■ Cary Mfg. Co. v. Acme Flexible Clasp Co.
Messrs. Judson . Harmon, Kclward -o_ _• „ ® „_ ._ , j o>i>« «« o ^xl
#^ ■ . A %»' ^11 i«i ^ -«« 187 U. S. 427, 47 L. ed. 244, 23 Sup. Ct.
Colston, A. W. Goldsniitti. George „ _,- u , -.,* />, r^ % i.
Hoadly licsslns Rosentlial and Charles ^^P* ^^^' Huguley Mfg. Co. v. Galeton
^ iS t^ y tl ^^^ f ^""^ , Cotton Mills, 184 U. S. 290, 46 L. ed. 646,
H. Hamitl submitted the cause for appel- __ ^^ ^-.x A A^n a • o -n m
UnU. Mr. Leo F. Wormnt-r was on the ?? ^"^^ ^- ^'P' '*^2%trTVT fT'.r */*
. . ., Co. V. New Orleans, 181 U. S. 277, 46 L.
^•iere «n act of Congrew i. directed to 1$\!^\^\^^l, "" ^^^ f^V ^"^T^,-
• cl«8B of C8e8 which had 80 increased in g*'*^*" " 3« ^^ ^ ^ 746, 17
number as to impose a burden of litigation ^^* ^ ■ P* *
upon this court, the act will be given effect ^, , t.-»r ▼.»
in the light of the object of its enactment, „*If ""ff'^K T°T ^, JJ'" f **
«iid will not be construed as a limitation "^'^''""'t^*! ^y **""*'r •'^*''* *""""*=
upon the jurisdiction of thi. court in a case J»\* \ Rhemstrom & Sov Company was
_,! adjudged a bankrupt m April, 1912. Liens
Note.— On appellate jurisdiction of Fed- upon its property were claimed by appellees
eral Supreme Uourt in bankruptcy cases, under a Kentucky statute which appellants
see note to James v. Stone, 67 L. ed. U. S. (general creditors) maintained contravened
-^73. f}^Q ][4th Amendment to the Constitution of
On appellate jurisdiction of Federal Su- ^he United States. Overruling the referee,
preme Court oTer circuit courts of appeals ^ ^. ^^. ^ ^^^^^ ^„^^^^ ^j^^ j.^^, ^207
— see notes to Bagley v. General Fire Ex- «,-,«, . .. - a.- ju
tinguisher Co. 53 L. ed. U. S. 605, and St. ^^^' }^^\* •"^^ *»"• action was approved by
Anthony Church v. Pennsylvania R. Co. *^^e circuit court of appeals, March 2, 1916,
^9 L. ed. U. & 1119. ui an opinion which expressly upheld the
«0 Ii. ed. \\%
12-15
SUPREME COURT OF THE UNITED STATEa
Oct. Tebm^
▼alidity of the itatute (221 Fed. 829). Ap-
pellees have moved to dismiss the present
appeal.
Section 4, act of Congress, approved
January 28, 1915 (38 Stat, at L. 803, 804,
chap. 22), provides: "That the judgments
and decrees of the circuit courts of appeals
in all proceedings [13] and cases arising
under the bankruptcy act and in all contro-
versies arising in such proceedings and cases
shall be final, save only that it shall be com-
petent for the Supreme Court to require by
certiorari, upon the petition of any party
thereto^ that the proceeding, case, or con-
troversy be certified to it for review and
determination, with the same power and
authority as if taken to that court by ap-
peal or writ of error; but certiorari shall
not be allowed in any such proceeding, case,
or controversy unless the petition therefor
is presented to the Supreme Court within
three months from the date of such judg-
ment or decree."
Manifestly, the words of the quoted sec-
tion include the decree below, and inhibit
an appeal therefrom. It is argued, however,
that they should be so construed as to ex-
clude causes requiring interpretation of
state statutes and application of the Feder-
al Constitution, and thereby limited in ef-
fect to the supposed purpose of (ingress to
relieve this court only from the necessity of
reviewing bankruptcy cases which "involve
complicated questions of fact rather than
of law." We see no reason to doubt that
the plain langusge of the enactment aptly
expresses the fixed legislative intent. The
appeal is accordingly dismissed for want of
jurisdiction*
[14] SAMUEL STEWART, as Treasurer of
Wyandotte County, Kansas, Plff. in Err.,
V.
CITY OF KANSAS CITY, Kansas.
(See S. C. Reporter's ed. 14-16.)
Error to state court — who may main-
tain — public officer.
1. A county treasurer has no such per-
sonal interest m the litigation as entitles
him to maintain a writ of error from the
Federal Supreme Court to review a judg-
ment of a state court compelling him to
account to a city within the county under
certain taxing statutes of the state which
the county treasurer asserts are, as con-
strued by the state court, repugnant to the*
Federal Constitution.
[For other cases, see Appeal and Error, 20e8.
2060, Id Digest Sop. Ct. 1908.) ^^
Error to state court — frlToIous FM*
eral question.
2. No substantial Federal question
which will support a writ of error from
the Federal Supreme Court to a state court
is presented by the contention that tax-
payers of a ooun^, who reside outside of
cities of the first class, are deprived of their
property without due process of law and
are denied the equal protection of the lawa
by state legislation under which, as con-
strued by the state court, a county must
reimburse a city of the first class within
such county for the amoYmt by which th»
taxes collected for the city are reduced by
rebates granted for prompt payment, and
at the same time must pay over to the ci^
the amount collected as penalties for delay
in the payment of taxes levied by the city,
while in the case of taxes levied by cities-
of the second and third class and by town-
riiips and school districts the rebates are
charged to the county and the penaltiea
credited to it.
[For other cases, see Appeal and Error. 1110-
1187, in Digest Sup. Ct. 1908.]
[No. 284.]
Submitted October 18, 1916. Decided No-
vember 1, 1915.
IN ERROR to the Supreme Court of the
State of Kansas to review a judgment
which affirmed a judgment of the District
Court of Wyandotte County, in that state,,
requiring the County Treasurer to account
to the city of Kansas City for certain suma
due the city under taxing statutes of the
state. Dismissed for want of jurisdiction.
See same case below, 90 Kan. 846, 136
Pac. 241; on rehearing, 92 Kan. 406, 140*
Pac 876.
The facts are stated, in the opinion.
Messrs. Ij. W. Keplinger and C. W.
Trickett submitted the cause for plaintiflT
in error.
Messrs. Richard J. Higgins and Wil-
liam H. McCamish submitted the cause-
for defendant in error.
Mr. Justice McKenna delivered the
opinion of the court:
This action originated in a petition for
mandamus filed in the district court of
Wyandotte county, Kansas, by defendant in
NoTB. — On the ^neral subject of writs of
error from the United States Supreme Court
to state courts — see notes to Martin v.
Hunter, 4 L. ed. U. S. 97; Hamblin v.
Western Land Co. 37 L. ed. U. S. 267; Re
Buchanan, 39 L. ed. U. S. 884; and Kipley
V. Illinois, 42 L. ed. U. S. 998.
On what adjudications of state courts can
be brought up for review in the Supreme
Court of the United States by writ of error
120
to those courts — see note to Apex Transp.
Co. V. Garbade, 62 L.R.A. 513.
On parties to appellate proceedings in
Federal Supreme Court — see note to Amadeo-
use of Pastor Marquez Co. v. Northern
Assur. Co. 60 L. ed. U. S. 723.
On necessity of color of merit in Federal
question to sustain writ of error to state-
court — see note to Offield v. New York, N»
H. & H. R. Co. 61 L. ed. U. S. 231.
289 v. S^
1915.
UNITED STATES FIDELITY & G. CO. ▼. RIEFLEB.
16-17
error agtinst plaintiff in error, ta require
^e latter to account for the sum of $30,-
840.24, alleged to be due defendant in error
under certain taxing statutes of the state.
Judgment was entered for defendant in
error, which was affirmed on appeal by the
supreme court of the state. The case was
then brought here.
Motion is made to dismiss, on the ground
that no Federal questicm was raised or
passed on by the state court, or alternative-
ly to affirm the judgment.
The controversy is stated by the supreme
court of the state as follows:
"The question in dispute concerns the
disposition of the penalties imposed by law
for delinquency in the payment of taxes
levied by and for the city. In substance it
is this: Is the county required to reim-
burse A city of the first class for the
amount by which the taxes collected for
the city are reduced by rebates granted for
prompt payment, and at the same time to
pay over to the city the amount collected
as penalties for delay in the payment of
taxes levied by the city, while in the case
of taxes levied by cities of the second and
third classes, and by townships and school
districts, tlie rebates are charged to the
county and the penalties credited to it?"
[90 Kan. 847, 136 Pac. 241.]
The question was answered in the af-
firmative, citing and construing the state
statutes, and upon a consideration of the
l^islative power of the state over its munic-
ipal subdivisions. Plaintiff in error urged
and now urges that the [16] statutes so
construed deprive taxpayers of the county
who reside outside of cities of the first class
of property without due process of law, and
deny them tlie equal protection of the law.
Plaintiff in error is not impleaded as a
taxpayer nor does he defend as such. He
is sued as a county olficer and defends by
virtue of the exercise of his functions as
A county ollicer. In other words, he de-
fends by virtue of laws of which he is an
instrument. Constituted by the laws of
the state, he yet attempts to resist one of
its laws. Whether he may do so is purely
a local question. Smith v. Indiana, 191 U.
8. 138, 48 L. ed. 125, 24 Sup. Ct. Rep. 51.
He certainly has no personal interest in
the litigation. Braxton County Ct. v. West
Virginia, 208 U. S. 192, 52 L. ed. 450, 28
Sup. Ct. Hep. 275; McCandless v. Pratt,
211 U. S. 437, 63 L. ed. 271, 29 Sup. Ct.
Rep. 144; Marshall v. Dye, 231 U. S. 250,
58 L. ed. 206, 34 Sup. Ct. Rep. 92.
If, however, plaintiff in error is not es-
topped by that consideration, he encounters
another. It is manifest that the statute
assailed was enacted by the state in regu-
lation of its municipalities, and the power
to do this is very broad. It was said in
•0 li. ed.
Chicago, B. & Q. R. Co. ▼. Otoe County, 16
Wall. 667, 21 L. ed. 375, that ''counties,
cities, and towns exist only for the con-
Tcnient administration of the government.
Such organizations are instruments of the
state, created to carry out its will." This
power of creation and control may be exer-
cised in many ways and may give rise to
actual or asserted inequalities. It has been
exercised to enlarge or contract the boun-
daries of municipal corporations, invest
tliem with special powers, divide and ap-
portion their property. Atty. Gen. ex rel.
Kics V. Lowrey, 199 U. S. 233, 50 L. ed.
167, 26 Sup. Ct. Rq>. 27; Braxton County
Ct. V. West Virginia, supra. It would be
difficult to define the restrictions upon this
power of control and keep it efficient. It
is very certain that the Kansas statute does
not transcend the limitations. We think
the questions raised are more formal than
substantial, and the writ of error is dis-
missed.
[17] UNITED STATES FIDELITY 4
GUARANTY COMPANY
▼.
CHARLES J. RIEFLER and James A. Hall.
(See S. C. Reporter's ed. 17-25.)
Guaranty — notice of acceptance.
A bond under seal, delivered by the
obligors to the obligee, conditioned upon
the indemnification of the latter, a surety
company, for all loss under an official bond
upon which the surety company "has be-
come or is about to become surety," is a
completed contract of indemnity or guar-
anty which binds the obligors without any
notice that it has been accepted and acted
upon by the obligee.
[For other cases, see Guaranty, III., in Digest
Sup. Ct. 1008.)
[No. 11.1
Argued October 21, 1015. Decided Novem-
ber 1, 1015.
ON A CERTIFICATE from the United
States Circuit Court of Appeals for the
Seventh Circuit presenting questions as to
whether a certain instrument was a com-
pleted contract of indemnity or guaranty.
Answered in the affirmative.
The facts are stated in the opinion*
Mr. A. F. Reichmann argued the cause,
and, with Messrs. Noble B. Judah, Monroe
NoTB. — On necessity of notice of accept-
ance to bind guarantor — see notes tp Wil-
liam Deering & Co. ▼. Mortell, 16 L.R.A.
(N.S.) 352; J. R. Watkins Medical Co. v.
Brand, 33 L.R.A.(N.S.) 060; W. T. Raw-
leigh Medical Co. v. Laursen, 48 L.R.A.
-(N.S.) 108; and Davis Sewing Mach. Co.
T. Richards, 20 L. ed. U. S. 480.
Ill
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Jj. Willard, Henry M. .Wolf, and Arthur M. i
Cox, filed a. brief for the United States I
Pidelity k Guaranty Company:
A bond of indemnity is an engagement to
secure or save harmless against loss or dam-
age of a specified character ; it is something
^ven to a person to prevent his suffering
damage, while a guaranty is a promise to
answer for the payment of some debt or
the performance of some duty in the case
of the failure of anoth^ person who is him-
self in the first Instance liable for such
payment or. performance.
14 Am. ft Eng. Enc. Law, 2d ed. p. 1127;
16 Am. ft Eng. Enc. Law, 2d ed. pp. 168,
169; 20 Cyc. 1397, 1400, and note on p.
1402; 22 Cyc. 79, 80; 1 Brandt, Suretyship
ft Guaranty, 3d ed. § 5 ; Vandiver v. Pollak,
107 Ala. 547, 64 Am. St. Rep. 118, 19 So.
180.
Bonds of indemnity are orginal and pri-
mary obligations not within the statute of
frauds; while contracts of guaranty are
secondary or collateral undertakings and
are within the scope of the statute.
14 Am. ft Eng. Enc. Law, 2d ed. p. 1130;
16 Am. ft Eng. Enc. Law, 2d cd. p. IGO \ 20
Cyc. 1402; 22 Cyc. 80; 1 Brandt, Suretyship
ft Guaranty, 3d ed. § 5; BeColyar, Guaran-
ties, Principal ft Surety, p. 1; Hawes v.
Murphy, 191 Mass. 469, 78 N. E. 109 ; Spur-
rier V. Nottingham, 7 Ky. L. Rep. 462;
Campbell v. Pucket, 1 Posey, Unrep. Cas.
(Tex.) 466; Hartley v. Sandford, 66 K. J.
L. 40, 48 Atl. 1009; HaU ▼. Weaver, 34 Fed.
107; Mcintosh-Huntington Co. v. Reed, 80
Fed. 464; Horn ▼. Bray, 61 Ind. 655, 19 Am.
Rep. 742; Minick v. Huff, 41 Neb. 616, 69
N. W. 796; Anderson v. Spence, 72 Ind. 316,
37 Am. Rep. 162; Fidelity ft C. Co. v.
Lawler, 64 Minn. 144, 66 N. W. 143; Boyer
▼. Soules, 106 Mich. 31, 62 N. W. 1000;
Smith T. Delaney, 64 Conn. 264, 42 Am. St.
Rep. 181, 29 Atl. 4U6; Perley v. Spring. 12
Mass. 297; Aldrich ▼. Ames, 9 Gray, 76;
Lucas V. Chamberlain, 8 B. Mon. 276; Jones
T. Shorter, 1 Ga. 204, 44 Am. Dec. 649;
Bonebright t. Pease, 3 Mich. 318 ; Chapin v.
Merrill,' 4 Wend. 667; Jones v. Bacon, 146
N. Y. 446, 40 N. E. 216 ; Rcsseter v. Water-
man, 161 111. 169, 37 N. E. 875; Saint v.
Wheeler ft W. Mfg. Co. 96 Ala. 362,^6 Am.
St. Rep. 210, 10 So. 639; Kearnes ▼. Mont-
gomery, 4 W. Va. 29.
A guarantee must ordinarily exhaust his
remedies against the person primarily liable
before resorting to his guarantor; but an
indemnitee can hold his indemnitor without
first seeking reimbursement from any third
person.
Pingrey, Suretyship ft Guaranty, % 860;
Page T. White Sewing Mach. Co. 12 Tex.
Civ. App. 327, 34 S. W. 988; Reigart v.
White. 62 Pa. 438; 20 Cyc. 1446, 1463;
122
Springfield t. Boyle, 164 Mass. 591, 42 K.
E. 333; Kempton v. Coffin, 12 Pick. 129;
Conery t. Cannon, 20 La. Ann. 123; 22 Cyc.
102; Getty v. Schantz, 40 C. C. A. 660, 100
Fed. 677; Phenix Ins. Co. v. Louisville ft
N. R. Co. 8 Fed. 142; Osborne v. Smith, 5
McCrary, 487, 18 Fed. 126.
An indemnitee must have actually paid
a judgment or given his own obligation to
the creditor, which has been accepted as
payment, before he can maintain an action
upon the instrument of indemnity; while a
guarantee may maintain an action against
a guarantor to compel payment of the
debt itself.
Central Trust Co. v. Louisville Trust Co.
40 C. C. A. 530, 100 Fed. 545; Rcsseter T.
Waterman, 151 111. 177, 37 N. E. 875;
Barclay v. Gooch, 2 Esp. 571; Carter v.
Adamson, 21 Ark. 287; Solary v. Webster,
35 Fla. 363, 17 So. 646: Hoy v. Hans-
borough, 1 Frecm. Ch. (Miss.) 533; Greg-
ory v. Hartley, 6 Neb. 356; Aberdeen v.
Blackmar, 6 Hill, 324; Hearn v. Lander,
11 Bush, 669; Miller v. Fries, 66 N. J. L.
377, 49 Atl. 674; Cochran v. Selling, 36 Or.
333, 69 Pac. 329.
While a guarantor's undertaking is for
the benefit of the creditor, the undertaking
of a surety's indemnitor is not. The cred-
itor cannot maintain any action upon it.
United States use of Wood v. United Sure-
ty Co. 192 Fed. 994; State v. St. Louis ft S.
F. R. Co. 126 Mo. 696, 28 S. W. 1074 : Texas
Midland R. Co. v. Miers, — Tex. Civ. App.
— , 37 S. W. 640.
As a general rule an indemnitor is nei-
ther a guarantor nor a surety ; he is a prin-
cipal, although he is frequently referred
to by the courts as a surety.
Wise V. Miller, 45 Ohio St. 388, 14 N.
E. 218; Appleton v. Bascom, 3 Met. 169.
Ilistoricallv, contracts of indemnity are
creations of the common law, and are usual-
ly specialties (except the implied obliga-
tion created by law on the part of a prin-
cipal to indemnify his surety when no ex-
press obligation has been given) ; while
contracts of guaranty are commercial con-
tracts having their origin in the rules of
the law merchant, and are usually simple
contracts.
Courtis V. Dennis, 7 Met. 610; Edmonds-
ton v. Brake, 6 Pet. 624, 8 L. ed. 251; Lee v.
Dick, 10 Pet. 482, 9 L. ed. 503; Dan. Neg.
Inst, f 1766; Bell v. Bruen, 1 How. 169,
11 L. ed. 80; Lawrence v. McCalmont, 2
How. 426, 11 L. ed. 326; Smith v. Dann,
6 Hill, 643; Lanusee v. Barker, 3 Wheat.
148, 4 L. ed. 366; Kincheloe v. Holmes, 7
B. Mon. 6, 46 Am. Dec. 41.
Instruments of guaranty (unlike instru-
ments of indemiiity) are divided into two
239 U. 8.
19 Jo.
UNITED STATES FIDSflTY k G. CO. v. RIEFLER.
elaucs: (a) overtures or offers to guar-
antee and (b) absolute guaranties.
Pitman, Principal k Surety, p. 28; De
Colyar, Guaranties, Principal k Surety, p.
3; 14 Am. k Kng. Enc. Law, 2d ed. p. 1145;
20 Cyc. H04, 1407.
The doctrine that notice of acceptance is
accessary to bind a guarantor applies only
to instruments which are overtures or offers
to guarantee.
Davis Sewing Mach Co. v. Richards, 115
U. 8. 524, 29 L. ed. 480, 6 Sup. Ct. Rep.
173; Russell v. Clark, 7 Cranch, 69, 3 T^.
ed. 271; Edmondston v. Drake, 5 Pet. 624,
8 L. ed. 251; Douglass v. Reynolds, 7 Pet.
113, 8 L. ed. 626 ; Lee v. Dick, 10 Pet. 482,
9 L. ed. 503; Adams ▼. Jones, 12 Pet. 207,
9 L. ed. 1058; Reynolds v. Douglass, 12
Pet. 504, 0 L. ed. 1178; Barnes Cycle Co. ▼.
Reed, FA Feil. 003; Steadman v. Guthrie, 4
Met. (Ky.) 1.57: Kincheloe v. Holmes, 7 B.
Mon. r», 4.1 Am. Dec. 41 ; Oaks v. Weller, 13
Vt. 1U6, 37 Am. Dec. 583; Newman v.
Streator Coal Co. 19 111. App. 594; Ruffncr
T. Love, 33 111. App. 601; Neagle v. Sprague,
63 111. App. 25; 20 Cyc. 1404, 1405.
The rule does not apply to instruments
vhich are absolute guaranties.
Davis V. Wells, F. k Co. 104 U. S. 169,
26 L. ed. 686; Wildes ▼. Savage, 1 Story,
^ Fed. Cas. No. 17,653; Kent v. Silver,
47 C. C. A. 404, 108 Fed. 365; Doud v.
National Park Bank, 4 C. C. A. 607, 2 U.
a App. 655, 54 Fed. 846; Bond v. John V.
Farwell Co. 96 C. C. A. 546, 172 Fed. 58;
Cooke V. Orne, 37 111. 186; Newcomb Bros.
Wall Paper Co. v. Emerson, 17 Ind. App.
482. 40 N. E. 1018; Sears v. Swift k Co.
66 111. App. 490; American Exch. Nat. Bank
V. Scaverns, 121 111. App. 480; Acorn Brass
Mfg. Co. V. Gilmore, 142 111. App. 567;
Frost ▼. SUndard Metal Co. 215 111. 240,
74 N. E. 139; Pressed Radiator Co. v.
Hughes, 165 III. App. 80; Bryant v. Stout,
16 Ind. App. 380, 44 N. E. 68, 45 N. E.
343; William Deering k Co. v. Mortell, 21
8. D. 159, 16 L.R.A.(N.S.) 353, 110 N. W.
86; Lane v. Mayer, 15 Ind. App. 382, 44 N.
E. 73; Shows v. Steiner, 175 Ala. 363, 57
8o. 700; J. R. Watkins Medical Co. v.
Brand, 143 Ey. 468, 33 L.RJl.(N.S.) 960,
136 S. W. 867; People's Bank v. Stewart,
152 Mo. App. 314, 133 S. W. 70; J. L. Mott
Iron Works v. Clark, 87 S. C. 199, 69 S.
£. 227; Bank of California ▼. Union Pack-
ing Co. 60 Wash. 456, 111 Pac. 573; Emer-
ion Mfg. Co. V. Tvedt, 19 N. D. 8, 120 N.
W. 1094; Sheppard v. Daniel Miller Co. 7
Ga. App. 760, 68 S. B. 451; Sheffield ▼.
Whitfield, 6 Ga. App. 762, 65 S. E. 807;
Booth V. Irving Nat. Exch. Co. 116 Md. 668,
82 Atl. 652; McConnon k Co. v. Laursen,
22 X. D. 004, 135 N. W. 213; Furst k B.
60 L. ed.
Mfg. Co. V. Black, 111 Ind. 308, 12 N. E.
504.
The doctrine of notice of acceptance is not
applicable to bonds of indemnity or to any
form of instrument which is an original
undertaking. ^A bond of indemnity or other
original undertaking when executed, deliv-
ered, and acted upon becomes effective.
Haupt V. Cravens, 56 Tex. Civ. App. 253,
•120 S. W. 541 ; Mcintosh-Huntington Co. v.
Reed, 89 Fed. 464; Newcomb Bros. Wall
Paper Co. v. Emerson, 17 Ind. App. 482, 46
N. E. 1018; Wise v. Miller, 45 Ohio St. 388,
14 N. E. 218; Hall v. Weaver, 34 Fed. 104;
Lane v. Mayer, 15 Ind. App. 382, 44 N. E.
73; Edward B. Bruce Co. v. Lambou^, 123
La. 969, 49 So. 659 ; Haywood v. Townsend,
4 App. Div. 246, 38 N. Y. Supp. 517; Singer
Mfg. Co. V. Freerks, 12 N. D. 595, 98 N. W.
705; Lachman v. Block, 47 La. Ann. 505,
28 L.R.A. 255, 15 So. 649; Swope v. Forney,
17 Ind. 385; Saint v. Wheeler k W. Mfg.
Co. 95 Ala. 362, 36 Am. St. Rep. 210, 10
So. 530; Fidelity Mut. L. Ins. Co. v. Steg-
all, 27 Okla. 151, 111 Pac. 389; Wheeler ▼.
Rohrer, 21 Ind, App. 477, 52 N. E. 780;
Page V. White Sewing Mach. Co. 12 Tex.
Civ. App. 327, 34 S. W. 988 ; White Sewing
Mach. Co. ▼. Powell, 25 Ky. L. Rep. 94, 74
S. W. 746; Engler v. People's F. Ins. Co. 46
Md. 322; Walker v. Brinkley, 131 N. C. 17,
42 S. E. 333; Klosterman v. Olcott, 25 Neb.
382, 41 N. W. 250; FUla v. Ainsworth, 63
Neb. 1, 93 Am. St. Rep. 420, 88 N. W. 135;
Bank of United States v. Dandridge, 12
Wheat. 64, 6 L. ed. 552; Bird v. Washburn,
10 Pick. 223; Boyd v. Agricultural Ins. Co.
20 Colo. App. 28, 76 Pac 986.
It is not necessary that the indemnitors
should receive any benefit as a considera-
tion to render them liable. The liability
incurred by the indemnitee and the harm
and injury suffered by it constitute a valid
and sufficient consideration for the bond of
indemnity.
Chapin v. Merrill, 4 Wend. 657 ; Emerson
V. Slater, 22 How. 28, 16 L. ed. 360.
Mr. Walter McC. Allen argued the
cause, and, with Mr. Albert Salzenstein, filed
a brief for Charles J. Riefler et al. :
The instrument in suit was a mere offer,
and not an absolute and complete obligation
under the facts certified in tiie case.
Davis V. Wells, F. k Co. 104 U. 8. 159,
26 L. ed. 686; Davis Sewing Mach. Co. ▼.
Richards, 115 U. S. 524, 29 L. ed. 480, 6
Sup. Ct. Rep. 173; William Deering k Co.
V. Mortell, 21 S. D. 159, 16 L.R.A.(N.S.)
353, 110 N. W. 86; Barnes Cyde Co. ▼.
Reed, 84 Fed. 603, 33 C. C. A. 646, 63 U. S.
App. 279, 91 Fed. 481; 20 Harvard L. Rev.
486; Lachman v. Block, 47 La. Ann. 505,
28 L.R.A. 255, 15 So. 649.
The instrument in suit is not a bond of
itz
23, 24
SUPREME COURT OF THE UNITED STATES.
Oct. Temm,
indemnity. Wliile under the facts certified
it does not evidence a completed contract
of any kind, yet as an instrument it is, as
to the defendants who signed it, as dis-
tinguished from Dooling, who did not sign
it, one of guaranty, and not ^f indemnity.
16 Am. & £ng. Enc. Law, 2d ed. p. 168;
22 Cyc 79, 80; 14 Am. k Eng. Enc. Law, 2d
ed. p. 1128; Pingrey, Suretyship k Guar-
anty, § 4; 20 Cyc. 1397, 1400; Keames v.
Montgomery, 4 W. Va. 29; Courtis t. Den-
nis, 7 Met. 518; Hall v. Weaver, 34 Fed.
106; Brandt, Suretyship k Quaranty, § 1;
15 Laws of England (Halsbury) p. 444.
Mutuality of assent is essential to every
contract, and requires the assent of a party
to whom a proposal is made to be signified
to the party making it, in order to make a
binding contract. In this case there was
no signification of assent or notice of ac-
ceptance to the defendant of the instrument
in suit, and hence, as said instrument was,
under the facts certified, merely offered for
acceptance or rejection, it never became a
binding obligation, regardless of the ques-
tion as to whether it was in form an instru-
ment of guaranty or of indemnity.
Davis V. Wells, F. k Co. 104 U. S. 150,
26 L. ed. 686; Davis Sewing Mach. Co. v.
Richards, 115 U. S. 524, 29 L. ed. 480, 6
Sup. Ct. Rep. 173; Lachman v. Block, 47
La. Ann. 505, 28 L.RJI. 255, 15 So. 649;
William Deering k Co. v. Mortell, 21 S. D.
159, 16 L.R.A(N.S.). 853, 110 N, W. 86;
Bisliop T. Eaton, 161 Mass. 496, 12 Am. St.
Rep. 437, 37 N. E. 665; 22 Cyc. 81; Anson,
Contr. 15, 16; Frost v. Standard Metal Co.
215 111. 240, 74 N. E. 139, 116 111. App.
642; Ruffner ▼. Love, 33 IlL App. 601; New-
man V. Streator Coal Co. 19 111. App. 602;
Sears v. Swift k Co. 66 111. App. 496; Meyer
V. Ruhstadt, 66 111. App. 346; Acme Mfg.
Co. V. Reed, 197 Pa. 359, 80 Am. St. Rep.
832, 47 Atl. 205.
The fact that the instrument in suit was
in the form of a bond under sea) does not
take it out of the general rule requiring
notice of acceptance.
Davis V. Wells, F. k Co. 104 U. S. 159,
26 L. ed. 680; Hall v. Weaver, 34 Fed. 104;
Burke v. Delaney, 153 U. S. 235, 38 L. ed.
700, 14 Sup. Ct. Rep. 816; Jordan v. Davis,
108 lU. 336; Philadelphia, W. k B. R. Co.
v. Howard, 13 How. 834, 14 L. ed. 168;
Rountree v. Smith, 152 111. 493, 38 N. E.
6d0; Stanley v. White, 160 111. 605, 43 N.
E. 729; Ware v. Allen, 128 U. S. 597, 32
L. ed. 665, 9 Sup. Ct. Rep. 174; Pawling v.
United States, 4 Cranch, 219, 2 L. ed. 601;
4 Wigmore, Ev. §§ 2408, 2410, 2442; Curry
V. Colburn, 99 Wis. 319» 67 Am. St. Rep.
860, 74 N. W. 778.
124
Mr. Justice Holmes delivered the opin-
ion of the court:
The facts certified are simple. One Dool-
ing, being required to give an official bond»
applied in Springfield, Illinois, to an agent
of the plaintiff in error, a bonding com-
pany having its home office in Baltimore^
Maryland, was informed that the company
would become his surety only on condition
that he furnish indenmity, and was handed
a printed form of indemnity bond. The de-
fendants in error, at Dooling's request,,
signed and sealed this bond for the purposes
therein expressed, and authorized Dooling
to deliver it to the company through its
Springfield agent, which Dooling did. The
agent, who is not shown to have had au-
thority to execute bonds, forwarded it for
acceptance. The company, relying upon it,
became surety for Dooling. One of the
recitals of the bond was that the company
''has become or is about to become surety,,
at the request of the said Frank £. Dooling,
on a certain bond in the sum of Five ThcAi-
sand Two Hundred Dollars, wherein Frank
£. Dooling is principal, as Recorder of
Springfield District Court No. 25, Court of
Honor, located at Springfield, Illinois, a
copy of which* bond is hereto attached No.
52012-5, which bond is made a part hereof/'
The condition was that Dooling should keep
the company indemnified for all loss by
reason of its suretyship. A copy of the
company's bond was not attached and at
the date of the indenmity bond had not been
executed. Dooling was not a party to the
indemnity bond. The defendants in error
received no pecuniary consideration for their
act and were not notified of the acceptance
of their bond or of the execution of the other
by the company. The questions propounded
are: [24] "(1) Was the instrument
which was signed by Riefier and Hall, and
relied on by the company, a completed con-
tract of indemnity or guaranty? (2) Or
was it merely an offer to become indem-
nitors or guarantors, requiring notice of
acceptance by the company, in accordance
with Davis v. Wells, F. k Co. 104 U. a
159, 20 L. ed. 686, and Davis Sewing Mach.
Co. v. Richards, 115 U. S. 524, 29 L. ed.
480, 0 Sup. Ct. Rep. 1737 (3) And, if in sub-
stance the instrument was merely an offer,
does the fact that it was in the form of a
bond under seal take it out of the rule of
those authorities?"
If the bond in suit had been delivered di-
rectly to the company and had been pro-
nounced satisfactory there would have been
no need to notify Riefier and Hall of the
company's subsequently executing the Dool-
ing bond. Riefier and Hall assumed an
obligation in present words to indemnify
2^ U. 8.
1916.
8TEIKFELD v. ZECKENDORF.
24-20
the companj against an exactly identified
•uretyahip that the company had g^ne or
was about to go into, as they stated. The
company was about to go into it and went
into it. If Riefler and Hall had made only
a parol offer in the same terms, the com-
pany, by becoming surety, would have fur-
nished the consideration that would have
converted the offer into a contract; but no-
tice is held necessary in Davis Sewing Mach.
Co. V. Richards. If it had been a covenant,
the company's act would have satisfied the
condition upon which the covenant applied.
O'Brien t. Boland, 166 Mass. 481, 483, 44
N. £. 602. As it was a bond, the company's
altering into its undertaking in like man-
ner furnished the subject-matter to which
the obligation by its terms applied. In
the case of either covenant or bond there
WAS no need for notice that an event had
liappened that the defendants' contract con-
templated as sure to happen, if it had not
theady come to pass.
The only ground for hesitation is that
seemingly the bond in suit might have been
rejected by the company as unsatisfactory,
snd that therefore it may be argued [25]
that Riefler and Hall were entitled to notice
that it had been accepted. But we are of
opinion that, in the circumstances of this
case, it is reasonable to understand that
they took the risk. They were chargeable
with notice that by their act their bond had
come to the hands of the company. The
bond on its face contemplated that the com-
pany would accept it and act upon it at
once, and disclosed the precise extent of the
obligation assumed. It seems to us that
when such a bond, carrying, as a specialty
does, its complete obligation with the paper,
ii put by the obligors into the hands of the
obligee, and in fact is accepted by it, no-
tice is not necessary that a condition sub-
sequent to the delivery, by which the obligee
night have made it ineffectual, has not
been fulfilled. The contract is complete
without the notice (Butler's Case, 3 Coke,
25, 26b; Xenos v. Wickham, L. R. 2 H. L.
296, 36 L. J. C. P. N. S. 313, 16 L. T. N.
8. 800, 16 Week. Rep. 38, 13 £ng. Rul. Cas.
422; Pollock, Contr. 8th ed. 7, 8), and we
Me no commercial reason why the prin-
^ples ordinarily governing contracts under
<et] should not be applied (Bird v. Wash-
burn, 10 Pick. 223). In Davis T. Wells, F.
^ Ck). the guaranty was an open, continu-
^g one up to $10,000, but it was under seal,
^d was held binding, although additional
lessons were advanced.
We answer the first question: Yea.
Mr. Justice McKenna dissents.
•0 L. ed.
[26] ALBERT 8TEINFEIJ), R. K. Shel-
ton, J. N. Curtis, Silver Bell Copper Com-
pany, and Mammoth Copper Company,
Appts., and Plffs. in Err.,
V.
LOUIS ZECKENDORF and Hiram W.
Fenner, Receiver.
(See S. C. Reporter's ed. 26-31.)
Appeal ^ mode of review.
1. Writ of error is the only mode of re-
viewing in the Federal Supreme Court a
decree of the supreme court of the state
of Arizona which affirmed a decree of the
trial court, entered pursuant to the man-
date of the Federal Supreme Court, which
had previously reversed a decree in the
case on an appeal taken while Arizona was
still a territory, and had remanded the case
to the state court as successor of the ter-
ritorial court for such further proceedings
as might not be inconsistent with the opin-
ion of the Federal Supreme Court.
[For other cases, see Appeal and Error, II. b.
In Digest Sup. Ct. 1908.]
Appeal ^ mandate ^ compliance.
2. The only question open in the Fed-
eral Supreme Court when reviewing a judg-
ment entered pursuant to the mandate of
that court on a prior appeal which re-
manded the case "for such further proceed-
ings as may not be inconsistent with the
opinion of this court" is whether or not the
judgment below is inconsistent with such
opinion; and where it plainly is not, there
is no reason for disturbing the judgment.
[For other canes, see Appeal and Error, 5565-
6583, 6599-5604, In Digest Bop. Ct. 1908.]
[No. 239.]
Argued October 19, and 20, 1915.
November 1, 1915.
Decided
APPEAL from, and IN ERROR to, the
Supreme Court of the State of Arizona
to review a decree which, on a third ap-
peal, dismissed an appeal from a decree of
the Superior Court in and for Pima County,
in that state, entered pursuant to the man-
date of the Federal Supreme Court on a
former appeal. Appeal dismissed. Judg-
ment affirmed on writ of error.
See same case below, 15 Ariz. 335, 138
Pac. 1044.
The facts are stated in the opinion.
Messrs. James M. Beck and Francis J.
Heney argued the cause, and, with Mr.
Eugene S. Ives, filed a brief for appellants
and plaintiffs in error:
The jurisdiction of this court on the
former appeal was limited to the single
question of law. Do the findings of fact
support the judgment! And consequently
Note. — On distinction between appeal and
writ of error — see note to Miners' ^ank v.
Iowa, 13 L. ed. U. S. 867.
SUPREME COURT OF THE UNITED STATES.
Oct. Temm,
that was the subject-matter of the proceed-
ing here.
Zeckendorf v. Steinfeld, 225 U. S. 445, 56
L. ed. 1156, 32 Sup. Ct. Rep. 728; Eagle
Min. &. Improv. Co. ▼. Hamilton, 218 U.
S. 513, 54 L. ed. 1131, 31 Sup. Ct. Rep. 27;
Idaho k O. Land Improv. Co. v. Bradbury,
132 U. S. 513, 33 L. ed. 436, 10 Sup. Ct. Rep.
177.
This court, in the exercise of such appel-
late jurisdiction, cannot and will not supply,
by intendment or inference, any missing ma-
terial fact, even if there were sufficient evi-
dence or sufficient probative facts in the
findings, from which the lower court might
have inferred such missing material fact.
To do so would be to usurp the functions of
the trial court, whose indispensable duty it
is to make that inference of fact for itself.
This well-settled principle of law applies in
all classes of cases in which the appellate
jurisdiction of this court is limited by regu-
latory acts of Congress to questions of law
only. No distinction is made on account of
the nature or character of the case or of
the method by which it was tried in the
court of original jurisdiction, or of the
name applied to the procedure by which it
reached this court for review. The rule
applies alike to appeals from Federal courts
in admiralty cases ; to writs of error to Fed-
eral courts in common-law actions, whether
tried with or without a jury; and to ap-
peals from the court of claims; and to writs
of error to the highest appellate court of a
state; as well as to both appeals from and
writs of error to territorial supreme courts.
Sun Mut. Ins. Co. v. Ocean Ins. Co. 107
U. S. 485, 27 L. ed. 337, 1 Sup. Ct. Rep.
582; Burr v. Des Moines R. & Nav. Co. 1
Wall. 99, 17 L. ed. 561; Hecht v. Boughton,
105 U. S. 235, 20 L. ed. 1018; Lincohi v.
French, 105 U. S. 614, 26 L, ed. 1189;
French v. Edwards, 21 Wall. 147, 22 L.
ed. 534; Ex parte French, 01 U. S. 423, 23 L.
ed. 249 ; Ex parte Medway, 23 Wall. 504. 23
L. ed. 160; Dower v. Richards, 151 U. S. 659,
38 L. ed. 306, 14 Sup. Ct. Rep. 452, 17 Mor.
Min. Rep. 704; Wilson v. Merchants' Loan
& T. Co. 183 U. S. 121, 46 L. ed. 113, 22
Sup. Ct. Rep. 55; Raimond v. Terrebonne
Parish, 132 U. S. 192, 33 L. ed. 309, 16
Sup. Ct. Rep. 57; Lehnen v. Dickson, 148
U. S. 71, 37 L. ed. 373, 13 Sup. Ct. Rep.
481; Barnes v. Williams. 11 Wheat. 415,
6 L. ed. 508; Powers v. United States, 56
C. C. A. 128, 119 Fed. 563; The E. A. Pack-
er, 140 U. S. 360, 35 L. ed. 453, 11 Sup. Ct.
Rep. 794; Eagle Min. k Improv. Co. v.
Hamilton, 218 U. S. 513, 54 L. ed. 1131, 31
Sup. Ct. Rep. 27; Idaho & O. Land Improv.
Co. V. Bradford, 132 U. S. 613, 33 L. ed.
436, 10 Sup. Ct. Rep. 177.
The case of French v. Edwards, 21 Wall.
126
147, 22 L. ed. 534 (as construed by this
court in the case of Ex parte French, 91 U.
S. 423, 23 L. ed. 249), and the case of Ex
parte Medway, 23 Wall. 504, 23 L. ed. 160,
are on all fours with the case at bar.
The mandates of this court are to be in>
terpreted according to the subject-matter of
the proceeding here, and, if possible, so aa
not to cause injustice.
Wayne County v. Kennicott, 94 U. S.
499, 24 L. ed. 260.
Whenever a trial court fails to find any-
material fact by reason of a wrong theory
of the case, adopted either by itself or an
intermediate appellate court, the court of
last resort, if it reverses the judgment,
sliould direct or at least authorize a new
trial to prevent injustice to appellee or de-
fendant in error.
Kdmonston v. McLoud, 16 N. Y. 543;
Griffin v. Marquaidt, 17 N. Y. 28: Ball v.
Rankin, 23 Okla. 801, 101 Pac. 1105.
\Vhen an appellate court, on .the evidence
as it is presented in the record, or on find-
ings of fact which are conclusive upon it,
reverses, generally, the judgment of the
lower court, an appellee or defendant in
error is entitled as a matter of right to a
retrial of the case, and the mandate of thia
court should be interpreted accordingly.
Lincoln v. French, 105 U. S. 614. 20 L.
ed. 1189; Elliott, App. Proc. § 580; Talcott
V. Delta County Land & Cattle Co. 19 Colo.
App. 11, 73 Pac. 256; Falkner v. Hendy,
107 Cal. 49, 40 Pac. 21, 386; Stearnes v.
Afjuirre, 7 Cal. 443; Prentice v. Crane, 240
III. 238, 88 N. E. 654; Ryan v. Tomlinson,
39 Cal. 639.
Sliould the court, however, conclude that
its opinion and decision on the former ap-
peal must be interpreted as in effect as in-
struction to the trial court to enter judg-
ment against Steinfeld on the first cause of
action, then, nevertheless, that judgment is
erroneous, and is too large.
Re W^ashington & G. R. Co. 140 U. S. 92,
35 L. ed. 340, 11 Sup. Ct. Rep. 673 ; Himely
V. Rose, 5 Cranch, 313, 3 L. ed. Ill; Mc-
Mannomy v. Chicago, D, & \. R. Co. 167
111. 497, 47 N. E. 712.
Messrs. Edwin A. Meserve and Frank
H. Hereford argued the cause and filed a
brief for appellee and defendant in error
Louis Zeckendorf:
When a case has once been decided by
this court on appeal and remanded, what-
ever was before this court and disposed of
by its decree is considered as finally settled.
Re Potts, 166 U. S. 263-268, 41 L. ed.
994-996, 17 Sup. Ct. Rep. 520; Stewart v.
Salamon, 07 U. S. 361, 24 L. ed. 1044; The
Lady Pike (Pearce v. Germania Ins. Co.)
96 U. S. 461, 24 L. ed. 672; Re Sanford
289 U. 8.
191a.
8TEINFELD v. 2ECKEXD0RF.
Fork A Tool Co. 160 U. 8. 247. 40 L. ed.
414, 16 Sup. Ct. Rep. 291; Wayne County
▼. Kennicott, 94 U. 8. 499. 24 L. ed. 260;
Sherman v. Ward, 9 Arix. 327, 83 Pac. 356;
Snyder v. Pima County, 6 Ariz. 41, 58 Pac.
6; Humphrey ▼. Baker, 103 U. 8. 736, 26
L. ed. 456; Mackall v. Richards, 116 U. S.
45, 29 L. ed. 558, 6 Sup. Ct. Rep. 234;
Kingsbury v. Buckner, 134 U. 8. 671, 33
Lw ed. 1055, 10 Sup. Ct. Rep. 638; Gaines
T. Rugg (Gaines v. Caldwell) 148 U. 8.
228, 37 L. ed. 432, 13 Sup. Ct. Rep. 611;
Aspen Min. & Smelting Co. v. Billings, 150
U. S. 37, 37 L. ed. 988, 14 Sup. Ct. Rep.
4; United States v. New York Indians, 173
U. & 464, 43 L. ed. 769, 19 Sup. Ct. Rep.
487.
So conclusive are all matters, whether of
law or of fact, presented to this court and
decided by it on appeal, that it will not
permit even the vital question of jurisdic-
tion to be raised in a case after it has de-
cided it and by mandate sent it back to
the lower court.
Skillem v. May, 6 Cranch, 267, 3 L. ed.
220, first appeal, 4 Cranch, 137, 2 L. cd.
574; Gaines v. Rugg (Gaines v. Caldwell)
148 U. S. 228, 37 L. ed. 432, 13 Sup. Ct.
Rep. 611.
There was no intimation in the opinion of
this court in this case of an intention to
authorize or grant a new trial, or to au-
thorize in any other way the taking of new
testimony. Under similar circumstances
this court has repeatedly asserted that ap-
pellants have no such right.
Gaines v. Rugg, supra; 2 Enc. U. 8. Sup.
Ct. Rep. 412-415.
And even when this court remanded a
ease with instructions to grant a new trial,
it held that the lower court had no power
to consider at such new trial either law or
facts decided in the case by this honorable
court.
Wayne County v. Kennicott, 94 U. S. 498,
24 L. ed. 260.
If authority were needed to show that the
mandate in this case is not open to any such
construction as appellants attempt to place
upon it, we cite the language of the man-
date of this court on first appeals, and the
interpretation of that language by this
court on second appeals in the following
C. ft A. Potts ft Co. V. Creager, 155 U. 8.
597-610, 39 L. ed. 275-280, 15 Sup. Ct.
Rep. 194, 2d appeal, 166 U. S. 263, 41 L.
•d. 994, 17 Sup. Ct. Rep. 620; Stewart v.
Salamon, 94 U. 8. 434, 437, 24 L. ed. 276,
276. 2d appeal, 97 U. S. 361-365. 24 L. ed.
1044-1046; The Lady Pike, 21 Wall. 1-17,
22 L. ed. 499-504, 2d appeal, 96 U. 8. 461,
24 J^ ed. 672; Sanford Fork ft Tool Co. v.
Howe, B. ft Co. 157 U. S. 312, 39 L. ed. 713,
«0 L. ed.
, 15 Sup. Ct. Rep. 621, 2d appeal, 160 U. S.
247-259, 40 L. ed. 414-417, 16 Sup. Ct.
Rep. 291; Kennicott v. Wayne County, 16
Wall. 452-471, 21 L. ed. 319-322, 2d appeal,
94 U. 8. 499, 24 L. ed. 260; Camou v.
United States, 171 U. 8. 277, 43 L. ed. 163,
18 Sup. Ct. Rep. 855, 2d appeal, 184 U. 8.
572, 46 L. ed. 694, 22 Sup. Ct. Rep. 505.
There is no distinction between cases here
on appeal where the facts are presented by
findings in the nature of a special verdict
from those where the facts are brought up
by a full transcript of the evidence. In
support of this statement we cite the fol-
lowing cases coming up from territorial
courts and from the court of claims, in
which cases this court, after a consideration
of the case on appeal, upon the law and
facts of the case, has reversed the action of
the lower court, and instructed the lower
court to enter a final and definite judgment
upon the law and the facts:
Stringfellow v. Cain, 99 U. 8. 610, 25 L.
ed. 421 ; Ivinson v. Button, 98 U. 8. 79, 25
L. ed. GG ; First Xat. Bank v. Yankton Coim-
ty, 101 U. S. 129. 25 L. ed. 1046 ; TUton v.
Cofield. 93 U. S. 163, 23 L. ed. 858; Stoffela
V. Nugent, 217 U. S. 499. 54 L. ed. 856, 30
Sup. Ct. Hep. 600; Quinn v. United States.
99 U. 8. 30. 25 L. ed. 269; Union P. R.
Co. V. United States, 99 U. 8. 402. 25 L.
ed. 274; I nitod States v. Perryman. 100 U
8. 235. 25 L. ed. 645; United SUtes v.
Murray, 100 U. S. .536. 25 L. ed. 756; Unit-
ed SUtes V. Shewsbury. 90 U. S. 5U8. 23
L. ed. 78; United States v. Landers. 92
U. S. 77, 23 L. ed. 603; United Stotes v.
Diekelman. 92 U. 8. 520. 23 L. ed. 742;
Garfielde v. United States, 93 U. 8. 242, 23
L. edi 779; Lake Superior ft M. R. Co. v.
United States, 93 U. 8. 442, 23 L. ed. 965.
Mr. Sellm M. Franklin argued the
cause, and. with Mr. Edwin F. Jones, filed
a brief for appellee and defendant in error
Hiram W. Fenner:
As the state supreme court found that the
judgment of the superior court was in ac-
cordance with the mandate of this court,
and its own mandate, the appeal from that
judgment was properly dismissed.
Stewart v. Salamon, 97 U. 8. 361. 24 L.
ed. 1044; Humphrey v. Baker, 103 U. 8.
736. 26 L. ed. 456; Mackall v. Richards. 116
U. 8. 45. 29 L. ed. 658, 6 Sup. Ct. Rep. 234;
Kingsbury v. Buckner, 134 U. 8. 671. 33
L. ed. 1055. 10 Sup. Ct. Rep. 638; Gaines v.
Rugg (Gaines v. Caldwell) 148 U. 8. 228,
37 L. ed. 432. 13 Sup. Ct. Rep. 611 ; Aspen
Min. ft Smelting Co. v. Billings, 150 U. 8.
31-38, 37 L. ed. 986-989. 14 Sup. Ct. Rep.
4; United States v. New York Indians. 178
U. S. 464, 43 L. ed. 769. 19 Sup. Ct. Rep.
487.
The findings of fact of the territorial
197
28-30
SUPBJeafE COURT OF THE UNITED STATES.
Oct. TwaMf
court, made under the proYisions of this
act of CongresSy are concluaiYe upon this
court.
Bear Lake ft River Waterworks k Irrig.
Co. V. Garland, 164 U. S. 1, 19, 41 L. ed.
327, 334, 17 Sup. Ct. Rep. 7; Harrison v.
Perea, 168 U. S. 311, 42 L. ed. 478, 18 Sup.
Ct. Rep. 129; Eagle Min. k Improv. Co. v.
Hamilton, 218 U. S. 513, 54 L. ed. 1131, 31
Sup. Ct. Rep. 27 ; Oildersleeve v. New Mexi-
co Min. Co. 161 U. S. 573, 40 L. ed. 812, 16
Sup. Ct. Rep. 663; Haws v. Victoria Cop-
per Min. Co. 160 U. S. 303, 40 L. ed. 436,
16 Sup. Ct. Rep. 282; Idaho k 0. Land
Improv. Co. v. Bradbury, 132 U. S. 509, 33
L. ed. 433, 10 Sup. Ct. Rep. 177; Eilers v.
Boatman, 111 U. S. 356, 28 L. ed. 454, 4
Sup. Ct. Rep. 432, 15 Mor. Min. Rep. 471;
Zeckendorf v. Johnson, 123 U. S. 617, 31
L. ed. 277, 8 Sup. Ct. Rep. 261.
The findings of fact so made by the su-
preme court of the territory in accordance
with the act of Congress, being conclusive
on this honorable court, must necessarily
be conclusive on all of the courts subordi-
nate to this court.
A second appeal or writ of error in the
same' case only brings up for review the
proceedings of the trial court subsequent to
the mandate, and does not authorize a re-
consideration of any question either of law
or fact which was considered or determined
on the first appeal or writ of error.
Re Potts, 166 U. S. 263-268, 41 L. ed.
994-996, 17 Sup. Ct. Rep. 520; Re Sanford
Fork k Tool Co. 160 U. S. 247-269, 40
L. ed. 414-417, 16 Sup. Ct. Rep. 291; Haley
▼. Kilpatrick, 44 C. C. A. 102, 104 Fed. 647.
Mr. Justice Holmes delivered the opin-
ion of the court:
This case first came here by appeal from
the supreme court of Arizona while Arizona
was still a territory. Before the decision
by this court, Arizona became a state, and
the judgment, so far as now in controversy,
having been reversed, the case was remand-
ed "for such further proceedings as may
not be inconsistent with the opinion of this
court," — the formula usual in cases com-
ing from a state. 225 U. S. 445, 459, 56
L. ed. 1156, 1164, 32 Sup. Ct. Rep. 728.
The ground for the present attempt to re-
open the merits is that the state court has
misinterpreted the mandate that it received.
Martin v. Hunter, 1 Wheat. 304, 354, 4 L.
ed. 97, 109. See Julian v. Central Trust
Co. 193 U. S. 93, 48 L. ed. 629, 24 Sup. Ct.
Rep. 399.
The case is stated at length in the former
decision. All [29] that is necessary to ex-
plain the present question may be put in
shorter form. The suit was brought by Zeck-
endorf as a stockholder in the Silver BelP
J33
Mining Company to recover money alleged
to belong to the company and appropriated
by Steinfeld. There was a further cause of
action alleged, but that has been disposed
of. The money represents the proceeds of
the Silver Bell mine and a group of mines
adjoining the Silver Bell and purchased by
Steinfeld, it was assumed by the parties, as
trustee for the company. Steinfeld sold all
the mines for $515,000, $115,000 cash, $400,-
000 in notes for $100,000 each, and his ac-
tion was confirmed. At the time of the con-
veyance to the purchaser it was agreed by
a contract in writing that the purchase
price should belong to the Silver Bell Cop-
per Company, and in the same instrument
it was provided that the four notes should
be held by Steinfeld as trustee and as se-
curity against his personal obligations in
Ihe matter. Steinfeld received the cash
und the proceeds of the first two notes, paid
certain liabilities of the company, and de-
posited the residue, except $50,000 attached
in his hands, in the Bank of California in
his own name.
In December, 1903, Zeckendorf brought
a suit to restrain the turning over of the
deposited funds by the bank to Steinfeld,
and on December 26, 1903, a stockholders'
meeting was held at which all parties were
represented and a vote of rescission was
passed upon which the present question
arises. For Steinfeld it is argued that the
whole agreement was rescinded. The other
side contends that the rescission went only
to the clause giving Steinfeld a right to the
personal custody of the money. The di-
rectors, consisting of Steinfeld and his
creatures, although not understanding the
rescission to go beyond the indemnity
clause, passed a vote behind Zeckendorf 's
back under which the proceeds of the sale
were divided and one half given to Stein-
feld. After the judgment of this court,
the state court conceived itself bound by
the mandate to [30] enter judgment for the
plaintiff, and did so. It now is contended
on Steinfeld's part that he never has had
his day in court to present his case; for,
it is said, the territorial court simply ruled
as matter of law that the vote of rescission
rescinded the contract in ioto, and this
court, if it thought, as it did, that the rul-
ing was wrong, properly could do no more
than to send the case back for a finding of
fact as to the true purport of the vote. If
this should be done, Steinfeld alleges that
he has evidence that he wishes to present.
A court is not necessarily precluded from
construing a document because the con-
struction is affected by facts and eircum-
rttances not open to dispute. But the ques-
tion now is not whether this court was
right or wrong, but what it did. The man-
289 U. 8.
1B13.
MANILA. UJVESTUENT CO. i. TRAMMELL.
I. II
4ate iaaued within tLe memoi; of prearnt
mcmlierB of tUe court, and there is no doubt '
that the court below did what we intended
that it aliQuld. In the time of Edward I.,
Ueughatn interrupted ditcuuiou of the
EUt. Weattn. II., by uying, "We know it
better than you, for we made it." Nt glotex
feint U Slatut; novl U tavomt meaa dt
«iu». lar «ou* leg jcimet. Y. B. 33 Edw.
L Mirli. Rolla ed. 83. However it may be
H to a statute, the abjection seems reason-
able wlien applied to a mandate that hoi
beeu followed as it was meant, and the fol-
lowing words, among others, show clearly
.sough that we exprested our intent; "In
ear view the facts found ahow that . , .
the aubaeqnent attempt to rescind the action
bj whicli the proceeds of the sale of the
AigUsh group of mine! became the prop-
■rt; of the Silver Bell Company, and to
give the proceeds to Stcinfeld, must be held
for naught." 225 U. S. 4S0. It the terri-
tory bad not become a state, a Judgment
would have been ordered. The more re-
ttrred phrase was used by reason of the
diange, but with no change in what con-
•istency with our opinion was deemed to re-
We Bee no reason for Buppoaing that cases
were intended [31] to come to this court
from Arizona in otiier than the uaual form.
Therefore in any event tbia appeal would
have to be dismissed. To meet this poa-
aibility ■ writ of error was allowed at the
lait moment. We have considered the rec-
ord aa it made up under the writ. Uut.
apart from technical objections that have
been urged, the only question that would
b* open is whether the judgment below was
inconsiatent with the opinion of this court;
snd, aa it very plainly is not, there is no
reason for diaturbin<; it. Our mandate was
not concerned with the allowance of attor-
-Bcya' fees and some other matters that were
argued, Jind therefore they present no Fed.
4r»l queation and need not be considered.
Appeal diamiiaed.
Judgment affirmed.
Is presented by a bill which seeks to estab-
liah a trust iu real property upon th«
ground that the board of trustees of tb*
uternal improvement fund of florida, after
having eontraeted to convey the land in
question to complainants, afterward!, by
formal resolution, repudiated its former ao-
tion, refused to recognize the alleged truat,
declared complainants' title to be null and
void, and conveyed a part of the land to
otheTt, which action by such board aa an
agency of the state is asserted to amount to
a tabmg of complsinants' property without
due process of law, contrary to U. S. Const.,
14th Amend., since the allegations relied
upon to give iurisdiction show a breach of
contract merely, and bring the case within
the principles of prior decisions of the Fed-
eral Supreme Court.
[For other cases, Me Courts iB9-*U, In
Dlsest Bup. Ct. ISOS.)
[No. 250.J
MANILA INVESTMENT COMPANY et ■!.,
AppU.,
TASK TRAMUELL et a1., aa Truatees, etc.
(Bm S. a Reporter's ed. 31-33.)
Vederal oonrta — Jarladlctlon — trlTo-
lous Federal qaeatlon.
No real and substantial controversy
Involving the construction or etfect of the
Federal Constitution which would support
■Hm jnrisdietion of a Federal district court
•• If. ed.
APPEAL from the District Court of tha
United SUtes for the Southern Dis-
trict of Florida to review a decree whicli
dismissed, for want of Jurisdiction, the bill
in a suit to establish a truat in real prop*
erty. Affirmed.
Uessra N. B. K. PetUnglll and Arllitw
P. Odlln submitted the cause for appel-
lants:
It has often happened that jurisdiction
has been retained t« decide a doubtful Fed-
eral queation even when, upon full consid-
eration, complainant's rights have been de-
termined to be without the constitutional
protection claimed.
Field V. Barber Asphalt Paving Co. 1M
(J. 8. 618, 4B L. ed- 1142, 24 Sup. Ct. Rep.
784) Fayerweather v. Ritch, 195 U. 8. 276,
2S9, 49 L. ed. 193, 210, 25 Sup. Ct. Rep.
68; North American Cold Storage Co. v.
Chicago, 211 U. S. 306, 63 h. ed. 195, 211
Sup. Ct. Rep. 101, 15 Ann. Cas. 276) Siler
V. Louisville L N. B. Co. 213 U. 8. 176,
190, 53 I., ed. 753, 76T, 29 Sup. Ct. Rep.
451.
Whether or not, upon full consideration,
this court may decide appellants to be en-
titled to the protection of the "due-procew"
clause of the 14th Amendment, the denial
of the right to such protection should not
be affirmed without that full consideration.
Louisville ft N. R. Co. v. Melton, 218 U.
S. 3B, 49, 64 L. ed. 921, 926, 47 L.B.A.
(N.S.) 84, 30 Sup. Ct. Rep. 676. See also
Raymond v. Chicago Union Traction Co.
207 U. S. 20, 35. 52 L. ed. 78, 87, 28 Sup.
Ct Rep. T, 12 Ann. Cas. 767.
. The allegations of our bill bring the case
well within a long line of the decisions of
SUPREME COURT OF THE UNITED STATES.
Oor. TtMUp
iimflmr Action hy administrative boarda» or
other goremmental agencies, constitute a
wrong within the inhibiUon of the 14th
Amendment*
Citizens' Sar. ft L. Asso. t. Topekia, 20
WalL 666, 668, 22 L. ed. 456, 461; David-
ion ▼. New Orleans, 06 U. S. 07, 102, 24
L. ed. 616, 618; Cole t. LaGrange, 118 U.
a 1, 4, 28 L. ed. 806, 807, 6 Sup. Ct. Rep.
416; Comeliiis t. Kessel, 128 U. S. 466, 32
L. ed. 482, 0 Sup. Ct. Rep. 122; Pennoyer v.
McConnaughty, 140 U. S. 1, 36 L. ed. 363,
11 Sup. Ct Rep. 600; Noble v. Union River
Logging R. Co. 147 U. S. 166, 37 L. ed. 123,
13 Sup. Ct Rep. 271; Scott v. McNeal, 164
U. S. 34, 60, 38 L. ed. 806, 003, 14 Sup.
Ct Rep. 1108; Missouri P. R. Co. t. Ne-
braska, 164 U. S. 403, 417, 41 L. ed. 480,
406, 17 Sup. Ct Rep. 130; Chicago, B. k
Q. R. Co. T. Chicago^ 166 U. S. 226, 236,
41 L. ed. 070, 084, 17 Sup. Ct Rep. 681;
Delaware, L. ft W. R. Co. v. Pennsylvania,
108 U. S. 341, 368, 40 L. ed. 1077, 1083, 26
Sup. Ct Rep. 660; Raymond v. Chicago
Union Traction Co. 207 U. S. 20, 62 L. ed.
78, 28 Sup. Ct. Rep. 7, 12 Ann. Cas. 767;
Home Teleph. ft Teleg. Co. t. Los Angeles,
227 U. S. 278, 67 L. ed. 610, 33 Sup. Ct.
Rep. 312; Vicksburg Waterworks Co. v.
Vicksburg, 186 U. 8. 81, 46 L. ed. 815, 22
Sup. Ct Rep. 686; WalU Walla v. Walla
Walla Water Co. 172 U. S. 7, 43 L. ed. 341,
10 Sup. Ct Rep. 77.
Mr. Thomas F. West, Attorney General
of Florida, and Mr. B. J. L'Enf^Ie sub-
mitted the cause for appellees. Mr. P. H.
Odom was on the brief:
It is necessary that the bill should clearly
state and show that a Federal question is
actually involred. The mere suggestion
that such a question is involved or likely to
be involved is not sufficient. The bill must
state in positive language facts showing the
manner and connection in which the Fed-
eral question has arisen.
Western U. Teleg. Co. v. Ann Arbor R. Co.
178 U. S. 230, 44 L. ed. 1052, 20 Sup. Ct.
Rep. 867; Little York Gold-Washing ft
Water Co. v. Keyes, 06 U. S. 100, 24 L. ed.
656; Blackburn v. Portland Gold Min. Co.
176 U. S. 671, 44 L. ed. 276, 20 Sup. Ct
Rep. 222, 20 Mor. Min. Rep. 358; Lampasas
V. Bell, 180 U. S. 276, 46 L. ed. 527, 21 Sup.
Ct Rep. 368; Press Pub. Co. v. Monroe, 164
U. S. 106, 41 L. ed. 367, 17 Sup. Ct. Rep. 40;
Hanford v. Davies, 163 U. S. 273, 41 L. ed.
167, 16 Sup. Ct Rep. 1061; McCain v. Des
Moines, 174 U. S. 168, 43 L. ed. 036, 10 Sup.
Ct Rep. 644; Oregon Short Line ft U. N.
R. Co. V. Skottowe, 162 U. S. 400, 40 L. ed.
1048, 16 Sup. Ct. Rep. 860; Florida C. ft P.
R. Co. V. Bell, 176 U. S. 321, 44 L. ed. 486,
20 Sup. Ct. Rep. 300; 4 Enc U. 8. Sup.
Ct. Rep. 002, note 26.
130
The facts must clearly show the nature of
the suit, and it must plainly appear thait
the action arises under the Constitutioii^
laws, or treaties of the United Statea.
There must be a real and substantial dis-
pute as to the effect or construction of the
Constitution or of some treaty of the United
States upon which the determination of the
case depends.
McCain v. Des Moines, 174 U. S. 160, 4S
L. ed. 036, 10 Sup. Ct Rep. 644; Shrevepori
V. Cole, 120 U. S. 36, 32 L. ed. 680, 0 Sup.
Ct Rep. 210; New Orleans v. Benjamin, 16S
U. S. 411, 38 L. ed. 764, 14 Sup. Ct Rep.
006.
The mere averment that a question exists
under the Constitution of the United Statea
is not sufficient to give jurisdiction, where
the question is so wanting in merit as to
be frivolous or without any support what-
ever.
Farrell v. O'Brien (O'Callaghan t»
O'Brien) 100 U. S. 80, 60 L. ed. 101, 26
Sup. Ct Rep. 727.
The repudiation by a public officer of a
contract or grant, even if based upon the
unconstitutionality of a statute, as the bill
alleges, is not a denial of due process of
law within the purview of the Constitution.
All the rights of the appellants which have
existed still exist, and can be enforced in
any court of competent jurisdiction.
St. Paul Gaslight Co. v. St Paul, 181 U»
S. 142, 45 L. ed. 788, 21 Sup. Ct. Rep. 575 ;
Dawson v. Columbia Ave Sav. Fund, S. D.
Title ft T. Co. 107 U. S. 178, 49 L. ed. 713,.
25 Sup. Ct. Rep. 420; McCormick v. Okla-
homa City, 236 U. S. 657, 50 L. ed. 771»
35 Sup. Ct. Rep. 466 ; Ramapo Water Co. v.
New York, 236 U. S. 579, 69 L. ed. 731, 36
Drainage Co. v. Steams, 220 U. S. 462, 55
L. ed. 644, 31 Sup. Ct Rep. 462.
The mere violation of law by a state
agency is not a denial of due process of law.
Barney v. New York, 193 U. S. 430, 4a
L. ed. 737, 24 Sup. Ct. Rep. 502; Virginia
V. Rives, 100 U. S. 313, 26 L. ed. 667, S
Am. Crim. Rep. 624; Civil Righto Cases, 10»
U. S. 3, 27 L. ed. 836, 3 Sup. Ct. Rep. 18;
Missouri v. Dockery, 191 U. S. 166, 48 L.
ed. 133, 63 L.R.A. 671, 24 Sup. Ct. Rep. 53 ;
5 Enc. U. S. Sup. Ct Rep. 546, notes 4 and
6.
Memorandum opinion by Mr. Justice
Day, by direction of the court :
This case was begun in the district court
of the United States for tbe southern dis-
trict of Florida, upon a bill praying to have
the title to certoin lands decreed to be held
in trust for complainants by the board of
trustees of the internal improvement fund
of Florida, and to^ recover lands deeded to
others, but likewise held in trust for com-
230 U. S.
1916.
TRUAX V. RAICH.
82, U
plainanU. The court below dismissed the
biU for want of jurisdictioii.
An exAmination of the bill shows that the
ground of recovery rests upon the allegation
that the trustees contracted to convey the
lands in question to the complainants, and
afterwards, by formal resolution, the board
repudiated its former action, and refused to
recognize the alleged trust, and declared
the complainants' title null and void. Com-
plainants contend that this action by tne
trustees, as an agency of the state, in re-
pudiation of its former action, and the con-
vejance of part of the land to others, in
violation of the trust, constituted a taking
of its property without due process of law,
n violation of the provisions of the 14th
Amendment. This is the only ground of
Federal jurisdiction insisted upon.
The case presented no real and substan-
tial controversy involving the construction
or effect of the Federal Constitution. The
allegations relied upon to give jurisdiction
■how a breach of contract merely, and bring
the case within the principles decided by this
eourt in 8t. Paul Gaslight [33] Co. v. St.
Paul, 181 U. 8. 142, 45 L. ed. 788, 21 Sup.
Ct Rep. 575 ; Dawson v. Columbia Ave. Sav.
Fund, S. D. Title k T. Co. 197 U. 8. 178,
49 L. ed. 713, 25 Sup. Ct. Rep. 420; Shawnee
Sewerage Drainage Co. v. Steams, 220 U. 8.
462, 55 L. ed. 544, 31 Sup. Ct. Rep. 452;
McCormick v. Oklahoma City, 236 U. 8. 657,
59 L. ed. 771, 35 Sup. Ct. Rep. 455.
Affirmed.
WILLIAM TRUAX, Sb., Wiley E. Jones,
Attorney General of the State of Arizona,
and W. G. Gilmore, County Attorney of
Cochise County, Arizona, Appts.,
V.
MIKE RAICH.
(See 8. C. Reporter's ed. 33-44.)
States — imniiuitty from suit — suit
acAinst state officers.
1. A suit by an alien to restrain the
tttomey general and county attorney from
enforcing to his injury the Arizona anti-
alien labor law of December 14, 1914, which
he asserts is repugnant to the Federal Con-
stitution, cannot be regarded at a laii
against the state.
[For other cases, see States, IX. c, 2, In Di-
gest Sup. Ct. 1908.]
Injanction — restraining crimliial pro*
ceedinga.
2. Equity has jurisdiction to restrain
the criminal prosecution of an employer un«
der the Arizona anti-alien labor law of De-
cember 14, 1914, at the instance of an allien
employee who' aillegea that the act vioUtea
the Federal Constitution and that its en-
forcement will result in his immediate dia-'
charge from employment, although such em«
ployment may be one at will, irather than
for a term.
[For other cases, see Injunction, I. d» la Di-
gest Sop. Ct. 1908.]
Constitutional law — equal protection
of the laws — discrimination agalnat
aliens — classification.
3. The discrimination against aliens
lawfully resident in the state, which is pro-
duced by the provisions of Aria, act of De-
cember 14, 1914, that every employer of
more than five workers at any one time»
"regardless of kind or class of work or sex
of workers shall employ not less than 80
per cent qualified electors or native-born
citizens of the United States or some sub-
division thereof," renders the statute in-
valid under U. 8. Const., 14th Amend., as
denying the equal protection of the laws,
and such statute cannot be justified as an
exercise of the power of the state to make
reasonable classifications in legislating to
promote the health, safety, morals, and
welfare of those within its jurisdiction.
[For other cases, see Constitutlonnl Law, lY.
a, 2, b, In Digest Sup. Ct. 1908.]
[No. 361.]
Argued October 15, 1915. Decided Novem-
ber 1, 1915.
APPEAL from the District Court of the
United States for the District of Ari-
zona to review a decree enjoining the en-
forcement . of the Arixona anti-alien labor
law. Affirmed.
See same case below, 219 Fed. 273.
The facte are stated in the opinion,
Mr. licslle C. Hardy and Mr. Wiley F.
Jones, Attorney General of Arizona, argued
Note. — Generally, on suits against a state
see notes to Murdock Parlor Grate Co.
V. Com. 8 L.R.A. 399; Carr v. State, 11
L.RJi. 370; Beers v. Arkansas, 15 L. ed.
U. 8. 991 ; and Hans ▼. Louisiana, 33 L. ed.
U. & 842.
On suits against state officers as suits
sgainst a state — see notes to Sanders v.
Saxton, 1 IaILA.(N.S.) 727; Ex parte
Young, 13 L.R.A.(N.S.) 932; Louisville k
N. R. Co. V. Burr, 44 L.R.A.(N.S.) 189;
and Beers v. Arkansas, 15 L. ed. U. 8. 991^
As to injunction to restrain acts of public
•9 li. ed.
officers — see note to Mississippi v. Johnson,
18 L. ed. U. 8. 487.
On injunction against criminal proceed-
ings— see notes to Crighto v. Dahmer, 21
L.R.A. 84; Hall v. Ihinn, 25 L.RJ^.(N.8.)
193; and Denton v. McDonald, 34 L.EJL
(N.S.) 454.
As to power of state, under the 14th
Amendment to the United States Constitu-
tion, to deny to aliens the right to engage
in a lawful oocupation— see notes to Com.
V. Hana, 11 L.RJ^.(N.8.) 799; People v.
Crane, L.RJL1916D» 569.
181
36
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
the cause, and, with Messrs. George W.
Harben, J. Addison Hicks, and W. B. Cleary,
filed a brief for appellants:
The servant cannot complain for the mas-
ter of a threatened injury to the latter by
public officers of the state of Arizona, and to
this extent an injunction against the insti-
tution of criminal proceedings against the
master at the instance of the servant is con-
trary to the powers of a court of equity.
McCabe v. Atchison, T. A S. F. R. Co.
235 U. S. 151, 60 L. ed. 160, 35 Sup. Ct
Rep. 60; Davis & F. Mfg. Co. v. Los An-
geles, 180 U. S. 207, 47 L. ed. 778, 23 Sup.
Ct. Rep. 408.
The law in question is a valid exercise
of the police power of the state because it
is a law enacted to preserve the safety and
welfare of the state and its citizens.
Patsone v. Pennsylvania, 232 U. S. 138,
58 L. ed. 530, 34 Sup. Ct. Rep. 281; Greer
V. Connecticut, 161 U. S. 510, 40 L. ed. 703,
16 Sup. Ct. Rep. 600; Blythe v. Hinckley,
180 U. S. 333, 45 L. ed. 557, 21 Sup. Ct.
Rep. 300; McCready v. Virginia, 04 U. S.
301, 24 L. ed. 248'; United States v. Cruik-
shank, 02 U. S. 542, 23 L. ed. 588; Noble
State Bank v. Haskell, 210 U. S. 104, 55
L. ed. 112, 32 L.R.A.(N.S.) 1062, 31 Sup.
Ct. Rep. 186, Ann. Cas. 1012A, 487; Noble
State Bank v. Haskell, 210 U. S. 575, 55
h. ed. 341, 32 L.RJ^.(N.S.) 1065, 31 Sup.
Ct. Rep. 200.
Mr. Alexander Britton argued the
cause, and, with Messrs. Evans Browne and
Francis W. Clements, filed a brief for ap-
pellee :
The 14th Amendment to the Constitution
of the United States is not confined to the
protection of citizens of the United States,
but is universal in its application to all
citizens within the territorial jurisdiction
without regard to any difference of race,
color, or nationality, and the promise of
equal protection of the law is equivalent to
the pledge of the protection of equal laws.
Yick Wo V. Hopkins, 118 U. S. 356-360,
30 L. ed. 220-226, 6 Sup. Ct. Rep. 1064;
Barbier v. Connolly, 113 U. S. 27, 31, 28
L. ed. 023, 024, 5 Sup. Ct. Rep. 357; Mis-
souri V. Lewis (Bowman v. Lewis) 101 U.
S. 22, 25 L. ed. 080.
It is equally true that among the rights
so guaranteed to resident aliens, as well as
citizens, is that of freely contracting to ren-
der service and perform labor, and to fol-
low any ordinary lawful vocation. No im-
pediment should be interposed to these
rights of everyone, except such as are ap-
plied to the same pursuits by others imder
like circumstances and conditions.
People V. Williams. 180 N. Y. 131, 12
L.R.A.(N.S.) 1130, 121 Am. St. Rep. 854,
81 N. E. 778, 12 Ann. Cas. 708; Lochner v.
132
New York, 108 U. S. 45, 40 L. ed. 037, 25
Sup. Ct. Rep. 530, 3 Ann. Cas. 1133,
Butcher's Union S. H. & L. S. L. Co. v.
Crescent City L. S. L. k S. H. Co. Ill U. S.
746-762, 28 L. ed. 585-588, 4 Sup. Ct. Rep.
652; Allgeyer v. Louisiana, 165 U. S. 578,
41 L. ed. 832, 17 Sup. Ct Rep. 427 ; Powell
v. Pennsylvania, 127 U. S. 678-684, 32 L.
ed. 253-250, 8 Sup. Ct. Rep. 002, 1257;
Slaughter-House Cases, 16 Wall. 36, 21 L.
ed. 304; Coppage v. Kansas, 236 U. S. 1, 59
L. ed. 441, L.KA.1015C, 960, 35 Sup. Ct.
Rep. 240. i
The law of Arizona contravenes the 14th
Amendment to the Constitution of the Unit-
ed States, and is not a proper exercise of
the police power of the state.
People y. Crane^ 165 App. Div. 440, 150
N. Y. Supp. 033; Henderson v. New York
(Henderson v. Wickham) 92 U. S. 259, 23
L. ed. 543.
This is not necessarily a suit in equity
to enjoin a criminal proceeding, but in any
event it is fully justified in order to prevent
the invasion of the rights of property of
appellee by the enforcement of an unconsti-
tutional law, the enforcement of which
works a direct injury and irreparable harm
to him.
Re Sawyer, 124 U. S. 200, 31 L. ed. 402, 8
Sup. Ct. Rep. 482; Reagan v. Farmers'
Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014,
4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep.
1047; Ex parte Young, 200 U. S. 123, 52
L. ed. 714, 13 L.R.A.(N.S.) 032, 28 Sup. Ct.
Rep. 441, 14 Ann. Cas. 764; McCabe y.
Atchison, T. & S. F. R. Co. 235 U. S. 151,
50 L. ed. 160, 35 Sup. Ct. Rep. 60; Re
Tiburcio Parrott, 6 Sawy. 340, 1 Fed. 481;
Cummings v. Missouri, 4 Wall. 320, 18 L.
ed. 362; Chy Lung y. Freeman, 02 U. S.
275, 23 L. ed. 550.
Mr. Justice Haghes delivered the opin-
ion of the court:
Under the initiative provision of the Con-
stitution of Arizona (art. 4, § 1) there was
adopted the following measure which was
proclaimed by the governor as a law of the
state on December 14, 1014:
An Act to Protect the Citizens of the
United States in Their Employment
against Noncitizens of the United States,
in Arizona, and to Provide Penalties and
Punishment for the Violation Thereof.
Be it enacted by the People of the State
of Arizona:
Section 1. Any company, corporation,
partnership, association or individual who
is, or may hereafter become an employer
of more than five (5) workers at any one
time, in the state of Arizona, regardless of
239 U. S.
1915.
TRUAX ▼. RAICH.
36-37
kind or class of work, or sex of workers,
■hall employ not less than eighty (80) per
cent qualitied electors or native-born citi-
lens of the United States or some subdi-
Tiiion thereof.
Sec. 2. Any company, corporation, part-
nership, association or individual, their
igent or agents, found guilty of violating
iny of the provisions of this act shall be
guilty of a misdemeanor, and, upon convic-
tion thereof, shall be subject to a fine of
Bot less than one hundred ($100) dollars,
tnd imprisoned for not less than thirty
(80) days.
Sec. 3. Any employee who shall misrepre-
lent, or make false statement, as to his or
her nativity or citizenship, sliaU, upon con-
viction thereof, be subject to a fine of not
ktt than one hundred ($100) dollars, and
imprisoned for not less than thirty (30)
dijs. Laws of Arizona, 1915. Initiative
Measure, p. 12. %
[36] Mike Raich (the appellee), a native
of Austria, and an inhabitant of the state of
Arizona, but not a qualified elector, was em-
ployed as a cook by the appellant William
Truax, Sr., in his restaurant in the city of
Bisbee, Cochise county. Truax had nine em-
ployees, of whom seven were neither "native
bom citizens" of the United States nor quali-
fied electors. After the election at which
the act was passed Raich was informed
by his employer that when the law was
proclaimed, and solely by reason of its re-
quirements and because of the fear of the
penalties that would be incurred in case of
its violation, he would be discharged.
Thereupon, on December 15, 1014, Raich
filed this bill in the district court of the
United States for the district of Arizona,
asserting, among other things, that the act
denied to him the equal protection of the
laws and hence was contrary to the 14th
Amendment of the Constitution of the
United States. Wiley E. Jones, the attor-
ney general of the state, and W. O. Gilmore,
the county attorney of Cochise county, were
made defendants in addition to the employ-
er Truax, upon the allegation that these
officers would prosecute the employer unless
be complied with its terms, and that in or-
4er to avoid such a prosecution the employ-
er Was about to discharge the complainant,
^▼erring that there was no adequate remedy
at law, the bill sought a decree declaring
the act to ba unconstitutional and restrain-
^g action thereunder.
Soon after the bill was filed, an applica-
tion was made for an injunction pendente
lite. After notice of this application, Truax
was arrested for a violation of the act, Vip-
on a complaint prepared by one of the as-
sistants in the office of the county attorn^ '
•0 L. ed.
of Cochise county, and aa it appeared that
by reason of the determination of the of-
ficers to enforce the act there was danger
of the complainant's immediate discharge
from employment, the district judge granted
a temporary restraining order.
The allegations of the bill were not contro-
verted. The [37] defendants joined in a
motion to dismiss upon the grounds (1)
that the suit was against the state of Ari-
zona without its consent; (2) that it was
sought to enjoin the enforcement of a crimi-
nal statute; (3) that the bill did not state
facts sufficient to constitute a cause of ac-
tion in equity; and (4) that there was an
improper joinder of parties, and the plaintiff
was not entitled to sue for the relief asked.
The application for an interlocutory in-
junction and the motion to dismiss were
then heard before three judges, as required
by g 266 of the Judicial Code [36 SUt. at
L. 1162, chap. 231, Comp. Stat. 1013, §
1243]. The motion to dismiss was denied
and an interlocutory injunction restraining
the defendants, the attorney general and
the county attorney, and their successors
and assistants, from enforcing the act
against the defendant Truax, was granted.
210 Fed. 273. This direct appeal has been
taken.
As the bill is framed upon the theory
that the act is unconstitutional, and that
the defendants, who are public officers con-
cerned with the enforcement of the laws of
the state, are about to proceed wrongfully
to the complainant's injury through inter-
ference with his employment, it is estab-
lished that the suit cannot be regarded as
one against the state. Whatever doubt exist-
ed in this class of cases was removed by the
decision in Ex parte Young, 209 U. S. 123,
166, 161, 62 L. ed. 714, 727, 720, 13 L.R«A.
(N.S.) 932, 28 Sup. Ct Rep. 441, 14 Ann.
Cas. 764, which has repeatedly been fol-
lowed. Ludwig V. Western U. Teleg. Co.
216 U. S. 146, 64 L. ed. 423, 30 Sup. Ct.
Rep. 280; Western U. Teleg. Co. v. Andrews,
216 U. S. 166, 64 L. ed. 430, 30 Sup. Ct.
Rep. 286; Herndon v. Chicago, R. I. & P. R.
Co. 218 U. S. 136, 165, 64 L. ed. 970, 976,
30 Sup. Ct. Rep. 633; Hopkins v. Clemson
Agri. College, 221 U. S. 636, 643-646, 55 L.
ed. 890, 894, 896, 36 L.R.A.(N.S.) 243, 31
Sup. Ct. Rep. 664 ; Philadelphia Co. v. Stim-
son, 223 U. S. 607, 620, 66 L. ed. 572, 676,.
32 Sup. Ct. Rep. 340; Home Teleph. &
Teleg. Co. v. Los Angeles, 227 U. S. 278, 293,
67 L. ed. 610, 517, 33 Sup. Ct. Rep. 312.
It is also settled that while a court of
equity, generally speaking, has "no jurisdic-
tion over the prosecution, the punishment,
or the pardon of crimes or misdemeanors"
(Re Sawyer, 124 U. S. 200, 210, 31 L. ed.
402, 405, 8 Sup. Ct. Rep. 482), a distinction
1S&
S7-40
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbic»
obtains, and equitable jurisdiction exists
to restrain criminal prosecutions [38] under
unconstitutional enactments, when the pre-
vention of such prosecutions is essential to
the safeguarding of rights of property. Da-
vis k F. Mfg. Co. y. Los Angeles, 189 U. S.
207, 218, 47 L. ed. 778, 780, 23 Sup. Ct.
Rep. 408; Dobbins v. Los Angeles, 105 U.
8. 223, 241, 49 L. ed. 160, 177, 25 Sup. Ct.
Rep. 18; Ex parte Young, supra; Phila-
delphia Co. V. Stimson, 223 U. S. 621, 56
L. ed. 577, 32 Sup. Ct. Rep. 340. The right
to earn a livelihood and to continue in em-
ployment unmolested by efforts to enforce
void enactments should similarly be entitled
to protection in the absence of adequate
remedy at law. It is said that the bill does
not show an employment for a term, and
that under an employment at will the com-
plainant could be discharged at any time,
for any reason or for no reason, the motive
of the employer being immaterial. The
conclusion, however, that is sought to be
drawn, is too broad. The fact that the
employment is at the will of the parties,
respectively, does not make it one at the
will of others. The employee has manifest
interest in the freedom of th<i employer to
exercise his judgment without illegal in-
terference or compulsion and, by the weight
of authority, the unjustified interference of
third persons is actionable although the
employment is at will. Moran v. Dunphy,
177 Mass. 485, 487, 52 L.R.A. 115, 83 Am.
St. Rep. 280, 50 N. E. 125; Berry v. Dono-
van, 188 Mass. 353, 5 L.R.A.(N.S.) 800,
108 Am. St. Rep. 400, 74 N. E. 603, 3 Ann.
Cas. 738; Brennan v. United Hatters, 73
N. J. L. 720, 743, 0 L.RA..(N.S.) 254, 118
Am. St. Rep. 727, 65 Atl. 165, 0 Ann. Cas.
608; Perkins v. Pendleton, 00 Me. 166, 60
Am. St. Rep. 252, 38 Atl. 06; Lucke v.
Clothing Cutters* & T. Assembly, 77 Md.
306, 10 L.RJ^. 408, 30 Am. St. Rep. 421,
26 Atl. 505; London Guarantee k Acci. Co.
V. Horn, 101 HI. App. 355, 206 111. 403, 00
Am. St. Rep. 185, 60 N. E. 526; Chipley v.
Atkinson, 23 Fla. 206, 11 Am. St. Rep. 367,
1 So. 034; Blumenthal v. Shaw, 23 C. C. A.
500, 30 U. S. App. 400, 77 Fed. 054. It
is further urged that the complainant can-
not sue save to redress his own grievance
(McCabe v. Atchison, T. ft S. F. R. Co. 235
U. S. 151, 162, 50 L. ed. 160, 174, 35 Sup.
Ct. Rep. 60) ; that is, that the servant
cannot complain for the master, and that
it is the master who is subject to prosecu-
tion, and not the complainant. But the
act undertakes to operate directly upon the
employment of aliens, and if enforced would
compel the employer to discharge a sufficient
number of his employees to bring the
[30] alien quota within the prescribed limit.
It sufficiently appears that the discharge
184
of the complainant will be sc^ely for the
purpose of meeting the requirements of the
act and avoiding threatened prosecution
under its provisions. It is, therefore, idle
to call the injury indirect or remote. It is
also entirely clear that unless the enforce-
ment of the act is restrained the complain-
ant will have no adequate remedy, and hence
we think that the case falls within the class
in which, if the unconstitutionality of the
act is shown, equitable relief may be had.
The question, then, is whether the act
assailed is repugnant to the 14th Amend-
ment. Upon the allegations of the bill, it
must be assumed that the complainant, a
native of Austria, has been admitted to
the United states under the Federal law.
He was thus admitted with the privilege
of entering and abiding in the United States,
and hence of entering and abiding in any
state in the Union. (See Gcj^iow v. Uhl,
decided Octobfr 25, 1015 [230 U. S. 3, ante,
114, 36 Sup. Ct. Rep. 2].) Being lawfully
an inhabitant of Arizona, the complainant
is entitled under the 14th Amendment to
the equal protection of its laws. The de-
scription, *'any person within its jurisdic-
tion/' as it has frequently been held, in-
cludes aliens. **These provisions/' said the
court in Yick Wo v. Hopkins, 118 U. S.
350, 360, 30 L. ed. 220, 220, 6 Sup. Ct. Rep.
1064 (referring to the due process and
equal protection clauses of the Amendment),
"are universal in their application, to all
persons within the territorial jurisdiction,
without regard to any ditTcrenccs of race,
of color, or of nationality; and the equal
protection of the laws is a pledge of the
protection of equal laws." See also Wong
Wing V. United States, 103 U. S. 228, 242,
41 L. ed. 140, 145, 16 Sup. Ct. Rep. 077;
United States v. Wong ICim Ark, 160 U.
S. 640, 605, 42 L. ed. 800, 007, 18 Sup. Ct.
Rep. 456. The discrimination defined by
the act does not pertain to the regulation
or distribution of the public domain, or
of the common property or resources of
the people of the state, the enjoyment of
which may be limited to its citizens as
against [40] both aliens and the citizens of
other states. Thus in McCready v. Vir-
ginia, 04 U. S. 301, 306, 24 L. ed. 248, 240,
the restriction to the citizens of Virginia
of the right to plant oysters in one of its
rivers was sustained upon the ground that
the regulation related to the common prop-
erty of the citizens of the state, and an
analogous principle was involved in Patsone
V. Pennsylvania, 232 U. S. 138, 145, 146,
58 L. ed. 530, 544, 34 Sup. Ct. Rep. 281,
where the discrimination against aliens
upheld by the court had for its object the
protection of wild game within the states,
with respect to which it was said that the
239 U. S.
1915.
TRUAX T RAICH.
4(M2
«tate could exercise its presenring power for
the benefit of its own citizeDS if it pleased.
The case now presented is not within these
decisions, or within those relating to the
devolution of real property (Hauenstein v.
Lynham, 100 U. S. 483, 25 L. ed. G28;
Bljthe V. Hinckley, 180 U. S. 333. 341,
342, 43 L. ed. 557, 562, 663, 21 Sup. Ct.
Rep. 300) ; and it should be added that
the act is not limited to persons who are
engaged on public work or receive the bene-
fit of public moneys. The discrimination
here involved is imposed upon the conduct
«f ordinary private enterprise.
The act, it will be observed, provides that
«very employer (whether corporation, part-
Bersliip, or individual) who empioyv'more
than five workers at any one time, "regard-
less of kind or class of work, or sex of
workers," shall employ "not less than 80 per
cent qualified electors or native-born citi-
zens of -the United States or^some subdi-
vision thereof." It thus covers the entire
field of industry with the exception of en-
terprisos tliat are relatively very small.
Its application in the present case is to em-
ployment in a restaurant the business of
which requires nine employees. The pur-
pose of an act must be found in its natural
operation and effect (Henderson ▼. New
York [Henderson ▼. Wickham] 92 U. 8.
259, 268, 23 L. ed. 543, 547 ; Bailey v. Ala-
bama, 2] 9 U. S. 219, 244, 55 L. ed. 191, 202,
31 Sup. Ct. Rep. 145), and the purpose of
this act is not only plainly shown by its
provisions, but it is frankly revealed in its
title. It is there described as ''an act to
protect tlie citizens of the United States in
their employment against noncitizens [41]
of the Unitetl States, in Arizona." As the
appellants rightly say, there has been no
subterfuge. It is an act aimed at the em-
ployment of aliens, as such, in the busi-
nesses described. Literally, its terms might
be taken to include with aliens those nat-
uralized citizens who, by reason of change
of residence, might not be at the time
qualified electors in any subdivision of tlie
United States; but we are dealing with the
Bain purpose of the statute, definitely
stated, in the execution of which the com-
plainant is to be forced out of his employ-
ment as a cook in a restaurant, simply be-
eanse he is an alien.
It is sought to justify this act as an exer-
cise of the power of the state to make rea-
sonable classifications in legislating to
promote the health, safety, morals, and wel-
fare of those within its jurisdiction. Bat
this admitted authority, with the broad
range of legislative discretion that it im-
plies, does not go so far as to make it pos-
sible for the state to deny to lawful
inhabitants, because of their race or nation-
•0 L. ed.
ality, the ordinary means of earning a live-
lihood. It requires no argument to show
that the right to work for a living in the
common occupations of the community is
of the very essence of the personal freedom
and opportunity that it was the purpose of
the Amendment to secure. Butchers' Union
S. H. & L. S. L. Go. V. Crescent City L. S. L.
& S. H. Co. Ill U. S. 746, 762, 28 L. ed. 685,
588, 4 Sup. Ct. Rep. 652; Barbier v. Connol-
ly, 113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup.
Ct. Rep. 357; Yick Wo v. Hopkins, supra;
Allgeyer v. Louisiana, 165 U. S. 578, 589,
590, 41 L. ed. 832, 835, 836, 17 Sup. Ct.
Rep. 427; Coppage v. Kansas, 236 U. S. 1,
14, 59 L. ed. 441, L.R.A.1915C, 960, 35 Sup.
Ct. R^p. 240. If this could be refused
solely upon the ground of race or nation-
ality, the prohibition of the denial to avy
person of the equal protection of the laws
would be a barren form of words. It is no
answer to say, as it is argued, that the
act proceeds upon the assumption that "the
employment of aliens; unless restrained, was
a peril to the public welfare." The dis-
crimination against aliens in the wide range
of employments to which the act relates
is made an end in itself, and thus the au-
thority to deny to aliens, upon the mere
[42] fact of their alienage, the right to ob-
tain support in the ordinary fields of labor,
is necessarily involved. It must also be said
that reasonable classification implies ac-
tion consistent with the legitimate interests
of the state, and it will not be disputed that
these cannot be so broadly conceived as to
bring them into hostility to exclusive Fed-
eral power. The authority to control im-
migration— to admit or exclude aliens — is
vested solely in the Federal government.
Fong Yue Ting v. United States, 149 U. S.
698, 713. 37 L. ed. 905, 913, 13 Sup. Ct.
Rep. 1016. The assertion of an au-
thority to deny to aliens the opportunity
of earning a livelihood when lawfully ad-
mitted to the state would be tantamount to
the assertion of the right to deny them en-
trance and abode, for in ordinary cases they
cannot live where they cannot work. And,
if such a policy were permissible, the prac-
tical result would be that those lawfully
admitted to the country under the au-
thority of the acts of Congress, instead of
enjoying in a substantial sense and in their
full scope the privileges conferred by the
admission, would be segregated in such of
the stat^ as chose to offer hospitality.
It is insisted that the act should be sup-
ported because it is not "a total depriva-
tion of the right of the alien to labor;" that
is, the restriction is limited to those busi-
p esses in which more than five workers are
l^aployed, and to the ratio fixed. It is em-
ia5
42-44
SUPREME CX)URT OF THE UNITED STATES.
Oct. TkBX^
phasized that the employer in any line of
business who employs more than five work-
ers may employ aliens to the extent of 20
per cent of his employees. But the fallacy
of this argument at once appears. If the
state is at liberty to treat the employment
of aliens as in itself a peril, requiring re-
straint regardless of kind or class of work,
it cannot be denied that the authority ex-
ists to make its measures to that end ef-
fective. Otis V. Parker, 187 U. S. 606, 47
L. ed. 323, 23 Sup. Ct. Rep. 168; New York
ex rel. Silz v. Hesterberg, 211 U. S. 31, 53
L. ed. 75, 20 Sup. Ct. Rep. 10; Purity Ex-
tract & Tonic Co. V. Lynch, 226 U. S. 102,
57 L. cd. 184, 33 Sup. Ct. Rep. 44. If the
restriction to 20 per cent now imposed is
maintainable, the state undoubtedly has
the power, if it sees fit, to make the percent-
age [43] less. We have nothing before us
to justify the limitation to 20 per cent save
the judgment expressed in the enactment,
and if that is suflicient, it is difficult to see
why the apprehension and conviction thus
evidenced would not be sufficient were the
restriction extended so as to permit only
10 per cent of the employees to be aliens,
or even a less percentage; or were it made
applicable to all businesses in which more
than three workers were employed instead
of applying to those employing more than
five. We have frequently said that the leg-
islature may recognize degrees of evil and
adapt its legislation accordingly (Consoli-
dated Coal Co. V. Illinois, 185 U. S. 203,
207, 46 L. ed. 872, 875, 22 Sup. Ct Rep.
616; McLean t. Arkansas, 211 U. S. 539,
551, 53 L. ed. 315, 321, 29 Sup. Ct. Rep.
206; Miller v. Wilson, 236 U. S. 373, 384, 59
L. ed. 628, 632, 35 Sup. Ct. Rep. 342) ; but
underlying the classification is the author-
ity to deal with that at which the legisla-
tion is aimed. The restriction now sought
to be sustained is such as to suggest no
limit to the state's power of excluding
aliens from employment if the principle
underlying the prohibition of the act is
conceded. No special public interest with
respect to any particular business is shown
that could possibly be deemed to support
the enactment, for, as we have said, it re-
lates to every sort. The discrimination is
against aliens as such in competition with
citizens in the described range of enter-
prises, and in our opinion it clearly falls
under the condemnation of the fundamental
law.
The question of rights under treaties was
not expressly presenwd by the bill, and,
although mentioned in the argument, does
not require attention, in view of the in-
1S«
validity of the act under the 14th Amend-
ment.
Order affirmed.
Mr. Justice Mclteynolds, dissenting:
I am unable to agree with the opinion of
the majority of the court. It seems to me
plain that this is a suit against [44] a
state, to which the 11th Amendment declares-
"the judicial power of the United Statea
shall not be construed to extend." Fitta v.
McGhee, 172 U. S. 516, 43 L. ed. 535, 1»
Sup. Ct. Rep. 260. If Ex parte Young, 20<^
U. S. 123, 52 L. ed. 714, 13 L.R.A.(NJ3.) 932„
28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764, and
the cases following it support the doctrine
that Federal courts may enjoin the enforce-
ment of criminal statutes enacted by state
legislatures whenever the enjoyment of some
constitutional right happens to be threat-
ened with temporary interruption, thej
should be overruled in that regard. The
simple, direct language of the Amendment
ou^t to be given effect, not refined away
That the challenged act is invalid I think
admits of no serious doubt.
RIO GRANDE WESTERN RAILWAY
COMPANY, Plff. in Err.,
▼.
THOMAS B. STRINGHAM et al.
(See S. C. Reporter's ed. 44-48.)
Error to state court » flnal Judgment*
1. A judgment of the highest state
court, which reversed a judgment below in
favor of defendants in a suit by a railway
company to quiet title to a strip of land
claimed and used by it as a right of way
under the act of March 3, 1875 (18 Stat,
at L. 482, chap. 152, Comp. Stat. 1913,.
§ 4021), and to which defendants asserted
title under a patent to a placer mining
claim, and remanded the cause with a di-
rection to "enter a judgment awarding to
the plaintiff title to a right of way over
the lands in question 300 feet wide on each
side of the center of the track," is a final
judgment within the meaning of the Judi-
cial Code, § 237, governing writs of error
Note. — As to when judgment sought to
be reviewed in Federal Supreme Court is
that of highest state court — see note to
Norfolk & S. Turnp. Co. v. Virginia, 56
L. ed. U. S. 1082.
As to what judgments or decrees are
final for purposes of review — see notes to
Gibbons v. Ogdcn, 5 L. ed. U. S. 302, and
Schlosser v. Hemphill, 49 L. ed. U. S. 1001.
As to land grants to railroads generally
— sec note to Kansas P. R. Co. v. Atchison,
T. & S. F. R. Co. 28 L. ed. U. S. 794.
280 U. S.
1915.
RIO GRANDE WESTERN R. CX). t. STRINGHAM.
45-47
from the Federal Supreme Court to state
courts.
(For other caseff. see Appenl and Error, I.
d. 24. iu Digest Sap. Ct. 1908.]
Error to state court — > decision of Fed-
er.'^l question.
2. A decision of the highest state court,
which, on a second appeal, aiiirmed the
judgment below on the ground tliat its
former decision was t]ie law of the case,
ii not reviewable in the Federal Supreme
Court, where the Federal question relied
upon to confer jurisdiction was involved
IB the first decision, and that decision was
final, in the sense of the Judicial Code,
I 237, governing writs of error to state
courts.
[For other cases, see Appeal and Error, 1465-
1528, In Disest Sup. Ct. 1908.;)
Public lands » railway land grant »
right of way.
3. Neither a mere easement nor a fee
ample absolute, but a limited fee, made on
an implied condition of reverter in the event
that the railway company ceases to use or
retain the land for the jpurpose for which
it is granted, carrying with it the incidents
and remedies usually attending the fee, —
ii what was granted by the railway right-
of-way act of March 8, 1875 (18 Stat, at L.
482, chap. 152, Comp. Stat. 1013, § 4921),
which grants to a railway company com-
plying with its requirements *'a ri|?ht of
way," and declares that "all such lands over
which such right of way shall pass shall be
disposed of subject to such right of way."
[For other cases, see Pnbllc Lands. 820-329.
In Digest Sop. Ct. 1908.]
[Nos. 4 and 5.]
Submitted October 19, 1915. Decided Ko-
vember 1, 1916.
1}C ERROR to the Supreme Court of the
State of Utah to review a decree which
reversed a decree of the District Court of
Salt Lake County, in that state, in favor
of defendants in a suit to quiet title, and
remanded the ease with a direction to enter
a judgment for plaintiff. Affirmed. Also
IN ERROR to the Supr<ane Court of the
State of Utah to review a decree which,
on a second appeal, affirmed a decree of the
District Court of Salt Lake County, in that
state, in favor of plaintiff in the same suit.
Dismissed for want of jurisdiction.
See same case below. No. 4, 38 Utah, 113,
110 Pac. 868; No. 5, 39 Utah, 236, 115 Pac.
W.
The facta are stated in the opinion.
Messrs. Waldeniar Van Cott, B. M.
AlUsoiif Jr.» and William D. Ritar sub-
mitted the cause for plaintiff in error.
No appearance for defendants in error.
Mr. Justice Tan Devanter delivered the
opinion of the court:
This was a suit to quiet the title to a
•t L. ed.
strip of land claimed and used by the plain-
tiff as a railroad right of way under the
act of March 3, 1875, chap. 152, 18 Stat,
at L. 482, Comp. Stat. 1913, § 4921, and to
which the defendants asserted title under
a patent for a placer mining claim. At the
trial the facts were specially found and
judgment for the defendants was entered
upon the findings. In reviewing that judg-
ment, the supreme [46] court of the state,
accepting the findings below, held that the
plaintiff, in virtue of proceedings had in
the Land Department under the right-of-
way act while the land was yet public, ac-
quired a right of way 200 feet wide through
the lands afterwards embraced in the min-
ing claim, and that the defendants' title
under the placer patent was subject to this
right of way, and tliereupon reversed the
judgment and remanded the case with a
direction to "enter a judgment awarding to
the plaintiff title to a right of way over
the lands in question 100 feet wide on each
side of the center of the track." -38 Utah,
113, 110 Pac. 868. Acting upon this direc-
tion, the trial court vacated its prior judg-
meat and entered another, adjudging the
plaintiff to be "the owner of a right of way*'
through the mining claim 100 feet wide on
each side of the center line of the railroad,
declaring the plaintiff's title to such right
of way good and valid, and enjoining the
defendants from asserting any claim what-
ever to the premises, or any part thereof,
adverse to the plaintiff's "said right of
way." The plaintiff again appealed, insist-
ing that it was only adjudged to be the
owner of a right of way when, according to
the true effect of the right-of-way act, it
had a title in fee simple, as was asserted
in its complaint. But the judgment was
affirmed, the court saying (39 Utah, 230,
115 Pac. 967 ) :
"If counsel for appellant thought that
this court, in the prior opinion, did not cor-
rectly define and determine the extent of
appellant's rights to the land in dispute, or
did not fully safeguard its rights as defined
and adjudged, they should have filed a
petition for a rehearing. This they did not
do. The conclusions of law and judgment
having been drawn and entered in conform-
ity with the decision of this court, we are
precluded from further considering the case.
The former decision became, and is, the
law of the case, and this court, as well aa
the litigants, are bound thereby."
[47] Being in doubt which of the judg-
ments of the appellate court should be
brought here for review to present properly
the question respecting the nature of its
title, the plaintiff concluded to bring up
both, each by a separate writ of error.
Manifestly the first judgment was final
1S7
47-49 6UPREME COURT OF THE UNITED STATES. Oct. Tebk,
HENRY BRIGGS, Appt.,
V.
UNITED SHOE MACHINERY COMPANY.
within the meaning of Judicial Code, 9 237
[36 Stat, at L. 1156, chap. 231, Comp. Stat.
1013, S 1214]. It disposed of the whole
ease on the merits, directed what judgment
should be entered, and left nothing to the (See S. C. Reporter's ed. 48-50.)
judicial discretion of the trial court. Tip-
r^S'^Qor"*/ \' ^l'"^ p ^i \ T\ll ^^«~> «>"^ - J«H«dictlon - suit
L. ed. 822; Bostwick v. Brmkerhoff, 106 arising under patent laws.
U. S. 3, 27 L. ed. 73, 1 Sup. Ct Rep. 16; a suit does not arise under the pat-
Mower V. Fletcher, 114 U. S. 127, 29 L. ed. ent laws of the United States so as to be
117, 6 Sup. Ct. Rep. 799; Chesapeake & P. justiciable by a Federal district court, where
Teleph. Co. ▼. Manning, 186 U. S. 238, 46 the dominant and ultimate object of the
L. ed. 1144, 22 Sup. Ct. Rep. 881. And as ^'^^ >«^ *<> enforce payment of royalties
the question sought to be presented arises reserved to the plamtiff by a contract where-
upon the first judgment,-it being final in ?L JnH^^LJ^JLuff^ f*"^ "t^-" ^''"*'
Au « Q ooT 'i. • f i.1- i. XI. '"8> *^*1 contemplated patents for improve-
the sense of § 237, -it is apparent that the „|„t8 in machinery, and, in order to clear
writ of error addressed to the second judg- the way for a recovery of all the royalties
ment presents nothing reviewable here. See claimecl, it seeks the annulment of a
Northern P. R. Co. v. Ellis, 144 U. S. 458, patent for such an improvement issued aft-
86 L. ed. 504, 12 Sup. Ct. Rep. 724; Great er the contract and then assigned to the
Western Teleg. Co. v. Burnham, 162 U. S. defendant, and also an adjudication that
839, 40 L. ed. 991, 16 Sup. Ct. Rep. 850 ; ***® plaintiff is entitled to a patent for the
Chesapeake & 0. R. Co. v. McCabe, 213 U. S. rpLTfl^^r "n.^7*I!f r Jn!!Sf\!?^2a . ™
^^f Ai^ «A T J mi»m **«« «#* ci -nx l'*^' Other cases, see Courts, 553-569, in Dl-
207, 214, 53 L. ed. 765, 768, 29 Sup. Ct. gest Sup. Ct. 1908.]
Rep. 430.
What the act relied upon grants to a r^^ g«g ^
railroad company complying with its re-
quirements is spoken of throughout the act
as a "right of way;" and by way of quali- Submitted October 12, 1915. Decided No-
fying future disposals of lands to which vember 1 1915.
such a right has attached, the act declares
that "all such lands over which such right
of way shall pass shall be disposed of sub- A PPEAL from the District Court of the
ject to such right of way." -^ United States for the Southern Dis-
The right of way granted by this and trict of New York to review a decree dis-
similar acts is neither a mere easement, nor missing, for want of jurisdiction, a suit to
a fee simple absolute, but a limited fee, enforce the payment of patent royalties
made on an implied condition of reverter in under contract. Affirmed,
the event that the company ceases to use ^r. William A. MllUken submitted the
or retain the land for the purposes for cause for appellant,
which it is granted, and carries with it the
incidents and remedies usually attending the Mr. Horace A. Dodge submitted the
fee. New Mexico v. United States Trust cause for appellee. Mr. Alex. D. Salinger
Co. 172 U. S. 171, 183, 43 L. ed. 407, 411, was on the brief.
19 Sup. Ct. Rep. 128; Northern P. R. Co.
TnZTrr^.^^2 ^- ^ ^p ' ^l.\^'^^..'i Memorandum opinion by Mr. Justice Van
1044, 1046 23 Sup. Ct. Rep 671; United Levanter, by di^ction of the court:
? !? I'm^^'iiT' o\ ^«^- V^^' ^^^A^ Whether this suit between citizens of the
WpiSi™ TT ' tIw' cl ^% ?'^ -^'p' •a™^^ »tate is one arising under the patent
Western U. Teleg. Co. ▼. Pennsylvania R. , . *. i .-^ ^.^««4.«^ k« ^i,;.
Co. 196 U. 8. 5«. 670, 49 L. ed 312. 323. 1^%" *••* ""'" 1"*'^T^^-?Tr^f I ^Va
25 Sup. Ct. Rep. 133, 1 Ann. Ca.. 617. [48 f l'%\ "PPf, ™*lV •^"1'"*' ^?^''J ^^'
The judgment under review doee not in ^?/*?*- '* ^^- "i[' 'j'-T- f ' ^^ ! t
word. K, characterize the pUintiff's right, ^^^^' « ^-^^l. The district court j^ve a
nor was it emential that it should do M. It n^gat'/e answer to the question, and dis-
describes the right in the exact terms of the '^'^^ ^^^ *"" '°'" **"* °l jurisdiction.
right-of-way act, and evidently uses those ^he bill shows that its dominant and u -
terms with th« same meaning they have in t'°»»te object is to enforce payment of royal-
the act So interpreting the judgment, as ««■ reserved to the plaintiff by a contract
plainty must be done, we think it accords whereby he sold to the defendant certain
to the pUintiff all to which it is entitled existing and contemplated patents for im-
under the act. provements in shoe-sewing machines, and
In No. 4, judgment affirmed. that to clear the way for a recovery of all
In No. 6,- writ of error dismissed. the royalties claimed it seeks the annulment
Its 239 U. S.
1915.
PENNSYLVANIA CO. v. DONAT.
49, 50
of a patent for tuch an improvement issued
to Andrew Eppler after the contract, and
then assigned to the defendant, and also an
adjudication that the plaintiff is entitled to
a patent for the improvement covered by
the Eppler patent.
A suit for royalties reserved upon the
sale of a patent right is not a suit arising
under the patent laws. This is settled by
repeated decisions. Albright v. Teas, lOG
U. S. 613, 27 L. ed. 296, 1 Sup. Ct. Rep.
550; Excelsior Wooden Pipe Ck>. v. Pacific
Bridge Co. 1S5 U. S. 282, 285, 46 L. ed. 91D,
22 Sup. Ct. Rep. 681; Geneva Furniture
Mfg. Co. V. Karpen, 238 U. S. 254, 259, 59
L. ed. 1295, 1297, 35 Sup. Ct Rep. 788, and
cases cited.
While the patent laws (Rev. Stat. S§ 4915,
4918, Comp. SUt. 1913, §§ 94G0, 9403) per-
mit an applicant for a patent whose appli-
cation has been refused by the Commissioner
of Patents, or by the court of appeals ^ of
the District of Columbia upon appeal from
the Commissioner, to establish his right to
receive a patent by a suit in equity, and
also permit a patentee to maintain a suit in
equity a^^ainst the owner of an interfering
[50] patent to annul the latter, the pres-
ent bill falls so far short of presenting a
case witliin either section that it reasonably
cannot be said to invoke the application of
either. Recognizing that this is so, counsel
for the plaintiff, in his brief, not only frank-
ly concedes that he finds no statute in point,
but endeavors to maintain the jurisdiction
of the district court by a reference to the
general powers of Federal courts when sit-
ting as courts of equity; evidently forget-
ting that such powers can be exerted only
in cases otherwise within the jurisdiction
of those courts as defined by Congress.
Some stress is laid in the brief upon por-
tions of the bill charging fraud in the pro-
curement of the Eppler patent, but aa only
the United States can maintain a bill to
annul the patent on that ground (Mowry
T. Whitney, 14 WaU. 434, 20 L. ed. 858;
United States v. American Bell Teleph. Co.
128 U. S. 315, 368, 32 L. ed. 450, 462, 9
Sup. Ct. Rep. 90; United States v. American
BeU Teleph. Co. 159 U. S. 548, 555, 40 L.
ed. 255, 258, 16 Sup. Ct. Rep. 69) these
allegations cannot affect the solution of the
question of jurisdiction here presented.
Our conclusion is that this is not a suit
arising under the patent laws.
Decree affirmed.
1 See § 9, act Feb. 9, 1893, chap. 74, 27
Stat at L. 434, Comp. SUt. 1913, § 9456.
«0 L. ed.
PENNSYLVANIA COMPANY, PUT. in Err.,
MARION DONAT.
(See S. C. Reporter's ed. 50-52.)
Appeal » affirmance on motion » friv-
olous contention.
The contention that a railway yard
conductor, injured while occupied in the
removal of two empt^ cars from a private
switch track to permit the switching there-
on of two loaded coal cars which had come
from without the state, consigned to the
owner of such track, was, as a matter of
law, not engaged at the time in interstate
commerce, is so frivolous as to require an
affirmance on motion of a judgment of a
circuit court of appeals approving the ac-
tion of the trial court in submitting the
question to the jury, where the submission
of such question is the sole error asserted.
[For otlier cnse». «ee App*»nl and Error, VII.
g, in Digest Sup. Ct. 1908.]
[No. 564.]
Submitted October 18, 1915. Decided No-
vember 1, 1915.
IN ERROR to the United States CircuH
Court of Appeals for the Seventh Cir-
cuit to review a judgment which affirmed
a judgment of the District Court for In-
diana in favor of plaintiff in an action un-
der the Federal employers' liability act.
Affirmed.
See same case below, 139 C. C. A. 665,
224 Fed. 1021.
Messrs. Samuel O. Pickens and Fred-
eric D. McKenney submitted the cause
for plaintiff in error. Messrs. Elmer E.
Leonard, James H. Rose, and Fred E. Zol-
lars were on the brief :
The facts developed in this case clearly
show that at the time of the injury to the
defendant in error he was not engaged in
interstate commerce.
United States v. Western k A. R. Co. 184
Fed. 336; Atchison, T. k S. F. R. Co. v.
United States, 117 C. C. A. 341, 198 Fed.
637; United States v. New York C. & H. R.
R. Co. 205 Fed. 428; Illinois C. R. Co. v.
Behrens, 233 U. S. 473, 58 L. ed. 1051, 34
Sup. Ct. Rep. 646, Ann. Cas. 1914C, 163.
Messrs. Rufus S. Day, Samuel Her-
rlck, R. B. Newcomb, and James B.
Ifarper submitted the cause for defendant
in error. Messrs. A. G. Newcomb, E. C.
Chapman, George M. Skiles, Thomas J.
Note. — On the constitutionality, applica-
tion, and effect of the Federal employers*
liability act — ^see notes to Lamphere v. Ore-
gon R. t Nav. Co. 47 L.RJ^.(NJ3.) 38; and
Seaboard Air Line R. Co. ▼• Horton, hJRjL.
1915C, 47.
tZ9
51, 52
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Green, Roscoe C. Skiles, mnd Otto E. -Fuel-
ber were on the brief:
There was little evidence, if any, which
even indirectly tended to show that the
plaintiff was not engaged in interstate com-
merce when he was injured, and the court
was entirely fair with the defendant when
he allowed the jury to decide the question.
New York C. A H. R. R. Co. v. Carr, 238
U. S. 260, 50 L. ed. 1208, 35 Sup. Ct. Rep.
780, 0 N. C. C. A. 1 ; St. Louis, S. F. & T. R.
Co. V. Seale, 220 U. S 156, 162, 57 L. ed.
1120, 33 Sup. Ct. Rep. 651, Ann. Cas. 1014C,
156; North Carolina R. Co. v. Zachary, 232
U. S. 248, 58 L. ed. 501, 34 Sup. Ct. Rep.
305, Ann. Cas. 1014C, 150; Seaboard Air
Line R. Co. v. Moore, 228 U. S. 433, 57 L.
ed. 007, 33 Sup. Ct. Rep. 580.
Memorandum opinion by Mr. Justice Mc-
Reynolds, by direction of the court:
The question presented upon this writ of
error is "so frivolous as not to need further
argument," and the motion to aflirm the
judgment below must be granted. (Rule 6,
§5.)
Basing his claim upon the employers' lia-
bility act of April 22, 1008 (35 Stat, at
L. 65, chap. 140, Comp. Stat. 1013, § 8657),
Marion Donat began the original action in
the United States district court for Indiana
against the Pennsylvania Company, a car-
rier by railroad, to recover damages for
personal injuries alleged to have been suf-
fered by him while employed as a yard con-
ductor. The trial court refused a request
to charge that he was not engaged in inter-
state commerce when the accident occurred,
and therefore could not recover. [52] This
refusal is the sole ground upon which error
is now asserted.
Two loaded coal cars coming from with-
out the state were received in the carrier's
yard at Fort Wayne, Indiana. They were
destined to Olds' private switch track con-
necting with the yard; and, acting under
instructions, Donat commenced the switch-
ing movement requisite to place them there-
on. There was evidence tending to show
that, in order to complete this movement,
it became necessary to uncouple the engine
from the loaded cars and with it to remove
two empty ones from the private track.
While engaged about the removal, defendant
in error was injured. The trial court sub-
mitted to the jury for determination wheth-
er he was engaged in interstate commerce
at the time of the injury, and in approving
such action (130 C. C. A. 665, 224 Fed.
1021 ) the circuit court of appeals was clear-
ly right. New York C. A H. R. R. Co. v.
Carr, 238 U. S. 260, 262, 263, 50 L. ed.
1208, 1200, 1300, 35 Sup. Ct. Rep. 780, 0 N.
V/. V/. Am JL*
Affirmed.
CHICAGO, ROCK ISLAND, & PACIFIC
RAILWAY COMPANY, Plff. in Err.,
V.
JOHN F. DEVINE, as Administrator of the
Estate of William J. Mason, Deceased.
(See S. C. Reporter's ed. 52-54.)
Error to state court ^ Federal qaestioD
^ employers' liablHty.
1. Federal questions which will give
jurisdiction to toe Federal Supreme Court
of a writ of error to a state court in
a case arising under the Federal employers'^
liability act of April 22, 1008 (35 SUt. at
L. 65, chap. 140, Comp. SUt. 1013, § 8657 )»
are presented by contentions that the trial
court erred in refusing to instruct a verdict
on the ground that there was no evidence
tending to show either negligence or that
the carrier or the deceased at the time of
the particular transaction from which the
injury arose was engaged in interstate com-
merce, and in further refusing to instruct
the jury that a state statute limiting the
amount of recovery was controlling.
[For other cases, see Appeal nnd Error, 17ol-
1707, in DIgrest Sup. Ct. 1008.)
Error to state court ^ dismissal on mo*
tion.
2. A writ of error from the Federal
Supreme Court to a state court will not be
dismissed on motion where the Federal ques-
tions involved are not wholly frivolous.
[For other cases, see Api>e»l Hnd Error, VII,
i. 2. in DlROBt Sup. Ct. 1008.]
Error to state court ^ alflmiancc on
motion ^ lack of merit In Federal
question.
3. The contention on a writ of error to
McfE. — On the general subject of writs oi
error from the United States Supreme Court
to state courts — see notes to Martin v.
Hunter, 4 L. ed. U. S. 07; Ilainblin v.
Western Land Co. 37 L. ed. U. S. 267; Ke
Buchanan, 30 L. ed. U. S. 884, and Kipley
V. Illinois, 42 L. ed. U. S. 008.
On what adjudications of state courts can
be brought up for review in the Supreme
Court ot the United States by writ of error
to those courts — see note to Apex Transp.
Co. v. Garbade, 62 L.R.A. 513.
On how and when questions must be
raised and decided in a state court in order
to make a case for a writ of error from the
Supreme Court of the United States — see
note to Mutual L. Ins. Co. v. McGrew, 6&
On what the record must show respect-
ing the presentation and decision of a Fed-
eral question in order to confer jurisdic-
tion on the Supreme Court of the United
States on writ of error to a state court-
see note to Hooker v. Los Angeles, 63 L.K.A.
471.
As to the necessity of color of merit in
Federal question to sustain writ of error
to state court — see note to Oflield v. New
York, N. H. & H. R. Co. 51 L. cd. U. S.
231.
On the constitutionality, aiplication, and
effect of the Federal employers' liability act
— see notes to Lamphere v. Oregon R. &
Nav. Co. 47 L.R.A.(N.S.) 38, and Seaboard
Air Line R. Co. L.R.A.1015C, 47.
239 U. S»
1915.
CHICAGO, R. I. ft P. R. CO. v. DEVIKE
a state court in a case ariaine under the em-
plovers' liability act of April 22, 1908 (35
but. at L. Go, chap. 149, Comp. Stat. 1913,
I 8657), that the trial court should have
instnictcd a verdict in favor of the railway
company, on the ground that there was no
evidence tending to show either negligence
or that the company or the deceased at the
time of the particular transaction from
which the injury arose was engaged in in-
terstate commerce, — la too lacking in sub>
stance to prevent the grantins of a motion
to afUrm, where what is really involved is
a mere dispute concerning the weight of
conflicting tendencies of proof.
(For othpr canes, see "Apneal and Error, VII.
K. in Digest Sap. Ct. 1908.]
Error to state court — afflrmanoe on
motion — lack of merit in Federal
question.
4. The want of merit in the contention
that a state statute limiting the amount
of recovery is controlling in a suit arising
under the Federal employers' liability act
of April 22, 3908 (35 Stat, at L. 65, chap.
149, Comp. Stat. 1913, § 8657), ia so well
cstablislifd by previous decisions of the
Federal Supreme Court concerning the ex-
clusive operation and effect of that statute
over the subject with which it deals that the
presence of such question in the case will
not prevent the Federal Supreme Court from
granting a motion to affirm the judgment
OD a writ of error to a state court.
[For other cases, see Appeal and Error, VII.
g, in Dlffest Sup. Ct. 1908.]
[No. 391.]
Submitted October 25, 1916. Decided No-
vember 8, 1915.
IN ERROR to the Supreme Court of the
State of niinoia to review a judj^ment
which affirmed a judgment of the Illinois
Appellate Court, affirming a judgment of the
Circuit Court of Cook County, in that state,
in favor of plaintiff in an action under the
Federal employers' liablity act. Affirmed.
See same case below, 266 111. 248, 107 N.
E. 505.
Messrs. Thomas P. lilttlepage and M.
Tu Bell submitted the cause for plaintiff in
error:
A Federal right has been denied as a
result of a finding of fact which is without
anpport in the evidence.
Southern P. Co. v. Schuyler, 227 U. S.
601, 611, 57 L. ed. 662, 669, 4 L.RJ^.(N.S.)
901, 33 Sup. Ct. Rep. 277.
The claim that defendant in error did not
show that at the time of the accident de-
ceased was employed in interstate commerce
ia a question which can now be reviewed.
North Carolina R. Co. v. Zachary, 232 U.
8. 248, 257, 58 L. ed. 591, 595, 34 Sup. Ct.
Rep. 305, Ann. Caa. 1914C, 159; St. Louis,
I. M. & S. R. Co. T. McWhirter, 229 U. S.
265, 275, 277, 57 U ed. 1179, 1185, 1186,
•0 L. ed.
33 Sup. Ct. Rep. 858; Seaboard Air Line R.
Co. V. Padgett, 236 U. S. 668, 673, 59 L.
ed. 777, 781, 35 Sup. Ct. Rep. 481; Cen-
tral Vermont R. Co. v. White, 238 U. S.
507, 509, 59 L. ed. 1433, 1435, 35 Sup. Ct.
Rep. 865, 9 N. C. C. A. 265.
Even if, according to the Illinois proced-
ure, the claim had not been properly raised
prior to the time the supreme court was
reached, the fact that the supreme court in
its decision considered and passed upon the
question shows that it was raised for the
purpose of this court's ccmsideration on a
writ of error.
North Carolina R. Co. v. Zachary, 232
U. S. 257, 58 L. ed. 595, 34 Sup. Ct. Rep.
305, Ann. Caa. 1914C, 159.
There was power in Congress to regulate
the relations between a common carrier and
its employee only when by so doing it was
at the same time making valid regulations
as to interstate commerce.
Second Employers' Liability Cases (Mon-
dou V. New York, N. H. ft H. R. Co.) 223 U.
S. 1, 48, 56 L. ed. 327, 345, 38 L.ItA.(N.S.)
44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875.
The state has power to regi^ate all the
relations between master and servant, even
though both are engaged in interstate com-
merce, until Congress acts with reference
to some particular relation.
Missouri P. R. Co. v. Castle, 224 U. S.
541, 544, 56 L. ed. 875, 878, 32 Sup. Ct.
Rep. 606.
We claimed in the trial court, in the ap-
pellate court, and in the supreme court that
under the proper construction of the Federal
employers' liability act the judgment should
not have been for a greater sum than $10,-
000, which claim was denied. Such a ques-
tion ia subject to review on this writ of
error.
St. Louis, I. M. ft S. R. Co. v. McWhirter,
229 U. S. 265, 275, 57 L. ed. 1179, 1185, 33
Sup. Ct. Rep. 858; St. Louis, I. M. ft S.
R. Co. V. Taylor, 210 U. S. 281, 52 L. ed.
1061, 28 Sup. Ct. Rep. 616, 21 Am. Neg.
Rep. 464; Seaboard Air Line R. Co. v. Hor-
ton, 233 U. S. 492, 499, 58 L. ed. 10.62, 1068,
LJI.A.1915C, 1, 34 Sup. Ct. Rep. 635, 8 N.
C. C. A. 834, Ann. Caa. 1915B, 475.
The finding of negligence on the part of
plaintiff in error ia without support in the
evidence. Such a claim involves a Federal
question reviewable in this court.
Central Vermont R. Co. v. White, 238 U.
S. .507, 509, 59 L. ed. 1433, 1435, 35 Sup.
Ct. Rep. 865, 9 N. C. C. A. 265; St. Louis,
1. M. ft S. R. Co. V. McWhirter, 229 U. S.
265, 277, 281, 57 L. ed. 1179, 1186, 1187,
33 Sup Ct. Rep. 858.
Mr. James O. McSIianc submitted the
cause for defendant in error:
The Federal act covers the entire subject
141
53-65
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tbbk»
as to the amount of damages recoverable in
such cases, and it follows that it supersedes
the state act in that regard.
Michigan C. R. Co. v. Vreeland, 227 U.
S. 69, 67 L. ed. 417, 33 Sup. Ct. Rep. 102,
Ann. Cas. 1014C, 176; Missouri, K. & T. R.
Co. V. Wulf, 226 U. S. 670, 67 L. ed. 366,
33 Sup. Ct. Rep. 136, Ann. Cas. 1914B, 134;
St. Louis, S..F. k T. R. Co. v. Scale, 220 U.
S. 168, 67 L. ed. 1133, 33 Sup. Ct. Rep. 661,
Ann. Cas. 1014C, 166; St. Louis, I. M. &
S. R. Co. V. Hesterly, 228 U. S. 703, 57 L.
ed. 1033, 33 Sup. Ct. Rep. 703; Thombro
V. Kansas City, M. k O. R. Co. 01 Kan. 684,
130 Pac. 410, Ann. Cas. 1016D, 314; Illi-
nois C. R. Co. V. Doherty, 163 Ky. 363, 47
L.R.A.(N.S.) 31, 166 S. W. 1110; Louisville
& N. R. Co. V. Stewart, 167 Ky. 642, 163
S. W. 766 ; Chesapeake & O. R. Co. v. Dwyer,
167 Ky. 600, 163 S. W. 762.
A question of fact decided on by a jury in
a state court cannot be re-examined by the
Supreme Court of the United States upon
writ of error.
3 Foster, Fed. Pr. 6th ed. p. 2306; Mis-
souri, K. & T. R. Co. V. Haber, 160 U. S.
613, 42 L. •d. 878, 18 Sup. Ct. Rep. 488;
Southern R. Co. v. Carson, 104 U. S. 136-
140, 48 L. ed. 007-010, 24 Sup. Ct. Rep. 600.
Counsel will no doubt concede, as they
did in the state court, that if there was
one or more cars, either loaded or empty,
in deceased's train, which was then being
moved upon an interstate journey, deceased
was necessarily employed in interstate com-
merce within the meaning of the act.
See St. Louis, S. F. k T. R. Co. v. Scale,
220 U. S. 167, 57 L. ed. 1133, 33 Sup. Ct.
Rep. 661, Ahn. Cas. 1014C, 156; Seaboard
Air Line R. Co. v. Moore, 228 U. S. 433, 67
L. ed. 007, 33 Sup. Ct. Rep. 680; Johnson
V. Great Northern R. Co. 102 C. C. A. 80,
178 Fed. 643; North Carolina R. Co. v.
Zachary, 232 U. S. 248, 68 L. ed. 601, 34
Sup. Ct. Rep. 305, Ann. Cas. 1014C, 160.
Memorandum opinion by Mr. Chief Jus-
tice White, by direction of the court:
The recovery under the employers' liabil-
ity act in the trial court, affirmed by the
intermediate and supreme court, was for
the damage caused by the death of Mason
through the negligence of the defendant
company. 266 111. 248, 107 N. E. 605. [54]
Two propositions are relied upon for re-
versal : first, a refusal to instruct a verdict
on the ground that there was no evidence
tending to show either negligence or that the
company or the deceased at the time of the
particular transaction from which the in-
jury arose was engaged^in interstate com-
merce; and second, a further refusal to in-
struct that a state statute limiting the
amount of recovery was controlling although
the suit was under the act of Congress.
142
These contentions are Federal (Seaboard
Air Line R. Co. v. Padgett, 236 U. S. 668,
673, 50 L. ed. 777, 781, 35 Sup. Ct. Rep.
481; Central Vermont R. Co. v. White, 238
U. S. 507, 509, 50 L. ed. 1433, 1435, 35 Sup.
Ct. Rep. 865), and there is jurisdiction, as
we do not find them wholly frivolous.
Overruling the motion to dismiss, we
come to consider whether we should grant
the motion to affirm, and for that purpose
we must decide whether the propositions
are so wanting in substance as not to re-
quire further argument. Rule 6, paragraph
5. We are of the opinion that, as to both
propositions, an affirmative answer is re-
quired. We say this because as to the first
it is apparent that there is no ground upon
which to rest the assertion that there was
no tendency of proof whatever on the sub-
jects stated, but, to the contrary, the record
makes it clear, and the arguments in sup-
port of the proposition demonstrate, that it
alone involves a mere dispute concerning
the weight of conflicting tendencies of proof.
And the same conclusion is necessary as to
the second, because in substance and eflfect
i the want of merit in that proposition lias
by necessary intendment been so conclu-
sively established by the previous decisions
of this court concerning the exclusive opera-
tion and effect of the employers' liability
act over the subject with which it deals as
to exclude all ground for the contention
which the proposition makes. Second Em-
ployers' Liability Cases (Mondou v. New
York, N. H. & H. R. Co.) 223 U. S. 1, 53-55,
56 L. ed. 327, 347, 348, 38 L.R.A.(N.S.)
44, 32 Sup. Ct. Rep. 160, 1 N. C. C. A.
875; Michigan C. R. Co. v. Vreeland, 227
U. S. 50, 66, 67, 67 L. ed. 417, 419, 420,
33 Sup. Ct. Rep. 192, Ann. Cas. 1914C,
176; St. Louis, I. M. & S. R. Co. v. Craft,
237 U. S. 648, 655, 59 L. ed. 1160, 1162, 35
Sup. Ct. Rep. 704.
Affirmed.
[55] CHARLES M. STRATTON, Plff. in
Err.,
V.
WALKER B. STRATTON.
(See S. C. Reporter's ed- 56-57.)
Error to state court — judgment of
highest court ot state.
A judgment of an Ohio district court
of appeals is not that of the highest court of
Note. — ^As to when writ of error may run
to inferior state court — see note to Ken-
tucky V. Powers, 50 L. ed. U. S. 633.
As to when judgment sought to be re-
viewed in Federal Supreme Court ia that
of highest state court — see note to Norfolk
& S. Tump. Co. V. Virginia, 56 L. ed. U.
S. 1082.
2Z9 U. S.
1915.
NEW YORK T. 8AQS.
66-«7
the state in which a decision in the suit can
be bad, which alone is reviewable in the
Federal Supreme Court, where the supreme
court of Ohio has not been called upon to
decide whether or not it will exert its dis-
cretionary power under the state Consti-
tution and laws to review judgments of the
district courts of appeals in cases of public
or great general interest.
IFor other cases, see Appeal and Error, 1147>
11G7, In Digest Sup. Ct. 19US.J
[No. 618.]
Submitted October 25, 1916. Decided No-
vember 8, 1915.
IN EKROR to the Court of Appeals of the
Seventh Appellate District of the State
of Ohio to review a judgment in favor of
plaintifT on the trial de novo of an action
on a contract which Imd been appealed to
that court from the Common Pleas Court of
JefTerson County in that state. Dismissed
for want of jurisdiction.
Mr. Addison €. Ijewls submitted the
cause for plaint ifT in error. Mr. David M.
Gruber was on the brief.
Mr. D. A. Hollinesworth submitted the
eause for defendant in error. Messrs. C. A.
Vail and £. £. Erskine were on the brief.
Memorandum opinion by Mr. Chief Jus-
tice White, by direction of the court:
To reverse a judgment rendered by the
Ohio court of appeals of the seventh appel-
late district on the ground of [56] Federal
errors committed, this writ of error is pros-
ecuted to that court. There is a motion to
dismiss, based on the ground that the court
of last authority, the supreme court of the
state, was the highest court in which a
decision in the suit could be had. This
rests not upon the contention that in all
cases, as a matter of right and of duty,
the supreme court was given authority to
review the judgments and decrees of the
courts of appeals, but upon the proposition
that, under the Constitution and laws of
Ohio, the supreme court was vested with
power to review in every case the judgments
or decrees of the courts of appeals where,
in the exercise of its judgment, the supreme
court deemed them to be of such public or
great general interest as to require review.
The premise upon which the proposition
is based being undoubtedly accurate, indeed,
not disputal:le (Ohio Const, art. 4, § 2;
Akron v. Kotli, 88 Ohio St. 457, 103 N. E.
465), we think the motion to dismiss must
prevail. True, it is urged that under the
Ohio law tlie jurisdiction of the supreme
court was not imperative, but gracious or
discretionary, that is, depending upon its
judgment as to whether the case was one
€0 Jj. cd.
of public or great general interest,-
exceptional class in which* the case before
us, it is insisted, we must now decide was
not embraced. But this simply invites us
to assume jurisdiction by exercising an au-
thority which we have not; that is, by
indulging in conjecture as to what would
or would not have been the judgment of the
supreme court of Ohio if it had been called
upon to exert the discretion vested in it
by state laws. When the significance of the
proposition upon which the claim of juris-
diction is based is thus fixed, it is not open
to contention, as it has long since been
adversely disposed of. Fisher v. Perkins
(Fisher v. Carrico) 122 U. S. 522, 30 L. ed.
11^2, 7 Sup. Ct. Rep. 1227; Mullen v.
Western Union Beef Co. 173 U. S. 116, 43 L.
ed. 635, 19 Sup. Ct. Rep. 404. Indeed, con-
forming to the rule thus thoroughly estab-
lished, the practice for years has been in
the various states where discretionary pow-
er [57] to review exists in the highest court
of the state, to invoke the exercise of such
discretion in order that, upon the refusal
to do so, there might be no question con-
cerning the right to review in this court.
See Western U. Teleg. Co. v. Crovo, 220
U. S. 364, 55 L. ed. 498, 31 Sup. (X Rep.
339; Norfolk k S. Tump. Co. v. Virginia,
225 U. S. 264, 56 L. ed. 1082, 32 Sup. Ct.
Rep. 828; St. Louis, S. F. & T. R. Co. v.
Scale, 229 U. S. 156, 57 L. ed. 1129, 33 Sup.
Ct. Rep. 651, Ann. Cas. 1914C, 156.
Dismissed for want of jurisdiction.
CITY OF NEW YORK, Petitioner,
V.
WILLIAM SAQE, Jr.
(See S. 0. Reporter's ed: 57-62.)
Damages ^ eminent domain — union
with other lands.
1. Compensation to the owner of one
of many parcels of land taken by eminent
NoTB. — On special value of property for
purpose for which it is taken as an ele-
ment of compensation in condemnation pro-
ceedings—^ee notes to Sargent v. Merrimac,
11 L.R.A.(N.S.) 996, and McGovern v. New
York, 46 L.RJ^.(N.S.) 392.
As to damages in acquisition of water
supply by right of eminent domain — see
note to Stearns v. Barre, 68 L.R.A. 240.
On removal of causes in cases of diverse
citizenship-— see notes to Whelan v. New
York, L. E. & W. R. Co. 1 L.R.A. 65; Sed-
don V. Virginia, T. k C. Steel & I. Co. 1
L.R.A. 108; Huskins v. Cincinnati, N. 0. &
T. P. R. Co. 3 L.RJ^. 545; Bierbower v.
Miller, 9 L.RJ^. 228; Brodhead v. Shoe-
maker, 11 L.R.A. 567; Delaware R. Constr.
Co. V. Meyer, 26 L. ed. U. S. 693; Butler
V. National Home, 36 L. ed. U. S. 346; and
Torrence v. Shedd, 36 L. ed. U. 8. 528.
14>
SUPREME COURT OF THE UNITED STATES.
Oct. TeRic,
domain for a site for a reservoir for a mu-
nicipal water supply should not include
any part of an increase in value for that
purpose due to its union with other par-
cels if such union would not have been prac-
ticable, or have been attempted, except by
the int-nrentiou of eminent domain.
[For other cnses, see Damages, VI. m» In Digest
Sup. Ct. 1908.]
Removal of causes ~ time for removal
— oondemnatlon proceedings.
2. Condemnation proceedings cannot be
deemed to have been commenced betore a
conveyance of the land so as to preclude the
vendee from removing the suit to a Federal
court for diverse citizenship, where the peti-
tion for the appointment of commissioners
was not filed until after the conveyance had
been made, although the maps showing the
parcels of real estate to be taken had been
tiled, and notices had been posted on the
roperty before such conveyance.
For otber coses, see Removal of Causes, VII.
a, in Digest Sup. Ct. 1908.]
[No. 34.]
f-
Argued October 27, 1915. Decided Novem-
ber 8, 1915.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for the
Second Circuit to review a judgment which
afiirmed a judgment of the Circuit Court
for the Southern District of New York,
confirming the report of commissioners in
condemnation proceedings. Reversed.
See same case below, 124 C. C. A. 251,
206 Fed. 369.
The facts are stated in the opinion.
Messrs. liouls C. White and William
McM. Speer argued the cause, and, with
Mr. Frank L. Polk, filed a brief for peti-
tioner :
The circuit court of appeals erred in hold-
ing this case to be within the principle laid
down in Mississippi & R. River Boom Co.
▼. Patterson, 98 U. S. 403, 25 L. ed. 206.
Boston Chamber of Commerce v. Boston,
217 U. S. 189, 64 L. ed. 725, 30 Sup. Ct. Rep.
459 ; United States v. Chandler-Dunbar Wat-
er Power Co. 229 U. S. 53, 67 L. ed. 1063,
33 Sup. Ct. Rep. 667; McGovem ▼. New
York, 22D U. S. 363, 57 L. ed. 1228, 46
L.R.A.(N.S.) 391, 33 Sup. Ct. Rep. 876;
Minnesota Rate Cases (Simpson v. Shepard)
230 U. S. 352, 67 L. ed. 1511, 48 L.RJ^.
(N.8.) 1161, 33 Sup. a. Rep. 729.
7 lie state courts having held that there
can be no recovery for reservoir availability
and adaptability of parcels taken by the
city of New York for the Ashokan reser-
voir, considered in connection with other
parcels, the Federal court will accept those
decisions as the law of the state of New
York, and as binding on it.
Boston Chamber of Commerce v. Boston,
144
217 U. S. 189, 64 L. ed. 726, 30 Sup. Ct.
Rep. 459; A. Backus Jr. & Sons v. Fort
Street Union Depot Co. 169 U. S. 657, 42 U
ed. 853, 18 Sup. Ct. Rep. 445; Burgess ▼.
Seligman, 107 U. S. 20, 27 L. ed. 369, 2
Sup. Ct. Rep. 10.
Mr. Edward A. Alexander argued the
cause and filed a brief for respondent:
The city acquires no l^al title to land
by merely filing maps, and it only com-
mences the proceeding when its petition for
the acquisition of land has been filed in
court.
1 Cyc. 761; Re Bradley, 70 Hun, 104, 23
N. Y. Supp. 1127.
A condemnation case is a special pro-
ceeding, and not an action within the New
York Code,
2 Lewis, Em. Dom. p. 929; King v. New
York, 36 N. Y. 182; Re Peterson, 94 App.
Div. 143, 87 N. Y. Supp. 1014; Re Roches-
ter, 102 App. Div. 99, 92 N. Y. Supp. 478.
The making and filing of a descriptive
map of a proposed reservoir is not a tak-
ing, unless expressly made so by statute.
16 Cyc. 668, 669; New York C. & H. R.
R. Co. V. State, 37 App. Div. 57, 55 N. Y.
Supp. 686; 2 Lewis, Em. Dom. 3d ed. § 566,
pp. 1007 et seq.
^ The findings of the commissioners of ap-
praisal constituted a finding of fact that
the market value of the parcel of land in
question had been enhanced by reason of
the fact that it was part of a natural res-
ervoir site, for which there had been pre-
vious demands in the open market.
Re Simmons, 130 App. Div. 364, 114 N.
Y. Supp. 671; McGovem v. New York, 229
U. S. 363, 371, 57 L. ed. 1228, 1231, 46
L.R.A.tN.S.) 391, 33 Sup. Ct. Rep. 876; Peo-
ple V. Fish, 126 N. Y. 160, 26 N. E. 319;
People V. Cignarale, 110 N. Y. 23, 17 N. E.
136; New \oTk v. Smith, 138 N. Y. 676, 34
N. E. 400; Knight v. Wilson, 55 Hun, 669,
9 N. Y. Supp. 20; Gibbons v. Van Alstyne,
20 N. Y. S. R. 461, 9 N. Y. Supp. 166 ; Man-
dftville V. Reynolds, 68 N. Y. 634; Devlin v.
Greenwich Sav. Bank, 126 N. Y. 756, 26
N. E. 744; Jencks v. Smith, 1 N. Y. 94.
The adaptability of land for use as a res-
ervoir, or for water supply purposes, has
been uniformly taken into consideration as
an element of value of such land in a num-
lier of well decided and carefully considered
cases, both in the United States and Great
Britain.
Re Gilroy, 85 Hun, 424, 32 N. Y. Supp.
891; Re Daly, 72 App. Div. 396, 76 N. Y.
Supp. 28; Re Gough [1904] 1 K. B. 417, 73
L. J. K. B. N. 8. 228, 68 J. P. 229, 62 Week,
Rep. 662, 90 L. T. N. S. 43, 20 Timea L. R.
179; College Point v. Dennett, 5 Thomp. ft
C. 217, 2 Hun, 669; Great Falls Mfg. Go.
V. United States, 16 Ct. CI. 160. affirmed in
.239 U. 8.
i
1915.
NSW YORK T. SAGS.
112 U. S. 645, 28 L. ed. 846. 5 Rap. Ct. Bep.
306; Q«arhart ▼. Clear Spring Water Ck>.
202 Pa. 292, 51 Atl. 891; Moulton v. Kew-
Imryport Water Go. 137 Mass. 163; San
Diego Land ft Town Co. v. Neale, 78 Cal. 63,
3 L.R.A. 83, 20 Pac. 372; Sargent Y. Merri-
mac, 196 Mass. 171, 11 L.R.A.(K.S.) 996,
124 Am. St. Rep. 528, 81 N. E. 970; Seattle
ft M. R. Co. y. Mulphine, 4 Wash. 457, 30
Pac. 720; Spring Valley 'Waterworks v.
Drinkhouss, 92 Cal. 528, 28 Pac. 681; 2
Lewis, Em. Dom. § 479; 4 Sedgw. Damages,
^ 1179; 16 Cyc. 757, 768.
Til is case is within the principle laid
down in Mississippi ft R. River Boom Co.
T. Patterson, 98 U. S. 403, 25 Jf.„f^ ?06.
2 Le\yi8, Em. Dom. 3d ed. § 707, p. 1233;
6 Sedgw. Damages § 1075; Louisville, N.
0. ft T. R. Co. V. Ryan, 64 Miss. 399, 8
So. 173; Seattle ft M. R. Co. ▼. Mulphine,
4 Wash. 457, 30 Pac. 720; Re Staten Is-
land R. Co. 10 N. T. S. R. 393; Sanitary
Dist. V. Loughran, 100 lU. 365, 43 N. E.
:359; Payne v. Kansas ft A. Valley R. Co.
46 Fed. 557.
While, in this case, the evidence is nn-
•disputed that there were prior demands for
this property for reservoir purposes, not
•only on behalf of the city, but oH behalf of
•other municipalities, and on behalf of the
Ramapo Water Company, it is unnecessary
to prove any prior demands in order to
entitle the owner to this element of value
in his property, and evidence introduced to
prove such element of value is not, in any
-sense, speculative.
Langdon v. New York, 133 N. Y. 628, 630,
31 N. E. 98; Orleans ft J. R. Co. v. Jeffer-
son ft L. P. R. Co. 51 La. Ann. 1615, 26
So. 278; Galesburg ft G. E. R. Co. v. Mil-
f^, 181 ni. 247, 54 N. E. 939; Calumet
River R. Co. v. Moore, 124 111. 334, 15
N. E. 764; Muskeget Island Club v. Nan-
taeket, 185 Mass. 303, 70 N. E. 61; Fos-
gate V. Hudson, 178 Mass. 225, 59 N. E.
809; Fales v. Easthampton, 162 Mass. 422,
ZB N. E. 1129; West Virginia, P. ft T.
R. Co. V. Gibson, 94 Ky. 236, 21 S. W.
1055; Louisville, N. O. ft T. R, Co. ▼. Ryan,
^ Miss. 399, 8 So. 173; Mississippi River
Bridge Co. v. Ring, 58 Mo. 496; Low ▼.
Concord R. Co. 63 N. H. 557, 3 Atl. 739;
Muller V. Southern Pacific Branch R. Co.
83 Cal. 240, 23 Pac. 266; St. Louis Ter-
minal R. Co. V. Heiger, 139 Mo. 315, 40
^. W. 947; Hooker r. Montpelier ft W.
River R. Co. 62 Vt. 49, 19 Atl. 775; Chicago,
^. ft N. R. Co. ▼. Davidson, 49 Kan. 589, 31
Pac 131; King v. Turnbull Real Estate
<jO, 8 Can. Bxch. 163; Wilson v. Equitable
-Gas Co. 162 Pa. 569, 25 AtL 635; Montana
R. Co. V. Warren, 6 Mont.. 275, 12 Pae.
441; Smith r. Com. Ann. Caa. 1912C, 1289,
aiote.
-•0 li. ed.
Chandler-Dunbar Water Power Co. v»
United States, 229 U. S. 53, 57 L. ed. 1063,
33 Sup. Ct. Rep. 667; Boston Chamber of
Commerce v. Boston, 217 U. S. 189, 54 L.
ed. 725, 30 Sup. Ct. Rep. 469; McGovem
V. New York, 229 U. S. 363, 57 L. ed.
1228, 46 L.RJ^.(N.S.) 391, 83 Sup. Ct. Rep.
876; and the Minnesota Rate Cases (Simp-
son V. Shepard) 230 U. S. 352, 57 L. ed.
1511, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct
Rep. 729, — do not apply to the facta in
the case at bar.
The fact that the defendant in error did
not, or could not> alone use his property
as a reservoir site, does not deprive the
property of its value sis a reservoir site, or
a portion of a reservoir site.
Mississippi ft R. River Boom Co. v. Pat-
terson, 98 U. S. 403, 408, 26 L. ed. 206,
208; Great Falls Mfg. Co. r. United States,
16 a. CI. 199, affirmed in 112 U. 8. .645,
28 L. ed. 846, 6 Sup. Ct Rep. 306; Chicago
ft N. W. R. Co. V. Chicago ft E. R. Co. 112
ni. 609; Hooker v. Montpelier ft W. River
R. Co. 62 Vt 49, 19 Atl. 775; Little Rock
Junction R. Co. v. Woodruff, 49 Ark. 381,
4 Am. St. Rep. 51, 5 S. W. 792 ; Mississippi
River Bridge Co. v. Ring, 68 Mo. 491.
The fact that the defendant in error was
the owner of only a part of the reservoir'
site does not prevent that element of value
from being considered. It only goes to the
weight that should be given to the evidence,
and the amount that should be allowed for
this element of value.
San Diego Land ft Town Co. r. Neale, 78
Cal. 63, 3 L.RJ^.. 83, 20 Pac. 372; Tyne-
mouth V. Northumberland, 89 L. T. N. S.
557, 67 J. P. 425, 19 Times L. R. 630.
The valuation which the commissioners
of appraisal placed upon this property was
not its valuation to the city of New York,
but was merely what they considered to
be the fair and reasonable market value of
the property, taking into consideration as
an element in its value the fact that it is
adaptable and available to a certain special
and profitable use which the city is now
making of it.
16 Cyc 1135, 1136.
The Federal courts will not accept the
decisions of a state court as binding upon
them on questions of general law.
Myrick v. Michigan C. R. Co. 107 U.
8. 102, 109, 27 L. ed. 325, 327, 1 Sup. Ct
Rep. 426; Smith v. Alabama, 124 U. S.
466, 478, 31 L. ed. 608, 512, 1 Inters. Com.
Bep. 804, 8 Sup. Ct. Rep. 564; Bucher ▼.
Cheshire R. Co. 125 U. 8. 655, 31 L. ed.
795, 8 Sup. Ct. Rep. 974; Liverpool ft G.
W. Steam Co. r. Phenix Ins. Co. (The
Montana) 129 U. S. 397, 443, 32 L. ed. 788,
792, 9 Sup. Ct. Rep 469; Independent School
Dist ▼. Rew, 55 L.R.A. 364, 49 C. C. A..
10 14ft
60-62
SUPREME CX)URT OF THE UNITED STATES.
Ooi. Tbm,
108, 111 Fed. 1; Beard v. Independent
Dirt. 81 C. C. A. 662, 60 U. S. App. 372,
88 Fed. 876; Columbia Ave. Sav. Fund, S.
D. Title ft T. Co. Y. DawBon, 130 Fed. 162 ;
Union Bank t. Oxford, 00 Fed. 7; Bruns-
wick Terminal Co. v. National Bank, 88
Fed. 607; Hunt v. Hurd, 30 C. C. A. 226,
98 Fed. 683; Western U. Teleg. Co. y.
Sklar, 61 C. C. A. 281, 126 Fed. 205; Man-
■hip T. New South Bldg. & L. Asso. 110
Fed. 846; Re Hull, 116 Fed. 868; Jonet
V. Southern P. Co. 76 C. C. A. 602, 144
Fed. 073, 7 Ann. Cas. 266.
Mr. Justice Holm|M delivered the opin-
ion of the court:
This is a proceeding for the taking of land
for the Ashokan reservoir, similar to the
one before us in McGovem v. Nev; York, 220
U. S. 363, 67 L. ed. 1228, 46 L.R.A.(N.S.)
301, 33 Sup. Ot. Rep. 876. After commis-
sioners were appointed to ascertain the com-
pensation to be paid, the case was removed
to the circuit court, diverse citizenship being
alleged. There was a motion to remand
which was overruled, and subsequently the
commissioners reported that *'the sum of
$7,624.46 for land and buildings and the
further sum of $4,324.46 for reservoir avail-
ability and adaptability, being a grand total
of the siun of $11,048.00, is the sum ascer-
tained and determined by us . . . to be
paid to the owners of and all persons in-
terested in said land for the taking of the
fee thereof, designated ... as Parcel
733." They also recommended the allow-
ance of 5 per cent on the above award for
« legal fees and expenses, and of $1,372.31 to
named witni^sses in specified sums. The
report was confirmed by the circuit judge
(190 Fed. 413), and afterwards by the cir-
cuit court of appeals (124 C. C. A. 251,
2U6 Fed. 360).
Upon an inspection of the record it ap-
pears to us, as the language of the com-
missioners on its face suggests, that their
report does not mean that the claimant's
land had a [61] market value of $11,048.00,
— tliat it would have brought that sum at a
fair sale, — but that they considered the
value of the reservoir as a whole and al-
lowed what they thought a fair proportion
of the increase, over and above the market
value of the lot, to the owner of the land,
subject to the opinion of the court upon
the point of law thus raised. Upon that
point we are of opinion that they were
wrong.
The decisions appear to us to have made
the principles plain. No doubt when this
class of (juestions first arose it was said in
a general way that adaptability to the pur-
poses for which the land could be used most
profitably waa to be considered ; and that
is true. But it is to be considered only
so far as the public would have considered
it if the land had been olBTered for sale in
the absence of the city's exercise of the
power of eminent domain. The fact that
the most profitable use could be made
only in connection with other land is not
conclusive against its being taken into ac-
count, if the union of properties necessary
is so practicable that the possibility would
affect the market price. But what the own-
er is entitled to is the value of the property
I taken, and that means what it fairly may
be believed that a purchaser in fair market
conditions would have given for it in fact,
— not what a tribunal at a later date may
think a purchaser would have been wise
to give, nor a proportion of the advance due
to its union with other lots. The city is
not to be made to pay for any part of what
it has added to the land by thus uniting
it with other lots, if that union would not
have been practicable or have been attempt-
ed except by the intervention of eminent
domain. Any rise in value before the tak-
ing, not caused by the expectation of that
event, is to be allowed, but we repeat, it
must be a rise in what a purchaser might
be expected to give.
It is said that in this case there was
testimony that the lot was worth more than
the total allowed. But the only [621 ex-
planation of the separation of items by the
commissioners is that they were not pre-
pared to say that the market value of the
lot was $11,048.00, seein^i: that the claimant
bought it a few days bdfore for $4,600, but
that they thought the additional value
gained by the city's act should be taken into
account and shared between the city and the
owner of the land, — a proposition to which
we cannot assent. Minnesota Rate Casee
(Simpson v. Shepard) 230 U. S. 362, 451,
67 L. ed. 1611, 1662, 48 L.R.A.(N.S.) 1151,
33 Sup. Ct. Rep. 720; McGovem v. New
York, 220 U. S. 363, 372, 67 L. ed. 1228,
1232. 46 L.R.A.(N.S.) 301, 33 Sup. Ct. Rep.
876.
The motion to remand was made on the
ground that Sage bought after the condem-
nation proceedings were commenced, and
therefore was not entitled to remove the
suit to the circuit court. The maps show-
ing the parcels of real estate to be taken
had been filed and notices had been posted
on the property before the conveyance to
Sage, but the petition for the appointment
of commissioners was not filed until after
it had been made. We see no reason to
differ from the opinion of the judges below
that the proceeding was not commenced at
the date when Sage took.
Decree reversed.
sst u. s.
LA BOQUS 7. UNITED STATBB.
BENKY I^ BOQUE, Appt,
T.
UmTED STATES.
(8m B. C. Bcportor'i ad. 62-68.)'
iBdlABB •• allotment — dratli befora
•election.
1. Kelectiotia on the psrt of living In-
diana 011I7, kcting for tlicmKlves or through
dctignatM rqireHnt*tiv«8, were contem-
plated bj tbm general Indian aJlotmeut act
<rf Fcbnuuj 8, 1B8T (» Stat, at L. 38S,
Chap, lie, Comp. StaL 1S13, J 4100), which.
after autiioriting a survey of the reserva-
tioD to be allotted, provided for an allot-
B»«nt in Mvt^raltj of a designated area "to
■nj Indian located tliereon," and then di-
rected that all allotmeata "be selected by
Um Indiana, heada of familiea selecting for
Uieir minor children," and the agents telect-
ing for orphan children, and that "if any-
ODfl entitled to an allotment shall fail to
, leleetion within four yean" tlie
igent.
IPor other catei. see Indians. VIII., In DlReit
8up CL laOK.l
Indiana — allotment — death be(or«
acle<rtlon.
2. Tlic death of a Chippewa Indian be-
fore selecting or receiving bis allotment un-
der the Nelnon set of January 14, 18S9 (25
Stat, at L. 042, chap. 24), must be deemed
lo b>rminate all right to an allotment on
his liehslf, in view of the proviaJonB of that
act that allotment! thereunder are to be
made in conformity with the general allot-
ment act of February 8, 1887 124 Stat, at
L. 388, (diap. 119, Comp. Stat. 1913, 1 4195),
which contemplates selections on the part
of living Indians only, acting for thenigelves
or through designated represent if tives,
there being nothing demanding a dilterent
conclusion in the provisions 01 the Nplaon
ut for a census of the Indians (which in-
cludes the name of the Indian in question),
"tor the purpose," among others, "of mak-
ini; the allotments" contemplated by that
act. nor In the report of the negotistion*
■itk the Indiana resulting in the contem-
rlsted cession.
Por otber niivs. see ladlsns. VIII.. In Olcdt
Sup. Ct lflOe.1
Limitation of actions — anlt to cancel
patent — Indian lands.
3. The six years' limitation prescribed
I7 thb act of March 3, J8III (28 Stat, at L.
low, chap. 5H1, Comp. Stat. 1013, S 6114).
I 8, tor suits by the United States to vacate
and annul patents does not govern a suit
to cancel a so-called trust patent for an
tllotment in an Indian Reservation on the
ground that the allotment was made inad-
Teitectly and in contravention of the Nelnon
an w jftruury i4. iSal) (2fi Stat, at L.
K4!, chap. 1!4), since such section, being a
t^n of the public land laws, refers only to
patents issued for public lands of the Unit-
ed (States, and has no application to re-
•CTvwl Indian landi
irir ,
} I.lm
■ tlnn
I Federal eonrta ^ Jnriadlctlon ^ salt tft
canoel trnat patent.
4. Jurisdiction of a Federal aonrt to
antertaln a suit by the United Stataa to
cancel a so-called truat patent for an allot-
ment In an Indian Beservation, on tiu
ground that the allotment was made ln<
advertently and in contravention of the Nri-
•on act of January 14, 188S (25 SUt. at L.
ti42, chap. 24), la not affected by the pro-
visions of the act of April 23, 1004 (SS
Stat at L. 297, chap. 1489, Comp. SUt.
lOlS, I 4212), limiting and deHning Ux
authority of the Secretary of the Interior
to correct mistakes in, and to cancel, truat
catenta for Indian allotmenta.
IFor otber casei, wg Courts, V. c, 4, In Digest
8ap. Ct IMS.]
[No. 240.]
APPEAL from tba Unlt«d States Clrenlt
Court of Appeals for the Eighth Cirenlt
to review a dcwee which, reversing a decTM
of the Circuit Court for the District of Min-
nesota, remanded a suit by the United States
to cancel a trust paUnt for an Indian allot-
ment, with instructions to enter a decree
in favor of the government. Affirmed.
See same case below, 117 C. 0. A. 340,
198 Fed. 64S.
The facta are stated in the opinion.
Hr. J. T. Tan Metre argued the cause
and filed a brief for appellant:
The title the Indians had to the White
Earth Reservation was that of a fee simple,
it having been conveyed to them by the
United States as part consideration for
lands ceded by them to the government
New York Indians v. United States, 170
U. S. 1, 42 L. ed. 921, 18 Sup. Ct Hep.
G3Ii Holden *. Joy, 17 Wall. 211, 21 L.
ed. 623; United States v. Brooks, ID How.
442, 13 U ed. 480i Marsh v. Brooks. 8 How.
223, 12 L. ed. 1066-, United States v. Choc-
taw Nation, ITD U. B. 494, 4G L. ed. 291.
21 Sup. Ct Rep. 14S; White t. Wright,
83 Minn. 222, 86 N. W. 91; Seneca Nation
of Indians v. Hugarboom, 132 N. Y. 493,
30 N. E. 983, Prentice v. Stearns, 20 Fed
819; United States *. Reese, 5 Dill. 406,
Fed. Cas. No. 18,137; Mitchel v. United
States. 16 Pet. G2, 10 L. ed. 668.
Where a treaty contains words of con-
veyance, it operates at a grant tn prtEnonti,
and the title vests by operation of tiie
treaty.
Jones T. Mcehan, 175 U. S. 1, 44 L. ed.
49, 20 Sup. Ct. Rep. 1; United States v.
New York Indians, 173 U. S. 464, 43 L.
ed. 769, 19 Sup. Ct. Rep. 487, 170 U. S. 1,
42 L. ed. IK7, 18 Sup. Ct. Rep. G31; Webster
6UPREM1S COURT OF THE UNITED STATES.
Ooi. Tebm,
▼. Reid, MorriB (Iowa) 467; United States
y. Brooks, 10 How. 442, 13 U ed. 489.
The land ceded to the United States un-
der the treaty of April 18, 1867, belonged
to these Indians, and was a valuable con-
sideration for the sale to them of the White
Earth Ecservation.
New York Indians ▼. United States, 170
U. S. 1, 42 U ed. 027, 18 Sup. Ct. Rep. 531 ;
Holden v. Joy, 17 Wall. 211, 21 L. ed. 623;
Mitchel v. United States, 0 Pet. 748, 9 L.
ed. 296; Crews v. Burcham, 1 Black, 352,
17 L. ed. 91.
It was proper for, and within the power
of, the United States to convey the terri-
tory comprising the White Earth Reserva-
tion to the Indians, although it was then a
part of the public domain.
Holden v. Joy, 17 Wall. 211, 21 L. ed.
523; Johnson v. M'Intosh, 8 Wheat. 598, 5
U ed. 694.
While a patent to the White Earth Res-
ervation was not given or promised by the
treaty of April 18, 1867, yet a patent is
not necessary to convey a complete title.
Francis v. Francis, 203 U. S. 233, 61
L. ed. 165, 27 Sup. Ct. Rep, 129; Jones v.
Meehan, 175 U. S. 1, 44 L. ed. 49, 20 Sup.
Ct. Rep. 1; United States ▼. Brooks, 10
How. 442, 13 L. ed. 489.
Restrictions upon alienation do not de-
base the title below a fee simple.
Libby v. Clark, 118 U. S. 250, 30 L. ed.
133, 6 Sup. Ct. Rep. 1045; United States v.
Paine Lumber Co. 206 U. S. 467, 61 L. ed.
1139, 27 Sup. Ct. Rep. 697.
The act of January 14, 1889, was in all
essentials a treaty, and was in its nature
contractual.
Worcester ▼. Georgia, 6 Pet. 615, 8 L.
ed. 483 ; Choate v. Trapp, 224 U. S. 665, 56
L. ed. 941, 32 Sup. Ct. Rep. 565.
There is no inconsistency in permitting an
allotment after death.
Mullen V. United States, 224 U. S. 448,
56 L. ed. 834, 32 Sup. Ct. Rep. 494; Goat
V. United States, 224 U. S. 458, 56 L. ed.
841, 32 Sup. Ct. Rep. 541; United States v.
Dowden, 194 Fed. 475.
Failure or refusal to make the allotment
could not militate against the rights of the
person entitled thereto.
Lytle V. Arkansas, 9 How. 314, 13 L. ed.
163; Yosemite Valley Case (Hutchings v.
Low) 15 Wall. 91, 21 L. ed. 86; Smith v.
Bonifer, 132 Fed. 889; United States v.
Dowden, 194 Fed. 475.
This act must be construed in the light
in which the Indians were made to under-
stand it.
Worcester v. Georgia, 6 Pet. 515, 8 L.
ed. 483; Jones v. Meehan, 175 U. S. 1, 44
L. ed. 49, 20 Sup. Ct. Rep. 1; Kansas In-
dians (Blue Jacket v. Johnson County) 5
148
I Wall. 737, 18 L. ed. 667 ; United States v.
I ChocUw Nation, 119 U. S. 27, 30 L. ed. 314,
7 Sup. Ct. Rep. 75; United SUtes v. Kaga-
nm, 118 U. S. 375, 30 L. ed. 228, 6 Sup.
Ct. Rep. 1109; United States v. Winans,
198 U. S. 371, 49 L. ed. 1089, 25 Sup. Ct.
Rep. 662; United States v. Choctaw Nation,
179 U. S. 494, 45 L. ed. 291, 21 Sup. Ct.
Rep. 149; Choate v. Tri^p, 224 U. S. 665,
56 L. ed. 941, 32 Sup. Ct. Rep. 565.
The report of the negotiations are con-
tained in House Ex. Doc. 247, 51st Con-
gress, 1st session. The court may take
judicial notice of such documents.
New York Indians v. United States, 170
U. S. 1, 32, 42 L. ed. 927, 938, 18 Sup. Ct.
Rep. 531.
The law of descent in the state where the
land is situated shall apply after issuance
of the patent. Not the final patent, but the
first or trust patent.
Goat V. United States, 224 U. S. 458, 56
L. ed. 841, 32 Sup. Ct Rep. 541; Re Heff,
197 U. S. 488, 49 L. ed. 848, 25 Sup. Ct.
Rep. 506; United States v. Park Land Co.
188 Fed. 383; Beam ▼. United SUtes, 89
C. C. A. 240, 162 Fed. 260; Worcester v.
Georgia, 6 Pet. 515, 582, 8 L. ed. 483, 508;
Re White Earth Indian Reservation, 36
Land Dec 210.
Subsequent sets of Congress giving the
Secretary of the Interior jurisdiction to
determine heirship of Indians do not apply
to the descent of allotments on the White
Earth Reservation.
Vachon v. Nichols-Chisholm Lumber Co.
126 Minn. 303, 144 N. W. 223, 148 N. W.
288; Re White Earth Indian Reservation,
36 Land Dec. 210 ; Kendall v. United SUtes,
12 Pet. 524, 9 L. ed. 1181; PosUl Teleg.
Cable Co. v. Southern R. Co. 89 Fed. 190;
26 Am. k Eng. Enc. Law, 714; Endlich,
InterpreUtion of SUtutes, 695; 1 Suther-
land, SUt. Contr. 2d ed. 493.
The instrimient here sought to be can-
celed is a "patent" within the meaning of
the sUtute of limiUtions.
La Clair v. United SUtes, 184 Fed. 128;
Libby v. Clark, 118 U. S. 250, 30 L. ed.
133, 6 Sup. Ct. Rep. 1045; Re Heff, 197
U. S. 488, 49 L. ed. 848, 25 Sup. Ct. Rep.
506; Wiggan v. ConoUy, 163 U. S. 56, 41
L. ed. 69, 16 Sup. Ct Rep. 914; SUrr v.
Campbell, 208 U. S. 527, 62 L. ed. 602, 28
Sup. Ct. Rep. 365; Starr v. Long Jim, 227
U. S. 613, 57 L. ed. 670, 33 Sup. Ct. Rep.
358; Mullen v. United SUtes, 224 U. S.
448, 56 L. ed. 834, 32 Sup. CU Rep. 494;
Goat V. United SUtes, 224 U. S. 458, 56
L. ed. 841, 32 Sup. Ct. Rep. 541; Choate
T. Trapp, 224 U. S. 665, 56 L. ed. 941, 32
Sup. Ct. Rep. 565; Re White Earth Indian
Reservation, 36 Land. Dec. 210.
AfUr the death of Vinc^it La Roque, and
2S9 U. S.
1916.
jjl roque v. united states.
fciter the iMuance of this patent in 1902,
the appellant, admittedly an adult mixed-
Uood Indian, held this land in fee simple
upon the approval of the Clapp amendment.
United States t. Park Land Co. 188 Fed.
S88; Beam y. United States, 89 C. 0. A.
240, 162 Fed. 260; Stephenson t. Lohn, 116
Minn. 166, 131 N. W. 1018; Vadion t.
Nichols-Chisholm Lumber Co. 126 Minn. 303,
144 N. W. 223, 148 N. W. 288.
Statutes of limitation are applicable to
individual Indians after allotment.
Schrimpscher v. Stockton, 183 U. S. 290,
46 L. ed. 203, 22 Sup. Ct. Rep. 107
This court has repeatedly upheld the
statutes of limitation.
United States t. Des Moines Nav. ft
R. Go. 142 U. S. 610, 36 L. ed. 1099,
12 Sup. Ct. Rep. 308; Curtner t. Unit-
ed States, 149 U. S. 671, 37 L. ed. 893,
13 Sup. Ct. Rep. 985, 1041; Wood ▼. Car-
penter, 101 U. S. 135, 25 L. ed. 807;
United States y. Hodge, 13 How. 478, 14
L. ed. 231; Clementson y. Williams, 8
Cranch, 72, 3 L. ed. 491; M'Cluny v. Sil-
liman, 3 Pet. 270, 7 L. ed. 676; Richards
V. Maryland Ins. Co. 8 Cranch, 84, 3 L. ed.
496; Bank of United States v. Daniel, 12
Pet. 32, 9 L. ed. 989 ; Lewis y. Marshall, 6
Pet. 470, 8 L. ed. 196.
Independent of U. S. Rey. SUt. § 2448,
Comp. Stat. 1913, f 6098, the courts have
always held that the title to the land des-
ignated in a patent issued in the name of
an Indian reservee or allottee after his
death insured to his heirs, devisees, or as-
signs.
Doe ex dem. Mann v. Wilson, 23 How. 457,
16 L. ed. 684; Elwood y. Flannigan, 104
U. 8. 562, 26 L. ed. 842; Vachon y. Nichols-
Chisholm Lumber Co. 126 Minn. 803, 144
N. W. 223, 148 N. W. 288.
Tet this court has held directly that this
law, f 2448, supra, applies to individual
Indian lands.
Crews y. Burcham, 1 Black, 362, 17 L.
ed. 91.
The cause for cancelation In the case at
bar is none of those specified in the act of
April 23, 1904, and no fraud is charged in
obtaining its issuance.
La CUir y. United States, 184 Fed. 137.
Assistant Attorney General Knaebel sub-
mitted the cause for the United States.
Mr. a W. Williams was on the brief:
Much is said in the appellant's brief con-
cerning the elBTect of treaties, particularly
the treaty of April 18, 1867, which estab-
lished the White Earth Reservation. Coun-
sel assert that by this the fee was granted
4m pnmefiit. Even if so, it was manifestly
a grant to the tribe as a quasi eorporation.
The individual gained no iitla or right to
title. He was not a tenant In coamon. Ba
•• Ii. ed.
had nothing to transmit by inheritance. He
was simply one of a membership constantly
changing and shifting through birth and
death, resignation and adoption, each of
whose constituents, while he lived and re-
mained a member, had doubtless a usu-
fructuary right, a voice in the administra-
tion of the tribal estate, and an expectancy
that, wh^i the estate came to be distributed
(If it ever did), he would receive his just
share with the other members existing at
that time.
8izemore v. Brady, 235 U. S. 441, 440, 60
L. ed. 308, 311, 35 8up. Ct. Rep. 135;
McKee v. Henry, 119 a C. A. 412, 201
Fed. 76; Ligon v. Johnston, 90 C. C. A.
486, 164 Fed. 670; Woodbury v. United
States, 96 C. C. A. 498, 170 Fed. 302.
The Nelson act intends that allotments
shall be made to living members only.
Re Dole, 30 Land Dec. 632; Re Shaw, 40
Land Dec 9; Fairbanks v. United SUtes,
223 U. S. 216, 66 L. ed. 409. 32 Sup. Ct.
Rep. 292; Woodbury y. United SUtes» 96
a C. A. 498, 170 Fed. 302.
In the case of the Five Civilized Tribes
the dominant objects were to protect the
rights of all the members against the selfish
aggressions of a few, partition the tribal
lands, break up the tribal govemments» and
prepare the way for a new state.
Woodward v. De Graffenried. 238 U. 8.
284, 69 L. ed. 1310, 36 Sup. Ct Rep. 764.
The acts and a^n^eements relating to the
reservations of those tribes accordingly eon-
fer the right to allotments on the persons
living at stated times, and provide in so
many words that, in case of death before
allotment, the allotment shall go to the
heirs.
Skelton y. Dill, 236 U. 8. 206. 208, 69
L. ed. 198, 199, 35 Sup. Ct. Rep. 60.
It is elementary that, like a deed to a
fictitious person (Moffat v. United States,
112 U. & 24, 31, 28 L. ed. 623, 626, 6 8up.
Ci. Bep. 10), a deed to a grantee not im
esse at the time, even though the habendum
be to him and his "heirs," is an absolute
nullity.
1 Devlin, Deeds, 3d ed. f 187; 8 Washb.
Real Prop. 6th ed. 2121 ; 2 Minor, Real Prop.
§ 1088; Hunter v. Watson, 12 Cal. 363, 73
Am. Dec. 643; Baker v. Lane, 82 Kan. 716,
28 LJLA.(N.8.) 406, 109 Pac. 182.
The "patents" intended by the limitation
act of March 3, 1891, are patents convey-
ing the legal title such as are issued under
the g^eral land laws; the term has no
proper application to such an instnmieDt as
the one here in question.
Northern P. R. Co. y. United States. 227
U. 8. 365, 57 L. ed. 644, 33 Sup. Ct. Rep.
368; United SUtes v. Stone, 2 WalL 626,
686, 17 L. ed. 765, 767; Maxwell Land-
QranI Case, 121 U. B. 826. 380^ SO L. «d.'
« Mm
0;M»ii
SUPREME CX)URT OF THE UNITED STATES.
Got. Temm^
049, 958, 7 Sup. Ct. Rep. 1016; United
States V. Rickert, 188 U. 8. 432, 436, 47
L. ed. 632, 635, 23 Sup. Ct. Rep. 478; Re
Bergen, 30 Land Dec. 258.
The prorUion in the act of April 23, 1904.
declaring that conditional patents issued
upon Indian allotments may not be can>
celed without authority of Congress except
in certain cases therein specially provided
for is but a limitation upon the power of
the Secretary, and was not intended to de-
prive the courts of authority inherently
vested in them.
Re Bergen, 30 Land Dec. 258; United
SUtes V. Chehalis County, 217 Fed. 284.
Mr. Justice Van Devanter delivered the
opinion of the court:
This is a suit to cancel a so-called trust
patent for an allotment in the White Earth
Indian Reservation in Minnesota on the
ground that the allotment was made inad-
vertently and in contravention of the act
of January 14, 1889, chap. 24, 25 Stat, at
L. 642, known as the Nelson act. In the
circuit court there was a decree dismissing
the bill [64] upon the merits, and this was
reversed by the circuit court of appeals with
instructions to enter a decree according to
the prayer of the bill, subject to a qualiftca-
tion not here material. 117 C. C. A. 349,
198 Fed. 645.
The facts are not in dispute and are
these: Vincent La Roque, in whose name the
trust patent issued, was a Chippewa Indian
bom in 1883 of parents residing on the
White Earth Reservation, and was among
those whofte names were included in the
census of Minnesota Chippewas, made un-
der the Nelson act. Had he lived he would
have been entitled to take an allotment un-
der that act. He died shortly after 1889
without an allotment being selected by or
for him. Thereafter an application in his
name for the allotment in question was
presented to the allotting officers, and up-
on this application the allotment waa made
and the trust patent was issued, both in
hit name, as if the selection were made
while he waa living. Henry La Roque, the
defendant, is his father, and aa sole heir
elaims the land under the allotment and
trust patent.
Whether the Nelson act contemplated
that allotments sh<^uld be made on behalf
•f Indians otherwise entitled thereto, but
who should die without selecting or receiv-
ing them, is the principal question tor de-
cision. The regulations and decisions ol
the Secretary of the Interior, under whose
supervision the act was to be administered,
show that it was ccnstrued by that officer as
eonflning the right of selection to Itvini;
Indians^ and thai he so instructed the al-
16t
lotting officers. While not <;^clutive, this
construction given to the act in the course
of its actual execution is entitled to great
respect and ought not to be overruled with-
out cogent and persuasive reasons. United
States V. Moore, 95 U. S. 760, 763, 24 L.
ed. 588, 589; Hastings ft D. R. Co. v. Whit-
ney, 132 U. S. 357, 366, 83 L. ed. 363, 367,
10 Sup. Ct. Rep. 112; United SUtes v.
Hammers, 221 U. S. 220, 225, 228, 56 L.
ed. 710, 714, 715, 31 Sup. Ct. Rep. 593;
Logan V. Davis, 233 U. S. 613, 627, 58 L.
ed. 1121, 1128, 34 Sup. Ct. Rep. 685. Not
only so, but it receives additional force
from its adoption by the circuit court of
appeals for the eighth circuit [65] in Wood-
bury V. United SUtes, 95 C. C. A. 498, 170
Fed. 302, where it was said by District
Judge Amidon, in speaking for that court:
"Until the allotment was made, Woodbury's
right was personal, — a mere float, — giving
him no right to any specific property. This
right, from its nature, would not descend
to his heirs. They, as members of the
tribe, were severally entitled to their al-
lotments in their own right. To grant them
the right of their ancestor, in addition to
their personal right, would give them an
unfair share of the tribal lands. The mo-
tive underlying such sUtutes forbids such
a construction."
The Nelson act embodied a plan for secur-
ing a cession by the several bands of Chip-
pewa Indians in MinnesoU of all reserva-
tions occupied by them except portions of
the WhiU Earth and Red Lake reservations
required to make allotments, for removing
to the White Earth Reservation all the
bands save those on the Red Lake Reserva-
tion, for making allotmenU in severalty in
the unceded lands, and for disposing of
the ceded lands, placing the net proceeds
at interest and distributing them in several-
ty at the end of fifty years. Section 1 re-
quired that a census be made of each tribe
or band for the purpose of ascertaining
whether the proper number of Indians as-
sented to the cession and "of making the al-
lotmenU and paymenU* contemplated; and
f 8 directed that, following the census, the
cession and the removal to the White Earth
Reservation, allotmenU in seveiHlty be
made, as soon as practicable, U the Red
I>ake Chippewas in the Red Lake Eeserva-
tion, and to the others in the White Karth
Reservation, "in conformity with" the gen*
eral allotment act of February 8, 1887,
chap. 119, 24 SUt. at L. 888, Comp. SUt.
1913 I 4195, subject to a proviso that any
Indian living on any of the ceded reserva-
tions might, in his discretion, take his al-
lotment therein instead of moving U the
WhiU Earth Reservation.
The general allotment act of 1887, in con-
289 V. 8.
191fi.
LA ROQUB ▼. UNITED STATES.
»-W
formity with whieh the Chippewa allotments
were to be made, after [66] authorizinff a
lurT^ of the reservation to be allotted, pro-
Tided for an allotment in severalty of a des-
tfnated area '^ any Indian located there-
oo,** and then directed that all allotments
*%% selected by the Indians, heads of fam-
ilies selecting for their minor children,"
and the agents selecting for orphan chil-
dren, and tiiat "if anyone entitled to an al-
lotment shall fail to make a selection with-
in four years . . . the Secretary of the
Interior may direct a selection for such
Indian" to be made by an agent.
We think the terms of the general 'act
contemplated only selections on the part of
living Indians, acting for themselves or
through designated representatives. The
express provision for selections in behalf
of children and of Indians failing to select
for themselves, and the absence of any pro-
▼iBion in respect of Indians dying without
■elections, are persuasive that no selections
in the right of the latter were to be made.
In other words, as to them there was no
displacement of the usual rule that the
incidents of tribal membership, like the
membership itself, are terminated by death.
See Gritts v. Fisher, 224 U. S. 640, 642, 56
L. ed. 928, 931, 32 Sup. Ct. Rep. 580; Oakes
7. United SUtes, 07 C. C. A. 139, 172 Fed.
305, 307. It is upon this view that the
execution of the general act and other simi-
lar acts has proceeded. Re Dole, 30 Land
Dec. 632; Re Shaw, 40 Land Dec. 9; Re In-
structions, 42 Land Dec. 446; Re Gassman,
42 Land Dec. 682; Woodbury v. United
States, supra.
As calling for a different construction
of the Nelson act the defendant relies upon
the provision for a census of the Indians,
and upon the report of the negotiations
with tliem resulting in the cession contem-
plated by the act, the contentions advanced
being that the provision for a census makes
it clear that the census when completed
was to be accepted aa finally determining
who were to receive allotments, and that
the report of the negotiations shows that
the Indians gave their assent to the cession
in the belief that the right to select and
receive an allotment would not [67] be
terminated by death, but woi^ld pass to the
heirs of the deceased. We are unable to as-
sent to either contention. While the act di-
rected that a census be made '*for the pur-
pose," among others, "of making the allot-
ments" contemplated, we think this meant
nothing more than that the census should
serve aa a preliminary guide in ascertaining
to whom allotments should be made. There
was no direction that it be treated as con-
trolling, or that allotments be made to all
whose names appeared therein, or only to
iO Ii. ed.
them. The work of allotment could not be
undertaken at once. The cession was not
to be effective until approved by the Presi-
dent. Many of the Indians were to be
removed from the ceded reservations to the
White Earth Reservation, and much other
work was required to prepare the way. So»
it must have been contemplated that many
changes would occur in the membership of
the several bands through deaths and births
before the sdlotments could be made. In
Fairbanks v. United SUtes, 223 U. S. 216,
56 L. ed. 409, 32 Sup. Ct. Rep. 202, we
held that children bom into the bands after
the census were entitled to allotments, al-
though not listed in it, and we perceive
no reason for giving the census any greater
effect in this case than was given to it in
that. No doubt it is to be accepted as an
authorized listing of the members of the
several bands who were living when it was
made, but it has no other bearing in cases
like the present. The contention that the
Indians understood that the right to select
and receive an allotment would not be ter-
minated by death, but would pass to the
heirs of the deceased, is based upon excerpts
from addresses, made to the Indians by the
commissioners representing the government
in the n^otiations'. Even when read apart
from the context these excerpts afford little
basis for the contention, and when read
with the context they make against the con-
tention rather than for it. The real effect
of what was said was that on the death of
any Indian "after receiving an allotment"
the land would pass [68] to his heirs, which
is quite consistent with our construction of
the act.
The suit was brought between six and
seven years after the date of the trust
patent, and because of this it is urged that
the suit was barred by § 8 of the act of
March 3, 1891, chap. 561, 26 Stat, at L.
1090, Comp. Stat. 1913, § 6114 (see also
chap. 559, p. 1093), which provides that
"suits by the United States ... to
vacate and annul patents hereafter issued
shall only be brought within six years after
the date of the issuance of such patents."
This contention must be overruled upon the
authority of Northern P. R. Go. v. United
States, 227 U. S. 355, 367, 67 L. ed. 644,
550, 33 Sup. Ct. Rep. 368, where it was held
that this section is part of the public land
laws and refers to patents issued for public
lands of the United States. This trust
patent was not issued for public lands of
the United States, but for reserved Indian
lands to which the public land laws had
no application. And it may be well to ob-
serve in passing that the circuit court of
appeals directed that there be embodied in
the decree a provision that the government
es, U9
SUPREME COURT OF THE UNITED STATES.
Oct. Tdm,
holds the lands in the same way it held
them before the patent was issued, — ^that
is, as reserved Indian lands.
Another objection to the suit is predi-
cated upon the act of April 23, 1004, chap.
1489, 33 SUt. at L. 297, Comp. Stat. 1913,
§ 4212, limiting and defining the author-
ity of the Secretary of the Interior to cor-
rect mistakes in and to cancel trust patents
for Indian allotments; but of this it is
enough to say that we concur in tbe view
of the Circuit Court of Appeals that this
section, which makes no r^erence to the
courts, discloses no purpose to restrict or
define their jurisdiction or powers in suits
such as this.
Decree affirmed.
Mr. Justice McReynoIds took no part in
the consideration or decision of this case.
[69] CHARLES W. ANDERSON, Collector
of Internal Revenue, etc.. Petitioner,
V.
FORTY-TWO BROADWAY COMPANY.
(See S. 0. Reporter's ed. 69-73.)
Iiitornal revenue — corporation tax —
dedncttnjc interest on mort'^age debU
1. The amount to be deducted, on ac-
count of interest paid hj a realty corpora-
tion upon its mortgage indebtedness, when
fixing the excise tax imposed by the act of
August 5, 1909 (36 Stat, at L. 112, ohap.
6, Comp. Stat. 1913, § 6307), § 88, upon
the conduct of business in a corporate ca-
pacity, is governed by the express provision
of t 2 of that section, that in ascertaining
net income there shall be deducted from
^ross income interest actually paid by the
corporation within the year on its "bonded
or other indebtedness" in an amount not
oxceeding its capital stock, the effect of
which provision is not limited in this re-
spect by anything in the first clause of said
paragraph which permits the deduction of
"nil the ordinary and necessary expenses
actually paid within the year out of income
in the maintenance and operation of its
business and properties, including all charg-
es, such as rentals or franchise payments
required to be made as a condition to the
continued use or possession of property,"
Note. — On constitutional equality in the
United States in relation to corporate taxa-
tion— see note to Bacon v. State Tax Comrs.
60 L.RJl. 321.
As to when taxes illegally assessed may
be recovered back — see notes to Phelps v.
New York, 2 L.ILA. 626; State ex rel. Mc-
Carty ▼. Nelson, 4 L.RJ^. 300; and Erskine
V. Van Arsdalc, 21 L. ed U. S. 63.
On the constitutionality of an income tax
— see notes to Alderman v. Wells, 27 L.R.A.
(N.S.) 864; and State ex reL Bolena v. I
Frear, L.RJL.1916B, 669.
152
nor by the language of t 1 of such seotioa»
measuring the tax by reference to the cor-
poration's ''entire net income."
[For other cases, see Internal Revenue. TIT..
In Digest Sup. Ct 1908.]
Constitutional law — discrimination —
classification — corporation tax.
2. Construing the provisions of the
act of August 5, 1909 (36 Stat, at L. 112,
chap. 6, Comp. Stat. 1913, § G307), § 38,
imposing an excise tax measured by n^t in-
come upon the carrying on of bupiness in a
corporate capacity, as preventing a realty
corporation from deducting from gross in*
come the interest paid on mortgage, indebted-
ness in excess of its capital stock, does
not render the act repugnant to the Feder-
al Constitution as creating an arbitrary
and unreasonable classification.
[For other cases, see Constitutional Law, IT. a.
in Digest Sup. Ct. 1908.]
[No. 246.]
Argued October 18, 1915. Decided Novem-
ber 8, 1915.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Second Circuit to review a judgment
which aflfirmed a judgment of the District
Court for the Southern District of New
York in favor of plaintiff in an action
against a collector of internal revenue for
the refund of a tax. Reversed and remanued
to the District Court for further proceed-
ings.
See same case below, 130 C. C. A. 338, 213
Fed. 777.
The facts are stated In the opinion.
Assistant Attorney General Wallace ar-
gued the cause and filed a brief for peti-
tioner:
Coitrts will hesitate by construction to
negative the operation of a part of an act
of Congress.
Montclair Twp. r. Ramsdell, 107 U. 8.
147, 152, 2Y L. ed. 431, 432, 2 Sup. Ct
Rep. 891.
Moreover, a court will never undertake
to construe a statute unless there is dis-
closed a patent ambiguity.
United States v. Wiltberger, 5 Wheat. 76,
95, 5 L. ed. 87, 42; United States v. Balti-
more ft O. 8. W. R. Co. 222 U. S. 8, 13, 6$
L. ed. 68, 69, 32 Sup. Ct. Rep. 6.
The argument made on behalf of the re-
spondent that a construction of the act de-
priving mortgagors of the right to deduct
as an expense, intact paid on mortgages,
would work a great hardship and injustice
upon a single class of taxpayers, and thus
render the act unoonstitutional, has been
held unsound by this court.
Flint T. Stone Tntj Co. 220 U. S. 107,
55 L. ed. 389, 81 Sap. Ct. Rep. 842, Ann.
Qw. 1912B, 1312; Stratton's Independence v.
2S9 U. 8.
1915.
ANDERSON v. FORTY-TWO BROADWAY 00.
70,71
Howbert, 231 U. S. 399, 68 L. ed. 286, 34
Sup. Ct. Rep. 136. See also 28 Ops. Aity.
Gen. 199.
The "net income" to 1 per cent of which
the tax is to be equivalent is to be com-
puted, not according to principles of book-
keeping which would be applied by the ac-
countants or oflicers or stockholders of the
corporation, but upon a basis specifically set
forth bj Congress in the act itself.
Stratton's Independence t. Howbert,
supra.
A realty company, not being within the
specifically enumerated exceptions, neces-
sarily falls within the description of every
corporation organized for profit and having
a capital stock represented by shares.
Flint V. Stone Tracy Co. 220 U. S. 107,
55 L. ed. 389, 31 Sup. Ct. Rep. 342, Ann.
Cas. 1912B, 1312; MeCoach v. Minehill &
S. H. R. Co. 228 U. S. 296, 302, 303, 67
L. ed. 842, 845, 33 Sup. Ct. Rep. 419;
Zonne v. Minneapolis Syndicate, 220 t). S.
187, 55 L. ed. 428, 81 Sup. Ct. Rep. 361;
Lewcllyn v. Pittsburgh, B. ft L. EL R. Co.
137 C. C. A. 617, 222 Fed. 181.
Mr. Roger S. Baldwin argued the cause
and filed a brief for respondent:
The word ''bond" ihould not be construed
to include a mortgage. A bond and a mort-
^'a^e arc separate securities though for the
same debt, and the one does not include
the other. Thus a bond is defined in Bou-
vier's Law Dictionary as being "an obliga-
tion in writing and under seal," and this
definition is supported by the authorities.
Koshkonong v. Burton, 104 U. S. 668, 673,
26 L. ed. 886, 888.
A construction of the act which would
deprive mortgagors of the right to deduct,
as an expense, interest paid on mortgages,
would work a great hardship and injustice
imposed upon no other class of taxpayers.
Such construction would create an arbi-
trary and unreasonable classification, and
tiie act if so construed might, on this
ground, be held to be unconstitutional un-
der the 5th Amendment to the Constitution
of the United States.
Connolly v. Union Sewer Pipe Co. 184
U. S. 540, 560, 46 L. ed. 679, 690, 22 Sup.
Ct. Rep. 431 ; Cotting v. Kansas City Stock
Yards Co. (Cotting v. Qodard) 183 U. 6.
79, 111, 46 L. ed. 92, 109, 22 Sup. Ct. Rep.
30.
The corporation tax act should be admin-
istered upon tha basis of "receipts" and
'^ayments,'^ as expressly provided in the
law.
Mutual Ben. L. Ins. Co. v. Herold, 198
Fed. 214, afiBrmed in 120 a C. A. 266, 201
Fed. 918.
•• Ii. ed.
[70] Mr. Justice Pitney delivered tha
opinion of the court:
This was an action to recover a tax al*
leged to have been erroneously imposed upon
respondent for the year 1910 under the cor-
poration tax act of August 5, 1909 ( 36 Stat,
at L. 112, chap. 6, § 38, Comp. Stat. 1913,
§ 6307), and paid under protest, respondent
contending that, in ascertaining its net in-
come for the purposes of the tax, the entire
amount of the interest paid by it within the
year upon its mortgage indebtedness ought
to have been allowed, the result of which
would have been to leave no net income to bo
taxed; whereas the assessing ofTlcer allowed
a deduction of interest upon an amount
equal only to the capital stock of the com-
pany.
Respondent is a corporation of the class
commonly known as realty corporations, wus
organized for the purpose of constructing
and renting a building in the city of New
York, and transacts no other business. Its
paid-up capital stock is only $600, while it
has a bonded indebtedness of $4,750,0U0, se-
cured by mortgages upon its real estate, con-
sisting of a piece of land purchased and a
building constructed upon it substantially
with borrowed money, to secure the repay-
ment of which the bonds and mortgages
were given.
Both the district court (209 Fed. 991)
and the circuit court of appeals (130 C. C.
A. 338, 213 Fed. 777) held that the inter-
est payments upon the entire mortgage in-
debtedness were deductible from the gross
income of the corporation under clause 1 of
T[ 2, of § 38 of the act, and gave judgment
against the collector for a refund of the
entire tax.
Tliose portions of the section that are
essential to a determination of the con-
troversy are set forth in the margin, l The
district court, conceding that the provision
[71] of the third clause of the second para-
graph, standing alone, would constitute suffi-
cient authority for the action of the asses-
sor, nevertheless held that the force of this
provision must be limited, in view of the
general purpose of the section to tax only
"net income" (construed to mean ''gross in-
come after deducting all outgo necessarily
incident to the business"), and also in view
of the first clause of the second paragraph^
which permits of a deduction of "all ti&8
ordinary and necessary expenses actually
paid within the year out of income in the
nuiintenance and operation of its business
iSeo. 88. That every corporation . . •
organized for profit and having a capital
stock represented by shares . • . shall
be subject to pay annually a special excise
tax with respect to the carrying on or doing
16S
71-78
SUPREME COURT OF THE UNITED STATES.
Ooi. TkuCp
and properties, including all chargee such
as rentals or franchise pajments, required
to be made as a condition to the continued
use or possession of property/' The court
therefore held that, in the case of such a
corporation as respondent, the amounts
paid for interest on the mortgages must be
deducted in order to arrire at net income.
The circuit court of appeals entertained a
similar view, holding that such interest
payments, in the case of a realty corpora-
tion, were ordinary and necessary expenses
in the maintenance and operation of the
business, and were also charges required
[72] to be paid as a condition to the con-
tinued use or possession of its property,
within the meaning of subdivision 1; and
that subdivision 3 must be limited in its
effect to "the usual corporate indebtedness
which is not an ordinary expense of main-
tenance, nor a charge, payment of which is
a condition of the continued use or posses-
sion of property."
With these views we cannot agree. There
was error, as it seems to us, in seeking a
theoretically accurate definition of "net in-
come," instead of adopting the meaning
which is so clearly defined in the act itself.
As has been repeatedly pointed out by
this court in previous cases (Flint v. Stone
Tracy Co. 220 U. S. 107, 145, 150, 151, 65
L. ed. 380, 411, 413, 31 Sup. Ct. Rep. 342,
Ann. Cas. 1912B, 1312; McCoach v. Mine-
hill & S. H. R. Co. 228 U. S. 296, 306, et
seq., 67 L. ed. 842, 847, 33 Sup. Ct. Rep.
410; United States v. Whitridge, 231 U.
S. 144, 147, 58 L. ed. 159, 161, 34 Sup. Ct.
Rep. 24; Stratton*s Independence v. How-
bert, 231 U. S. 399, 414, 58 L. ed. 286, 291,
34 Sup. Ct. Rep. 136), the act of 1909 was
not in any proper sense an income tax law,
nor intended as such, but was an excise
upon the conduct of business in a corporate
capacity, the tax being measured by refer-
ence to the income in a manner prescribed
by the act itself. And it is very clear,
from a reading of § 38, that the phrase
"entire net income," as used in its first
-paragraph, has no other meaning than that
which is particularly set forth in the sec-
ond paragraph, which declares, in terms.
how "such net income shall b^ ascertained.**
It may well be that mortgage interest may,
under special circumstances, be treated as
among the "ordinary and necessary ex-
penses," or as included among the charges
''required to be made as a condition to tha
continued use or possession of property.**
See 28 Ops. Atty. Qen. 198. But interest
upon the "bonded or other indebtedness"
of the corporation, whether such indebted-
ness be secured by mortgage or not, comes
within the specific provision of the third
clause, whose ejQTect, in our opinion, is not
in this respect limited by anything con-
tained in the first. Congress evidently had
in view the fact that some corporations
(other than banks and like [73] institu-
tions, which, for obvious reasons, are sepa-
rately considered ) , carry a current indebted*
ness exceeding the amount of the paid-up
capital stock, and, with respect to such cor-
porations, intended to limit the interest de-
duction to so much of the indebtedness as
did not exceed the capital. N6r can we see
the least ground for the insistence that this
results in an arbitrary classification. It is
not necessary to attribute to Congress a
purpose to discourage or impose an extra
burden upon corporations carrying on their
operations with a nominal capital stock,
or with an indebtedness largely exceeding
the amount of the capital. It is more rea-
sonable to say that Congress deemed that
where the indebtedness does exceed the capi-
tal it should no longer be treated as an
incident, but that the carrying of the in-
debtedness should be considered as a prin-
cipal object of the corporate activities, that
the operations of such a corporation are con-
ducted more for the benefit of the creditors
than of the stockholders, and that the con-
tribution of the corporation to the expenses
of the government should be admeasured
with this fact in view. There is no question
of the power of Congress to adopt such a
basis of distinction, and, since the line must
be drawn somewhere, it was certainly not
arbitrary to draw it at the precise point
where the pecuniary interest of creditors
overbalanced that of stockholders.
Judgment reversed, and the cause re-
business by such corporation . . . equiv-
alent to 1 per centum upon the entire net
income over and above $6,000 received by
it from all sources during such year. . . .
Provided, however, That nothing in this
section contained shall apply to [certain
specified classes of or^nizations, not in-
cluding realty corporations].
Second. Such net income shall be ascer-
tained by deducting from the gross amount
of the income of such corporation . . .
received within the year from all sources,
(first) all the ordinaiy and necessary ex-
psBsses actually paid within the year out of
J54
income in the maintenance and operation of
its business and properties, including all
charges such as rentals or franchise pay-
ments, required to be made as a condition to
the continued use or possession of property;
. . (third) interest actually paid with-
in the year on its bonded or other indebted-
ness to an amount of such bonded and
other indebtedness not exceeding the paid-
up capital stock of such corporation, . . .
and in the case of a bank, banking associa-
tion or trust company, all interest actually
paid by it withm the year on deposit;
ast u. 8,
1916.
UNITED STATES ▼. BASNOW.
73,74
■***^*^ to the Diitrict Court for further
prooeedingt in Mcordaoee with this opin*
ion.
Mr. Jnttice McReynoIds took no part
In the consideration or deciaion of this case.
Argued Oetober 18, 1915. Decided Norem-
bar 8, 1916.
[74] UNITED STATES, PUT. in Err,
V.
M. J. BABNOW.
(See 6. C. Reporter'a ed. 74-80.)
False peraonatioa — noneziatinff oflloe
or employment.
1. A faJae repreaentation aa to some
oflioe or empiojment which liaa no legal or
actual exiitcnee, aa well aa a false pereona-
tion of a particular Federal officer or em-
ployee, or lalae pretense of holding an office
or employment that actually exists in the
Federal government, is comprehended by
the proTiaiona of the Federal Criminal
Code, f 82, for the punishment of one who,
with intent to defraud, falsely assumes or
pretends to he an officer or employee acting
under the authority of the United States, or
any department, or any officer of the govern-
ment tiiereof, and takes upon himself to act
as £uch, or who, in such pretended character,
demands or obtains anything of value
from any person or from the I^ited States
or any department, or officer of the gov-
ernment.
State — relation to Federal government
— erltnefi.
2. Congress did not encroach upon the
functions of the several states to protect
their own citizens and residents from fraud
by enacting the provisions of the Federal
Criminal Code, $ 32, under which a person
may be criminally punished for falsely as-
suming or pretendmg, with intent to de-
fraud, to be a Federal officer or employee,
although the office or employment to which
the accused pretends title may have no legal
or actual existence.
IFor other cases, see States, IV. k. In Digest
Sup. Ct. 1008.]
Falae personation — complete offense —
Injury to party defrauded.
3. The consummation of the fraud,
with consequent injury to the party de-
frauded, is not essential to complete the
offense denounced by the Federal Criminal
Code, I 32, which provides for the punish-
ment of one who, with intent to defraud,
falsely assumes or pretends to he an officer
<v employee acting under the authority of
the tinited Statea, or any department, or
ainr officer of the government thereof, and
taaea upon himself to act aa such, or who,
in such pretended character, demands or ob-
tains anything of value from anv person or
fnnn the United States or any department,
or officer of the government.
I
[No. 454.]
•• Ii. ed.
N EREOR to the District Court of the
United SUtes for the Eastern District
of Pennsylvania to review a judgment sus-
taining a demurrer to an indictment which
charges the false personation of a Federal
employee. Reversed and remanded for fur-
ther proceedings.
See same case below, 221 Fed. 140.
The facts are stated in the opinion.
Solicitor (General DaTia argued the cause,
and, with Mr. Robert SzoUi, filed a hrief
for plaintiff in error:
The distinction between false personation
of an individual and false pretense of official
authority appeara in many atatutea and de-
cisions.
Young V. Rex, 3 T. R. 98, 1 Revised Rep.
660; Reg. v. Hague, 4 Beat k S. 716, 33 L.
J. Mag. Caa. N. S. 81, 10 Jur. N. & 359,
9 L. T. N. S. 648, 12 Week. Rep. 310, 9
Cox, a C. 412; Whiteley t. Chappell, 11
Cox, C. C. 307, 38 L. J. Mag. Caa. N. S. 51,
L. R. 4 Q. B. 147, 19 L. T. N. S. 855, 17.
Week. Rep. 175; People v. Maurin, 77 CaL
436, 19 Par. 832; People v. Knox, 119 CaL
73, 51 Pac 19.
Pretense of official authority may be ae-
OMuplished without reference to any exist-
ing individuaL
LitteU V. United SUtes, 95 C. C. A. 148,
169 Fed. 620; United Statea v. Ballard. 118
Fed. 757; United SUtes v. Brown, 119 Fed.
482; United SUtea v. CurUSn, 43 Fed. 433;
Brown ▼. SUte, — Tex. Crim. Rep. — , 170
S. W. 714; Com. T. Connolly, 97 Masa. 591;
Lansing v. People, 67 111. 241.
The intent to defraud being present, a
failure to eonaummaU the fraud Is no de-
fense.
Com. T. Wilgua, 4 Pidc 177; Pearee ▼.
State, 115 Ala. 115, 22 So. 502; SUte t.
Thatcher, 35 M. J. L. 445; Reg. ▼. Bloom-
field, Car. ft M. 537, 6 Jur. 224; State v.
Lewis, 41 La. Ann. 590, 6 So. 536; 2 Wharl
Crim. Law, 11th ed. 1641, f 1467; Rex v.
Ady, 7 Car. ft P. .140; Heas v. SUte, 5
Ohio, 12, 22 Am. Dec. 767 ; StaU ▼. Wash-
ington, 1 Bay, 120, 1 Am. Dec 601; Com.
T. Ladd, 15 Mass. 526; United Ktates ▼.
Lawrence, 13 Blatehf. 211, Fed. Cas. No.
15,572.
To susUin a charge of fraud it is not
neoeesary to show any injury in pecuniary
or property sense susUined by the person
defrauded.
Haas V. Henkel, 216 U. & 462, 480, 54
L. ed. 569, 577, 30 Sup. a. Rep. 249, 17
Ann. Caa. 1112; United SUtes v. Plykr,
222 U. S. 15, 17, 56 L. ed. 70, 32 Sup. Ct.
Rep. 6.
76-77
SUPREME COURT OF THE UNITED STATES.
Oct.
Mr. Daniel Thew Wright axgucd the
cause, and, with Messrs. T. Morris Wamp-
ler and Henry D. Green, filed a brief for
defendant in error:
The act creates two distinct offenses.
United States v. Curtain, 43 Fed. 433;
United States v. Taylor, 108 Fed. 621;
United - States v. Farnham, 127 Fed. 478;
United States ▼. Rush, 196 Fed. 570: Lit-
tel) V. United States, 05 C. C. A. 148, 100
Fed. «21.
ThA construction sought by the govern*
ment would invalidate the statute.
United SUtes v. Fox, 05 U. S. 670-673, 24
L. ed. 538-540 ; United SUtes v. Harris, 106
U. S. 620, 27 L. ed. 290, 1 Sup. Ct. Rep.
601.
An element made essential to guilt by
the statute must be alleged and proven in
the courts.
United States v. Farnham, 127 Fed. 478;
People ▼. Cronin, 80 Mich. 646, 45 N. W.
479.
[75] Mr. Justice Pitney delivered the
opinion of the court:
This case is brought here under the crimi-
nal appeals act (34 Stat, at L. 1246, chap.
2564, Comp. Stat. 1913, § 1704), to review
a judgment of the district court (221 Fed.
140), sustaining a demurrer to an indict-
ment founded upon § 32 of the Criminal
Code of March 4, 1009 (35 Stat, at L. 1088,
1095, chap. 321, Comp. Stat. 1913, §§ 10,165,
10,196). By that section these offenses are
prohibited :
(1) With Intent to defraud either the
United States or any person, the falsely as-
suming or pretending to be an officer or
employee acting under the authority of the
United States, or any department, or any
officer of the government thereof, and tak-
ing upon oneself to act as such.
(2) With intent to defraud either the
United States or any person, the falsely as-
suming or pretending to be an officer or
employee, etc., and in such pretended char-
acter demanding or obtaining from any per-
son or from the United States, or any de-
partment, or any officer of the government
thereof, any money, paper, document, or
other valuable thing.
The indictment contains six counts, of
which the first, third, and fifth are based
upon the former, and the second, fourth,
and sixth upon tiie latter of these prohibi-
tions. The first count charges that defend-
ant, with intent to defraud a certain per-
son named, did falsely pretend to be an
empl<yyee of the United States acting under
the authority of the United States, to wit,
an agent employed by the government to sell
a certain set of books entitled, "Messages
and Papers of Presidents," and did then
156
and there take upon himself to act as such
agent, in that he visited tlie person named
and falsely pretended to him that he was
such an employee of the United States, em-
ployed as aforesaid for thu purpose afore-
said. The third and fifth counts differ only
as to the names of tbe persona mentioned
and the dates of the alleged offenses.
[76] The second count charges that de-
fendant, with intent to defraud a certain
person named, did falsely pretend to be an
employee of the United States acting under
the authority of the United States, to wit,
an agent employed by the government to sell
a certain set of books entitled, ''Messuges
and Papers of Presidents," and in such pre-
tended cliaracter did obtain from the per-
son named the sum of $10, which he would
not have given to defendant unless he had
supposed him to be an employee of the gov-
ernment, and had supposed that the money
was to be paid over to the government on
account of the subscription price of the
books, etc. The fourth and sixth counts
are in like form.
It was and is admitted that there waa
not in existence such an employee or such
an employment as it was alleged the de-
fendant pretended.
The district court held that the gist of
the offense is the false personation of an
officer or employee of the United States,
and in order to constitute such an offense
there must be personation of some particu-
lar person or class of persons, since there
cannot be a false personation of a sup-
posititious individual who never existed
or whose class never existed. Upon thia
construction of the statute, all of the counts
fell.
We think this is to read the act in too
narrow a sense. Not doubting that a false
personation of a particular officer or em-
ployee of the government, or a false pretense
of holding an office or employment that
actually exists in the government of the
United States, is within the denunciation
of § 32, we tiiink it has a broader reach.
No convincing reason is suggested for con-
struing it more narrowly than the plain
import of its language. To "falsely assume
or pretend to be an officer or employee act-
ing under the authority of the United
States, or any department, or any officer of
the government thereof," is the thing pro-
hibited. One who falsely assumes or pre-
tends [77] to hold an office that has a <fe
fure existence is admittedly within its mean*
ing. That is, where the assumption or
pretense is false in part, but contains a
modicum of truth, the statute is violated.
Why should it be deemed less an offense
where the assumption or pretense is en-
tirely false, as where ths very office or em-
239 V. S»
1916.
UNITED STATES ▼. BARNOW.
77-79
plojment to which the accused pretends
title has no legal or actual existence 7 It
is insisted that the words next following —
''ahall take upon himself to act as such,
or shall in such pretended character de-
mand or obtain/' etc. — indicate an intent to
punish only false personation of existing
<Acer8 or employees, and not a false rep-
resentation as to some supposititious em-
ployment by the government. But to "take
upon himself to act at such" means no more
than to assume to act in the pretended
character. It requires something beyond
the false pretense with intent to defraud;
there must be some act in keeping with the
pretense (see People t. Cronin, 80 Mich.
646, 45 N. W. 479); but it would strain
the meaning of the section to hold that
the offender must act as a veritable officer
of the government would act. And so, in
the second branch of the section, the de-
manding or obtaining of the thing of value
must be done "in such pretended character,"
— ^words that are far from importing that
the office or employment must be one that
is duly established by law.
It is said that to give to the statute the
broader meaning extends it beyond the limi-
tations that surround the power of Con-
gress, and encroaches upon tl^e functions of
the several states to protect their own citi-
aens and residents from fraud. We are re-
ferred to United States v. Fox, 95 U. S.
670, 672, 24 L. ed. 538, 589, where H was
declared by Mr. Justice Field, speaking for
the court: "An act committed within a
state, whether for a good or a bad purpose,
or whether with an honest or a criminal in-
tent, cannot be made an offense against the
United States unless it have some relation
to the execution of a power of Congress, or
to some matter [78] within the jurisdiction
of the United States. An act not having any
such relation is one in respect to which the
state can alone legislate." Accepting this
criterion, the legislation now under con-
sideration is well within the authority of
Congress. In order that the vast and com-
plicated operations of the government of
the United States shall be carried on suc-
cessfully and with a minimum of friction
and obstruction, it is important— or, at
least. Congress reasonably might so con-
sider it — not only that the authority of
the governmental officers and employees be
respected in particular cases, but that a
spirit of respect and good will for the gov-
ernment and its officers shall generally pre-
vail. And what could more directly impair
this spirit than to permit unauthorized
and unscrupulous persons to go about the
country falsely assuming, for fraudulent
purposes, to be entitled to the respect and
credit due to an officer of the govemmentt
•• I«. ad.
It is the false pretense of Federal authority
that is the mischief to be cured; of course,
only when accompanied with fraudulent in-
tent, but such a pretense would rarely be
made for benevolent purposes. Now, the
mischief is much the same, and the power
of Congress to prevent it is quite the same,
whether the pretender names an existing or
a nonexisting office or officer, or, on the oth-
er hand, does not particularise with respect
to the office that he assumes to hold.
Obviously, if the statute punished the of-
fense only when an existing office was as-
sumed, its penalties could be avoided by the
easy device of naming a nonexistent office.
Therefore, it seems to us, the statute is
to be interpreted according to its plain
language as prohibiting any false assump-
tion or pretense of office or employment
under the authority of the United States,
or any department or officer of the govern-
ment, if done with an intent to defraud, and
accompanied with any of the specified acts
done in the pretended character, and the
district court [79] erred in attributing to
the act a more restricted meaning.
We think there was further error in the
ruling of the court that the even-numbered
counts must fall for the reason, as expressed
in the opinion, that there was no allegation
to sustain a charge that Hhe person alleged
to be defrauded was deprived of any right,
interest, or property, or that he was cheated
or overreached. In this the coiurt followed
United States v. Rush, 196 Fed. 579.
Since our review, under the criminal ap-
peals act, is confined to passing upon ques-
tions of statutory construction, we are not
here concerned with the interpretation
placed by the court upon the indictment.
United States v. Patten, 226 U. S. 525, 535,
57 L. ed. 333, 338, 44 L.R.A.(N.S.) 325,
33 Sup. Ct. Rep. 141, and cases cited. We
must, for present purposes, accept that in-
terpretation; hence, we express no opinion
as to whether the district court erred in
holding that the even-numbered counts did
not allege a consummated fraud. The ques-
tion with which we have to deal is whether
the second branch of S 32 of the Criminal
Code, upon which the even-numbered counts
are founded, requires that the fraud shall
be consummated, with consequent injury to
the party defrauded, in order that the of-
fense shall be complete.
It has been held that in an indictment
under § 5440, Rev. Stat., for a conspiracy
to defraud the United States, it is not es-
sential that the conspiracy shall contem-
plate a financial loss, or that one shall re-
sult; and that the statute is broad enough
to include any conspiracy for the purpose
of impairing, obstructing, or defeating the
lawful function of any d^artment of the
157
70-82
SUPREME CX)URT OF THE UNITED STATES.
Oct.'Tbk,
government. Haas ▼. Henkel, 216 U. S.
462, 479, 54 L. ed. 669, 677, 30 Sup. Ct. Rep.
249, 17 Ann. Cas. 1112. And with respect
to § 5418, Rev. Stat., prohibiting the forging
of any public record "for the purpose of
defrauding the United States/' a similar
decision was reached. United States ▼.
Plyler, 222 U. S. 16, 66 L. cd. 70, 32 Sup.
Ct. Rep. 6.
Like reasoning, we think, must be applied
to § 32 of [80] the Criminal Code, whether
the United States or "any person" be the in-
tended victim. If, with intent to defraud,
and by falsely assuming or pretending to
be an officer or employee acting under the
authority of the United States, the accused
shall, in the pretended character, have de-
manded or obtained any money, paper, docu-
ment, or other valuable thing, the offense
is complete, notwithstanding some valuable
consideration was offered or given by the
pretended employee for that which he de-
manded or obtained. It is the aim of the
section not merely to protect innocent per-
sons from actual loss through reliance upon
false assumptions of Federal authority, but
to maintain the general good repute and
dignity of the service itself. It is incon-
sistent with this object, as well as with the
letter of the statute, to make the ques-
tion whether one who has parted with his
property upon the strength of a fraudulent
representation of Federal employment has
received an adequate quid pro quo in value
determinative. Of course, we do not mean
to intimate that it may not in a proper case
be taken into consideration as a circum-
stance evidential upon the question of in-
tent.
The judgment must be reversed, and the
cause remanded for further proceedings in
accordance with this opinion.
Reversed.
Mr. Justice McReynoIds took no part
in the consideration or decision of this case.
[81] NATIONAL BANK OF ATHENS,
Appt.,
V.
F. 0. SHACKELFORD, Trustee in Bank-
ruptcy for J. N. Webb.
(See S. C. Reporter's ed. 81, 82.)
Appeal — review of facts — concurrent
findings.
Concurrent findings of the two lower
courts that, as a matter of fact, a mort-
NoTB. — On appellate jurisdiction of Fed-
eral Supreme Court over circuit courts of
apptals— see notes to Bagley v. General Fire
Extinguisher Co. 63 L. ed. U. S. 605; and
St. Anthony Church v. Pennsylvania R. Co.
69 L. ed. U. S. 1119.
158
gage on real property was void as to the
creditors of the mortgagor because it waa
executed and withheld from record for the
purpose of hindering, delaying, or defraud-
ing them, will not be disturbed on i^)peal
unless clearly shown to be erroneous.
[For other cases, see Appeal and Error, 4931-
4959, in Digest Sup. Ct. 1008.]
[No. 40.]
Argued October 29, 1916. Decided November
8, 1915.
APPEAL from the United States Circuit
Court of Appeals for the Fifth Circuit
to review a decree which affirmed a decree
of the District Court for the Northern Dis-
trict of Georgia, adjudging a mortgage deed
invalid as against general credit4)r8 of the
mortgagor. Aflirmed.
See same case below, 126 C. C. A. 676,
208 Fed. 677.
The facts are stated in the opinion.
Mr. Jolm J. Strickland argued the
cause, and, with Mr. Roy M. Strickland,
filed a brief for appellant.
Messrs. Lamar O. Rack<sr and Horace
M. Holden argued the cause, and, with
Messrs. Stephen C. Upson, Andrew J. Cobb»
and Howell C. Erwin, filed a brief for ap-
pellee.
Mr. Justice McReynoIds delivered the
opinion of the court:
This controversy arose in a bankruptcy
proceeding, and was begun in the United
States district court for the northern dis-
trict of Georgia. Appellant claims that it
holds a valid lien on certain real estate in
the city of Athens, formerly the property
of the bankrupt, Webb, under a mortgage
deed executed by him November 6, 191 1»
[82] but not recorded until noon, August
14, 1912, a few hours before the petition in
involuntary bankruptcy was filed. Among
other things, the trustee asserts that the
mortgage it void as to creditors because
fraudulently withheld from record. Bank-
ruptcy act, I 70. Georgia Code, 1910, §
3224.
Having heard the witnesses and upon the
entire evidence, the district court, citing and
purporting to follow Re Duggan, 106 C. C.
A. 51, 183 Fed. 405 (1910), found and ad-
judged the deed invalid as against general
creditors. Affirming this action, the circuit
court of appeals for the fifth circuit de-
clared: "The evidence in this case tends
strongly to show that, although the mort-
gage given by the bankrupt to the appellant
was for a valid consideration and effective
as between the parties thereto, the same by
understanding, if not agreement, was with-
239 U. 8.
1911.
PABKER V. MONROIQ.
82, 8S
Md from record,, so as not to affect the
nortgagor's credit; and we therefore concur
with the trial judge in his disposition of
the case." 125 C. C. A. 676, 676, 208 Fed.
677, 678. In the Duggan Case the same
court had held fraudulent and void, both as
to prior and subsequent creditors, a chattel
mortgage executed by a bankrupt, but with-
held from record under agreement so to do
because of the effect which recordation
would have on her credit.
Considering all said and adjudicated by
the two courts below, we must conclude they
concurred in finding, as matter of fact, that
the mortgage in question Was void as to
creditors because executed and withheld
from record for the purpose of hindering,
delaying, or defrauding them. The rule is
well settled that a finding of this nature
will not be disturbed upon review here un-
leM clearly shown to be erroneous. Wash-
ington Securities Co. v. United States, 234
U. a 76, 78, 68 L. ed. 1220, 1222, 34 Sup.
Ct Rep. 726; Stuart v. Hayden, 169 U. S.
1, 14, 42 L. ed. 639, 643, 18 Sup. Ct. Rep.
274. An examination of the record reveals
no dear error, and, accordingly the judg-
ment appealed from must be affirmed.
[88] OORKELIUS B. PARKER and Janie
B. Parker, His Wife, Appts.,
V.
ANTONIO MONROIQ et al.
(See 8. C. Reporter's ed. 83-87.)
Husband and wife — community prop-
erty — conveyance without wife's con-
1. A contract between a married man
owning an option to buy certain real prop-
ertar and a corporation, by which the latter,
as part eonsideration for its agreement to
purchase a part of the property embraced in
the option, was given an easement of way
over the entire property, is not invalid be-
cause the wife did not assent thereto, as is
essential in Porto Rico to the valid disposi-
tioo of real property by the community,
since by such contract the exercise of the op-
tion was submitted to a limitation which
followed the property into the hands of the
community and diminished the estate which
it would otherwise have been entitled to
under the option, and the community is
therefore under a legal obligation to respect
and give effect to the easement, — especial-
ly since the community secured through the
eontraet with the corporation the means,
la part, at least, to enable it to acquire, un-
der the option, the property which remained.
[For other cases, eee Husband and "Wife. II.
^ e; II. g, to Digest Sup. Ct 1008.1
NoTB. — On specific performance of con-
tracts for conveyance where wife refuses to
unite in the conveyance — see note to Bar-
bour V. Hickey, 24 L.R.A. 763.
•• Ii. ed.
liimitation of actions — when action
barred — specific performance.
2. The right to enforce full performance
of an agreement by the holder of an option
on real property to grant to a corporation
upon condition of its purchase of a part of
the property, an easement of way over the
entire property, is not barred where the
former refuses to grant the easement over
that part of the property embraced in the
option which was not included in the cor-
poration's purchase, by the limitation pre-
scribed by Porto Rico Ck>de 1913, § 4481,
which on its face is plainly applicable only
to actions for lesion in cases of sale em-
braced by § 4480 of the same Code.
[For other canes, see Limitation of Actions,
III. g, in Digest Sup. Ct 1908.]
[No. 287.]
Submitted October 12, 1916. Decided No-
vember 16, 1916.
APPEAL from the District Court of the
United States for Porto Rico to re-
view a decree in favor of complainant in a
suit for specific performance. Affirmed.
See same case below, 6 Porto Rico Fed.
Rep. 695.
The facts are stated in the opinion.
Mr. N . B. K. Pettlnglll submitted the
cause for appellants:
In Porto Rico real estate of a conjufral
partnership can be alienated only with the
consent of both husband and wife.
Amadeo v. Registrar of Property, 8 D. P.
R. 134; Caballero v. Registrar of Property,
12 P. R. R. 214; Boscio v. Registrar of
Property, 14 P. R. R. 606; Vidal v. Reg-
istrar of Property, 12 P. R. R. 198.
Any leasehold right capable of being re-
corded in the registry is real property.
Porto Rico General Teleph. Co. v. Regis-
trar of Property, 18 P. R. R. 823.
The contract being void, specific per-
formance could not be enforced.
Hedges v. Dixon County, 150 U. S. 182,
192, 37 L. ed. 1044, 1048, 14 Sup. Ct. Rep.
71.
Moreover, the wording of the Porto Ricsn
statute prohibiting the disposal of conjugal
real estate without joint consent makes such
contract analogous to contracts for the con-
veyance of homesteads by one of the spouses
under the laws nf many states. We believe
it is uniformly held that such contracts are
void, and, by the weight of authority, that,
being void, they do not even create an es-
toppel against the spouse who signs them.
Stevens v. Parish. 20 Ind. 260, t'5 Am.
Dec. 636; Crlm v. Nrlms, 78 Ala. 604;
Law V. Butler, 44 Minn. 482, 9 L,R.A. 866,
47 N. W. 63; Biuner v. Bateman, 66 Iowa,
488, 24 N. W. 9; Meek v. Langc, 65 Neb.
786, 91 N. W. 696; Hodges v. Famham, 4ft
159
84-80
8UPBJSME COURT OF THS UNITBD STATES.
Oct. TKUC9
Kan. 777, 31 Pac. 606; Richards ▼. Greene,
73 111. 54.
Specific periormance is never decreed
against one not a party to the cimtract.
Baltzcr v. Raleigh & A. Air Line R. Co.
115 U. S. 634, 648, 29 L. ed. 505, 510, 6
Sup. Ct. Rep. 216; Waterman, Specific
Performance, § 511; Graybil) v. Br*igh. 89
Va. 899, 21 L.R.A. 133, 37 Am. St. Rep.
894, 17 S. E. 558; Bateman v. Riley, 72 N.
J. Eq. 316, 73 Atl. 1006; Richmond v. Roh-
inson, 12 Mich. 193.
Apart from all other considerations, ap-
pellees could not be entitled to specific per-
formance in the absence of any allegation of
fraud or mistake, which could serve as a
basis for the reformation of the contract as
precedent to its specific enforcement in the
manner decreed.
Parish v. United SUtes, 8 Wall. 489, 19
L. ed. 472; American Colortype Co. v.
Continental Colortype Co. 188 U. S. 104,
107, 47 L. ed. 404, 405, 23 Sup. Ct. Rep.
265; Van Ness v. Washington, 4 Pet. 232,
282, 7 L. ed. 842, 859.
Messrs. Frederick S. Tyler and Frank
Antonsanti submitted the cause for appel-
lees.
Mr. Chief Justice White delivered the
opinion of the court:
W. G. Henry, who had leased to Corne-
lius B. Parker, a married man, two farms,
one Rio Hondo, containing 440 acres, and
the other £1 Quinto, embracing 278 acres,
gave him in writing an option to buy both
for the sum of $37,000 in gold, payable on or
before May 1, 1911. Shortly before that
period Parker and the Successors of A. Mon-
rdlg, a sugar manufacturing corporation,
agreed the one to sell amd the other to buy
a piece of land "composed of about 200
acres, a part of the farm known as El
Quinto," for $125 per acre, and on the same
day an agreement in writing was executed
between the parties by which Parker created
in favor of the corporation an [85 J ease-
ment of way across the farms El Quinto and
Rio Hondo for the operation of a private
railway, conditioned on the carrying out by
the corporation of the purchase of the por-
tion of El Quinto as stated in the option con-
tract. The option and the agreement to buy
were both consummated. Parker acquired
the two farms and the corporation bought
from Parker 207 acres out of the farm El
Quinto, about 70 acres, therefore, remain-
ing in Parker. The formal deeds accom-
plishing this result are not in the record,
but as found by the court below, and not
disputed, the matter was so arranged that
the $25,875 due for the part of El Quinto
bought by the corporation was made avail-
leo
able for Parker, so that he was enabled U^
use it as part of the $37,000 which, undsr
the option, he was to pay for the purchase
of the whole of El Quinto and Rio Hondo.
It further appears from the opinion below
that nothing was said in the deed to tho
corporation as to the right of way over the
strip remaining of El Quinto, but at or
about the time of the sale a deed was
drawn by Parker and his wife, giving to
the corporation the right of way over Rio
Hondo as provided in the option contract.
A controversy grew up between Parker
and the corporation as to whether the cor-
poration had not lost the right to the ease-
ment of way over the portion of El Quinto
retained by Parker, and an attempt of tho
corporation to exercise the right of servitude
was interfered with. This suit was then
brought by the corporation and thfe appeal
is prosecuted to obtain the reversal of a
decree rendered in favor of the corporation,
directing the performance of the contract
concerning the easement, and preventing the
interference with the enjoyment of such
right.
It is apparent that the substantial contro-
versy is a very narrow one, concerning only
the easement of way over the small strip of
the farm El Quinto remaining after carving
out the portion of that farm bought by the
corporation. And the contention as to tho
nonexistence of [86] the right of way rests
exclusively upon a challenge of the validity
of the contract as to the right between
Parker and the corporation. The contention
is that by virtue of the purchase made from
Henry of the two farms, they became oo-
qu^ia of. the community existing between
Parker and his wife, and as, under the Porto
Rican law, the assent of the wife to the
disposal of real property of the community
was essential, and such assent was not giv-
en by the wife, Parker alone having been a
party to the contract giving the corporation
the right of way, that contract was absolute-
ly void and not susceptible of being enforced.
But the error lies in assuming that the
property was community property when the
option contract was made in order to meas-
ure its legality by such erroneous assump-
tion. On the contrary, when the contract
made by Parker, giving the right of way,
was entered into, the property belonged to
Henry, and the only right possessed by
the community was that which might arise
from the exercise by Parker, the head and
master of the community, of the option to
buy from Henry which he, Parker, had pro-
cured. When, therefore, before the exercise
of the option, Parker agreed to the establish-
ment of the right of way to attach to the
property When bought under his option, suoh
contract modified to that extent the right to
ISt V. 8.
1915.
UNITED STATES ▼. NEW YORK 4 P. R. S. S. 00.
86-88
hnj conferred bj the option; or, in other
words, submitted the exercise of the option
to a limitation which followed the pn^rty
into the hands of the community and dimin-
ished the estate which it would otherwise
have been entitled to irader the option. Ob-
riously from this it results that there was
a legal obligation on the part of the com-
munity to respect and give effect to the right
of way, and that its refusal to do so gave
rise to the duty of exerting judicial power to
compel performance. And the cogency of
these conclusions becomes additionally con-
vincing when it is considered that there is
DO contention as to wrong against the com-
munity resulting from the contract which
gave to the [87] corporation a right to buy
a part of the property covered by the option
held by Parker, especially when, from the
surrounding circumstances, it is clearly to
be deduced that the agreement to give to the
corporation the right of way was one of the
considerations by which it was led to con-
sent to become a purchaser of part of the
property which the option embraced, there-
by in part, at least, affording the means by
which Parker was enabled to acquire irader
the option the property which remained.
The claim now made thus reduces itself to
the contention that the right of the conunun-
itj to purchase under the option must be by
it enjoyed free from the obligations insepar-
ably resulting from its exertion; or, in an-
other aspect, that the community, having
secured through its contract with the cor-
poration the means to enable it to pay for
the property which it acquired, can r^in
the ])ropcrty free from the obligation in-
curred in favor of the corporation.
There is a contention that the right to
enforce the agreement to grant the servitude
of way is barred by the limitation provided
in § 4481 of the Porto Rican Code of 1^13
(§ 1375 of the previous Code). But, on the
lace of the provision relied upon, it is
plainly applicable only to actions for lesion
in caaes of sale embraced by § 4480 of the
same Code, and has therefore no possible re-
lation to the subject before us. So, also,
there is a contention that the decree below
was too broad since it enforced a perpetual
casement instead of one depending upon the
ccmtinued use of the property for the pur-
poses for which the easement was created.
But we think this contention is also wholly
without merit, because the decree, when
rightly interpreted, is not susceptible of the
extreme construction placed upon it.
Affirmed.
60 L. ed. 11
[88] UNITED STATES OF AMERICA,
Plff . in Err.^
NEW YORK 4 PORTO RICO STEAMSHIP
COMPANY.
(See S. C. Reporter's ed. 88-03.)
United States — contracts — formal
requisites — Miforoement Against
private party.
The failure to reduce a contract made
by the authority of the Secretary of the
Navy on behalf of the government to writ-
ing ^'signed by the contracting parties, wiUi
their names at the end thereof,'^ as required
by U. 8. Rev. Stat § 3744, Comp. Stat. 1913,
§ 6895, does not preclude the enforcement
of such contract by the government against
the other par^ thereto, although such non-
compliance with the statute renders the
contract unenforceable against tiie govern-
ment.
[ For 'other cases, see United States, VI. b. in
Digest Sup. Ct. 1908.]
[No. 44.]
Argued November 3, 1015. Decided No-
vember 15, 1916.
IN ERROR to the United States Circuit
Court of Appeals for the Second Circuit
to review a judgment which, on a second
writ of error, affirmed a judgment of the
District Court for the Southern District of
New York in favor of defendant in an ac-
tion by the United States upon a public
contract. Reversed.
See same case below, on first writ of
error, 124 C. C. A. 325, 206 Fed. 443; on
second writ of error, 126 C. C. A. 668, 209
Fed. 1007.
The facts are stated in the opinion.
Solicitor General DaTis argued the cause,
and, with Mr. Robert Szold, filed a brief
for plaintiff in error:
U. S. Rev. SUt. S 3744, Comp. SUt. 1913,
§ 6895, is no bar to a suit by the government
on executory parol contracts.
1. The statute does not render the con-
tract illegal, but only un^iforceable. It
affects not the validity of the contract, but
the remedy thereon.
CUrk V. United States, 96 U. S. 639, 24
L. ed. 518; St Louis Hay & Grain Co. v.
United SUtes, 191 U. S. 169, 48 L. ed. 130,
24 Sup. Ct. Rep. 47; United States ▼. An-
drews, 207 U. S. 229, 52 L. ed. 185, 28
Sup. Ct. Rep. 100; Browne, Stat. Fr. 6th
ed. S 115a.
2. Section 3744, Revised Statutes, is sole-
ly for the protection of the government.
Clark ▼. United States, 95 U. S. 539, 24
L. ed. 518; Dollar Sav. Bank ▼. United
States^ 19 WalL 227» 22 L. ed. 80; United
181s
90, 01
8UPH£M£ COURT OF THE UNITED STATES.
Oct. Temm,
SUtef T. Verdier, 164 U. S. 213, 41 L. ed.
407, 17 Sup. Gt. Rep. 42.
3. The government may waive compliance
with statutory forma required for its pro-
tection.
Bailey v. United States, 109 U. S. 432,
27 L. ed. 088, 3 Sup. Ct. Rep. 272; Mc-
Qowan v. Parish, 237 U. S. 286, 294, 295,
59 L. ed. 955, 962, 963, 35 Sup. Ct. Rep.
543.
4. Since the government is not expressly
named in the statutes, its remedy by suit on
a valid common-law contract is not barred.
The government may take the benefit of a
statute, but it is not bound thereby unless
expressly named.
Stanley v. Schwalby, 147 U. S. 508, 514,
515, 517, 37 L. ed. 259, 262, 263, 13 Sup.
Ct Rep. 418, 162 U. S. 255, 40 L. ed. 960,
16 Sup. Ct. Rep. 754.
The signed offer and acceptance in writing
constitute compliance with the statute.
Adams v. United States, 1 Ct. CI. 192;
Johnston v. United States, 41 Ct CI. 76.
The statute does not apply to executed
contracts, and is no bar to suit on a parol
contract after performance by plaintiff.
St. Louis Hay k Grain Co. v. United
States, 101 U. S. 159, 163, 48 L. ed. 130,
132, 24 Sup. Ct Rep. 47; United States v.
Andrews, 207 U. S. 229, 52 L. ed. 185, 28
Sup. Ct. Rep. 100.
Mr. James H. Hayden argued the cause,
and, with Messrs. Ray Rood Allen and Nor-
man B. Beecher, filed a brief for defend-
ant in error:
Soon after the passage of the section in
question it was held to be and was enforced
as a statute of frauds, operating upon the
transactions themselves rather than upon
the parties to them, and rendering absolute-
ly void and unenforceable all dealings in
the nature of agreements made otherwise
than in conformity with the procedure de-
scribed in the statute. This interpretation
has been adhered to consistently during the
period of more than fifty years.
Clark v. United States, 95 U. S. 539, 24
L. ed. 518; South Boston Iron Co. v. United
States, 118 U. S. 37, 30 L. ed. 69, 6 Sup.
Ct Rep. 928; Monroe v. United States, 184
U. S. 524, 46 L. ed. 670, 22 Sup. Ct Rep.
444; St Louis Hay & Grain Co. v. United
States, 191 U. S. 159, 48 U ed. 130, 24
Sup. Ct Rep. 47; Henderson v. United
States, 4 Ct. CI. 81; Danolds v. United
States, 5 Ct. CI. 65; McLaughlin v.
United States, 37 Ct CI. 185; Johnston v.
United States, 41 Ct CI. 76; Gillespie v.
United States, 47 Ct. CI. 310.
This is no more than an application of
the principle stated long ago in the case of
Russell V. De Grand, 15 Mass. 35. The
162
rule of law is of universal operation thai
none shall, by aid of a court of justice, ob-
tain the fruits of an unlawful bargain.
The effect that the courts have given to
U. S. Rev. Stat § 3744, Comp. Stat 1918,
S 6895, in this case, is in harmony with thai
given other statutes of the same nature.
Richmond Standard Steel Spike & Iron
Co. V. Chesterfield Coal Co. 87 C. C. A.
636, 160 Fed. 832.
Mr. Justice Holmes delivered the opinion
of the court:
lliis is a suit by the United States to
recover the increased cost of transportation
for coal, above a price that the defendant
had agreed to accept for the service; the
latter having notified the government thai
it would not furnish the steamers agreed.
There is no dispute as to the facts. On No-
vember 9, 1909, the plaintiff requested in
writing that the defendant make a tender
for the transportation of not less than 8,000
tons of coal from certain Atlantic ports at
the option of the plaintiff to Mare island
or San Francisco, with stipulations as to
[91] time. On November 13 the defendant
submitted an offer which the plaintiff ac-
cepted by telegraph on the same day. On
November 15 the defendant wrote, acknowl-
edging the telegram, and saying that it
could advise in due course what steamers it
would tender. There was further correspond-
ence on the footing of a mutual contract, but
on December 14, the defendant's attor-
ney wrote, stating that it believed that
a combination had been made with in-
tent *'to cause it to make default under
its ^engagement to your Department or
else to suffer heavy loss,'' and request-
ing the plaintiff to procure the trans-
portation if it could be done at reasonable
cost, letting the writer know the terms of
any contract before it was closed. The
plaintiff thereupon got the transportation
elsewhere. The declaration is in three
counts; two upon the contract and a third
for money paid at the defendant's request
At the first trial the plaintiff had judsrment
197 Fed. 995. This judgment was reversed
b}' the circuit court of appeals. 124 C. C. A.
325, 206 Fed. 443. At a second trial on
this same record both parties moved that
a verdict be directed, and a verdict was di-
rected for the defendant. The judgment waa
afiirmcd by the circuit court of appeals.
126 C. C. A. 668, 209 Fed. 1007.
The only matter for our consideration ia
whether the court below was right in ruling
as matter of law that there was no binding
contract, and therefore we may lay on one
side some details that were dwelt upon by
the defendant, but that do not affect thi»
230 U. S.
1915.
GSELL T. INSULAB OQLLECTOR OF CUSTOMS.
01-99
qnestion. Th« ground of the defense is ReT.
SUt. § 3744, Comp. Stat. 1913» i 6895. By
this section it is made the duty of the Sec-
retaries of War» the Navy, and the Interior
to cause every contract made by their au-
thority on behalf of the goYemment '^ be
reduced to writing, and signed by the con-
tracting parties with their names at the
end thereof;" all the copies and papers in
relation to the same to be attached together
by a ribbon and seal, etc. A formal propos-
al, varying^, the defendant says, from that
[02] which was accepted in the letters, was
tent to the defendant, and received by it on
December 11, but never was signed, and the
defendant contends that, however it might be
otherwise, the statute makes the informal
agreement by correspondence void.
The statute does not address itself in
terms to the effect of the form upon the lia-
bility of the parties, like the statute of
frauds. Whatever effect it has in that way
is not a matter of interpretation in a strict
tense, but is implied. The extent of the im-
plication is to be gathered from the purpose
of the section and sueh other considerations
as may give us light. The section originally
was part of the act of June 2, 1862, chap.
93, 12 Stat, at L. 411, Comp. Stat.. 1913,
I 0895, and its purpose is manifested by
the scope of the act and its title. It is
called "An act to Prevent and Punish Fraud
on the Part of OflUcers Intrusted with Mak-
ing of Contracts for the Government," and
this was recognized as the purpose in Clark
V. United SUtes, 95 U. S. 539, 24 L. ed.
518. In that case some of ^e justices
thought that the decision went too far in
treating the section as a statute of frauds
rria in favor of the United States; and
vhile it is established that a contract not
complying with the statute cannot be en-
forced against the government, it never has
lieen decided that such a contract cannot be
enforced against the other party. The pre-
vailing opinion cannot be taken to signify
that the informal contract is illegal, since it
went on to permit a recovery upon a quiMH'
turn ralchat when the undertaking had been
performed by a claimant against the United
States. United States v. Andrews, 207 U. S.
229, 243, 52 L. ed. 185, 191, 28 Sup. Ct. Rep.
100. Of course the statute does not mean
that its maker, the government, one of the
ostensible parties, is guilty of unlawful con-
duct, or that the other party Is committing
a wrong in making preliminary arrange-
ments, if later the Secretary of the Navy
does not do what the act makes it his duty
to do.
There is no principle of mutuality appli-
cable to a case [03] like this, any more than
there necessarily is in a statute requiring a
writing signed by the party sought to be
•0 L. ed.
charged. Tlie United States needs the pro-
tection of publicity, form, regularity of re-
turns and affidavit (Rev. Stat. i§ 3709»
3718-8724, 3745-3747, Comp. Stat. 1913, {§
6832, 6862, 6863, 6865, 6869, 6872-6874,
6897-6899) in order to prevent possible
frauds upon it by officers. A private per-
son needs no such protection against a writ-
ten undertaking signed by himself. The
duty is imposed upon the officers of the gov-
ernment, not upon him. We see no reason
for extending the implication of the act
beyond the evil that it seeks to prevent.
Even when a statute in so many words de-
clares a transaction void for want of cert4in
forms, the party for whose protection the
requirement is made often may waive it,
"void*' being held to mean only voidable at
the party's choice.
Judgment reversed.
CARLOS GSELL, Plff. in Err.,
V.
INSULAR COLLECTOR OP CUSTOMS.
(See S. C. Reporter's ed. 93-98.)
Error to Philippine supreme court —
case InvolTing Federal statute.
1. A decision as to the proper classifi-
cation under the Philippine tarifif act of
August 5, 1909 (36 Stat, at L. 130, chap. 8),
of a commodity imported into the Philip-
pine Islands, involves a statute of the Unit-
ed States, within the meaning of the act
of July 1, 1902 ( 32 Stat, at L 691, chap.
1369, Comp. Stat. 1913, f 1225), defining
the appellate Jurisdiction of the Supreme
Court of the United States over the Phil-
ippine Islands.
[For other cases, see Appeal and Error, III. d.
9. In Digest Sop. Ct. 1908.]
Appeal — mode of review — revenue
2. A judgment of the supreme oourt of
the Philippine Islands which affirmed a judg-
ment of the court of first instance revers-
ing a decision of the insular collector as to
the proper classification, under the Philip*
pine Uriff act of August 5, 1909 (36 Stat,
at L. 130, chap. 8), of a certain commodity
imported into the Philippine Islands, can
be reviewed in the Federal Supreme Court
only by appeal, under the act of July 1,
1902 (32 Stat, at L. 691, chap. 1369, Comp.
SUt. 1913, S 1225), providing that the
judgments and decrees of the former court
mav be reviewed '*in the same manner,
under the same regulations, . and by the
Note.— On appellate jurisdiction of Fed«
eral Supreme (>>urt over supreme oourt of
Philippme Islands — see note to Martinez v.
International Banking Corp. 55 L. ed. U. 8»
438. ^
On distinction between appeal and writ
of error — see note to Miners ^ank v. Iowa,
13 L. ed. U. S. 867.
16S^
8UPBEME COURT OF THE UNITED STATES.
Oct. TkBK.
same procedure, as far as applicable, as the
final judgments and decrees of the circuit
courts of the United States."
(For other cases, see Appeal and Error, II. b,
in Digest Sup. Ct. 1908.]
[No. 31.]
Submitted May U, 1915. Decided Novem-
ber 16, 1915.
IN ERROR to the Supreme Court of the
Philippine Islands to review a judgment
which affirmed a judgment of the Court of
First Instance of Manila, reversing a deci-
sion of the insular collector as to the prop-
er classification under the Philippine tariff
act of a commodity imported into the Phil-
ippine Islands. Dismissed for want of ju-
risdiction.
See same case below, 24 Philippine, 369.
The facts are stated in the opinion.
Mr. Harry W. Van Dyke submitted the
cause for plaintiff in error.
Mr. S. T. Ansell submitted the cause for
defendant in error. Mr. L. W. Call was on
the brief.
Mr. Justice Day delivered the opinion of
the court:
This case comes to this court on a writ
of error to the supreme court of the Phil-
ippine Islands, the purpose of which is to
review a judgment of that court, affirming
a judgment of the court of first instance of
Manila, which reversed a decision of the
insular collector as to the proper classifica-
tion under the tariff act of a certain com-
modity, known as wool noils, imported into
the Philippine Islands. The contention of
Importer is that the material is admissible
under the free list. The decision was that
such material properly classified was sub-
ject to a duty of 10 per cent ad valorem. At
the last term of this court, this case was
submitted for consideration, and an order
was [95] entered, requesting that briefs be
filed before the present term on the question
of the jurisdiction of this court to review
the decision of the supreme court of the
Philippine Islands, and, if reviewable,
whether by writ of error or appeal..
The manner of review in this court of
the judgments of the supreme court of the
Philippine Islands is regulated by act of
Congress of July 1st, 1902 (32 Stat, at L.
691, chap. 1369, Comp. Stat 1913, f 1225),
•vhich provides:
-"That the Supreme Court of the United
States shall have jurisdiction to review, re-
vise, reverse, modify, or affirm the final
judgments and decrees of the supreme court
of the Philippine Islands in all actions,
cases, causes, and proceedings now pendiag
therein or hereafter determined thereby in
which the Constitution or any statute,
treaty, title, right, or privilege of the United
States is involved, or in causes in which
the value in controversy exceeds twenty-
five thousand dollars or in which the title
or possession of real estate exceeding in
value the sum of twenty-five thousand
dollars to be ascertained by the oath
of either party or of other competent
witnesses, is involved or brought in ques-
tion; and such final judgments or decrees
may and can be reviewed, revised, reversed,
modified, or affirmed by said Supreme Court
of the United States on appeal or writ of
error by the party aggrieved, in the same
manner, under the same regulations, and by
the same procedure, as far as applicahle,
as the final judgments and decrees of the
circuit courts of the United States."
This section gives this court jurisdiction
to review, revise, reverse, modify, and af-
firm the final judgments or decrees of the
supreme court of the Philippine Islands,
among others, in actions in which a statute
of the United States is involved. The Phil-
ippine tariff act (36 Stat, at L. 130, chap.
8), which is under consideration in this
case, is a statute of the United States, and
the decision [06] as to the classification of
the merchandise in question involves a stat-
ute of the United States, and the case is
properly brought for review into this court.
As to the manner of review, this statuto
is distinct, and provides that such final
judgments and decrees of the supreme court
of the Philippine Islands can be reviewed,
revised, reversed, modified, or affirmed by
this court on appeal or writ of error by
the party aggrieved, in the same manner,
under the same regulations, and by the
same procedure, as far as applicable, as
the final judgments and decrees of the cir-
cuit courts of the United States. This pro-
vision as to the manner of review is an
essential part of the act, and in considering
it, this court held, in Fisher v. Baker, 203
U. S. 174, 51 L. ed. 142, 27 Sup. Ct. Rep.
135, 7 Ann. Gas. 1018, — ^where an attempt
was made to review an order in a proceed-
ing in habeas corpus by writ of error,—
that, inasmuch as the final order in sueh
cases in the circuit and district courts of
the United States can only be reviewed by
appeal, the same rule governs procedure to
review a final order of the supreme court
of the Philippine Islands, and the writ of
error was accordingly dismissed. See, in
this connection, De la Rama v. De la Rama,
201 U. S. 303, 60 L. ed. 705, 26 Sup. Ct.
Rep. 485; Behn v. Campbell, 205 U. S. 403,
51 L. ed. 857, 27 Sup. Ct. Rep. 502.
We therefore proceed to inquire as to the
manner of review of orders of this char-
289 u. a.
1916.
bouihj!;hn r. co. t. campbbll.
0^99
acter, in revenue eases in the United States,
under the statutes and regulations govern-
ing such proceedings, when taken from the
final judgments and decrees of the circuit
courts of the United States. Before the
act of June 10, 1890 (26 Stat, at L. 131,
chap. 407), there was a right of revie\V of
revenue cases by appeal from the circuit
courts of the United States to this court
(Rev. Stat $699). By the act of June
10, 1890, an appeal was given from the deci-
sion of the board of appraisers as to the
construction of the' law and the facts, re-
specting the classification of merchandise,
and the rate of duty imposed, to the cir-
cuit courts of the United States. The deci-
sion of the circuit court was [97] final un-
less the court should be of opinion that the
question involved was of sufficient impor*
tance to require a review by this court, in
which case an appeal was allowed from the
circuit court to this court. In this state of
the law, the court of appeals act was passed
March 3, 1891 (26 Stat, at L. 826, chap.
517), in which the judgment of the court
of appeals was made final, among other in-
stances, in revenue cases. It was held that
that act, read in oonneetion with former
legislation, gave the circuit court of appeals
jurisdiction to review judgments of the
circuit court in revenue cases. Louisville
Public Warehouse Co. v. Collector of Cus-
toms, 1 C. C. A. 371, 6 U. S. App. 63, 49
Fed. 661, circuit court of appeals, sixth cir-
cuit, opinion by Judge, afterwards Mr.
Justice, Jackson. The remedy must be
sought by appeal, and not by writ of er-
ror. United States v. Diamond Match Co.
53 C. C. A. 90, 116 Fed. 288, sixth circuit
In 1908, the revenue act was amended (35
Stat, at I^ 403, chap. 205), so that the deci-
sion of the circuit court was made final in
nieh revenue cases, unless the court cer-
tified that the question was of enough im-
portance to go to the court of appeals, in
which case there was a right to review the
judgment of the court of appeals by writ
of certiorari in this court. The customs
court act gives jurisdiction to review the
decisions of the board of general appraisers
by appeal This act has no application to
the Philippine Islands. From this it may
be seen that the procedure for review in
the circuit courts of the United States, as
well as in the circuit courts of appeal and
in this court, has at all times been by vray
of appeal, and not by writ of error. United
States V. Klingenberg, 163 U. S. 93, 103,
104, 38 L. ed. 647, 661, 14 Sup. Ct. Rep.
790.
Turning now to the procedure in the
Philippine Islands (Acts of Philippine Com-
mission, No. 864), we find that the deci-
sion of the insular collector may be
60 L. ed.
reviewed in a oourt of first instance, and aft-
erwards in the supreme court of the Philip-
pine Islands, as was done in the present
case. In the supreme court, while that
court has the [08] case upon so-called bills
of exception, the whole record is certified
and the case is considered, as the opinion
shows, upon the facts and the law applicable
thereto. Thus the proceeding in the supreme
court is practically an appeal. In the
opinion and judgment in that court it is
styled an appeal. The right to review the
judgment in this oourt is, as we have said,
controlled by the Federal act of 1902, and
is in the same manner, i, e., by app^ or
writ of error, and with the same procedure,
so far as applicable, as is applied to final
judgments and decrees of the circuit courts
of the United States. From what has been
said, it is apparent that such review from
the orders of the circuit courts of the Unit-
ed States was uniformly by appeal, and not
by writ of error. Nor is the different
method of review a mere difference in form
and procedure only. Upon appeal, as the
statutes already referred to and the deci-
sions of this court show, it was intended to
take before the reviewing court the ques-
tions of law and fact involved, upon all
competent evidence taken and heard before
the board of general appraisers and before
the circuit court. Such was the uniform
method and purpose of review, under all
the statutes and procedure, which, so far
as applicable, are to be read into the Philip-
pine act, and such is still the policy of the
Federal statutes in permitting review of
the decisions of the boards of general ap-
praisers*in the United States by appeal to
the court of customs appeal. By writ of
error the review is limited to questions
of law, — a method of procedure inapplicable
to customs cases, where the facts must be
considered in order to determine the proper
classification of the merchandise and the
duty to which it is subject.
We reach the conclusion that the writ of
error, by which it is sought to review the
judgment of the Supreme Court of the
Philippine Islands in this case, should be
dismissed for want of jiu'isdiction^ and it is
so ordered.
Dismissed.
[99] SOUTHERN RAILWAY COMPANY,
Plff. in Err.,
V.
SAMUEL J. CAMPBELL.
(See S. C. Reporter's ed. 99-103.)
Carriers — mileage books — condition
— forfeiture.
The presentation of a mileage book or
165
101-103
6UPREMB COURT OF THE UNITED STATES.
Oct. Tebm,
mileage exchange ticket by the original pur-
chaser for the transportation of another
person who is accompanying him on the
journey does not justify a forfeiture of
the mileage book under a tariff rule which
Erovides for such forfeiture if a mileage
ook or ticket ''be presented to an agent or
conductor by any other than the original
purchaser."
LFor other cases, see Carriers, II. a, 8, In
Digest Sup. Ct. 1008.1
[No. 63.]
Argued November 4, 1915. Decided No-
vember 15, 1015.
IN ERROR to the Supreme Court of the
State of South Carolina to review a
judgment which affirmed a judgment of the
Court of Common Pleas for Greenville
County, in that state, in favor of plaintiff
in an action to recover damages from a
carrier for the alleged wrongful forfeiture
of plaintiff's mileage book. Affirmed.
See same case below, 94 S. C. 95, 77 8.
E. 745.
The facts are stated in the opinion.
Mr. John K. Graves argued the cause,
and, with Mr. L. E. Jeffries filed a brief for
plaintiff in error.
Mr. John G. Capers argued the cause,
and, with Mr. William G. Sirrine, filed a
brief for defendant in error.
[101] Mr. Justice Hughes delivered the
opinion of the court:
This suit was brought by Samuel J. Camp-
bell against the Southern Railway Company
to recover damages for the wrongful for-
feiture of the plaintiff's mileage book. The
company sought to justify the forfeiture un-
der it tariff regulations, which had been
duly filed with the Interstate Commerce
Commission. The defense was overruled by
the state court. 94 S. C. 95, 77 S. E. 745.
The admitted facts are these: On No-
vember 20, 1910, Mr. Campbell, being the
owner of a thousand-mile coupon book, or
mileage book, purchased another mileage
book of the same sort from the agent of
the Southern Railway Company at Greens-
boro, North Carolina, and thereupon pre-
sented both books to the agent of the com-
pany and obtained, in exchange for coupons,
two "mileage exchange tickets" to Green-
ville, South Carolina. With these tickets
he and his wife traveled to Greenville, the
tickets being accepted by one of the com-
pany's collectors. A few days later he pre-
sented his mileage books to the agent of
the company at Greenville and obtained, for
the proper number of coupons, two ex-
change tickets to Greensboro. When he pre-
sented these tickets for the transportation
lee
of himself and his wife, the ticket collector
asked if he had mileage books, and required
him to produce them. Upon looking at the
books, the ticket collector returned one of
them to Mr. Campbell, but forfeited the
other, which contained unused coupons for
600 miles. The exchange ticket, which had
been issued for the coupons taken from the
book, was also forfeited, and the ticket col-
lector demanded and received payment in
cash of the fare for the plaintiff's wife.
The tariff regulations and conditions
which related to mileage books, or mileage
tickets, and were filed with the Interstate
Commerce Commission, were as follows:
"Exchange requirement. -^Mileage cou-
pons (except as [102] noted below) will
not be honored for passage on trains or
steamers or in checking baggage (except
from nonagency staticms and agency stations
not open for the sale of tickets), but must
be presented at ticket office and there ex-
changed for continuous passage ticket,
which continuous passage ticket will be
honored in checking baggage and for pas-
sage when presented in connection with the
mileage ticket.
"Non-transferable. — If a mileage ticket or
ticket issued in exchange for coupons there-
from be presented to an agent or conductor
by any other than the original purchaser, it
will not be honored, but will be forfeited,
and any agent or conductor of any line
over which it reads shall have the right to
take up and cancel such ticket or tickets."
A jury was waived, and the case was
submitted to the trial judge upon a stipula-
tion that if judgment went for the plain-
tiff he should recover the value of the
mileage book ($12) and $25 damages. Judg-
ment was entered accordingly.
We are not concerned with the reason-
ableness of the rule; that, if challenged,
would be a question for the Interstate Com-
merce Commission. The question now is
as to the application of the rule. Nor need
we consider the right of the ticket collector
to demand payment for the transportation
of the plaintiff's wife. The case, as the
state court said, turns upon the right to
forfeit the mileage book with its unused
coupons.
The condition expressed in the rule is
that the mileage book, or mileage ticket, as
it ia termed, shall be presented by the
original purchaser, llie plaintiff was the
original purchaser and presented it. The
company seeks to construe the rule as if it
read that the mileage book should be for-
feited if presented by the original purchaser
for the transportation of a person other
than himself. The rule does not so read.
It was not made a ground of forfeiture
[103] that the original purchaser asked for
289 U. S.
1915.
PROVIDENT SAV. L. A8SUB. 800. y. KENTUCKY.
lOS
more than he wms entitled to get. For ex-
junple, when the plaintiff presented his books
at the station to procure tickets for himself
and wife in exchange for coupons, it could
not be said that he forfeited either of the
books, or both, because he asked too mudu
He was in ;io different position when he pro-
duced the books before the conductor, with
the tickets which the company's agent had
given him in exchange for coupons. He was
still the original purchaser, and the provi-
sion for forfeiture when the mileage book
is presented by someone else does not hit
the case.
We cannot say that the state court denied
a Federal right when it held that railway
ec»npany strictly to its own terms.
Judgment affirmed.
PROVIDENT SAVINGS LIFE ASSUR-
ANCE SOCIETY, PUT. in Err.,
A'.
COMMONWEALTH OF KENTUCKY, by
H. M. Bosworthy Auditor.
(See S. C. Reporter's ed. 103-116.)
Error to state court — Federal question
— taxation of forelgrn corporation —
doln^ business.
1. The question whether or not a for-
eign corporation was doing business within
the state at the time to which a privilege
tax imposod upon it relates is open for re-
new in the Federal Supreme Court on writ
of error to the state court in a case in which
the enforcement of such tax was unsuccess-
fully resisted on the ground that its imposi-
tion was contrary to the due process of law
clause of U. 8. Const., 14th Amend., be-
etuse the corporation had previously with-
drawn from the state.
IFor other cases, sec Appeal and Error, 2070-
•-'2G0. in Digest Sup. Ct. 1908. J
Taxes ^^ foreign life insurance company
— doing business.
2. The mere continuance of the obliga-
tion of existing policies in a foreign life
insurance company, held by resident policy
holders, together with the receipt cf the
renewal premiums upon these policies at
the company's home office, may not be
treated by the state as constituting in itself
the transaction of a local business, justify-
ing the imposition under Ky. Stat. 1906,
f 4226, of an annual privil^e tax upon
the amount of the premiums so received.
(For other cases, see Taxes, I. c. 8, a ; Consti-
tutional Law, lY. b, 6, a. In Digest Sup. Ct.
1908.]
[No. 328.]
Argued October 20 and 21, 1915. Decided
November 15, 1915.
IN ERROR to the Court of Appeals of the
State of Kentucky to review a judgment
which, on a second appeal, affirmed a judg-
ment of the Circuit Court of Franklin Coun-
ty, in that state, enforcing a privilege tax
upon a nonresident life insurance company.
Reversed and remanded for further pro-
ceedings.
See same case below, on first appeal, 155
Ky. 197, 159 S. W. 698; on second appeal,
160 Ky. 16, 169 S. W. 551.
The facts are stated in the opinion.
Mr. AViUiam Marshall Bullitt argued
the cause, and, with Messrs. Charles C.
Lockwood, Keith L. Bullitt, and Clarence C.
Smith, filed a brief for plaintiff in error:
The tax levied by Ky. Stat § 4226, is a
license tax imposed on foreign insurance
companies for the privilege of doing busi-
ness within Kentucky.
Northwestern Mut. L. Ins. Co. y. James,
138 Ky. 52, 127 S. W. 505; Southern Bldg.
& L. Asso. V. Norman, 98 Ky. 298, 31 LJI.A.
41, 56 Am. St. Rep. 367, 32 S. W. 952;
Fidelity & C. Co. v. Louisville, 106 Ky. 207,
50 S. W. 35; Equitable Life Assur. Soe. v.
Pennsylvania, 238 U. S. 143, 146, 59 L. ed.
1239, 1241, 35 Sup. a. Rep. 829.
The state of Kentucky cannot tax a li-
cense or privilege which it does not grant.
Horn Silver Min. Co. v. New York, 143
U. S. 305, 36 L. ed. 164, 4 Inters. Com. Rep.
57, 12 Sup. Ct. Rep. 403; New York v.
Roberts, 171 U. S. 658, 664, 43 L. ed. 323,
326, 19 Sup. Ct. Rep. 58; Flint v. Stone
Tracy Co. 220 U. S. 107, 164, 167, 55 L. ed.
389, 418, 419, 31 Sup. Ct. Rep. 342, Ann.
Cas. 1912B, 1312; Louisville & J. Ferry Co.
V. Kentucky, 188 U. S. 385, 306, 398, 47 L.
ed. 513, 518, 519, 23 Sup. Ct. Rep. 463;
Delaware, L. & W. R. Co. v. Pennsylvania,
198 U. S. 341, 358, 360, 49 L. ed. 1077, 1088,
1084, 25 Sup. Ct. Rep. 669; Union Re-
NoTE. — On the general subject of writs
of error from the United States Supreme
Court to state courts— see notes to Martin
▼. Hunter, 4 U ed. U. S. 97; Hamblin v.
Western Land Co. 37 L. ed. U. S. 267 ; Re
Buchanan, 39 L. ed. U. 8. 884; and Kipl^
V. Illinois, 42 L. ed. U. S. 998.
On whaJk questions the Federal Supreme
Court will consider in reviewing the judg-
ments of state courts — see note to Mis-
souri ex rel. Hill v. Dockery, 63 L.R.A.
571.
60 L. ed.
As to validity of license tax imposed on
foreign corporation as a condition of per-
mission to do business within the state-^
see note to Reymann Brewing Co. v. Brister,
45 L. ed. U. Q. 269.
On taxation of corporate franchises in
the United States — see note to Louisville
Tobacco Warehouse Co. v. Com. 57 Ii.R.A,
33.
As to restrictions on business of foreign
insurance companies — see note to State ex
reL Richards v. Ackerman, 24 L.R J^. 298.
167
loe, 107
SUPREME COURT OF THE UNITED STATES.
Oct. TkBMy
frigerator Transit Co. y. Kentucky, 199 U.
8. 104» 204, 209, 211, 60 L. ed. 150, 153, 155,
156, 26 Sup. Ct. Rep. 36, 4 Ann. Gas. 493;
Buck ▼. Beach, 206 U. 8. 392, 400, 51 U ed.
1106, nil, 27 Sup. Ct. Rep. 712, 11 Ann.
Ca8.732.
The Provident Savings has done nothing,
since its withdrawal, which can be con-
strued as "doing business" in Kentucky so
as to justify the exaction by that state of a
privilege or license tax.
Hunter v. Mutual Reserve L. Ins. Co. 218
U. S. 573, 54 U ed. 1155, 30 L.RAl.(N.8.)
686, 31 Sup. Ct Rep. 127; State v. Con-
necticut Mut. L. Ins. Co. 106 Tenn. 282, 61
8. W. 75.
The receipt by the Provident Savings of
premiums in New York, after its withdniwal
from Kentucky, was not by virtue of any
privilege or license of Kentucky; and hence
neither the premiums so received nor the
privilege of receiving them are taxable by
Kentucky.
1. The company cannot be taxed for the
act of the policy holders.
Almy V. California, 24 How. 169, 16 L.
ed. 644; Fairbank v. United States, 181
U. 8. 283, 292, 293, 45 L. ed. 862» 866, 867,
21 Sup. Ct Rep. 648, 15 Am. Crim. Rep.
135; Aligner v. Louisiana, 165 U. 8. 578,
591, 593, 41 L. ed. 832, 836, 837, 17 Sup. Ct
Rep. 427.
2. The company's act was in New York,
not Kentucky.
Prewitt V. Securitv Mut. L. Ins. Co. 119
Ky. 321, 1 L.R,A.(N.S.) 1019, 115 Am. St
Rep. 264, 83 8. W. 611, 84 8. W. 527 ; Bed-
ford V. Eastern Bldg. & L. Asso. 181 U. 8.
227, 45 L. ed. 834, 21 Sup. Ct Rep. 597;
People ex rel. Provident Sav. Life Assur.
Soc V. Miller, 179 N. Y. 227, 71 N. E. 930;
State V. Connecticut Mut. L. Ins. Co. 106
Tenn. 282, 61 8. W. 75.
3. The bare legal liability to Kentucky
policy holders is not taxable by that state.
New York h, Ins. Co. v. Deer Lodge
County, 231 U. 8. 495, 508, 58 L. ed. 332,
337, 34 Sup. Ct. Rep. 167; Allgeyer v.
Louisiana, 165 U. 8. 578, 588, 591, 592, 41
L. ed. 832, 835, 836, 837, 17 Sup. Ct. Rep.
427; New York L. Ins. Co. v. Head, 234
U. 8. 149, 161, 68 L. ed. 1259, 1264, 34
Sup. Ct. Rep. 879.
Mr. John A. Judy argued the cause, and,
with Mr. James Gamett, Attorney General
of Kentucky, filed a brief for defendant in
error :
A state has the absolute right to pre-
scribe the terms upon which a foreign cor-
poration shall engage in business in that
state.
Paul V. Virginia^ 8 Wall. 168, 19 L. ed.
357 ; I>ucat v. Chicago, 10 Wall. 410, 19 L.
ed. 972; Fire Asso. of Philadelphia v. New
168
York, 119 U. 8. 110, 80 L. ed. 342, 7 Sup.
Ct Rep. 108; Hooper v. California, 155 U.
8. 648, 39 L. ed. 297, 5 Inters. Com. Rep.
610, 15 Sup. Ct. Rep. 207; New York v.
Roberts, 171 U. 8. 658, 43 L. ed. 323, 19
Sup. Ct. Rep. 58.
After an insurance company has applied
for and been granted permission to insure
the lives of citizens of a state, and has
sgreed to pay the tax for such privilege, it
cannot avoid that tax by attempting to
withdraw from the state and cease writing
new business.
Equitable Life Assur. Soc. v. Pennsyl-
vania, 238 U. 8. 143, 59 L. ed. 1239, 35
Sup. Ct Rep. 829.
So far as the state of Kentucky is con-
cerned, the Provident Savings Life Assur-
ance Society is doing business in Kentudcy
as long as it has insured the lives of citizens
of Kentucky under policies written while it
was authorized to do business in Kentucky.
Connecticut Mut. L. Ins. Co. v. Spratley,
172 U. 8. 603, 43 L. ed. 569, 19 Sup. Ct
Rep. 308; Mutual Reserve Fund Life Asso.
V. Phelps, 190 U. 8. 157, 47 L. ed. 994, 23
Sup. Ct Rep. 707.
Mr. Justice Hnglies delivered the opin-
ion of the court:
The Provident Savings Life Assurance
Society, a New York corporation, transact-
ed business in Kentucky prior [107] to
January 1, 1907, and paid the annual license
tax of 2 per cent on premiums. Ky. Stat.
§ 4226. This suit was brought by the com-
monwealth to recover the tax on premiums
received in the years 1907 to 1911, inclusive.
The company answered, denying liability
upon the ground tha£ on January 1, 1007,
it had entirely ceased to do business in
Kentucky, and that all premiums received
after that date on policies previously issued
in Kentucky were received in New York.
Prior to the amendments made in the*
year 1906, § 4226 of the Kentucky Statutes
provided as follows:
"Sec. 4226. Every life insurance com-
pany, other than fraternal assessment life
insurance companies, not organized under
the laws of this state, but doing business
therein, shall on the first day of July in
each year, or within thirty days thereafter,
return to the auditor of public accounts for
deposit in the insurance department, a
statement under oath of all premiums re-
ceipted for on the face of the policy for
original insurance and all renewal premi-
ums received in cash or otherwise in this
state, or out of this state, on business
done in this state during the year ending
the 30th day of June last preceding, or
since the last returns were made and shall
at the same time pay into the state Treas-
ury a tax of $2 upon each $100 of said
289 U. B.
1015.
PROVIDENT SAV. L. A8SUR. SOC. ▼. KENTUCKY.
107-110
premiums as ascertained.'' Ky. Stat. 1903
ed.
This section was amended in 1006 by
making the fiscal year to end on December
31st instead of June 30th, by prohibiting
deductions for dividends, and by amplify-
ing the description of premium receipts.
<8ce Mutual Ben. L. Ins. Co. v. Com. 128
Ky. 174, 107 S. W. 802; Northwestern Mut.
L. Ins. Co. V. James, 138 Ky. 48, 127 S.
W. 505.) The amended section was as
follows :
**Sec. 4226. Every life insurance company,
other than fraternal assessment life in-
surance Companies, not organized [108] un-
der the laws of this state, but doing business
therein, shall, on the lirst day of January
in each year, or within thirty days there-
after, return to the auditor of public
accounts for deposit in the insurance depart-
ment a statement under oath of all premi-
oms receipted for on the face of the policy
for original insurance and all renewal
premiums received in cash or otherwise in
this state, or out of this state, or business
done in this state during the year ending
the 3l8t day of December, and no deduction
shall be made for dividends, or since the
kst returns were made, on all premium
receipts, which shall include single premi-
mns, annuity premiums, and premiums re-
ceived for renewal, revival or reinstatement
of policies, annual and periodical premiums,
dividends applied for premiums and addi-
tions, and all other premium payments re-
ceived during the preceding year on all
policies which have been written in, or on,
the lives of residents of this state, or out
of this state on business done in this state,
and shall at the same time pay into the
state treasury a tax of $2 upon each $100
of said premiums as ascertained."
In 1906, the legislature added the fol-
lowing provision, which is found in § 4230a
of the Kentucky Statutes :
"Sec. 4230a. (2) Any insurance company
that has been authorized to transact busi-
ness in this state shall continue to make
the reports required herein as long as it
collects any premiums as provided for here-
in, and shall pay taxes thereon, even after
it has voluntarily ceased to write insurance
in the state or has withdrawn therefrom,
or its license suspended or revoked by the
insurance commissioner, and for failure to
make report of the premiums collected and
pay the ta^ics due thereon, shall be fined
1500 for such offense."
It does not appear that the changes in
S 4226 were involved in the present con-
troversy, as there w*as no dispute as to the
amount of the premiums received in the
years [109] in question, or as to deduc-
tions. But the company insisted that §
•0 L. ed.
4230a was invalid under the contract clause
of the Federal Constitution (art. I. § 10) »
and also that the imposition of the tax on
premiums received after the company had
withdrawn from the state was contrary to
the due process clause of the 14th Amend-
ment. Demurrer to the answer was over-
ruled, the motion of the defendant that the
demurrer relate back to the petition was sus-
tained, and the petition was dismissed.
Judgment to this effect was reversed by the
court of appeals of Kentucky and the cause
was remanded with direction to sustain the
demurrer to the answer and for further pro-
ceedings consistent with the opinion of the
appellate coturt. 165 Ky. 197, 169 8. W.
6U8.
The company then amended its answer,
renewing ito eonstitutional objections. En-
larging the statement of facts, it averred
that on January 1, 1907, it had withdrawn
all its agents from Kentucky, had closed
all its ofiices, and had ceased to solicit or
write insurance, or maintain any agent, or
collect any premiums, within that jurisdic-
tion. On January \ 1911, the Postal Life
Insurance Company, a New York corpora-
tion, had reinsured all the business of the
defendant. Between January 1, 1007, and
January 1, 1911, all premiums paid to the
defendant upon policies theretofore issued
in Kentucky were paid to it at its home
office in New York city through the mail.
The Postal Life Insurance Company did
not have at any time an office or agents in
Kentucky, or transact any business in that
state, and all premiums that it received
were paid to it in New York through the
mail.
Demurrer to the amended answer was
sustained and judgment was entered in
favor of the commonwealth. The court of
appeals affirmed the judgment (160 Ky. 16,
169 S. W. 551) and this writ of error has
been sued out.
[110] The court of appeals did not put
its decision upon the provision of § 4230a.
This provision, it was said, was declaratory
of the existing law, and the company's ob-
ligation was taken to be defined by § 4226.
The tax was a license tax (Northwestern
Mut. L. Ins. Co. V. James, 138 Ky. 48, 52,
127 S. W. 505), payable annually, and by
the express terms of the act was payable
by the foreign life insurance corporation
"doing business" within the state. Both
parties agree that it was imposed "for the
privilege of doing business in Kentucky."
The state contends that it is seeking to en-
force an agreement which, by implication
from the statutory provision, the company
must be deemed to have made when it en-
tered the state. But there is no suggestion
that it had ever been decided prior to this
169
110-118
SUPREME COURT OF THE UNITED STATES.
Oct. TkBM»
litigation that the described companies were
bound under § 4226 to pay the annual tax
irrespectiYe of the continued transaction
of business within* the jurisdiction during
the years to which the tax related. Nor,
as we understand it, was the statute so
construed in the present case. It is true
that the court stated in its opinion that the
company, on being admitted to the state,
agreed to pay the tax imposed by § 4226,
and that the company did not have '*the
right and power to revoke this agreement
as it attempted to do the 1st of January,
1907." But, immediately following this
statement, the court proceeded to hold with
an explicitness which does not permit us
to doubt the basis of its decision that the
company was liable to the tax because it
continued, despite the asserted withdrawal,
to do business within the state during the
period for which the tax was sought to be
collected. If the tax in controversy was
demanded by the state and was enforced
upon the ground that it was payable for a
privil^e which the company admittedly
enjoyed in prior years, it was manifestly
immaterial to inquire whether or not the
company was continuing to transact a local
business during the succeeding period. In
[111] that aspect, the question would be
whether, with respect to the alleged agree-
ment, the decision could be deemed to be one
which in reality gave effect to the subsequent
l^islation (of 1006) and involved the appli-
cation of the contract clause. If, however,
the tax now sought to be impost was for
a privilege exercised during the years to
which the tax related, it would be necessary
to find that the company was doing busi-
ness within the state at that time. Evident-
ly in view of this necessity, the court of
appeals said upon the first appeal:
"Counsel for appellee mainly rests its
case upon the definition of 'what is doing
business?' Is a life insurance company
doing business in a state only so long as
it is writing new business? If this is true,
then the appellant has no case. However,
counsel for appellant insists that an in-
surance company is doing business in this
state in the meaning of the statute so long
as it is insuring the lives of residents of
this state and furnishing protecticm to the
beneficiaries named in the policies against
loss from death of the insured, this being
the chief business for which insurance com-
panies are organized, and we are unable to
see how the -court [referring to the court
ef first instance] held, that a company col-
lecting^ premiums on policies issued in this
state, when it was authorized to do business
in this state, can be said 'not to be doing
business,' when it was still insuring those
same lives and collecting the premiums up-
on the poUcies." 156 Ky. 201.
170
Upon the second appeal the court merely
referred to its ruling on the first appeal
and to other cases (Com. v. Illinois L. Ins.
Co. 160 Ky. 580, 167 8. W. 000; Com. v.
Washington L. Ins. Co. 150 Ky. 581, 167
8. W. 872) in which that decision had
been followed without further discussion
of grounds. We do not, therefore, find it
necessary to consider the applicability of
the contract clause of the Federal Constitu-
tion, inasmuch as it [112] appears that the
decision turned upon the conclusion that the
company continued after January 1, 1007,
to transact business within the jiu'isdic-
tion. Otherwise, according to the final rul-
ing, the state would have had '*no case."
The present case thus differs from that
of Equitable L. Assur. 8oc v. Pennsylvania,
238 U. 8. 143, 50 L. ed. 1280, 35 Sup. Ct.
Rep. 820. It was not disputed that the
Equitable Company was actually doing busi-
ness in Pennsylvania. See Com. v. Equita-
ble Life Assur. Soc. 230 Pa. 288, 203, 86
Atl. 787. The question was as to the per-
missible measure of a tax exacted for a
privilege admittedly exercised. As this
court said: "The tax is a tax upon a
privilege actually used. The only question
concerns the mode of measuring the tax."
238 U. 8. 147. In the present case it is not
the measure of the tax for doing business,
but the very basis of the tax — ^that is,
whether the company was doing business
within the state — that is in controversy.
Assuming this to be the point in dispute,
the question at once arises whether the mat-
ter is reviewable in this court. And we
cannot doubt that the question whether the
state is taxing a foreign corporation for a
privilege not granted — that is, whether the
acts done by the corporation at the time
to which the tax relates are of such a na-
ture as to subject it to the local authority
upon the ground that it is doing acts which
can only be done with the permission of
that authority — must be regarded as a Fed-
eral question. Taxation without jurisdic-
tion has been held to be a violation of the
14th Amendment (Louisville & J. Ferry Co.
V. Kentucky, 188 U. 8. 885, 308, 47 L. ed.
513, 510, 23 Sup. Ct. Rep. 463; Delaware,
L. & W. R. Co. V. Pennsylvania, 108 U. 8.
341, 368, 40 L. ed. 1077, 1083, 25 Sup.
Ct. Rep. 660; Union Refrigerator Transit
Co. V. Kentucky, 100 U. 8. 104, 200, 50
L. ed. 150, 155, 26 Sup. Ct. Rep. 36, 4
Ann. Cas. 403 >; and the principle involved
applies, to the assertion of authority on
the part of the state to exact a license tax
for the privilege of doing acts which lie
beycmd the sphere of local control. It fol-
lows that the quality of the acts with re-
spect to which the state exercises the taxing
[113] power must be considered when the
289 U. 8.
1915.
PROVIDENT SAV. L. ASSUR. SOC. y. KENTUCKY.
113-115
constitutional protection against the trans-
gression of jurisdictional limits is invoked.
It is not controverted that the company,
at the time in question, was not soliciting
insurance or collecting moneys in that state.
Further, it had no olliccs or agents in Ken-
tucky. Upon the averments which stand
admitted in the record it must be assumed
that it was not performing any acts within
the jurisdiction of Kentucky. It had
sought to withdraw itself completely from
the state. The conclusion that it continued
to do business within the state, notwith-
standing this withdrawal, appears to be
based solely upon the fact that it continued
to be bound to policy holders resident in
Kentucky under policies previously issued
in that state, and that it received the re-
newal premiums upon these policies. As
the policies remained in force, it is said
that the company continued to furnish pro-
tection to citizens of Kentucky. The re»
newal premiums, aa already stated, were
paid in New York. There is, however, a
manifest difficulty in holding that the mere
continuance of the obligation of the policies
constituted the transaction of a local busi-
ness for which a privilege tax could be
exacti*d. As a privilege tax, the tax rests
upon the assumption that what is done de-
pends upon the state's consent. But the
continuance of the contracts of insurance
already written by the company was not
dependent on the consent of the state. It
is true that acts might be done within the
state in connection with such policies (as,
for example, in maintaining an oflicc or
agents, although new insurance was not
written or solicited) which could be con"
sidered to amount to the continuance of a
local business. In such case it would be the
actual transaction of business that would
furnish the ground of the license exaction,
and not the mere existence of the obligation
under policies previously written. These
policies are contracts already made; the
state cannot destroy [114] them or make
their mere continuance, independent of acts
within its limits, a privilege to be granted
or withheld. Neither the continuance of the
obligation in itself, nor acts done elsewhere
on account of it, can be regarded as being
within the state's control. Allgeyer v.
Louisiana, 165 U. S. 578, 41 L. ed. 832, 17
Sup. Ct. Rep. 427; Bedford v. Eastern Bldg.
k L. Asso. 181 U. 8. 227, 241, 45 L. ed.
834, 844, 21 Sup. Ct. Rep. 597; New York
L. Ins. Co. y. Head, 284 U. 8. 149, 163, 58 L.
ed. 1259, 1265, 34 Sup. Ct. Rep. 879.
The defendant in error relies upon ex-
pressions contained in the opinions in Con-
•• li. ed.
necticut Mut. L. Ins. Co. v. Spratley, 172 U.
S. 602, 610, 43 L. ed. 569, 571, 19 Sup. Ct.
Rep. 308, and Mutual Reserve Fund Life
Asso. V. Phelpa, 190 U. S. 147, 157, 47 L.
ed. 987, 994, 23 Sup. Ct. Rep. 707,— ex-
pressions which (in a full review of these
cases and others) were explained and lim-
ited in Hunter v. Mutual Reserve L. Ins.
(^. 218 U. S. 573, 54 L. ed. 1155, 30 L.R.A.
(N.S.) 686, 31 Sup. Ct. Rep. 127. The
cases cited related to the validity of the
service of process upon foreign corporations.
And it was held that a foreign insurance
corporation which had transacted business
within the jurisdiction of a state continued,
notwithstanding its withdrawal from the
state, to be subject to service of process
within the state, in actions arising out of
the business so transacted, where the serv-
ice was made in accordance with the con-
ditions upon which the business was per-
mitted to be done. Thus, in the Phelps
Case, service was made in Kentucky under
§ 031 of the Kentucky Statutes providing
for service of process upon the commission-
er of insurance. The court of appeals of
Kentucky had decided that the witiidrawal
of the company from the state did not ter-
minate the statutory agency for the accep-
tance of service which had been created as
a condition of the company's admission ; the
granted authority continued with respect
to the business transacted. Home Ben. Soc.
V. Muehl, 109 Ky. 479, 484, 50 S. W. 620;
Ocrmania Ins. Co. v. Ashby, 112 Ky. 303,
307, 308, 99 Am. St. Kep. 295, 05 S. \V.
Oil. But a distinction obtains when the
question is whether the mere continuance of
the obligation to resident [115] policy
holders under the existing policies can be re-
garded as constituting in itself the transac-
tion of a local business. This distinction
was made clear in the Hunter Cc3e. There,
the action was brought in New York against
an insurance company upon judgments
which had been obtained against the company
in North Carolina. The question turned up-
on the validity of the service of process in
the North Carolina actions. The insurance
company, a New York corporation, had been
admitted to do business in l^orth Carolina,
and had actually transacted business in
that state prior to the year 1899. The leg-
islature of North Carolina enacted a statute
providing that any corporation desiring to
do business in the state after June 1, 1899,
must become a domestic corporation. Se-
vere penalties were prescribed for violation.
Thereupon, the board of directors of the
company passed a resolution ''to withdraw
from the state and to dispense with and
171
115-117
SUPREME COURT OF THE UNITED STATES.
Oct.
terminate the services of all its agents."
The agents were withdrawn accordingly and
the premiums on policies theretofore issued
were subsequently ''remitted by mail to the
home office of the company in New York,
where the policies and premiums were pay-
able." There were in that case, outside of
this course of business, four transactions
within the state after the withdrawal, which
were of minor importance and of isolated
character. The actions in question, in the
North Carolina court, were not brought
upon policies issued in North Carolina, and
consequently it was sought to sustain the
jurisdiction of the court upon the ground
that, despite the withdrawal of the com-
pany, it was still doing business within the
state. The court expressly overruled this
contention. The court said: "It" (the
company) "was given the choice to become
a domestic corporation or go out of the
state. It chose to go out of the state, and
adopted the only way it could to do so.
We think such course was open to it and we
see no reason to question its good faith."
Id. p. 583. [116] It was recognized that the
authority which the company had given with
respect to service of process cohtinued in
force as to actions growing out of business
which had been transacted within the state.
But the continuance of the authority to
accept service of process resulted from the
nature and construction of that authority,
and the view that the mere continuance of
the obligation of contracts previously made
within the state constituted a continuance
of "doing business" within the state so as
to give the company a "domicil of business,"
and thus subject it to the state's jurisdic-
tion, was distinctly disapproved.
In the present case, the question is not,
as in the Phelps Case, one as to the right
to revoke the agency created under § 631 of
the Kentucky Statutes with respect to the
service of process in actions arising out of
transactions which had taken place within
the state. It is as to the power of the
state to treat the mere continuance of the
obligation of the existing policies held by
resident policy holders as the transaction
of a local business justifying the imposition
of an annual privilege tax in the absence
of the actual conduct of business within the
limits of the state.
We cannot conclude that the state has
this power, and in this view the judgment
must be reversed and the cause remanded
for further proceedings not inconsistent
with this opinion.
It is so ordered.
172
[117] UNITED STATES, Plff. In Brr^
V,
JOE FREEMAN.
(See S. C. Reporter's ed. 117-121.)
Federal courts — proper district for
suit — continuing act — shipping In-
toxicating liquors.
The offense denounced by the Federal
Criminal Code, § 240, as the shipping of in-
toxicating liquors or causing them to be
shipped from one state to another, or from
a foreign country into any state, in packages
not labeled with the name of the consignee
and the nature and qualitv of the contents,
is cognizable in the Federal district in which
the place of destination is situated, as well
as in the district in which the packages were
delivered to the carrier, the offense iMing one
which was begun in the one district and com-
pleted in the other, within the meaning of
the Judicial Code, § 42, providins; for the
punishment of such offenses in either dis-
trict.
[For other cases, see Courts, 087-092, in
Digest Sup. Ct. 1008.]
[No. 481.]
Argued October 21, 1915. Decided Novem-
ber 15, 1915.
IN ERROR to the District Court of the
United States for the District of Kansas
to review a judgment quashing an indict-
ment charging the shipping of intoxicating
liquor in interstate commerce in unlabeled
packtiges. Reversed.
The facta are stated in the opinion.
Assistant Attorney General Warren ar-
gued the cause and filed a brief for plaintiff
in error:
While the words "ship" and ^'shipment*'
may in some statutes be confined in defini-
tion to "delivery for shipment," in the par-
ticular statute in question the intent of
Congress was to make the crime of ship-
ping unlabeled liquor from one state into
another a continuing crime, and hence in-
dictable both in the district where delivery
of the unlabeled liquor is made and in the
district into which the unlabeled liquor is
introduced.
American Steel & Wire Co. v. Speed, 192
U. S. 500, 520, 48 L. ed. 538, 546, 24 Sup.
Ct. Rep. 365; Adams Exp. Co. v. Kentucky,
238 U. S 190, 59 L. ed. 1267, L.R.A.1016C,
273, 35 Sup. Ct. Rep. 824, Ann. Cas. 1915D,
1167; Rhodes v. Iowa, 170 U. S. 412, 42
L. ed. 1088, 18 Sup. Ct. Rep. 664; United
States V. <Smith, 115 Fed. 423; West Vir-
NoTE.' — On proper Federal district for
suit — see note to Roberts v. Lewis, 36 L.
ed. U. S. 579.
289 V. S.
1915.
UNITED STATES y. FREEMAN.
110
ginia y. Adams Exp. Co. L.R.A.1916C, 291,
135 C. C. A. 464, 219 Fed. 794.
It IB not denied, of course, that in stat-
Qtes unconnected with interstate commerce
the word "ship" or "shipment" ordinarily
denotes a single completed act of delivery to
the carrier.
See Mora y Ledon y. Havemeyer, 121 N.
Y. 185, 8 L.R.A, 245, 24 N. E. 297 ; Harri-
son V. Fortlage, 161 U. S. 57, 63, 64, 40
L. ed. 616, 618, 619, 16 Sup. Ct. Rep. 488;
Sofothem Steel k 1, Co. v. Hickman, 190
Fed. 890; Garfield & P. Coal Co. v. Penn-
sylvania Coal k Coke Co. 199 Mass. 38, 84
N. £. 1020; Fechteler v. Whittemore, 205
Mass. 6, 91 N. £. 155.
But these decisions almost invariably are
concerned with the significance of the word
when used in ths law of sales and kindred
subjects.
Any construction which would result in
paralyzing the operation of a considerable
portion of a Fedaral statute is to be avoided.
Rhodes v. Iowa, 170 U. S. 412, 421. 422,
42 L. ed. 1088, 1094, 1095, 18 Sup. Ct. Rep.
664; United SUtes v. Wiltberger, 5 Wheat.
76. 5 L. ed. 37 ; United States v. Harris, 177
U. S. 305, 310, 44 L. ed. 780, 782, 20 Sup.
Ct. Rep. 609; United States ▼. Hartwell. 6
Wall. 385, 18 L. ed. 830; United SUtes v.
Union Supply Co. 215 U. S. 50, 55, 54 L.
«L 87. 88, 30 Sup. Ct Rep. 15.
Even if the offense of shipping began in
Missouri, it was not necessarily wholly com-
pleted there, but continued into Kansas,
and might be prosecuted in either jurisdic-
tion.
Re Palliser, 136 U. S. 257, 34 L. ed. 514,
10 Sup. Ct. Rep. 1034; Putnam v. United
SUtes. 162 U. S. 687, 40 L. ed. 1118. 16
Sup. Ct. Rep. 923.
That causing an act to be done may be a
crime b^^un in one place and completed in
another, and hence indicUble in both, is
made clear by the decisions whidi define
what form or degree of causation constitutes
the crin^.
Burton v. United SUUs, 73 C. C. A. 243.
142 Fed. 62, afBrmed in 202 U. S. 344, 389,
50 L. ed. 1057, 1074. 26 Sup. Ct. Rep. 688,
6 Ann. Cas. 362; Demolli v. United SUtes,
« LJLA.(N.S.) 424, 75 C. C. A. 366, 144
Fed. 365. 7 Ann. Cas. 121; Bates v. United
States, 11 Biss. 70, 10 Fed. 95; United
SUtes v. Bebout, 28 Fed. 522; United SUtes
T. Bickford, 4 Blatchf. 337, Fed. Cas. No.
14,591; United SUtes v. WhiU, 25 Fed. 716.
It is well settled in general that an of-
fense against the laws of the United SUtes
■lay be prosecuted in the district in which
«0 Jj. ed.
it was initiated, as well as in that in which
it was completed, where, as in this case,
no venue is specially fixed by the sUtuU
creating the offense.
1 Whart. Crim. Law. 11th ed. §§ 324,
334, pp. 404, 405, 423; Bridgeman v. United
SUtes, 72 C. C. A. 145, 140 Fed. 591. See
also Re Palliser, 136 U. S. 257, 267, 34 L.
ed. 514, 518, 10 Sup. Ct. Rep. 1034; Putnam
V. United SUtes, 162 U. S. 687, 40 L. ed.
1118, 16 Sup. Ct. Rep. 923; Stillman v.
White Bock Mfg. Co. 3 Woodb. ft M. 538.
Fed. Cas. No. 13,446; Dealy v. United
States. 152 U. 8. 539. 547. 88 L. ed. 545.
548. 14 Sup. Ct. Bep. 680. 9 Am. Crim. Rep.
161; Benson v. Henkel, 198 U. 8. 1. 15.
49 p. ed. 919. 924. 25 Sup. Ct. Bep. 569;
Hyde v. Shine, 199 U. S. 62, 77. 50 L. ed.
90. 94. 25 Sup. Ct. Rep. 760; United States
v. Thayer, 209 U. S. 39, 44. 52 L. ed. 673,
675, 28 Sup. Ct. Bep. 426; Haas v. Henkel.
216 U. 8. 462, 475. 476. 54 L. ed. 569. 575.
576. 30 Sup. Ct. Bep. 249. 17 Ann. Cas.
1112; Perara v. United SUtes. 136 C. C.
A. 623, 221 Fed. 217 ; Simpson v. SUte. 44
Am. St. Bep. 75, and note, 92 Ga. 41. 22
L.B.A. 248, 17 8. £. 984; United SUtes ▼.
Murphy. 91 Fed. 121.
No appearance for defendant in error.
Mr. Justice Van Devanter delivered the
opinion of the court:
This is an indictment under § 240 of the
Criminal Code making it a punishable of-
fense knowingly to ''ship or cause to be
shipped from one state. • • . into any
other sUte. ... or from any foreign
country into any sUte. • . . " any pack-
age of or conUining intoxicating liquor
of any kind, "unless such package be so
labeled on the ouUide cover as to plainly
show the name of the consignee, the nature
of its contents, and the quantity conUined
therein." [35 SUt. at L. 1137, chap. 321,
Comp. SUt. 1913, § 10,410.] The indict-
ment was returned in the district of Kansas
and charges the defendant with violating
the sUtuU by knowingly shipping and ca\is-
ing to be shipped from Joplin, Missouri, in-
to Cherokee county, Kansas, six imlabeled
trunks severally containing from 12 to 15
gallons of intoxicating liquor. By a mo-
tion to quash and a demurrer it was object-
ed that the offense denounced bv the statuU
is compleU when the package is delivered
to the carrier for shipment, and therefore
that the offense charg^ was not cognizable
in the district of Kansas, but only in the
wesUm district of Missouri. Acceding to
this construction of the sUtute^ the district
17S
110-121
SUPREMB COURT OF THE UNITED STATES.
OOT. TkBM.
court sustained the motion to quash and
the demurrer, and entered a judgment dis-
charging the defendant. The government
brings the case here under the [120] crim-
inal appeals act, chap. 2564, 34 Stat, at L.
1246, Comp. SUt. 1913, § 1704.
As usually understood, to ship a package
from one state into another, or from a for-
eign country into a state, is to accomplish
its transportation from the one into the
other by a common carrier, and is essen-
tially a continuing act whose performance
is begun when the package is delivered to
the carrier, and is completed when it reaches
its destination. We think it is to such an
act that the statute refers. To reach a dif-
ferent conclusion the word "ship" must be
read as if it were "deliver for shipment.''
No doubt it sometimes has that meaning,^
but it plainly is not so used in this in-
stance. The statute deals with shipping
liquor from a foreign country into a state,
as well as with shipping it from one state
into another state. It puts both upon the
same plane and makes them equally crim-
inal. Whatever marks the completion of
the offense in one likewise marks it in the
other. If it be the delivery to the carrier
in the case of interstate shipments, it equal-
ly is this delivery in the case of shipments
from a foreign country. And yet all will
concede that Congress did not intend to
do anything so obviously futile as to de-
nounce as criminal an act wholly done in
a foreign country, such as is the delivery
to the carrier where the shipment is from
a foreign country into a state. So, if its
words permit, as we tliink they do, the
statute must be given a construction which
will cause it to reach both classes of ship-
ments, and thereby to accomplish the pur-
pose of its enactment. United States v.
Chavez, 228 U. S. 625, 57 L. ed. 950, 33
Sup. Ct. Rep. 595. This, we think, requires
that it be construed as referring to the
continuing act before indicated whereby the
transportation into a state is accomplished,
whether the package comes from another
state or from a foreign country. In this
view the completion of the offense will al-
ways be within a jurisdiction where the
statute can be enforced.
[121] The district court rightly recog-
nized that, under Judicial Code, § 42 [36
Stat, at L. 1100, chap. 231, Comp. Stat.
1913, § 1024], formerly Rev. Stat. § 731, the
offense charged was cognizable in the dis-
trict of Kansas, as well as in the western
district of Missouri, if the place to which
the packages were transported was the place
of the completion of the offense. Therefore
nothing need be said upon that point.
Judgment reversed.
174
i
6LENW00D LIGHT ft WATER COM-
PANY, Appt.,
V.
MUTUAL UGHT, HEAT, k POWER COM-
PANY.
(See S. C. Reporter's ed. 121-126.)
Federal courts — amount In dispute —
nuisance.
The value of complainant's asserted
ri^ht to maintain and operate its elec-
tric light and power plant, and to con-
duct its business free from wrongful inter-
ference by defendant, a rival company,
rather than the cost of the removal of de-
fendant's poles and wires where they con-
flict or interfere with those of complainant,
and tliAir. replacement in such position as to
avoid tlie interference, is the test by which
to determine whether the amount in dis-
pute iA sufficient to support the jurisdiction
of a Federal district court of a suit in
which the complainant prays for an in-
junction to restrain defendant from main-
taining its poles and wires on the same side
of the streets as that occupied bv complain-
ant's poles and wires, and in such proximity
as to injure or endanger the property of
complainant and its customers, and the
safety and lives of complainant's customers
and employees, and also asks for general
relief.
[For other cases, see Courts, V. c, 6, In Digest
Sup. Ct. 1908.]
[No. 38.]
Submitted October 29, 1916. Decided No-
vember 15, 1916.
APPEAL from the District Court of the
United States for the District of Colo-
rado to review a decree dismissing, for want
of jurisdiction, the bill in a suit by an elec-
tric light and power company to restrain
a rival company from interfering with the
former's business. Reversed and renmnded
for further proceedings.
The facts are stated in the opinion.
Messrs. Charles S. Tbomss, George Ii.
Nye, and William P. Malbnrn submitted
the cause for appellant:
In suits seeking injunctive relief » where
the value of the property or right to be
protected is greater than the value of the
property about which the dispute origi-
nated, and the value of the property or
right to be protected, or the extent of the
injury to be prevented, is in excess of the
jurisdictional amount, jurisdiction exists.
Larabee v. Dolley, 175 Fed. 365 ; Amerioan
Smelting & Ref. Co. v. Godfrey, 80 C. C. A»
139, 158 Fed. 225, 14 Ann. Cas. 8; Rockj
Mountain Bell Teleph. Co. t. Montana Fed-
eration of Labor, 156 Fed. 809; Evenson
v. Spaulding, 9 L.R.A.(N.S.) 904, 82 C. C-
A. 263, 150 Fed. 617; Doard, of Trade t^
230 U. S.
1913. 6LENW00D I«. ft W. 00. t. MUTUAL U H. 4 P. 00. 122, 12S
Cell* Commission Co. 76 0. C. A. 28, 145 i Mr. Justice Pitney deliyered the opinion
Fed. 28; Riverside & A. R. Co. y. Riyerside^ I of the court:
118 Fed. 743 ; Hutchinson y. Beckham, 56 This is an appeal from a decree of the dis-
C. 0. A. 333, 118 Fed. 300; Draper y. Sker- trict court, dismissing a bill of complaint
rett, 116 Fed. 206; Humes v. Ft. Smith, 93 ^o^ want of jurisdiction; the jurisdiction
Fed. 857 ; Nashville, C. ft St. L. R. Co. y. having been invoked upon the ground that
McConnell, 82 Fed. 65 j Rainev v. Herbert, ^*»« ««'^ was between citizens of different
6 C. C. A. 183, 3 U. S. App. ^592, 55 Fed. «^*««' *°^ *^** ^« ™**^ ^^ controversy
443; Texas ft P. R. Co. v. Kuteman, 4 C. exceeded the sum or value of $3,000 (Judi-
C. A. 503, 13 U. S. App. 99, 54 Fed. 547; ^'^^ ^"^^^ « 24, act of March 3, 1911, 36
Miaussippi & M. R. Co. y. Ward, 2 BUck, Stat, at L-^ 087, 1091, chap. 231, Comp. Stat.
485, 17 L id. 311; Scott v. Donald, 165 U. l^^^, §§ 968, 991). The bill, besides the
a 107, 41 L. ed. 648, 17 Sup. Ct. Rep. 262; requisite averments as to the citizenship
McNeill y. Southern R. Co. 202 U. S. 543, «' *^« . P^'-^'f »' »"«««« "* substance that
60 L. ed. 1142, 26 Sup. Ct. Rep. 722; Hunt complamant is the owner by assi^ment of a
v. New York Cotton Exch. 205 U. S. 322, 51 franchise granted m the year 1887 by the
Led. 821. 27 Sup. a. Rep. 529; Bitterman ^'^'^ ^} Glenwood Springs, in the state of
v. Louisville & N. R. Co. 207 U. S. 205, 52 ^o ?rado, and subsequently renewed, en-
L ed. 171, 28 Sup. Ct. Rep. 91, 12 Ann. titling complainant to erect and maintain a
Cm. 693; Berryman v. Whitman College, pla«t for the purpose of supplying the town
282 U. S. 334, 56 L. ed. 225, 32 Sup. Ct. *°^ *** inhabitants with electric light and
^ ,^y power; that complainant and its predeces-
' sors, prior to 1911, constructed an electric
Mr. John T. Barnett submitted the light and power system, and erected poles
eause for appellee : and wires in the alleys of the town, in
The ''matter in dispute," as used in the the manner provided for in the ordinance,
•Utute, means the matter or purpose for and complainant has continued to carry on
which the suit is, in good faith, brought. its business and supply electric current to
Smith v. Adams, 130 U. S. 167, 175, 32 the town and its inhabitants, and still con-
L. ed. 893, 898, 0 Sup. Ct. Rep. 566. tinues to maintain its poles and wires in
The '"matter in dispute" in the case at the streets and alleys of the town; that in
btr is the removal of the alleged dangerous April. 1911, the town attempted to grant to
contact of the defendant's wires with those defendant the right to erect a plant and con-
cf plaintiff And the amount or value of J*'^'*^* f".?' » «y?**°^, for furnishing the
the matter in dispute is the cost to appel- ^"^J" »"f/; inhabitants with electric cur-
1^ ^t Au^ r * Au 11 J J rent, and defendant commenced the construc-
leeof the removal of the alleged dangerous i.. *^ix j. i.^ -ui'^a
^^ ^ ^ tion of a plant, and began to furnish light
**w^ . . .. «^ n ^ «T J « «i 1- to the town on or about October 1st, 1912,
Mississippi & M. R. Co. y. Ward, 2 Black, ^^^ ^j^j^j^ ^^ j^ ^^^^ j^^^^ ^^^ ^^^
485, 17 L. ed. 311; American Smelting ft f^j^ carrying electric current for the pur-
Rcf. Co. y. Godfrey, 89 C. C. A. 139, 168 Fed. pose of lighting the town and furnishing
225, 14 Ann. Cas. 8; Von Schroeder v. light to some of its inhabitants; that com-
Brittan, 93 Fed. 9; Jessup v. Chicago & N. plainant's poles were erected, so far as
W. R. Co. 188 Fed. 931. practicable, in the alleys of the town, as
The "matter in dispute," the amount of was provided in its ordinance, and its wires
which determines the jurisdiction of the ^«re strung on those poles and connected
Federal courts, must be money or some prop- ^^th the premises of its customers in ac-
erty or other right that can be estimated cordance with the terms of the franchise
•nd ascerUined in money. *°^ ^^ regulations of the town; that de-
South Carolina y. Seymour, 163 U. 8. fepdant has erected its poles and strung its
867, 38 L. ed. 744, 14 Sup. Ct. Rep. 871; ""^^ principally in the alleys of the town,
Kurt. y. Moffitt, 115 U. S 487, 498, 29 L. ^^ particularly m the alleys occupied by
«• T. jMvi«it.b, *ai» yj, «. -SOI, -mvo, ^o j-i. ^v p^jgg gjj^ wircs of complaiiiant. and for
^458, 460 6 Sup. Ct. Rep^ 148; Unit^ .^he most part upon the sLe side of the
BUtes ex rel. Holzendorf v. Hay, 194 U. S. ^Hey, ^^^^ ^nd occupied by the poles and
m, 876, 48 L. ed. 1025, 1026, 24 Sup. Ct. ^ires of complainant, for the purpose
**P* ®81. and with the intent of interfering with and
The allegation in the bill that the amount harassing complainant; that complainant's
^ controversy exceeds the sum of $3,000 poles are of the size usually employed in
ii but a conclusion, and is not a sufficient towns and cities approximating the size
ftUcgition of the value of the matter in of Glenwood Springs, but that defendant's
controversy. poles are about six feet shorter, and on
^iflhback y. Western U. Teleg. Co. 161 U. account of the narrowness of the alleys
8. 100, 40 L. ed. 691, 16 Sup. Ct Rep. 506. ' have been set on practically the same line
•0 L. ed. \1^
123-126
6UPREME COURT OF THE UNITED STATES.
Got. ItenCy
as complainant's poles, so that defendant's
cross-arms and wires are brought immedi-
ately below and in close proximity to
complainant's wires, so as to make the main-
tenance and operation of its wires by com-
plainant exceedingly difficult, as well as
dangerous to the property of complainant
and its customers, owing to the probability
of damage by fire caused by short circuits,
and dangerous to the safety and lives of
complainant's customers and of its linemen
and other employees who, in the discharge
of their duties, are required to climb its
poles; that, because of this, complainant
is and constantly will the threatened, so long
as defendant maintains its poles and wires
as aforesaid, with liability in case of inju-
ries to persons and property caused by the
maintenance of defendant's wires [124] and
electric current in close proximity to the
wires and current of complainant; that
complainant's business is increasing, and
more wires are being constantly required
to supply the wants of its customers, and
this will require the setting of cross bars
on the poles of complainant below the cross
bars now in use, whereby the wires of com-
plainant will be brought closer to defend-
ant's wires than they are at present, and
thereby the danger and expense and the
probability of injuries to complainant and
its employees and customers will be greatly
increased; and that by reason of the pre-
mises complainant is and will be subjected
to numerous liabilities and actions at law
for damages arising out of the conditions
created by defendant's acts; that the value
of complainant's plant is $150,000, and the
damage caused to complainant and its busi-
ness and property and to its right to main-
tain its poles and wires without interfer-
ence or injury in the alleys and streets of
the town of Glenwood Springs, where the
poles and wires of defendant have been
placed in close proximity to complainant's
poles and wires, is largely in excess of the
sum of $3,000.
The prayer is for an injunction to re-
strain defendant from maintaining its poles
and wires on the same side of the alleys
and streets as those occupied by complain-
ant's poles and wires, or in such proximity
as to injure or endanger the property of
complainant and its customers and the safe-
ty and lives of complainant's customers and
employees, and for general relief.
The answer denies, generally and spe-
cifically, the essential facts set up in the
bill; denies that the matter in controversy
exceeds in value the sum of $3,000; denies
that the value of complainant's plant is as
much as $150,000; alleges that its value
does not exceed $25,000; denies that the
damage caused by defendant to complain-
176
ant or its business or property is in exceM
of $3,000; uid alleges that the cost of the
removal of all the poles and wires of de-
fendant [125] claimed to be in dangeroiu
or objectionable proximity to complainant's
poles and wires would not exceed $600.
Upon the final hearing, the court, after
argument, held that the Jurisdietional
amount was fixed by the cost to defendant
of removing its poles and wires in the
streets and alleys where they conflicted or
interfered with the poles and wires of com-
plainant, and replacing defendant's poles
and wires in such position as to avoid oon-
fiict and interference. Thereupon testimony
was introduced for the purpose of deter*
mining whether such cost would exceed the
sum of $3,000, and the court, having de-
termined that under the evidence it would
not exceed that amount (which complain-
ant conceded), dismissed the bill for want
of jurisdiction, although complainant con-
tended that such method was not the proper
method of determining the jurisdictional
amount.
The case comes here under § 238, Judicial
Code [36 Stat, at L. 1157, chap. 231, U. 8.
Comp. Stat. 1013, | 1215], the question of
jurisdiction being certified.
/We are unable to discern any sufficient
ground for taking this case out of the rule
applicable generally to suits for injunction
to restrain a nuisance, a continuing tres-
pass, or the like, tiz., that the jurisdictional
amount is to be tested by the value of the
object to be gained by complainant. The
object of the present suit is not only the
abatement of the nuisance, but (under the
prayer for general relief) the prevention
of any recunrence of the like nuisance in
the future. /in Mississippi k M. R. Co. v.
Ward, 2 Black, 492, 17 L. ed. 311, 314, it
was said: "The want of a sufficient
amount of damage having been sustained
to give the Federal courts jurisdiction
will not defeat the remedy, as the re-
moval of the obstruction is the matter of
controversy, and the value of the objeet
must govern." The same rule has been ap-
plied in numerous cases, and under varying
circumstances. Scott v. Donald, 165 U. S.
107, 115, 41 L. ed. 648, 654, 17 Sup. Ct Rep.
262; McNeill v. Southern R. Co. 202 U. S.
543, 558, 50 L. ed. 1142, 1147, 26 Sup.
Ct. Rep. 722; [126] Hunt v. New York
Cotton Exch. 205 U. S. 322, 336, 51 L. ed.
821, 826, 27 Sup. Ct. Rep. 529; Bitterman
V. Louisville k N. R. Co. 207 U. S. 205, 225,
52 L. ed. 171, 183, 28 Sup. Ct. Rep. 91, 12
Ann. Cas. 693; Berryman v. Whitman (Col-
lege, 222 U. 8. 334, 345, 56 L. ed. 225. 228,
32 Sup. Ct. Rep. 147.
The district court erred in testing the
jurisdiction by the amount that it would
2S9 U. 6.
1915.
MORRIS CANAL k B. CO. t. BAIRD.
126
€Oft defendant to remove its poles and wires
where they conflict or interfere with those
of complainant, and replacing them in such
a position as to avoid the interference.
Complainant sets up a right to maintain
and operate its plant and conduct its busi-
ness free from wrongful interference by de-
fendant. This right is alleged to be of a
Talue in excess of the jurisdictional amount,
and at the hearing no question seems to
liave been made but that it has such value.
The relief sought is the protection of that
right, now and in the future, and the value
of that protection is determinative of the
jurisdiction.
Decree reversed, and the cause remanded
for further proceedings in accordance with
this opinion.
MORRIS CANAL & BANKING COMPANY
and Lehigh Valley Railroad Company,
PIffs. in Err.,
V.
DAVID BAIRD, Stephen J. Meeker, Tlieo-
dore Strong, and Eckard P. Budd, SUte
Board of Assessors of the State of New
Jersey, and J. Willard Morgan, Comp-
troller of Said State.
(See S. C. Reporter's ed. 126-133.)
Tsxcs — exemption — transfer of Im-
munity.
Any contract exemption from taxa-
tion which may have been created by a pro-
vision in the charter of a canal and bank-
ing company which limits the exemption
thereby granted to such property "as is
poflsesEcd, occupied, and used by the said
company for the actual and necessary pur-
poses of said canal navigation" did not
pass to its grantee and lessee in favor of
which the canal company exercised the right
given to it by New Jersey act of March 14,
1871, to lease "the canal of said company
or any part thereof, with all or any of its
boats, property, works, appurtenances, and
franchises."
IFor other cases, see Taxes, I. c. 8. e. In
Digest Sup. Ct. 1908.] w, o. «, «
[No. 1.]
Argued October 21, 1915. Decided Novem-
ber 15, 1915.
Note. — ^As to exemption from taxation,
whether a contract or not — see note to
Tucker v. Ferguson, 22 L. ed. U. S. 805.
On corporate taxation as affected by the
«>ntract clause in the Federal Constitution
^-see note to Adams v. Yazoo k M« Valley
K. Co. 60 L.R.A. 33.
«0 L. ed.
IN ERROR to the Court of Errors and
Appeals of the State of New Jersey to
wview a judgment which affirmed a judg-lCt. Rep'. 556; Tennessee v. Whitworth, 117
ment of the Supreme Court of that itate^
sustaining on certiorari a tax levied by the
state board of assessors on canal property
and appiurtenances. Affirmed.
See same case below, 76 N. J. L. 627, 71
Atl. 328.
The facts are stated in the opinion.
Mr. Gilbert Collins argued the cause and
filed a brief for plaintiffs in error:
The contract of exemption of the Morris
Canal from taxation was not a bounty con-
ferred on any particular company, nor an
agreement made merely in view of pre-
sumptive benefits to the people. It was a
contract of exemption of certain specific
property, for an adequate consideration, to
wit, the conveyance of the property itself to
the state, possession to be taken at the end
of a term of years, the owner meantime to
devote the property to public use on terms
controlled by the state, and for other sub-
stantial considerations.
Barnett v. Johnson, 15 N. J. Eq. 485.
The courts of New Jersey, in r^eatedly
construing the charter, have uniformly nar-
rowed the exemption to the lands occupied
by this public highway.
State, Morris Canal k Bkg. Co., Prose-
cutors, V. Bctts, 24 N. J. L. 565; State,
Morris Canal k Bkg. Co., Prosecutors, t.
Haight, 35 N. J. L. 178; Morris Canal k
Bkg. Co. y. Jersey City, 12 N. J. Eq. 227;
State, Morris Canal k Bkg. Co.j Prosecu-
tors, V. Love, 37 N. J. L. 60; State, Lehigh
Valley R. Co., Prosecutors, v. Newark, 44
N. J. L. 323; State, Morris Canal k Bkg.
Co., Prosecutors, v. Cleaver, *46 N. J. L. 467.
In New Jersey y. Wilson, 7 Cranch, 164,
3 L. ed. 303, a case*was presented to this
court very similar to the present case, in
that an actual consideration passed to the
state in return for the exemption of certain
lands from taxation. And this exemption
was held to pass to the grantee of such
lands, the grant being made by authority
of a legislative act which made no mention
of the exemption.
Even in cases where much weaker consid-
erations are presented, these contracts have
been sustained.
New Orleans Gaslight Co. y. Louisiana
Light & H. P. & Mfg. Co. 116 U. S. 654,
29 L. ed. 518, 6 Sup. Ct. Rep. 252; Central
R. k Bkg. Co. v. Georgia, 92 U. S. 670, 23
L. ed. 760; Powers v. Detroit, G. H. k M.
R. Co. 201 U. S. 543, 50 L. ed. 860, 26 Sup.
U. S. 129, 29 L. ed. 830, 8 Sup. Ct. Rep.
645; Humphrey v. Pegues, 16 Wall. 244, 21
L. ed. 326; Philadelphia, W. k B. R. Co. v.
Maryland, 10 How. 377, 13 L. ed. 462;
Green County v. Conness, 109 U. S. 104, 27
L. ed. 872, 3 Sup. Ct. Rep. 69.
There are numerous other cases where thft
12 Vll
SUPREME CX)UBT OF THE UNITED STATES.
Oct.
iptioo WM doiied in the hands of the
Mtignee ecunpany. Theie Will be fowMi to
fall within four elaaiei, to wits
(a) Wh^nre the mortgage, li«ae» or trana-
fer waa made without express statutory
authority,
Memphis 4 L. B. B. Co. t. Bailroad
Comrs. (Memphis ft L. R. R. Co. t. Beny)
112 U. 8. 600, 28 L. ed. 837, 6 Sup. Ct Rep.
200; Chesapeake ft 0. R. Co. t. Miller, 114
U. 8. 176, 20 L. ed. 121, 6 Sup. Ct Rep.
813; Picard t. East Tennessee, V. ft G. R.
Co. 130 U. S. 637, 32 L. ed. lOJl, 0 Sup.
Ct. Rep. 640; Mercantile Bank t. Tennessee,
161 U. S. 161, 40 L. ed 656, 16 Sup. Ct.
Rep. 461; East TsDuessee, V. ft G. R. Co. t.
Hamblen County, 102 U. S. 273, 26 L. ed.
152; Wilson T. Gaines, 103 U. S. 417, 26
L. ed. 401 ; Louisville ft K. R. Co. t. Palmes,
100 U. S. 244, 27 !«. ed. 022, 8 Sup. Ct Rep.
103.
(b) Where the corporation claiming the
exemption was not created until a consti-
tutional bar to exemption had been inter-
posed«
Trask t. Maguire, 18 WaU. 301, 21 L.
ed. 038; Keokuk ft W. R. Co. t. Missouri,
152 U. S. 301, 38 L. ed. 450, 14 Sup. Ct.
Rep. 502; Atlantic ft G. R. Co. y. Georgia,
08 U. S. 350, 25 L. ed. 185; St. Louis, I.
M. ft S. R. Co. y. Berry, 113 U. S. 465, 28
L. ed. 1055, 5 Sup. Ct. Rep. 520; Memphis
ft L. R. R. Co. y. Railroad Comrs. (Memphis
ft L. R. R. Co. y. Berry) 112 U. S. 600, 28
L. ed. 837, 5 Sup. Ct. Rep. 200; Minneapolis
ft St. L. R. Co. y. Gardner, 177 U. S. 332,
44 L. ed. 703, 20 Sup. Ct. Rep. 656 ; Shields
y. Ohio, 05 U. S. 321, 24 L. ed. 358 ; Maine
C. R. Co. T. Maine, 06 U. S. 509, 24 L. ed.
840; Tazoo ft M. Valley R. Co. v. Adams,
180 U. S. 1, 18, 45 L. ed. 305, 405, 21 Sup.
Ct. Rep. 240; New York ex rel. Schurz y.
Cook, 148 U. 8. 406, 37 L. ed. 501, 13 Sup.
Ct. Rep. 645.
(c) Where from surrounding words and
circumstances it is apparent that the legis-
lature did not intend the exemption to pass
to the successor.
Phoenix F. ft M. Ins. Co. y. Tennessee, 161
U. S. 174, 40 L. ed. 660, 16 Sup. Ct. Rep.
471; Chicago, B. ft K. C. R. Co. v. Guffey
(Chicago, B. ft EL C. R. Co. y. Missouri)
122 U. S. 561, 30 L. ed. 1135, 7 Sup. Ct.
Rep. 1300; Wilmington ft W. R. Co. y. Als-
brook, 146 U. S. 270, 36 L. ed. 072, 13 Sup.
Ct. Rep. 72; Chesapeake ft O. R. Co. y.
Miller, 114 U. S. 176, 29 L. ed. 121, 5 Sup.
Ct. Rep. 813; East Tennessee, V. ft G. R.
Co. y. Hamblen County, 102 U. S. 273, 26
L. ed. 152; Wilson y. Gaines, 103 U. S. 417,
26 L. ed. 401; Citizens' Street R. Co. y.
Memphis, 53 Fed. 715; Minot y. Philadel-
phia, W. ft B. R. Co. 18 Wall. 206, 21 L. ed.
888; Bancroft y. Wicomico County, 121 Fed.
178
I 874, affirmed in 70 C. C. A. 287, 186 Fed.
077.
(d) Where the intent to pass the immu-
nity was not expressed with sufficient dear*
ness.
Coyington ft L. Tump. Road Co. y. Sand-
ford, 164 U. S. 578, 41 L. ed. 560, 17 Sup.
Ct. Rep. 108; Norfolk ft W. R. Co. y. Pendle-
ton, 156 U. S. 673, 30 L. ed. 575, 15 Sup.
Ct. Rep. 413; People's Gaslight ft Coke Co.
y. Chicago, 104 U. S. 1, 48 L. ed. 851, 24
Sup. Ct. Rep. 520; St. Louis ft S. F. R.
Co. y. Gill, 156 U. S. 656, 30 L. ed. 560,
15 Sup. Ct. Rep. 484; Morgan y. Louisiaaa»
03 U. S. 217, 23 L. ed. 860.
The reluctance of the courts to enforce
contracts of exemption because relieyinip
property from the common burden which
publie policy requires shall be equally borne
has no just application to the case now be-
fore the court.
Minot y. PhUadelphia, W. ft B. R. Co. 1»
WaU. 206, 225, 226, 21 L. ed. 888, 804, 805;
Morgan y. Louisiana, 03 U. S. 217, 23 Lb
ed. 860.
Two recent cases are indistinguishable
from that at bar.
Wright y. Central of Georgia R. Co. 236
U. S. 674, 50 L. ed. 781, 35 Sup. Ct. Rep.
471 ; Wright y. Louisyille ft N. R. Co. 236
U. S. 687, 50 L. ed. 788, 35 Sup. Ct. Rep.
475.
The decision of the state court is, of
course, open to review by this court, for the
point inyolved is that the New Jersey tax
law impairs the obligation of the contract
made between the state of New Jersey and
the Morris Canal ft Banking Company, on
which the Lehigh Valley Railroad Company,,
a corporation of the state of Pennsylvania,
on taking a lease, by express authority of
the state, had a right to rely. In such a.
case this court must exercise its independ-
ent judgment.
Douglas y. Kentucky, 168 U. S. 480, 42
L. ed. 553, 18 Sup. Ct. Rep. 100.
Eyen if it had been adjudged by a line of
previous decisions of the state court of last
resort that such a taxing act did not impair
the obligation of like contracts, the point
would be open in this court. A fortiori
must this be so when the writ of error re-
views a decision rendered for the first time
in the yery case brought up by the writ.
New York ex rel. Interborough Rapid
Transit Co. y. Sohmer, 237 U. S. 276, 50*
L. ed. 051, 35 Sup. Ct Rep. 540.
Mr. Robert II. McCarter argued the
cause, and, with Mr. Edmund Wilson, At-
torney General of New Jersey, filed a brief
for defendants in error:
The estate enjoyed by the Canal Company
aao u. 8»
191&.
MORRIS CANAL ft B. GO. t. BAIRD.
in bunds acquired hj Authority of the char-
ter, whether by grant or condemnation or
prescription, was of the whole present in-
terest^ and wa8» notwithstanding the right
of the state to take at the end of one hun-
dred and fifty years, equiyaknt while it
laated to an estate in fee simple.
Bamett v. Johnson, 15 N. J. Eq. 481;
State, Morris Canal ft Bkg. Co^ Prosecu-
tors, y. Brown, 27 N. J. L. 13; United States
Pipe Une Co. t. Delaware, L. ft W. R. Co.
02 N. J. L. 254, 42 JjJiJL. 572, 41 AtL 759;
Currie v. New York Transit Co. 66 N. J.
£q. 313, 105 Am. St. Rep. 647, 58 Atl. 308.
And the property of the Canal Company
would have been taxable if the legislature
had not exempted it.
Bridge Proprietors t. State, 21 N. J. L.
384, affirmed in 22 N. J. L. 593.
lliis was in effect held as to the grant of
the 1867 basin to the Canal Company, al-
though such basin was always subject to
be taken over by the state at the end of the
period of one hundred and fifty years from
the date of the charter.
State, Morris Canal ft Bkg. Co., Prosecu-
tors, Y. Haight, 36 N. J. h. 471.
Under binding authorities, both state and
Federal, this charter immunity from tax-
ation, found in the act of incorporation of
the Morris Canal ft Banking Company, con-
stituted an irrepealable contract between the
state and the corporation.
State Assessors t. Morris ft E. R. Co. 49
N. J. L. 193, 7 Atl. 826 ; SUte Singer Mfg.
Co., Prosecutor, t. Heppenheimer, 58 N. J.
L. 633, 32 LJl.A.643, 34 AtL 1061 ; Hancock
▼. Singer Mfg. Co. 62 N. J. L. 289, 42 L.RJL
852, 41 Atl. 846; Cooper Hospital t. Cam-
den, 68 N. J. L. 691, 54 Atl. 419.
*'Courts are astute," says Mr. Justice
BroYi'n of this court, in a recent case in-
volving the effect of corporate changes on
charter contracts for immunity from taxa-
tion, ''to seize upon evidence tending to
show either that such exemptions [from tax-
ation] were not originally intended, or that
they have become inoperatiTe 1^ changes in
the original constitution of the companies."
Yazoo ft M. Valley R. Co. t. Adams, 180
U. S. 22, 45 L. ed. 407, 21 Sup. Ct. Rep. 240.
See also Sisters of Charity v. Cory» 73 N. J.
h, 600, 65 Atl. 500.
An exemption from taxation is a privi-
lege of a personal character entirely distinct
from the franchises of a corporation, and
will not pass by a transfer under legislative
authority empowering the corporation to as-
sign and transfer its franchises and prop-
erty.
State Assessors t. Morris ft £. R. Co.
49 N. J. L. 193, 7 Atl. 826; Morgan v. Lou-
isiana, 93 U. S. 217, 23 L. ed. 860; Memphis
ft L. R. R. Co. T. Railroad Comrs. (Memphis
60 li. ed.
ft L, R. R. Co. T. Berry) 112 U. a 609, 617,
28 L. ed. 837, 840, 5 Sup. Ct. Rqp. 299.
The legislative intent to pass an exemp-
tion from taxation to a lessee or grantee
cannot be inferred from the use in the en-
abling act of the word "privilege," and un-
less the authorised grant includes "immu-
nity" or "immunities," no right to pass the
exemption results.
Phoenix F. ft M. Ins. Co. v. Tennessee, 161
U. S. 174, 40 L. ed. 660, 16 Sup. Ct. Rep.
471; Picard v. East Tennessee, V. ft G. R.
Co. 130 U. S. 637, 32 L. ed. 1051, 9 Sup.
Ct. Rep. 640; Wilmington ft W. R. Co. v.
Alsbrook, 146 U. S. 279, 36 !«. ed. 972, 18
Sup. Ct Rep. 72.
The absence of the word "immunity" in
the enabling l^slation is fatal to any claim
that an immunity from taxation possessed
by a lessor, assignor, or grantor company
psssei to a lessee, assignee, or grantee.
Picard v. East Tennessee, V. ft G. R. Co.
130 U. S. 637, 32 L. ed. 1051, 9 Sup. Ct.
Rep. 640; Chesapeake ft 0. R. Co. v. Miller,
114 U. S. 176, 29 L. ed. 121, 5 Sup. Ct.
Rep. 813; Wilmington ft W. R. Co. v. Als^
brook, 146 U. S. 279, 36 L. ed. 972, 13
Sup. Ct. Rep. 72.
llie capacity of the Liehigh Valley Rail-
road Company, a Pennsylvania corpora-
tion, to take as lessee, has been recognized
by the court of errors in Stewart v. Lehigh
Valley R. Co. 38 N. J. L. 505.
The effect of this lease in perpetuity is a
conveyance in fee.
Black v. Delaware ft R. Canal Co. 24 N.
J. Eq. 465.
By the lease the title to the property
described therein, so far as its transfer was
authorized by the enabling statute, became
vested in the lessee company.
United States Pipe Line Co. v. Ddaware^
L. ft W. R. Co< 62 N. J. L. 261, 42 hJUL
572, 41 Atl. 759.
Property under perpetual lease is to be
regarded, for purposes of taxation, at least,
as the property of the lessee.
Ocean Grove Camp Meeting Asso. v.
Reeves, 79 N. J. L. 334, 75 Atl. 783, affirmed
in 80 N. J. t. 464, 79 Atl. 1119; Huck v.
Chicago ft A. R. Co. 86 III. 352; Com. v.
Nashville, C. ft St. L. R. Co. 93 Ky. 430,
20 S. W. 383; Appeal Tax Ct. v. Western
Maryland R. Co. 50 Md. 274.
The lease of May 4th, 1871, must be lim-
ited, whatever its language, by the legisla- *
tive authority under which it was made;
and as such legislative authority is extended
only to property and franchises, no use by
the parties themselves of the additional
words "rights and privileges" can broaden
the grant so as to include the immunity
from taxation enjoyed by the lessor com-
179
12S-181
6UPREUB COUET OP THE UNITED STATES.
panj, even if thoM words b« cooeeded to in-
clud« this immunitj.
8t«wkrt V. Lebigh VwMej B. Co. 38 N. J.
L. SOS.
TtiE inclusion in the leased property ol
"right! u)d privileges" not author ii«d b;
the enabling Bt«tute did not invalidate the
leasts. It was good ao far as authOTised.
Hendee v. Pinkerton, 14 Allen, 3Bli Olon-
fnger v. PitUburgh & C. R. Co. 139 Fa. 13,
21 Atl. 211; BuUer t. Rahm, 46 Md. S41.
RochCflter t. Rocheater R. Co. 182 N. Y.
99, 70 L.R.A. 173, 74 N. E. 9S3, tbe failure
of the charter to include the words "huc-
cea»orB and assigns" in a general exemption
was held sufficient to prevent the transferee
of tfas property from claiming the exemp-
tion. The same reasoning was adopted by
the supreme court of Texas in International
ft O. N. R. Co. V. State, 76 Tex. 366. 12 S.
W. 681(. See also Lake Drummond Canal
A Water Co. t. Com. 103 V*. 33T, 68 L.R.A.
92, 49 S. E. SOe.
Mr. Robert H. McCartcr alio filed a sep-
•rate brief tor defendants in error :
The real question in this litigation is not
whether the Canal Company had a contract
of exemption, as that is conceded; but the
point is, did that exemption pass to the
Lehigh Valley Railroad Company when it
leased the property! The highest court of
New Jers^ has held it did not. That ad-
judication ia conclusive upon this court.
Jefferson Branch Bank v. Skelly, 1 Black,
430, IT L. ed. 173; Douglas v. Kentucky,
168 U. B. 488, 42 L. ed. SC3, 18 Sup. Ct.
Rep. IW.
Mr. Justice Mclteynalds delivered tite
opinion of the court:
The court of errors and appeals of New
Jersey sustained a tax tor the year 1006,
levied by the state board of assesson, under
the railroad and canal tax act of 1884 and
supplements thereto, upon the canal and ap-
purtenances leased by the Morris Canal &
Banking Company [130J to the Lehigh
Valley Railroad, 7G N. J. L. 827, 71
Atl. 328. Plaintiffs in error claim the
diartcr of the leaaor company exempts the
assessed property from taxation, and to
subject it to the charge in question would
impair the obligation of that contract con-
trary to the provisions of article I., g 10,
• Federal Constitution,
The Morris Canal t Banking Company
waa incorporated by a special act of the New
Jersey legislature, passed in December 31,
)8i4, for tbe purpose of constructing a ca-
nal across the state. This statute expressly
declared that "said canal when completed
■hall forever thereafter be esteemed a public
hi^way," gav* the stats the right to pur-
JS«
chase It after ninety-nine years at a fair
valuation, and specified that it should be-
come the sole property of the state after osm
hundred and forty-nine years; but no power
was granted the corporation either to sell
or lease its works. Section 4 provides:
"No state, county, township, or other
public assessments, taxes or charges what-
soever shall at any time be laid or impoaed
upon the said canal company, or upon the
stocks and estates which may become vested
in them under this act; but tbis exemptiMi
shall not extend to any other estate or prop-
erty of the company than such as U pos-
sessed, occupied and used by the said com-
pany for tbe actual and necessary purposea
of said canal navigation under this act, ac-
cording to the true intent and meaning
thereof; . . ."
An act approved March 14, 1871, amended
tbe original charter as follows;
"It shall and maybe lawful for the Morris
Canal A, Banking Company, by and with the
consent of a majority in interest of the
stockholders of the said company, expressed
in writing and duly authenticated by affida-
vit, [131] and filed in the office of tbe sec-
retary of state, to lease the canal of said
company, or any part thereof, with all or
any of its boats, property, works, appurte-
nances and franchises, to any person or per-
sons, or corporation, either perpetually or
for such shorter time, and upon sucb rents
and agreements, as may be agreed upon be-
tween the said contracting parties, and it
shall be lawful for the lessee or lesaees in
said lease to use and enjoy the said prop-
erty and franchises so demised, for the tenn
in said lesse mentioned."
By indenture dated May 4, 1871, the canal
company undertook to let and demise to tbe
Lehigh Valley Kailrosd its entire canal and
navigation works, together with all corpo-
rate franchises, Hghta and privilege*, other
than that of being a corporation, to have and
to hold unto the lessee, its successors and as-
signs, perpetually. (The words "rights and
privileges" are not contained in the amend-
ment to the charter.) Likewise it bargained
and sold to the railroad all oi its cars,
trucks, boats, etc., and movable property of
every kind and description except certain
records and specified articles.
Admitting tiiat the provision in the char-
ter of 1824, granting exemption from taxa*
tlon, constituted a valid contract which sub-
eequent legislation could not impair, the
state maintains that it ceased to apply after
the lease and sale to the railroad, and the
property in question tben l>ccame subject to
The doctrine essential to the solution of
the question in issue was lucidly stated and
the pertinent authorities cited in Rochester
SSS U. 8.
1916.
MELLON CO. T. McCAFFERTY.
1S1-1S4
B. Go. T. Boehcster, 206 U. & 236, 61 L. ed.
784» 27 Sup. Ct. Bep. 469* Mr. Justice Moody
deUToring the opinion. Speekin^ in req>eet
of the timnef er of mn immunity from the ex-
ercise of goTemmental power granted by
eontract, he declared (p. 247) :
''Although the obligations of such a con-
tract are protected by the Federal Constitu-
tion from impairment by [138] the state,
the contract itself is not property which, as
such, can be transferred by the owner to an-
other, because, being personal to him with
whom it was made, it is incapable of assign-
ment. The person with* whom the contract
is made by the state may continue to enjoy
its benefits unmolested as long as he chooses,
but there his rights end, and he cannot by
any form of conveyance transmit the contract
or its benefits, to a successor. . • . But
the state, by virtue of the same power which
created the original contract of exemption,
may either by the same law, or by subse-
quent laws, authorize or direct the transfer
of the exemption to a successor in title. In
that case the exemption is taken not by rea-
son of the inherent right of the original
holder to assign it, but by the action of the
state in authorizing or directing its transfer.
As in determining whether a contract of
exemption from a governmental power was
granted, so in determining whether its trans-
fer to another was authorized or directed,
every doubt is resolved in favor of the con-
tinuance of the governmental power, and
dear and unmistakable evidence of the in-
tent to part with it is required."
And, after a review of former opinions, the
conclusion was reached that a transfer, un-
der legislative authority, of "the estate, prop-
erty, rights, privileges, and franchises'' of
one corporation to another, did not vest in
the latter the freedom from exercise of
governmental power which the former en-
joyed under its charter.
The results in Wright v. Central of Geor-
gia R. Co. 230 U. 8. 674, 50 L. ed. 781, 35 Sup.
Ct. Bep. 471, and Wright v. Louisville k N.
B. Co. 230 U. 8. 087, 690, 50 L. ed. 788, 702,
35 Sup. Ct. Bep. 475, were based upon the
original charters, which were interpreted as
contemplating and permitting subsequent
transfers without subjecting the fee to taxa-
tion. Neither of these cases modifies the
principles announced and applied in the
q>inion quoted from above; it is referred to
with approval in the latter of them.
By express terms the charter of the Mor-
ris Canal k [133] Banking Company limit-
ed the exemption from taxation to such
property "as is possessed, occupied and used
by the said company for the actual and nec-
essary purposes of said canal navigation."
This language must be strictly construed
under the settled ruk, notwithstanding the
•0 Ii. ed.
rights of purchase and ownership secured by
the state, the supposed value of which, it is
claimed, was so unusual that a more liberal
interpretation should be adopted. After
transfer to the railroad the assessed prop-
erty was not possessed, occupied, or used by
the canal company; and the exemption*
therefore, no longer applied, unless some leg-
islation plainly authorized or directed its
transfer.
Only the act of March 14, 1871, can b«
relied upon to show such authorization or
direction. But this merely permitted the
lease of "the canal of said company, or any
part thereof, with all or any of its boats,
property, works, appurtenances and fran-
chises;" and, as clearly pointed out in the
Bochester Case, an exemption from taxation
does not pass under a valid lease or sale of
corporate property together with appurt^
nances and franchises.
We find no error in the judgment of the
court below, and it is accordingly affirmed.
[134] MELLON COMPANY, PMT. in Err.,
V.
CHABLES McCAFFEBTY, as County
Treasurer, et al.
(8ee S. C. Beporter's ed. 134-130.)
Error to state court — decision on non-
Federal ground.
A decree of the highest court of a
state which affirmed a decree below, dis-
missing on demurrer the bill in a suit to
enjoin the collection of taxes, rests upon
an independent state ground broad enough
to sustain it whollv irrespective of the F^-
eral rights asserted under U. S. Const., 14th
Amend., and therefore is not within the
appellate jurisdiction of the Federal Su-
preme Court, where both the state courts
neld that the bill stated no equity because
it failed to allM;e that resort had been had
to adequate administrative remedies pro-
vided by the state laws for the collection
of the assessment, although some of such
Note. — On the general subject of writs
of error from United States Supreme Court
to state courts — see notes to Martin v.
Hunter, 4 L. ed. U. 8. 07; Hamblin v.
Western Land Co. 37 L. ed. U. S. 207; Be
Buchanan, 30 L. ed. U. 8. 884; and Kipley
V. Illinois, 42 L. ed. U. 8. 008.
On what adjudications of state courts can
be broiu;ht up for review in the Supreme
Court of the United States by writ of error
to those courts — see note to Apex Transp.
Co. V. Garbade, 62 LJU^. 513.
On how and when questions, must be
raised and decided in a state court in order
to make a case for a writ of error from the
Supreme Court of the United States — see
note to Mutual L. Ins. Co. v; McGrew, 63
LJLA. 33.
lai
lM-188
SUPREME COURT OF THE UNITED STATES.
Cot. Temu,
remedies may have been wrongfully decided
to be available.
(For other eaeee, tee Appeal and Error, 1465-
1528, In Digest 8np. Ctri908.]
[No. 27.]
Submitted October 22, 1016. Decided No-
vember 29, 1015.
IK ERROR to the Supreme Court of the
State of Oklahoma to review a decree
which affirmed a decree of the District Court
of Oklahoma County, in that state, dismiss-
ing on demurrer the bill in a suit to enjoin
the collection of taxes. Dismissed for want
of jurisdiction.
See same case below, 88 Okla. 634, 135
Pac. 278.
The facts are stated in the opinion.
Mr. W. A. Ledbetter submitted the
cause for plaintiff in error. Messrs. H. L.
Stuart and R. R. Bell were on the brief.
Mr. Gharles J. Kappler submitted the
cause for defendants in error. Messrs.
John Embry and Sam Hooker were on the
brief.
[136] Mr. Chief Justice White delivered
the opinion of the court:
The court below affirmed a decree of the
trial court, dismissing a bill filed by the
plaintiff in error to enjoin the collection of
state, county, and city taxes assessed against
it for the year 1910. 38 Okla. 634, 135
Pac. 278. The ground for relief alleged was
that the assessment had been unlawfully
made as the result of an agreement between
the city assessor and the county board of
equalization, with the approval of the state
auditor, that the property of all corpora-
tions should be assessed at its true cash
value while that of all individuals should
be assessed at only 60 per cent of its cash
value. The bill alleged that the result of
the assessments so made was to give rise
to such inequality and discrimination as
to make the assessment illegal under the
state Constitution and laws, and also to
cause it to be repugnant to the equal pro-
tection and due process clauses of the 14th
Amendment. The action of both the courts
was taken in disposing of a general de-
murrer to the bill, and 'both held that the
bill stated no equity because it failed to
allege that adequate administrative reme-
dies which were provided by the state law
for the correction of the wrongful valua-
tion complained of had been resorted to.
As it is not disputed, and, indeed, is,
from a twofold view, indisputable, that the
action of the court below was right if the
premise upon which its ruling was based
182
be accepted, that is, the existence of ample
and efficient administrative remedies under
the state law and the failure to resort to
them (Prentis v. Atlantic Coast Line Co.
211 U. 8. 210, 53 L. ed. 150, 29 Sup. Ct.
Rep. 67; Johnson v. Wells, F. & Co. this
day decided [239 U. S. 234, post, 243, 36 Sup.
Ct Rep. 62] ) , it follows that we are with-
out jurisdiction, since, under that hypothe-
sis, the decree below would rest upon an
independent state ground broad enough to
sustain it, irrespective of the questions of
Federal right asserted. [137] But it is
urged that plain error was committed by the
court below in its ruling as to the state
law, since some of the remedies under that
law which it was held should have been re-
sorted to for the purpose of correcting the
assessment complained of were not so avail-
able. Although the error thus complained
of manifestly concerns a state question, the
argument insists that we have jurisdiction
to consider and correct it, since the right
to do so is inseparable from the duty to
give effect to the Constitution. We are of
opinion, however, that if, for the sake of
the argument, the proposition be conceded,
and every remedy which it insists was
wrongfully decided to be available be, upon
the hypothesis stated, put out of view and
treated as not existing, nevertheless there
remain remedies provided by the state law
embraced by the ruling below which would
cause that ruling to rest upon independent
state grounds broad enough to sustain it
irrespective of the Federal rights relied
upon. The merest outline of the assessment
laws of the state will make the grounds of
this conclusion clear.
Situated in a municipality, the city as-
sessor was the officer primarily charged
with the duty of assessing the property in
question, and that officer, in conjunction
with the mayor or president of the board of
trustees and the city clerk, composed a city
board of equalization with ample powers
to redress all individual wrong complained
of concerning an assessment, and with au-
thority to take steps generally to equalize
assessments. Comp. Laws 1909, § 7616.
From the adverse action of this board upon
complaint made a right of appeal existed
to the county board of equalization, com-
posed of a majority of the county commis-
sioners. The powers of such board were
also ample to redress any grievance com-
plained of. Comp. Laws 1909, § 7617. In
addition there was a state board of equal-
ization having general authority to correct
inequalities between counties; in other
Words, [138] to redress wrongs which were
more extq^sive in character than those aris-
ing from the complaint of individuals as to
their particular assessments. Comp. Laws
9S9 V. 8.
1015.
OHIBNO AH BUI t. McGOT.
188, 130
1000, § 7620. From the aetion of neither
ol tiiese adminifltratiTe bodies was there
any method of review given prior to 1010.
In that year the statutes were re-enacted,
the principal change being a right given
to review the action of the county board
by the "county court, and that of the state
board by the supreme court. Chap. 73, Ses-
sion Laws of 1010, p. 148, and chap. 87,
id. p. 173. The error of state law which
it is insisted was committed by the court
was the ruling that the law of 1910 was in
effect for the purpose of the prosecution
of an appeal as to the assessment in ques-
tion from the county board of equalization
to the county court, when in fact such rem*
edy could not have been pursued, because,
when the law of 1010 went into effect, the
county board had completed its work under
the assessment for 1010 and had adjourned
sine die. But conceding this to be true,
the court below ruled that under the act of
1910, in view of the character of the wrong
complained of as to the particular assess-
ment in question, there was power vested
in the state board of equalization to hear
complaint concerning it, and hence the duty
to invoke its action, and, if it was adverse,
to appeal from that body to the supreme
court of the state, — a right which could have
been availed of, as there is no contention
that there was not ample opportunity to so
do after the act of 1010 was enacted and
went into effect. Moreover, a like situation
arises from the ruling below to the effect
that it was the duty, irrespective of the re-
enacting act of 1910, under the original
law, to have complained of the assessment
to the city board, and to have appealed
from its adverse action to the county board
of equalization. To avoid this difficulty
in the argument it is insisted that a resort
to these remedies was not required because
they would have been unavailing, in view of
the nature [139] of the wrong complained
oL But the duty to resort to the adequate
remedies provided could not be escaped by
assuming that if they had been resorted to,
the wrong complained of would not have
been rectified.
As it follows that, under any possible
view of the case, the judgment below rested
upon propositions of state law adequate to
sustain it, wholly irrespective of the Fed-
eral right relied upon, it results that we
have no power to review, and the writ of
error must be dismissed for want of juris-
diction.
And it is so ordered.
•0 L. ed.
CHIENG AH SUI, Appt.,
V.
HENBY B. McCOY, Insular Collector of
Customs of the Philippine Islands.
(See S. C. Beporter's ed. 130-144.)
Aliens — Chinese exclusion — power of
insular collector.
1. The general supervisory authority
of the insular collector of customs over
the enforcement in the Philippine Islands
of the Federal immigration and Chinese ex-
clusion acts was not exceeded by his action
in giving to the board of special inquiry
provided for by the immigration acts the
power primarily to determine, subject to his
review, the right of persons to enter the
Philippine Islands under the Chinese ex-
clusion acts.
[For other cases, see Aliens, YI. b. In Digest
Sup. Ct. 1908T]
Constitutional law — due process of law
— notice and hearing — Chinese ex*
elusion.
2. A Chinaman refused entry into the
Philippine Islands has no ground for claim-
ing that he was not given Qie hearing which
is essential to afford the due process of law
secured in those islands by the act of July
1, 1002 (32 Stat, at L. 601, chap. 1360,
Comp. Stat. 1913, § 3804), where the board
of special inquiry reach^ its decision ad-
verse to his right to land after a hearing,
and twice reheard the case with the same
result, and its last decision was affirmed by
the insular collector, and was upheld by
the Philippine supreme court on habeas
corpus.
[For other cases, see Constitutional Law, 764-
778, in Digest Sup. Ct 1008.]
[No. 64.]
Submitted November 1, 1015. Decided No-
vember 20, 1015.
APPEAL from the Supreme Court of the
Philippine Islands to review a decree
which reversed an order of the Court of
First Instance of the City of Manila, re-
leasing on habeas corpus a Chinaman held
in custody subject to deportation. Af-
firmed.
See same case below, 22 Philippine, 36L
The facts are stated in the opinion.
Note. — ^As to what constitutes due process
of law, generally — see notes to People v.
O'Brien, 2 L.RJL. 255; Kuntz v. Sumption,
2 ImRJl. 655; Re Gannon, 6 L.R.A. 350;
Ulman v. Baltimore, 11 L.IUL 2^24; Gil-
man V. Tucktf, 13 L.R.A. 304; Pearson v.
Yewdall, 24 L. ed. U. 8. 436; and Wilson ▼.
North Carolina, 42 L. ed. U. 8. 866.
On notice and hearing required to oon-
stitute due process of law — see notes to
Kuntz V. Sumption, 2 LJLA. 657; Chauvin
V. Valiton, 3 L.R.A. 104; and Ulman v.
Baltimore, 11 L JLA. 226.
ISS
UO 6UPB£ME COUET OF TEE UHITED BIATE8. Oat. Tmm.
Hr. Clemmit Ii. Boavfi Bubmitt«d tbe mony of appllcuit's vitnewM, eren thongb
eauM for Appellant: It «>• HDContradieted.
If there wu no evidence to lupport the Quock Ting t. United Statei, 140 U. 8.
finding that the petitioner is not the son of *17. *20, 36 L. ed. 601, 502, 11 8np. Ct
Ah Boon, a fair hearing has been denied. R«P- 733, 861; Lm Lung t. Patt«rK»n. IM
Uy Kai Hu v. McCoy, 24 Philippine, 152; U. S. 168. 46 L. ed. 1108, £2 Sup. Ct. Bep.
Aug Eng Chong t. Collector of Cuatomi, "6; He Jew Wong Loy, 01 Fed. 240; Lm
23 PhufppiBe, 814; Ex part. Long Lod(. ^l"* f^^ J; ""'*^, Stat^ 36 C. C. A. 327,
173 Fed. 208; United StTte. « rd! Klein SJ^Ii *'"'„^,i*r,'"";' 'i f.^1 1^'
V Willi.Tn« 180 Fed B15 124 C C A 366 ^'^ ^'* '' '^'"*** ^*****' *^ ^- '^- ^- ^°*'
oJr. ] ^-« rT ■;!.cT . 1 n ■ ' Jt« ^^- 888; Q"™^ Sue T. United Statei,
20e Fed. 460 ; United State, ex rel. Beinmann „ ^ p ^ ggg ^g |.^ 3jg ^^j^^ g^;^
T. MartiB, 1B3 Fed. 708; United Statea tx , j^ gnen, 118 Fed. 442; Ex parte Lom
rel. Freeman t. Williami, 176 Fed. 274; Lock, 173 Fed. 214; Kum Sue v. Unit«l
United SUtes t. Chin Len, 100 C. C. A. 810, gtate*. 102 C. C. A. 648, 176 Fed, 370; B«
187 Fed. 544; United Statea er rel. Gold- Yim Quock Leong, 1 Haw. Dirt. Ct. 68;
berg V. Williami, 204 Fed. 828; N. Jim Tan Beko v. CoUector of Cuatoma, 26 Philip-
Quan T. UniUd Statea, 127 C. C. A. 2S3, pine, 264.
210 Fed. ei7. If it doea not affirmatiTel7 appear Uiat
The failure to confront Ah Soon with an the executive officera have acted in wnne tin-
aUt^ed contradictory statement, or to give lawful way and abused their author!^ and
him any opportunity to explain it, is not diecretion, their finding upon the question
eompatUile with the ordinary principles of of relationahip, upon the eatablisfament of
fair play. which by the applicant hia adminibility
Ex parte Eeiauki Sata, 216 Fed. 173; Ex depends, must be deemed to be eonelnsiVe,
parte Lew Un 6hew, 217 Fed. 317; Ex parte "nd ia not subject to review by tbe court*.
Lam Fui, 217 Fed. 466; Hanges v. Whitfield, United Statea v. Ju Toy, IDS U. 8. 253, 4»
200 Fed. 676. L. ed. 1040, 23 Sup. Ct. Hep. 644; Chin Yow
The remark of an inapector, injected into v. United States, 208 I'. S. S, 62 L. ed. 369,
a record dealing with cerUin points covered ^^ Sup. Ct. Rep. 201; Tang Tun v. Edsell.
by the matter in controversy, constitutes no 223 U. S, 673, 66 L. ed. 606, 32 Sup. Ct
evidence whataoever of the facts to whicli it ^^P- 3^^-
purports to relate. This was not a judicial but an adminia-
Ei parte Lam Fuk Tak, 217 Fed. 468. trative proceeding, which technical criminal
This holding would seem to be somewhat procedure does not govern.
analogous to deciaiona to the efiTect that a United States ex rel. Buccino v. William%
so-called certificate of discharge iasued by 190 fed. 807 ; Re Jem Yuen, 188 Fed. 350j
a United States commisBioner in Chinese ''»n8 'J""" '■ Edseil, 223 U. S. 673, 68 L.
deporUtion proceedings is not evidence of "*■ ^^' 32 Sup. Ct. Rep. 363.
such adjudication ( Ah How v. United
States, 103 U. S. 65, 48 L. ed. 610, 24 Sup. ^'- *^^'"' Jurtice Wltll* delivered tli*
Ct. Rep. 357; Ex parU Lung Foot, 174 Fed. opln'"" "f the court:
70), or of the tacts on which the commis- Chleng Ah Soon, a Chinese merchant
doner's alleged finding is based (Ex parte '''■'ding in Manila, proposing to go to
Lung Wing Wun, 161 Fed. 211; Ex parte China, took a certificate which was auscepti-
Usc Fock, 207 Fed. 686), '''« "* being used to identity him for the
purpose of re-entry in case of hia return.
Mr. S. T. Ansel! submitted the cauae for About a year afterward, July 10, 1010, Ah
appellee: Soon returned, accompanied by two persons
The burden of proof is upon the appli- asserted to be his minor sons, one Ah Luy,
cant to show admisaibility. gaii to be twenty, and the other. Ah Bui,
Re Moy Quong Shing, 125 Fed. 641; Unit- to be sixteen years of age. His right to
ed BUtea v. Too Toy, 185 Fed. 838; Chin isnd was at once conceded, but the right of
Yow V. United SUtes, 208 U. S. 8, 62 L. ed. the two others being queatroned, the inaular
369, 28 Sup. Ct. Rep. 201 ; Ah How T. Unit- collector referred the matter for inquiry
ed Statea, 183 U. S. 65, 76, 48 L. ed. 618, and report to a board which was charg^
622, 24 Snp. Ct Rep. 367. with the duty of considering such question.
No presumption of unfairness, arbitrari- At once this board heard the testimony
nesa, or abuse of discretion and authority offered to prove the right to admission and
can arise from the fact alone that the Immi- concluded that Ah Luy had establtabed
gration officiala did not accept the teati- such right, but that Ah Sui had not. An
184 IS9 U. 8.
1916.
CHIENQ AH 6UI t. MoOOT.
140-143
ai^>eal was prosecuted to the collector,
bat before the matter was decided by him
on the merits a rehearing was granted,
presumably by the board, and it again
heard the matter on July 23, 1910. At
the r^earing additional testimony was
offered by Ah Sui, but after reexamination
of the matter and considering such testi-
mony, the board adhered to its former con-
clusion. An i^peal was taken [141] to the
collector, and once more before it was de-
cided a second rehearing was allowed, and
on the lOth of August, 1910, after hearing
additional testimony, the original order was
again reaffirmed. This last decision was
on September 3d, 1910, affirmed on appeal
by the insular collector, and on September
15th an application for rehearing was re-
fused and Ah Sui remained, therefore, in
the custody of the collector for deportation.
At once he applied for habeas corpus
to the court of first instance of the city
of Manila, asserting the illegality of his
detention for deportation and his right to
land as a minor son of Ah Soon, on the
following grounds: (a) An entire want
of power in the insular collector to have re-
ferred the right to land to the board of
inquiry, and the resulting absolutely void
character of the proceedings, whether ap-
pellate or otherwise, taken thereunder; (b)
Even upon the assumption of existence of
power, the absolutely void character of the
action of the board and the collector be-
cause of the entire disregard by both of the
testimony establishing the paternity of Ah
Soon and the resulting right of Ah Sui
to land. Although ruling against the as-
sertion of want of power, the trial court
yet granted the writ of habeas corpus and
directed the release of the applicant on the
ground of a gross abuse of discretion by
the board and the collector in refusing to
give effect to the testimony showing the
right to enter, although there was nothing
in the proof tending to the contrary. On
appeal, the court below, after reviewing
the testimony, held that there was no
ground to support the conclusion reached
by the trial court of arbitrary action and
abuse of discretion by the board and the
collector in passing upon the right to land,
and therefore reversed the order releasing
Ah Sui, thus leaving him in custody, sub-
ject to deportation. 22 Philippine, 361.
Our jurisdiction is invoiced, first, upon the
theory that the construction of statutes of
the United SUtes is necessarUy [142] in-
volved in the assertion of the want of all au-
thority of the insular collector of customs
to have appointed the board which primari-
ly determined the right to admission, and
second, an assumed violation of the due
40 L. ed.
process of law secured in the Philippine
Islands by act of Congress, arising from
the action taken below because of its as-
serted arbitrary character, eaused by the
alleged absolute disregard of the testimony
establishing the right to enter, and the
absence of any testimony to the contrary.
We come to dispose of these contentions
separately.
1. That the immigration and Chinese
exclusion laws of the United States have
been by act of Congress carried to the
Philippine Islands and authorised to be
there put into effect under appropriate leg-
islation by the insular government is not
disputed. That such government has put
such laws into effect, and in doing so has
in express terms conferred the general
supervisory authority required for that pur-
pose to be exerted upon the insular col-
lector of customs, is also not disputed.
And that such officer, under that authority,
has provided for a board of examiners
primarily to determine, subject to his re-
view, questions arising under the immigra-
tion and Chinese exclusion laws, is also
not disputed. The contention is based upon
the supposed repugnancy to the act of
Congress caused by the action of the col-
lector in giving to such board primary au-
j thority to examine under the Chinese ex-
clusion acts. The argument is that al-
though, under the immigration acts, provi-
sion is made for a board of examiners,
no such provision is found in the Chinese
exclusion acts, since under the latter, al-
though an examination is provided for,
it is left to be conducted under rules
and regulations adopted by the appro-
priate authority, and in the exercise of
that power in the United States, exam-
ining agents, and not an examining board
or boards, are provided for by the regula-
tions. Upon this, and this alone, is the
conclusion rested that the making of a
primary [143] examination under the ex-
clusion acts by a board was in conflict with
the United States statutes.
The extremity of the argument is well
illustrated by considering the extent of the
administrative power conferred by the in-
sular government upon the collector in dele-
gating to him the authority to enforce the
Chinese exclusion acts, since by § 1 of act
No. 702 of the Philippine Commission,
enacted March 17, 1903, it is provided that
"the collector of customs for the Philippine
Archipelago is hereby authorised and direct-
ed ... to employ for that purpose
the personnel of the Philippine' customs
service, the provincial and military officers
hereinafter provided, and such other persons
as may be necessary." But, aside from
143, 144
SUPREME OOUEX OF THE UNITED STATES.
OoT. Tebm,
this, we are of the opinion that the mere
statement of the supposed conflict answers
itself, since there is no room for real con-
tention that there was a want of power in
the collector to appoint the board instead
of an agent to aid him in the discharge of
the duties devolving upon him. And we
are also of the opinion that there was no
groxuid whatever for the contention that
a conflict arose between the act of Con-
gress and the action of the collector be-
cause the board selected was one in whom
the power had been already lodged to act
under the supervision of the collector con-
cerning matters of inmiigration.
2. So far as concerns the assertion that
there was a violation of the due process of
law secured in the Philippine Islands by
act of Congress both because of the want
of a hearing and the disregard of the testi-
mony, we are of the opinion that the first.
on the face of the record, is completely
answered by the statement we have made of
the abundant opportunity which was afford-
ed for a hearing, of the rehearings granted,
and of the reiterated considerations which
resulted by the board and the collector;
especially in view of the judicial considera-
tion of the subject of the complaint made in
the proceedings which culminated [144] in
the decree which is before us for review.
As to the charge of the total disregard of
all the testimony, we might well content our-
selves with referring to the opinion of the
court below ; but, in -view of the character
of the case, we say that, from an exam-
ination of the record, we think such con-
tention is devoid of all merit.
Affirmed.
GEORGE W. NORTON, as Executor and
Trustee of the Estate of George W. Nor-
ton, Deceased, Appt.,
V.
ROBERT B. WHITESIDE and Andrew J.
Tallas.
(See S. C. Reporter's ed. 144>156.)
Appeal — from circuit court of appeals
— diverse citizenship case.
The jurisdiction of a Federal district
court over a suit by an owner of land on
the Minnesota side of a stretch of water
near the upper end of Lake Superior
against the owners of land on the Wis-
oonsin side to enforce complainant's as-
serted riparian rights from the shore out to
a new navigable channel constructed in the
improvement of navigation by the United
States cannot be said to have rested upon
any assertion of Federal right irrespective
of diverse citizenship, so as to Justify an
appeal to the Federal Supreme dourt from
a decree of the circuit court of appeals, de-
spite allegations in the bill that both par-
ties acquired title from the United States,
and references to the organization of the
Northwest Territory, and the general intent
of Congress to preserve free navigation.
[For other cases, see Appeal and Error, 76ft-
784, in Digest Snp. Ct. 1008.]
[No. 66.]
Argued November 4 and 5, 1015. Decided
November 29, 1015.
APPEAL from the United States Circuit
Court of Appeals for the Eighth Cir-
cuit to review a decree which reversed, with
directions to dismiss the bill, a decree of
the Circuit Court for the District of Min-
nesota in favor of complainant in a suit to
enforce asserted riparian rights. Dismissed
for want of jurisdiction.
See same case below, 45 L.RJL(N.S.)
112, 123 C. C. A. 313, 205 Fed. 6.
The facts are stated in the opinion.
Mr. Jed Ij. Washburn argued the cause,
and, with Messrs. William D. Bailey, Oscar
Mitchell, and Albert C. GiUette, filed a brief
for appellant.
Messrs. Luther C. Harris and Alfred
Jaques argued the cause, and, with Mr.
Theodore T. Hudson, filed a brief for appel-
lee Robert B. Whiteside:
Some right, title, privilege, or immunity,
dependent upon the construction of the Con-
stitution, or some law or treaty, must be
relied on, in order to raise a purely Federal
question.
Muse V. Arlington Hotel Co. 168 U. S.
430, 42 L. ed. 531, 18 Sup. Ct. Rep. 100.
Mere general allegations that the con-
struction of some law or the Constitution
are involved are not sufficient. They must
be based upon facts clearly alleged in the
complaint.
Budzisz V. Illinois Steel Co. 170 U. S.
41, 42 L. ed. 041, 18 Sup. Ct. Rep. 503.
The question as to whether the jurisdic-
tion depended on diverse citizenship alone,
or on other grounds as well, must be de-
NoTB. — On appellate jurisdiction of Fed-
eral Supreme Court over circuit coiu^s of
appeals — see notes to Bagley v. General Fire
ifxtinguisher Co. 6? L. ed. U. S. 605; and St.
Anthony's Church y. Penn^hrania R. Co.
60 L. ed. U. S. 1110.
Generally, as to diverse citizenship as
ground of Federal jurisdiction — see notes
186
to Seddon v. Virginia, T. & C. Steel & I.
Co. 1 L.R.A. 108; Myers v. Murray, N. &
Co. 11 L.RAl. 216; Emory v. Greenough, 1
L. ed. U. S. 640; Strawbridge v. Curtiss,
2 L. ed. U. S. 435; McDonald v. Smalley, 7
L. ed. U. S. 287; and Roberto v. Lewis, 36
L. ed. U. 6. 570.
239 V. S.
1919.
KOKXON V. WHITESIDE.
145-147
termined from the plaintiiTt itatemeiit of
iiit own came of action as set forth in the
bill, regardless of questions that may have
been brought into the suit by answer, or in
4he course of the subsequent proceedings.
Colorado Ceut. Consol. Min. Co. v. Turek,
150 U. S. 138, 37 L. ed. 1030, 14 Sup. Ct.
Rep. 35; Tennessee t. Union k Planters'
Bank, 152 U. S. 464, 38 L. ed. 511, 14 Sup.
Ct Rep. Cj4; Devine y. Los Angeles, 202
U. 8. 313, 333, 50 L. ed. 1046, 1068, 26
Sup. Ct. Rep. 652.
It is not enough that grounds of juris-
diction oth&t than diverse citizenship may
be inferred argumentatively from the state-
stents in the bill, for jurisdiction cannot
rest on any ground that is not affirmatively
and distinctly set forth.
Hanford v. Davies, 163 U. 8. 273, 41 L^
ed. 157, 16 Sup. Ct Rep. 1051; MounUin
View Min. ft Mill Co. v. McFadden, 180
U. S. 533, 45 U ed. 656, 21 Sup. Cl. Rep.
488; Shulthis v. McDougal, 225 U. S. 565,
56 L. ed. 1205, 32 Sup. Ct Rep. 704.
A suit to enforce a right whieh takes its
origin in the Uws of the United States is
not necessarily, or for that reason alone,
one arising under those laws, for a suit does
not so arise unless it really and substan-
tislly involves a controversy respecting the
validity, effect, or construction of such laws,
upon the determination of which the result
depends.
Blackburn T. Portland Gold Min. Co. 175
U. S. 571, 44 L. ed. 276, 20 Sup. Ct Rep.
222, 20 Mor. Min. Rep. 358; Florida C. ft
P. R. Co. V. Bell, 176 U. S. 321, 44 L. ed.
486, 20 Sup. Ct Rep. 309; Shoshone Min.
Co. V. Rutter, 177 U. S. 505, 44 L. ed.
864, 20 Sup. Ct Rep. 726.
Messrs. Daniel G. Cash and John B.
Richards, Jr., filed a brief for appellee An-
drew J. Tallas.
Mr. Chief Justice THilte delivered the
opinion of the court:
The appellant, who was complainant be-
low, as the owner of certain shore land
abutting on a stretch of water [146] in or
near the upper end or far corner of Lake Su-
perior, from one point of view sued to quiet
his title to the whole or a part of a certain
island which had emergjd from the waters
in front of his land, or, considered from the
same point of view in a broader aspect to
protect his asserted riparian rights in the
submerged land in front of his shore prop-
erty. The defendants, who are appellees,
were owners or possessors either of prop-
erty on the opposite shore or of the wliole
or part of the emerged island, and the con-
troversy resulted from a difference between i
the parties as to the character and extent *
40 li. ed.
of their riparian rights and as to the own-
ership of the island which had emerged in
the stretch of water between the two shores.
The district court upheld the theory of the
existence in the complainant of the riparian
rights asserted by him, and therefore award-
ed relief upon that basis except as to a
portion of the emerged island, as to which
it gave no relief because, in consequence of
adverse possession by one of the defendants,
it was considered there was an adequate
remedy at law and consequently no right to
equitable relief. 188 Fed. 356. On appeal
the court below, not approving the full char-
acter or extent of the riparian rights assert-
ed by the complainant and recognized by
the trial court, reversed, with directions to
dismiss the biU (45 L.ItA.(N.S.) 112, 123
C. C. A. 313, 206 Fed. 5), and it U in
eonsequence of an appeal from that decree
that the case is now before us.
A motion to dismiss upon ths ground
that the decree appealed from is beyond our
competency to review because made final
under § 128 of the Judicial Code (36 SUt
at L. 1133, chap. 231, Comp. SUt 1913,
§ 1120) requires to be disposed of. To test
its msrits we must first ascertain whether
the jurisdiction of the district court was
invoked solely on the ground of diverse
citizenship. St Anthony's Chureh v. Penn-
sylvanU R. Co. 237 U. S. 575, 577, 59
L. ed. 1110, 1122, 86 Sup. Ct Rep. 729, and
eases cited. That, taking the face of the
bill from the point of view of mere form
of statement, diverse citizenship was not
the only ground [147] of jurisdiction relied
upon, is apparent, since the bill, besides di-
versity of citizenship, alleged that the cause
of action was one arising under the Consti-
tution and the laws of the United Ststes.
This, however, does not suffice to solve the
question, since it is settled that a mere for-
mal statement -to that effect is not enough to
establish that the suit arises under the Con-
stitution and laws of the United States,
but that it must appear that "it really and
substantially involves a dispute m contro-
versy respecting the validity, construction,
or effect of some law of the United States,
upon ths determination of which the result
depends. And this must appear not by
mere inference, but by distinct averments
according to the rules of good pleading."
Hull V. Burr, 234 U. S. 712, 720, 58 L. ed.
1557, 1561, 34 Sup. Ct Rep. 892, and au-
thorities there cited. Before coming to the
text of the complaint, to understandingly
test whether it fulfils these requirements we
give the merest outline of the condition out
of which the controversy grew and to which
the complaint related.
The boundary line of WIsoonsin under
its «Mbling acty starting from a designated
1S7
H7-150
SUPREME COURT OF THE UNITED STATES.
Oct. Temm,
point, ran "through the center of Lake
Superior to the mouth of the St. Louis
rirer; thence up the main channel of said
river to the first rapids in the same/' etc.
And the boundary line in one respect of
Minnesota from the point where it inter-
sected with the St. Louis river followed the
main channel of that river "to and through
Lake Superior, on the boundary line of Wis-
consin and Michigan, until it intersects the
dividing line between the United States and
the British Possessions." From the point
of intersection where it first becomes the
boundary of the states of Wisconsin and
Minnesota, in its flow towards Lake Su-
perior, the St. Louis river approaches Lake
Superior in the direction of a large bay or
indentation therein. From one point of
view the river, at once leaving the fast
land, empties into and is immediately ab-
sorbed in this bay. From another, [148]
the river, before it empties into the lake, ex-
pands into a stretch of shallow water con-
tained within the north or Minnesota shore,
upon which is Duluth, and the south or
Wisconsin shore, upon which is the city of
Superior, through which shallow stretch a
tortuous but navigable channel curvingly
continues to flow until, by a passage through
an intervening bar, the river, emptying into
the bay, merges its existence with that
of the lake. We say tortuous channel be-
cause the banks on either side of the flange-
like stretch of water are not symmetrical,
but are indented with various bays of di-
vergent shape and expanse, and the water
itself is irregularly interspersed with is-
lands or flats which deflect the channel we
have described and cause it greatly to
meander as it proceeds to its ultimate desti-
nation in the bay through the bar in ques-
tion. It will thus be seen that the differ-
ence between the two points of view is this:
that one treats the lake as embracing the
expanded though shallow stretch of water
in question, and the other considers the
shallow stretch of water as a part of the
river until the point is reached where, tra-
versing the bar, the lake and river are
completely, and beyond room for any possi-
ble question, united.
On the Minnesota or north shore of this
shallow stretch pf water the complainant
owned land. The channel flowing through
the stretch of water as it approached the
complainant's land curved towards the Min-
nesota shore, and therefore, in passing in
front of that land, was nearer the north,
or Minnesota, shore. In the stretch of water
Ibearly opposite the complainant's land, but
over towards the south, or Wisconsin, shore,
there was a large island known as Big is-
land, admittedly in the state of Wisconsin,
owned by Whiteside, one of the defendants,
J3S
and about 2,000 feet lay between the oaUr
shore of this island and the oomplainaafs
land on the northern shore. In the inter-
vening space between the channel and this
[149] island, and therefore on the tootli,
or Wisconsin, side of the channel, there
gradually emerged a smaller island.
It having been determined to improve the
navigation in the channel through the
stretch of water in question, the plans to
accomplish that purpose were approved by
the Secretary of War in 1899, and in virtue
of an appropriation by Congress the work
under the plans was carried out by the
United States between the years 1899 and
.1002. It is not necessary for the elucida-
tion of the averments of the bill to do more
than say that the carrying out of this work
resulted in the creation of a new navigable
channel which, in passing through the
stretch of water, instead of swinging
towards the north, or Minnesota, shore in
front of the complainant's land, curved in
the other direction, and therefore ap-
proached nearer the Wisconsin shore than
did the old channel. In doing so it con-
sequently reached or struck the emerged
island of which we have spoken near its
Wisconsin, or south, side, and, cutting
through it, virtually put the new and en-
larged channel on the Wisconsin side of
such emerged island. What remained of
the island thereafter hence lay between the
newly created channel and the lands of the
complainant on the north, or Minnesota^
shore. In other words, as the result of the
creation of the new channel the lands of
the complainant, to the extent that the
emerged island accomplished that result,
were separated from the new channel. In
the performance of the work it may be con-
ceded that in cutting through the emerged
or small island the excavated earth was
largely dumped on the surface of the island
towards the Minnesota shore, and that,
either because of the washing of this earth
into the old channel, or the sedimentary
deposit caused by the slackening of the ve-
locity of the water flowing through it, the
old channel opposite the land of the com-
plainant became not suitable for, or more
diflScult of, navigation.
In view of this situation we come to con-
sider the bill, [160] its averments, and the
light thrown on them by the relief prayed,
in order to determine whether, in any sub-
stantial manner whatever, it involved the
construction or application of the Constitu-
tion or laws of the United States within the
criteria embraced by the established rule
which we at the outset stated. Instead d
following the order of the twenty-four pani-
graphs which the bill contains, we rear-
range and group them under five headings*
2S9 V. ft.
1915.
NORTON ▼. WHITESIDE.
150-152
omitting many Tedundancies of ttatement,
bat leaying out nothing which can throw
light upon the cause of action relied upon.
•<a) The parties. — ^The complainant was
alleged to be a citizen of Kentucky, and the
defoidants, Whiteside, Alezand^, and Tal-
las, were alleged to be citizens of the state
iA Minnesota and inhabitants of the district
in which the suit was brought.
(b) The grievaBces oomplained of. — It
was alleged that the complainant owned
land under patents from the United States
on the Minnesota side of the stretch of
water at the point to which we have re-
ferred, that the defendant, Whiteside, under
title acquired also from the United States,
owned land on the Wisconsin side. Big is-
land, that Alexander, either in his own
right or in connection with Whiteside,
claimed some land on the Wisconsin side
and resulting riparian rights, and that Tal-
las had taken possession of a part of the
small or emerging island, erected a small
structure thereon, and, without right in
law, was asserting ownership therein, the
land never having been disposed of by pub-
lic authority. It was averred that both
Whiteside and Alexander, by virtue of their
shore ownership, were asserting riparian
rights crossing the new or government chan-
nel to the old or original channel, embrac-
ing what remained of the emerged island,
and that Tallas, by virtue of his posses-
sion of the island which remained, was as-
serting the right to hold it as owner.
(c) The rights asserted. — ^Averring that
the stretch of water was a part of Lake
Superior, in substance it was [151] as-
serted that as the complainant owned shore
land on the Minnesota side, there existed
riparian rights extending out to the center
of the channel flowing through the stretch of
water, securing to the shore owner the con-
sequent right of direct access to such chan-
nel, and this right, it was in substance al-
leged, embraced the power not only to ex-
tend to the old channel, but to the new
navigable channel constructed in improve-
ment of navigation by the United States,
and to enjoy riparian rights coterminous
therewith, and that therefore the asserted
rights by Whiteside, Alexander, and Tallas
were in conflict with such right upon the
part of the complainant, and cast a cloud
upon his title, giving him the right to equi-
table relief.
(d) The legal grounds asserted as the
basis of the relief prayed. — The bill alleged
the historical fact of the original owner-
ship by Virginia of the territory in which
the lands in controversy were embraced, of
its passing to the Oon federation as a part
of tiie vast domain eoded by Virginia, of
tte adoptiofi of the Northwest Territory or* '
«• Ii. ed.
dinance in 1787, the stipulation contained
in that ordinance that "the navigable waters
leading into the Mississippi and St. Law-
rence [rivers], . • . shall be common
highways and forever free as well to the
inhabitants of the said Territory as to the
citizens of the United States and those of
other states that may be admitted into the
Confederacy, without any tax, impost or
duty therefor." [1 Stat, at L. 52, note.]
The bill further referred to the act of Con-
gress of May, 1796, providing for the sale
of lands within the Northwest Territory,
including the lands in question, reciting the
provision therein "that all navigable rivers
within the territory to be disposed of by
virtue of this act, shall be deemed to be and
remain public highways and that in all
cases where the opposite banks of any
stream, not navigable, shall belong to dif-
ferent persons, the stream and the bed
thereof shall become common to both." [1
Stat, at L. 468, chap. 29, 9 9, Comp. Stat.
1913, 9 4918.] It alleged the subsequent
carving out of said territory of the states
of Ohio, Indiana, Michigan, [152] Wiscon-
sin, and part of Minnesota, and the reserva-
tion in the enabling acts preserving the
navigable waters bordering upon the same as
common highways, and extending concurrent
jurisdiction to the states bordering thereon.
Proceeding, the bill alleged the boundaries
of the two states of Wisconsin and Minne-
sota, as stated in the enabling acts to which
we have referred, including the line of the
main channel of the St. Louis river and the
center of Lake Superior at the points and
as described in the statement which we
have previously made. It alleged that,
under the laws of Minnesota, the riparian
rights extending to the center of the main
navigable channel were valid as asserted by
the complainant, and in practice had been
recognized by the exercise of taxing and
other powers. So far as the United States
was concerned, growing out of the aver-
ments as to the formation of the Northwest
Territory and of the states just referred
to, it was alleged:
"That in the preservation of public rights
on such navigable waters, where the same
constitute state boimdaries, it was the in-
tent of the Federal government and of the
states to forever maintain and preserve the
rights of the respective states and the citi-
zens thereof, to have access to the navigable
and navigated channels of such boundary
waters, and among the most ancient and
important rights of private owners, inci-
dental to the ownership of the shore lands
abutting upon such boundary waters, is the
right to wharf out to and have access to the
navigable and navigated channel of such
waters from such shore lands, and to have
189
152-156
SUPREME COURT OF THE UNITED STATES.
OOT. Tknc.
connection from Buch fhore lands, through-
out the extent thereof, with commerce upon
such navigable and navigated part or chan-
nel of such waters, subject always to the
paramount control over the whole of such
waters by the United States."
It was charged that the emerging of the
small island opposite the land of the com-
plainant had occurred after [153] the sur-
vey, sale, and patent of complainant's land
by the United States. In addition the bill
charged that, under the power of the United
States to regulate commerce, harbor lines
had at various times been established which
extended from the respective shores to the
old channel before the new one was con-
structed, and that under the plans approved
by the Secretary of War for the new work
it was contemplated that harbor lines
should extend from the respective shores to
that channel.
(e) The relief prayed. — The prayer was
that the riparian rights of the complain-
ant be recognized and enforced from the
shore out to the new navigable channel
created by the work done by the United
States, and that all rights of the defend-
ants as riparian owners which they assert-
ed to extend across the new channel over
to the old channel be declared to be in-
valid, and that they be restrained from as-
serting or enforcing them.
Coming to test these averments, we fail
to perceive any ground for holding that the
rights asserted rested in any degree what-
ever upon a substantial claim under the
Constitution or laws of the United States,
or by any possibility involved the construc-
tion or application of any law of the United
States, for the following reasons: First,
because as to the claim of riparian rights
on the navigable waters in question, it was
long since affirmatively settled that such
claim solely involves a question of state
law, and therefore at the time the bill was
filed it was not open to contend to the con-
trary. Barney v. Keokuk, 94 U. S. 324,
24 L. ed. 224; Hardin v. Jordan, 140 U. S.
371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808,
838; JGrand Rapids & I. R. Co. v. Butler,
159 U. S. 87, 40 L. ed. 85, 16 Sup. Ct. Rep.
991 ; Devine v. Los Angeles, 202 U. S. 313,
50 L. ed. 1046, 26 Sup. Ct. Rep. 652.
Second, because the mere fact that both par-
ties, the one holding on the Wisconsin shore
and the other on the Minnesota shore, had
acquired the property by them held from
the United States, it is also affirmatively
settled, in no way changes the situation.
Blackburn v. Portland Gold Min. Co. 175
U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep.
222, 20 Mor. Min. Rep. 358; Florida C. &
P. R. Co. V. [154] Bell, 176 U. S. 321, 44 L.
ed. 486, 20 Sup. Ct. Rep. 399; Shoshone
190
Min. C6. V. Rutter, 177 U. S. 505, 44 L.
isl. 864, 20 Sup. Ct. Rep. 726; Shulthii t.
McDougal, 225 U. S. 561, 569, 56 L. ed.
1205, 1210, 32 Sup. Ct. Rep. 704. Third,
because, so far as the references in the bill
to the organization of the Northwest Tenri*
tory and to the various provisions relating
to navigable waters are concerned, however
interesting they may be historically, we can
see not the slightest ground for the conten-
tion that they were controlling or in any
Way could influence the question of the na-
ture and character of the riparian rights
enjoyed under the state law by the com-
plainants. Fourth, because we can discover
in the averments of the bill no substantive
statement indicating that it was contended
to the contrary, unless it be that such pur-
pose could be implied as the result of the
general averments of the bill which we have
quoted concerning the general intent of Con-
gress to preserve free navigation. But if
we were to indulge in such assumption the
result would not be different, as the aver-
ments in question make no reference to any
specific legislation of Congress which would
have the slightest influence upon the deter-
mination of the existence of the riparian
rights which the bill asserted. Fifth, be-
cause we are clearly of the opinion that the
mere fact that Congress, in the exercise of
its power to improve navigation, directed
the construction of the new channel, affords
no basis whatever for the assumption that
thereby, as a matter of Federal law, rights
of property, if secured by the state law,
were destroyed, and new rights of property
under the assumption indulged in, incom-
patible with that law, were bestowed by
Congress. And especially are we con-
strained to this view by the fact that there
is no question here of any interference with
work done by the United States under its
paramount authority to improve navigation,
or any attempt to render the result of that
work inefficacious. This will be lucidly il-
lustrated by considering for a moment the
action of both the courts below, since neither
questioned the paramount authority [155]
and right of the United States in aid of
navigation to construct the new channel, or
concerned themselves with any real or im-
aginary impediment to navigation. This is
at once demonstrated by considering that
the only difference between the two was the
conclusion in the trial court that the effect
of constructing the new channel was to ex-
tend the riparian rights over and across the
old channel to the new, irrespective of the
rights of property changed or destroyed
thereby, because the new channel was to
be treated, not as a new work, but as the
gradual and natural modification of the old,
289 V. B.
1916.
FIREBALL 0. T. ft L CO. t. OOMMBRGIAL ACETYLENB CO. 155, 156
wldle the court below reached a directly
contrary conciuEion. *
Finally, we are of opinion that the ques-
tion whether the stretch of water and the
channel through it be treated as a part of
Lake Superior, as asserted by the complain-
ant, or be considered at the point in issue
ss a mere continuation of the St. Louis
river, as asserted by the defendants (a view
held by both the courts below), is wholly
n^ligible for the purpose of determining
whether a substantial Federal question was
alkged, justifying our talcing jurisdiction
of the cause.
As from what we have said it results that
our opinion is that there is no substantial
ground for concluding that the- jurisdiction
of the district court rested upon any asser-
tion of Federal right, irrespective of diverse
citizenship, justifying our review of the
court below, it follows that the appeal must
be and it is dismissed lor want of juris-
diction.
[156] FIREBALL GAS TANK ft ILLUM-
INATINO COMPANY and David Leon
Soloman, Petitioners,
V.
COMMERCIAL ACETYLENE COMPANY
and the Prest-O-Lite Company.
(See S. C. Reporter's ed. 156-169.)
Patents — expiration with foreign pat-
ent — identity.
1. There .is no such identity between the
Claude & Hess patent, No. 664,383, for an
improved apparatus for the storage and dis-
tribution of acetylene gas, designed to make
use of the property of that and other gasea
of solubili^ in a liquid, and prior foreign
patents for methods of storing acetylene
gas, based upon such solubility, the devices
described in which were not a result of the
operation of the methods, that the expira-
tion of the foreign patents will terminate
the United States patent.
[For other cases, see Patents, 28-87, in Di-
gest Sup. Ct. 1908.]
Certiorari — in patent case — discre-
tionary matters.
2. The discretion of the trial court in
granting an interlocutory injunction upon
the pleadings and affidavits against the in-
fringement of certain letters patent should
not be disturbed bv the Federal Supreme
Court on a writ of certiorari to review a
decree of a circuit court of appeals which
affirmed the injunction order, where the
questions involved of invention and in-
fringement are seriously disputable.
[For other cases, see Certiorari. IL c in Di-
gest Sup. Ct 1908.]
[No. 13.]
Argued October 22, 1015. Decided Novem-
ber 29, 1915.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for the
Eighth Circuit to review a decree which
affirmed a decree of the District Court for
the Eastern Division of the Eastern Dis-
trict of Missouri, granting an interlocutory
injunction against the infringement of let-
ters patent. Affirmed.
See same case below, 117 C. C. A. 354,
398 Fed. B.'SO.
The facts are stated in the opinion.
KoTE. — Expiration of domestic patent with
foreign patent.
Under the act of July 8, 1870, § 25, sub-
stantiallv re-enacted in U. S. Rev. Stat.
i 4887, Comp. Stat. 1913, § 9431, a United
States patent for an invention "previously
patented in a foreign coumtry" expires at
the same time with the foreign patent; or,
if there be more than one, at the same time
with the one having the shortest term, in
no case running for more than seventeen
years.
This section was not retroactive and did
not affect the term of United States pat-
ents theretofore granted. Goff v. Stafford,
3 Bann. t Ard. 610, Fed. Cas. No. 5,504;
De Florez v. Raynolds, 17 Blatchf. 436, 8
Fed. 434. Nor did it apply to subsequent
reissues of such patents. Badische Anil in &
Soda Fabrik v. Hamilton Mfg. Co. 3 Bann.
k Ard. 235, Fed. Cas. No. 721.
A United States patent was not void,
under the. act of July 8, 1870, because it
was not limited on its face to expire at the
date when the foreign patent previously
granted for the same invention is to ex-
60 L. ed.
pire. Canan v. Pound Mfg. Co. 23 Blatchf.
173, 23 Fed. 185.
And the change of phraseology in U. S.
Rev. Stat. § 4887, by which the words "shall
be so limited as to expire" are substituted
in place of the words in the act of July
8, 1870, § 25. "shall expire at the same
time," does not render the United States
patent void because not limited on its face
to expire at the date when the foreign pat-
ent previously granted for the same inven-
tion shall expire. Canan v. Pound Mfg. Co.
supra. To the same effect are: Bate Re-
frigerating Co. V. George H. Hammond & Co.
129 U. S. 151, 32 L. ed. 645, 9 Sup. Ct.
Rep. 225, reversing 35 Fed. 151; Ameriran
Paper Barrel Co. v. Laraway, 28 Fed. 141;
Edison Electric Light Co. v. United States
Electric Lighting Co. 3 C. C. A. 83, 11 U.
S. App. 1, 52 Fed. 300.
The United States patent, though it may
on its face run for seventeen years, is,
under U. S. Rev. Stat. § 4887, in the case
provided for by it, to be so limited by the
courts, as a matter to be adjudicated on
evidence in pais, as to expire at the same
time with the foreign patent not running
191
SUPREME CX)UKT OF THE UNITED STATES.
Oct. Tbh^
Hr. John H. BrantncA argued the cause
and filed a brief for petitioners:
The rules for determining whether a
United States patent is limited by a foreign
patent may be stated as follows:
1. The invention protected by the United
States patent must be protected by the for-
eign patent; in other words, they must both
be for the same invention.
2. Where a process and product are for
the same invention, a patent for one will
limit the other.
3. Where a process and apparatus are for
the same invention, a patent for one will
limit the patent for the other.
4. It is not necessary that the patents be
identical in every respect, but it is suffi-
cient if the principal invention Is in both.
Mere differences in detail are therefore im*
material.
Siemens v. Sellers (Guarantee Ins. Tnut
k S. D. Co. V. Sellers) 123 U. S. 276, SI
L. ed. 153, 8 Sup. Ct. Rep. 117; Commercial
Mfg. Co. V. Fairbanks Canning Co. 135 U.
S. 176, 34 L. ed. 88, 10 Sup. Ct. Rep. 718}
Bate Refrigerating Co. v. Sulzeberger, 157
U. S. 1, 39 L. ed. 601, 15 Sup. Ct. Rep. 508;
Leeds & C. Co. v. Victor Talking Mach. Co.
213 U. S. 301, 53 L. ed. 805, 29 Sup. Ct.
Rep. 495.
Even considering the Britirii patent as a
method patent, it is for the same invention
as the United States patent.
Risdon Iron k Locomotive Works v. Ma-
dart, 158 U. S. 68, 39 L. ed. 899, 15 Sup.
Ct. Rep. 745 ; Westinghouse v. Boyden Pow-
in any case more than the seventeen years.
Bate Refrigerating Co. v. George H. Ham-
mond k Co. supra.
The time of expiration of the United
States patent is to be determined by the
court on evidence in pais, where the bill
alleges that the foreign patent, previously
granted for the same invention, has not
expired, but is in full force and effect, and
deifendant's plea avers that it had expired
before the suit was brought. Edison Elec-
tric Light Co. V. Westinghouse, 40 Fed.
666.
The application of U. S. Rev. Stat. |
4887, Comp. Stat. 1913, § 9431, is not pre-
vented because the inventor who makes the
application for the United States patent is
an American citizen, because, since the act
of July 4, 1836, which repealed all former
patent laws and established a comprehensive
code covering the whole subject, the Fed-
eral laws have made no distinction between
American citizens and foreigners with re-
spect to the privilege of obtaining patents,
or the conditions and restrictions of the
privilege granted, except as to the amount
of the fee to be paid and the protection of
inventions by caveat. Edison Electric Light
Co. V. United States Electric Lighting Co.
35 Fed. 134.
The statutory provision for a seventeen
years' patent to the first inventor of any
new and useful article does not override
the provision that where the invention has
been previousljr patented in a foreign
country the United States patent shall be
so limited as to expire when the foreign
f»atent expires. United States ex rel. Koech-
in V. Marble, 2 Mackey, 12.
"Previously patented."
The provisions of U. S. Rev. Stat. § 4887,
Presuppose that at the date of the United
tates patent there was in force a foreign
Satent for the invention. Huber v. N. O.
felson Mfg. Co. 148 U. S. 270, 37 L. ed.
447, 13 Sup. Ct. Rep. 603, affirming 38 Fed.
830.
Hence, a foreign patent antedating the
United States patent, but thereafter de-
J93
clared void ab initio by a foreign courts
never having had in fact any exis&nce, can
have no effect under U. S. Rev. Stat. § 4887,
in shortening the term of the United States
patent. Bate Refrigerating Co. v. Gillett,
20 Fed. 192.
And the term of a United States patent
is not limited by the term of a certificate of
addition to a prior French patent for the
same invention, where the original French
patent has been adjudged null and void by
the French courts for lack of invention, the
effect of such adjudication under the French
law being to render the certificate of ad*
dition equally null and void as never hav-
ing existed. Hennebique Constr. Co. v.
Myers, 97 C. C. A. 289, 172 Fed. 869.
An invention was not "previously pat*
ented in a foreign country," within the
meaning of U. S. Rev. Stat. § 4887, al-
though an English patent for the saoM
invention bears a date prior to the grant
of the United States patent, where the
English patent was pot sealed until after
the date of the United States patent, and
was therefore not in existence on that date.
Holmes Burelar Alarm Teleg. Co. v. Domes-
tic Teleg. k Teleph. Co. 42 P»l. 220 ; Edison
Electric Light Co. v. Waring Electric. Co.
59 Fed. 358, affirmed in 15 C. C. A. 700,
20 U. S. App. 701, 69 Fed. 645.
The term "patented," as used in U. 8.
Rev. Stat. § 4887, means the actual grant*
ing of the patent by the foreign govern-
ment, although the patent may have been
antedated, conformably to 15 k 16 Vict,
chap. 83, 9 24, to the date of filing the
provisional application. American Bell
Teleph. Co. v. uushman, 57 Fed. 842.
Before the actual sealing of an English
patent, the patentee has none of the pow-
ers, rights, and privileges of a patentee ; and
when the sealinff is subsequent to the issu-
ance of the United States patent, the life
of the latter is not to be abridged under the
act of July 8, 1870, § 25, by the antedatinff
of the English patent. Emerson Smith «
Co. V. Lippert, 31 Fed. 911.
The relation back of an English patent
by reason of its date and of the proviaiont
of 15 k 16 Vict chap. 83, f 24, does not
289 U. S.
1915.
FIREBALL G. T. ft L CO. v. COMMERCIAL ACETYLENE CO.
cr Brake Co. 170 U. 8. 697, 42 L. ed. 1136»
18 Sup. Ct. Rep. 707; Re Creveling, 1006
C. D. 686; Moaler Safe ft Lock Co. v.
Moeler, B. ft Co. 127 U. S. 364, 32 L. ed.
182, 8 Sup. Ct. Rep. 1148; Miller v. Eagle
Mfg. Co. 161 U. S. 186, 38 L. ed. 121, 14
Sup. Ct. Rep. 310.
Ihis court can dismiss the bill at this
hearing.
Mast, F. ft Co. V. Stover Mfg. Co. 177
U. S. 486, 44 L. ed. 866, 20 Sup. Ct. Rep.
708.
Mr. John P. Bartlett argued the cause
and filed a brief for respondents:
The term of the United States patent is
limited only by the thing patented by the
foreign patent, not by the things disclosed
therein.
Holmes Electric Protective Co. t. Metro-
politan Burglar Alarm Co. 22 Fed. 341;
Leeds ft C. Co. v. Victor Talking Mach. Co.
213 U. S. 301, 63 L. ed. 806, 29 Sup. Ct.
Rep. 496; Westinghouse Electric ft Mfg. Co.
V. Stanley Instrument Co. 71 C. C. A. 189,
138 Fed. 823; Robinson, Patents, § 623;
McMillan v. Reese, I Fed. 722; Lehigh Val-
ley R. Co. V. Mellon, 104 U. S. 112, 26 L. ed.
639; White ▼. Dunbar, 119 U. S. 47, 30
L. ed. 303, 7 Sup. Ct Rep. 72; Bums v.
Meyer, 100 U. S. 671, 26 L. ed. 738; K^-
stone Bridge Co. v. Phcenix Iron Co. 96
U. S. 274, 24 L. ed. 344; Toohey v. Harding,
4 Hughes, 263, 1 Fed. 174; Yale Lock Mfg.
make applicable the provisions of U. S.
Rev. Stat. § 4887, where the American pat-
ent was issued before the English patent
was sealed, since up to that time there was
no English patent, although its antedating
gave it the same validity as if sealed on
the day it bore date, to make liable as an
infringer anyone who after that manufac-
tured, used, or sold the invention, and lim-
ited t^e duration of the grant to the period
of fourteen years from that date. Seibert
Cylinder Oil Co. v. William Powell Co. 36
Fed. 691.
An invention was patented in Canada
witltin the meaning oi U. S. Rev. Stat. §
4887, when the patent was signed and issued
as a patent, ready for delivery, although
such delivery was delayed by the patentee's
neglect to lile a model, which he had the
power to do at any time. Bate Refrigerat-
ing Co. V. GiUett, 13 Fed. 663, 31 Fed. 809.
If there was in force at the date of the
United States patent a foreign patent for
the same invention, it is of no importance
that the United States patent may have been
applied for before the foreign patent waa
granted (Bate Refrigerating Co. v. Sulz-
berger, 167 U. S. 1, 39 L. ed. 601, 16 Sup.
Ct. Rep. 508; Bate Refrigerating Co. v.
Gillett, supra; Accimiulator Co. v. Julian
Electric Co. 67 Fed. 606), or that the ap-
plication for the foreign patent was not
made until after the application for the
United States patent was filed (Gramme
Electrical Co. v. Arnoux ft H. Electric Co.
21 Blatchf. 460, 17 Fed. 838; Edison Elec-
tric Light Co. V. United States Electric
Lighting Co. 36 Fed. 134).
The exclusive privilege to make and per-
mit others to make the thing invented for a
specified term, granted by Sie Danish Sov-
ereign prior to the enactment of patent
legislation in Denmark, is the equivalent of
a patent, within the meaning of U. S. Rev.
Stat. § 4887, although such grant may not
forbid the sale and use of the patented ar-
ticle imported from another country. Atlas
Glass Co. V. Simonds Mfg. 0>. .42 C. C. A.
664, 102 Fed. 643, affirming 102 Fed. 338.
The court said that the exclusive privilege
granted by the foreign country need not
60 L. ed.
be coextensive with the privilege granted
under the laws of the United States; that
the true meaning and purpose of the section
are accomplish^ b^ applying the word
"patent" to the havmg received the grant
of an exclusive privilege from a foreign
Sovereign, if such privil^e amounts to a
substantial monopoly, and that the words
"previously patented in a foreign country"
must be taken to mean "patented according
to the laws and usages of such foreiffn
country," provided a substantial monopoly
is therebpr granted.
A Swiss provisional patent which con-
veys no monopoly or right to proceed
against infringers, but merely gives the
provisional patentee the right to obtain a
definitive patent within three years upon
making the required proofs, securing him
during that period against the effects of
publicity, is not the patent meant by U. S.
Rev. Stat, f 4887, and the cancelation of
such provisional patent for failure to fur-
nish proof of a model, before the United
States patent was granted, or before an ap-
plication for such patent was filed, does not
destroy or affect the United States patent.
Soci^te Anonyme v. General Electric Co.
97 Fed. 604.
Patentees from the United States are not
estopped from showing the provisional char-
acter of a Swiss patent, the lapse of which
is relied upon under U. S. Rev. Stat. § 4887,
to destroy the United States patent, because
of the formal statement in the specification
that a patent had been granted them from
Switzerland. Soci4t^ Anonyme ▼• (General
Electric Co. supra.
The secrecy of an Austrian patent granted
prior to the granting of the United States
patent for the same invention cannot af-
fect, under the act of July 8, 1870, § 26,
the question of the duration of the United
States patent, if the Austrian patent,
though secret, conferred upon the patentees
on exclusive privilege. Gramme Electrical
0>. y. Arnoux ft H. Electric Co. supra.
When does foreign patent expire.
The words "expire at the same time with
the foreign patent," as used in U. 8. Rev.
13 193
166, 157
8UPB£ME COURT OF THE UNITED STATSa
OoT. Tkuc,
Co. ▼. Greenleaf, 117 U. S. 664, 29 L. ed.
952, 6 Sup. Ct. Rep. 846.
Tlie thing •patented must be the same in
both patents.
Leeds ft C. Co. t. Victor Talking Mach.
Co. 213 U. 8. 801, 63 L. ed. 866, 29 Sup.
Ct. Rep. 495.
One who discovers an art, and invents a
machine to practise it, does not deprive him-
self of a right to patents on both tiie process
and apparatus.
Century Electric Co. v. Westinghouse
Electric k Mfg. Co. 112 C. C. A. 8, 191 Fed.
350.
As the British, German, and French
Claude k Hess patents cover a process, or
method, thej do not limit the term of the
United States patent, which covers an ap-
paratus, of ' which the product of said
process or method is an element.
Leeds k C. Co. ▼. Victor Talking Mach.
Co. supra.
Mr. Justice McKenna delivered the opin-
ion of the court:
By this writ there is brought here for re-
view a decree of the circuit court of ap-
peals affirming an order for an [157] in-
terlocutory injunction against the infringe-
ment of certain letters patent.
The circuit court of appeals considered
the question in the case to be the narrow
one whether the injunction was properly
granted.
Petitioners, who were defendants in the
district court, attack not only that eondu-
Stat. § 4887, C6mp. SUt. 1913, § 9431, refer
to the legal term of the foreign patent in
force at the time of the issuing of the
United States patent and do not mean the
lapse or forfeiture of any portion of such
term by reason of the nonobservance of a
condition subsequent prescribed by the for-
eign statute, such as the nonpayment of
annuities, or failure to work the invention.
Pohl V. Anchor Brewing Co. 134 U. S. 381,
33 L. ed. 953, 10 Sup. Ct. Rep. 577, revers-
ing 39 Fed. 782. The court said that the
question involved was not the same as that
decided in Bate Refrigerating Co. v. George
H. Hammond k Co. 129 U. S. 151, 32 L. ed.
045, 9 Sup. Ct. Rep. 225, infra, on which
the circuit court relied, and was not eon-
trolled by the decision in that case.
A United States patent runs for the term
for which the foreign patent was panted,
notwithstanding the lapse or forfeiture of
the foreign patoit by the nonobservance of a
condition subsequent prescribed by the for-
eign patent law. Consolidated Koller-Mill
Co. V. Walker, 43 Fed. 575, affirmed in 138
U. S. 124, 34 L. ed. 920, 11 Sup. Ct. Rep.
292.
An American patent issued after an Eng-
lish patent for the same invention had been
granted for a term of fourteen years, sub-
ject to be defeated by the nonperformance
of a condition subsequent, is not subject to
the same condition. The term of the Eng-
lish patent fixed the term of the American
Ktent, and the subsequent fate of the Eng-
h patent could have no effect upon the
American one, the life of each after its in-
ception proceeding independently of the life
of the other. Bate Refrigerating Co. v.
Gillett, 31 Fed. 809.
The lapsing of a foreign patent for non-
payment of an annuity during the pendency
of an application for a United States pat-
ent for the same invention does not render
the latter patent void under U. S. Rev.
Stat. 9 4887, but it expires at the end of
the term prescribed in such foreign patent.
Welsbach Light Co. v. Apollo Incandescent
Gaslight Co. 37 C. C. A. 508, 96 Fed. 332,
reversing 94 Fed. 1005. The court distin-
guished Huber T. N. O. Nelson Mfg. Co. 148
J»4
U. S. 270, 87 L. ed. 447, 18 Sup. Ct. Rep.
603, where it was held that a patent could
not be granted in the Unitea States on
an application which was not made until
seven months after an Engli^ patent for
the same invention had expired because of
the patentee's failure to pay a stamp duty.
Ill is decision the circuit court of appeals in-
terpreted as resting upon the ground that
the delay in applying for a United States
patent amounted to an abandonment.
The- term uf a United States patent Is
not affected under U. S. Rev. Stat. § 4887»
bv the lapsing of a prior foreign patent for
the same invention oecause of the nonpay-
ment of a tax. The term of the United
States patent is to be as long as the re-
mainder of the term for which the foreign
patent was granted, without reference to
incidents occurring after the grant. Holmes
Electric Protective Co. v. Metropolitan
Burglar Alarm Co. 21 Fed. 458.
The United States patent does not ex-
gire at the same time wi^ tiie original
srm of the foreign patent for the same in-
vention, where the latter patent has been
extended under a statute in force when the
United States patent was issued and ap-
plied for, which made such extension a
matter entirely of right at the option of tha
patentee, the original extended term hav-
ing been continuous and uninterrupted. In
such ease the United States patent, sub-
ject to the limitation of seventeen years,
continues in force until the expiration of
tlie extended term of the foreign patent.
Bate Refrigerating Co. v. George H. Ham-
mond k Co. 129 U. S. 151, 32 L. ed. 645, 9
Sup. Ct. Rep. 225, reversing 35 Fed. 161.
A result exactly con&ary had been
reached in Reissner v. Sharp, 16 Blatehf.
383, Fed. Cas. Ko. 1 1,689, where a United
States patent granted October 20, 1874, for
seventeen years, was held to have expired on
May 15, 1878, because a patent was granted
in Canada under the authority of the pat-
entee for the same invention on May 16»
1873, for five year from that date, althou^^
in March, 1878, the Canadian patent was ex-
tended for five years from May 16, I8789
and also for five years from May 16» 188S.
189 V. H.
1916.
FIREBALL 0. T. ft L GO. v. OOMMEBCIAL ACETYLENE 00.
167
sioa, but contend for the larger relief of a
dittuiieaal of the bilL
The Acetylene Company it the owner of
letters patent No. 664,383, granted Decem-
ber 26, 1900, for "apparatus for itoring
and distribute aeetylene gaa." The Prest-
0-Lite Company it the exdusive lioentoe at
to tlM use of the invention on automobilet,
carriagety and other movable vehicles. De-
fendanta manufacture and tell what is
known at the "Fireball Gat Tank;" Solo-
man it the pretideut of the defendant.
The bill wat filed Augutt 17, 1011, and a
motion for a preliminary injunction was
made. It wat heard upon the bill, exhibitt,
answer, replication, and affidavitt. The cir-
cuit court granted the injunction, and the
order wat affirmed, at we have said, by
the circuit court of appeals. The court
considered that the question before it -was
whether the trial court had exercised a
sound judicial discretion in granting the
injunction, and deciding that the trial court
had done to, aiBrmed itt action and re*
futed to ditnodtt the bill, at it wat urged to
do. Opinion wat reterved upon all of the
<luetti<mt which the record pretented exc<^>t
the question of the abuse by the trial court
of itt ditcretion in the ittue of the injunc-
tion, at the court said, "until the affidavit
stage of this proceeding shall have been
passed, until the rights of these parties
shall have been tested by the production^
hearing, and cross-examination of their wit-
nesses according to the salutary and search-
ing practice of the common law, and until
the court below, at the final hearing, has
investigated and decided the issues the^e
And that the tame patent involved in Bate
Refrigerating Co. v. George H. Hammond
ft Co. supra, expired with the original term
of the Canadian patent, had been held in
Bate Refrigerating Co. v. Gillett, 13 F^d.
663, and 31 Fed. 809.
And it had also been held in Henry v.
Providence Tool Co. 3 Bann. ft Ard. 501,
Fed. Cas. No. 6,384, that the United States
patent expires at the same time with the
original term of a foreign patent for the
ssme invention, without regard to anv
subsequent prolongation or extension of such
tttm which the patentee may be able to
procure from the foreign government at a
royal favor. Ditapproved in Bate Refrig-
erating Co. V. George H. Hammond & Co.
120 U. S. 151, 32 L. ed. 646, 9 Sup. Ct. Rep.
225.
The rule laid down in Bate Refrigerating
Co. V. George H. Hammond ft Co. tupra,
was extended in Edison Electric Light Co.
V. Perkins Electric Lamp Co. 42 Fed. 327,
to cover a case where the foreign (Cana-
dian) patent had lapsed or b«x>me for-
feited lief ore the original term had expired
and before tlic extrusion was granted. The
court said: "If the Canadian government
has in fact accepted the renewal fee and
renewed the patent for a Continuous and un-
interrupted period of fifteen vears as though
the subsequent condit'ons had been com-
plied witli, the United States patent has not
expired bciore the expiration of said fifteen
years."
A United States patent did not expire
with the original term of a Osnadian pat-
ent previoushr granted for the same inven-
tion, where the Canadian patentee exercised
his option, under the Canadian statutes, to
have the patent extended upon payment of
the required fee, although a Swedish oat-
ent for the same invention, granted suose-
quent to both American and Canadian pat-
ents, expired during the original term of
the Canadian patent, and under the Cana-
dian statutes "when a foreign patent ex*
istt" the Canadian* patent shall expire at
the earliest date at which any foreign pat-
ent for the same invention expires, since
this provision covert only foreign patentt
60 L. ed.
which exist before the relevant Canadian
patent is Issued. Edison Electric Light Co.
V. United States Electric Lighting Co. 3
C. C. A. 83, 11 U. S. App. 1, 52 Fed. 300.
If, by the foreign law under which a pat-
ent was granted, the patentee, by virtue of
the original grant, is invested with the right
at his mere option to have the patent ex-
tended or prolonged for a fixed term, it it
this term which limitt the United Statet
patent under U. S. Rev. Stat § 4887,
whether or not the patentee exercitet Jiit
option. Contolidated Roller-Mill Co. v.
Walker, 43 Fed. 676, affirmed in 138 U. S.
124, 84 L. ed. 920, 11 Sup. Ct. Rep. 292.
An Austrian patent for one year, which
will be continued for fifteen years if the
annual tax is paid, must be considered as
running for fifteen years for the purpose
of applying the provisions of U. 8. Kev.
Stat. § 4887, although it may have lapsed
before the full term because of the failure
to pay such tax. Pohl v. Heyman, 68 Fed.
668.
An Austrian patent granted for one year,,
and four timet extendi from year to year,,
did not expire, within the meaning of U.
S. Rev. Stat. § 4887, upon a failure to
tecure a fifth extention, where, under the
Austrian law, the patentee is really in-
vested with the term of fifteen years, the
purported grant of but one year referring
only to tiie payment of the annuity in ad-
vance for that vear. Consolidated Roller-
Mill Co. V. Walker, supra.
The termination of a foreign patent
which it granted for fourteen years, be-
cause of the failure of the foreign patentee
to pay the stamp duty, which he is required
to pay in order to continue the patent in
force bevond the term of three years, is not
the expiration of such patent, within the
meaning of this section. Paillard v. Bruno,
20 Fed. 864.
The expiration of a Canadian patent hy
reason of the failure to pay the fee re-
quired to keep sr li patent alive for the
second six years of the eighteen-year term
for whidi it wat granted does not affect the
duration of a domestic patent, under U. S.
Rev. SUt S 4887, Comp. Stat. 1913, § 94''*
157, 158
SUPREME COURT OF THE UNITED STATES.
Ooi. Tbbm,
parties raise in [158] the light of that tes-
timony and of the argument of counsel."
[117 C. C. A. 362, 198 Fed. 658.]
Whether this prudence should be imi-
tated or a broader scope of decision be
made we will determine upon a considera-
tion of the case.
The bill is in the usual form and set
forth the respective rights in the patent of
complainants, respondents here (we shall
refer to them as complainants and to peti-
tioners as defendants), and its infringement
by defendants.
The defendants answered separately and
each denied infringement and averred that
by reason of the proceedings in the Patent
Office the patent is limited in its scope to
the subject-matter precisely as claimed and
defined by the claims of the patent; that
the prior art was such that the patent is de-
void of novelty and patentable invention;
that it is destitute of utility; that it does
not comply with the statutes in precise dif-
ference from what preceded it, nor sufficient-
ly describe the method of operating it and
the process of making, constructing, and
using it; that complainants have a remedy
at law and the court has no jurisdiction;
and that the alleged inventors of the pat-
ent were not the first and true inventors of
it. Certain United States, British, and Ger-
man patents are alleged as antedating the
invention, and certain publications are rep-
resented as having disclosed it.
Public uses of the patent are also circum-
stantially alleged and profits are denied.
making such patents expire with foreign
patents for the same invention. Leeds k C.
Co. V. Victor Talking Mach. Co. 213 U. S.
801, 53 L. ed. 805, 29 Sup. Ct. Rep. 495.
llie failure of a Canadian patentee, who
paid only a partial fee for a partial term,
to exercise his option to prolong his patent
for the full term of fifteen years b^ the
payment of the full fee, does not limit the
United States patent for the same inven-
tion, issued while the Canadian patent was
still in force, to the partial term of the
latter patent, but the United States patent
continues in force for the full fifteen-year
term of the Canadian patent. Diamond
Match Co. V. Adirondack Match Co. 65 Fed.
803.
But a Canadian patent granted for five
years, conformably to a statute which gave
the patentee the privilege of an extension
for two periods of five years each upon the
payment of a further fee, expired at the
end of ten years so as to terminate at that
time, under U. S. Rev. Stat. § 4887, a United
States patent for the same invention,
granted subsequently to the Canadian pat-
ent, where the latter patent was renewed
for one term, but not for a third term. And
a different conclusion is not demanded by
an amendment to the Canadian statute un-
der which tlie terms of all Canadian pat-
ents are fixed at fifteen years, where such
amendment, though retroactive, was passed
after the United States patent was granted.
Bonsack Mach. Co. v. Smith, 70 Fed. 383.
A foreign patent issued for one year, but
extended year by year for nine additional
years, expires at the end of the tenth year,
where no further extension is made, al-
though such patent under the foreign law
miglit have been prolonged for five years
more. Gramme Electric Co. v. Arnoux &.
H. Electric Co. 21 BUtchf. 450, 17 Fed.
838.
A Spanish patent granted for ten years
expires at the end x>f that term, within the
meaning of U. S. Rev. Stat. § 4887, although
by an international convention held after
the patent was issued, to which both Spain
and the United States were parties, such
196
patent could have been, but was not, ex-
tended for a further term. Accumulator Co.
V. Julien Electric Co. 57 Fed. 6J^,
A foreign patent for a definite term of
years will, for the purpose of applying the
provisions of U. S. Rev. Stat. § 4887, be
presumed to have expired at the termination
of that period, in the absence of any proof
either of the fact of extension or of a for-
eign law permitting extension. Edison
Electric Light Co. v. Electric Engineering k
Supply Co. 60 Fed. 401, affirmed in 13 C. C.
A. 487, 26 U. S. App. 737, 66 Fed. 309.
A patentee seeking to avoid the applica-
tion of U. S. Rev. Stat. § 4887, is charged
with the burden of proving that his £>r-
eign patent granted for five years, with the
privilege of an extension upon the payment
of further fees, did not expire at the end
of the five years. Bonsack Mach. Co. t.
Smith, 70 Fed. 383.
Identity of patentees.
A patent for an invention does not ex-
pire at the same time with a foreign pat-
ent for the same invention, by force of U.
S. Rev. Stat. 9 4887, Comp. Stat. 1013, |
0431, unless the foreign patent was oh-
tained by the American patoitee or with
his consent. Hobbs v. Beach, 180 U. 8.
383, 45 L. ed. 586, 21 Sup. Ct. Rep. 409,
affirming 34 C. C. A. 248, 63 U. S. App.
626, 92 Fed. 146. "It is true," said Mr.
Justice Brown, ''that by Rev. Stat. § 4887,
'every patent granted for an invention whidi
has been previously patented in a foreign
country shall be so limited as to expire at
the same time with the foreign patent;'
but this obviouslv presupposes tnat the
foreign patent shall have been obtained bj
the American patentee, or with his con-
sent. This is evident from the somewhat
awkward phraseology of the first clause of
tlie section, which declares that 'no person
shall be debarred from receiving a patent
for his invention, ... by reason of its
having been first patented or caused to be
patented in a foreign country,' which evi-
dently means that the patentee shall not
239 U. 8.
1»15.
FIREBALL G. T. ft I. CO. w. COMMERCIAJ. ACETYLENE CO. 168, IM
It ifl further alleged that the invention of
the Claude ft Hen United States patent No.
004,383, which is in suit, was patented to
George Claude and Albert Hess by British
patent No. 29,750, and that the latter had
expired or oeased before the issue of pat-
ent No. 664,383; that the term of the Ut-
ter expired not later than June SO, 1910;
that a French patent to the same patentees
expired June 30, 1911; and that therefore
patent No. 604,383 also expired not later
than said date; and so with the German pat-
ent and other patents.
[150] The first consideration which pre-
wentB itself is the identity of the United
States patent with the foreign patents
which, by their expiration, if thej have ex-
pired, have terminated the United States
patent.
The letters patent in suit describe tha
invention as '*An Improvement in Appara-
tus for the Storage and Distribution of
Acetylene Gas." Drawings illustrate the
patent, and it is stated that it '*is designed
to carry out a process of storage and dis-
tribution involving the employment of a
chamber charged with a solvent of the gas
to be stored and into which the gas is
forced under suitable pressure," and that
the apparatus is 'to be charged at a central
station and transported to the place of use
as a complete article or package. The ap-
be debarred from his patent by reason of
his having first patented, or caused his in-
vention to be patented, in a foreign country.
Indeed, it would be so manifestly unjust
tbat a patentee should lose the full fruits
of his patent by the fact that some inter-
meddler had caused the invention to be pat-
ented abroad, that we could not give that
construction to the section, unless its
phraseology imperatively demanded it. This
eonatruction would suggest an excellent de-
vice to an enemy to bring about the ter-
mination of an inconvenient patent."
The provisions of U. 8. Rev. Stat § 4887,
do not apply where the foreign patent was
taken out by another than the patentee of
the patent whose term is souj^ht to be
shortened, and without his acquiescence or
consent. Willcox ft G. Sewing Mach. Co.
V. Industrial Mfg. Co. 110 Fed. 210, re-
versed on other grounds in 50 C. C. A. 387,
112 Fed. 535.
But U. S. Rev. SUt. § 4887, applies
whether the foreign patent is granted to
the inventor who makes the application in
this country, or to some other person to
whom he has caused the invention to be pat-
ented. Edison Electric Light Co. v. United
States Electric Lighting Co. 35 Fed. 134.
And the assignment bv an applicant for
a domestic patent of all his right thereto
before applying fcMr and receiving a foreign
patent for the same invention does not pre-
vent the application of tha provisions of U.
8. Rev. Stat § 4887, limiting the term of
a United States patent to that of a foreien
patent for the same invention, previously
obtained. John R. Williams Co. v. Miller,
D. ft P. Mfg. Co. 115 Fed. 526.
The burden rests upon the party claiming
that a United States patent expired, under
U. S. Rev. Stat. § 4887, by reason of the
termination of a prior foreign patent for
the same invention, to show that the foreign
patent was obtained by the American pat-
entee or with his consent. Sawyer Spindle
Co. V. Carpenter, 133 Fed. 238, affirmed in
75 C. C. A. 162, 143 Fed. 976.
A British patent for the same invention
aa a later patent in the United States can-
not be said to have been taken out by an
intermeddler, so as to avoid the application
•0 L. ed.
of U. S. Rev. Stat. § 4887, because there
is no direct evidence to show the authority
of the persons under whose instructions tha
British patent was procured, where the
inventor or whoever controlle4 the inven-
tion knew that there was to be an applica-
tion for a British patent, and that there
was a purpose to take it out, and there is
no evidence that he ever repudiated, or at-
tempted to repudiate, the British patent
until after suit was commenced. United
Shoe Machinery Co. v. Duplessis Shoe Ma-
chinery Co. 84 C. C. A. 76, 165 Fed. 842,
affirming 148 Fed. 31.
Identity of invention.
The test of identity for the purpose of
determining whether the invention has pre-
viously been patented in a foreign coun-
try, within the meaning of U. S. Rev. Stat
§ 4887, Comp. Stat 1913, § 9431, depends
upon these propositions: "Is the principal
invention of the domestic patent found in
the foreign patent? Is the subject-matter
of the one the same in all essential par-
ticulars as that of the other? In other
words, will a structure made pursuant to
the foreign patent infringe the domestio
patent? Could both the patents have been
granted in this country?" Accumulator
Co. V. Julien Electric Co. 57 Fed. 605.
Formal identity of claims is not neces-
sary to constitute identitv of patent, within
the purview of U. S. Rev. Stat. § 4887.
Substantial identity of invention, as covered
by the claims, is sufficient United Shoe
Machinery Co. v. Duplessis Shoe Machinery
Co. 148 Fed. 31, affirmed in 84 C. C. A. 76,
155 Fed. 842.
The identity of invention required by U.
S. Rev. Stat. § 4887, is of material substance,
and does not extend to mere details. J. L.
Mott Iron Works v. Henry McShane Mfg.
Co. 80 Fed. 516.
Mere changes in detail which do not affect
the essence of the invention as covered by the
respective patents, t. e., differences whidi
do not involve patentable invention, cannot
be set up to defeat the application of the
provisions of U. S. Rev. Stat § 4887, that
domestic patents shall expire with the ex-
197
160, 160
6UPK£3i£ COURT OF THE UNITED SIATES.
Oct. T
paratus it described and illustrated, and it
is said that it, embodying the invention, con-
sists esse.tlally in a closed receptacle con-
taining acetylene gas in solution, and hav-
ing an outlet for the gas so positioned as to
be normally above the level of the solution,
and adapted to be provided with a burner
or connected with a pipe system for the final
use or distribution of the gas which escapes
from the solution owing to the diminution
of pressure when the outlet is opened. It
is constructed and arranged "for the char-
ging process as well as for the discharging
process." Inlet and outlet passages are
provided with suitable valves or cocks to
close the same, and it is desirable, it is
said, for the proper operation of the burn-
ers supplied in this way that the gas
piration of a prior foreign patent for the
same invention. Thomson-Houston Electric
Co. V. McLean, 82 C. C. A. 620, 153 Fed.
883.
It is only a patent for an invention that
has been previously actually patented in a
foreign country that is limited by the for-
eign patent. The description of the inven-
tion may affect the validity of the domestic
one, and may not, but will not limit it.
Holmes Electric Protective Co. v. Metro-
politan Burglar Alarm Co. 22 Fed. 341.
The provisions of U. S. Hev. Stat. § 4887,
apply only when the foreign patent covers
what is patented in the Unit^ States, not
when the foreign patent merely describes or
discloses, instead of claiming, the invention
of the later United States patent. Westing-
house Electric & Mfg. Co. v. Stanley Instru-
ment Co. 71 C. C. A. 189, 138 Fed. 823.
The comparison between the foreign and
the United States patents for the purpose
of determining whether the invention was
previously patented in the foreign country,
within the meaning of U. S. Kev. Stat. §
4887, should be instituted between the pat-
ents as they were issued, and not between
the foreign patent and the United States
patent as the latter exists after being cut
down by a disclaimer, and limited by an art
existing in the United States of which the
inventor knew nothing. If a patent when
granted covers an invention which has been
previously covered by a foreign patent, it
expires with the foreign patent, notwith-
standing the fact that it has subsequently
been pared down to cover only one. method
of practising the invention, or restricted to
a single claim. Accumulator Co. v. Julien
Electric Co. supra.
The amendment of a foreign patent sev-
eral years after it was issued cannot affect
the question of the identity of such patent
under U. S. Rev. Stat. § 4887, witii a sub-
sequent domestic patent. Thomson-Houston
Electric Co. v. McLean, supra.
The generic claim in a United States pat-
ent which, by disclaimer, is limited to the
specific claim of a prior British patent,
e]q>ire8, under U. S. Rev. Stat, f 4887, when
108
should be delivered thereto under a sub-
stantially uniform pressure only ili^tly
above the atmospheric pressure, and for
this purpose means are provided. A redu-
cing valve is shown as tlie means interposed
between the interior of the receptacle which
contains the dissolved gas and the outlet
from which the gas is allowed to escape.
Claims 1, 2, and 6 are those with which
we are concerned, and are as follows:
''1. A closed vessel contsiining a super-
saturated solution [160] of acetylene pro-
duced by forcing acetylene into a solvent
under pressure, said vessel having an out-
let for the acetylene gas which escapes from
the solvent when the pressure is released or
reduced, and means for controlling said out-
let whereby the gas may escape there-
the British patent expires. Sawyer Spindle
Co. V. Carpenter, 75 C. C. A. 162, 143 Fed.
976, afiirming 133 Fed. 238.
Ihe Lnglish and American patents for the
application to corrugated metal rolling shut-
ters of one or more deadening strips or
lengths of soft and pliant material, dis-
posed in such manner as to act as a cushion
between the coils of the shutters, are for the
same invention, within the meaning of U.
8. Kev. Stat. § 4887, where the only thing
added in tlie American patent is tlie fast-
ening of the strips theretofore fastened at
the ends, at such intermediate points as
should be required. Clark v. Wilson, 28
Fed. 05.
There is sudi identity between the Cana-
dian patent No. 7,128, for a balanced fioat
valve in combination with other parts in an
open tank for intermittent supply, and U.
S. patent No. 245,358, for the same thing
in various combinations with other parts
in such tank, tliat, by the expiration of the
former patent, which was first granted, the
United States patent also expired. J, L.
Mott Iron Works v. Henry McShane Mfg.
Co. 80 Fed. 616.
In Commercial Mfg. Co. v. Fairbank Can-
ning Co. 135 U. S. 176, 34 L. ed. 88, 10
Sup. Ct. Rep. 718, it was held, afiirming 27
Fed. 78, that the Bavarian patent of April
8, 1873, expiring April 8, 1876, and the
Austrian patent of October 31, 1860, ex-
piring May 26, 1876, were for the same in-
vention as the United States patent No.
146,012, granted December 30, 1873, for
an improvement in treating animal fat% and
that therefore the latter patent expired by
reason of the expiration of the foreign
pat^its.
Ihere is not such identity between a claim
of a British and later United States pat-
ents as causes the latter patents to expire
under U. S. Rev. Stat. § 4887, when the
British patent expires, where the claim in
question in the latter patent, although neo-
essarily including all the elements of the
United States patents, also includes other
elements establishing a new combination
which is an essential, novel, and patentable
ISO U. 8.
1915.
FIREBALL O. T. ft L CO. t. COMMERCIAL ACETYLENE CO.
160
tbrougli at Bubstmntially unifonn pressure,
■obstantUlly as described.
"2. A prepared package eonsisting of a
tigbt shell or vcaael; a solvent of acetylene
contained within said vessel; and ace^lene
dissolved in and held by said solvent under
pressnre and constituting therewith a
supersaturated solution, the package being
provided at a point above the solvent with
a reducing valve, substantially as and for
the purpose set forth.
"5. As a new article of manufacture, a
gas package comprising a holder or tight
vessel; a contained charge of acetone; a
volume or body of gas dissolved by and
compressed and contained within the sol-
vent; and a reducing valve applied to an
opening extending to the interior of the
holder above the level of the solvent, sub-
stantially as set forth."
It is manifest, therefore, that the inven-
tion is of an i^paratus designed to make use
of the property of acetylene and other gases
of solubility in a liquid in accordance with
the law of solution (Henry's law), which
is -that the amount of gas absorbed by any
liquid is proportioned to the pressure exer-
cised upon the gas. Acetone is niuiitiuned in
claim 5 as a solvent.
We may now turn to the various patents
whose expiration, it is contended, terminates
the United States paterit.
The law is (§ 4R87, Revised Statutes,
Comp. Stat. 1913, § 9431) that "every pat-
ent granted for an invention which has bee i
improvement on what was claimed in the
United States patents. Westinghouse Elec-
tric ft Mfg. Co. V. Stanley Instrument Co.
71 C. C. A. 189, 138 Fed. 823.
So much of U. S. patent No. 448,072, for
improvements in the construction of ca-
nau, as involves the new and valuable con-
ceptions not disclosed in the prior British
patent No. 10,519, of extending the longi-
tudinal wall partition or mid-feather
throughout the whole length of the canal,
thus closing the gap at each end of the par-
tition wall, contemplated by the British
patent, did not expire with the expiration
of the latter patent, although, oroadly
speaking, the two patents are the same.
Aquarama Co. v. Old Mill Co. 124 Fed. 220.
In accord with the decision in Fibeball
Oa8 Tank ft Illuminating Co. v. Commsb-
oiAL AcBTYLKNE Co., that thcrs was a lack
of identity between the Claude ft Hess do-
mestic patent No. 664,383, for an improved
apparatus for the storage and distribution
of acetylene gas, designed to make use of
the property of that and other gases of solu-
bility in a liquid, and prior foreign patents
for methods of storing acetylene gas, b?sed
upon such solubility, tlic devices described
in which were not a result of the opera-
tion ,of the methods, is Acme Acetylene Ap-
pliance Co. v. Commercial Acetylene Co.
112 C. C. A. 673, 102 Fed. 321, affirming 188
Fed. 89. An opposite conclusion had been
reached in Commercial Acetylene Co. v.
Searchlight Gas Co. 188 Fed. 85, and in .Com-
mercial Acefylens Co. v. Schroeder, 121 C.
C. A. 474, 203 Fed. 276, affirming 197 Fed.
908.
Lack of identity between the foreign and
domestic patents is not shown because tlie
daim of the domestic patent is for a prod-
uct, and that of the foreign patent is for
a process, where the process makes the I
product, and the product can be made only
07 the process'. Accumulator Co. v.' Julien
Oeetric Co. 57 Fed. 605.
Partial expiration.
All the claims of a domestic patent do
not necessarily expire with a foreign patent
because of the provisions of U. S. Kev.
SUt. § 4887, Comp. Stat. 1913, f 9481,
«• L. ed.
that "every patent granted for an invention
which has been previously patented in a
foreign country BhsM be so limited as to
expire at the same time with the foreign
patent," but only such claims expire as are
embodied in the foreign patent. Leeds ft C.
Co. V. Victor Talking Mach. Co. 213 U.
S. 301, 53 L. ed. 805, 29 Sup. Ct. Rep. 495.
The expiration of foreign patents for
sound reproducers or recorders does not,
under U. S. Rev. Stat. § 4887, Comp. Stat.
1913, § 9431, making domestic patents ex-
pire with foreign patents for the same in-
vention, affect the duration of the Berliner
patent No. 534,543, for- sound -produein*;
apparatus, so far as claim 5, for a method,
and claim 35, for a combination, are con-
cerned, even though such recorder or repro-
ducer is made the subject of one of the
claims of such patents. Leeds ft C. Co. v.
Victor Talking Mach. Co. supra. The court
elaborately distinguished Siemen v. Sellers
(Guarantee Ins. Trust ft S. D. Co. v.
fellers) 123 U. S. 276, 31 L. ed. 153, 8
Sup. Ct. Rep. 117. Referring to the fol-
lowini? passage in the earlier case ("It is
contended by the counsel of the complain-
ants that the American patent contains im-
Srovements which are not exhibited in the
inglish patent. But if this were so, it
would not help the complainants. The prin-
cipal invention is in both; and if the
American patent contains additional im-
provements, this fact cannot save the pat-
ent from the operation of the law which
is invoked, if it is subject to that law
at all. A patent cannot be exempt from
the operation of the law by adding some
new improvements to the invention; and
cannot be construed as running partly from
one date and partly from another. This
would be productive of endless confusion"),
the court said: "This passage must be con-
strued by what precedes it. It was said
that there was no essential difference be-
tween the patents. 'They described the
same functions in all essential particulars,'
is the language used. 'The principal inven-
tion,' therefore, was 'the same in both,' and
the improvements, which it was asserted the
American patent contained, did not destrov
its essence or its identity with the English
199
160, 161
SUPREME COURT OF THE UNIl^D STATES.
OOT. IkBM,
previously patented in a foreign country
shall be so limited as to expire at the same
time with the foreign patent, or, if there
be [161] more than one, at the same time
with the one having the shortest term, and
in no case shall it be in force more than
seventeen years."
The question then is one of identity be-
tween the United States patent and the
foreign patents. The first of the latter re-
lied upon is the British patent to Claude
and Hess of 1896. The title is, "An Im-
proved Method of Storing Acetylene for
Lighting and Other Purposes." The speci-
fication states:
"This invention relates to an improved
method of storing acetylene, for lighting
and other purposes, in a small volume in
order that it may be supplied in portable
form to the customer, and it consists in dis-
patent; necessarily, therefore, did not save
it 'from the operation of the law.' And
the court meant no more than that. It was
not said that a patentable improvement
could not be made which could be secured
by a patent which would endure beyond the
expiration of a prior foreign patent for
that which was improved. Such a ruling
would contravene the right given by the
statute."
Following Siemen v. Sellers, supra, the
court in Western Electric Co. v. Citizens'
Teleph. Co. 106 Fed. 216, held that the ex-
piration of a prior foreign patent embodying
in its description of the invention the es-
sence of the later United States patent con-
tained in one of its claims terminates the
United States patent, even though there are
differences in some details between the for-
eign and domestic patents, upon which in-
dependent claims might be based.
Recent legislation.
By the act of March 3, 1897, U. S. Rev.
Stat. § 4887, Comp. Stat. 1913, § 0431, was
so amended as not to limit the life of a
domestic patent granted on an application
filed on or after January 1, 1898, to the life
of the prior foreign patent, the only re-
quirement being that the domestic applica-
tion be filed within seven months from the
filing of the application of the foreign pat-
ent. This section was further amended by
the act of March 3, 1903, which did not
purport to affect the term of patents in any
respect, but dealt only with their validity.
Patents granted before January 1, 1898,
or upon applications filed prior to that date,
are, by the express provisions of the act
of March 3, 1897, §§ 3, 8, left unaffected as
to their validity or term, governed as to
the latter, where the invention was pre-
viously patented in a foreign country, by
U. S. Rev. Stat. § 4887, in its original form.
Sawyer Spindle Co. v. Carpenter, 76 C.
C. A. 162, 143 Fed. 976, affirming 133 Fed.
238.
A United States patent which, by reason
of the saving clause in the amendatory act
of March 3, 1807, expired imder U. S. Rev.
Stat. § 4887, as that section originally
stood, when the prior foreign patent for the
same invention expired, was not revived by
the further amendment of March 3, 1903,
which did not purport to affect the term
of patents in any respect, but only the
requisites of their validity. Sawyer Spindle
Co. V. Carpeiter, supra.
The term of a United States patent which,
100
under U. S. Rev. Stat. § 4887, Comp. Stat.
1913, § 9431, would expire with the expira-
tion of the term of a foreign patent pre-
viouly granted for the same invention, was
not extended by the provisions of the treaty
of Brussels of December 14, 1900, art. 4 bis,
that patents applied for in the different
contracting states by persons admitted to
the benefit of the convention shall be inde-
pendent of the patent obtained for the
same invention in other states, and that this
provision shall apply to existing patents,
but such provisions, if construed as they
must be, in accordance with the declaration
of the Brussels Convention at the instance
of the American delegates, affect only those
existing patents whose terms might other-
wise be shortened by the lapsing of foreign
patents. Cameron Septic Tank Co. v. Knox-
ville, 227 U. S. 39, 57 L. ed. 407, 33 Sup.
Ct. Rep. 209.
The omission from the act of March 3,
1903 (32 SUt. at L. 1225, chap. 1010, Comp.
Stat. 1013, § 9431), enacted to make effec-
tive the Brussels treaty of December 14,
1900, for the protection of industrial prop-
erty, of any provision to carry out art. 4 bis,
which declares that patents applied for in
the different contracting states by persona
admitted to the benefit of the convention
shall be independent of the patent obtained
for the same invention in other sts^s, and
that this provision shall apply to existing
patents, which article, in the light of sul^
sequent congressional action and of legis-
lative action of some of the other contract-
ing nations, cannot well be deemed self-
executing, leaves in force as to existing
United States patents the provisions of U.
S. Rev. Stat. § 4887, Comp. Stat. 1013, §
0431, under which such patents will expire
with the expiration of tlie term of a foreign
patent previously granted for the same in-
vention. Cameron Septic Tank Co. v. Knox-
ville, supra.
To the same effect are United Shoe
Machinery Co. v. Duplessius Shoe Ma-
chinery Co. 84 C. C. A.. 76, 155 Fed. 842,
affirming 148 Fed. 31; Malignani v. Hill-
Wrijght Electric Co. 177 Fed. 430; Malig-
nani V. Jasper Marsh Consol. Electric Lamp
Co. 180 Fed. 442; Commercial Acetylene Co.
V. Searchlight Qas Co. 197 Fed. 908, af-
firmed in 121 C. C. A. 474, 203 Fed. 276.
A contrary view was expressed in Henne-
bique Constr. Co. v. Myers, 97 C. C. A. 289,
172 Fed. 800, but the judge announcing suc^
view r^narked in Union Typewriter Co. v.
Smith, 173 Fed. 288, that his opinion WM
not the opinion of the court.
230 U. 8.
1»J5.
FIREBALL G T. ft I. CO. v. COMMERCIAL ACETYLENE CO. 161-163
solving the acetylene under pressure irf cer-
tain liquids, the effect of pressure being to
inereaae the solubility of the acetylene and
so enable a considerable quantity of acety-
lene to be stored in a small volume in
readiness to be supplied for any purpose
for which it may be required.
''Liquified acetylene occupies the least
volume, but the pressure is very high and
may become excessive should the critical
temperature (37^.6) of acetylene be acci-
dentally exceeded. On the other hand, sim-
ple compression of the gas enables danger-
ous pressures to be avoided, but the quan-
tity which can be stored in this way is too
small. For these reasons we avail ourselves
of the great solubility of acetylene in cer-
tain liquids, and increase this solubility by
pressure, and this method of storing acety-
lene gas is the invention which we hereby
broadly claim as our invention, whatever
may be the liquid employed, the kind of
apparatus used, or mode of operation."
Examples of liquids which may be em-
ployed as solvents are given. Among these
are mentioned "alcohols" and "particularly
acetones." It is stated that mixtures and
combinations of these bodies vary their
solvent power, and of this property the
patentees said they availed themselves.
And further, that the solvent power in-
creases with [162] pressure, and the solu-
tion of the gas in a liquid is the principle
of the invention.
The process described as carried on,
though subject to modifications, is as fol-
lows: Ihe gas is dissolved in the liquid
chosen, and the "solution under pressure,
however obtained, is filled into a receiver
of metal or of glass (such as used for soda
water) capable of resisting the pressure
employed. The receiver has a cock and the
necessary adjuncts for connection, directly
or through an expansion chamber, with the
appliances in which the gas is used by the
consumer, the substitution of charged for
empty receivers being readily effected. The
storage receivers may vary in dimensions
from a small portable, to a large fixed, gas
holder."
The claims describe the method and in-
vention to he the utilization for the pur-
pose of storage, in a small volume, of large
quantities of acetylene gas, of the solubility
of the gas in certain liquids by the applica-
tion of pressure, and the novel application
as a solvent of acetylene under pressure for
the purpose of storage, transportation, and
utilization for industrial purposes; and the
employment (claim 6) of a receiver eon-
taining a liquid charged with acetylene
under pressure, and from which the acety-
lene is evolved when required for use.
Defendants have fixed on claim 6 at es-
«• L. ed.
tablishing identity, and the British law of
patents is relied on. British United Shoe
Machinery Co. v. Fussell & Sons, 45 R. P.
C. 631. The argument is that nst only a re-
ceiver is claimed, but a receiver of the
exact or equivalent kind described in the
United States patent. 0>unsel say : "Evolv-
ing gas from a receiver in which the gas is
under pressure necessarily implies an outlet,
an outlet necessarily implies a valve, and a
valve necessarily implies a control of the es-
caping gas." They say further, quoting the
cited case: " 'A man must distinguish what
is old from what is new by his claim, but he
has not got to distinguish what [163] is old
from what is new in his claim.' " Applying
the principle and asserting that the devices
described in the United States patent were
old, it is contended that they would be im-
plied as necessary elements of the claim.
Taken at its full import the argument
would seem to establish that there could
be no patent for an apparatus to execute
a process if it (apparatus) were a combina-
tion of old elements. In many cases, there-
fore, the argument would confound process
and apparatus, but it is established that a
process may be independent of the instru-
ments employed or designed to perform it.
They may be independent or they may be
related. "They may approach each otiier
so nearly that it will be difficult to distin-
guish the process from the function of the
apparatus. In such case the apparatus
would be the dominant thing. But the
dominance may be reversed and the process
carry an exclusive right, no matter what
apparatus may be devised to perform it."
United States ex rel. Steinmetz v. Allen,
192 U. S. 643, 659, 48 L. ed. 555, 601, 24
Sup. Ct. Rep. 416. However related they
may be, to which may be assigned domi-
nance may be important in considering the
patentable novelty of either, or, it may be,
the infringement of either, but not whether
one has expired because the other has.
Leeds k C. Co. v. Victor Talking Mach. Co.
213 U. S. 301, 318, 53 L. ed. 805, 812, 29
Sup. Ct. Rep. 495. The various questions
thus arising may indeed have complexity
(Risdon Iron k Locomotive Works v. Med-
art, 158 U. S. 68, 39 L. ed. 899, 15 Sup. Ct.
Rep. 745 )» but they must not be con-
founded.
A great deal of what we have said ap-
plies to the German patent. Its claim is
for "the employment of liquids charged with
acetylene under pressure for the purpose of
utilizing acetylene for illumination, motive
power, heating, and the like, characterized
by acetylene being absorbed under pressure
by a suitable liquid, and the liquid satu-
rated with acetylene being preserved or con-
tained in 8uitiJ>le vessels, from which the
801
168-166
SUFIUSMB COUBT OF TH£ UNITED Sl^ATKS.
Oct. Tmui
acetylene gas can be supplied for use, a
pressure regulator being preferably inter-
posed."
[164] Ibis claim is preceded by a lengthy
explanation (too lengthly to quote) setting
forth the properties of acetylene and its
absorption by certain liquids, and the de-
pendence of the amount of absorption upon
pressure, and the use of such properties and
pressure for storing and utilizing the gas.
It is said: "The vessels for holding the
liquid saturated with acetylene must be
provided with a cock or Talve from which
the gas escapes according to the diminution
of pressure which occurs, and can then be
used for the customary purposes." And an
apparatus is described, "with whose aid the
storing process can be carried into prac-
tice." Care is talcen to mention "that th
process is in no way limited to the appa-
ratus described and shown." It is clear,
therefore, that the process and the described
vessel of storage are separate, and that the
invention is for the former. An apparatus
was mentioned in display of the utility of
the process. See Tilghman v. Proctor, 102
U. S. 707, 26 L. ed. 279. It was not the in-
tention to claim a particular form of device
and secure a patent for it.
The title of the French patent is "A
System of Storing Acetylene." And it is
said that the object of the "invention is a
system of storing acetylene whereby acety-
lene to be used for any purpose whatso-
ever, especially for lighting, may be in-
closed in a restricted space and easily trans-
ported."
A description of the process is given and
the properties of the gas and its solvent
which make the law of the process. And it
is said the solution under pressure obtained
by the means described, "or by any other
means, is placed in a metal recipient (or
a glass recipient, like seltser water siphons)
susceptible of resisting the pressure em-
ployed. The recipient is provided with a
faucet and the necessary fittings to enable
it to be connected, either directly or by
means of an expander, with the apparatus
of consumption at the house of the con-
sumer."
[165] The claims were:
"1. For the storage of large quantities
of acetylene in a small space, the applica-
tion of the solubility of this gas in certain
liquids, using pressure for the purpose of
increasing the amount of gas dissolved per
unit of volume of the liquid, as described
above;
"2. For the purpose of effecting the solu-
tion under pressure of large quantities of
acetylene in a small volume of liquid, the
use of methods and apparatus employed to
cause the solution under pressive of 6ther
802
gas^ in other liquids, especially of car*
bonis acid in water."
There were certificates of addition to the
patent, the 'first of which sets forth the ad-
vantage of mixing the liquid with a porous
body capable of absorbing it. "An expedi*
ent and practical form of accomplishing
this" is set forth in the second certificate.
The third certificate of addition connects
the patent "with a safety appliance to be
adapted especially on recipients where the
acteylene is dissolved in an appropriated
liquid, such as acetone, according to the
process described in" the patent
The contention is that the patent is for
a "system," not for a "process or method,"
and that, besides, the " 'r4sum6' " or claims
of the first patent espeeially refer to both
"'method and apparatus,'" and that "the
certificates of addition, especially the last
two, unquestionably are for the apparatus,
namely, the gas tank."
We think the contentions are untenable.
The distinction between system and method
is too subtle, and, besides, it is clear that
the patentee considered the words as mean-
ing the same thing, and the apparatus re-
ferred to was one, it was said, "employed
to cause the solution under pressure of
other gases in other liquids." it was not
the apparatus of the United States patent,
though having some features the same.
But it is contended that even if consid-
ered as a "method" patent, "it is merely for
the method of operating the [166] appar-
atus, constituting the function of the ap-
paratus, and, therefore, under the decision
of this court, is for the same invention."
And this is contended to be established by
Mosler Safe & Lock Co. v. Hosier, B. k Co.
127 U. S. 354, 3 L. ed. 182, 8 Sup. Ct. Rep.
1148, and by a ruling of the Patent Oflice
upon the application of Claude and Hess for
an "Improvement in a Method of Storing
Acetylene Gas for Distribution," and the
acceptance of that ruling by the applicants.
The Mosler Case, it was said in Miller
T. Eagle Mfg. Co. 161 U. S. ISO, 197, 38 L.
ed. 121, 127, 14 Sup. Ct. Rep. 310, held
"that a patent having issved for a product,
as made by a certain process, a later patent
could not be granted for the process which
results in the product." The process was a
purely mechanical process, and the ruling,
it would seem, must be confined to the exact
facts of the case, for in Miller v. Eagle
Mfg. Co. it was said that "a single inven-
tion may include both the machine and tha
manufacture it creates, and in such cases,
if the inventions are really separable, tha
inventor may be entitled to a monopoly of
each." And Sewall v. Jones, 91 U. S. 171,
23 L. ed. 275, was cited for the purpose
of showing that there might be a patent for
889 V. B.
191A.
KIRKBAJX a. T. ft I. CO. ▼. COMMERCIAL ACETYLENE CO. 166-169
tkc proceaa and one for the product. Mer-
rill y. Yeomans, 94 U. 8. 568, 24 L. ed.
136, was alao cited as holding that "where
a patent described an apparatus, a prooess,
tad a product, and the claims covered only
the apparatus and the process, the law pro-
Tided a remedy by a surrender of the pat-
ent and a reinsue, for the purpose of em-
kracing the product."
The rulin;; of the Comniissioner of Pat-
ents referred to above is as follows:
"It was common long prior to the app^l-
huits' invention to force under pressure into
a liquid solvent thereof in a closed vessel
sad was also common to draw off gas from
a holder where it was contained under pres-
mre, though an opening, the effective sixe
of which was directly controlled by and
proportionate to the pressure of the gas
[167] within the holder; or, in other words,
through a pressure regulator. The appel-
hints were then-fore not the inventors of
the step of storing gas, as set forth, nor
of the step of permitting gas to escape from
a place of storage in the manner set forth.
Kcither of these steps modifies in any man-
ner the old and expected effect of the other ;
and the final result of the alleged process,
namely, distributing gas at a uniform pres-
iure, is the same as that produced by proc-
esses old in the art, as above stated. The
appellants have tl^erefore not invented a
new and patentable process, although, as
held in a companion case, they have devised
in apparatus by which the old process of
itoring gaa can be made practically and
eommercially useful. Claims to that ap-
paratus have been allowed, and it is be-
lieved that it is the only patentable inven-
tion disclosed by them.
• . • • • •
"It appears, further, that they do not
eover proper methods, but merely the func-
tions of mechanism, and that they are not
patentable in view of the decisions in Coch-
rane V. Deener, 04 U. S. 780, 24 L. ed. 130,
and Boyden Power Brake Co. v. Westing-
house, 83 Off. Gaz. 1067. Claim 3 clearly
covers several independent disconnected
lieps which do not go to make up a pat-
entable process."
The "companion case" referred to by the
Commissioner is the patent in suit, and it
will be observed that the Commissioner said
it was for an apparatus by which the old
process of storing gas could be made prac-
tically and commercially useful and that
daims to it had been allowed. It was,
therefore, distinctly a patent for an appa-
ratus, while, on the contrary, all the foreign
patents are explicitly for methods. The
devices described in them were not a result
of the operation of the methods. Some re-
eeptade or apparatus was necessary to be
•0 L. ed.
shown to produce and hold the solution of
the gas and the liquid employed as a sol-
vent. Something else was necessary for
[168] the uae of the solutionis and the de-
rice of the United States patent Was aimed
to secure it. It is distinct from the method.
Whether it has patentable novelty is an-
other question. And a serious question it
is. Tlie solubility of acetylene in liquids,
especially in acetone, is availed of in all of
the patents. United States and foreign. This
cannot be denied, — indeed, is admitted, — and,
as we have seen, there are devices described
in the foreign patents for storing the solu-
tion and devices indicated for Its use. The
similarities and differences between th<*
patents have^ given rise to a diversity of
opinion and decision.
The circuit court of appeals for the sixth
circuit discerned a difference between the
British patent and that in suit, and con-
sidered that the former was for a process
and the latter for an instrument to perform
the process, and therefore the two were not
for the same invention, and that neces-
sarily the United States patent did not ex-
pire with the British patent 112 C. C. A.
573, 192 Fed. 321.
Ihe circuit court of appeals for the
seventh circuit expressed a contrary view
and decided tliat the British patent and the
patent in suit were for substantially the
same invention, and the British patent hav-
ing expired, the patent in suit expired with
it. The decisions had, respectively, the sup-
port of Judge Denison (18S Fed, 89) and
Judge Kohlsaat (188 Fed. 85, 112 C. C. A.
573, 192 Fed. 321).
It was decided in the circuit court for the
eastern district of Wisconsin, Judge Quarles
sitting, that the device of the patent in
suit was patentable and was not antici-
pated by anything in the prior art. 166
Fed. 907 ; see also 181 Fed. 387.
It was this conflict of views that induced
this writ, but the conflict is not as to all
questions in the case. If the decisions of
the trial courts may be in opposition on in-
vention and infringement as well as on the
effect of the [160] foreign patents, such
conflict cannot be asserted of the opinions of
the circuit courts of appeal. That of the
eighth circuit — and to which this writ is
directed — refrained from a decision on the
merits, and considered only the propriety of
the discretion exercised by the trial court in
granting a preliminary injunction; and, re-
viewing the expression of judicial opinion,
decided that the court waa justified in
making the order. The court of appeals
went no farther, as we have seen, and we
are disposed to a like limitation. The ques-
tions are seriously disputsble, as the differ-
ence in decision indicates, and wa think
tot
169-171
SUPREME COURT OF THE UNITED STATES.
Oct. Tkuff,
we should follow the circuit court of ap-
peaU and imitate the example of Leeds &
C. Co. V. Victor Talking Mach. Co. 213 U.
S. 301, 311, 312, 53 L. ed. 805, 809, 810,
20 Sup. Ct. Rep. 495. We have not the
aid — and its value in inestimable — of the
judgment of the trial court or of the cir-
cuit court of appeals, but must consider
the question upon conflicting allegations
and afYidavits. The better course, therefore,
is to reserve all questions except that of
the identity of the patent in suit with the
foreign patents, and its termination by their
expiration, and, with that reservation, we
decide only that there was no abuse of dis-
cretion in granting and sustaining the
order of injunction.
Aflirmed.
[170] NELLIE PORTER, Plff. in Err.,
v.
OLLIE A. WILSON, Charles W. Wilson,
Omer A. Garner, and W. M. Jackson.
(See S. C. Reporter's cd. 1?0-175.)
Constitutional law — privileges «nd Im-
munities — due process of law — sus-
taining demurrer to evidence.
1. The sustaining of a demurrer to the
evidence and the entry of a decree fop de-
fendant in a suit tried witliout a jury can-
not be said to abridge the plaintiff's privi-
leges and immunities, nor to take her prop-
erty without due process of law, contrary
to (J. S. Const., 14th Amend., because of
the declaration in Okla. Rev. Laws, § 6030,
that ''the provisions of this article respect-
ing trials by jury apply so far as they are
in their nature applicable to trials by the
court," where the Oklahoma supreme court,
in afHrniing such decree, decided that the
trial court "did not render its judgment
alone upon tlie demurrer to the evidence,
but, after a consideration of the proof sub-
mitted by plaintiflf, made its findings of
fact, thereby necessarily weighing the plain-
tiff's testimony," and pointed out that ^'even
though it were conceded that technical er-
ror was committed, the substantial rights
of the plaintiff were not affected," adding
that it was required by statutes and its
own decisions to disregard errors or de-
NoTE. — ^As to what constitutes due process
of law, generally — see notes to People v.
O'Brien, 2 L.R.A. 255 ; Kuntz v. Sumption,
2 L.R.A. 655; Re Gannon, 5 L.R.A. 350;
Ulman v. Baltimore, 11 L.R.A. 224; Oilman
V. Tucker, 13 L.R.A. 304; Pearson v. Yew-
dall, 24 L. ed. U. S. 436; and Wilson ▼.
North Carolina, 42 L. ed. U. S. 865.
As to constitutional equality of privileges,
immunities, and protection, generally — see
note to Louisville Safety Vault & T. Co.
V. Louisville k N. R. Co. 14 L.R.A. 570.
204
fects which did not affect the substantia
rights of the parties.
[For other cases, see Const! totlontl Law. lY.
a. 7; IV. b, 8. in Digest Sup. Ct. 190S.]
Indian allotments — descent — legiti-
macy.
2. Rights of inheritance as to Creek
lands in the Indian Territory were not af-
fected by the enactment of the act of Feb-
ruary 28, 1891 (26 SUt. at L. 794, chap.
383, Cbmp. SUt. 1913, § 4222), § 5, which
amended the general allotment act of Feb-
ruary 8, 1887 (24 SUt. at L. 388, chap.
119, Comp. Stat. 1913, § 4206), by provid-
ing that ''for the purpose of determining
the descent of land to the heirs of any. de-
ceased Indian" under the provisions of § 5
of said act of February 8, 1887, the issue
of iDdiana cohabfting as husband and wife
"according to the custom and manner of
Indian life" shall be *'Uken and deemed to
be legitimate issue of the Indians so living
together, and every Indian child, otherwise
illegitimate, shall, for such purposes, be
Uken and deemed to be the legitimate is-
sue of the father of such child," since by
§ 8 of the earlier act the territory occupied
by the Creeks in the Indian Territory was
expressly excepted from the provisions of
that act.
[For other cases, see Indisns, VIII., in Dicest
Sup. Ct 1908.]
[No. 58.]
Submitted November 5, 1915. Decided No-
vember 29, 1915.
IN ERROR to the Supreme Court of the
State of Oklahonui to review a decree
which affirmed a decree of the District Court
of Hughes County, in that sUtc, in favor
of defendanU in a suit to quiet title. Af-
firmed.
See same case below, 39 Okla. 500, 135
Pac. 732.
The facU are sUted in the opinion.
Messrs. Ijewls C. liawson and Frank L.
Montgomery submitted the cause for plain-
tiff in error.
No brief was filed for defendants in error.
Mr. Justice McKenna delivered the opin-
ion of the court:
Suit to quiet title, brought in the district
court of Hughes county, sUU of Oklahoma,
and in which plaintiff [171] in error waa
plaintiff a^d defendants in error defendants^
and we shall so designate them.
The case concerns the inheritance of an
allotment to one Ben PorUr, a Creek citi-
zen and member of the tribe of the Creek
Nation. Plaintiff contends that she is the
daughter and only child of Porter and Jen-
I nie McGilbra, whom he married, it is as-
. serted, in 1893, and with whom he after-
I wards resided for one and one-half years as
husband in accordance with the usages and
S89 V. S.
1916.
PORTER ▼. WILSON.
171-173
eustoiDB of the Creek Nation. He subee-
quently separated from her, it it alleged,
but never got a divorce from her, and that
therefore they remained husband and wife
until the time of his death, which occurred
about NoTonber 23, 1006; he dying intes-
tate, and being seised of the lands in ton-
troversj at tliat time, plaintiff, Nellie Por-
ter, liecame entitled in fee simple to all of
them.
It is averred that after Porter's separa-
tion from his wife he ''took up" with an-
other woman bj the name of Lena Canard,
who, after the death of Porter, married
one William Freeman; that Porter left
surviving him one Sam Porter, a half
brother, a Seminole Indian and so enrolled,
and one Nannie Broadnax, a half sister.
From this brother and sister and Mrs. Free-
man the defendants in error derive their
title.
Defendants denj the marriage of Porter
and Jennie McGilbra, or that plaintiff was
his child or in any way related to him,
and aver that tbeir grantors "were the sole
and exclusive heirs of Porter, and as such
inherited the lands from him."
llie judgment recites that the cause eom-
ing on, upon hearing upon the pleadings
and upon evidence offered on the part of the
plaintiff, and upon the plaintiff resting her
eause with the court upon the evidence
offered, the defendants demurred to the evi-
dence and the court sustained the demurrer,
and found '*that the alleged marital rela-
tion between Ben Porter and Jennie Mc-
Gilbra was [172] not esUblished by the
proof and did not exist, either by reason of
customs or the laws of the Creek Nation;
that the relation was illicit; that the plain-
tiff, Nellie Porter, was the illegitimate child
of this illicit relation." Ulie court entered
a decree dismissing plaintiff's bill and for-
ever quieting the title of defendants against
plaintiff. The decree was affirmed by the
supreme court.
Tiie supreme court sustained the action
of the trial court in rendering judgment
upon the evidence, saying: '*lt is obvious
from the record that the court passed upon
the entire case," and that "it would be too
subtle a refinement to say that the court
should have overruled the demurrer and
thereupon, on the same evidence, have found
for the defendant ; otherwise a reversal must
follow." And further: "Ultimately plain-
tiff's right to recover involved a question
of fact for the court's determination. That
the court did consider the testimony and de-
termine the insufficiency is clearly estab-
lished from the language of the journal
entry. The burden of proof rested upon the
plaintiff to prove, not only the Indian cus-
toms of the Creek Nation pertaining to mar-
•0 L. ed.
riage, but to establish her rights there-
under. There was more or less conflict in
the testimony of plaintiff's witnesses, from
which different conclusions might be drawn,
and there being testimony reasonably tend-
ing to support the judgment of the court,
the same will not be weighed by this court
to ascertain whether the court's decision is
against the preponderance of the testi-
mony." [39 Okla. 607, 136 Pac. 732.] For
which conclusion the court cited a number
of Oklahoma cases.
Against the action of the trial court and
its affirmance by the supreme court it is
contended that the Constitution of the state
and the 14th Amendment have been violated
in that the plaintiff's privileges and Im-
munities have been abridged and her prop-
erty taken without due process of law. The
foundation of the contention is § 6039 of
the Revised Laws of Oklahoma. It provides
[173] that "the provisions of this article
respecting trials by jury apply, so far as
they are in their nature applicable, to trials
by the court." The argument is that under
that section "a citizen of the said state and
of the United States is entitled to the same
protection and enforcement of the law. on a
demurrer to the evidence where their causiis
of action are tried by the court, as when
tried to a jury." And, it is further argued,
if there be any evidence, "conflicting evi-
dence cannot be weighed or considered by
the court," and the demurrer should have
been overruled, lliese contentions are at-
tempted to be supported by citation of many
cases and elaborate comment n&ade upon
them to sustain the assertion "that a de-
murrer to the evidence presents a proposi-
tion of law, and not of fact; and that con-
flicting evidence in the case is not to be
considered, if there be evidence even tend-
ing to support the claims of the demurree."
The contention is difficult to handle. It
seems to confound so completely the pur-
pose and various qualities of evidence and
the functions of a court.
Whether, however, there be a technical
difference between tiie final submission of
a case to the court and its submission upon
a demurrer to the evidence we need not
dwell upon. The difference has been made
unimportant, indeed, removed from the
present case, by the decision of the supreme
court. The court decided, as we have seen,
that the trial court "did not render its
judgment alone upon the demurrer to the
evidence, but, after a consideration of the
proof submitted by plaintiff, made its find-
ings of fact, thereby necessarily weighing
the plaintiff's testimony for the purpose of
determining the rights of the respective
parties to a recovery." And the court
pointed out that "even though it were
20ft
173-176
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
conceded that technical error was com-
mitted, the substantial rights of the plain-
tiff were not affected, as she had introduced
her evidence and rested her case. She was
not caused to change [174) her position,
nor did she suffer any disadvantage in the
procedxire adopted." The court added that
it was required by the statutes of the state
and its decisions to disregard errors or de-
fects in the pleadings or proceedings which
did not affect the substantial rights of the
parties.
It is manifest, therefore, that the action
of the trial court was in full exercise of the
power intrusted to it under the laws of
the state, and the contention of plaintiff
that the Constitution of the United 'States
is violated is untenable. We, of course,
accept the the decision of the supreme court
of the state that the state Constitution is
not violated.
The next contention of plaintiff is that
she inherited the lands by virtue of § 5
of the act of Congress of February 28,
1891 (26 Stat, at L. 794, chap. 383, Comp.
Stat 1913, § 4222), which amended the
general allotment act of February 8, 1887
(24 Stat, at L. 388, chap. 119, Comp. Stat.
1913, § 4206). By this section it is pro-
vided *'that for the purpose of determining
the descent of land to the heirs of any de-
ceased Indian under the provisions of the
fifth section of said act" of February 8,
1887, the issue of Indians cohabiting as hus-
band and wife "according to the custom
and manner of Indian life" shall be "taken
and deemed to be the legitimate issue of
the Indians so living together, and every
Indian child, otherwise illegitimate, shall,
for such purpose, be taken and deemed to
be the legitimate issue of the father of such
child."
But by § 8 of the act of February 8,
1887, "the territory occupied by the . . .
Creeks ... in the Indian Territory"
was expressly excepted from the provisions
of that act. It was hence concluded by the
supreme court of the state that § 6 of the
act of 1891, supra, "was without effect upon
the riglit of inheritance, as to the Creek
Indians in the Indian Territory."
Plaintiff attacks this conclusion by cit-
ing § 38 of the act of May 2, 1890 (26 Stat,
at L. 81, 98, chap. 182), which organized
the territory of Oklahoma. It provides
"that all marriages [176] heretofore con-
tracted under the laws or tribal customs of
any Indian Nation now located In the In-
dian Territory, are hereby declared valid
and the issue of such marriages shall be
deemed legitimate and entitled to all in-
heritances of property or other rights, the
8oe
same as in the caae of the issue of other
forms of lawful marriage. . . ."
It will be observed that the asserted mar-
riage between Porter and the mother of
plaintiff took place in 1893; that is, sub-
sequent to the act of 1890, organising the
territory of Oklahoma, and therefore waa
not a marriage within the meaning of § 38,
theretofore contracted, and therefore plain-
tiff's reliance must be upon the provision,
before stated, in § 6 of the act of 1891.
As that section was expressly festricted to
lands allotted under § 6 of the act of 1887,
and as the lands occupied by the Creeks
in the Indian Territory could not be and
were not allotted under the latter section,
it follows that the provision relied upon
had no application to the lands here in
question, they being part of the territory
so occupied by the Creelcs.
Judgment affirmed.
WILLIAM E. HETM, Cranford Company,
and Flinn-O'Rourke Company, Inc., Plffs.
in Err.,
V.
EDWARD E. McCALL, Milo R. Maltbie, J.
ISargeant Cram, George V. S. Williams,
and Robert C. Wood, as Members of and
Constituting the Public Service Commis-
sion for the First District of the State of
New York.
(See S. C. Reporter's ed. 175-194.)
Error to state court — Federal ques-
^ tion — local law.
1. The application of the provisions of
N. Y. Consol. Laws, chap. 31, § 14, against
the employment of aliens on public works
to contracts for the construction of sub-
ways in New York city, and the extent to
which they affect the corporate rights of
the city or of the subway contractors, are
local questions not open for review in the
Federal Supreme Court on writ of error to
a state court.
[For other cases, see Appeal and Error. 2124-
2151, m Digest Sup. Ct. 1908.]
Municipal corpomtions — legislative
control *— labor on public works.
2. The general power of a state over its
municipalities extends to the regulation of
the kind of laborers which may be em-
ployed in the construction of public works
by or for such municipalities.
[&or other cases, see Munlcipnl Corporations,
7-12, in Digest Snp. Ct. 1908.]
1
Note. — On the general subject of writs
of error from the United States Supreme
Court to state courts — see notes to Martin
V. Hunter, 4 L. ed. U. S. 97; Bamblin v.
Western Land Co. 37 L. ed. U. S. 267; Re
Buchanan, 39 L. ed. U. S. 884; and Kipley
V. Illinois, 42 L. ed. U. S. 998.
On what questions the Federal Supreme
S89 V. 8.
1915.
HEIM V. McCALL.
170
Constltationnl law — privileges and Im-
man i ties — employment on public
works.
3. Privileges and immunities of the
citizens of the several states are not
tbridged, contrary to U. S. Const, art. 4,
1 2, by the provisions of N. Y. Consol. Laws,
chap. 31, § 14, that only citizens of tlit
United States may be employed in the con-
itruction of public works by or for the
lUte or a municipality, and that in such
employment citizens of New York stats must
be given prefererco.
[For other esites. see Constltotional Law, 218-
2S8, in Dii;e8t Sup. Ct. 1808.]
Oonstltntlonal lavr — freedom to eon-
tract — employment on public works.
4. The freedom to contract secured by
U. S. Const, 14th Amend., is not infringed
by the provisions of N. Y. Consol. Laws,
ehap. 31, f 14> that only citizens of the
United States may be employed in the con-
struction of public works by or for the
•tate or a municipality, and that in such
employment citizens of Ivew York state
must he given preference.
(For other cases, see Constltotional Law, 001-
607, in Digest Sop. Ct. 1908.]
Constitutional law — due process of law
— eqnal protection of the laws — em-
ployment on public works.
5. Property is not taken without due
process of law, nor is the equal protection
of tlie laws denied, contrary to U. S. Const.,
Uth Amend., by the provisions of N. Y.
Consol. Laws, chap. 31, § 14, that only citi-
lens of the United States may be employed
in the construction of public works by or
for the state or a municipality, and that In
luch employment citizens of New York
lUte must be given preference.
[For other cases, see Constltotional Lsw, 2ia-
2;;8, 441^98. 891-894, In Digest Sup. Ct.
IvUo. J
Aliens — treaty rights — state regula-
tion — employment on public works.
6. The equality of rights and privileges
with citizens of the United States with re-
spect to security for persons and property
wliich citizens of Italy are assured by the
Italian treatv of Feuruary 26, 1871 (17
Stat, at L. 845), is not infringed by the
provisions of N. Y. Consol. Laws, chap. 31,
i 14, that only citizens of the United States
may be employed in the construction of
public works by or for the' state or a mu-
nicipality, and that in such employment
citizens of New York state must be given
preference.
[For other esses, see Treaties, I. in Digest
Sup. Ct. 1908.]
[No. 386.]
Argued October 12, 1916. Decided Novem-
ber 29, 1915.
IN ERROR to the Court of Appeals of
the State of New York to review a decree
which reversed a decree of the Appellate Di-
vision of the Supreme Court, First Depart-
ment, reversing a decree of the Supreme
Court hi snd for New York County, in that
state, which had sustained a demurrer to the
bill in a suit to restrain the Public Service
Commission from declaring certain subway
contracts forfeited for violation of the anti-
alien labor laws. Affirmed.
See same case below, in Appellate Divi-
sion, 165 App. Div. 449, 150 N. Y. Supp.
933; in Court of Appeals, 214 N. Y. 629,
108 N. E. 1095.
Statement by Mr. Justice McKenna:
Bill in equity to restrain the Public Serv-
ice Conmiission for the First District of the
State of New York from declaring certain
contracts for the construction of portions
of the rapid subway system of the city of
New York void and forfeited for violation
of certain provisions inserted in the con-
tracts in pursuance of § 14 of the labor law
(so-called) of the state. Laws 1909, chap.
36, Consol. Laws, chap. 31. It reads as
follows :
"Section 14. Preference in employment of
persons upon public works. — In the construc-
tion of public works by the state or a mu-
nicipality, or by persons contracting with
tlie state or such municipality, only citizens
of the United States shall be employed ; and
in all cases where laborers are employed
on any« such public works, preference
Court will consider In reviewing the judg-
ments of state courts — see note to Missouri
« rel. Hill v. Dockery, 63 L.R.A. 571.
As to what constitutes due process of
Itw, generally — see notes to People v.
03rien, 2 L.R.A. 255; Kuntz v. Sumption,
2 L.R.A. 655; Re Qannon, 5 L.R.A. 359 w
Uhnan v. Baltimore, 11 L.R.A. 224; Oilman
». Tucker, 13 L.R.A. 304 ; Pearson v. Ycw-
dtll, 24 Ia ed. U. S. 436; and Wilson v.
Horth Carolina, 42 L. ed. U. S. 865.
As to the validity of class legislation,
(vierally — see notes to State ▼. Qoodwill,
S L.R.A. 621; and State v. Loomis, 21
l:SUL 789.
As to constitutional equality of privileges,
bimunitics, • and protection, generally —
•0 L. ed.
note to Louisville Safety Vault ft T. Co.
V. Louisville & N. R. Co. 14 L.R.A. 579.
Generally, as to statutory restrictions on
contracts between master and servant — see
notes to Com. ▼. Perry, 14 L.RJI. 325;
Ramsey v. People, 17 L.RJ^. 853; State ▼.
Loomis, 21 L.R.A. 789 ; and Ritchie ▼. Peo-
ple, 29 L.R.A. 79.
On treaty guaranties to aliens — see note
to Gandolfo v. Hartman, 16 L.R.A. 277.
On power of state, under 14th Amendment
to the United States Constitution, to deny
to aliens the right to engage in a lawful
occupation — see notes to Com. v. Hana, 11
L.RJl.(N.S.) 799; People v. Crane, L.RJk..
1916D, 569.
%^1
177-179
SUPREME COURT OF THE UNITED STATES.
OOT. IkBlC,
[177] shall be given citizens of the state
of New York. In each contract for the con-
struction of public works a proTision shall
be inserted, to the effect that, if the pro-
visions of this section ^are not complied
with, the contract shall be void . . ."l
It is provided that a list of contracts
theretofore made, with the names and ad-
dresses of the contractors, shall be filed in
the office of the commissioner of labor; and
when new contracts are allowed the names
and addresses of such new contractors shall
likewise be filed, and, upon demand, each
contractor shall furnish a list of subcontract-
ors in his employ. Each contractor is re-
quired to keep a list of his employees which
shall set forth whether they are naturalized
or native-bom citizens of the United States.
A violation of the section is made a mis-
demeanor.
The case went off on demurrer, and it is
therefore necessary to give a summary of
the bill, which we do in narrative form, as
follows:
Heim is a property owner and taxpayer
of the state of New York. The defendants
are the acting Public Service Commissioners
for the First District of the State of New
York and have been constituted and are the
Public Service Commisaion of that district.
The board of Rapid Transit Railroad Com-
missioners for the City of New York, under
the laws of the state (referred to as the
rapid transit act), in 1806 laid out and es-
tablished a route for said railroad in the
city, and which was subsequently construct-
ed, equipped, and operated. [178] After-
wards other routes were established, con-
structed, equipped, and operated.
1 hese routes were located in the boroughs
of Manhattan and the Bronx and Brooklyn,
and since 1912 and prior thereto have been
leased and operated by the Interborough
Rapid Transit Company, referred to as the
Interborough Company. There has been a
like lease of roads in Brooklyn by the Con-
solidated Railroad Company, called the
Brooklyn Company.
The Board of Rapid Transit Commission-
ers, acting under the laws of the state, de-
cided that other rapid transit railroads were
necessary, and determined and established
routes and the general plans for the con-
struction thereof.
1 Section 14 of the labor law was amended
by act of March 11, 1916, chap. 61, Laws of
New York, 1915, as follows:
'^Section 14. Preference in employment
of persons upon public works. — In the con*
struction of public works by the state or a
municipality, or by persons contracting with
the state or such municipality, preference
shall be given to citizens over aliens. Aliens
may be employed when citizens are not avail-
able. . . ."
208
The lines are described and respectively
called Interborough lines and Brooklyn lines.
The Board and the Public Service Com-
mission contemplated that such extension
and additions would form, with the existing
Interborough and Brooklyn lines, a complete
and comprehensive rapid transit system for
the accommodation of the entire city. And
the construction of such roads was deemed
and was and has been an imperative neces-
sity for the comfort and convenience of the
residents and taxpayers of the city.
The cost of construction of such new roads
vas upwards of $235,000,000 and their equip-
ment $44,000,000. The city had no avail-
able money and could not borrow the neces-
sary moneys for a large part of such
construction or equipment without exceeding
its legal and constitutional debt limit by
many million dollars.
To utilize the old with the new systems
upon a 5-cent fare basis, and to overcome the
difficulties and delays for lack of funds, and
accomplish the early construction and opera-
tion of the system on the best possible terms
for the city, negotiations were entered into
between the Public Service Commission and
the city authorities on the one [179] part
and the Interborough Company and the
Brooklyn Company on the other part, with
a view of formulating and entering into
contracts with the companies for the pro-
vision of funds for the construction and
operation of roads.
A form of contract was finally agreed up-
on and a contract was duly signed, executed,
and delivered by the Interborough Company
on the one part and the Public Service Com-
mission in behalf of the city on the other
part, on or about March 19, 1913.
As a result of the negotiations another
contract was entered into with the New
York Municipal Railway Company, which
had been formed in the interest of the
Brooklyn Company, whereby the latter com-
pany agreed to contribute toward the cost
of construction and equipment and to lease
and operate a portion of the roads in con-
junction with the then-existing system.
There is an enumeration of the provisions
of the contracts and the amounts to be con-
tributed by the companies and for the lease
of the routes.
The contracts were made a part of the
public records and approved by the Board of
Estimates and Apportionment and other
proper authorities before execution.
The Public Service Commission has let and
awarded each of the contracts for construc-
tion of the new routes, and the Interborough
Company became a party to many of them
for the purpose stated in the contracts; that
is, "solely for the purpose of paying out a
part of its contribution towards the cost of
construction of the said respective routes."
8S9 V. a.
1915.
HEIM ▼. MoCALL.
170-182
large extent. In no instance are any of
the contractors in default.
In the course of construction each of the
contractors has constantly employed and
now employs a large number of laborers
and mechanics who are residents of the city
of New York, but who were born in Italy
and are subjects of its King, and also em-
ployed laborers who, though citizens of the
United States, were not citizens of New
York, and did not give preference to citi-
zens of the state of New York over such
laborers so employed who were not citizens
of the state, but citizens of the United
States.
At the time of the proposals it was known
to be and is necessary to employ a large
number of such subjects of the King of Italy
and citizens of other states and of other
countries to perform said contracts within
the time and at the prices stated in order
to keep the construction and equipment of
the Dual System within the total amount
provided and specified in the contracts and
plans.
The treaty between the United States and
lUly of 1871 [17 SUt. at L. 845] provides
that the subjects of the King of Italy resid-
ing in the United States shall have and
enjoy the same rights and privileges with re-
spect to persons and property as are se-
cured to the citizens of the United States
residing in the United States.
At no time since the letting of such con-
tracts has there been available a sufficient
force or number of laborers citizens of the
United States or of the state of New York to
perform the work in accordance with such
contracts; and no question was raised until
a few days since of the right of the con-
tractors to employ alien laborers, which
[182] the contractors believed that they
had a right to do, and they regarded the
provision of the law and of the contract
prohibiting the same as in effect null and
void.
Within the past ten days complaint has
been made to the Public Service Commis-
sion of the violation of the law and the alien
labor provision in the contracts, and the
Commission has threatened to refuse to ap-
prove further monthly estimates of amounts
payable to contractors, thus depriving them
of the means of prosecuting the work and
the right to perform the same; indeed, have
refused to approve certain monthly esti-
mates, and, unless enjoined, will declare
such contracts void and terminate the same.
The termination of the contracts will re-
sult in irreparable loss and damage and
waste of money to the city, the work will be
delayed or not done, or the cost will be enor-
mously increased because the supply of la-
of 75 per cent, and all performed to a very * bor will be diminished^ resulting necessarily
to L. ed.- 14 809
Tlia new routes were duly approved by the
proper authorities and the Public Service
Commiasion, in accordance with the general
plan of the routes, either obtaining the con-
tent oi the property owners along the
routes, or, failing to obtain such eonsent,
having commissioners appointed by the ap-
pellate division of the supreme court to de-
termine [180] and report whether the
routes were to be constructed and operated
according to the plans adopted. The com-
missioners reported favorably and their re-
port was confirmed by the court, and the
general plans "thereafter constituted and
now are the routes and general plans of the
so-called Dual System of Rapid Transit
Railroads h^ein referred to."
In pursuance of the rapid transit act the
Public Service Commission prepared plans
and specifications for the construction of
the major portion of said routes in accord-
ance with ihe general plans, and thereafter,
before awarding any contract, advertised
for proposals in the form of an invitation to
eontractors and in compliance with the rap-
id transit act and the acts amending and
snpplementing it.
Bids were duly made and contracts duly
awarded and approved by the proper author-
ities.
Each of the contracts contained the fol-
lowing provisions:
"In obedience to the requirements of § 14
of the labor law, it is further provided that
if the provisions of said § 14 are not com-
plied with, this contract shall be void.*' A
provision in identical language was con-
tained in the invitation to bidders.
The requirement (it is alleged) both in
the proposals and contracts is unconstitu-
tional, void, and of no effect, in that it is
in conflict with § 2 of article 4 of the Con-
stituUon of the United States (that is, *'t\\e
citizens of each state shall be entitled to all
privileges and immunities of citizens in the
several states") and with § 1 of article 14
of the Amendments to the Constitution, and
with other sections and provisions; also
in violation of the Constitution of the state,
and in conflict with the treaty between the
United States and Italy and various other
treaties which contain "the most favored
nation clause/' — in other wordsj providing
that the citizens of such countries shall en-
joy all the privileges, rights, and [181] im-
munities which the citizens of countries
most favored in any existing treaty with
the United States enjoy.
All of the contractors promptly made the
necessary pr^arations for the execution of
their contracts and all are in the process
of performance at different stages, some of
them having been performed to the extent
182, 188
6UFRSMB COURT OF THE UNITED STATES.
Oor. TknCy
in the diminution of labor available for the
work, which will greatly protract the tame;
and litigation with the contractors will be
caused. Also damage will result because of
the fact that a large percentage of capital
and money necessary for the work is sup-
plied by third parties under contract with
the city to supply the same, which contracts
were based upon estimates made in advance,
and said contracts may be invalidated and
the purpose for which they were made de-
feated.
The total capital to be supplied was $250,-
000,000, of which the said third parties
agreed to supply $115,000,000, and the city
the balance. If the contracts be declared
void the capital so to be supplied will be in-
adequate for the work, and the money al-
ready supplied by the city and the said
third parties will have been wasted.
Injunction is prayed against declaring the
contracts void and forfeited and refusing to
prepare and certify vouchers of the amount
of monthly estimates for work done.
[183] There was a demurrer to the bill,
which was sustained by the supreme court,
and injunction denied. The judgment waa
reversed by the appellate division and an
injunction ordered, which action was re-
versed by the court of appeals and the bill
ordered dismissed. 214 N. Y. 629, 108 N.
E. 1096.
Mr. Thomas F. Oonway argued the
cause, and, with Mr. Thomas E. O'Brien,
filed a brief for plaintilT in error William
E. Heim:
A municipal corporation possesses two
kinds of powers: One governmental and pub-
lic, and to the extent this power is held
and exercised, it is clothed with sovereignty;
the other private, and to the extent this
power is held and exercised, it is a legal
individual.
Lloyd V. New York, 6 N. Y. 374, 55 Ana.
Dec. 347; People ex rel. Rodgers v. Coler,
166 N. Y. 1, 52 L.ILA. 814, 82 Am. St Rep.
605, 59 N. E. 716; People ex rel Coesey v.
Grout, 179 N. Y. 417, 72 N. E. 464, 1 Ann.
Gas. 39 ; Bieling v. Brooklyn, 120 N. Y. 106,
24 N. E. 389; 1 Dill. Mun. Corp. 5th ed.
I 39; Re Rapid Transit R. Comrs. 197 N.
Y. 96, 36 L.RA..(N.a) 647, 90 N. E. 456,
18 Ann. Gas. 366.
The city, in the exercise of its corporate
powers and the enjoyment of its corporate
rights, is entitled to the same protection
as an individual or private corporation,
under the Constitutions both of the United
States and of the state.
People V. Ingersoll, 58 N. Y. 29, 17 Am.
Rep. 178; People v. Fields, 58 N. Y. 491;
Santa Clara County v. Southern P. R. Co.
118 U. S. 394, 30 L. ed. 118, 6 Sup. Ct Rep.
aio
1132; Qloucester Ferry Co. t. Fenn^lvania,
114 U. a 196, 204, 29 L. ed. 158, 162, 1
Inters. Com. Rep. 382, 5 Sup. Ct Rep. 826;
Home Ins. Co. v. Morse, 20 Wall. 445, 455, 22
L. ed. 365, 369; Hunter v. Pittsburgh, 207
U. S. 161, 179, 52 L. ed. 151, 159, 28 Sup.
Ct. Rep. 40; People ex rel. Park Comrs. t.
Detroit, 28 Mich. 227, 15 Am. Rep. 202; 1
Dill. Mun. Corp. 5th ed. § 39; Albany Coun-
ty V. Hooker, 204 N. Y. 9, 97 N. E. 403,
Ann. Cas. 1913C, 663; South Carolina v.
United SUtes, 199 U. S. 437, 461, 50 L. ed.
261, 269, 26 Sup. Ct. Rep. 110, 4 Ann. Cas.
737; Brown v. Vinalhaven, 65 Me. 402, 20
Am. Rep. 709; Mead v. New Haven, 40
Conn. 72, 16 Am. Rep. 14; Petersburg v.
Applegarth, 28 Gratt. 343, 26 Am. Rep. 3.57 ;
Eastman v. Meredith, 36 N. H. 285, 72 Am.
Dec. 302; Western Sav. Fund Soc. v. Phila-
delphia, 31 Pa. 175, 72 Am. Dec. 730 : Rich-
mond County V. Ellis. 60 X. Y. 620: Ft
Edward v. Fish, 156 N. Y. 368, 50 N. S.
973; United States v. Baltimore ft O. R. Co.
17 Wall. 322, 332, 21 L. ed. 59'/, 601; Ke
Rapid Transit R. Comrs. 39? N. Y. 81, 36
L.R.A.(N.S.) 647, 90 N. E. 450, 18 Ann.
Cas. 366; Mt Pleasant v. Beck with, 100
U. S. 514, 524, 25 L. ed. 699, 701; Hunter
V. Pittsburgh, 207 U. S. 161, 179, 52 L.
ed. 151, 159, 28 Sup. Ct Rep. 40; New Or-
leans ▼. New Orleans Waterworks Co. 142
U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Rep
142; Allen v. Jay, 60 Me. 124, 11 Am. Rep.
185; Lowell v. Boston, 111 Mass. 454, 15
Am. Rep. 39.
The city owns the subway, and it is a
railroad corporation, so far as the oonstrue-
ticm, operation, and leasing thereof is con-
cerned.
Re Rapid Transit R. Comrs. 197 N. Y. 81,
36 L.R.A.(N.S.) 647, 90 N. E. 456, 18 Ann.
Cas. 366.
There are certain things which it is not
competent for state legislatures to do by
enactment, even if there should be found in
the Constitution of a state or of the United
States no special restrictions on their pow«r.
Calder v. Bull, 3 Dall. 386, I L. ed. 648;
Wilkinson v. Leland, 2 Pet. 627, 7 L. ed.
542; Smith v. AUbama, 124 U. S. 465, 31
L. ed. 508, 1 Inters. Com. Rep. 804, 8 Sup.
Ct. Rep. ^4; State ex rel. Atty. Gen. ▼.
Moores, 55 Neb. 480, 41 L.R.A. 624, 76 N.
W. 175 ; . Bradshaw v. Rodgers, 20 Johns.
103 ; Rathbone v. Wirth, 150 N. Y. 459, 34
L.R.A. 408, 45 N. E. 15; Camp v. Rogers, 44
Conn. 291; Bonham's Case, 8 Coke, 114a;
London v. Wood, 12 Mod. 669: Terrett v.
Taylor, 9 Cranch, 43, 3 L. ed. 650; People
ex rel. Darling v. Warden, 154 App. Div.
413, 139 N. Y. Supp. 277.
Under the principles recognized and es-
tablished by thia court and the courts of
many states^ the provisions of § 14, of the
239 U. S.
191S.
HEIM T. MoCALL.
labor law, prohiUtiiig tbe employment of
ilienSy and giving preference to citizens of
Kew York itate, in fubwaj construction or
other municipal work, are plainly in Tiola-
tioB of the United States Constitution above
rrferred to, both as regards the rights of
fhe municipality and those of individuals,
ispeeially taxpayers of the city, citizens ef
oUier states, and aliens residing in said
rtate, as well as contractors with the city.
Gulf, C. A S. F. R, Co. V. Ellis, 165 U.
8. 150, 150, 41 L. ed. 666, 660, 17 Sup. Ct.
Rep. 255; Yick We v. Hopkins, 118 U. 6.
S56, 360, 30 L. ed. 220, 226, 6 Sup. Ct Rep.
1064; Barbier v. Connolly, 113 U. S. 27, 28
L. ed. 923, 5 Sup. Ct. Rep. 357; Ward v.
ICa^rland, 12 Wall. 430, 20 L. ed. 452;
Stockton Laundry Case, 26 Fed. 611; United
SUtes V. Martin, 94 U. S. 400, 403, 24 L.
ed. 128; Butchers' Union S. H. ft L. S. L.
Go. V. Crescent City L. S. L. k S. H. Co.
Ill U. S. 746, 757, 28 L. ed. 585, 591, 4
Sup. Ct. Rep. 652; Connolly v. Union Sewer
Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22
Sop. Ct. Rep. 431 ; Missouri v. Lewis ( Bow-
nan V. Lewis) 101 U. S. 22, 31, 25 L. ed.
m, 992; Hayes v. Missouri, 120 U. S. 68,
71, 30 L. ed. 578, 580, 7 Sup. Ct. Rep. 350;
Bell's Gap R. Co. v. Pennsylvania, 134 U.
8. 237, 33 L. ed. 895, 10 Sup. Ct. Rep. 533 ;
Pearsons ▼. Portland, 69 Me. 278, 31 Am.
Rep. 276; Re Hburcio Parrott, 6 Sawy. 349,
1 Fed. 481 ; People ez rel. Rodgers v. Coler,
166 N. Y. 1, 52 L.R.A. 814, 82 Am. St. Rep.
60S, 59 N. £. 716; People ex rel. Cossey v.
Grout, 179 N. Y. 417, 72 N. E. 464, 1 Ann.
Cis. 39; Meyers v. New York, 58 App. Div.
6S4, 69 N. Y. Supp. 629; Re Jacobs, 98 N.
T. 98, 50 Am. Rep. 636; People v. Marx, 99
N. Y. 378, 52 Am. Rep. 34, 2 N. £. 29;
People ▼. Gillson, 109 N. Y. 389, 4 Am. St.
Hep. 465, 17 N. E. 343; Colon v. Lisk, 153
K. Y. 188, 60 Am. St. Rep. 609, 47 N. E.
302; People v. Hawkins, 157 N. Y. 1, 42
L.RA. 490, 68 Am. St. Rep. 736, 51 N. E.
267; People ex rel. Tyroler v. Warden, 157
N. Y. 116, 43 L.R.A. 264, 68 Am. St. Rep.
763, 61 N. E. 1006 ; Bertholf v. O'Reilly, 74
H. Y. 509, 30 Am. Rep. 323; People v.
Williams, 189 N. Y. 134, 12 L.R.A.(N.S.)
1130, 121 Am. St. Rep. 854, 81 N. E. 778;
People V. Orange County Road Oonstr. Co.
176 N. Y. 84, 65 L.R.A. 33, 67 N. E. 129 ;
State V. Goodwill, 33 W. Va. 179, 6 L.R.A.
^, 25 Am. St. Rep. 863, 10 S. E. 285 ; Ex
Ptrte Kuback, 85 Cal. 274, 9 L.R.A. 482,
^Am. St. Rep. 226, 24 Pac. 737; Ramsey
▼• People, 142 111. 380, 17 L.R.A. 853, 32
N. £.864: Com. v. Perry. 155 Mass. 117»
H LR.A. 325, 31 Am. St. Rep. 533, 28 N. E.
1126; SUte V. Loomis, 115 Mo. 307, 21
UUL 789, 22 S. W. 350; Godcharles v.
Wigeman, 118 Pa. 431, 6 Atl. 354; Frorer
▼. People, 141 UL 171, 16 L.RJL 492, 31
66L. ed.
N. E. 395; McChesney t. People, 200 HI.
146, 65 N. E. 626; Chicago v. Hulbert» 205
111. 346, 68 N. E. 786.
If the state, which has reserved the right
and power to amend, alter, or repeal the
charter of a private corporation, may not
legitimately exercise that power to destroy
rights acquired by virtue of the charter
granted, or which, by a legitimate use of
the powers granted, have become vested in
the corporation, how can it be contended
that the rights of the city of New York,
acquired by it under its ancient charters,
or those of a later date, and also under the
authority of the legislature, may be inter-
fered with by subsequent legislative enact-
ment?
Sinking Fund Cases, 99 U. S. 700, 720,
25 L. ed. 496, 502 ; Maine C. R. Co. v. Maine,
96 U. S. 510, 511, 24 L. ed. 840, 841; Com.
V. Essex Co. 13 Gray, 239; Miller v. New
York, 15 Wall. 498, 21 L. ed. 104; Pawlet
V. Clark, 9 Cranch, 292, 3 L. ed. 735; Ter-
rett V. Taylor, 9 Cranch, 43, 3 L. ed. 650;
Trustees of University v. Foy, 3 N. C. (2
Hayw.) 310; Pearsall v. Great Northern R.
Co. 161 U. S. 646, 40 L. ed. 838, 16 Sup.
Ct. Rep. 706.
Apart from the foregoing considerations,
S 14 of the labor law on its face applies to
contracts in existence at the time of its pas-
sage, as well as to contracts to be entered
into after its passage, and is therefore void.
Wynehamer v. People, 13 N. Y. 378;
People V. Orange County Road Constr. Co.
175 N. Y. 84. 65 L.RJ^.. 33, 67 N. E. 129;
Russell V. Sebastian, 233 U. S. 195, 58 L.
ed. 912, L.R.A.— , — , 34 Sup. Ct. Rep.
517, Ann. Cas. 1014C, 1282; Von Hoffman
V. Quincy, 4 Wall. 535, 18 L. ed. 403; St.
Louis V. Western U. Teleg. Co. 148 U. S.
92, 37 L. ed. 380, 13 Sup. Ct. Rep. 485;
New Orleans v. Southern Teleph. k Tcleg.
Co. 40 La. Ann. 41, 8 Am. St. Rep. 502, 3
So. 533; Grand Trunk Western R. Co. v.
South Bend, 227 U. S. 544, 57 L. ed. 633,
44 L.R.A.(N.S.) 405, 33 Sup. Ct. Rep. 303;
Miller v. New York, 15 Wall. 498, 21 L.
ed. 104; Pearsall v. Great Northern R. Co.
161 U. S. 646, 40 L. ed. 838, 16 Sup. Ct.
Rep. 705; Thomas v. West Jersey R. Co.
101 U. S. 71, 25 L. ed. 950.
The principles of natural justice are the
principles determining what is and what is
not due process of law within the 14th
Amendment.
Camp V. Rogers, 44 Conn. 297; Hurtado
V. California, 110 U. S. 516, 28 L. ed. 232,
4 Sup. Ct. Rep. Ill, 292; Bank of Columbia
V. Okely, 4 Wheat. 235-244, 4 L. ed. 559-
561; Brown v. Levee Comrs. 50 Miss. 468;
Citiaras' Sav. k L. Asso. v. Top^a, 20 Wall.
655-662, 22 L. ed. 455-461 ; Reich v. Truax,
219 Fed. 273.
SUPREME COURT OF THE UNITED STATES.
Cot. Tebic,
Privileges and immunities of citizens in
the sereral states are denied by the pref-
erence granted citizens of the state of New
York by the labor law.
Slaughter-House Cases, 16 Wall. 36, 75,
21 L. ed. 304, 408 ; Paul v. Virginia, 8 Wall.
168, 180, 19 L. ed. 357, 360; Lemmon v.
People, 20 N. Y. 608; Ward v. Maryland,
12 Wall. 418, 20 L. ed. 440.
Section 14 of the labor law in question,
prohibiting the employment of alien labor,
is in conflict with the provisions of the
treaties now existing between many foreign
nations and the United States, and is there-
fore void.
Society for Propagation of the €k>spel v.
New Haven, 8 Wheat. 464, 6 L. ed. 662;
United States v. Rauscher, 119 U. S. 407,
30 L. ed. 425, 1 Sup. Ct. Rep. 234, 6 Am.
Crim. Rep. 222; Foster v. Neilson, 2 Pet.
253, 314, 7 L. ed. 415, 435; Head Money
Cases (Edye v. Robertson) 112 U. S. 580,
598, 28 L. ed. 798, 803, 5 Sup. Ct. Rep. 247 ;
6 Moore, Int. Law Dig. p. 566; Baldwin v.
Franks, 120 U. S. 678, 682, 683, 30 L. ed.
766-768, 7 Sup. Ct. Rep. 666, 763; Yick
Wo V. Hopkins, 118 U. S. 356, 30 L. ed. 220,
6 Sup. Ct. Rep. 1064; Hauenstein v. Lyn-
ham, 100 U. S. 483, 25 L. ed. 628; Geofroy
V. Riggs, 133 U. S. 258, 33 L. ed. 642, 10
Sup. Ct. Rep. 295; Re Tiburcio Parrott, 6
Sawy. 349, 1 Fed. 481; Baker v. Portland,
6 Sawyer, 666, Fed. Cas. No. 777; Live-
stock Dealers k Butchers' Asso. v. Crescent
City L. S. L. & S. H. Co. 1 Abb. (U. S.)
389, Fed. Cas. No. 8,408; Bobbins v. Taxing
Dist. 120 U. S. 489, 493, 30 L. ed. 694, 695,
1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592;
Rutgers v. Waddington (N. Y.) decided in
Mayor's Ct. 1784; Dufour's Succession, 10
La. Ann. 391; Yeaker v. Yeaker, 4 Met.
(Ky.) 33, 81 Am. Dec. 530; Amat's Sue
cession, 18 La. Ann. 403; Crusius's Succes-
sion, 19 La. Ann. 369; Wunderle v. Wun-
derle, 144 111. 40, 19 L.R.A. 84, 33 N. E.
195; Opel v. Shoup, 100 Iowa, 407, 37 L.B.A.
683, 69 N. W. 560; Rabasse's Succession, 47
La. Ann. 1454, 49 Am. St. Rep. 433, 17 So.
867; Rixner's Succession, 48 La. Ann. 5.53,
32 L.R.A. 177, 19 So. 697; Tellefsen v. Fee,
168 Mass. 188, 45 L.R.A. 481, 60 Am. St.
Rep. 379, 46 N. E. 562; Bahaud v. Bize,
105 Fed. 485; Doe ex dem. Dockstader v.
Roe, 4 Penn. (Del.) 398, 66 Atl. 341; Leh-
man V. State, 46 Ind. App. 330, 88 N. £.
366; Re Stixrud, 68 Wash. 339, 33 L.R.A.
(N.S.) 632, 109 Pac. 343, Ann. Cas. 1912 A,
860; People ex rel. Atty. Gen. v. Gerke, 6
Cal. 381; Blythe v. Hinckley, 127 Cal. 431,
69 Pac. 787; Wilcke v. Wilcke, 102 Iowa,
174, 71 N. W. 201.
This court Is not concluded by any con-
■truction put upon | 14 of the labor law
SIS
by the New York court of appeals In tho
decision of this case.
Jefferson Branch Bank v. Skelly, 1 Black,
436, 443, 17 L. ed. 173, 177; Wright t.
Nagle, 101 U. S. 791, 25 L. ed. 921; Hli-
nois C. R. Co. v. Chicago, 176 U. S. 646,
44 L. ed. 622, 20 Sup. Ct. Rep. 609; Swift
V. Tyson, 16 Pet. 1, 19, 10 L. ed. 865, 871;
Russell V. Southard, 12 How. 139, 147, 13
L. ed. 927, 930; Watson v. Tarpley, 18 How.
617, 620, 15 L. ed. 609, 611; Chicago v.
Robbins, 2 Black, 418, 17 L. ed. 298; Butz
V. Muscatine, 8 Wall. 676, 19 L. ed. 490;
Olcott V. Fond du Lac County, 16 Wall. 678,
21 L. ed. 382; Boyce v. Tabb, 18 Wall. 546,
21 L. ed. 757; Gates v. First Nat. Bank,
100 U. S. 230, 246, 26 L. ed. 680, 683;
Brooklyn City & N. R. Co. v. National Bank,
102 U. S. 14, 26 L. ed. 61; Burgess v. Selig-
man, 107 U. S. 20, 27 L. ed. 359, 2 Sup. Ct.
Rep. 10; Pana v. Bowler, 107 U. S. 529,
27 L. ed. 424, 2 Sup. Ct. Rep. 704; Fall-
brook Irrig. Dist. v. Bradley, 164 U. S. 112,
160, 41 L. ed. 369, 389, 17 Sup. Ct. Rep.
66; Clark v. Nash, 198 U. S. 361, 369, 49
L. ed. 1086, 26 Sup. Ct. Rep. 676, 4 Ann.
Cas. 1171; Hairston v. Danville k W. R.
Co. 208 U. S. 598, 607, 52 L. ed. 637, 641,
28 Sup. Ct. Rep. 331, 13 Ann. Cas. 1008;
Union Lime Co. v. Chicago k N. W. R. Co.
233 U. S. 211, 68 L. ed. 924, 34 Sup. Ct.
Rep. 622.
Every question which was before the state
court is before this court, except the ques-
tion as to the conflict of § 14 of the labor
law with the provisions of the Constitution
of the state of New York.
Martin v. Hunter, 1 Wheat. 304, 4 L. ed.
97 ; Tennessee v. Davis, 100 U. S. 257, 26 L.
ed. 648.
Even if § 14 of the labor law be held con*
stitutional, it does not apply to labor em-
ployed in the performance of the subway
contracts in question for the following rea-
sons:
(a) They are not the character of "pub-
lic*' contracts mentioned in { 14.
Lloyd V. New York, 6 N. Y. 369, 56 Am.
Dec. 347; Re Rapid Transit R. Comrs. 197
N. Y. 81, 36 L.R.A.(N.S.) 647, 90 N. E.
456, 18 Ann. Cas. 366; Sutherland, Stat.
Constr. § 380.
(b) Even if they were, the section must
be deemed to be repealed or superseded by
the rapid transit act and its amendments.
Schieffelin v. McClellan, 136 App. Dir.
665, 120 N. Y. Supp. 216; Heckmann ▼.
Pinkney, 81 N. Y. 211; Excelsior Petroleum
Co. v. Lacey, 63 N. Y. 422; People v. Gold
& Stock Teleg. Co. 98 N. Y. 67; New York
Cable Co. v. New York, 104 N. Y. 16, 10
N. £. 332; Woods v. Madison County, 136
N. Y. 403, 32 N. E. 1011; Ackerson v. Nlag-
289 U. S.
ItlB. BBIU T. MoCALX.
trk Conn^ 7S Hon, SIB, Sfi N. Y. Supp. 73, 3S L. cd. M3, 048, 12 Snp. Ct. Hep, Hi;
JM; CoolBj, CoDrt. Urn. 7th ed. p. 256. EUtthbona t. Wirth, 160 N. Y. 4S9, 34 LJIA
(c) If the labor Uw ever did ipply, the 108, 45 N. E. 16; Gage ». New York, 110
dty wM eetopped (rom invoking it, OT lU App. Dit. 403, »7 N. Y. Supp. 167; Ziegler
ririit to do «o had been waited. r. Chapin, 126 N. Y. 342. 27 N. E. 47]i
Re Reynolda, 202 N. Y. 430, 96 N. E. Warrin v. Baldwin, 100 N. Y. 634, 12 N.
« 416; KJernan t. Dutchew County MuL E. 49; Hlcke v. Eggleeto". IM ApP- Wt.
Ini. Co. 150 N. Y. 100, 44 N. E. 608 ; Draper 73, 93 N. Y. Supp. 009 ; Peck *. Belknap,
». Oewego County Fire Belief Awo. 190 N. 130 N. Y. 394, 29 N. E. 977; Hopper v. WU-
T 12, 82 N. E. 765; Clark v. Wert, 193 N. cox, 166 App. Div. 213, 140 N. Y. Supp,
T. 349, 86 N. E. 1. 277 1 Brill v. Miller. 140 App. Div. 802,
The'eovenaDt in the coDHtruetion con- 128 N. Y. Jupp. 866; Davenport v. Walker,
tncta to comply with | 14 of the Ubor Uw 57 App. Div. 221. 68 N. Y. Supp. 161;
It not binding on the eontractora if the Rogeri v. Weitcheater County, 77 App. Div.
hw itaelf ie invalid becauae it conflicta 601, 78 N, Y, Supp. 1081; Wenk v. New
with the Constitution or with treaty pro- York, 171 N. Y. 607. 64 N. E. 609; Perkina
finoni. V. Stimmel, 114 N. Y. 38B, 11 Am. St.
People ex rel. Rodger* v, Coler, 166 N. Rep. 669, 21 N. B. 729.
Y. 1, 62 L.R.A. 814, 82 Am. St. Rep. 606, y^ j^,, p McKinney filed a brief for
» N. E. 716; People ex reL North v. pi^i^tiffa in error the Cranford Company
Featheratonhaugh, 172 N. Y. 112, 60 L.R-A. j;„j y,g piinn-O'Rourke Company:
T»e, 64 N. E. 802; Knowlea v. New York. ^^;,j, y,^ ,, „l the aUke conatitute
lie N. Y. 430, 68 N. E. 860; Meyers v. y,^ ^j^_ ^^f^^ membera ate itt citi«eni
Kew York. 68 App. Div. 634, 69 N. Y. Bupp. (p^nhallow v. Doane, 3 Dall. 64, 93, 1 L.
S»i Home Ina. Co. v. Morae, 20 Wall. 443, ^ ^qj^ ggj. -j-^^ ^ wi,it,_ j ^Vail. 700,
M L. ed. 366; CleveUnd v. Clementa Broe. ^g ^ ^ 227; United SUtee v. Cruikahank,
Cenatr. Co. 67 Ohio St. 197, 59 L.H.A, 776, 92 u 8 642, 23 L. ed. 688), and while
13 Am. St. Bep. 670. 66 N. E. BBS. ^^^^^ ,„ not conatituenta of Buch member-
V the rtipuUtion in the contract to com- ^j the control o( the sUte over the prop-
ply with the provieione of | 14 of the laboi ,^ ^j jj, citizene U by no meana abtolutfc
Uw, that ia, to employ no alicne, and to -n, ^^ ^j taxation, which baa been
prefer anjong laborers thoae who are citr ^^^^^ to be the very eaaence of the governing:
•Ml of the etate of New York, be considered „_ j, „„t unlimited.
without regard to the terms of t 1* ot tht Citiieni' Sav. k L. AbM). t. Topdta, 2I>
labor Uw, requiring the ineertion of th« ^.^n ^^^ gg L. ed. 456.
Kipulation. and be considered merely aa ■ jj^^ , „( tb^ ,t«U over the pobUc
Itipulation inserted by the eity on its ow« p„pa.ty i« no more ab«>lute. A preaent
authority, it ia manlfcrtly invalid, not only i^gi,ti,e body cannot abdicaU Ito ao-
to aU the reaami* set forth above witb t^ority. nor forecloae a succeeding legiala-
r^ard to | 14 of the labor law, aa a li«is t„^, j^^ ^^100 In the same matter, nor
Utive enactment in violation of the Con ^^ y,^ ^te permanently relinquish the
rtitution. but for the further reason that tniel vested in it to control and manage the
tt IS againat public policy, and in rertrainl ,,1;^ property.
d trade and competition, and prevents fre« minois C. R. Co. v. Illboia, 146 U. S.
■od unreatrieted bidding upon mnnieipal 3^^^ gg ^ ed. 1018, 13 Sup. Ct. Rep. 110.
"j;'* „, „ , ^ _, Nor can the state recall powers vested In
Davenport v. Walker, 67 App. Div. 221 , municipality in such a way aa to impair
•8 N. \. Snpp. 1«1: People ei rel. Johr y,, obligation of contraeta.
Single Paper Co. v. Edgcomb, 112 App. Div Williams v. Eggleaton, 170 U. 8. 304,
»4, 08 N. Y. Supp. 966; Inge v. Publi< ^g l. ed. 1047, 18 Sup. Ct. Rep. 617; 1
Works, 136 Ala. 187. 03 Am. St. Rep. 20; j,iH. Mun. Corp. 6th ed. g§ 108-111. 113-
31 80. 678; McChesney v. People, 200 111 ^jg n^no, 132; People ex rei. URoy v.
146, 65 N. E. 626; Sweet v. People, 200 III Hurlbut. 24 Mich. 103; SUU ex rel. B^rd
BB. 65 N. E. 1004: Glover v. People. 201 ^, Education v. Haben, 22 Wis. 660; Mt
IH^646, 66 N. E. 820; Chicago v. Hulbert Hope Cemetery v. Bceton. 168 Ma«i. 6O0.
BK III. 846, flB N. E. 786. 35 ^^ g^^ ^^ gi5_ 33 jj g jgg. yY^^b
An aetion may be maintaioed by a tax ,,. jjew York, 64 How. Pr. 10.
payer to enjoin an official, or threaUned The state* have voluntarily, deliberat^y,
etteial, act, upon the ground of illegality tni irrevocably given up for the oommon
simply, or ta enjoin an official act which national advantage certain attributea of
will result in waate or injury to tint public sovereignty, and have vested in the national
Admiral Realty Co. v. New York. fiOt legislative body and iU executive certain
N. Y. 110, 90 N. E. 241; New Orleans v powers of action which preclude the exercise
Vew Orleana Waterworks Co. 142 U. S. 79, of slBllar powers in the aUtea, sod at Um
M L. «d. *V»
SUPREME COURT OF THE UNITED STATES. Oct. Tfeuc,
same time have solemnly covenated that any N. E. 395; McChesney ▼. People, 200 UL
state action conflicting with such ceded 146, 65 N. £. 626; Chicago t. Hulbert, 206
powers sliall be null and void. 111. 346, 68 N. E. 786.
Penhallow t. Doane, 3 Dall. 54, 1 L. ed. Section 14 of the labor law also Tiolates
507; Texas ▼. White, 7 WalL 720, 10 L. treaties duly entered into by the United
ed. 236; United States v. Cruikshank, 92 U. States government with foreign nations, and
S. 542, 23 L. ed. 588; Chae Chan Ping t. § 1977, Rev. SUt. (Comp. Stat. 1918, |
United States, 130 U. S. 581, 32 L. ed. 1068, 3925).
9 Sup. Ct. Rep. 623; Gibbons v. Ogden, 9 38 Cyc. 906; Penhallow ▼. Doane, 3 DalL
Wheat. 1, 6 L. ed. 23; Cohen v. Virginia, 54, 1 L. ed. 507; Chae Chan Ping v. United
6 Wheat. 264, 5 L. ed. 257. States, 130 U. S. 581, 32 L. ed. 1068, 9 Sup.
Authority for this law does not lie in Ct. Rep. 623; Head Money Cases (Edye v.
the police power. Robertson) 112 U. S. 580, 28 L. ed. 798,
Henderson v. New York (Henderson v. 5 Sup. Ct. Rep. 247; Hauenstein v. Lyn-
Wickham) 92 U. S. 259, 23 L. ed. 543; New ham, 100 U. S. 487, 25 L. ed. 629; Re Ti-
Orleana Gaslight Co. v. Louisiana Light, burcio Parrott, 6 Sawy. 349, 1 Fed. 481;
ft H. P. ft Mfg. Co. 115 U. S. 650, 29 L. United States v. Rauscher, 119 U. S. 407,
ed. 516, 6 Sup. Ct. Rep. 252; Holden v. 30 L. ed. 425, 7 Sup. Ct. Rep. 234, 6 Am.
Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Crim. Rep. 222; Baker v. Portland, 5 Sawy.
Sup. Ct. Rep. 383; Jacobson v. Massachu- 566, Fed. Cas. No. 777.
setts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. The constitutional protection of liberty
Ct. Rep. 358, 3 Ann. Cas. 765; Lochner v. and property includes the right to labor at
New York, 198 U. S. 45, 49 L. ed. 937, 25 any chosen lawful occupation.
Sup. Ct. Rep. 539, 3 Ann. Cas. 1133. Coppage v. Kansas, 236 U. S. 1, 59 L.
The distinction between citizens and ed. 441, L.H.A.1915C, 960, 35 Sup. Ct. Rep.
aliens is insufficient to justify the act. 240; Lochner v. New York, 198 U. S. 46,
Yick Wo V. Hopkins, 118 U. S. 356, 30 49 L. ed. 937, 25 Sup. Ct. Rep. 539; Smith
L. ed. 220, 6 Sup. Ct. Rep. 1064. v. Texas, 233 U. S. 630, 58 L. ed. 1129,
Section 14 of the labor law violates the L.RJ1.1915D, 677, 34 Sup. Ct. Rop. 681,
14th Amendment of the Constitution of the Ann. Cas. 1915D, 420; Southern R. Co. v.
United States, reinforced as it is by § 1977, Greene, 216 U. S. 400, 54 L. ed. 536, 30
Rev. Stat. (Comp. Stat. 1913, g 3925). Sup. Ct. Rep. 287, 17 Ann. Cas. 1247; AU-
Lem Moon Sing v. United States, 158 geyer v. Louisiana, 165 U. S. 578, 41 L.
U. S. 538, 39 L. ed. 1082, 15 Sup. Ct Rep. ed. 832, 17 Sup. Ct. Rep. 427 ; Butchers'
967 ; Yick Wo v. Hopkins, 118 U. S. 356, Union S. H. ft L. S. L. Co. v. Crescent City
30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Freund, L. S. L. & S. H. Co. Ill U. S. 746, 28 L.
Pol. Power, S§ 705, 706 ; Connolly v. Union ed. 585, 4 Sup. Ct. Rep 652.
Sewer Pipe Co. 184 U. S. 540, 46 L. ed. ^^ George 8. Coleman argued the
rl^L ^} l^^: ^,.^P;T*i^' c^o"""^.,^)"^ r ca^w wid fil^d a brief for defendants in er-
United States, 163 U. S. 228, 41 L. ed. ^^^.
«^?'J^/?J5; ^o:^''^: ^^iL^"" ^^W^'T^' S«5^o« 1* of the Ubor Uw of the sUte
l^l ^^'r^^'.^^fo^ ^^ Davenport, 22 How. ^^ j^^^ York, in providing that only citirens
227, 16 L. ed. 243; Re Baldwin 27 Fed. ^, ^^^ United States shall be employed in
187; Second Employers' Liability Cases ^y^^ construction of public works by tha
i^^^T^^^a \' ^l^T ^^\o'r' ?o t ^'a^V^q ! »*»*« «»• » municipality, or by persons coii-
223 U. S. 1, 66 L. ed. 327, 38 L.R.A.(N.S.) tr^ctinff with the state or such municipality.
44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; ^^ ^"^ ^j^^j ^i^,^^ ^^^^ ^^ ^^^{^
M'Culloch V. Maryland 4 Wheat. 316, 405, ^^^.^^ ^, ^^ ,^^ ^^ Constitution of tha
T ^f*«^3®^ri^^*,o^''"^''u *'*"''''i^^ United States, or treaties with foreign coun-
L.R.A. 277, 49 Fed. 181; Workman v. New ^.^ ^
York, 179 U. S. 552, 45 L. ed. 314, 21 Sup. p^pj^ ^^ ^^ ^^ ^ I^^p^^ 15 ^ Y.
Ct. Rep. 212; People v. King 110 N. Y. 543. p^pj^ ^ ^^j Williams Engineering
418, 1 L.R.A. 293, 6 Am. St. Rep. 389, 18 ^ Contracting Co. v. Mets, 193 N. Y. 160.
N. E. 245; People ex rel. Tyroler v. Warden, ^ l.rj^.(N.S.) 201, 85 N. E. 1070; People
i^^ ^'-J^'.i^S; ^i ^a;^\?^; ^^^'!J*Q xV ▼• I- M. Ludlngton's sons, 74 Misc. 364,
l^^J^h^l ^if- Z' ^Pnfr^' T^ • 131 N. Y. Supp 550, 32 C^c 1261; AtWn
Y. 98, 50 Am. Rep. 636; Butchers' Union Tr«n— loi it r 907 99^ aa t ^
S. H. ft L. S. L. Co. V. Crescent City L. S. [.^^^^.^^l^^^ ^S U ed.
L. ft S. H. Co. Ill U. S. 746, 28 L. ed. 1*®' ^^^' ^^ ^"P- ^' ^^' ^^
686, 4 Sup. Ct. Rep. 652 ; People v. Hawkins, The alleged inabiUty of the contractora
157 N. Y. 1, 42 L.R.A. 490, 68 Am. St. Rep. ^ »«««'« » sufficient number of citizen U-
736, 51 N. E. 257 ; People v. Marx, 99 N. borers able and wiUing to do the work re-
Y. 377, 52 Am. Rep. 34, 2 N. E. 29; Frorer quired does not excuse a violation of the
V. People, 141 Ul. 171, 16 hJRJL 402, 31 law.
^J^ 8S9 V. 8.
1915.
HEIM ▼. McCALL.
180-189
People ex rel. Williama Engineering ft
Contracting Co. t. Mets, 103 N. Y. 159, 24
L.RJL(NJS.) 201, 86 N. E. 1070.
The provisions of the labor law are ap-
plicable to the work of building subways for
the Rapid Transit system in the city of
New York.
Blank ▼. Kearny, 44 App. Diy. 502, 61
N. Y. Supp. 79; SUte v. Butler, 178 Mo.
317, 77 S. W. 560.
After slating the ease as above, Mr.
Justice McKcnna delivered the opinion of
the court:
There seems to have been no question
raised aa to the right of Heim to maintain
the suit, although he ia not one of the con-
tactors nor a laborer of* the excluded na-
ticmality or citizenship. The appellate divi-
sion felt that there might be objection to the
ri^t, under the holding of a [187] cited
caae. The court of appeals, however, made
no comment, and we must— certainly may-
assume that Heim had a right of suit; and,
so assuming, we pass to the merits.
The supreme court put its decision upon
the power of the state "to provide what la-
borers shall be employed upon public works,"
and that "the state has the same right in
conducting its business that an individual
has," and had, therefore, "a perfect right to
enact § 14 of the labor law, and it does not
violate any rights of an alien under existing
treaties."
The appellate division of the court, how-
ever, was of opinion that the law could not
be sustained upon such consideration, and
saw in it such flagrant discrimination aa to
be offensive to the 14th Amendment to the
Constitution of the United States; and, so
concluding, the court considered it unneces-
sary to discuss the effect of treaties.
The court also passed, without absolute
decision, the question whether the labor law
applies to the work of building subways for
the Rapid Transit in the city of New York.
It was, however, stated in the opinion of
the court that, in view of the language in a
eited case, there was "much ground for say-
ing that even if the state could lawfully im-
pose the test of citizenship upon employees
ol its own contractors, and the contractors
with the city engaged in what is properly
state work, it has no more power to impose
such test upon persons employed in build-
ing a subway for the city than it would have
if the subways were being constructed by a
private corporatjpn or individual." [165
App. Div. 460, 150 N. Y. Supp. 933.]
Two members of the court were clear
that the state had no such power, and con-
curred besides with the majority in holding
that the labor law was "a violation of both
the Federal and state Constitutions."
•0 L. ed.
The oourt of appeals reversed the action
of the appellate division.
[188] The basic principle of the decision
of the oourt of appeals was that the state ia
a recognized unit, and those who are not
citizens of it are not members of it. Thus
recognized it aa a body corporate^ and, "like
any other body corporate, i^ may enter into
contracts and hold and dispose of property.
In doing this, it acts through agencies of
government. These agencies, when contract-
ing for the state, or expending the state's
moneys, are trustees for the .people of the
sUte (lUinoU v. Illinois C. R. Co. 146 U. S.
387, 36 L. ed. 1018, 13 Sup. Ct. R^. 110).
It is the people, •. e., the members of the
state, who are contracting or expending
their own moneys through agencies of their
own creation." [People v. Crane, 214 N. Y.
160, L.ILA.191&D, 550, 108 N. £. 427, Ann.
Cas. 1915B, 1254.] And it was hence decid-
ed that in the control of such agencies
and the expenditure of such moneys it
could prefer its own citizens to aliens
without incurring the condenmation of
the national or the state Constitution.
"The statute is nothing more," said Chief
Judge Bartlett, concurring in the judgment
of the court, "in effect than a resolve by an
employer as to the character of his emplqy-
»
ees.
Notwithstanding the simplicity of the de-
termining principle pronounced by the court
of appeals, its decision is attacked in many
and voluminous briefs.
The fundamental proposition of plaintiff
in error Heim is that, assuming that S 1^
applies to the subway construction con-
tracts in question, it (the law) contravenes
the provisions of the Constitution of the
United States (a) in that it violates the cor-
porate rights of the city and the rights of
its residents and taxpayers, (b) the rights
of the various subway contractors with the
city, (c) the rights of aliens and citizens of
other states resident in New York, and (d)
it is in violation of treaty rights.
Plaintiffs in error Cr an ford Company and
Flinn-CRourke Company were made defend-
ants upon their motion at the argument for
injunction. In the appellate division they,
their counsel say, "neither assenting to nor
denying the special allegations, doubtless
urged by complainant's [180] counsel, • • •
urged the single ground of the unconstitu-
tionality of the law and its violation of
treaties." And these ground are again
urged.
To sustain the charge of unconstitution-
ality the 14th Amendment is adduced and
the specification is that the law abridges the
privileges and immunities of the contractors
and those of their alien employees in depriv-
ing them of their right ol contracting for
180-191
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
labor, and that the state of New York, by
enacting and enforcing the law, deprives
employers and employees of liberty and
property without due process of law, and
denies to both the equal protection of the
law.
The treaty that it is urged to be violated
is that with Italy, which, it is contended,
''put aliens within the state of New York
upon an equality with citizens of the state
with respect to the right to labor upon pub-
lie works;" and that Congress has forti-
fied the treaty by § 1977 of the Revised
SUtutes (Comp. Stat. 1013, % 3025),— a
part of the civil rights legislation.
The application of the law to the subway
contracts, and whatever its effect and to
what extent it affects the corporate rights
of the city or of the subway contractorSi
are local questions ( Stewart v. Kansas City,
decided November 1, 1016 [239 U. S. 14,
ante, 120, 36 Sup. Ct. Rep. 15] ), and have
in effect been decided adversely to plaintiffs
in error by the court of appeals. The prin-
ciple of its decision was, as we have seen,
that the law expressed a condition to be
observed in the construction of public
works; and this necessarily involved the
application of § 14 to subway construction
and the subordinate relation in which the
city stood to the state. Therefore, the con-
tention of plaintiffs in error that the rapid
transit lines have given the city rights su-
perior to the control of the state, so far as
the law in question is concerned, has met
with adverse decision. Whatever of local
law or considerations are involved in the
decision we are bound by; whatever of de-
pendence the decision has in the general
power of a [100] state over its municipali-
ties has support in many cases. We have
recently decided the power exists, and we
may be excused from further discussion of
it. Stewart t. Kansas City, supra.
With the rejection of the asserted rights
of the city must go the asserted rights of
residents and taxpayers therein and the
rights of subway contractors, so far as they
depend upon the asserted freedom of the city
from the control of the state.
The claim of a right in the city of such
freedom is peculiar. The state created a
scheme of rapid transit, constituted officers
and invested them with powers to execute
the scheme, yet, the contention is that
scheme, officers, and powers have become in
some way in their exercise and effect supe-
rior to the state law; or, according to the
explicit contention (we say explicit conten-
tion, but it is rather a conclusion from an
elaborate argument and much citation of
cases), that the city's action in r^ard to
the subway ia proprietary in character, and,
being such, the city can assert rights against
sie
the state, and that individual rights have
accrued to residents of the city of which
the city is the trustee, and which "are to in-
terwoven and bound up with the rapid tran-
sit system as to be 'beyond the control of tha
state.'" Counsel have not given us a sure
test of when action by a city is government-
al and when proprietary. We need not at-
tempt a characterization. If it be granted
that the city acted in the present ease in a
proprietary character and has secured pro-
prietary rights, to what confusion are we
brought ! A taxpayer of the city, invoking
the rights of the city, asserts against the
control by the state of the proprietary ac-
tion of the city the protection of the 14th
Amendment, and then against the proprie-
tary action of th^ city that Amendment is
urged in favor of the contractors with the
city, and their exemption from the perform-
ance of their contracts declared. There
seems to be a jumble of rights. [101] If
the city is not an agent of the state (it la
contended the city is not), but a private
proprietor (it is contended the city is), it
would seem as if it has the rights and pow-
ers of such a proprietor, and, as such, may
make what contracts please it, including or
excluding alien laborers.
But upon these suppositions we need not
dwell. It is clear it is with the state law
and the city's execution of it as agent of the
state that we must deal, and only on the
assumption that the state law has been held
to apply by the court of appeals, and, by a
consideration of the power to enact it, de-
termine the contentions of all of the plain-
tiffs in error.
The contentions of plaintiffs in error un-
der the Constitution of the United States
and the arguments advanced to support
them were at one time formidable in dis-
cussion and decision. We can now answer
them by authority. They were considered
in Atkin v. Kansas, 101 U. S. 207, 48 L.
ed. 148, 24 Sup. Ct. Rep.' 124. It was there
declared, and it was the principle of deci-
sion, that "it belongs to the state, as the
guardian and trustee for its people, and
having control of its affairs, to prescribe the
conditions upon which it will permit publie
work to be done on its behalf, or on behalf
of its municipalities." And it was said:
"No court has authority to review its ac-
tion in that respect. Regulations on this
subject suggest only considerations of pub-
lic policy. And with such considerations
the courts have no concern."
This was the principle declared and ap-
plied by the court of appeals in the deci-
sion of the present case. Does the instance
of the case justify the application of the
principle T In Atkin v. Kansas the law
attacked and sustained prescribed the hours
289 V. 8.
1915. HEIM ▼. MoCALL. 191-194
(8) which should constitute a day's work which are based on the 14th Amendment,
for thoae employed by or on behalf of the cannot be sustained.
itate, or by or on behalf of any of its sub- Are plaintiffs in error any better off under
diyisiona. The 14th Amendment was assert- the treaty provision which they invoke in
ed against the law ; indeed, there is not a their bill T The treaty with Italy is the one
ootttention made in this case that was not especially applicable, for the aliens em-
made in that. Immunity of municipal cor- ployed are subjects of the King of Italy.
porations from legislative [102] inter fer- By that treaty (1871) it is provided :
ence in their property and private contracts "The citizens of each of the high con-
was contended for there (as here) ; also that tracting parties shall have liberty to travel
employees of contractors were not employ- in the states and territories of the other, to
ees of cities. It was contended there (as carry on trade, wholesale and retail, to
here) that the capacity in which the city hire and occupy houses and warehouses,
acted, whether public or private, was a ques- to employ agents of their choice, and gen-
ti<m of general law not dependent upon erally to do anything incident to, or neces-
local considerations or statutes, and that sary for trade, upon the same terms as the
this court was not bound by the decision natives of the country, submitting them-
of the state court. And there (as here) selves to the laws there established. The
was asserted a right to contest the law, citizens of each of the high contracting
though the contracts were made subsequent parties shall receive, in the states and ter-
to and apparently subject to it, upon the ritories of the other, the most constant pro-
ground that they were entered into under tection and security for their persons and
the belief that the law was void. Finally property, and shall enjoy in this respect the
the ultimate contention there was (as it is same rights and privileges as are, or shall
here) that the liberty of contract assured be, granted to the natives, on their submit-
by the 14th Amendment was infringed by ting themselves to the conditions imposed
the law. In all particulars except one the upon the natives." [17 Stat, at L. 846.]
ease was the prototype of this. There There were slight modifications of these
the hours of labor were prescribed; here the provisions in the treaty of 1913, as follows:
kbd of laborers to be employed. The one is That "the citizens of each of the high con-
is much of the essence of the right regulated tracting parties shall receive, in the states
is the other, that is, the same elements are ^nd territories of the other, the most con-
in both cases, — ^the right of the individual stant security and protection for their per-
employer and employee to contract as they sons and property and for their rights
ihall see fit; the relation of the sUte to the • • •" [38 Stat, at L. 1670.]
matter regulated; that is, the public charac- Construing the provision of 1871, the court
ter of the work. of appeals decided that it "does not limit
The power of regulation was decided to ex- the power of the state, as a proprietor, to
ist whether a state undertook a public work control the construction of its own works
itself or whether it "invested one of its gov- And the distribution of its own moneys."
ernmental agencies with power to care" for The conclusion [104] is inevitable, we
the work, which, it was said, "whether done think, from the principles we have an-
by the state directly or by one of its in- nounced. We need not follow counsel in dis-
•trumentalities," was "of a public, not pri- sertation upon the treaty-making power or
vtte, character." And, being of public char- the obligations of treaties when made. The
tcter, it (the law — ^the Kansas statute) did present case is concerned with construction,
not "infringe the liberty of anyone." The i^ot power ; and we have precedents to guide
declaration was emphasized. "It cannot be construction. The treaty with Italy was
deemed," it was said, "a part of the liberty considered in Patsone v. Pennsylvania, 232
of any contractor that he be allowed to do ^' ^' ^^^' ^^^» ^^ ^- ^^' ^^^' ^^*» ^^ ®^P-
public work in any mode he may choose to ^\ Rep. 281, and a convention with Switz-
wiopt, without regard to the wishes of the ^'^^"^ <*" in the present case) which
^.4^.M A^A ^u«J»-^i 'i. -J / was supposed to become a part of it.
rtate." And obversely t was said (as we j^ ^^Z\d that a law of Pennsylvania
have already quoted): "On the contrary. ,t ^^^ing it unlawful for unnaturalized
belongs to the state, as the guaydian of its foreign-born residents to kill game, and
people, and [103] having control of iU af- to that end making the possession of shot-
ftirs, to prescribe the conditions [italics guns and rifles unlawful, did not violate the
ours] upon which it will permit public work treaty. Adopting the declaration of the
to be done on its behalf, or on behalf of its court below, it was said "that the equality
municipalities." See also Ellis v. United of rights that the treaty assures is equality
States, 206 U. S. 246, 51 L. ed. 1047, 27 only in respect of protection and security
Sup. Ct. Rep. 600, 11 Ann. Cas. 580. The for persons and property." And the ruling
eontentions of plaintiffs in error« therefor^ was given point by a citation ol the power
•0 li. ed. 117
194, 195
8UFKBME COURT OF THE UNITED STATES.
Oor.
of the state over its wild game, which might
be preserred for its own citizens. In other
words, the ruling was given point by the
special power of the state orer the subject-
matter, — a power which exists in the case
at bar, as we have seen.
From these premises we conclude that the
labor law of New York and its threatened
enforcement do not violate the 14th Amend-
ment or the rights of plaintiffs in error
thereunder, nor under the provisions of the
treaty with Italy.
Judgment affirmed.
[106] CLARENCE A. CRANE, Plff. in
Err.,
V.
PEOPLE OF THE STATE OF NEW YORK.
(See S. C. Reporter's ed. 195-198.)
Oonstitutional law — equal protection
of the laws — olassittcation — dia-
orimination against aliens.
The discrimination made between
aliens and citizens by the provisions of N.
Y. Consol. Laws, chap. 31, § 14, making it
a misdemeanor to employ aliens on public
works, does not offend against U. 8. Const.,
14th Amend., as violating the principle oi
classification.
[For other cases, see Constltotional Law, 218-
288, in Digest Sup. Ct 1908.]
[No. 388.]
Argued October 12, 1915. Decided Novem-
ber 29, 1916.
IN ERROR to the Court of Special Ses-
sions, First District, of the City of New
York and State of New York, to review a
judgment of conviction for a violation of
the anti-alien labor law, entered pursuant
to the mandate of the Court of Appeals oi
that state, which reversed a judment of the
Appellate Division of the Supreme Court,
First Department, which had in turn re-
versed the conviction in the Court of Spe-
cial Sessions. Affirmed.
See same case below, in Appellate Divi-
sion, 1G5 App. Div. 449, 150 N. Y. Supp.
933; in Court of Appeals, 214 N. Y. 154,
L.R.A.1916D, 550, 108 N. E. 427. Ann. Cte.
191 5B, 1254.
The facts are stated in the opinion.
Mr. Thomas F. Oonwaj argued tka
cause, and, with Mr. James F. McKinM^
filed a brief for plaintiff in error.
For his contentions, see his brief aa re-
ported in Heim v. McCall, ante, 206.
Mr. Robert 8. Johnstone argued tha
cause, and, with Messrs. Charles Albert
Perkins and Qeorge Z. Medalie, filed a briaf
for defendant in error:
The fundamental mistake of the plaintiff
in error, and of the learned judges below
who deemed the statute unconstitutional, it
that they, while recognizing the truth of
the general proposition that the right to
labor at a lawful trade or calling is a right
of liberty and property ( Coppage v. Ksnsaa^
236 U. 8. 1, 59 L. ed. 441, L.RA.1915C, 960,
35 8up. Ct. Rep. 240; Smith v. Texas, 238
U. 8. 630, 636, 58 L. ed. 1129, 1132, L.RJL
1915D, 677, 34 Sup. Ct. Rep. 681, Ann. Caa.
1915D, 420), overlooked the proposition,
equally true, that no one is entitled of abso-
lute right and as a part of his liberty or
property to work for another against thai
other's wishes (Coppage v. Kansas, 236 U.
8. 1, 10, 59 L. ed. 441, 444, L.R.A1915C,
960, 85 Sup. Ct. Rep. 240) ; or to work or
perform labor for the state (Atkin v. Kan-
sas, 191 U. S. 207, 223, 48 L. ed. 148, 158»
24 Sup. Ct. Rep. 124) ; that liberty of con-
tract includes both parties to it (Lochner t.
New York, 198 U! S. 45, 56, 49 L. ed. 987,
941, 26 Sup. Ct. Rep. 539, 8 Ann. Caa.
1133).
The distinction between the corporate or
contractual power of the state and the po-
lice power, and, indeed, the transition from
the one to the other, may be clearly seen
in noting the ascending measure of control
from (1) that which may be exercised over
individuals and corporations with respect
to matters wholly private (Lochner v. New
York, 198 U. 8. 45, 49 L. ed. 937, 25 Sup.
Ct. Rep. 539, 3 Ann. Cas. 1133; Williama
V. Arkansas, 217 U. 8. 79, 54 L. ed. 678,
30 Sup. Ct. Rep. 493, 18 Ann. Caa. 866; Cop-
page V. Kansas, 236 U. 8. 1, 59 L. ed. 441,
L.R.A.1915C, 960, 35 Sup. Ct. Rep. 240 to
(2) that which may be exercised with ra-
speot to matters semipublic or affected with
Note. — As to constitutional equality of
privileges, immunities, and protection, gen-
erally— see note to Louisville Safety Vault
k T. Co. V. Louisville ft N. K Co. 14 LJEI.A.
579.
As to the validity of class l«ris1ation,
generally— see notes to State v. Goodwill,
6 L.RA. 621; and State v. Loomis, 21 L.R.A.
789.
On treaty guaranties to aliens — see note
to Gandolfo ▼. Hartman, 16 UR.A. 277.
OeaermHj as to statutory restrictions on
contracts between master and servant — sea
notes to Coin. v. Perry, 14 L.R.A. 325 ; Ram-
sey V. People, 17 LJIA. 853; State T.
Loomis, 21 LJELA. 789; and Ritchie v. Peo-
ple, 29 L.R.A. 79.
On power of state, under 14th Amend-
ment to the United States Constitution, to
deny to aliens the right to engage in s
lawful occupation — see notes to Com. t.
Hana, 11 L.R.A.(NJ3.) 799; People v. Craaflb
LJLA.1916D, 569.
88t U. 8.
ms.
CRANE T. N£W YORK.
A public intereit (Munn t. lUinoii, 94 U.
& 113, 24 Lb ed. 77; Budd t. New York, 143
U. a 617, 96 L. ed. 247, 4 Inters. Com. Rep.
45, 12 Sup. Ct. Rep. 468, affirming 117
K. Y. 1, 6 L.R.A. 659, 15 Am. St. Rep.
4M, 22 N. £. 670; Brass y. North DakoU
153 U. 8. 391, 38 L. ed. 757, 4 Inters. Com.
Rep. 670, 14 Sup. Ct. Rep. 867 ; Noble State
Bank ▼. HaskeU, 219 U. S. 104, 65 L. ed.
112, 32 L.R.A.(N.a) 1062, 31 Sup. Ct Rep.
186, Ann. Cas. 1912A, 487; German Alli-
tnce Ina. Co. t. Kansas, 233 U. S. 389,
58 L. ed. 1011, L.RJL1916C, 1189, 34 Sup.
Ct Rep. 612), to (3) that which may be
ocrcised with respect to matters wholly
poblio — ^when the power becomes absolute,
tnd examples of which are seen in the con-
trol by the state of its municipal corpora-
tions in all their public undertakings and
tffairs (WUUams t. Eggleston, 170 U. S.
304, 42 L. ed. 1047, 18 Sup Ct. Rep. 617;
Atkin V. Kansas, 191 U. S. 207, 48 L. ed.
148, 24 Sup. Ct. Rep. 124 ; Hunter ▼. Pitts-
(mrgh, 207 U. S. 161, 62 L. ed. 151, 28 Sup.
Ct Rep. 40; People ex reL Williams Engi-
neering & Contracting Co. y. Mets, 193 N. Y.
148, 24 LJLA.(N.S.) 201, 85 N. £. 1070;
Ryan t. New York, 177 N. Y. 271, 69 N.
£. 599).
This absolute power arises from the pro-
prietary relationship of the state to the
Batters in question. A question of power
becomes one of policy.
Atkin T. Kansas, 191 U. S. 207, 222, 48 L.
ci 148, 157, 24 Sup. Ct. Rep. 124; German
Alliance Ins. Co. y. Lewis, 233 U. S. 389,
414, 58 L. ed. 1011, 1022, LJtJL.1915C, 1189,
34 Sup. Ct. Rep. 612; Chicago, B. & Q. R.
Co. T. McGuire, 219 U. S. 549, 569, 55 L.
ei 328, 339, 31 Sup. Ct. Rep. 259.
One of the basic theories upon which the
constitutionality of this law can be sus-
tained is fundamentally the same as that
upon which a law restraining the right of
A private individual to employ or refuse
to employ whom he will in his private ca-
pacity might be deemed invalid.
Coppage V. Kansas, 236 U. S. 1, 59 L.
ed. 441, L.RJLa915C, 960, 36 Sup. Ct Rep.
240.
The head of a large business enterprise
nay employ or refuse to employ whomso-
ever he will, and for any reason that to him
ieems sufficient.
Coppage V. Kansas, 236 U. S. 1, 10, 24, 59
U ed. 441, 444, 450, L.R.A.1915C, 960, 36
Sup. Ct. Rep. 240; Adair v. United SUtes,
208 U. S. 161, 52 L. ed. 436, 28 Sup. Ct.
Hep. 277, 13 Ann. Cas. 764 ; People v. Mar-
cus. 185 N. Y. 257, 7 LjajL(N.S.) 282, 113
Am. St. Rep. 902, 77 N. E. 1073, 7 Ann. Cas.
118; Jacobs V. Cohen, 183 N. Y. 207, 2 L.R.A.
(K.S.) 292, 111 Am. St. Rep. 780, 76 N. B.
5, 5 Ann. Caa. 280; National Ptotectiya
•0 L. ed.
Asso V. CummiuK, 170 N. Y. 315, 58 T«.K,A.
135, 88 Am. St. Rep. 648, 63 N. E. 369.
Has not the state for itself and for each
of its separate governmental agendas the
right to declare tiiat, with respect to works
of a public nature done by contract, the per-
son contracting to do that work shall only
employ such persons as the state may direct,
and to place a restriction, if it sees fit to
do so^ upon the classes of persons who may
be employed by the contractor?
Atkin V. Kansaa, 191 U. S. 207, 48 L. ed.
148, 24 Sup. Ct. Rep. 124; Ellis v. United
SUtes, 206 U. 8. 246, 61 L. ed. 1047, 27
Sup. Ct. Rep. 600, 11 Ann. Cas. 589; United
States T. Martin, 94 U. S. 400, 24 L. ed.
128; Ryan t. New York, 177 N. Y. 271,
69 N. E. 599; People v. Orange County Road
Constr. Co. 175 N. Y. 90, 65 LJLA. 33, 67
N. £. 129; People ex reL Cossey v. Grout,
179 N. T. 417, 72 N. £. 464, 1 Ann. Cas.
39; People ex rel. Williams Engineering &
Contracting Co. t. Metz, 193 N. Y. 163,
24 L.R.A.(N.S.) 201, 85 N. £. 1070; People
V. I. M. Luddington Sons, 74 Misc. 363, 131
N. Y. Supp. 550; Coppage v. Kansas, 236
U. S. 1, 10, 59 L. ed. 441, 444, L.RJL.1915C,
900, 35 Sup. Ct. Rep. 240 ; Adair v. United
States, 208 U. S. 161, 52 L. ed. 436, 28
Sup. Ct. Rep. 277, 13 Ann. Cas. 764.
The individual as an employer of labor
and the state as an employer of labor stand
on the same footing.
Ellis v. United SUtes, 206 U. S. 246, 61
L. ed. 1047, 27 Sup. Ct. Rep. 600, 11 Ann.
Cas. 589; People v. Orange County Road
Constr. Co. 175 N. Y. 89, 65 L.RJL. 33, 67
N. E. 129; United SUtes t. Martin, 94
U. S. 400, 404, 24 L. ed. 128, 129 ; Clark v.
SUte^ 142 N. Y. 101, 36 N. E. 817; Ryan
V. New York, 177 N. Y. 271, 69 N. E. 599;
People ex rel. Williams Engineering & Con-
tracting Co. y. MeU, 193 N. Y. 148, 24
L.RJL(N.S.) 201, 85 N. E. 1070; People t.
I. M. Luddington Sons, 74 Misc. 363, 131 N.
Y. Supp. 550.
The sUU may dicUU its employment
policy respecting public works, whether con-
structed by the sUte itself, iU municipali-
ties, or contractora.
Keefe t. People, 37 Colo. 317, 8 L.RJL.
(N.S.) 131, 87 Pac 791; SUU v. Living-
ston ConcreU Bldg. & Mfg. Co. 34 Mont.
670, 87 Pac. 980, 9 Ann. Cas. 204; Re
Broad, 36 Wash. 449, 70 LJI.A. 1011, 78
Pac. 1004, 2 Ann. Cas. 212; Re Dalton, 61
Kan. 257, 47 L.R.A. 380, 59 Pac. 336 ; Atkin
V. Kansas, 191 U. S. 207, 48 L. ed. 148,
24 Sup. Ct. Rep. 124; Ryan v. New York,
177 N. Y. 271, 69 N. E. 599; People ex rel.
Cossey v. Grout, 179 N. Y. 417, 72 N. E.
464, 1 Ann. Caa. 39; People ex rel. Williams
Engineering A Contracting Co. v. MeU, 193
^1%
SUPREME COURT OF THE UNITED STATES.
Cot. Temm,
N. T. 161, 24 LJLA.(N.S.) 201, 85 K. E.
1070.
It was not necessary, so far as this case
is concerned, that the provision of the stat-
ute, should have been actually incorporated
into or set forth in the contract. Tlie par-
ties to the contract were chargeable with
knowledge of its provisions, and, if they
are valid, they will be read into the coatract
by operation of law.
People ex reL Rodgers v. Coler, 166 N.
Y. 1, 52 L.RJL. 814, 82 Am. St. Rep. 605,
50 N. £. 716; Medina v. Dingledine, 211 N.
Y. 28, 104 N. E. 1118.
The state, we submit, had an undoubted
right to refuse employment to aliens on pub-
lic works. The defendant as a private per-
son, pursuing his private concerns, had a
iright to employ aliens to work for him if
he saw fit to do so; and in that right the
Constitution protects him. But if, in im-
dertaking to do public work for the city,
the state (the principal and master) exact-
ed as a condition that he should not em-
ploy aliens, he could waive any general con-
stitutional right, and did so by accepting
the service or privilege knowing the con-
ditions thereto attached by the statute.
People V. Rosenheimer, 200 N. Y. 115, 46
L.RJL.(N.S.) 077, 102 N. E. 530, Ann. Gas.
1015A, 161; Ex parte Kneedler, 243 Mo.
632, 40 L.R^.(N.S.) 622, 147 S. W. 983,
Ann. Cas. 19130, 023; Bertholf v. O'Reilly,
74 N. Y. 517, 30 Am. Rep. 323; Ryan v.
New York, 177 N. Y. 279, 69 N. E. 699;
People ex rel. McLaughlin v. Police Comrs.
174 N. Y. 456, 95 Am. St. Rep. 596, 67 N.
E. 78; Atkin v. Kansas, 191 U. S. 207, 48
L. ed. 148, 24 Sup. Ct. Rep. 124; Crowley
V. Christensen, 137 U. S. 86, 91, 34 L. ed.
620, 623, 11 Sup. Ct. Rep. 13; People ex
rel. Williams Engineering k Contracting
Co. V. Metz, 193 N. Y. 148, 24 L.R.A.(N.S.)
201, 85 N. E. 1070; Wilson v. United States,
221 U. S. 361, 55 L. ed. 771, 31 Sup. Ct.
Rep. 538, Ann. Cas. 1912D, 558.
When the state made a contract it did not
give up its power to make a law, — its sov-
ereign^. It could make a breach of the
contract — a disobedience of its mandate —
criminal.
Ellis T. United States, 206 U. S. 246, 255,
256, 51 L. ed. 1047, 1052, 1053, 27 Sup. a.
Rep. 600, 11 Ann. Cas. 580; United States
V. Reynolds, 235 U. S. 133, 150, 50 L. ed.
162, 169, 35 Sup. Ct Rep. 86; Atkin v.
Kansas, 191 U. S. 207, 48 L. ed. 148, 24
Sup. Ct. Rep. 124; People ex rel. Williams
Engineering k Contracting Co. v. Metz, 193
N. Y. 148, 24 L.ItA.(N.S.) 201, 85 N. E.
1070; People v. Orange County Road Constr.
Co. 175 N. Y. 84, 65 LJtJ^. 33, 67 N. E.
129.
The provision prohibiting the employment
sso
of aliens on public works is a valid exer-
cise of the police power — and this even if
the contractor be regarded as occupying the
position of a private person as related to
his workmen, with respect to the perform-
ance of the work in question.
Friebie v. United States, 157 U. S. 160,
165, 39 L. ed. 657, 658, 15 Sup. Ct Rep.
586; Allgeyer v. Louisiana, 165 U. S. 578,
591, 41 L. ed. 832, 836, 17 Sup. Ct. Rep.
427; Williams v. Fears, 179 U. S. 270, 274,
45 L. ed. 186, 188, 21 Sup. Ct. Rep. 128;
Holden v. Hardy, 169 U. 8. 366, 42 L. ed.
780, 18 Sup. Ct. Rep. 383; Muller v. Oregon,
208 U. S. 412, 421, 52 L. ed. 551, 555, 28
Sup. Ct Rep. 324, 13 Ann. Cas. 957; Mc-
Lean V. Arkansas, 211 U. S. 539, 547, 53
L. ed. 315, 319, 29 Sup. Ct. Rep. 206;
Chicago, B. & Q. R. Co. v. McGuire, 210 U.
S. 549, 566, 567, 55 L. ed. 328, 338, 31 Sup.
Ct Rep. 259; Erie R. Co. v. Williams, 233
U. S. 685, 699, 704, 58 L. ed. 1155, 1160,
1162, 51 L.R.A.(N.S.) 1097, 34 Sup. Ct.
Rep. 761; Price v. Illinois, 238 U. S. 446,
453, 59 L. ed. 1400, 1405, 35 Sup. Ct Rep.
892; Sligfa v. Kirkwood, 237 U. S. 52, 59,
59 L. ed. 835, 837, 35 Sup. Ct Rep. 501;
People ex rel. Nechamcus v. Warden, 144
N. Y. 529, 27 L.RA. 718, 39 N. E. 686;
People V. Ewer, 141 N. Y. 132, 25 L.R.A.
794, 38 Am. St Rep. 788, 36 N. E. 4;
Bloomfield v. State, 86 Ohio St. 253, 41
L.R.A.(N.S.) 726, 99 N. E. 309, Ann. Cas.
1913D, 629; Noble SUte Bank v. Haskell,
219 U. S. 104, 111, 55 L. ed. 112, 116, 32
L.RJ^.(N.S.) 1062, 31 Sup. Ct. Rep. 186,
Ann. Cas. 1912A, 487; Williams v. Arkan-
sas, 217 U. S. 79, 88, 54 L. ed. 673, 677, 30
Sup. Ct. Rep. 493, 18 Ann. Cas. 865; Com.
V. Hana, 195 Mass. 262, 11 L.RJ^.(N.S.)
799, 122 Am. St Rep. 251, 81 N. E. 149, 11
Ann. Cas. 514; Patsone v. Pennsylvania,
232 U. S. 138, 58 L. ed. 539, 34 Sup. Ct
Rep. 281, 231 Pa. 46, 79 Atl. 928; McCready
V. Virginia, 94 U. S. 391, 24 L. ed. 248;
People V. Lowndes, 130 N. Y. 462, 29 N.
E. 751; Com. v. Hilton, 174 Mass. 29, 45
L.RA. 475, 54 N. E. 362; Blythe v. Hinck-
ley, 180 U. S. 333, 341, 45 L. ed. 557, 562,
21 Sup. Ct. Rep. 390; Freund, Pol. Power,
§ 706; 4 Moore, Int Law Dig. § 541; Drew
V. Rogers, 4 Cal. Unrep. 369, 34 Pac. 1081;
State ex rel. Ferine v. Van Beek. 87 Iowa,
569, 19 L.RJL(N.S.) 622, 43 Am. St Rep.
397, 54 N. W. 525; Opinion of Justices, 122
Mass. 594; Scott v. Strobach, 49 Ala. 477;
Kohl V. Lehlback, 160 U. S. 293, 40 L. ed.
432, 16 Sup. Ct. Rep. 304 ; State v. Travel-
ers' Ins. Co. 70 Conn. 600, 66 Am. St Rep.
138, 40 AtL 465; Re O'Neill, 90 N. Y.
584. See also Com. v. Hana, 11 L.R.A.
(N.S.) 709, note; Hudson County Water Co.
V. McCarter, 209 U. S. 349, 52 L. ed. 828,
28 Sup. Ct Rep. 529, 14 Ann. Cas. 560.
SS9 U. 8.
1915.
CRANE T. NEW YORK.
The courts must assume that the legis-
liture acts according to its judgment for
the best interests of the state. A wrong
istent cannot be imputed to it (Florida C.
4 P. R. Ck>. y. Reynolds, 183 U. S. 471,
480, 46 L. ed. 283, 287» 22 Sup. Ct. Rep.
176). They are not at liberty to inquire
iito the motives of the legislature; they
csn only examine into its power under the
Constitution (Ex parte McCardle, 7 Wall.
606, 614, 19 L. ed. 264, 265; Cooley, Const,
lim. 7th ed. 257). They have nothing
to do with the policy, wisdom, justice, or
fiimess of the act; those questions are
for the consideration of those to whom the
itste has intrusted its legislative power,
sad their determination of them is not
lobjeGi to review or criticism by this court
(Hunter y. Pittsburgh, 207 U. 8. 161, 176,
^ L. ed. 151, 159, 28 Sup. Ct. Rep. 40;
United States ▼. First Nat. Bank, 234 U.
8. 245, 260, 58 L. ed. 1298, 1304, 34 Sup.
Ct Rep. 846). And it is not necessary
that the legislature should declare on the
face of a statute the policy or purpose for
which it was enacted.
People ▼. West, 106 N. Y. 293, 60 Am.
Rep. 452, 12 N. E. 610.
On the same principle that the national
government may exclude aliens for the ma-
terial and economic protection of its peo-
ple, we submit the states may bar them
from onployment on their public works.
4 Moore Int. Law Dig. § 561, pp. 153-
158; 1 Calvo, 4th ed. § 208; Phillimore
Int Law, 2d ed. § 211; 2 Wheaton, Int.
Law, chap. 1, § 2; Nishimura Ekiu v.
United States, 142 U. S. 651, 659, 35 L.
ed. 1146, 1149, 12 Sup. Ct. Rep. 336.
There is no invalid classification.
Mallinckrodt Chemical Works v. Mis-
•ouri, 238 U. S. 41, 56, 59 L. ed. 1192,
1198, 35 Sup. Ct. Rep. 671; International
Harvester Co. v. Missouri, 234 U. S. 199,
214, 58 L. ed. 1276, 1283, 52 L.RwA.(N.S.)
525, 34 Sup. Ct. Rep. 859; Williams y.
Arkansas, 217 U. S. 79, 90, 54 L. ed. 673,
677, 30 Sup. Ct. Rep. 493, 18 Ann. Cas.
865; Barrett v. Indiana, 229 U. S. 26, 30,
57 L. ed. 1050, 1052, 33 Sup. Ct. Rep. 692;
Louisville & N. R. Co. y. Melton, 218 U. S.
86, 55, 54 L. ed. 921, 47 L.R.A.(N.S.) 84,
80 Sup. Ct. Rep. 676; Patsone v. Pennsyl-
nnia, 232 U. S. 138, 58 L. ed. 530, 34
8ap. Ct. Rep. 281.
The municipality of the city of New
York, in constructing a sewer, under legis-
Istive sanction, is engaged in a public work
sr improvement in which it acts as the
sgent of the state, and the construction of
inch work by the municipality is under
kgislative or state control.
Hushes V. Auburn, 161 N. Y. 104, 46
LRJ^. 636, 55 N. E. 389, 7 Am. Neg. Rep. i
60 L. ed.
139; Uppington y. New York, 166 N. Y.
228, 53 LJLA. 550, 59 N. E. 91, 9 Am.
Neg. Rep. 115; Rs Protestant Episcopal
Public School, 46 N. Y. 180; People ex rel.
Williams Engineering & Contracting Co.
193 N. Y. 148, 24 L.R.A.(N.S.) 201, 85
N. E. 1070; Keefe y. People, 37 Colo. 317,
8 L.RJ^.(N.S.) 131, 87 Pac. 791; Seibert
V. Cavender, 3 Mo. App. 421; Paulsen v.
Portland, 149 U. S. 40, 37 L. ed. 641, 13
Sup. Ct. Rep. 750; Heim v. McCall, 165
App. Div. 449, 150 N. Y. Supp. 933, 214
N. Y. 629, 108 N. E. 1095; Re Rapid Tran-
sit R. Comrs. 197 N. Y. 97, 36 L.RJL.(N.S.)
647, 90 N. £. 456, 18 Ann. Cas. 366; Sun
Printing k Pub. Asso. v. New York, 152
N. Y. 267, 37 L.R.A. 788, 46 N. E. 499;
Carpenter v. New York, 115 App. Div. 557,
101 N. Y. Supp. 402.
It is for the state courts to decide what
shall be deemed public uses in that state.
It is likewise for them to decide what shall
be considered public works.
Williams v. Eggleston, 170 U. S. 304,
310, 42 L. ed. 1047, 1049, 18 Sup. Ct. Rep.
617; Forsyth v. Hammond, 166 U. S. 506,
519, 41 L. ed. 1095, 1100, 17 Sup. Ct. Rep.
665; Claiborne County v. Brooks, 111 U.
S. 400, 410, 28 L. ed. 470, 474, 4 Sup. Ct.
Rep. 489; Detroit y. Osborne, 135 U. S.
492, 499, 34 L. ed. 260, 262, 10 Sup. Ct.
Rep. 1012; Old Colony Trust Co. v. Omaha,
230 U. S. 100, 116, 67 L. ed. 1410, 1416;
33 Sup. Ct. Rep. 967; Union Lime Co. v.
Chicago & N. W. R. Co. 233 U. S. 211, 218,
219, 58 L. ed. 924, 928, 34 Sup. Ct. Rep.
522; Hairston v. Danville k W. R. Co. 208
U. S. 598, 607, 52 L. ed. 637, 641, 28 Sup.
Ct. Rep. 331, 13 Ann. Cas. 1008.
The broad classification of municipal
functions into matters governmental {%. e.,
sovereign) in the strict sense, and quasi
private, is obviously incomplete for all
purposes. It is fundamentally and chiefly
of value only in the determination of those
questions involving the relationship of the
municipality to third persons — the civil lia-
bility of the city to third persons for dam-
ages caused by the negligent execution of
the powers or functions. For that limited
purpose, and in that limited sense, the broad
classification may be sufficiently accurate
(Wilcox v. Rochester, 190 N. Y. 142, 17
L.R.A.(N.S.) 741, 82 N. E. 1119, 13 Ann.
Cas. 759; Missano v. New York, 160 N. Y.
129, 54 N. E. 744, 6 Am. Neg. Rep. 652;
Maxmilian v. New York, 62 N. Y. 160, 20
Am. Rep. 468; Lloyd v. New York, 5 N. Y.
369, 55 Am. Dec. 347; Dill. Mun. Corp.
5th ed. § 39). But it is of little or no
assistance in determining questions con-
cerning the extent of legislative control
over the municipal corporations in rela-
tion to matters of a public nature or af-
8UPKBMB COURT OF THE UNITED STATEa
Cot. TtaM,
fected by a public interest, such, for example,
as the carrying on of public utilities, the
construction of public works, — sewers,
waterworks, highways, and the like, — ^which
constitute a large category of a munic-
ipality's affairs, and which are public func-
tions in the truest sense, though perhaps
occ^ionally of a local character. These are
truly governmental functions, — functions of
government, — even though they are not
strictly of a sovereign nature. They are
public works.
Even where, for some purposes, the
municipality may be considered to act as a
legal individual, a corporate body, in the
exercising or performance of the function,
the function itself is a special power granted
to it by the legislature.
Missano v. New York, 1«0 N. Y. 129,
54 N. E. 744, 6 Am. Neg. Rep. 652; Lloyd
V. New York, 5 N. Y. 360, 55 Am. Dec.
347; Maxmilian v. New York, 63 N. Y.
160, 20 Am. Rep. 468; Barnes v. District
of Ck)lumbia, 01 U. S. 540, 644, 23 L. ed.
440, 441.
A great mass of a municipality's func-
tions and powers may be private in their
execution as regards third parties, but
they are public in regard to the state. They
are public matters, authorized by tiie leg-
islature, and subject to legislative control.
1 Dill. Mun. Ck>rp. 5th ed. p. 184; Dar-
lington V. New York, 31 N. Y. 164, 88 Am.
Dec. 248.
As respects the state, the erection of pub-
lic works, the carrying on of public under-
takings, are wholly public, and the legis-
lature (except where it is restrained by
special constitutional provision, operating
as a restriction on the general sovereign
power exercised by the legislature) has over
them complete and transcendent control.
From it such corporations derive their being
and all the powers they possess. It made
them and it may regulate or even destroy
them at its uncontrolled will. As against
it they have no contract, they have no
vested rights.
People V. Morris, 13 \yend. 329; Darling-
ton y. New York, supra; Demarest v. New
York, 74 N. Y. 167; MacMullen t. Middle-
town, 187 N. Y. 44, 11 L.ItA.(N.S.) 391,
79 N. E. 863; New Orleans v. New Orleans
Waterworks Co. 142 U. S. 79, 35 L. ed.
943, 12 Sup. Ct Rep. 142; Laramie County
V. Albany County, 92 U. S. 307, 23 L. ed.
552; Mt. Pleasant v. Beckwith, 100 U. 8.
514, 525, 25 L. ed. 699, 701; Atkin v. Kan-
sas, 191 U. 8. 207, 48 L. ed. 148, 24 Sup.
Ct. Rep. 124; Cooley, Const. Lim. 7th ed.
266-268.
What constitutes a contract in the case
of a private corporation — its charter — is, as
to a publio oorporation, a legislative com-
mand (Piqua Branch of State Bank t.
Knoop, 16 How. 869, 880, 14 L. ed. 077»
981), subject to change at the legislative
will, Iknited only by specific constitutional
restrietion.
Cooley, Const. Lim. 7th ed. pp. 266-269;
1 Dill. Mun. Corp. 5th ed. §§ 37-39; Mao-
Mullen v. Middletown, 187 N. Y. 42, 11
L.RJ^.(N.S.) 391, 79 N. E. 863; Scott v.
Saratoga Springs, 109 N. Y. 178, 92 N. £.
393; Murphy v. Ft. Edward, 213 N. Y.
400, 167 N. E. 716, 9 N. C. C. A. 279;
Detroit v. Osborne, 135 U. S. 492, 409, 34
L. ed. 260, 262, 10 Sup. Ct Rep. 1012;
Barnes v. District of Columbia, 91 U. 8.
540, 544, 23 L. ed. 440, 441; Ryan v. New
York, 177 N. Y. 273, 69 N. E. 599; Cov-
ington V. Kentucky^ 173 U. S. 231, 43 L.
ed. 679, 19 Sup. Ct. Rep. 383; New Orleans
V. New Orleans Waterworks Co. 142 U. 8.
70, 35 L. ed. 943, 12 Sup. Ct. Rep. 142; Mt.
Pleasant v. Beckwith, 100 U. 8. 514, 25
L. ed. 699; Laramie County v. Albany
County, 92 U. S. 307, 23 L. ed. 652*;
Demarest v. New York, 74 N. Y. 166; Dar-
lington V. New York, 31 N. Y. 194, 88 Am.
Dec. 248; People v. Pinckney, 32 N. Y.
377.
A municipality may have property ri^ts
which are so far private in their nature
that they are not held at the pleasure of
the legislature; but, concededly, these are
difficult to define.
Cooley, Const. Lim. 7th ed. p. 342; Dill.
Mun. Corp. 5th ed. § 111; Hunter v. Pitts^
burgh, 207 U. S. 161, 180, 181, 52 L. ed.
151, 160, 28 Sup. Ct. Rep. 40. See State
ex rel. Bulkeley v. Williams, 48 L.R.A.
465, note.
It may be assumed that there are or may
be in municipalities certain vested rights of
property in respect to private property
which are not completely under the un-
controlled will of the legislature, and which
will be protected from confiscatory action
on the part of the legislature, and which it
might not have power to wholly divert to
any use it saw fit, and particularly where
vested interests of third parties would be
affected.
Cooley Const Lim. 7th ed. pp. 342, 39(V-
392, et seq. ; Worcester v. Worcester Consol.
Street R. Co. 196 U. 8. 539, 551, 49 L. ed.
591, 596, 25 Sup. Ct Rep. 327; Tippe-
canoe County V. Lucas, 93 U. S. 108, 114,
115, 23 L. ed. 822, 824, 825; Webb v. New
York, 64 How. Pr. 10; People v. Ingersoll,
58 N. Y. 1, 17 Am. Rep. 178; People v.
Fields, 58 N. Y. 491; MacMuUen v. Mid-
dletown, 187 N. Y. 37; 11 L.R.A.(N.S.)
391, 79 N. E. 863; People ex rel. WiUianM
Engineering & Contracting Co. v. Metz, 193
N. Y. 161, 24 L.RJL.(N.S.) 201, 85 N. E.
1070; Dill. Mun. Corp. 5th ed. § 110.
1S9 U. 8.
1015.
CRANE T. NEW YOBK.
Tet it would ■eem to be obvious that
regulations of the use of property, and of
the contraetual powers of the city with re-
spect thereto, when it is held for some pub-
lic use, should be subject to legislative con-
trol and direction. Any other doctrine
would be wholly illogical and inconsistent
with the relations of a municipality to the
sUte.
Atkin V. Kansas, 191 U. &. 207, 48 L. ed.
148, 24 Sup. Ct. Rep. 124; People ex rel.
Williams Engineering Contracting Co*, v.
Hetz, 103 N. Y. 161, 24 L.RJl.(N.S.) 201,
85 K. £. 1070.
The exaction of an obedience to the em-
ployment policy of the state in the per-
formance of public municipal enterprises,
undertaken by legislative sanction and au-
thorization, by which the contractual rights
of the municipality are to some extent con-
trolled or diminished, would not constitute
a taking or deprivation of the property of
the municipality in a constitutional sense.
Chicago & A. R. Co. v. Tranbarger, 238
U. S. 67, 78, 59 L. ed. 1204, 1211, 35 Sup.
Ct. Rep 678.
The right to contract may be regulated
and sometimes prohibited when the con-
tracts or business conflict with the policy of
the state as contained in its statutes.
Williams v. Fears, 179 U. S. 270, 274,
45 L. ed. 186, 188, 21 Sup. Ct. Rep. 128;
AUgeyer v. Louisiana, 165 U. S. 578, 591,
41 L. ed. 832, 836, 17 Sup. Ct. Rep. 427;
Holden v. Hardy, 169 U. S. 366, 42 L. ed.
780, 18 Sup. Ct Rep. 383.
And by the statute here in question the
state has declared its policy, and has en-
joined upon its several agents and agencies
the duty of executing this policy.
People ex rel. Rodgers v. Coler, 166 N.
Y. 25, 52 LJLA. 814, 82 Am. St. Rep. 605,
59 N. E. 716; Ryan v. New York, 177 N.
Y. 271, 69 N. E. 590.
The legislature, which conferred the power
of performance, may regulate the mode of
performance, and conform it to the policy
of the state.
Atldn V. Kansas, 101 U. S. 207, 48 L. ed.
148, 24 Sup. Ct. Rep. 124; People ex rel
Williams Engineering k Contracting Co. v.
Hetz, 103 N. Y. 159, 24 L.R.A.(N.S.) 201,
85 N. £. 1070; DilL Hun. Corp. 5th ed. f
116, pp. 200, 201.
The courts of New York have asserted
the broadest measure of legislative control
over municipal corporations and their
property.
1 DilL Mnn. Corp. 5th ed. p. 184, note 1;
Darlington t. New York, 81 N. Y. 164, 88
Am. Dee. 248; People r. Kerr, 27 N. Y.
213.
The restrictions on the legislature are
only such as are expressly imposed.
•• Ii. ed.
MacMullen t. Middletown, 187 N. Y. 37,
11 L.R.A.(N.S.) 301, 79 N. E. 391; People
ex rel. Devery v. Coler, 173 N. Y. 103, 65
N. E. 956; People ex rel. Metropolitan
Street R. Co. v. State Tax Comrs. 174 N.
Y. 433, 63 L.R.A. 884, 105 Am. St. Rep.
674, 67 N. E. 69; People ex rel. Simon v.
Bradley, 207 N. Y. 611, 101 N. E. 766.
The supreme court of Connecticut also
takes the emphatie view that no inherent
right of local self-government exists, and
that the power of the legislature over
municipalities is only limited by express
constitutional restriction. It may be com-
pelled to spend its money for local improve-
ments without violating the 14th Amend-
ment.
State ex rel Bulkeley v. Williams, 68
Conn. 131, 48 XJELA. 465, 35 Atl. 24, 421,
affirmed as Williams v. Eggleston, 170 U.
S. 304, 42 L. ed. 1047, 18 Sup. a. Rep.
617.
The legislature has the power to disre-
gard, if it sees fit, local subdivisions, and
to ignore the municipality to the extent
of creating new districts within it, and of
appointing state officials in those districts
for the performance of functions which the
municipality ordinarily performs. In other
words, there is no such thing under the
general provisions of the Federal or state
Constitutions as the inherent right of local
self-government.
People ex rel. Wood t. Draper, 15 N. Y.
532; People v. Pinckney, 32 N. Y. 377;
Astor V. New York, 62 N. Y. 567; People
ex rel. v. State Tax Comrs. 174 N. Y. 444,
63 L.R.A. 884, 105 Am. St Rep. 674, 67
N. E. 69; DilL Mun. Corp. 5th ed. i 101,
p. 170.
No one would deny that the laying out
and improvement of streets for public
travel is a public work and a function of
government; yet a city may be liable for
negligence in failing to repair them and
keep them safe for travel (Turner v. New-
burgh, 109 N. Y. 301, 4 Am. St. Rep. 453,
16 N. E. 344; Quill v. New York, 36 App.
Div. 476, 478, 55 N. Y. Supp. 889, 5 Am.
Neg. Rep. 423; Barnes v. District of Co-
lumbia, 91 U. 8. 540, 23 L. ed. 440) unless
the legislature otherwise provides.
MacMuUen t. Middletown, 187 N. Y.
37, 11 LJLA.(N.S.) 391, 79 N. E. 863.
The eases are innumerable which ex-
emplify the plenary power of the legisla-
ture over municipal corporations, even in
matters which are not of a strictly sovereign
nature. Th^ illustrate the practically un-
limited control which the legislature may
exercise over the contractual and property
ri|^ts of municipalities in matters even
of a local ehi^raeter which are affected with
a public Interest — ^the word "public" being
SUPREME COURT OF THE UNITED STATES.
Got. Tebm,
used in the broadest and most inclusive
sense. They show that a municipality may
be compelled to spend its money in connec-
tion with matters which are in no sense
sovereign in their nature, and that, in all
its powers and functions and duties, it is
subject to the will of the state, which
created it, expressed through the mediiun
of legislative enactments. In their relations
t» the state, in all matters of a "public"
nature, they have no contractual rights
independent of the will of the legislature.
Atkin V. Kansas, 191 U. S. 207, 48 L.
ed. 148, 24 Sup. Ct. Rep. 124; Hunter ▼.
Pittsburgh, 207 U. S. 171, 178, 52 L. ed.
156, 159, 28 Sup. Ct. Rep. 40; Williams v.
Eggleston, 170 U. S. 304, 310, 42 L. ed.
1047, 1049, 18 Sup. Ct. Rep. 617, affirming
State ez rel. Bulkeley v. Williams, 68 Conn.
131, 48 L.RJ^. 465, 35 Atl. 24, 421 ; Barnett
T. Denison, 145 U. S. 135, 139, 36 L. ed.
652, 653, 12 Sup. Ct. Rep. 819; Hill v.
Mraphis, 134 U. S. 198, 203, 33 L. ed.
887, 889, 10 Sup. Ct. Rep. 562; Metro-
politan R. Co. V. District of Columbia, 132
U. S. 1, 8, 33 L. ed. 231, 234, 10 Sup. Ct.
Rep. 19; Meriwether v. Garrett, 102 U. S.
472, 513, 26 L. ed. 197, 204; Mt. Pleasant
v. Beckwith, 100 U. S. 514, 524, 25 L. ed.
699, 701; Laramie County v. Albany Coun-
ty, 92 U. S. 307, 23 L. ed. 552; Barnes v.
District of Columbia, 91 U. S. 540, 544,
23 L. ed. 440, 441; United States v. Balti-
more k 0. R. Co. 17 Wall. 322, 329, 21 L.
ed. 597, 600; People ex rel. Williams En-
gineering & Contracting Co. v. Metz, 193 N.
Y. 148, 161, 24 L.R.A.(N.S.) 201, 85 N.
£. 1070; MacMullen v. Middletown, 187
N. Y. 37, 11 L.RJl.(N.S.) 391, 79 N. E.
863; Ryan v. New York, 177 N. Y. 271, 69
N. E. 590; Demarest v. New York, 74 N.
Y. 166; People v. Ingersoll, 58 N. Y. 21,
17 Am. Rep. 178; People v. Pinckney, 32
N. Y. 393; Darlington v. New York, 31 N.
Y. 164, 88 Am. Dec. 248 ; People v. Morris,
13 Wend. 329; See State ex rel. Bulkeley
V. Williams, 48 L.R.A. 465, note; Union
Lime Co. v. Chicago & N. W. R. Co. 233
U. S. 211, 218, 58 L. ed. 924, 928, 34 Sup.
Ct. Rep. 522; People ex rel. McLean v.
Flagg, 46 N. Y. 401; Brewster v. Syracuse,
19 N. Y. 116; New York v. Tenth Nat.
Bk. Ill N. Y. 446, 18 N. E. 618; Guil-
ford V. Chenango County, 13 N. Y. 143;
Syracuse ▼. Hubbard, 64 App. Div. 587, 72
N. Y. Supp. 802; New Orleans v. Clark
(Jefferson City Gaslight Co. v. Clark) 95
U. S. 644, 654, 24 L. ed. 521, 522; Guthrie
Nat. Bank ▼. Guthrie, 173 U. S. 528, 536,
43 L. ed. 796, 799, 19 Sup. Ct. Rep. 513;
Brown v. New York, 63 N. Y. 239; New
York V. Fulton Market Fishmongers' Asso.
3 How. Pr. N. S. 500; Re Union Ferry Co.
98 N. Y. 139 ; Tocci v. New York, 73 Hun,
S24
46, 25 N. Y. Supp. 1080; People ez reL
Simon v. Bradley, 207 N. Y. 592, 101 N.
E. 766; Perkins y. Slack, 86 Pa. 270;
Potter ▼. Collia, 10 App. DiT. 892, 46 N.
Y. Supp. 471, affirmed in 156 N. Y. 16,
50 N. E. 413; Higginson t. The Treasurer
(Higginson v. Slattery) 212 Mass. 583, 42
L.RJL.(N.S.) 215, 99 N. E. 523; Re King-
man, 153 Mass. 566, 12 LJUL 417, 27
N. E. 778; Re Protestant Episcopal Public
Sehool, 46 N. Y. 178; Milwaukee Electric
R. 'k Light Co. V. Railroad Commission,
238 U. S. 174, 59 L. ed. 1254, P.U.R.1915D,
591, 35 Sup. Ct. Rep. 820; Hudson County
Water Co. v. McCarter, 209 U. S. 349, 857,
52 L. ed. 828, 832, 28 Sup. Ct. Rep. 529,
14 Ann. Cas. 560; Re Adams, 165 Mass.
497, 43 N. £. 682; Prince ▼. Crocker, 166
Mass. 359, 32 L.R.A. 610, 44 N. E. 446;
Terrett ▼. Taylor, 9 Cranch, 43, 3 L. ed.
650; Payne v. Tread well, 16 Cal. 221; Jones
V. Lake View, 151 lU. 663, 38 N. E. 688;
Frederick v. Groshon, 30 Md. 436, 96 Am.
Dec. 591; Groff ▼. Frederick City, 44 Md.
67; State Bank y. Madison, 8 Ind. 43;
Paterson v. Society for Establishing Useful
Manufactures, 24 N. J. L. 385; State ex
rel. Cleveland ▼. Board of Finance k Tazn.
38 N. J. L. 259; Re Dalton, 61 Kan. 257,
47 L.R.A. 380, 59 Pac. 336; Rogers ▼.
Burlington, 3 Wall. 654, 663, 18 L. ed. 79,
82; Worcester ▼. Worcester Consol. Street
R. Co. 196 U. S. 539, 550, 552, 49 L. ed.
591, 595, 596, 25 Sup. Ct. Rep. 827; Boisft
Artesian Hot k Cold Water Co. v. Bois6
City, 230 U. S. 84, 94, 57 L. ed. 1400, 1407,
33 Sup. Ct. Rep. 997 ; Old Colony Trust Co.
V. Omaha, 230 U. S. 100, 57 L. ed. 1410,
33 Sup. Ct Rep. 067.
An uncompensated obedience to Intimate
regulations established by the state in car-
rying out its public policy would not con-
stitute an unconstitutional deprivation of
property.
Chicago k A. R. Co. v. Tranbarger, 238
U. S. 67, 78, 59 L. ed. 1204, 1211, 35 Sup.
Ct. Rep. 678; Northern P. R. Co. v. Min-
nesota, 208 U. S. 583, 597, 52 K ed. 630,
636, 28 Sup. Ct Rep. 341.
Whether we call the construction of pub-
lic works and the operation of public utili-
ties "governmental" or "proprietary," "non-
governmental" or "quasi private^" the fact
remains that such works are, in every real
sense of the word, public undertakings, and,
to use the words of the court of appeals,
"in all of the public undertakings, the
state is the proprietor."
Ryan v. New York, 177 N. Y. 278, 60
N. E. 599; People ex rel. Williams En-
gineering k Contracting Co. ▼. Mets, 198 N.
Y. 148, 24 L.R.A.(N.S.) 201, 85 N. B.
1070; Astor v. New York, 62 N. Y. 689.
The statute does not contravene the pro-
SS9 U. 8.
1015.
CRANE V. NEW YORK.
197, 198
Tision of the Federal Constitution prohibit-
ing the passage by the states of ew post
facto laws, or laws impairing the obliga-
tion of contracts.
Cleveland A P. R. Co. t. Cleveland, 236
U. S. 50, 63, 64, 69 L. ed. 127, 128, 36
8ap. Ct. Rep. 21; Ross v. Oregon, 227 U.
8. 150, 161, 57 L. ed. 458, 463, 33 Sup. Ct.
Rep. 220, Ann. Cas. 1914C, 224; Moore-Mans-
field Constr. Co. v. Elec^ical Installation
Co. 234 U. S. 619, 624, 68 L. ed. 1603, 1605,
34 Sup. Ct. Rep. 941; Frank v. Mangum,
237 U. S. 309, 69 L. ed. 969, 36 Sup. Ct.
Rep. 532; Malloj v. South Carolina, 237
U. S. 180, 183, 184, 69 L. ed. 906-907,
35 Sup. Ct. Kep. 607; Shevlin-Carpenter Co.
V. MinnesoU, 218 U. S. 67, 68, 69, 64 L.
ed. 930, 935, 30 Sup. Ct. Rep. 663; Peo-
ple V. West, 106 N. Y. 296, 60 Am. Rep.
452, 12 N. E. 610.
Statutes will be construed to be prospec-
tive only (Calder v. Bull, 3 Dall, 386, 391,
1 L. ed. 648, 660; Waugh v. University of
Miasiasippi, 237 U. S. 689, 596, 59 L. ed.
1131, 1136, 35 Sup. Ct. Rep. 720), unless a
contrary intent is unavoidable from the lan-
guage used; and if a statute is susceptible
of two constructions, one of which would
render it unconstitutional and the other
valid, that which upholds it will be adopted.
St. Louis Southwestern R. Co. v. Arkan-
sas, 236 U. S. 360, 369, 69 L. ed. 266, 274,
35 Sup. Ct. Rep. 99; Plymouth Coal Co.
V. Pennsylvania, 232 U. 8. 631, 546, 68
L. ed. 713, 720, 34 Sup. Ct. Rep. 369;
People ex rel. Simon v. Bradley, 207 N. Y.
610, 101 N. E. 766.
One who questions the validity of a law
must show that its alleged imconstitutional
feature injurea him, or, at least, the class
to which he belongs.
Plymouth Coal Co. t. Pennsylvania, 232
U. 8. 631, 644, 545, 68 L. ed. 713, 719, 720,
34 Sup. Ct. Rep. 359; Rosenthal v. New
York, 226 U. 8. 260, 271, 67 L. ed. 212,
217, 33 Sup. Ct. Rep. 27, Ann. Cas. 1914B,
71 ; Engel v. O^alley, 219 U. 8. 128, 66
L. ed. 128, 31 Sup. Ct. Rep. 190; Mai-
linckrodt Chemical Works v. Missouri, 238
U. 8. 41, 54, 59 L. ed. 1192, 1197, 35 Sup.
Ct. Rep. 671.
The statute is not in conflict with exist-
ing treaties.
Oeofroy v. Riggs, 133 U. 8. 258, 266, 33
L. ed. 642, 644, 10 Sup. Ct. Rep. 296;
United Stotes v. ChocUw Nation, 179 U. 8.
404, 533, 46 L. ed. 291, 306, 21 Sup. Ct.
Bap. 149; Com. v. Patsone, 231 Pa. 46, 79
AtL 928, affirmed in 232 U. 8. 138, 68 L.
ed. 639, 34 Sup. Ct Rep. 281.
Mr. Justice Mc&enna delivered the opin-
ioB of the court:
niis ease was argued and submitted with
•• Ij. ed.
No. 386, just decided [230 U. S. 175, ante,
206, 36 Sup. Ct. Rep. 78]. It involves the
criminal feature of § 14 of the labor law
of the state, which was the subject of the
opinion in No. 386. It provided that a vio-
lation of the section should constitute a
misdemeanor and be punished by fine or im-
prisonment, or by both.
The case was commenced by information
which accused Crane, plaintiff in error,
while engaged as a contractor with the
city in the construction of a public work
of such city, by virtue of a contract entered
into with the city, of having employed
three persons not then citizens of the
United SUtes.
The public work was the construction of
catch or sewer basins.
The defense was the unconstitutionality
of the law, and that it was in violation of
the treaties of the United States with for-
eign countries.
The treaties were put in evidence over
the objection of the prosecuting officer, and
a motion, was made to dismiss the informa-
tion on the grounds above stated. The mo-
tion was denied, and plaintiff in error found
guilty and sentenced to pay a fine of $50,
or, in default thereof, to be committed to
the city prison for the term of ten days.
[198] The case was then appealed to the
appellate division of the supreme court, and
there heard with Heim v. McCall (No.
386 [239 U. 8. 175, ante, 206, 36 Sup. Ct.
Rep. 78] ) .
The judgment was reversed. This action
was not sustained by the court of appeals.
In that court and in the appellate division
the eases were heard together and decided
by the same opinions, they being rendered
in the present case and the judgment of
the trial court (special term) affirmed.
It appeared from the testimony that one
of the laborers employed was a subject of
the King of Italy (the nationality of the
others was not shown), and a treaty be-
tween the United States and that country,
signed February 26,. 1913 [38 SUt. at L.
1669], was received in evidence over the ob-
jection of the district attorney on the
ground that "none of the parties to the
proceeding is a subject of the King of
Italy." Treaties with other countries were
also received in evidence. To them the dis-
trict attorney objected on the ground that
none of the parties to the proceedings and
"nobody who was connected in any way
with the subject-matter of the contract or
employed in the perfomutnce of the work"
was "a subject or citizen of any of the
countries referred to."
The provisions of the treaty with Italy
are set out in the opinion in the Heim Case,
Snd the provisions of the other treaties are
16 S15
198-200
SUPREME COURT OF THE UNITED STATES.
Oct. TkiM,
not, 80 far M their application it ccmeemod,
materially different.
The contentions of plaintiff in error are
based on the treaties and on the 14th
Amendment of the Constitution of the
United States. The specifications of error
are the same, though varying in expression,
as those in the Heim Case, and there con-
sidered and declared untenable. There Is
added the view that a distinction made be*
tween aliens and citizens violates the princi-
ple of classification. We think this view
is also without foundation*
Judgment affirmed.
[199] ATLANTIC COAST LINE RAIL-
ROAD COMPANY, Plff. in Err.,
V.
GENERAL BURNETTE.
(See 8. C. Reporter's ed. 199-201.)
Master and servant — employers* lia-
bility act — time for svit — limitation
or condition — necessity of pleading.
An action in a state court founded
upon the employers' liability act of April
22, 1908 (35 Stot. at L. 65, chap. 149,
Comp. Stat. 1913, § 8657), must fail where
the record shows that it was' not begun un-
til the time had elapsed after which, under
§ 6 of that act, ''no action shall be main-
tained," although defendant did not raise
the objection in his pleading.
[For other cases, tee Master and Servant. II.:
Pleading, UL g, in Digest Sup. Ct. 1908.]
[No. 66.]
Argued NoTcmber 9, 1915. Decided Novem-
ber 29, 1915.
IN ERROR to the Supreme Court of the
State of North Carolina to review * a
judgment which reversed a judgment of the
Superior Court of Edgecombe County, in
that state, in favor of defendant in an ac-
tion under the Federal employers' liability
act. Reversed.
See same case below, 163 N. 0. 186, 70
S. E. 414.
The facts are stated in the opinion.
Note.— On the constitutionality, applica-
tion, and effect of Federal employers' lia-
bili^ act— see notes to Lamphere v. Oregon
R. A Nav. Co. 47 L.R.A.(N.S.) 38; and Sea-
board Air Line R. Co. t. Horton, L.R.A.
1915C, 47.
On the necessity of pleading limitation as
bar to statutory action for death — see note
to Martin v. Pittoburgh R. Co. 26 L.RJ^.
(N.S.) 1221.
As to aosnsity for alleging that action
for death li within statutory period— see
note to Skarrow t. Inland Lines, L.ILA*
1915B» 1192.
11«
Mr. Frederic D. MCKenney argued the
cause, and, with Messrs. F. S. Spruill and
John Spalding Flannery, filed a brief for
plaintiff in error.
No appearance for defendant in error.
Mr. Justice Holmes delivered the opinion
of the oourt:
The plaintiff (defendant in error) was a
fireman onployed by the defendant. On
October 5, 1907, he was injured by its negli-
gence while working upon a train running
from South Carolina to North Carolina.
He brought this [200] action on January 7,
1910, and judgment was ordered for a cer-
tain simi by the supreme court of the state.
163 N. C. 186, 79 S. E. 414. The supreme
court assimied that the case was governed by
the act of April 22, 1908, chap. 140, 35 Stat,
at L. 65, Comp. SUt. 1913» § 8657. Two er-
rors are assigned. First, in holding that
statute applicable to the cause of action, and
second, in allowing a recovery under it in
an action begun more than two years after
the cause of action accrued. Id. § 6. The
case was not argued in this court
on behalf of the defendant in error,
but we gather from the record in the
opinion that while, at the trial, the rail-
road, upon issues toot before us, insisted
that the Federal statute was not applicable,
the contrary was admitted before the su-
preme cou^; so that, although the admis-
sion seems to have been made with the
second question only in view, the first point
would appear not to have been drawn to the
attention of either court, and there was no
discussion of how the oase would stand
apart from the act. The second objection
was met by deciding that the limitation of
two years imposed by § 6 could not be relied
upon for want of a plea setting it up.
It would seem a miscarriage of justice if
the plaintiff dkould recover upon a statute
that did not govern the case, in a suit that
the same act declar^ too late to be main-
tained. A right may be waived or lost by
a failure to assert it at the proper time
(Burnet v. Desmomes, 226 U. S. 145, 57 L.
ed. 159, 33 Sup. Ct. Rep. 63 ) ; but when a
party has meant to insist on all the rights
it might have, such a result would be un-
usual and extreme. The record shows a
case to which the act of 1908 did not apply
(Winfree v. Northern P. R. Co. 227 UTS-
296, 57 L. ed. 518, 33 Sup. Ct. Rep. 273),
and which the earlier act of 1906 [34 Stat.
at L. 232, chap. 3073] probably could not
affect (Employers' Liability Cases (How-
ard v. Illinois C. R. Co.) 207 U. S. 463, 489,
52 L. ed. 297, 305, 28 Sup. Ct. Rep. 141.
It ako shows that the aftion was brou^t
too late, and that the defendant insisted
upon that point, although it had not plead-
239 U. 8*
1916. NEW ORLEANS-BELIZE, ET€.» S. 8. CO. t. UNITED STATES. 200-202
ed what was appareot <m the allegations of
the declaration and the admissions of the
[801] In dealing with the enactments of
a paramount authority, such as Congress is,
within its sphere^ OTer the states, we are
not to be curious in nomenclature if Con-
grees has made its will plain, nor to allow
BubetantiTe riglits to be impaired under the
name of procedure. Central Vermont K.
Co. T. White, 238 U. B. 607, 611, 69 L. ed,
1433, 1436, 86 Sup. Ct. Rep. 865. But, ir-
respective of the fact that the act of Con-
gress is paramount, when a law that is
relied on as a source of an obligation in
tort seta a limit to the existence of what it
creates, other jurisdictions naturally have
been disinclined to press the obligation
farther. Davis v. Mills, 104 U. S. 451, 454,
48 L. ed. 1067, 1070, 24 Sup. Ct Rep. 692;
The Harnsburg, 119 U. S. 109, 80 L. ed.
358, 7 Sup. Ct. Rep. 140. There May be
special reasons for regarding such obli-
gations imposed upon railroads by the stat-
utes of the United States as so limited. A.
J. Phillips Co. v. Grand Trunk Western R.
Co. 236 U. S. 662, 667, 59 L. ed. 774, 776, 86
Sup. Ct, Rep. 444. At all events, the act
of Congress creates the only obligatiim that
has existed since its enactment in a case
like this, whatever similar ones formerly
may have been found under local law
emanating from a different source. Winfree
V. Korthcm P. R. Co. 227 U. a 296, 302, 67
L. ed. 51S, 520, 33 Sup. Ct Rep. 273. If it
be available in a state court to found a
right, and the record shows a lapse of time
after which the act says that no action
shall be maintained, the action must fail in
the courts of a state as in those of the
United SUtes.
The ground that we have stated is suf-
ficient for the reversal of the judgment so
far as it proceeds upon the act of 1908, and
therefore we are relieved from the necessity
of deciding whether the record is in such
shape that the even more fundamental ob-
jection to the application of the act cannot
be considered by this court
Judgment reversed.
[S081 NEW ORLEANS-BELIZE BOTAL
HAIL k CENTRAL AMERICAN STEAM-
SaiF COMPANY, limited, Appt,
T.
UNITED STATEa
(See S. a Reporter's ed. 202-207.)
Shipping ^ United States as charterer
^ demise or contract for serrlce.
1. The United SUtes did not become
•0 L. ed.
the owner pro hac vice of a vessel chartered
for military servioe so as to affect the ex-
tent of the government's liability for in-
juries to the vessel and for demurrage due
to repairs, where the charter party, al-
though it recites that the owner ^'^does here-
by grant and let*' and that the government
'*does hereby take" the vessel, and fixes the
price at which the United States may pur-
chase the vessel, and refers to the vessel
being ''returned," and contemplates that the
need of repairs may be attributable to the
fault of the government, and gives the gov-
eniment control over the destination, also
requires the owner to furnish the master
and crew, and to deliver the cargo in good
condition, dangers of the sea, etc., excepted,
and to assume the marine risk.
[For other eases, see Shipping, IV. a, 8, in
lAgent Sop. Ct. 1908.]
Sliipping — United States as tfiarterer
— marine risk.
2. The United States cannot be held
liable under the provisions of a charter
party for not returning a chartered vessel
in the same order aa received, and for de-
murrage due to repairs attributable to its
fault, where the damage was due proximate-
ly to marine risks which the owner assumed.
(For other cases, see Shipping. IV. a, 8, in
Digest Sup. Ct 1008.]
Claims — Jurisdiction — contract or tort.
3. The United States is not suable in
the court of claims upon a claim for in-
juries to a vessel chartered by it for mili-
tary purposes, which were received while
the vessel was performing services outside
the contract, under the compulsion of of-
ficers of the government.
[For other cases, see Clsims, 105-108, 12^
181, in Digest Sup. Ct. 1008.]
[No. 71.1
Argued November 11, 1015. Decided No^
vember 20, 1015.
APPEAL frpm the Court of Claims to re-
view a judgment which rejected a claim
for injuries to a vessel chartered for mili*
tary purposes, and for demurrage while un«
dergoing repairs. Affirmed.
The facts are stated in the opinion.
Mr. A. R. Serven argued the cause and
filed a brief for appellant:
Does the charter party constitute a de-
mise of the vessel, or is it a mere contract
of affreightment?
United States v. 8hea, 152 U. S. 178, 88
L. ed. 403, 14 Sup. Ct. Rep. 510; Belcher
T. Capper, 11 L. J. 0. P. N. S. 276, 4
Mann. A O. 502, 5 Scott, N. R. 257; Ray-
mond T. I^son, 17 How. 53, 50, 15 L. ed.
47, 48; American Steel-Barge Co. t. Cargo
of Coal, 107 Fed. 067; New Bedford k N. V.
Steam Propeller Co. t. United States, 14
WalL 670, 20 L. ed. 760; The AberfoyK
Abb. Adm. 255, Fed. Cas. No. 16; Clark-
mm T. Edes, 4 Cow. 470; Donahoe r. Kettell,
208 SUPREME COURT OF THE UNITED STATES. Oct. Tbeic,
1 Cliff. 135, Fed. Cas. No. 3,080; Drink- 6 Ct. CI. 284; The Rhode Island, 2 Blatchf.
water v. The Spartan, 1 Ware, 149, Fed. 114, Fed. Cas. No. 11,744; Richardson r.
Cas. No. 4,085; Gracie v. Palmer, 8 Wheat. Winsor, 3 Cliff. 402, Fed. Cas. No. 11,795;
605, 5 L. ed. 696; Holmes v. Pavenstedt, Ruggles v. Bucknor, 1 Paine, 358, Fed. Cas.
5 Sandf. 100; Trinity House v. Clark, 4 No. 12,115; Sailing-Ship Garston Co. v.
Maule * S. 288; Perkins v. Hill, 2 Woodb. Hickie, L. R. 15 Q. B. Div. 580, 53 L. T. N.
k M. i68, Fed. Cas. No. 10,987 ; Pickman S. 795, 5 Asp. Mar. L. Cas. 499 ; Schultz t.
V. Woods, 6 Pick. 254; Reed ▼. United United States, 3 Ct. CI. 66; The Stromleea,
States, 11 Wall. 591, 20 L. ed. 220; Sande- 1 Low. Dec. 153, Fed. Cas. No. 13,540;
man v. Scurr, L. R. 2 Q. B. 86, 8 Best & S. Thames & M. M. Ins. Co. ▼. Hamilton*
50, 36 L. J. Q. B. N. S. 58, 15 L. T. N. S. I4. R. 12 App. Cas. 484, 56 L. J. Q. B. N.
608, 16 Week. Rep. 277; Taggard v. Loring, S. 626, 57 L. T. N. S. 695, 36 Week. Rep.
16 Mass. 336, 8 Am. Dec. 140; The Volun- 337, 6 Asp. Mar. L. Cas. 200; Topliff v.
teer, 1 Sumn. 551, Fed. Cas. No. 16,991; Topliff, 122 U. S. 121, 30 L. ed. 1110, 7
Webb T. Peirce, 1 Curt. C. C. 104, Fed. Sup. Ct. Rep. 1057 ; United States v. Bovans,
Cas. No. 17,320. 3 Wheat. 336, 4 L. ed. 404 ; Williamson t.
The wrongful acts of the officers and Barrett, 13 How. 101, 14 L. ed. 68.
agent, of the United State, of the kind AMi.Unt Attorney General Tbomp^n
committed in thi. caw, which cau«d dam- ^^ ^ ^^^^ /„^ ^.^^ j^^ ^.„.^^
age to the Stillwater, are exactly the kind ^j^ g,^ ^ j^^j^^ ^^^ appellee-
for which the United SUte. is liable. ' v ♦«, oartv wa. a contract for
Donald V. United SUte., 39 a. CI. 357. „J^,* .' j !„? . L.!^!! contract tor
• ., 11 1. Li L t jx service, and not a demise.
IB the appellee liable b««u.e of iU con- j^^ ^ United State.. U Wall. 600. «01,
tractual obligation., regardle» of the que.- ^ ^ ^ ^^, Le*^ ^ U^.^^ g^^^^^ 1^
"^ lu *r*^"* , n* />, ^on on. ai Wall. 611. 20 L. ed. 756; Shaw v. United
, ='"^Vo. ^ r v' «»' Th'/l'PP*. sute^ 93 U. 8. 240. 23 L. ed. 881, Rey-
L r°;u •• f*i ^'n ?; i? ' l'«p7o!- «»old r. United Stat^.. 6 a. CI. 284. 16
St. Catherine'. Dock Co. 14 M^ & W. 794. ^ „ gl L. ed. 67; Donald v. United
16 L. J Exch. N. S. 34; State. ABder«m g 3^ ^ ^ 37 ^ , y^.^^
ll^t"''^ 4 1?' aid' ; !!i I State 14 Wall. 631. 20 L. Id. 738; Hoc.
Atl. 539; The Apollon. 9 Wheat. 362 6 Q^rerm^. 1 Cranch. 214. 2 L. ed. 86.
L. ed. Ill; Balt£er t. Raleigh & A. Air a« L i. i. ij i. -« j ««
T' i> n lie TT a Ao^ on T j kak The govemment should not respond in
?«o"^,^" f?^«o -fi. «•!; JT' H- "« fall^i" the term, of the marine ri.k
w '.1 SM i1t ii^L «1 K . "^1 •"'«»'*<l by appellant under the contract,
^ w -f' Jf, ,r^A n ,fi« « f,^' «" «• tortlou. acta upon the part of goV^
21 Wend. 342, 34 Am. Dec. 250; Bradley x « • i
wr ui -* A iL n o* T» 1 X r. emment officials.
▼. Washington, A. a G. Steam Packet Co.
Fed. Cas. No. 2,559; Campion v. Colvin, ,. ' n -*. 1 o*. \ -icr tt c 'la'r oa
q Ri«cr XT r 17 q Q^** Ni^ft 9 vf^»J ^*"«®'* ^- United States, 155 U. S. 167, 39
?i? Tt T V p\f s'qit'^^ ' L. ed. 110, 16 Sup. Ct. Rep. 86; Unit«l
116, 5 L. J. C. P. N. S. 317; The Bing- «,^. , v:«v.i Vo w-ii aqa oh t. ^
""' " ^' r: * «. Vi k^WoiIa iot SUtea T. Kimbal, 13 Wall. 636, 20 L. ed.
hamton Bridge, 3 Wall. 61, 18 L. ed. 137; -^o » u u tt i* j o*-.* J ik xkt n
i-ii 1 ^# V 4.i. 17 iL ^# T r^ S03 ; Reybold v. United States, 16 WalL
Clark V. Massachusetts F. & M. Ins. Co. ^^0 oi t ^ k7
2 Pick. 108, 13 Am. Dec. 400; Clark v. ^^^' ^^ ^' ^- *"'•
United States, 9 Ct. CI. 387; The Con- w r *• « 1 j i- a ^u
laa T7 a iin ai t j ao-t it Mr. Justicc HolDies delivered the opuiion
queror, 166 U. S. 110, 41 L. ed. 937, 17 ... .^ "^
Sup. Ct. Rep. 610; Donnell v. Amoskeag mu. • ' 1 • * • • • x au -a^
Mfg. Co. 55 C. C. A. 178, 118 Fed. loT J^Vu^ ""^^'"^ ^^^''^T^ l!" ^ "^L
Fofhes V. United States, 10 Ct. CI. 248 '^'iT^r't '^^'^'^^^^^
Garrison- V. United Statei, 7 Wall. 688, 19 ^'''^ ^**^ooa """"/f^ a* ^'J^f^^
L. ed. 277 ; Hawgood v. 1.310 Tons of Coal, rf ™»^' J' i^' n T iT"[«Sf iX
21 Fed. 681; Hunter v. Northern M. Ins November 2 to December 14, 1898, while
Co. L. R. 13 App. Cas. 717; The Kimball ^^ \^^} ^" undergoing repairs. It wms
(Duncan v. Kimball) 3 Wall. 43, 18 L. ed. '«J^*^ ^y ^^^ ^^"^^ ^' ^^»*°^» ^° *^® *""
50; The Mayflower, Brown, Adm. 380, Fed. thority of Plant Invest. Co. v. United
Cas. No. 9,345; Mott v. United SUtes, 9 States, 45 Ct. CI. 374.
Ct. CI. 267; The M. S. Bacon v. Erie k W. The injuries were caused as follows:
Transp. Co. 3 Fed. 344; Northwestern Mut.
L. Ins. Co. V. Gridley, 100 U. S. 614, 26
L. ed. 746: Owen v. 49,774 Bushels of Rye,
64 Fed. 186; Reybold t. United Stotea,
First, in June, 1898, there was a collision
with another steamship in Tampa bay, it
does not appear by whose fault. Three
weeks later the Stillwater was driven
228 2S9 U. 8.
1915.
NEW ORLEANS-BELIZE, ETC., S. S. CO. v. UNITED STATES. 203-200
against the rocks while unloading horses in
Daiquiri bay, Cuba, during a gale, with
other incidental damage. On July 27, in
Gauanica Bay, Porto Rico, there was an-
other collision with a steamer. On August
3, in obedience to orders against which the
captain protested, the Stillwater assisted
in lightering the United States auxiliary
cruiser St. Paul, at Arroyo, Porto Rico, and
while lying alongside the St. Paul, in rough
water, was damaged by the after-gun spon-
son of the St. Paul being thrown down upon
it. On August 4, in obedience to orders
from the naval lieutenant in charge,
against the protest of the captain, the Still-
water was made fast to the Massachusetts,
then on the rocks at Ponce, Porto Rico,
and atti^mpted to pull it off. The weather
was rough, and in consequence of rolling
against the Massachusetts and otherwise
the Stillwater was damaged and strained.
On August 26, in obedience to orders and
against the protest of the captain, the Still-
water was placed alongside the Obdam, in
the harbor of Ponce, for the transfer of
commissary stores from the latter to her.
The ships both rolled and the Stillwater
[204] thumped heavily, and was badly in-
jured. On September 3, at Ponce, the Span-
ish steamship Vasco ran into the Stillwater
in the nighttime, doing some damage, and
finally, about three weeks later, the Still-
water went agroimd on a sand bar and a
hole afterwards was found in her bottom.
The bill for the repairing of the Stillwater
was rendered in a lump sum, showing only
the cost as a whole.
By the charter party made on May 12,
1908, art. I., the claimant "does hereby
grant and let" and a quartermaster of the
Army "does hereby take" the vessel for
the voyages specified, "and for such longer
time as she may be required in the military
service of the United States, not to extend
beyond" June 30, 1898, unless the charter
shall be renewed. II. "The said vessel shall,
on the IGth day of May, eighteen hundred
and ninety-eight, be ready to load and re-
ceive on board at New Orleans, Louisiana,
or elsewhere, whenever tendered alongside,
by the quartermaster. United States Army,
or his agent, only such troops, persons, ani-
mals, and supplies or cargo as he shall
order and direct, and as the said vessel can
conveniently stow and carry," reserving
room for the vessel's cables and materials,
for officers and crew, and for the necessary
eoal; and when so laden is to deliver the
cargo at such port as the Quartermaster's
Department may direct, "in good order and
condition (the dangers of the seas, fire, and
navigation, and the restraints of princes
and rulers being always excepted)." i\\
'^The said vessel now is and shall be kept
•• L. ed.
and maintained while in the service of the
United States, tight, stanch, strong, and
well and sufficiently manned, victualed,
tackled, appareled, and ballasted, and fur-
nished in every respect fit for merchant or
transport service, at the cost and charge
of her owner. The time lost in consequence
of any deficiency in these respects, and in
making repairs to said vessel not attribut-
able to the fault of the United States or
[805] its agents, is not to be paid for by
the United States." V. All port charges and
pilotage after leaving New Orleans will be
paid by the United States, but not the
wages of any person employed by the claim-
ant continuously on the vessel as pilot.
VL "The war risk shall be borne by the
United States; the marine risk by the own-
er." VII. The United SUtes is to furnish
fuel "until the said vessel is returned to
the said company at New Orleans, I^uisi-
ana, in the same order as when received,
ordinary wear and tear, damage by the ele-
ments, collision at sea and in port, burst-
ing of boilers and breakage of macliinory
excepted." VIII. All water is to be fur-
nished by the government, and all cargo
loaded and unloaded at its expense. X. The
vessel is valued at $125,000, and if retained
in the service of the United States so long
that the money paid under the charter
(less the cost of running and keeping in
repair and a net profit of 33 per cent on
the appraised value) is equal to the ap-
praised value, the vessel is to become the
property of the United States without fur-
ther payment except what then may be due
for services under the charter. XI. The
United States also, during the charter, may
purchase the vessel at its appraised value,
with a similar clause for deductions. In
XIII. and XIV. there are provisions for
renewal and against a transfer of the con-
tract or any interest therein by the claim-
ant. These, we believe, are all the portions
of the charter party material to the present
case.
The main contest is upon the question
whether by this contract the United Stat(*s
became owner pro hac vice, as affecting the
extent of the liability assumed. The claim-
ant relies upon the words 'grant and let"
on the one side and "take" on the other, the
fixing of the price at which the United
States may purchase the vessel, the refer-
ence to the vessel being "returned," the
contemplation that the need of repairs may
be attributable to the fault of the United
SUtes, the control of the United [206]
States over the destination of the ship, and
some details, as showing that the United
States was in the place of the owner for the
time. But we cannot accept this conclusion.
The general owner furnished the crew and a
229
206, 207
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm»
master who at least regarded himself as
representing its interests, since he protested
against commands that he received. It
agreed to deliver the cargo in good con-
dition, dangers of the sea, etc., excepted.
It assumed the marine risk. We deem it
plain that the control and navigation of the
vessel remained with the general owner,
although the directions in which it should
proceed were determined hy the United
States. Authority to direct the course of a
third person's servant does not prevent his
remaining the servant of the third person.
Standard Oil Co. v. Anderson, 212 U. S.
215, 53 L. ed. 480, 29 Sup. Ct. Rep. 252;
Little V. Hackett, 116 U. S. 366, 29 L. ed.
652, 6 Sup. Ct. Rep. 391 ; Reybold v. United
SUtes, 15 Wall. 202, 21 L. ed. 57. We con-
elude that the possession followed the navi-
gation and control. The case resembles
Morgan ▼. United Stotes, 14 Wall. 531, 20
L. ed. 738, not United States v. Shea, 152
U. S. 178, 38 L. ed. 403, 14 Sup. Ct. Rep.
519, as in the latter it was found that the
vessel was under the exclusive management
and control of the Quartermaster's Depart-
ment. See further Hooe v. Groverman, 1
Cranch, 214, 237, 3 L. ed. 86, 93; Reed v.
United States, 11 Wall. 591, 20 L. ed. 220.
The claimant contends, however, that if
the ship was not demised, the United States
is liable under articles IV. and VII. for
not returning the ship in the same order as
when received, and for demurrage due to
repairs attributable, as it is contended
these were, to the fault of the United
States. The damage, however, for the most
part, was due proximately to- marine risks,
which the claimant assumed. Morgan v.
United Stotes, 14 Wall. 531, 20 L. ed. 738.
The demurrage accrued after November 2,
the date on which it is found that the char-
ter was ended. How much of it was due to
damage from marine risks does not appear.
The service in aid of the Massachusetts and
others outside the contract, if any, imposed
no liability upon the [207] United Stotes.
United Stotes v. Kimbal, 13 Wall. 636, 20 L.
ed. 503; Reybold v. United Stotos, 15 Wall.
202, 21 L. ed. 57; Schillinger v. United
Stotes, 155 U. S. 163, 39 L. ed. 108, 15
Sup. Ct. Rep. 85; Harley v. United Stotes,
198 U. S. 229, 234, 49 L. ed. 1029, 1030,
25 Sup. Ct. Rep. 634; Peabody v. United
Stotes, 231 U. S. 530, 539, 58 L. ed. 351,
353, 34 Sup. Ct. Rep. 159. We see no
ground except the impression that this is
a hard case to apply the principle of United
Stotes y. Russell, 13 Wall. 623, 20 L. ed.
474.
Judgment affirmed.
Mr. Justice McReynolds took no part In
the consideration or decision of this case.
ISO
PHILUP WAGNER, Incorporated, Plff. in
Err.,
V.
OSCAR LESER, A. B. Cunningham, and
John Gill, Jr., Judges of the Appeal Tax
Court of Baltimore City, and Jacob W.
Hook, Tax Collector of Baltimore City.
(See S. C. Reporter's ed. 207-220.)
Constitutional law — due process of law
— paving tax — benefits already ac-
crued.
1. A special assessment levied under
the authority of Md. Laws 1912, chap. 688,
upon property benefited by improved paving,
does not toke property without due process
of law, contrary to U. S. Const., 14th
Amend., because the special benefits for
which it was levied had long since accrued.
[For other cases, see Constitotional Luw,
561-581. 993-1000, In Digest Sup. Ct. 1908.]
Constitutional law — due process of law
— paving tax ^- use of fund.
2. The intention to use in pavinff other
streets in the city the fund created by a
special assessment levied under the author-
ity of Md. Laws 1912, chap. 688, upon prop-
erty benefited by improved paving, does not
render the assessment obnoxious to the due
process of law clause of U. S. Const., 14t1i
Amend., so long as there was, as to the
property so assessed, a benefit formerly con-
ferred and still existing, which it had de-
rived at the public expense.
[For other cases, see Constitutional Law,
661-681, in Digest Sup. Ct. 1908.]
NoTB. — ^As to what constitutes due process
of law, generally — see notes to People v.
O'Brien, 2 L.R.A. 255; Kuntz v. Sumption,
2 L.R.A. 655; He Gannon, 5 L.R.A. d.j»;
Ulman v. Baltimore, 11 L.U.A. 224; Oilman
V. lucker, 13 L.K.A. 304; Pearson v. Yew-
dall, 24 L. ed. U. S. 436; and Wilson v.
North Carolina, 42 L. ed. U. S. 865.
As to tax or assessment for public im-
Srovements on highway — see note to Gra-
am V. Detroit, 44 L.R.A.(N.S.) 836.
On notice and hearing required, generally,
to constitute due process of law — see notes
to Kuutz V. Sumption, 2 L.R.A. 657; Chau-
vin V. Valiton, 3 L.R.A. 194; and Ulman v.
Baltimore, 11 L.R.A. 225.
On landowner's right to notice and hear-
ing for assessment on a public improve-
ment— see note to Chicago, M. k St. P. R.
Co. V. Janesville, 28 L.R.A.(N.S.) 1201.
On necessity of special benefit to sustain
assessments for local improvements — see
note to Re Madera Irrig. Dist. Bonds, 14
L.R«A. 766.
As to whether an assessment of benefite
may rest upon prospectivje action in com-
pleting improvement — see note to Kansas
City V. St. Louis k S. F. R. Co. 28 L.RJL
(N.S.) 669.
On notice of proceedings after jurisdic-
tion has attached as a condition of due
process of law — see note to Griggs v. Han-
son, 52 L.R.A.(N.S.) 1161.
2S» U. 8.
1916.
WAGNER y. LESER.
Constitutional law — due process of law
— pavlne tax — notice and hearing.
3. Notice and hearing as to the amount
and extent of benefits conferred is not es*
•ential to the Talidity under the due process
of law clause of U. 8. Const., 14th Amend.,
of the provisions of Md. Laws 1912, chap.
688, directing that profjerty adjoining or
abutting on any public highway in the city
of Baltimore, paved with improved paving,
should, accordinff to the width of the pav-
ing in front of the respective properties, be
assessed at a certain sum per foot front.
(For other cases, see Constltotlonal Law.
T45-7C3, in Digest Sup. Ct. 1908.]
[No. 28.]
Argued October 25 and 26, 1915.
November 29, 1915.
Decided
IN KKHOR to the Court of Appeals of the
State of Maryland to review a decree
which reversed a decree of the Circuit Court
of Baltimore City, overruling the demurrer
to a bill to enjoin an assessment for a public
improvement. Affirmed.
See same case below, 120 Md. 671, 87
Atl. 1040.
The facts are stated in the opinion.
Messrs. George Washington Williams
and Charles J. Bonaparte argued the
cause, a:ul, with Mr. John Holt Richardson,
filed a brief for plaintiff in error:
For the fundamental principles underly-
ing special assessments, see Cooley, Const.
Law, p. 36 ; Den ex dem. Murray ▼. Hoboken
Land & Improv. Co. 18 How. 272, 15 L. ed.
372; Ulman v. Baltimore, 72 Md. 692, 11
L.R.A. 224, 20 AU. 141, 21 Atl. 700; Nor-
wood T. Baker. 172 U. S. 278, 43 L. ed.
447, 19 Sup. Ct. Rep. 187; State, Agens,
Prosecutor, v. Newark, 37 N. J. L. 423, 18
Am. Rep. 729; Thomas v. Gain, 35 Mich.
162, 24 Am. Rep. 535; Stuart v. Palmer,
74 N: Y. 183, 30 Am. Rep. 289; Dill. Mun.
Corp. § 761.
To levy special assessments conformably
to the Maryland statute would be to utterly
disregard the fundamental principle under-
lying and authorizing special assessmenta
Norwood y. Baker, 172 U. S. 278, 43 L.
cd. 447, 19 Sup. Ct. Rep. 187; 25 Am. k
Eng. Enc. Law, 1176; Bennett v. Seibert,
10 Ind. App. 380, 35 N. £. 35, 37 N. E.
1071; Spaulding t. Baxter, 25 Ind. App.
490, 58 N. E. 551; Galveston H. k S. A.
R. Co. T. Green, — Tex. Civ. App. — , 35
8. W. 819; Holliday t. AtlanU, 96 Ga.
181, 23 S. £. 406 ; Kelly v. Luning, 76 CaL
309, 18 Pac. 335; Bennett v. Emmetsburg,
138 Iowa, 67, 115 N. W. 588; Pease v.
Chicago, 21 111. 500; Dorathy v. Chicago,
S3 HL 79; Re Market Street, 49 Cal. 546;
Alfred t. Dallas, — Tex. Civ. App. — , 36 I
8. W. 816; Cool^9 Taxn. p. 1155. '
60 L. ed.
The front-foot rule, when made applicable
to the city as a whole, is arbitrary, inequi-
table, unjust, and oppressive.
White V. Gove, 183 Mass. 333, 67 N. B.
359; Ulman v. Baltimore, 72 Md. 594, 11
LJRJ^. 224, 20 Atl. 141, 21 AU. 700; Clapp
T. Hartford, 35 Conn. 66; Doughten v. Cam-
den, 72 N. J. L. 451, 3 L.R.A.(N.S.) 817,
111 Am. St. Rep. 680, 63 AtL 170, 6 Ann.
Gas. 902.
The constitutional provision that no per-
son shall be deprived of life, liberty, or
property without due process of law ex-
tends to every governmental proceeding
which may interfere with personal or prop-
erty rights, whether the proceeding be 1^-
islative, judicial, administrative, or execu-
tive.
8 Cyc. 1083; Holden y. Hardy, 169 U. S.
366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383;
Den ex dem. Murray v. Hoboken Land k
Improv. Co. 18 How. 272, 15 L. ed. 372;
Ulman v. Baltimore, 72 Md. 587, 11 L.R.A.
224, 20 Atl. 141, 21 Atl. 709; Clark v.
Mitchell, 69 Mo. 627; United States t.
Cruikshank, 92 U. S. 542, 23 L. ed. 588;
Cooley, Const. Lim. 505.
This provision was intended to secure
the individual from the arbitrary exercise
of the powers of government, unrestrained
by the established principles of private
rights and distributive justice.
Bank of Columbia v. Okely, 4 Wheat.
235-244, 4 L. ed. 559-561.
The words "by the law of the land," as
used in the Constitution, do not mean a
statute passed for the purpose of working
the wrong.
Cooley, Const. Lim. p. 503.
A ' notice should have been given even
though the apportionment was made by the
legislature; certainly, in view of the op-
pressiveness and arbitrariness of the rule
established by .the legislature, and its im-
just and unequal operation in this case, a
notice should have been required, and in
its absence the act should be held uncon-
stitutional. ^
8 Cyc. 1108; 25 Jim. k Eng. Enc. Law,
1173, 1174; Maryland Trust Co. v. Balti-
more, 125 Md. 40, 93 Atl. 454.
If the property was to be specially as-
sessed, the amount specially assepsed, to-
gether with the amount to be raised by
general taxation, should only equal the
cost price of the improvement.
Maryland Trust Co. v. Baltimore, supra.
When the overplus beyond benefits from
these local improvements is laid upon a few
landowners, such citizens, with respect to
such overplus, are required to defray more
than their share of the public outlay, and
the coercive act is not within the proper
scope of the taxing power.
ISl
SUPREME COURT OF THE UNITED STATES.
OOT. TtMM,
Norwood V. Baker, 172 U. S. 278, 43 L.
ed. 447, 19 Sup. Ct. Rep. 187 ; State, Agens,
Prosecutor, y. Newark, 37 N. J. L. 415, 18
Am. Rep. 720.
Mr. 8. 8. Field argued the cause and
filed a brief for defendants in error:
The whole subject of special assessments
is dealt with in an exhaustive note to the
ease of Chicago, M. & St. P. R. Co. v. Janes-
.ville, 28 L.R.A.(N.S.) 1124.
The legislature has wide discretion in
sheeting and classifying the property to be
made subject to a special tax.
1 Cooley, Taxn. 3d ed. pp. 76, 77; Daly
T. Morgan, 60 Md. 462, 1 L.RJL. 757, 16
AU. 287; Miller v. Wicomico County, 107
Md. 442, 69 Atl. 118; Joesting v. Balti-
more, 97 Md. 589, 55 Atl. 456; Sams v.
Fisher, 106 Md. 167, 66 Atl. 711; Freder-
ick County V. Frederick, 88 Md. 654, 42
Atl. 218; Luman v. Plitchens Bros. Co.
90 Md. 25, 46 L.R.A. 393, 44 Atl. 1051; 1
Cooley, Taxn. 3d ed. 78; Gray, Limitations
of Taxing Power, § 1440; Hagar v. Recla-
mation Dist. Ill U. S. 705, 28 L. ed. 671,
4 Sup. Ct. Rep. 663.
The legislature has a wide discretion as
to the method of fixing the amount of the
charge on each property.
Alexander v. Baltimore, 5 Gill, 384, 46
Am. Dec. 630; Louisville & N. R. Co. ▼.
Barber Asphalt Paving Co. 197 U. S. 430,
433, 434, 40 L. ed. 819-821, 25 Sup. Ct. Rep.
466; Hyattsville y. Smith, 105 Md. 318, 66
Atl. 44; Bassett v. Ocean City, 118 Md.
120, 84 Atl. 262; Chicago, M. & St. P. R.
Co. v. Janesville, 28 L.R.A.(N.S.) 1127,
note; Baltimore v. Johns Hopkins Hospital,
56 Md. 32; Spencer v. Merchant, 125 U. S.
353, 31 L. ed. 766, 8 Sup. Ct. Rep. 921.
When the act specifies the amount of
the tax, it is a decision by the legislature
that the property affected is benefited to the
amount of the tax, and, ii the absence of
a clear showing that the tax is arbitrary or
oppressive, the l^islative decision is conclu-
sive on the courts.
Parsons v. District of Columbia, 170 U.
S. 52, 42 L. ed. 946, 18 Sup. Ct. Rep. 521;
Schenley v. Allegheny, 25 Pa. 128; Smith
V. Worcester, 182 Mass. 235, 59 L.R.A.
728, 65 X. E. 40; Spencer v. Merchant, 125
U. S. 353, 31 L. ed. 766, 8 Sup. Ct. Rep.
921; Baltimore v. Johns Hopkins Hospital,
56 Md. 28; Hyattsville v. Smith, 105 Md.
323, 06 Atl. 44; Baltimore v. Hanson, 61
Md. 464; People ex rel. Grifiin v. Brooklyn,
4 N. Y. 442, 55 Am. Dec. 266, quoted and
approved in 2 Cooley, Taxn. 1199-1201;
Chicago, M. & St. P. R. Co. v. Janesville,
28 L.R.A.(N.S.) 1151, note; Louisville A
N. R. Co. V. Barber Asphalt Paving Co.
197 U. S. 433, 444, 49 L. ed. 821, 822, 25
Sup. Ct. Rep. 406; Bassett v. Ocean City,
118 Md. 120, 84 Atl. 262.
Where the amount of the tax ia left to
be fixed by commissioners, notice and an op-
portunity to be heard must be given; but
where the legislature itself fixes the amount
of the tax, no notice is necessary.
Hagar v. Reclamation Dist. Ill U. 8.
701, 28 L. ed. 569, 4 Sup. Ct Rep. 663;
Spencer ▼. Merchant, 126 U. S. 356, 31
L. ed. 767, 8 Sup. Ct. Rep. 921; Parsons
V. District of Columbia, 170 U. S. 50-56,
42 L. ed. 945-948, 18 Sup. Ct. Rep. ;{21;
Wight V. Davidson, 181 U. S. 380-383, 45
L. ed. 904-906, 21 Sup. Ct. Rep. 616; Chi-
cago, M. k St. P. R. Co. V. Janesville, 137
Wis. 7, 28 L.R.A.(N.S.) 1132. 118 N. W.
182.
The legislature may provide a compre-
hensive scheme of paving, and levy a speci-
fied tax per front foot on abutting prop-
erty.
Gray, Limitations of Taxing Power, §§
1889, 1892, 1893; Parsons v. District of
Columbia, 170 U. S. 46. 52, 56, 67, 42 L.
ed. 943, 946-948, 18 Sup. Ct. Rep. 521;
People ex rel. Scott v. Pitt, 169 N. Y. 521,
58 L.R.A. 372, 62 N. £. 662; Chicago, M.
k St. P. R. Co. V. Janesville, 28 L.K.A.
(N.S.) 1124, and note, 137 Wis. 7, 118 N.
W. 182; Baltimore v. Johns Hopkins Hos-
pital 56 Md. 33; Baltimore ▼. Stewart, 92
Md. 552, 48 Atl. 165; Louisville & N. R.
Co. V. Barber Asphalt Paving Co. 197 U.
S. 434, 49 L. ed. 821, 25 Sup. Ct. Rep.
466; Leominster v. Conant, 139 Mass. 384,
2 N. E. 690; Heavner v. Elkins, 231 U. S.
743, 68 L. ed. 463, 34 Sup. Ct. Rep. 318;
Schaefer v. Werling, 188 U. S. 616, 47 L.
ed. 670, 23 Sup. Ct. Rep. 449; Detroit v.
Parker, 181 U. S. 399, 46 L. ed. 917, 21
Sup. Ct. Rep. 624; Bassett v. Ocean City,
118 Md. 123, 84 Atl. 262.
The legislature may incorporate into such
general plan an improvement previously
made, and levy the specified tax on the«
property abutting thereon.
Leominster v. Conant, 139 Mass. 384, 2
N. £. 690; Parsons v. District of Columbia,
170 U. S. 67, 42 L. ed. 948, 18 Sup. Ct.
Rep. 521.
The special tax or assessment may be
levied after the improvement is made.
Gray, Limitations of Taxing Power, §§
128, 1828 and cases in note 4, 2003 ; Hall v.
Street Comrs. 177 Mass. 434, 59 N. E. 68;
Warren v. Street Comrs. 187 Mass. 292,
72 N. E. 1022; Chester y. Pennell, 169 Pa.
300, 32 Atl. 408; Gorton v. Chicago, 201
111. 634, 66 N. E. 641; Spencer v. Merchant,
126 U. S. 346, 31 L. ed. 764, 8 Sup. Ct Rep.
921 ; Seattle v. Kelleher, 195 U. S. 351, 49
L. ed. 232, 26 Sup. Ct. Rep. 44; Hamilton,
Special Assessments, § 828; Baltimore v.
Ulman, 79 Md. 482, 30 Atl. 43, affirmed in
2S9 U. 8.
1915.
WAQNER ▼. LESER.
165 U. S. 719, 41 L. ed. 1184, 17 Sup. Ct.
Bep. 1001.
The special tax or assessmeot may be
lericd though the property has changed
kinds since the improvement.
Chicago, M. & St. P. R. Co. ▼. Janesville,
137 Wis. 7, 28 L.RJL.(N.S.) 1169, 118 N.
W. 182; Seattle v. Kelleher, 195 U. S. 351,
40 L. ed. 232, 25 Sup. Ct. Rep. 44; Spencer
T. Merchant^ 125 U. S. 346, 31 L. ed. 764,
8 Sup. Ct. Rep. 921; 1 Cooley, Taxn. 3d
ed. 527, note 1; Tallman y. Janesville, 17
Wis. 76; Leominster ▼. Conant, 139 Mass.
384, 2 Atl. 690; Parsons v. District of
Columbia, 170 U. S. 57, 42 L. ed. 948, 18
Sup. Ct. Rep. 521; Chester v. Pennell, 169
Pt. 300, 32 Atl. 408; Butler t. Toledo, 5
Ohio St. 231.
That the act may result in some inequali-
ties does not affect its validity. Approxi-
ffltte equality is all that is attainable.
Chicago, M. k St. P. R. Co. v. Janesville,
137 Wis. 7, 28 L.R.A.(N.S.) 1128, 118 N.
W. 182; Hagar v. Reclamation Dist. Ill U.
S. 705, 28 L. ed. 571, 4 Sup. Ct. Rep. 663;
People ex rel. Scott v. Pitt, 169 N. Y. 528,
58 L.R.A. 372, 62 N. £. 662; Louisville k
N. R. Co. V. Barber Asphalt Paving Co. 107
U. S. 433, 444, 49 L. ed. 821, 822, 25 Sup.
a Rep. 466.
The legislature has full power to levy a
tax directly without any assessing agency.
Caltimore v. State, 105 Md. 7, 65 Atl.
360, 11 Ann. Cas. 716; Faust v. Twenty-
Third German American Bldg. Asso. 84 Md.
192, 35 Atl. 890.
Except as limited by the Constitution,
the power of the legislature to tax is abso-
lute.
Faust V. Twenty -Third German American
Bldg. Abso. supra; Chicago, M. k St. P. R.
Co. V. Janesville, 137 Wis. 7, 28 L.RJI.
(N.S.) 1127, 118 N. W. 182; Alexander v.
Baltimore, 5 Gill, 384, 46 Am. Dec. 630;
Hyattsville v. Smith, 105 Md. 323, 66 Atl.
44.
The statute is presumed to be valid and
eannot be declared void unless it violates
lome provision of the Constitution,— every
reasonable doubt is to be resolved in its
lavor.
Cooley, Const. Lim. 7th ed. pp. 236, 237,
253; Ogden y. Saunders, 12 Wheat. 200. 6
L ed. 625; Sharpless v. Philadelphia, 21
Pa. 162, 59 Am. Dec. 759.
levying a tax on property is not a taking
of property.
Wight V. Davidson, 181 U. S. 385, 45 L.
ed. 906, 21 Sup. Ct. Rep. 616; French v.
Barber Asphalt Paving Co. 181 U. S. 324,
337-^5, 45 L. ed. 879, 887-890, 21 Sup.
Ct Rep. 625; Gray, Limitations of Taxing
Power, § 1963 ; Louisville k N.' R. Co. v.
Barber Asphalt Paving Co. 197 U. S. 430,
•0 L. ed.
49 L. ed. 819, 25 Sup. Ct. Rep. 466; Chicago,
M. k St. P. R. Co. V. Janesville, 137 Wis.
7, 28 L.R.A.(N.S.) 1146, 118 N. W. 182;
Chadwick v. Kelley, 187 U. S. 543, 544, 47
L. ed. 294, 295, 23 Sup. Ct. Rep. 175.
The present tax is justified, just as in the
Ulman Case, not only because the city has
spent money in the past on the street on
which the taxpayer's property abuts, but
it is also justified on the ground that the
benefit is' there now, a continuing one. The
improved pavement is there, and the city is
bound to maintain it as an improved pave-
ment. The city could not, if it desired,
take up the improved pavement and put
down cobblestones.
4 Dill. Mun. Corp. 5th ed. 1710; 25 Am. k
Eng. Enc. Law, 2d ed. 1179.
The Maryland statute is supported by
ample precedent and authority.
Baltimore v. Johns Hopkins Hospital, 56
Md. 33; Baltimore v. Stewart, 92 Md. 552,
48 Atl. 165; Leominster v. Conant, 139
Mass. 386, 2 N. E. 690; Gray, Limitations
of Taxing Power, §§ 1889-18U3; Parsons v.
District of Columbia, 170 U. S. 45, 42 L.
ed. 943, 18 Sup. Ct. Rep. 521; People ex
rel. Scott V. Pitt, 169 N. Y. 521, 58 L.R.A.
372, 62 N. £. 662.
The authorities lay down the proposition
broadly that a tax may be based upon a
past consideration; that a local tax or as-
sessment may be levied for an improvement
previously made and paid for ; without mak-
ing any distinction as to whether or not a
previous abortive attempt to tax had been
made.
Seattle v. Kelleher, 195 U. S. 359, 40 L.
ed. 235, 25 Sup. Ct. Rep. 44; Hamilton,
Special Assessments, § 823; Leominster v.
Conant, 139 Mass. 386, 2 N. £. 690; 1
Cooley, Taxn. 402; Gray, Limitations of
Taxing Power, §§ 1035, 2003; 1 Page k J.
Assessments, §§ 407, 416; State, JellifT,
Prosecutor, v. Newark, 48 N. J. L. 102, 2
Atl. 627; Hamilton, Special Assessments, §
823 ; Re Assessment of Lands, 60 N. Y. 398 ;
Ricketts v. Hyde Park, 85 111. 110; Howell
V. Buffalo, 37 N. Y. 274; Re Van AntwcrjN
56 N. Y. 266; Hall v. Street Comrs. 177
Mass. 439, 59 N. £. 68.
The legislature may levy a special tax on
account of an improvement previously made
and paid for out of a loan or the general
levy.
State, Jelliff, Prosecutor, v. Newark, 48
N. J. L. 101, 2 Atl. 627; Re O'Mara, 194
Pa. 86, 45 Atl. 127; Prince v. Boston, 111
Mass. 231; Davis v. Newark, 54 N. J. L.
146, 23 Atl. 276; Re Roberts, 81 N. Y. 62.
The legislature can adopt and sanction
an improvement or an expenditure which
it could previously authorize. It may au-
thorise an assessment for an improvement,
211-213
SUPBBME COURT OF THE UNITED STATES.
Oct. Tfeu,
either before or after the improvement U
made, as, in its judgment, is deemed best.
Re Sackett» D. k DeO. Streets, 74 N. Y.
106 ; Butler v. Toledo, 5 Ohio St 226 ; Zahn
T. Rutherford, 72 N. J. L. 446, 60 Atl. 1123;
Alcorn t. flamer, 38 Miss. 653; Cleveland
T. Tripp, 13 R. I. 60.
A distinction exists between the power
of the legislature and the power of the city.
Hyattsville t. Smith, 106 Md. 325, 66
AU. 44; Parsons T. District of ^Columbia,
170 U. S. 61, 52, 42 L. ed. 946, 18 Sup. Ct.
Rep. 621.
It may be that property once assessed for
a part of the cost of a street paving could
not again be taxed for the same improve-
ment; that it might be considered two suc-
cessive taxes for one benefit, and therefore
double taxation. But where the property
has never paid anything (except the gen-
eral taxes paid by other property not so
benefited), the special tax is not a double
tax.
26 Am. k Eng. Enc Law, 2d ed. 1174,
1176.
If the property abutting on a vitrified
brick pavement has only paid the general
tax rate imposed on all property, it has
not contributed anything more to the cost
of the pavement upon which it abuts than
property abutting upon cobblestone streets;
it has simply paid the same as other prop-
erty, not enjoying such special benefit, to
the general fund for the support of the gov-
ernment, and has paid nothing for the spe-
cial benefit. The fact that it helps to pay
in the general levy the interest and sinking
fund on the loan furnishes no ground for
the objection to a special assessment.
1 Page & J. Assessments, § 416.
Two successive taxes for one benefit are
not illegal.
4 Dill. Mun. Corp. 6th ed. § 1469 ; Butler
T. Toledo, 6 Ohio St. 231; Earl v. Board of
Improvement, 70 Ark. 211, 67 S. W. 312.
Wherever the legislature commits the as-
sessment or apportionment to a commission
or subordinate body, notice or an oppor-
tunity to be heard is necessary where the
legislature directly levies the tax.
Spencer v. Merchant, 126 U. S. 348, 31 L.
ed. 764, 8 Sup. Ct. Rep. 921; Bassett v.
Ocean City, 118 Md. 120, 84 Atl. 262; Par-
sons V. District of Columbia, 170 U. S. 54,
42 L. ed. 947, 18 Sup. Ct. Rep. 621; Hagar
V. Reclamation Dist. Ill U. S. 701, 28 L.
ed. 669, 4 Sup. Ct. Rep. 663.
Messrs. S. S. Field and Alexander Preston
filed a separate brief for defendants in error.
Bir. Justice' Day delivered the opinion
of the court:
Phillip Wagner, a corporation, filed its
bill on behalf of itself and otiier taxpayers
3S4
owning property in Baltimore city, adjoin-
ing or abutting upon a public hi^way
which has been paved with improved par-
ing without having been assessed for any
part of the cost thereof, and who are simi-
larly situated with the complainant, who
is the owner of certain real estate, im-
proved by seven two-story dwelling houses,
situated on Philadelphia road, a public
highway within the limits of Baltimore
[212] city, whidi property abuts and ad-
joins upon the public highway, which had
been paved with improved paving, to «irity
vitrified brick, which property, or its pres-
ent or former owner* had never been
specially assessed for any part of the
cost of said improved paving. The bill was
filed for the purpose of enjoining the
enforcement of a certain act of the gen-
eral assembly of the state of Mary-
land (1906, chapter 401; 1008, chapter
202, of the Laws of Maryland), by which
statute the general assembly enacted that a
special tax be levied and imposed upon
property in the city of Baltimore bene-
fited by improved paving of the amount
specified; said tax to continue as to each
property for ten years from the time it at-
tached thereto, the proceeds to be used for
improved paving in the city of Baltimore,
as provided in the act. The act provided
that, for these purposes, all landed prop-
erty in the city of Baltimore, adjoining or
abutting upon any public highway which
had been or should thereafter be paved
with improved paving without special
assessment of any part of the cost upon
the abutting or adjoining property owners,
by the city of Baltimore or the state roads
commission, or other public commission or
agency, or by said city and such commis-
sion or agency, or by either or both, and
any railroad or railway company, occupy-
ing with tracks a portion of such highway,
was declared to be specially benefited by
such improved paving to an extent greater
than the entire amount of the special tax
levied under the act. The property so
benefited was divided into three classes:
Class A to include all landed property In
the city of Baltimore, adjoining or abut-
ting upon a public highway paved with
improved paving and having a width of not
less than 30 feet so paved; C^lass B to in-
clude all such landed property in the city
of Baltimore adjoining or abutting upon a
public highway paved with improved pav-
ing and having a width of less than SO feet,
and [213] not less than 16 feet, so paved;
Class C to include all such landed property
in the city of Baltimore adjoining or aboi-
ting upon any public highway paved with
improved paving and having a width of leM
than 16 feet so paved. The appeal tax
1S» V. s.
1915.
WAONIR T. LB8SB.
213-210
court of the eitj of Baltimore U authorized
and directed by the act to proceed to clat-
tUj and liftt for taxation, as provided by
the aet» for the year 1913, all landed prop*
erty in the city of Baltimore which, on the
1st day of November, 1012, was in a situ-
ation to come under the requirements of
either of said classes. Before classifying
any property under the special tax provided
in the act, the appeal tax court was re-
fuired to give notice to the owner of the
property, designating a certain time when
the owner might appear before the court
and be heard with reference to the liabil-
ity of his property for the lax, and the
class to which it properly belonged. After
having given the owner reasonable notice
and an opportunity to be beard, the appeal
tax court is required to proceed to make
the elassification provided, and to certify
their action, in making such classification,
to the city collector in the same manner
as in cases of classification of real and
leasehold property in the annex for the dif-
ferent rates of taxation as provided under
the act relating thereto; and the city col-
lector is authorized to add the special tax
to the tax bills of the property, to be called
''special paving tax," and to collect the
same in the manner as ordinary taxes on
real estate are collected. The city collector
is required to account for and pay over to
the comptroller, to be by him deposited
with the city register, and to be placed to
the credit of a new paving fund provided in
the Acts of 1906, chapter 401, and 1008,
diapter 202, and to be exclusively appli-
cable to the cost of the work authorized by
said acts, or by any amendment or amend-
ments thereof. Section 3 of the act defines
improved paving to mean any substantial,
smooth paving above the grade [214] of
ordinary macadam, and to include granite
or Belgian brocks, vitrified brick or blocks,
wood blocks, asphalt or concrete blocks,
sheet asphalt, bitulithie bituminous macad-
am and bituminous concrete. Section 4
specifics the amount of the special tax to
be as follows: On all property embraced
fai Class A, 15 cents per year per front
fOot or lineal foot adjoining or abutting
upon the public highway; on all property
embraced in Class B, 10 cents per year
per front foot or lineal foot adjoining or
abutting upon the publie highway; and on
all property embraced in Class C, 0 cents
per year per front foot or lineal foot ad-
joining or abutting upon the public high-
way.
The bill recites that, under and by virtue
of that act, chapter 688 of the Acts of 1912,
the general assembly has attempted to levy
and impose upon the property of the plain-
tiff and other property owners similarly
•• L. ed.
situated, taxes under the three classes men-
tioned, and that the appeal tax oourt of
Baltimore is proceeding now to list and
classify for taxes the property so attempt-
ed to be levied upon by said act» and has
classified said property of the plaintiff,
designating it as belonging to Class A.
The bill then sets forth various grounds
upon which it is elaimed the act is illegal,
the one with which this court is concerned
being that it is in violation of the 14th
Amendment to the Constitution of the
United SUtes.
The act of 1906, to which reference is
made in the act just recited, chapter 401,
as amended by chapter 202 of the Acts of
1908, provides for the creation of a pav-
ing commisnion for the city of Baltimore,
with powers to carry out a plan for a com-
plete system of improved paving of the
streets of the city. The court of appeals
in its opinion in this case states that a
fund of $5,000,000 was procured by means
of a loan provided for this purpose, which
loan was approved by the people at an elec-
tion held on the 2d of May, 1911, and that
the act was sustained [215] by the court of
appeals in the case of Bond v. Baltimore,
118 Md. 159, 84 Atl. 258; and that tlie ob-
ject and purpose of the act of 1912 was to
raise an additional fund of $5,000,000, to
complete the plan adopted by the city for
improved pavements throughout the city,
and that this is to be done by a special pav-
ing tax upon property in the city specially
benefited by improved paving as provided
in the act.
The bill was demurred to upon certain
grounds: that the complainant had an ade-
quate remedy at law; that the act of 1912
in question did not violate the Constitution
of the United States or the Constitution or
Bill of Rights of the sUte of Maryland;
that the houses of the plaintiff were enjoy-
ing special benefit and advantage, fronting
upon a street improved with vitrified brick
pavement, while other houses in the city
are upon unhealthy and unsightly cobble-
stone streets, for which special advantage
the charge put upon the houses of the plain-
tiff by the act in question amounts to $1.80
per year upon each of the houses, or $18
upon each house for the entire ten years.
The demurrer sets forth certain other rea-
sons why a court of equity should not in-
tervene, not necessary to repeat. The de-
murrer was overruled in the circuit court
of Baltimore city, and upon appeal to the
court of appeals of Maryland, that court
reversed the lower court and sustained the
constitutionality of the act as against the
attacks thereon both under the state and
Federal Constitutions. (120 Md. 671, 87
AtL 1040.)
1S5
215>218
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbm,
We will notice -such matters as are
deemed necessary in order to dispose of the
contentions concerning the alleged violation
of rights secured to the complainant under
the Federal Constitution. The provision of
that instrument to which appeal is made by
the complainant is the 14th Amendment in
the protection secured thereunder against
state action which has the effect to deprive
of property without due process of law.
This [216] court has frequently affirmed
that the general taxing systems of the state
are not to be presumed lacking in due proc-
ess of law because of inequalities or objec-
tions, so long as arbitrary action is avoided.
It is not the purpose of the 14th Amendment
to interfere with the discretionary power
of the states to raise necessary revenues
by imposing taxes and assessments upon
property within their jurisdictions.
It is first contended that the complainant
is deprived of its property without due
process of law, because the special assess-
ment levied upon its property -is for the
special benefits long since accrued, and that
the statute under consideration is retro-
spective in its operation, thereby disturb-
ing rights which had accrued to and become
fixed in the property holders lon^ir before
the passage of the statute; that tiie state
had no authority because of benefits thus
long since conferred to make the assessment
in question. But we deem this contention
foreclosed by the decision of this court in
Seattle v. Kelleher, 105 U. S. 351, 49 L. ed.
232, 25 Sup. Ct. Rep. 44. In that case it
was contended that there could be no valid
assessment for a certain improvement, be-
cause it was levied after the work was com-
pleted; but this court met that contention
by saying:
"The principles of taxation are not those
of contract. A special assessment may be
levied upon an executed consideration; that
is to say, for a public work already done.
Bellows V. Weeks, 41 Vt. 690, 609, 600;
Mills V. Charleton, 29 Wis. 400, 413, 9
Am. Rep. 578; Hall v. Street Comrs. 177
Mass. 434, 430, 50 N. E. 68. If this were
not so it might be hard to justify reassess-
ments. See Norwood v. Baker, 172 U. S.
269, 293, 43 L. ed. 443, 4.52, 19 Sup. Ct.
Rep. 187; Williams v. Albany County, 122.
U. S. 154, 30 L. ed. 1088, 7 Sup. Ct. Rep.
1244; Frederick ▼. Seattle, 13 Wash. 428,
43 Pac. 364; Cline ▼. Seattle, 13 Wash.
444, 43 Pac. 367; Bacon v. Seattle, 15 Wash.
701, 47 Pac. 1102; Cooley, Taxn. 3d ed.
1280. ... Of course, it does not matter
that this is called a reassessment. A re-
assessment may [217] be a new assessment.
Whatever the legislature could authorize if
it were ordering an assessment for the first
time it equally could authorize, notvvith-
286
standing a previous invalid attempt to
sess. The previous attempt left the city
free 'to take such steps as were within its
power to take, either under existing stat-
utes, or under any authority that might
thereafter be conferred upon it, to make a
new assessn^ent upon the plaintiff's abut-
ting property' in any constitutional way.
Norwood V. Baker, 172 U. S. 269, 293, 43
L. ed. 443, 452, 19 Sup. Ct. Rep. 187;
McNamee v. Tacoma, 24 Wash. 591, 64 Pac.
791; Annie Wright Seminary v. Tacoma,
23 Wash. 109, 62 Pac. 444."
The doctrine established by this case is
that a subsequent assessment may be levied
because of benefits conferred by the former
action of the city in improving in front of
the lots assessed. As said in the Kelleher
Case, "the benefit was there on the ground
at the city expense." So far as any Federal
constitutional requirement is concerned, the
state might exercise its authority to assess
because of this special benefit, although
that assessment was deferred for some time
after the work was done at the public ex-
pense. And these considerations suggest
the answer to another objection made in
this connection, that it is proposed to use
the assessments for paving other streets
within the city. It is true that the assess-
ments are to go into the general fund pro-
vided for such general use. But we are
unable to see how the constitutional rights
of the complainant are violated, so long as
there was as to it a benefit formerly con-
ferred, and still existing, which the prop-
erty had derived at the public expense. The
fact that the city was authorized to use
the assessment in creating a public fund,
in aid of its scheme to pave other streets
of the city, was a public purpose, and a
legitimate one, for which funds of the city
might be used.
It is further urged, and much stress seems
to be laid [218] upon this point, that the
complainant and others similarly situated
were given no oppoi*timity to be heard as
to the amount of benefits conferred upon
theiu, and the proper adjustment of the
taxes among property owners. But this
question, like the other, is foreclosed bj
the former decisions of this court. This
assessment, and the classification of the
property to be improved, were fixed and
designated by legislative act. It was de-
clared that the property which had been im-
proved by paving theretofore should, ac-
cording to the width of the paving in front
of the respective properties, be assessed at
a certain sum per foot front. We think
such a tax, when levied by the legislature,
did not require notice and a hearing as to
the amount and extent of benefits conferred
in order to render the legislative action due
280 U. 8.
s
1916.
WAGNER ▼. LESER.
218-220
proccM of law within the meaning of the
Federal Constitution. In Spencer v. Mer-
chant, 125 U. 8. 345, 356, 31 L. ed. 763,
768, 8 Sup. Ct. Rep. 921, this court, speak-
ing bj Mr. Justice Gray, said:
"In the absence of any noore specific con-
stitutional restriction than the general pro-
hibition against taking property without
due process of law, the legislature of the
state, having the power to fix the sum
necessary to be leried for the expense of a
public improvement, and to order it to
be assessed, either like other taxes, upon
property generally, or only upon the lands
bedefited by the improvement, is authorised
to determine both the amount of the whole
tax, and the class of lands which will re-
ceive the benefit and should therefore bear
the burden, although it may, if it sees fit,
commit the ascertainment of either or both
of these facts to the judgment of oommis-
donera."
This case has been followed and approved
in subsequent decisions in this court. Par-
sons V. District of Columbia, 170 U. S. 45,
50, 56, 42 L. ed. 943, 945, 947, 18 Sup. Ct
Rep. 521 ; French v. Barber Asphalt Paving
Co. 181 U. S. 324, 343, 45 L. ed. 879, 889,
21 Sup. Ct. Rep. 625. In the latter case, the
former cases in this court were reviewed
at length, and Spencer v. [219] Merchant,
quoted with approval; Norwood v. Baker,
172 U. 8. 269, 43 L. ed. 443, 19 Sup. Ct.
Rep. 187, was commented upon and distin-
guished. French v. Barber Asphalt Paving
Co. supra, was followed and approved in a
series of cases in the same volume:
Wight V. Davidson, 181 U. 8. 871, 45 L. ed.
900, 21 Sup. Ct. Rep. 616; Tonawanda T.
Lyon, 181 U. 8. 389, 45 L. ed. 908, 21 Sup.
Ct. Rep. 609; Webster v. Fargo, 181 U. 8.
394, 45 L. ed. 912, 21 Sup. Ct. Rep. 623;
Cass Farm Co. v. Detroit, 181 U. S. 396,
45 L. ed. 914, 21 Sup. Ct Rep. 644; Detroit
V. Parker, 181 U. 8. 399, 45 L. ed. 917,
21 Sup. Ct. Rep. 624; Wormley v. District
of Cohimbia, 181 U. 8. 402, 45 L. ed. 921,
21 Sup. Ct Rep. 609; Shumate v. Heman,
181 U. S. 402, 45 L. ed. 922, 21 Sup. Ct.
Rep. 645; Farrell v. West Chicago Park,
181 U. S. 404, 45 L. ed. 924, 21 Sup. Ct
Hep. 609; French v. Barber Asphalt Paving
Co. supra, was referred to with approval in
Hibben v. Smith, 191 U. S. 310, 326, 48 L.
ed. 195, 201, 24 Sup. Ct. Rep. 88. See also
LottisvUle k N. R. Co. v. Barber Asphalt
Paving Co. 197 U. S. 430, 49 L. ed. 819,
25 Sup. Ct Rep. 466; Martin v. District of
ColumbU, 205 U. 8. 135, 51 L. ed. 743, 27
Sup. Ct Rep. 440.
Norwood V. Baker, supra, is much relied
upon by the plaintiff in error, and while
60 L« ed.
this court has shown no disposition to 'over-
rule that case when limited to the decision
actually made by the court, much that is
said in it roust be read in connection with
the subsequent cases in this court already
referred to. In Norwood v. Baker, a por-
tion of a person's property, located in a
village of Ohio, was condemned for street
purposes, and the entire cost of opening
the street, including the amount paid for
the strip condemned, with the costs and
expenses of condemnation, was assessed up-
on the abutting property owner whose land
was condemned. This, it was said in
French v. Barber Asphalt Paving Co. supra,
was an abuse of the law and an act of con-
fiscation, and not a valid exercise of the
taxing power. Taking the decisions in this
court together, we think that it results
that the legislature of a state may de-
termine the amount to be assessed for a
given improvement, and designate the lands
and property benefited thereby, upon which
the assessment is to be made, without first
giving an opportunity to the owners of the
property to be assessed to be heard upon
the amount of the assessment or the ex-
tent of the benefit conferred.
We do not understand this to mean that
there may [220] not be cases of such fia-
grant abuse of legislative power as would
warrant the intervention of a court of equity
to protect the constitutional rights of land-
owners, because of arbitrary and wholly
unwarranted legislative action. The con-
stitutional protection against deprivation
of property without due process of law
would certainly be available to persons ar-
bitrarily deprived of their private rights
by such state action, whether under the
guise of legislative authority or otherwise.
But in the present case there is neither
allegation nor proof of such disproportion
between the assessment made and the bene-
fit conferred as to suggest that the small
tax levied upon this property would amount
to an arbitrary exercise of the legislative
power upon the subject. There can be no
question that paving with brick in front
of the property of the complainant con-
ferred a substantial benefit, and gave au-
thority for the subsequent legislation which,
because of that benefit, original and continu-
ing, warranted an assessment upon the
property owner for a confessedly public
purpose, — ^the improvement of the streets
of the city.
We are unable to find that the act of
the legislature in question, or the manner
of its present enforcement, operates to de-
prive the complainant and others similarly
situated of any rights secured to them by
187
£20-228
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
the Federal ConBtitution. The judgment of
the Court of Appeals of Maryland it af-
firmed.
Mr. Justice Pitney and Blr. Juatioe Mc-
Reynoldfl dissent.
[««1] william cramp k sons ship
sl engin'b buildinq company,
Appt.,
▼.
UNITED STATES.
(See S. C. Reporter's ed. 221-233.)
Appeal — from court of claims — ^ con-
clusiveness of finding — mutual mis-
take.
Findings of fact that there was no
mutual mistake in the execution of a con-
tract for the construction of a battleship
for the United States, And. of a release to
the government, conformably t« the con-
tract, of all claims growing out of the per-
formance of such contract, are conclusive
upon the Federal Supreme Coutt on an ap-
peal from' a decree of the court of clainiB
m a suit brought under the act of March 3,
1887 (24 Stat, at L. 505, chap. 359, Comp.
Stat. 1913, § 1136), upon the recommenda-
tion of the Secretary of the Navy, given pur-
suant to the act of June 10, 1896 (29 Stat,
at L. 374, chap. 399), which, upon the
ground that the release included the claim,
ahd that the contract and release were not
subject to reformation, dismissed the peti-
tion of the contractor for the recovery of
damages from the government on account
of a delay alleged to be the latter's fault.
[For other cases, see Apiieal and Error. 4892-
4902, in Digest Sap. Ct. 1908.1
[No. 63.]
Argued November 8, 1915. Decided Novem-
ber 29, 1916.
APPEAL from the Court of Claims to re-
view a judgment which dismissed the
petition In an action by the builders of a
battleship to recover damages alleged to
have grown out of a delay caused by the
Federal government. Affirmed.
See same case below, 46 Ct. CI. 521.
Statement by Mr. Justice Day;
This action was brought in the court of
claims to recover damages on account of
delay alleged to be the fault of the United
States iu preventing completion according
to contract of the battleship Massachusetts.
The court of claims dismissed the petition
(46 Ct. CI. 521).
[222] l^ge sums were demanded for de-
lays covering other periods than are In-
Tolved in this appeal* and the case as now
1S8
presented concerns the right to recover the
sum of $27,984.99, being the damages which
the court of claims found accrued to the
claimant for the period of delay after Feb-
ruary 1st, 1896, for the period of three
months and twenty-nine days. The court of
claims made certain findings of fact, from
which it appears that, after the making of
the contract, claimant arranged a systematic
working program for the construction of
the vessel within the contract time, and
would have completed the vessel within
time had it not been for the failure of the
United States to furnish materials to prop-
erly carry on the work, which, by the terms
of the contract, they had agreed to furnish;
that by reason of such failure of the govern-
ment, the completion of the vessel was de-
layed for two years, six months, and nine
days beyond the contract period; that the
armor to be furnished in accordance with
said clause 'was obtained by the United
States from other contractors, who, without
any fault on the part of the claimant,
failed to complete the manufacture thereof
in time to deliver the same to the claim-
ants as they had agreed. Omitting the
findings covered by the release and contract
made on May 26th, 1896, and on February
1st, 1896, and the amount of damages ac-
cruing for such delay, as to the sum now in
controversy the court found that on No-
vember 23d, 1896, after the completion and
delivery of the vessel in accordance with
the sixth paragraph of the nineteenth clause
of the contract, the balance of the amount
due thereunder, but held in accordance
therewith until the final acceptance of the
vessel, was paid to the claimant, and the
same was accepted .and a release approved
by the Secretary of the Navy was entered
into by it without any written protest, in-
the terms following:
Whereas by the eleventh clause of the con-
tract, [223] dated November 18, 1890, by
and between the William Cramp & Sons Ship
& Engine Building Company, a corporation
created under the laws of the state of Penn-
sylvania, and doing business at Philadel-
phia, in said state, represented by the presi-
dent of said corporation, party of the first
part, and the United States, represented by
the Secretary of the Navy, party of the
second' part, for the construction of a coast
line battleship of about 10,000 tons dis-
placement, which for the purposes of said
contract is designated and known as coast
line battleship No. 2, it is agreed that a
special reserve of sixty thousand dollars
($60,000) shall be held until the vessel has
been finally tried, provided that such final
trial shall take place within five months
1S» V. 8.
1015. WILLIAM CRAMP * SONS 8. & £. B. 00. T. UNITED STATES. 22S-226
from and after the date of the preliminary
aeeeptance of the vessel; and
Whereas by the sixth paragraph of the
nineteenth clause of said contract it is
further provided that when all the con-
ditioaa, covenants, and provisions of said
oontract shall have been performed and ful-
filled by and on the part of the party of
the first party said party of the first part
shall be entitled, wit|iin ten days after the
filing and acceptance of its claims, to receive
the said special reserve, or so much thereof
as it may be entitled to, on the execution of
a finnl release to the United States in such
f<»in as shall be approved by the Secretary
of the Kavy, of all claims of any kind or
description under or by virtue of said con-
tract; and
Whereas the final trial of said vessel was
eompleted on the 24th day of October,
1806; and
Whereas all the conditions, covenants,
and provisions of said contract have been
performed and fulfilled by and on the part
of the party of the first part;
Now, therefore, in consideration of the
premises, the sum of $57,536.60, being the
balance of the aforesaid special reserve to
which the party of the first part is entitled,
being to me, in hand, paid by the United
States, [224] represented by the Secretary
of the Navy, the receipt whereof is hereby
acknowledged, the William Cramp k Sons
Ship k Engine Building Company, represent-
ed by me, Charles H. Cramp, president of
said corporation, does hereby, for itself, and
its successors and assigns, and its legal
representatives, remise, release, and forever
dischaige the United States of and from all
and all manner of debts, dues, sum and
sums of money, accounts, reckonings, claims,
and demands whatsoever, in law or in
equity, for or by reason of, or on account
of, the construction of said vessel under
the contract aforesaid.
In witness whereof I have hereunto set
my hand and afiixed the seal of the William
Cramp k Sons Ship k Engine Building
Company this 23d day of- November, ▲• o.
1896.
The Wm. Cramp k Sons Ship k Engine
Building Company,
Chas. H. Cramp, President.
(SeaL)
Attest:
Theodore W. Cramp,
Assistant Secretary.
The court sets forth the act of June 10,
1890,1 referring certain claims to the Secre-
tary of the Navy for investigation and re-
port, and, in part, the report of the SeerC"
tary, made December 0th, 1896, as follows:
"I have considered carefully the nature of
these claims [225] and the circumstances
out of whidi they arose, and while not at-
tempting to pass on the merits of the same,
or to determine the amount, if any, that
should be allowed on account of the matters
mentioned, the fact exists that there was
delay in the completion of the contracts
beyond the time prescribed therein, and
that such delay was, in some measure, at
l^ast, due to failure on part of the. govern-
ment to obtain and furnish the contractors
the armor for the vessela as required, and
in my judgment the. interests of justice
demand that they sliould be referred to the
court of claims, which can consider these
matters with more deliberation and care
than could be devoted to them by the com-
mittees of the two Houses of Congress • • •
''It will be observed that the contractors
claim relief from the binding force of
these agreements on the ground that the
same were entered into by them under dn*
9f
resa
After consideration, the court finds the
items of cost and expense during the period
of delay now under consideration, three
months and twenty-nine days, after Febru-
ary Ist, 1896, to amount to the sum of
$27,984.99, as already stated, and further
finds:
"The claimant company submits for the
consideration of the court the evidence of
the then Secretary of the Navy and the
president of the claimant company, who
signed the contract on behalf qi their re-
spective principals, along with certain other
testimony, taken since* the decision in the
case of the Indiana, to prove that at the
time of the signing of the contract as afore-
said it was not within the minds of the
parties so signing said contract that the
language of paragraph six of the nineteenth
clause of said contract, to wit: 'On the
execution of a final release to the United
States, in such form as shall be approved
by the Secretary of the Navy, of all claims
of any kind or description under or by
virtue of this contract,' should embrace
claims for unliquidated [220] damages of
the character herein sued for, and that in so
far as the language of said final release in-
cludes such, unliquidated claims, it was in-
serted by mistake, inadvertence, or acci-
dent, and did not express the true intent of
the parties, and that the same should be
so reformed as to exclude such claims.
1 The Secretary of the Navy is herebv au-
tiiorized and directed to examine claims
against the government which may be pre-
•0 Ii. ed.
sented to him by contractors for the build-
ing of the hulls or machinery of naval ves-
aeb under contracts oompleted since Janu-
MZ9
226, 227
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbk,
''The coutt, after due eonsideration of
the evidence aforesaid as well as the evi-
dence adduced on behalf of the defendants,
finds that there was no mutual mistake be-
tween the parties in the execution of the
contract or the releases thereunder ; that the
language of said contract and releases ex-
pressed the intention and purpose of the
United States as previously agreed upon,
though the contracting party on behalf of
the claimant company may have mistaken
its legal rights thereunder.
"Upon the foregoing findings of fact the
court finds the ultimate facts, so far as
they are questions of fact: (1) that at the
time of the execution of the releases set
forth in finding V. the claimant company
was not, by reason of the acts or delays of
tlie government, under duress; and (2) that
there was no mutual mistake between the
parties in the execution of the contract or
the final release thereunder, as the same
expressed the true intent and purpose of
the United States, and the failure of the
officers of the claimant company to appre-
hend the legal effect thereof was not the
fault of the United States or their officers,
and that therefore the same are not the
subject of reformation."
As a conclusion of law, the court decided
on the authority of United States v. Wil-
liam Cramp & Sons Ship k Engine Bldg.
Co. 206 U. S. 118, 51 L. ed. 983, 27 Sup.
Mr. Joseph Gllflllan argued the cause
and filed a brief for appellant:
This court is not limited to the findings
and the conclusions of the court of claims.
United States v. Old Settlers, 148 U. S.
427, 37 L. ed. 509, 13 Sup. Ct. Rep. 650;
Harvey v. United States, 105 U. S. 671,
26 L. ed. 1206; United SUtes v. Clark, 96
U. S. 37, 24 L. ed. 696.
Without admitting verbal evidence to
change the meaning of written words, the
law permits verbal evidence to show what
was the subject-matter . upon which the
words of the written instrument were to
operate.
Peugh V. Davis, 96 U. S. 332, 24 L. ed. 775 ;
Bride V. Brick, 98 U. S. 514, 25 L. ed. 256;
Cabrera v. American Colonial Bank, 214 U.
S. 224, 53 L. ed. 974, 29 Sup. Ct. Rep. 623.
When reference is made to the binding
character of a finding of fact made by a
master or a court, it means that there is
evidence upon which the finding can rest.
That is to say, the master or the court, havr
ing had an opportunity to both hear and see
the witnesses, can determine on which side
the truth lies; but there must be some evi-
dence on which to rest the master's finding.
If there is in effect no evidence to support
his finding, then the finding has no binding
force and the court will reverse such find-
ing as a matter of course. It is only in the
case of confiicting testimony that the find-
ing of the master or the court is entitled
to the weight that is usually accredited to
it.
Qrauel v. Wolfe, 185 Pa. 83, 39 Atl. 819.
Assistant Attorney General Thompson
argued the cause and filed a brief for ap-
pellee:
The release comprehended all claims.
United States v. William Cramp & Sons
Ship & Engine Bldg. Co. 206 U. S. 118, 127,
51 L. ed. 983, 986, 27 Sup. Ct. Rep. 676.
The language of the release clearly ex-
pressed the intention of the contracting par-
ties, and, being responsive to the terms of
the contract, eliminates questions of mutual
mistake or duress.
Delaware k H. Canal Co. v. Pennsylvania
Coal Co. 8 Wall. 276. 290. 19 L. ed. 34^.
353; William Cramp & Sons Ship k Engine
Bldg. Co. V. United SUtes, 216 U. S. 494,
54 L. ed. 587, 30 Sup. Ct. Rep. 392.
[227] After making the foregoing state-
ment Mr. Justice Day delivered the opin-
ion of the court:
The contract in this case and the release
above set forth are in the form shown in
United States v. WiUiam Cramp k Sons
Ship k Engine Bldg. Co. 206 U. S. 118, 51
L. ed. 983, 27 Sup. Ct. Rep. 676, and, ex-
cept for the considerations to be later dealt
with, the present case is ruled by that un-
less relief in equity can be had, for it was
there held that a release executed in the
matter of the contract for the battleship
Indiana included all claims which grew out
of the perfonnance of the contract, al-
though not arising from the actual con-
struction of the vessel. In the subsequent
case of William Cramp k Sons Ship k En-
gine Bldg. Co. V. United States, 216 U. S.
494, 54 L. ed. 587, 30 Sup. Ct. Rep. 392,
the case in 206 U. S. was distinguished be-
ary first, eighteen hundred and ninety-one,
where it is alleged that such contractors
have been subjected to loss and damage
through delays in the work under said con-
tracts which were not the fault of said con-
tractors, but were due to the action of the
government, and to report to the next aes-
140
sion of Congress the result of aaid investiffs-
tion, and whether said claims are, in his
opinion, subjects for the iurisdiction of the
court of claims or for the action of Con-
gress upon the same. 29 Stat at L. chap.
399, p. 374.
1S» V. ft-
1U6. WILLIAM CRAHP ft SONS S. A E. B. CO. v. UNITED STATES. 887-229
Mtue of the different form ol rele«M ■ other parpow bj the uid proceediuga and
oecuted Id that ease, which contained a evidence."
povieo that it thould not Include claima In view ol thia state of the record, we
arising under the contract other than those are met with the question whether, in cases
vhleh the Secretary of the Navj had juris- coming from the court of claims, of tho
dtetion to entertain. character of the one now under considera-
Aa the recital of facts definitely ihows, tion, the Sndingt of tact are coneluaive, as
tte court of claima found, after consider- In other casea, or whether it is the duty of
atioD of the evidi'Dce adduced upon behalf thia court to determine for itself from the
tt the clsimant and the defendant, that evidence sent up whether the claimant la
Iberc was no mutual mistake between the entitled to equitable relief neceuary to the
lartiea in the execution of tlie contract and eatabllahment of hia claim. The cases re-
nlease, and that the contract and releaae lied up<w which it ia contesded make ft
Otpreased the intention and purpose ot the the duty of this court to independently
United States, aa previously agreed upon, [220] consider the evidence are Uarvey v.
Oough the contracting par^ on behalf ot United States, 106 U. B. 671, 26 L. ed. 1206,
the claimant company had mistaken its and United Statea v. Old Settlers, liS V.
kgal righta. Aa ultimate facts, the court S. 42T, 37 L. ed. 609, 13 Sup. Ct. Rep. 860,
found, so far aa the same were questions which we shall notice later on.
af fact, that there waa no mutual miatake In thia case the Secretary of the Navy,
between the parties in the execution of the aa it appears from the recital of the facta,
contract or the final release; that the same recommended that action be brought in the
■ipreftaed the true intent and purpose ot court of claims, and it waa accordingly in-
the United States, and that the failure of atftuted in that court. The court of claima
the oGcers ol the claimant company to ap- waa given jurisdiction under the act ol
prehend the legal effect thereof was not the March 3, 18B7 (chap. 359, | 1, 24 SUt
fault of the United SUtes or ita officera, at L. 606, Comp. SUt. 1913, g 1136), of
tad waa not the aubject ot reformation, all claims "founded . . . upon any con-
If we are governed by the findings of fact in tract, expressed or implied, with the gov-
this, as in other cases [228] coming from ernment ot the United States, or for dam-
tbe court of claims, these flndinga conclude ages liquidated or unliquidated, in cases
the question ot tact as to whether the tes- not sounding in tort, in respect of which
tlnony warranted a refonnation ot the con- claima the party would be entitled to re-
tract upon equitable principles. drees against the United Statea either in •
The record contains a stipulation, signed court of law, equity, or admiralty if the
ij the Assistant Attorney General and United Statea were suable." By the rule*
Muuel for the claimant, in which it ia of this court, the record from Uie court of
ncited that whereaa one of the questions claims la required to contain a transcript
railed and decided by the judgment of the of the pleadings in the case, of the final
wart of claima ia the right of the claimant judgment or decree of the court, and of
to equitable relief through the reformation such interlocutory orders, rulings, judg-
of the contract in suit, and the reformation ments, and decrees as may be necessary to
ol certain releases, and that evidence was a proper review ot the caae, and a finding
iatroduced in behalf ot both parties, toucli- by the court of claima of the facta in the
lag the facts upon which the claimant caae establiabed by the evidence in the na-
toonded its claim for equitable relief, sub- ture of a special verdict, but. not the evi-
JKt to the detendant'a objection, and be- dence eatabliahing them. These facte ars
Oittie the record was very voluminous and *« ^ *•>" ultimate facta established by the
natained the report of many proceedings evidence, and not the evidence upon which
W'relevant to the right to equiUble re- **" """"ate facta are based. Burr v. Dea
IW, oerUin evidence bearing upon that ■""'"" «' * ^"'- C»- 1 Wall. 99. 102, 17
joint waa stipulated into the record. The ^,*^- ?"• "",„.,., . „ , ..
WpnUlion concluded: "Providing, how- „ '° "" „T" "' °"*"'^* "1 '^'T«i' „'"
n* «... ™ .„„„.i ™«.,.,.-. -t. 11 k- k A Barnes, 197 U. S. 146, 49 L. ed. 609, 26
mr that on •ppol reoourae shall be had ^ .^ '^^^ ^^^^ ^^
ha, record of the proceeding, and evi- ^/^, Congress pimitting parties to su^
toe. next herembefore mentioned, for no ^jj jhe justice of their claims against the
pirpoie whatsoever, except for the consider- u„,t^ states for work done in the District
"ion and determination of the queatlon ol Columbia to the adjudication of a com-
»ia respect to the claimant's right to the petent court, that equiUble jurisdiction
^<iitahle relief aforesaid i it being under- was thereby conferred upon the court of
■lood and agreed that the findinga of fact claima; sufficiently, at least, to order the
Bid by the court May 29, 1911, shall not reformation of a written contract between
W ilTectad in any other manner or for any the oUimant and the District, KbA. Ha
•t L. ed. la ^VV
229-232
SUPREldE CXnjRT OF THE UNITED STATES.
OOT. Tkuc,
award a money judgment on the contract
8o reformed. In that case it was said that
the findings of fact [230] would not be re-
viewed in this court, but were regarded as
conclusive here, and that this court would
determine the questions of law properly
brought to its attention upon such findings.
In United States v. Miiliken Imprinting
Co. 202 U. S. 168, 60 L. ed. 980, 26 Sup.
Ct Rep. 572, which was a suit in the court
of claims praying for the reformation of a
contract, and for damages for breach of
the same as reformed, this court held that
the court of claims, under the act of March
3, 1887, had jurisdiction to reform the con-
tract as a basis of a judgment for money
damages. In United States v. Sisseton In-
dians, 208 U. S. 561, 52 L. ed. 621, 28 Sup.
Ct. Rep. 352, where a suit was brought
under a special act of Congress, giving the
court of claims jurisdiction to hear testi-
mony and render final judgment, this court
held that it would not go behind findings
of fact made by the court of claims, citing
McClure v. United States, 116 U. S. 145,
29 L. ed. 572, 6 Sup. Ct. Rep. 321, and
District of Columbia v. Barnes, supra. In
the first of these cases, McClure v. United
States, a motion was made in this court to
order the court of claims to transmit to
this court all the evidence upon which the
case was heard and determined, and, in de-
fault of sending up such evidence, to make
certain findings. .The suit was brought
under a special act of Congress, referring
the claims of one Daniel McClure to the
court of claims, with jurisdiction to hear
and determine the same, and, if the court
should be satisfied that moneys charged
against said McClure as Assistant Pay-
master General were not in fact received
by him, or that other just and equitable
grounds existed for credits claimed by him,
to make a decree, setting forth the amount
to which McClure was entitled, and that an
appeal should be allowed to either party as
in other cases. This court, after setting
forth the statutory authority of this court
to make rules and regulations, and the
rules of this court requiring findings of
fact, declined to make the order, and held
that when Congress passes a special statute
[231] allowing a suit to be brought in the
court of claims, with the right of appeal to
this court, the appeal will be governed by
the rules applicable to cases arising under
the general jurisdiction of the court, unless
provision is made to the contrary in the
special act. The court reviewed the case
of Harvey v. United States, supra, and
stated that it was under a special statute
141
authorizing the court of claims to proceed
in the adjustment of questions between the
claimants and the United States as a
court of equity jurisdiction, and, accord-
ing to the principles of equity jurispru-
dence, reform such contract and render such
judgment as justice and right between
the claimants and the government might
require. This court said that the appeal
given to this court in the Harvey Case,
under that particular statute, was an ap-
peal in equity, which would bring up for
review the facts as well as the law, accord-
ing to equity practice. In the Old Settlers
Case, supra, the action was brought under
a special act of Congress. In that case it
was held that it was the intention of Con-
gress by such special act to confer upon the
court of claims the unrestricted latitude of
a court of equity, stating an account, dis-
tributing a fund, and framing a decree, and
that to that statute the doctrine of tite
Harvey Case applied, and this court pro-
ceeded to examine the evidence, after stat-
ing that it also had the advantage of the
findings of the court of claims.
The present case was brought under the
jurisdiction conferred upon the court of
claims as in other cases. It is true that
the same was brought upon suggestion of
the Secretary under the act of 1806, re-
quiring the Secretary to report whether,
in his judgment. Congress should act or
the case should be referred to the court of
claims. In cases within the general juris-
diction of the court of claims, it has juris-
diction to reform a contract for the purpose
of determining whether the claim if estab-
lished [232] is a valid one against the Unit-
ed States. United States v. Miiliken Im-
printing Co. supra. There is no good reason
which authorizes this court in such cases
to undertake a consideration of voluminous
records and conflicting testiiuony to de-
termine a matter which is committed to
the jurisdiction of the court of claims in
exercising the authority conferred by Con-
gress upon that court, and which is specif-
ically within the rules of this court, made
under authority of Congress, requiring ths
court of claims to certify findings of fact
and conclusions of law. The court of
claims was established for the purpose of
considering the right of claimants to re-
cover against the United States; and when
it finds facts upon matters within its au*
thority, that should be conclusive under
the rules unless Congress otherwise pro-
vides. It follows that upon the facts found
the claimant was not entitled to recover.
Nor do we find any room for the applica-
230 r. s.
1110.
JOHNSON V. WELLS FARGO k CO.
232-234
tkm in thii mm of the doctrine laid down
ia United States t. Clark, 06 U. S. 37, 24
U ed. 606, in which it is held that where
the eoort certifies the evidence, and it ap-
pears that there is none to warrant its legal
eonehiBiony a question of law is presented
whieh may be determined here. In this
«ae we are of opinion that there was ample
teftimon/ to warrant the conclusion of the
eoort of claims, as stated in its findings.
It certainly cannot be said that there was
no rapporting testimony, so as to make the
question one of law, and not of fact. It
does not appear that either of the parties
understood that the contract or release
iltoold be reduced to writing in any other
form than as it was actually written.
There was no mistake in the form of the
instrument. United States v. Milliken Im-
printing Co. 202 U. S. supra, page 177, 60
L ed. 084, 26 Sup. Ct Rep. 572. The testi-
mony of the former Secretary of the Navy
snd of the Secretary in office at the time
the release was signed, to the effect that it
wu not believed that it would cover
claims for [233] damages for delay, if com-
petent for any purpose whatsoever, certain-
ly did not show that mutual mistake of the
parties which, upon well-established prin-
ciples of equity jurisprudence, requires the
r^ormation of the contract, and certainly
no such special circumstances were de-
veloped of fraud, duress, or oppression, as
would necessarily require relief against a
mistake of law.
We find no error in the judgment of the
Court of Clainui, and the same is alBrmed.
Mr. Justice McKenna dissents from the
opinion and judgment in this case. In his
opinion, the court of claims, in view of the
statute of June 10th, 1806 [20 SUt at L.
361, chap. 300], authorizing and directing
the Secretary of the Navy to examine the
elaims here involved, and to report to Con-
gress the result of his investigation, and
whether such claim was» in his opinion,
sabject to the jurisdiction of the court of
eUims or for the action of Congress, im-
plied the intent of Congress that claims of
this character should be considered upon
broad equitable grounds. Thus considered,
Mr. Justice McKenna thinks the claimant
entitled to recover for the delay resulting
Irom the fault of the government, notwith-
standing the form in which the final receipt
WIS drawn and executed.
Mr. Jjutidk McReynolds took no part
hk the * consideration or decision of this
10 L. ed.
[234] GEORGE G. JOHNSON, as Treas-
urer of the State of South Dakota, Appt.,
V.
WELLS FARGO & COMPANY. (No. 277.)
GEORGE G. JOHNSON, as Treasurer of the
SUte of South Bakota, Appt.,
V.
GEORGE 0. TAYLOR,! Individually and
as President of* the American Jijcpreai
Company. (No. 278.)
(See S. C. Reporter's ed. 234-244.)
Taxes — uniformity — measuring value
by gross income.
1. Making gross earnings within the
state the controlling factor in fixing the
value for taxation of the property of ex-
press companies, as ivas done by the state
board of equalization and assessment in the
administration of S. D. Laws 1007, chap.
64, as amended by Laws 1000, chap. 162,
violates the provisions of S. D. Const, art.
11, § 2, specifically requiring that all taxes
levied and Iwsessed upon corporate prop-
erty shall be as near as may be by the
same methods as are provided for the as-
sessment of taxes on individual property,
where individuals and corporations other
than railroad, telephone, telegraph, express,
and sleeping car companies are taxed ac-
cording to ^e value of their property with-
out regard to income.
[For otber cases, see Taxes, I. b, 1, in Digest
Sup. Ct, 1008.)
Injunction — against illegal tax — fraud
or mistake — continuing violation of
constitutional right.
2. A Federal court has jurisdiction in
equity of a bill to enjoin the collection of
state taxes which allies not only that the
assessment is unwarranted by the law,
but that the manner of making the
assessment amounts to fraud upon com-
plainants' constitutional rights, or such
gross mistake as amounts to fraud,^-es-
pecially where it also appears that the tax
for the year preceding had been similarly
enjoined by a decree U'om which no appeal
had been taken.
[For other cases, see Injunction, I. k: Bauity.
I. d, 2, in Digest Sup. Ct. 1V08.]
[Nos. 277 and 278.]
1 Death of James C. Fargo suggested, and
appearance of George C. Taylor, individual-
ly and as president of the American Express
Company, filed and entered October 12, 1015,
as the party appellee herein.
^^^^— .^^^— .— ^^— ^-^^.^— ^^^^-^.^— ^^^^
Note. — As to taxation of express com*
panics — see notes to State v. Duluth Gas &
Water Co. 67 L.R.A. 64, and Western U.
Teleg. Co. v. Taggart, 60 L.R.A. 687.
On iniunction to restrain the collection
of illegal taxes — see notes to Odiin v. Wood-
ruff, 22 L.R.A. 600; Dows v. Chicago, 20 L.
ed. U. S. 65; and Ogdcn City v. Armstrong,
42 L. ed. U. S. 445.
On constitutional equality in relation
to corporate taxation — see note to Bacon
V. State Tax Comrs. 60 L.R.A. 321.
SUPREME COURT OF THE UNITED STATES. Oct. Teem,
Argued October 12 and 13, 1915. Decided
November 20, 1915.
TWO APPEALS from the United States
Circuit Court of Appeals for the
Eighth Circuit to review decrees which, re-
versing decrees of the District Court for the
District of South Dakota, remanded' the case
to the latter court with instructions to en-
ter decrees restraining the collection of cer-
tain state taxes. Affirmed.
See same case below, L.R.A.1910C, 522,
City V. Armstrong, 168 U. S. 224, 42 L. ed.
444, 18 Sup. Ct Rep. 98; Chicago, B. ft Q.
R. Co. V. Baboock, 204 U. S. 585, 51 L. ed.
636, 27 Sup. Ct Rep. 326; United SUtea
Exp. Co. V. Minnesota, 223 U. S. 335, 66
L. ed. 459, 32 Sup. Ct. Rep. 211; Miasouri
V. Dockery, 191 U. S. 170, 48 L. ed. 13S,
24 Sup. Ct. Rep. 53.
On the question of whether Injunction
is the proper remedy in any event, the
court's attention is called to Dowa v. Chi-
cago, 11 Wall. 108, 20 L. ed. 65; Snyder t.
130 C. C. A. 528, 214 Fed. 180. Marks, 109 U. S. 193, 27 L. ed. 908, 3 Sup.
The facts are stated in the opinion. Ct. Rep. 157; Taylor v. Secor, 92 U. S.
Mr. Clarence O. Caldwell, Attorney ^J^^^^^A^' ^^^'J"^^^^
General ef South Dakota, and Mr. L. T. ^' ^' ^V^l f' ^^ '\f'T\fr^ ^t^
Boucher, argued the cause, and, with Mr. ^i/'^o^^^^^^^^^^^^- ?' *®^V^^ ^' ^•
Royal C. Johnson, former Attorney General, ^288, 33 Sup. Ct. Rep. 941.
and Mr. M. H. O'Brien, filed a brief for ap- ^^.«*,* state board of assessment and
nellant* equalization, state tax conunission, or by
The rule announced by the circuit court whatever Dame the body may be called in
of appeals that the aaw^aing board, in fix- '*• ^7' upo" which ha. been conferred the
ing the valuation of the plaintir. property ««>»> Power of aMeaament and equalizatwn,
for taxation, could not Consider the plain- ^ determined the value of proper^ within
tiff, income in the aUte, but w«. confined »•"= "^t*- »" t^« *»"«'»«* °1 '""V.." "*;
to a finding of the value of the property in constitutional law, the determination of
money by finding the amount that can be ""»* ^"i"", ""c question of v»lue i.. of
realized from it by a «ileof it within a rea- -cceB^'ty. «-»«! "<» »« PO*" eziato in the
«,nable time, would seem to be not only f"'**,?^ ""'*,r /k »*7 ^?*"T/!L^"
uxuv u 4, „ . \A ;».^^-« .,..«« «1 fere with or modify that findmg of fact,
•omewhat harsh but would impose upon an ^ «
iTT* r, J ' ^ ^ '^'' ^"' «<»• 863; SUte ex rel. American Exp. Co. v.
8Ute R TirCases. 02 U. 8. 576, 23 U f^}- %'\^,\"p ''«' f JJl.^^^i"?'
-J fiflo w...«-,» TT 'rLi«» r-^ . ktt^ r^„ Chicago, B. i. Q. R. Co. v. Babcocic, 204 U.
ed. 663 Western U. leleg. Co. y. Atty. Oen. T^ ' ^ •
126 U. S. 530. 31 L. ed. 700, 8 Sup. Ct. Bep. ^- I^'^^iJ^ J^' f' "'^ f^ u '^•♦vVk "?' ?"
961 ; Postal Teleg. Cable Co. v. Adams. 155 ^o be able to find fault with the law i,
U. 8. 688. 30 L. ed. 311, 6 Inters. Com. Rep. ""J, *» demonstrate its invalidity.
1 ie c- f^ !»„., oas MO. Aj.«. ir«^ Metropolis Theatre Co. T. Chicago, 228 U.
1, 16 Sup Ct Rep 268 360; Adam. Exp^ g ^^ ^ ^ 33 ^
Co. V. Ohio State Auditor, 166 U. S. 185- mv _a i. i. • x* • ^ u •
224, 41 L. ed. 065-978. 17 Sup. Ct. Rep. , ^t,"***"** '" ''"?*"'°/! °?* o^""""""
604, Pittsburg C. C. & St. L. R. Co. v. *« .8 " "^ "»• ^ °* t*"" "tate Constitution,
•» 1 "ic>i TT o Aai oo T J -lAoi 1A which providcs that no law shall embrace
Backus, 154 U. S. 421, 38 L. ed. 1031, 14 .f ... „v:^i. u^n u
Sup. Ci. Rep. 1114; Fargo v. Hart, 193 U. "^^e^'l^ i^tit" e ^ ' ""'
Wr;n'u^et/ Co 'v t7.^H ^iZ'T^ '^fple\%^^^^^ 2 Cal. Unrep. 788, 14
r^^^^ V lo^' i« fi ?f i 1^^^^^ P»<^- 783; Wickhem v. AlexandrU, 23 S.
;♦ t T\f^ I pT « tf* o^ ^' ^56, 122 N. W. 507; Stuart v. Kirley, 12
Atchison, T & a F. R Co V. Sullivan, 97 g j^ ^^g g^ jj ^^ ^^7 B^^^^ ^ ^^.^
«: ^TT^o^' ,Vo^ ^o^."** T*^*l,^!t!J" \ V^^'^'f' Hiver Valley R. Co. 28 S. D. 84, 132 N. W.
94 U. S. 113, 24 L. ed. 77; Pu^l^a^'B 797; Dunbar v. Frazer, 78 Ala. 538; SUte
Palawj Car Co. v. Pennsylvania, 141 U. ^ McCracken, 42 Tex. 384; Henrico County
8. 18 35 L. ed. 613, 3 Inters. Com. y. Richmond, 106 Va. 282, 117 Am. St Rep.
Rep. o9.5, 11 Sup Ct. Rep. 876; Home jq^^^ 55 g ^ ggg. g^^^ ^ ^^j Whitson v.
Teleph. & leleg. Co. v. Los Angeles, 211 ^^^^ 37 ^enn. 163, 10 8. W. 310; Lewis
U. S. 281, 53 L. ed. 186, 29 Sup. Ct. y^ Dunne, 86 Am. St. Rep. 270, note; Bobel
Rep. 50; Fayerweather v. Rich, 195 U. y. People, 173 HI. 25, 64 Am. St. Rep. 64,
8. 276, 49 L. ed. 193, 25 Sup. Ct. Rep. 50 N. E. 322; Crookston v. Polk County, 79
58; Cleveland, C. C. & St. L. R. Co. Am. St. Rep. 460, note; Newark v. Mt.
T. Bachus, 154 U. 8. 445, 38 L. ed. 1046, Pleasant Cemetery Co. 58 N. J. L. 171, 33
4 Inters. Com. Rep. 677, 14 Sup. Ct. Rep. Atl. 396.
1122; Adams Exp. Co. v. Foe, 64 Fed. 9; Not only may the subject be as compre-
California k, O. Land Co. t. Qowen, 48 Fed. hensive as the legislative discretion may
771; Maish v. Arizona, 164 U. S. 599, 41 choose to make it, but the statute relating
L. ed. 567« 17 Sup. Ct. Rep. 193; Ogden to it may include every matter germane to
J44 2S» U. S.
1915.
JOHNSOl^ T. WELLS FARGO k CO.
and in furtherance of the general subject or
object ezpreesed in the title.
Barksdale v. Laurens, 58 S. 0. 413, 86
S. £. 661; Memphis v. American Exp. Co.
102 Tenn. 336, 52 S. W. 172; Prison Asso.
Y. Ashby, 93 Va. 667, 25 S. E. 893; People
ez rel. Malonej v. Kirk, 162 111. 138, 53
Am. St. Rep. 277, 45 N. £. 830.
The doctrine that perfect equalitj of tax-
ation is, in practice, beyond the reach of
human endeavor, has been subscribed to
generally ly the Federal and state courts
throughout the United States.
Bacon v. State Tax Comrs. 126 Mich. 22,
60 L.R.A. 324, 86 N. W. 307.
Neither the mere illegality of the tax
complained of, nor its injustice nor irreg-
ularity, of themselves, give the right to
an injunction in a court of equity.
SUte R. Tax Cases, 92 U. 8. 575, 23 L.
ed. 663; Dows v. Chicago, 11 Wall. 108,
20 L. ed. 65; Hannewinkle v. Georgetown,
15 Wall. 548, 21 L. ed. 232; Tennessee v.
Sneed, 96 U. S. 69, 24 L. ed. 610; Cooley,
TiLxn. 2d ed. 760-772; Union P. R. Co. v.
Weld County, 133 C. C. A. 392, 217 Fed.
540.
While fraud, accident, or mistake are, In
a general way, grounds for the exercise of
equity jurisdiction, they are not necessarily
grounds for enjoining the collection of a
state or county tax by a Federal court.
Singer Sewing Mach. Co. v. Benedict, 229
U. 8. 481, 57 L. ed. 1288, 33 Sup. Ct. Rep.
941.
Messrs. Clarice C. Caldwdl and L. T.
Boucher also filed a separate brief for ap-
pellant:
Injunction should not lie, because plain-
tiff had an adequate remedy at law, and
should not be permitted to resort to the
equity side of the court.
Cooley, Taxn..p. 772; 8t. Anthony k D.
Elevator Co. v. Bottineau County, 9 N. D.
346, 50 UftA. 262, 83 N. W. 212; Frost v.
Flick, 1 Dak. 126, 46 N. W. 508; Minne-
apolis, St P. k S. Ste. M. R. Co. v. Dickey
County, 11 N. D. 107, 90 N. W. 260; Schaflf-
ner v. Young, 10 N. D. 245, 86 N. W. 733;
Chicago A N. W. R. Co. v. Ft. Howard, 21
Wis. 44, 91 Am. Dec. 458; Schurmeier v.
St. Paul k P. R. Co. 8 Minn. 113, Gil. 88,
83 Am. Dec. 770; Odlin v. Woodruff, 22
L.RJL 699, note; Whiting v. Boston, 106
Mass. 89; Milwaukee v. Koeffler, 116 U. 8.
219, 29 L. ed. 612, 6 Sup. Ct. Rep. 372;
Greene v. Mumford, 5 R. I. 472, 73 Am.
Dee. 79; Bank of Kentucky v. Stone, 88
Fed. 883; Baltimore v. Tefferman, 4 Gill.
426, 45 Am. Dec. 145.
The gross earnings tax law is valid.
McHenry v. Allord, 168 U. 8. 651, 42 7s.
ed. 614, 18 Sup. Ct. Rep. 242; Missouri
River, Ft. 8. & G. R. Co. v. Morris, 7 Kan.
60 li. ed.
210; Francis v. Atchison, T. k 8. F. R. Co.
19 Kan. 303; State ex rel. Poe v. Jones,
51 Ohio St 492, 37 N. E. 945 ; Adams Exp.
Co. T. Ohio SUte Auditor, 166 U. 8. 185,
41 L. ed. 965, 17 Sup. Ct. Rep. 604, 165
U. 8. 221, 41 L. ed. 695, 17 Sup. Ct Rep.
305.
Messrs. Charles O. Bailey and Charlea
W. Stockton argued the cause, and, with
Mr. John H. Voorhees, filed a brief for ap-
pellee :
While all other property is taxed upon
the basis of the requirements for the year
in which the tax is imposed, telegraph, tele-
phone, sleeping car, and express companies
are required to pay a tax based upon the
average tax requirements throughout the
state upon other property for the preced-
ing year. This constitutes a distinct violin
tion of pretty nearly all of the require-
ments of the South Dakota Constitution
respecting uniformity and equality in as-
sessment and taxation.
Pingree v. Auditor General (Pingree v.
Dix) 120 Mich. 95, 44 L.R.A. 679, 78 N.
W. 1025; Re Assessment k Collection of
Taxes, 4 8. D. 6, 54 N. W. 818; Fox's Ap-
peal, 112 Pa. 337, 4 Atl. 140.
The entire theory of the levy and dis-
tribution of the tax is repugnant to the
plain provisions of the South Dakota Con-
stitution.
Chattanooga t. Nashville, C. A St. L. R.
Co. 7 Lea, 661.
Each taxpayer of the state of South Da-
kota is entitled to a legal assessment and
levy of taxes before he can be required to
pay the amount levied, and it is immaterial
that a legal assessment and levy might yield
substantially the same tax as tiiat produced
by the illegal methods of assessment and
levy.
Owensboro Nat. Bank v. Owensboro, 173
U. 8. 664, 43 L. ed. 850, 19 Sup. Ct. Rep.
537.
There is no question involved in this case
of any assessment upon the so-called unit
system, such as was sustained by the su-
preme court in Adams Exp. Co. v. Ohio
SUte Auditor, 165 U. 8. 194, 41 L. ed. 683,
17 Sup. Ct. Rep. 305.
The conclusion reached by the board
shows a result enormously in excess of that
warranted by any of the factors which they
were at liberty to use in their calculations,
and that circumstance is proof of such mis-
conduct on the part of the board as to de-
prive its action of any weight whatever.
State V. London k N. W. American Mortg..
Co. 80 Minn. 277, 83 K. W. 339.
Mr. John G. Mllbnm also argued th«
cause, and, with Messrs. Charles O. Bailey
and John H. Yoorhees, filed a brief for ap-
pellet.
14t
236-239
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tfeu,
Mr. Justice Day delivered the opinion
of tlie court:
These cases were argued at the same time
and may be considered together. They are
appeals from the decision of the circuit
court of appeals of the eighth circuit, by
[237] which the present appellant, as treas-
urer of the state of South Dakota, was en-
joined from assessing certain taxes levied
against the appellees by the state board of
assessment and equalization of the state of
South Dakota, for the year 1910. The bills,
brought for the purpose of enjoining the
collection of such taxes, were dismissed in
the distdct court (205 Fed. 60), which
decrees were reversed in the circuit court
of appeals, and decrees entered remanding
the case to the district court with instruc-
tions to enter decrees for the appellees, re-
straining the collection of the taxes
(L.RA.1916C, 622, 180 C. C. A. 528, 214
Fed. 180).
Under the law of South Dakota, Wells
Fargo k Company made a statement show-
ing that its gross earnings within the state
for the year ending April 30, 1910, were
$131,000.28, and that the value of its otBce
furniture, fixtures, and real estate was
$18,473.98. The board assessed the value
of the property of Wells Fargo k Company
at $289,877, and imposed a tax of 28 mills
on the dollar, making a total tax of $8,-
116.55. Similarly, the board assessed the
value of the American Express Company at
$193,260, and levied a tax of $5,411.28. The
bills averred a tender of taxes upon the
returns, and charged that the assessments
made were in violation of the state Consti-
tution, and, if enforced, would have the
effect to take the property of the express
companies without due process of law, in
violation of the Federal Constitution.
The Constitution of the state of South Da-
kota, as the same was in force at the time of
these assessments, provided (article 11, § 2),
as follows:
'*A11 taxes to be raised in this state shall
be uniform on all real and personal prop-
erty, according to its value in money, to
be ascertained by such rules of appraisement
and assessment as may be prescribed by
the legislature by general law, so that every
person and corporation shall pay a tax in
proportion to the value of his, her or its
[238] property. And the legislature shall
provide by general law for the assessing and
levying of taxes on all corporation property,
as near as may be, by the same methods as
are provided for assessing and levying of
taxes on individual property."
From an analysis of this section, it ap-
pears that taxes to be valid must be uni-
form upon all real and personal property;
146
that the legislation providing for the
sessment and collection of taxes must be
such that every person and corporation may
be taxed in proportion to the value of his,
her, or its property; and that the general
laws which provide for the assessing of
taxes on corporation property shall be, as
near as may be, by the same methods as
are provided for the assessing and levying
of taxes on individual property, i
While this Constitution was in full force
and effect, the legislature passed an act
providing for the assessment of taxes up6n
express and sleeping car companies (chap.
64, Laws of South Dakota, 1907, as amended
by chap. 162 of the Laws of 1900). In § 16
of this act, express companies are required
to transmit statements to the auditor of
state, showing the number of employees en-
gaged by the company in the state, and the
number in elich county ; [239] the number
of offices maintained within the state, and
in each county; the value of all office furni-
ture, fixtures, and real estate owned in. the
state; the number of miles of railroad over
which it conducted its business, and the
number of miles in each county; the num-
ber of express cars owned by the company
and used within the state, and the number
of such express cars leased and controlled,
but not owned, by such company, and used
within the state, or operated under lease or
contract in any manner; the gross earnings
of the total business of such company trans-
acted within the state for the year ending
April 30th preceding, and the value of all
the property of such company used in the
state. Section 17 of the act makes provi-
sion for assessing the property of express
and sleeping car companies, and requires
the board of assessment and equalization to
take into consideration the gross earnings
of the company within the state for the
iThis constitutional provision was in
force at the time the taxes in question were
assessed, but was changed by the amendment
of 1912, which provides:
''All taxes shall be uniform on all prop-
erty and shall be levied and collected for
public purposes only. The value of each
subject of taxation shall be so fixed in money
that every person and corporation shall
pay a tax in proportion to the value of his,
her or its property. Franchises and lioenses
to do business in the state, ^qss earnings
and net income, shall be considered in tax-
ing corporations and the power to tax cor-
porate property shall not be surrendered or
suspended by any contract or grant to which
the state shall be a partv. The legislature
shall provide by general law for the assess-
ing and levying of taxes on all corporate
property, as near as may be by the same
methods as are provided for assessing and
levying of taxes on individual propertv."
2S0 U. S.
im JOHNSON T. WELLS FAROO t CO. Uft-MI
jMT endtng the 30th of April preceding, the groas euningi of the respective com-
■dlenoita made by the eompanj >ad by piniea, ud -finda thftt the boaid of bmtii
tte Board of lUilwaj CommiuioDen, kiid mpnt >nd equal ization, in ""Ung the
117 tod atl other matt«ra necessary to ea- aaeeaament, adopted practicallj the aaine per-
•Ui them to make a jnat and equitable omtage of the amounta paid to the railroad
uMument of the property in the tame ra- oompanies by each of the expreai eompnniaa
tia M the property of iodividuala, and pro- " * **■'■ "' aaaeeament of the companies
rtlf« tliat the (Utement and information reapectively. TTie court reached the cou-
rterivrd shall be laid before the board of at- <!'°«''» **»* U>ere waa but one rational ex-
MWinent and equajliation, which board shall pl^nation of this tact, which was that the
Mriew sucli atataneot or loformation, and E'*!] '>°»'d measured the asseaameiit of
«y change the raliution gives, or add to ^* companiei by the amounta they had paid
tke sUtement any property omitted there- *° **>• railroad companies reapectively ; that
horn, and the board ahall levy a tax upon *■ ^ "T. ^T ^'^ gro" earnings from their
neh property, which tax shall be equal to tiansportation busini^M over the railroads.
&t average amount of state, county, achool. Otherwise, the court concluded. It would
■nuieipal, road, bridge, and other local ^ incredible that the board could hava
(uei levied upon other property for the estimated the taxable value of these com-
precedlng year. panies so that the estimates would come
Ihere is testimony in the reoonl on the "i^t" o"* °ue hundred and sixtieth of the
part of the state treasurer, tending to ahow ■vo* percentage of the respective amounta
(hat the express companies did not com- "'hich the express companies had paid to
ply with the law bb to tiie malcing of their the railway companies. The court of ap-
retums for the year 1910; that in making peals further held that this uniform rela-
tbe assesBment upon the property of the tion of the assessments of the three prin-
eompaniea within the [240J state, the state cipal express companies doing business in
■nditor,_atid, as he believed, the other mem- the state to the respective amounta paid to
tiers of the state board, considered the re- the railroad companies waa more persuasive
porta and annual statements of the com- than the testimony of many witnesses aa
panies, the reports of the railway com- to the thing! which were taken into eon*
paniee, the reports and records of the rail- ,ideratlon by the board In determining the
way commissioners, the contracts for ex- »niount of the aaseasmenta.
press privileges of the express eompaniea in ^ j, ^ i^ ^^ jhi, point that,
tte rtate, the earning, of the compani« in ;„ „„, ,„;„ „,, ^^^ j^ ^^, O^t
tte atate, the var.ous l.ne. of bu.ineas done ^ ^ ^ ., ^ oompanie^ If
by the companies in the state, the , K , . , , ,v . _ j
t^gth of the companies' system, in the »<« the only b.sl. of the asseswnent. mad.
stat^ the number of their offices, the bulk ^y. »»"• >><«'<>. wm the principal factor In
aad value of their t.gitlv. property in the ""■» ""• '•'""' "' *''* Property of the ex-
BtaU, not reported In the annual aUtement, P'"" wmpanies for taxation in the state,
the toUl value of the property, tangible ■"<' "" qu^tion arises. Was such admiaia-
and intangible. In the state, the amount of tration of the statute contrary to the rt-
aioaey which, in the judgment of the audi- quirement of the South Dakota Conatttu-
tor and other members of the board, muat tion, already quoted, requiring all taxation
have been necessary to carry on the various to bs in proportion to the value of the prop-
llnea of the compsjiiea' business in the erty assessed, and corporation property to
state, and .11 other facts which he or the be asaeased, aa near as may be, by the same
ether members of the board could obUin, method, aa are provided for assessing the
tending to throw light upon the value of ,^,„^ p, individual property? It appears
theooinpan.es property ^^^^^ y,^ 5^,^^^ U^l,^^^ statutes, other than
On the other hand, the court of appeal, those relating to railroads, telephone, tele-
mehea the conclusion from the testimony __ , „„, ° ._j .i»™i» ../ _ ._i_
that the express companies doing bu.ine^ f "P*": ^^'^^l ""* "f'^S ""L ,TP"'"'
hi the aUte in 190B Za 1910 were under ^^ ""*' "thorite a valuation which con.ld-
eontraets with the railroad companies to '" «"*' '"'»°"' *"<* ""* ""*""'''■"'• ">d
pay to the latter from 4S per cent to SS "^^'^ corporations are taxed according to
per cent of their gross earnings fro;n the t*"* '»'"*' •■' ^""' property, without refer-
tranaporUtion of ezpreas business over their ence to the income derived therefrom. In
Unaa, and that aa the amounta paid to the other words, property owned by other cor-
nilnwd aompanles by the respective oxpreu porationa and individuals I. [242] aaiessad
•mpaniaa were approximately one half of for what it ia fairly worth, and a valuation
1h« anwontl of their gross earnings from for taxation is not Sxed by a method which
ttcse railroads in South Datoka, the gives controlling effect to the amount of
anounti to paid furnished » meaaute of the gross income derived therefroin. W«
«• Ii. ML «Vl
242-244
SUPREME COURT OF THE UNITED STATES.
Oct. TctM,
concur with the court of appeals that such
procedure is in viblation of the provision
of the South Dakota Constitution, spe-
cifically requiring that all taxes levied and
assessed upon corporation property shall
be as near as may be by the same methods
as are provided for the assessment of taxes
upon individual property.
The stringent provisions af the Constitu-
tion of South Dakota, then in force, re-
quired the adoption of a rule of valuation,
as near as might be, of like character in
assessing individual and corporate prop-
erty in the state, and here, the record shows,
the valuation of the property of the express
companies was based principally upon their
gross incomes, determined by the method al-
ready described. Such administration of
the statute would be illegal, although the
law upon its face be unobjectionable. Rea-
gan V. Farmers* Loan & T. Co. 164 U. S.
302, 390, 38 L. ed. 1014, 1021, 4 Inters.
Com. Rep. 660, 14 Sup. Ct. Rep. 1047.
It is said that this conclusion is not
consistent with the decision of the supreme
court of South Dakota, construing its own
Constitution with final authority, in State
ex rel. American Exp. Co. v. State Board,
3 S. D. 338, 63 N. W. 192. In that case,
while the method of making assessments and
valuations by the state board was consid-
ered, and the court refused to interfere with
such assessments under the circumstances
shown, there was no discussion or decision
of the constitutionality of the act when ad-
ministered as in this case. In that case
the constitutionality of the act does not
seem to have been raised. In Re Opinion
of Judges, 34 S. D. 650, 147 N. W. 729, the
judges of the supreme court of the state
declined to give an opinion to the governor
as to the constitutionality of the law in
question.
In Adams Exp. Co. v. Ohio State Auditor,
165 U. S. 194, 41 L. ed. 683, 17 Sup. Ct.
R^. 305, the so-called Nichols law, which
had been sustained by the supreme court
of the state of Ohio, was sustained by this
[243] court as against an attack thereon
under the 14th Amendment to the Federal
Constitution. In that case, the manner of
taxation was entirely different from the
one now under consideration. The law per-
mitted the taking into consideration of the
value of the property as a unit, and then
ascertaining and assessing the proportion
thereof within the state of Ohio, and it was
held that such proportionate taxation did
not violate the 14th Amendment to the Fed-
eral Constitution. Another case greatly re-
lied upon by appellant is United States
148
Exp. Co. T. Minnesota, 223 U. S. 336, 56
L. ed. 459, 32 Sup. Ct Rep. 211, in which
a statute of the state of Minnesota which
undertook to tax express companies upon
their property employed within the state,
measured by the gross receipts within the
state, from which certain deductiofis were
made, was attacked as in violation o! the
conunerce clause of the Federal Constitu-
tion, as the receipts which were the basis
of the tax were derived in part from inter-
state transportation. In that case, the law
was specifically authorized by the Constitu-
tion of the state, as a means of reaching
a proper valuation of the express compa-
nies' property within the state, in lieu of
all other taxes. There was no contention
in the case that the method used resulted
in an excessive valuation. The tax was sus-
tained, as against the attack under the
commerce clause, upon the ground that, so
far as interstate commerce receipts were
referred to, they were in part the measure
of a tax within the legislative power of the
state, and not in any just sense a burden
upon interstate conmieroe.
We reach the conclusion that the circuit
court of appeals did not err in holding this
tax as in fact levied and assessed to be in
violation of the Constitution of the state.
The contention is made that there was
no ground for equity jurisdiction, and that
therefore the bill should have been dis-
missed. This court has frequently held
that a bill will not lie in the Federal oourts
to enjoin the collection [244] of state taxes
where a plain, adequate, and complete rem-
edy at law has been given to recover back
illegal taxes, and the attack upon the assess-
ment is based upon the sole ground that the
same is illegal and void. See Singer Sewing
Mach. Co. V. Benedict, 229 U. S. 481, 57
L. ed. 1288, 33 Sup. Ct. Rep. 941, where
many of the previous cases in this court
are reviewed. But in the present case, it
was alleged not only that the assessment
was unwarranted by the law, but that the
manner of making the assessment amounted
to fraud upon the constitutional rights of
the express companies, or such gross mis-
take as would amount to fraud, thus aver-
ring a distinct and weH-reoognized ground
of equity jurisdiction. It also appears that
the tax of 1909 had been enjoined similarly,
and that from the decree in that case no
appeal had been taken. Such continuing
violation of constitutional rights might af-
ford a ground for equitable relief. See Cum-
mings V. Merchants' Nat Bank, 101 U. S.
163, 157, 168, 25 L. ed. 908-905} Stanley v.
Albany County, 121 U. S. 535. 550, 30 L.
ed. 1000, 1003, 7 Sup. Ct Rep. 1234; Fargo
V. Hart, 193 U. S. 490, 503, 48 L. ed. 761,
767, 24 Sup. Ct Rep. 498; Taylor v. Louis-
2S» U. 8.
1915.
O'NEILL T. LRAMKR.
244
fiUe k N. R. Co. 31 C. C. A. 537, 60 U. S.
App. 106, 88 Fed. 350.
We find no error in the judgment of the
Circuit Court of Appeals, and the lame is
tlfirmed.
HSNRY W. O'NEILL and Comeliua K.
Hcfferman, Plffs. in Err.,
T.
JACOB F. LEAMER, John T. Daley, Fred
Bartels, et al.
(See & C. Reporter's ed. 244-254.)
Error to iitate court — scope of review
— non-Federal question.
1. The propriety of a statutory delega-
tion of authority to an inferior state court
in the matter of the formation of a drain-
age district is a state question not open
for review in the Federal Supreme Court on
writ of error to the highest state court.
[For other cases, see Appeal and Error, 2162-
2163, in Dlirest Sop. Ct. 1908.]
Courts — Jurisdiction — political ques-
tion — republican form oX govern-
ment.
2. The guaranty to each state in U. S.
Const, art. 4, § 4, of a republican form of
government, cannot be invoked to invalidate
in the courts the proceedings in connection
with the organization and management of a
drainage district.
[For other cases, see Courts, I. e, 2, in Di-
gest Sop. Ct. 1908.]
Error to state court — Federal question
— due process of law.
3. A contention that an appropriation
of land for a drainage district was essential-
ly for a private purpose, and hence contrary
to U. S. Const., 14th Amend., as amounting
to a deprivation of property without due
process of law, presents a Federal question
which will support a writ of error from the
Federal Supreme Court to a state court,
where the latter court denied the right so
asserted.
[For other cases, see Appeal and Error, 189ft-
1913, in Digest Sup. Ct. 1908.]
Elmlnent domain — public or private
use — reclamation of swamp lands.
4. The power of eminent domain was
not exercised for private purposes, contrary
to U. S. Const., 14th Amend., by condemna-
tion proceedings instituted by a drainage
district organized conformably to Neb. Laws
1006, chap. 161, and Laws 1909, chap.
147, which provide that in a proceeding
initiated by a majority in interest of
the owners in any contiguous body of
swamp or overflowed lands for the purpose
of having such land reclaimed and protected
from the effects of water, the district court
for the proper county may declare the
drainage district as deflned to be a public
corporation of the state, although the fact
that any propbsed district is to contain
160 acres or more of wet or overflowed lands
is made by the statute sufllcient cause for
declaring the public utility of the improve-
ment, where the highest state court has not
sustained the act as applicable to any case
in which it was considered, upon a judicial
examination of the facts, that the under-
taking served private interest alone, and
the district in question embraces a large
area with many proprietors, and the enter-
prise was iudiciallv declared, after contest,
to be a public utilitv, and conducive to the
public convenience, health, and welfare.
i^pr oj-^er oises. see Eminent Domain. I, d.
in Digest Sop. Ct 1908.] *
[No. 33.]
Argued October 26 and 27, 1915. Decided
November 29, 1916.
IN ERROR to the Supreme Court of the
State of Nebraska to review a decree
which affirmed a decree of the District Court
of Dakota County, in that state, dismissing
a suit to enjoin the construction of a drain-
age ditch. Affirmed.
See same case below, 93 Neb. 786, 142 N.
W. 112.
The facts are stated in the opinion.
Note. — On the general subject of writs of
error from Unit^ States Supreme Court
to state courts — see notes to Martin v..
Hunter, 4 L. ed. U. S. 07 ; Hamblin v. West-
ern Land Co. 37 L. ed. U. S. 267; Re
Buchanan, 39 L. ed. U. S. 884; and Kipley
▼. Illinois, 42 L. ed. U. S. 998.
On what adjudications of state courts
can be brought up for review in the Supreme
Court of the United States by writ of error
to those courts — see note to Apex Transp.
Co. V. Garbade, 72 L.RJk. 613.
On how and when questions must be
raised and decided in a state court in order
to make a case for a writ of error from the
Supreme "Court of the United States — see
note to Mutual L. Ins. Co. v. McGrew, 63
LRJk. 33.
On what questions the Federal Supreme
Court will consider in reviewing the judg-
BMnta of state courts — see note to Mis-
souri ex reL Hill v. Dockery, 63 L.RJL. 671.
On error to state eourts in cases involv-
•0 14. ed.
ing questions of due process of law — see note
to Burt V. Smith, 51 L. ed. U. S. 121.
As to what constitutes a taking of private
property for public use — see notes to Mem-
phis k C. R. Co. V. Birmingham, S. & T.
River R. Co. 18 L.R.A. 166; D. M. Osborne
k Co. V. Missouri P. R. Co. 37 L. ed. U.
S. 166; Sweet v. Rechel, 40 L. ed. U. S.
188; and Backus v. Fort Street Union
Deoot Co. 42 L. ed. U. S. 863.
On drainage of private lands as public
purpose for which pK>wer of eminent domain
may be exercised — see notes to Re Tuthill,
49 L.R.A. 781; and Henderson t. Lexing-
ton, 22 L.R.A.(N.S.) 163.
As to right to take property for irriga-
ting or draining private lands— see note to
Nash V. CUrk, 1 L.RJk.(N.S.) 208.
On institution of drainage proceeding by
organization of drainage district— see notes
to State ex rel. Utick v. Polk County, 60
L.R.A. 169; and Waterbury v. Piatt Broa.
& Co. 60 LJLA. 229.
%4%
SUPREME COUKT OF THE UNITED STATES.
Oor. Tku,
Mr. William V. Allen argued the cauBe,
and, with Mr. M. D. l^ler, filed a brief for
plaintiffs in error:
The motion to dismiss or affirm should be
denied.
Hecker y. Fowler, 1 Black, 95, 96, 17 L.
cd. 46; Sparrow y. Strong, 3 WalL 97, 105,
18 L. ed. 49, 50, 2 Mor. Min. Rep. 320;
Blythe y. Hinckley, 180 U. S. 333, 338, 45
L. ed. 557, 561, 21 Sup. Ct. Rep. 390;
American Sugar Ref. Co. y. Louisiana, 179
U. S. 88, 91, 45 L. ed. 102, 103, 21 Sup.
Ct. Rep. 43; Virginia-Carolina Chemical
Co. y. Kinren, 215 U. S. 252, 257, 54 L. ed.
179, 184, 30 Sup. Ct. Rep. 78; Chicago,
B. & Q. R. Co. y. Chicago^ 166 U. S. 226,
228, 232, 41 L. ed. 979, 982, 983, 17 Sup.
Ct. Rep. 581 ; Semple y. Hagar, 4 Wall. 431,
435, 18 L. ed. 402, 403; Lynch y. DeBcrnal,
131 U. S. 94, appx. and 19 L. ed. 395;
Mandelbaum y. Nevada, 8 Wall. 311, 19
L. ed. 479: Chicago L. Ins. Co. y. Needles,
113 U. S. 574, 576, 585, 28 L. ed. 1084, 1086,
1088, 5 Sup. Ct. Rep. 681; Eureka Lake k
Y. Canal Co. y. Superior Ct. 116 U. S. 410.
418, 29 L. ed. 671, 674, 6 Sup. Ct Rep.
429; Kaukauna Water Power y. Green Bay
& M. Canal Co. 142 U. S. 254, 269, 282, 35
L. ed. 1004, 1009, 1014, 12 Sup. Ct. Rep.
173; Central of Georgia R. Co. y. Wright,
166 Fed. 157; Bridge Proprietors y. Ho-
boken Land & Improv. Co. 1 Wall. 116,
142, 155, 17 L. ed. 571, 575, 580; Furman y.
Nichol, 8 Wall. 44-64, 19 L. ed. 370-378;
Satterlee y. Matthewson, 2 Pet. 380. 409,
410, 7 L. ed. 458, 467, 468; Chambers y.
Baltimore k 0. R. Co, 207 U. 8. 142, 148,
52 L. ed. 143, 146, 28 Sup. Ct. Rep. 34;
Hunter y. Pittsburgh, 207 U. S. 161, 176,
52 L. ed. 151, 158, 28 Sup. Ct. Rep. 40;
Louisville k N. R. Co. y. Melton, 218 U. S.
36, 46, 48, 54 L. ed. 921, 925, 926, 47 LJIA.
(N.S.) 84, 30 Sup. Ct. Rep. 676; Wilson v.
Black Bird Creek Marsh Co. 2 Pet. 245,
251, 7 L. ed. 412, 414; Crowell y. Randell,
10 Pet. 368, 398, 9 L. ed. 458, 470; Mur-
dook y. Memphis, 20 Wall. 590, 642. 22 L. ed.
429, 446; Murray v. Charleston, 96 U. S. 432,
442, 443, 449, 24 L. ed. 760-7G2, 764 ; Green
Bay k M. Canal Co. v. Patten Paper Co. 172
U. S. 58, 68, 43 L. ed. 364, 368, 19 Sup. Ct.
Rep. 97; Dewey v. Des Moines, 173 U. S. 193,
200, 43 L. ed. 665, 667, 19 Sup. Ct. Rep.
379; St. Louis, I. M. k S. R. Co. y. Taylor,
210 U. S. 281, 296, 52 L. ed. 1061, 1067, 28
Sup. Ct. Rep. 616, 21 Am. Neg. Rep. 464;
Powell y. Brunswick County, 150 U. S. 433,
440, 37 L. ed. 1134, 1136, 14 Sup. Ct. Rep.
166; Sayward t. Denny, 158 U. S. 180, 184,
39 L. ed. 941, 042, 15 Sup. Ct. Rep. 777;
Home for Incurables y. New York, 187 U.
S. 155, 157, 47 L. ed. 117, 118, 63 L.R.A. 329,
23 Sup. Ct. Rep. 84; Mutual L. Ins. Co. y.
MoQrew» 188 U. S. 291, 308, 300, 47 L. ad. >
.950
480, 484, 485, 63 L.RJ^. 88, 28 Sup. Ct
Rep. 375; Montana «z raL Haira t. Rios^
204 U. S. 201, 200, 51 L. ed. 400, 404, 27
Sup. Ct. Rep. 281; Si. Louis, L M. ft 8. R.
Co. V. Hesterly, 228 U. S. 702, 704, 67 L.
ed. 1031, 1033, 33 Sup. Ct. Rep. 703; Arm-
strong y. Athens County, 16 Pet. 281, 285,
10 L. ed. 065, 066; Chicago, B. k Q. R. Co.
V. Illinois, 200 U. S. 561, 565, 580, 50 L. ed.
596, 602, 604, 26 Sup. Ct. Rep. 341, 4 Ann.
Cas. 1175; West Chicago Street R. Co. y.
Illinois, 201 U. S. 506, 510, 520, 60 L. ed.
845, 850, 851, 26 Sup. Ct. Rep. 518; Cincin-
nati, P. B. S. k P. Pocket Co. y. Bay, 200
U. S. 179, 182, 50 L. ed. 428, 432, 26 Sup.
Ct. Rep. 208; Arrowsmith y. Harmoning, 118
U. S. 194, 196, 30 L. ed. 243, 6 Sup. Ct Rep.
1023; Commonwealth Bank y. Griffith, 14
Pet. 56, 58, 10 L. ed. 352, 353; Home Ins.
Co. y. Augusta, 93 U. S. 116, 123, 23 L. ed.
825, 826; Bunn, United States Courts, pp.
19-21 ; Harding y. Illinois, 196 U. S. 78, 84,
49 L. ed. 394, 396, 25 Sup. Ct. Rep. 176.
This court has jurisdiction to review a de*
cision of a state court in a case in which
the validity of a state statute is drawn in
question as repugnant to the Federal Con*
stitution, where the decision was in favor
of its validity.
Craig y. Missouri, 4 Pet 410, 426, 420,
430, 7 L. ed. 903, 910, 911; Byrne y. Mia-
souri, 8 Pet 40, 42, 8 L. ed. 859, 860; Wor-
cester y. Georgia, 6 Pet 515, 541, 8 L. ed.
483, 494 ; Edwards y. Elliott 21 Wall. 532-
558, 22 L. ed. 487-492; Daniels y. Tearney,
102 U. S. 415-422, 26 L. ed. 187-189; Fire
Asso. of Philadelphia y. New York, 119 U.
S. 110, 112, 116, 129, 30 L. ed. 342, 345, 346,
350, 7 Sup. Ct. Rep. 108; McPherson T.
Blacker, 146 U. S. 1, 22, 42, 36 L. ed. 869,
873, 879, 13 Sup. Ct. Rep. 3; Sully y. Am-
erican Nat Bank, 178 U. S. 289, 207, 44
L. ed. 1072, 1076, 20 Sup. Ct. Rep. 935.
A decision of the Federal question in
terms is not essential. If a decision of such
question was necessarily involved in the judg-
ment, it is not a matter of importance that
the state court avoided all reference to it
Chapman y. Goodnow (Chapman t.
Crane) 123 U. S. 540, 31 L. ed. 235, 8 Sup
Ct. Rep. 211 ; Chicago L. Ins. Co. v. Needles,
113 U. S. 574, 28 L. ed. 1084, 5 Sup. Ct.
Rep. 681 ; Bell's Gap R. Co. v. Pennsylvania,
134 U. S. 232, 33 L. ed. 892, 10 Sup. Ct
Rep. 533; Chicago, B. k Q. R. Co. y. Chicago^
166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct Rep.
581; Consolidated Coal Co. v. Illinois, 185
U. S. 203, 46 L. ed. 872, 22 Sup. Ct. Rep.
616; F. G. Oxley Stave Co. v. Butler County,
166 U. S. 648, 652, 655, 660, 41 L. ed. 1140,
1151-1153, 17 Sup. Ct. Rep. 709; Missouri,
K. & T. R. Co. y. Elliott 184 U. S. 530, 533,
534, 46 L. ed. 673, 674, 676, 22 Sup. Ct. Rep.
446; Soott T. MdNeal, 164 U. S. 84, 45, 38
280 V. 8.
1016.
O'NEILL T. TJIAMER.
L. td. 896, 001, 14 Snp. Ct Rep. 1108; Mo-
bile 4 O. R. Co. T. Tennessee, 153 U. S. 486,
403, 38 L. eel. 793, 796, 14 Sup. Ct. Hep.
068; Huntington t. Attrill, 146 U. S. 667,
681, 689, 36 L. ed. 1123, 1133, 1136, 13
Sup. Ct. Rep. 224; Ohio L. Ins. ft T. Co. t.
DeBolt, 16 How. 416, 426, 432, 433, 14 L.
ed. 007, 1001, 1003, 1004.
To justify the conclusion that a pleading
is frivolous, it must be not only without
adequate reason, but so clearly and plainly
without foundation that the defect appears
upon mere inspection, and indicates that its
interposition was in bad faith.
Cook V. Warren, 88 N. T. 38; Toungs t.
Kent, 46 N. T. 672; Lerdall v. Charter Oak
L. Ins. Co. 61 Wis. 426, 8 K. W. 283.
This being a case in which analysis and
ezpoeition are necessary to determine the
Talidity of the sist involTed, the writ of
error cannot be said to be frivolous.
Louisville & N. R. Co. v. Melton, 218 U.
8. 36, 48, 62, 64 L. ed. 021; 926, 927, 47
L.R.A.(N.8.) 84, 30 Sup. Ct. Rep. 676.
The act in question authorizes the taking
of private property for a private purpose,
and is therefore void.
Lake Erie ft W. R. Co. t. Hancock County,
63 Ohio St. 23, 67 N. E. 1000; Chicago ft
E. R. Co. V. Keith, 67 Ohio St. 279, 60
LJLA. 626, 66 N. E. 1020; Donnelly v. Deck-
er, 58 Wis. 467, 46 Am. Rep. 637, 17 N. W.
880; Re Ryers, 72 N. T. 1, 28 Am. Rep.
88; Re Theresa Drainage Dist. 90 Wis. 301,
63 N. W. 288; Fleming t. Hull, 73 Iowa,
608, 36 N. W. 673; McQuillen t. Hatton, 42
Ohio St. 204; State ex rel. Shubert v. Rock-
ford, 102 Minn. 442, 120 Am. St. Rep. 640,
114 N. W. 246; Reeves v. Wood County, 8
Ohio St. 333; Kinnie t. Bare, 68 Mich. 626,
36 N. W. 673; Anderson t. Hill, 64 Mich.
477, 20 N. W. 666; Wilcox v. Paddock, 66
Mich. 23, 31 N. W. 612; Atty. Gen. ex rel.
Alexander v. McLear, 146 Mich. 45, 100 N.
W. 28; GifTord Drainage Dist. v. Shroer,
145 Ind. 672, 44 N. E. 636; Re Tuthill, 163
N. Y. 133, 49 L.R.A. 781, 79 Am. St. Rep.
574, 67 N. E. 303; Priewe v. Wisconsin State
Land ft Improv. Co. 93 Wis. 634, 33 L.R.A.
645, 67 N. W. 918; 14 Cyc. 1026; People
ex rel. Pulman v. Henion, 64 Hun, 471, 19
N. Y. Supp. 488; Gilbert v. Foote, cited in
White T. White, 6 Barb. 483; Woodruff t.
Fisher, 17 Barb. 224; Chaplin v. Highway
Gomrs. 129 HL 661, 22 N. E. 484; Re Pen-
Held, 3 App. Div. 30, 37 N. Y. Supp. 1066;
Re Chili, 6 Hun, 116; Chesbrough v. Put-
nam ft Paulding Counties, 37 Ohio St. 608;
State ex reL Witte v. Curtis, 86 Wis. 140,
56 N. W. 476; Cooley, Const lim. ed. 1003,
p. 768; Missouri P. R. Co. t. Nebraska, 164
U. S. 403, 417, 41 L. ed. 489, 496, 17 Sup.
Ct. Rep. 130; Union Refrigerator Transit
Co. V. Kentucky, 100 U. 8. 104, 202, 203,
•0 li. ed.
60 L. ed. 160, 162, 163, 26 Sup. Ct. Rep.
36, 4 Ann. Cas. 493; 1 Lewis, EnL Dom. 3d
ed. §§ 257, 258; Nichols, Em. Dom. 1900, p.
274; Jenal v. Green Island Draining Co. 12
Neb. 163, 10 N. W. 547 ; Rutherford's Case,
72 Pa. 82, 13 Am. Rep. 667; Anderson t.
Kerns Draining Co. 14 Ind. 100, 77 Am.
Dec. 66; Tjler v. Beacher, 44 Vt 648, 8
Am. Rep. 308; Nickey v. Steams Ranches
Co. 126 CaL 160, 68 Pac 460; People ex
rel. Butler t. Saginaw County, 26 Mich.
20; Atty. Gen. v. Eau Claire, 87 Wis. 401;
Zigler T. Menges, 121 Ind. 00, 16 Am. St.
Rep. 862, 22 N. E. 782; Smith v. Atlantic
ft G. W. R. Co. 26 Ohio St. 01; Minnesota
Caaal ft Power Co. v. Koochiching Co. 97
Minn. 420, 6 LJtJk.(N.6.) 638, 107 N. W.
405, 7 Ann. Cas. 1182; 2 Famham, Waters,
1914^ i 170, p. 003, S 171, pp. 917, 918, §
179, p. 961, $ 181, p. 966; Re Drainage along
Pequest River, 41 N. J. L. 181; jDble v.
Dooley, 137 Mich. 419, 100 N. W. 662; Webb
V. Lucas, 126 Minn. 403, 147 N. W. 274;
Cjrpress Pond Draining Co. v. Hooper, 2 Met.
(Ky.) 350; State, Kean, Prosecutor, t.
Driggs Drainage Co. 46 N. J. L. 01; Com-
mercial Nat. Bank v. lola, 0 Kan. 689, 2
Dill. 353, Fed. Cas. No. 3,061; Ryerson v.
Brown, 36 Mich. 333, 24 Am. Rep. 664;
ScufBetown Fence Co. v. McAllister, 12 Bush,
312; Re Eureka Basin Warehouse ft Mfg.
Co. 96 N. Y. 45; 1 Lewitf. Km. Dom. 3d ed.
§ 312, p. 689; Citizens' Sav. ft L. Asso. t.
Topeka, 20 Wall. 655, 22 L. ed. 466; Park-
ersburg v. Brown, 106 U. S. 487, 604, 27
L. ed. 238, 245; Cole v. LaGrange, 113 U. S.
1-9, 28 L. ed. 896-899, 6 Sup. Ct. Rep. 416;
Chicago, B. ac Q. R. Co. V. Chicago, 166 U.
S. 226-263, 41 L. ed. 979-994, 17 Sup. Ct
Rep. 681; West River Bridge Co. v. Dix,
6 How. 607, 647, 12 L. ed. 635, 662; Kau-
kaima Water Power Co. t. Green Bay ft M.
Canal Co. 142 U. S. 264-282, 36 L. ed. 1004-
1014, 12 Sup. Ct. Rep. 173; Osborne v.
Adams County, 106 U. S. 181-183, 27 L. ed.
129, 1 Sup. Ct. Rep. 168; Cleveland Electric
R. Co. V. Cleveland, 204 U. S. 116-142, 61
L. ed. 300-411, 27 Sup. Ct. Rep. 202.
The l^islature cannot make a private
purpose a public one by mere fiat.
Dodge V. Mission Twp. 54 L.R.A. 242,
46 C. C. A. 661, 107 Fed. 829 ; State ex rel.
Schubert v. Rockford, 102 Minn. 442, 120
Am. St. Rep. 640, 114 N. W. 246; Brown
V. Gerald, 100 Me. 361, 70 LJUL 472, 100
Am. St. Rep. 526, 61 Atl. 786; Healy Lum-
ber Co. V. Morris, 33 Wash. 490, 63 L.ILA.
820, 00 Am. St. Rep. 964, 74 Pac 681;
Denver R. Land ft Coal Co. v. Union P. R.
Co. 34 Fed. 386.
Whether the use is public or private is
a judicial question, to be determined by
the court.
Re NUgara Falls ft W. R. Co. 108 N.
S51
SUPREME COURT OF THE UNITED STATES.
Oct. Twmm,
T. 385, 16 N. E. 420; Pocantioo Water- 1
works Co. ▼. Bird, 130 N. T. 268, 29 N. E. j
246; Logan v. Stogsdale, 123 Ind. 372, 8
L.R.A. 58, 24 N. E. 135 ; Washington Water
Power Co. v. Waters, 186 Fed. 572; Allen
T. Jay, 60 Me. 139, 11 Am. Rep. 185; I^ler
T. Beacher, 44 Vt. 651, 8 Am. Rep. 398;
Re Eureka Basin Warehouse k Mfg. Co.
06 N. Y. 47; Dodge t. Mission Twp. 54
L.R.A. 242, 46 C. G. A. 661, 107 Fed. 820.
To constitute a public use it is necessary
that the general public be to some extent
entitled to control the property appropri-
ated, or have a right to a fixed and definite
use of it, not as a mere matter of favor
or by permission of the owner, but %s a
matter of right.
Gaylord v. Sanitary Dist. 204 111. 676,
63 L.R.A. 582, 98 Am. Si. Rep. 235, 68
N. E. 522 f Minnesota Canal A Power Co. v.
Koochiching Co. 97 Minn. 429, 6 L.R.A
(N.S.) 648, 107 N. W. 405, 7 Ann. Cas.
1182; Berrien Springs Water Power Co. v.
Berrien Circuit Ju(^, 133 Mich. 48, 103
Am. St. Rep. 438, 94 N. W. 379.
A use which may be monopolized or ab-
sorbed by a few, and from which the general
public may and must alternatively be ex-
cluded, is in no sense a public use.
Board of Health v. Van Hoesen, 87
Mich. 533, 14 L.RJL 114, 49 N. W. 894.
If the benefit to be derived from the
lands sought to be appropriated is wholly
for private persons, the use is a private
one, and is not made a public use by the
fact that the public has a theoretical right.
Pittsburg, W. & K. R. Co. t. Benwood
Iron Works, 31 W. Va. 710, 2 L.RJ^. 680,
8 S. E. 453.
Not only must the purpose for which the
land is taken be one in which the public
has an interest, but the state must have a
voice in the manner in which the public
may avail itself of that use.
Board of Health v. Van Hoesen, supra;
Kettle River R. Co. v. Eastern R. Co. 41
Minn. 461, 6 LJRJL. Ill, 43 N. W. 469;
Re Bums, 165 N. Y. 23, 49 N. E. 246;
Pocantico Waterworks Co. v. Bird, 130 N.
Y. 249, 29 N. E. 246; Re Niagara Falls &
W. R. Co. 108 N. Y. 376, 16 N. E. 429;
Re New York, L. & W. R. Co. 99 N. Y. 24,
1 N. E. 27; Re Eureka Basin Warehouse
A Mfg. Co. 96 N. Y. 42; Bridal Veil Lum-
bering Co. ▼. Johnson, 30 Or. 206, 34 hJRJi
868, 60 Am. St. Rep. 818, 46 Pac. 790;
Re Rhode Island Suburban R. Co. 22 R. I.
467, 62 LJLJl. 879, 48 Atl. 691.
The following legislative acts have been
held unconstitutional and void as promoting
a private purpose:
State «z reL Bowen ▼• Adams County,
15 Neb. 668, 20 N. W. 96 (bonds to aid a
S52.
steam gristmill) ; Getehell t. Benton, 80
Neb. 870, 47 N. W. 468 (bonds to aid a
beet sugar mill) ; Citizens' Sav. k L. Asso.
V. Topeka, 20 Wall 665, 670, 20 L. ed.
465, 463 (bonds of municipality to pay
manufacturing company ) ; Hanson v. Ver-
non, 27 Iowa, 47, ). Am. Rep. 215 (tax to
aid in construction of a railroad) ; Os-
borne V. Adams County, 106 U. S. 181, 183,
27 L. ed. 129, 1 Sup. Ct. Rep. 168; Os-
borne V. Adams County, 109 U. S. 1, 2,
27 L. ed. 835, 3 Sup. Ct. Rep. 150 (bonds
to aid a steam gristmill ) ; Weismer t.
Douglas, 64 N. Y. 91, 21 Am. Rep. 686
(authorizing a municipal corporation to
issue bonds to buy stock in a private cor-
poration) ; Re Eureka Basin Warehouse k
Mfg. Co. 96 N. Y. 42 (authorising a cor-
poration formed for manufacturing, mining,
or other chemical purposes to acquire land
by eminent domain); Michigan Sugar Co.
V. Auditor General, 124 Mich. 674, 66
L.R.A. 329, 83 Am. St. Rep. 354, 83 N.
W. 625 ( providing for the payment of bonds
to sugar beet growers) ; Wisconsin Keeley
Institute (^. v. Milwaukee County, 95 Wis.
153, 36 L.RJi. 55, 60 Am. St. Rep. 106,
70 N. W. 68 (to treat habitual drunkards
at a private institution) ; Baltimore k
E. S. R. Co. V. Spring, 80 Md. 510, 27
L.R.A. 72, 31 Atl. 208 (money for the bene-
fit of an insolvent railroad) ; Opinion of
Justices, 155 Mass. 598, 16 L.R.A. 809, 30
N. E. 1142 (to purchase and distribute fuel
to inhabitants of a municipality) ; Under-
wood V. Wood, 93 Ky. 177, 15 L.R.A. 825,
19 S. W. 405 (for payment of tuition of
pupils to attend private academies) ; Re
Barre Water Co. 62 Vt. 27, 9 L.RJ^. 195,
20 Atl. 109 (to distribute water power to
private consumers) ; Bush v. Orange Coun-
ty, 159 N. Y. 212, 45 L.RJ^. 556, 70 Am.
St Rep. 638, 53 N. E. 1121 (to raise
money to pay drafted men serving in the
Union Army or their heirs) ; Parkersburg
V. Brown, 106 U. S. 487, 491, 27 L. ed.
238, 240, 1 Sup. Ct. Rep. 442; Cole v. La-
Grange, 113 U. S. 1, 9, 28 L. ed. 896, 898,
5 Sup. Ct. Rep. 416; Dodge v. Mission
Twp. 54 L.RJL 242, 46 C. C. A. 661, 107
Fed. 832; Allen v. Jay, 60 Me. 124, 11 Am.
Rep. 185; Coates v. Campbell, 37 Minn.
498, 36 N. W. 366 (bonds to aid manu-
facturers) ; Lowell v. Boston, 111 Mass.
454, 15 Am. Rep. 89 (bonds to aid sufferers
from Boston fire) ; Patty ▼. Colgan, 97
CaL 251, 18 LJUL 744, 31 Pac 1133 (aid
to flood sufferers) ; Lucas County v. State
(Davies v. State) 76 Ohio St. 136, 7 L.R.A.
(N.S.) 1196, 78 N. E. 965 (annuities for
the blind) ; State ex rel. Garrett v. Froeh-
Uch, 118 Wis. 129, 61 L.R.A. 346, 99 Am.
Si. Rap. 986, 94 N. W. 60 (bounty to privats
inebriate hospital) i State ex rel. Garth t.
S8II V. 8.
1915
O'NEILL Y. LKAMER.
Switzler, 143 Mo. 287, 40 L.R.A. 280, 65 Am.
St. Hep. 653, 45 S. W. 245 (bounty to stud-
ents attending state university) ; Kingman
T. Broclaon, 153 Mass. 255, 11 L.H.A. 123,
26 N. E. 008 (aid in erection of building
for Grand Army post) ; State ex rel. Grif-
fith y. Osawkee Twp. ll^Kan. 418, 10 Am.
Rep. 00 (furnishing seed grain to farm-
ers) ; William Deering k Co. t. Peterson,
75 Minn. 113, 77 N. W. 568 (appropriation
to purchase seed grain for those without
crops) ; Deal y. Mississippi County, 107
Mo. 464, 14 L.R.A. 622, 18 S. W. 24 (boun-
ties to growers of trees) ; Missouri P. R.
Co. T. Nebraska, 1G4 U. S. 403, 41 L. ed.
489, 17 Sup. a. Rep. 130 (taking of rail-
way light of way for private elevator) ;
Atchisjn, T. & 8. F. R. Co. v. Campbell, 61
Kan. 430, 48 L.R.A. 251, 78 Am. St. Rep.
328, 59 Pac. 1051 (free tickets to stock ship-
pers) ; Harp v. Choctaw, O. k G. R. Co.
118 Fed. 169 (compelling building of spur
track to coal mine) ; Oxnard Beet Sugar
Co. V. State, 73 Neb. 66, 102 N. W. 80,
105 N W. 716; Blichigan Sugar Co. v.
Auditor General, 124 Mich. 674, 56 L.R.A.
320, 83 Am. St. Rep. 354, 83 S. W. 625;
Minnesota Sugar Co. v. Iverson, 91 Minn.
30, 07 N. W. 455 (bounty for growers of
•ugmr beets).
The constitutional validity of a statute
is to be tested not by what has been done
under it, but by what may, by its authority,
be done.
Stuart V. Palmer, 74 N. Y. 188, 30 Am.
Rep. 289; Gilman T. Tucker, 128 N. Y.
200, 13 L.RJ^. 304, 26 Am. St. Rep. 464,
2^ N. E. 1040; MonUna Co. v. St. Louis
Min. k Mill. Co. 152 U. S. 160-172, 38
Lw ed. 30S-401, 14 Sup. Ct. Rep. 506.
A mere legislative declaration of the
purpose of the act is not binding, and can-
not conceal its real object.
Lochner v. New York, 198 U. 8. 45-76,
49 L. ed. 937-040, 25 Sup. Ct. Rep. 539,
3 Ann. Cas. 1133; Webster v. Susquehanna
Pole Line Co. 112 Md. 416, 76 Atl. 254,
21 Ann. Cas. 357; Salisbury Land k Im-
proY. Co. Y. Com. 215 Mass. 371, 46 ImRJL.
(N.S.) 1201, 102 N. E. 619.
The application and hearing were strict-
ly esp parte, and in no sense due process of
law.
Wilber V. Reed, 84 Neb. 767, 122 N. W.
63; People ex rel. Stephens v. Tallman,.36
Barb. 222; Brooklyn v. Franz, 87 Hun, 54,
83 N. Y. Supp. 869; Seifert v. Brooks, 34
Wis. 443; State ex rel. Flint ▼. Fond du
Lac, 42 Wis. 287; Pennoyer v. Ncflf, 05 U.
8. 714-748, 24 L. ed. 565-578; Chicago,
H. k St. P. R. Co. ▼. Minnesota, 134 U.
8. 418, 466, 33 L. ed. 970, 985, 8 Inters.
Com. Rep. 209, 10 Sup. Ct. Rep. 462, 702.
A flooding of land is a taking within the
Beaning of the law of eminent domain.
•0 li. ed.
Pumpelly t. Green Bay k M. Canal Co.
13 Wall. 166, 182, 20 L. ed. 557, 561;
United SUtes v. Lynah, 188 U. S. 445, 47
L. ed. 539, 23 Sup. Ct. Rep. 349; Williams
T. United States, 104 Fed. 50; Nichols,
Em. Dom. ed. 1900, $ 61; Manigault v.
Springs, 199 U. S. 473, 484, 50 L. ed. 274,
280, 26 Sup. Ct. Rep. 127 ; King y. United
States, 50 Fed. 9.
The rule in Nebraska is that the dam-
ages must be paid, or the payment thereof
secured, before the property is taken.
Republican Valley R. Co. y. Fink, 18
Neb. 85, 24 N. W. 439; Hull y. Chicago,
B. k Q. R. Co. 21 Neb. 374, 32 N. W. 162 ;
Zimmerman v. Kearney County, 33 Neb.
622, 50 N. W. 1126; Livingston v. John-
son County, 42 Neb. 280, 60 N. W. 555;
Hodges y. Seward County, 49 Neb. 668,
68 N. W. 1027; Lewis v. Lincoln, 55 Neb.
4, 75 N. W. 154; Chicago, B. & Q. R. Co.
v. Douglas County, 1 Neb. (Unof.) 250,
95 N. W. 339; Hogsett v. Harlan County,
4 Neb. (Unof.) 312, 97 N. W. 316.
The taking is ordinarily the formal act
of some responsible body, consisting of the
passing of a vote or the filing of some docu-
ments, and the time and extent of the tak-
ing are thus definitely fixed; but, in the
absence of a formal taking, actual author-
ized physical interference with the property
marks the punctum tetnporis.
Nichols, Km. Dom. 1909 ed. p. 206, § 170.
The land to be appropriated must be
identified with as much certainty as is re-
quired in a conveyance.
Warren y. Brown, 31 Neb. 18, 47 N. W.
633; Rice v. Danville, L. k T. P. Road 0>.
7 Dana, 81; 15 Cyc. 855, 857; St. Louis k
5. F. R. Co. y. Southwestern Teleph. k
Teleg. Co. 58 C. C. A. 198, 121 Fed. 282;
Re Marsh, 71 N. Y. 317; Lyon y. Jerome,
26 Wend. ^5, 37 Am. Dec. 271; Re New
York C. ft H. R. R, Co. 70 N. Y. 192;
Re Amsterdam Water Comrs. 96 N. Y.
357; Bell Teleph. Co. y. Parker, 187 N. Y.
303, 79 N. E. 1008.
The state cannot, by the violation of its
Constitution, impart vitality to the act and
make it due process of law.
Minor v. Happersett, 21 Wall. 162-178,
22 L. ed. 627-631; Re Duncan (Duncan
V. McCall) 139 U. S. 449-462, 35 L. ed.
219-224, 11 Sup. Ct. Rep. 573; Phoenix Ins.
Co. y. The Treasurer (Phoenix Ins. Co. y.
Gardiner) 11 Wall. 204-210, 20 L. ed. 112-
114; Hall v. DeCuir, 95 U. 6. 485-517,
24 L. ed. 547-557; Delmas v. Merchants'
Mut. Ins. Co. 14 WaU. 661-670, 20 L. ed.
757-760.
This tribunal is not bound by the state
decisions.
Bunn, United States Courts, 1914, pp.
99, 100; Fallbrook Irrig. Dist. y. Bradley,
164 U. a 112, 159, 41 L. ed. 369, 389,
SUPREME COURT OF THE UNITED STATES.
Cor. Temm,
17 6i^>. Ct. Rep. 56; Chicago, B. k Q. R.
Co. Y. Illinois, 200 111. 661-601, 60 L. ed.
696-612, 26 Sup. Ct. Rep. 341, 4 Ann. Cas.
1176; Hughes, Fed. Proc. 1913, p. 636;
Loveland, App. Jurisdiction, 1911, § 333,
p. 714; Taylor, Jurisdiction & Procedure of
U. S. Sup. Ct. 1906, pp. 362, 363. '
No man can be coerced into corporate
relations with others, and to assume and
perform the duties and burdens of that re-
lation.
Dartmouth College t. Woodward, 4
Wheat. 618, 708, 4 L. ed. 629, 676; 1
Morawetz, Priv. Corp. 1886, § 24; Ellis v.
Marshall, 2 Mass. 269, 3 Am. Dec. 49;
Gardner v. Hamilton Mut. Ins. Co. 33 N.
Y. 421; Marshall, Corp. 1902, § 195, pp.
496, 496; Re North Milwaukee, 93 Wis. 616,
33 L.RA. 638, 67 N. W. 1033; Territory
ex rel. Kelly v. Stewart, 1 Wash. 98, 8
L.R.A. 106, 23 Pac. 405; Glaspell v. James-
town, 11 N. D. 86, 88 N. W. 1023.
It is elementary that land cannot be
taken under the power of eminent domain,
unless it is thereafter to be devoted to the
use. of the public independently of the will
of the person or corporation taking it.
Berrien Springs Water Power COb v.
Berrien Circuit Judge, 133 Mich. 48, 103
Am. St. Rep. 438, 94 N. W. 380: Uyerson
V. Brown, 35 Mich. 333, 24 Am. Rq>. 564;
Board of Health v. Van Hoesen, 87 Mich.
533, 14 L.RA. 114. 49 N. W. 894.
Statutes which make private interest the
test have been held void in the following
cases:
Gaylord v. Sanitary Dist. 204 111. 676,
63 L.R.A. 682, 98 Am. St. Rep. 235, 68
N. E. 622; Citizens' Sav. A, L. Asso. v.
Topeka, 20 Wall. 655-670, 22 L. ed. 465-
463; Parkersburg t. Brown, 106 U. S. 487-
504, 27 L. ed. 238-246, 1 Sup. Ct. Rep. 442 ;
Chicago, B. k Q. R. Co. v. Chicago, 166 U.
S. 226-263, 41 L. ed. 979-994, 17 Sup. Ct.
Rep. 581; Cole v. LaGrange, 113 U. S. 1-9,
28 L. ed. 896-899, 6 Sup. Ct. Rep. 416;
West River Bridge Co. ▼. Dix, 6 How. 607-
650, 12 L. ed. 635-552; Missouri P. R. Co.
v. Nebraska, 164 U. S. 403-417, 41 L. ed.
489-495, 17 Sup. Ct. Rep. 130; Kaukauna
Water Power Co. v. Green Bay k M. Canal
Co. 142 U. S. 254-282, 35 L. ed. 1004-1014,
12 Sup. Ct. Rep. 173; Minneapolis General
Electric Co. ▼. Minneapolis, 194 Fed. 215;
Shasta Power Co. v. Walker, 149 Fed. 670,
19 L.ILA.(N.S.) 725, 87 C. C. A. 660, 160
Fed. 859; Osborne ▼. Adams County, 106
U. S. 181-183, 27 L. ed. 129, 1 Sup. Ct. Rep.
168; The Liberty Bell, 23 Fed. 843; Cleve-
land Electric R. Co. v. Cleveland, 204 U.
S. 116-142, 61 L. ed. 399-411, 27 Sup. Ct.
Rep. 202; Sutherland-Innes Co. v. Evart,
80 C. C. A. 806, 68 U. S. App. 336, 86
Fed. 604; Parks t. Wyandotte County, 61
S54
Fed. 440; St. Louis 4 C. R. Co. v. Thomas,
34 Fed. 774; Weidenfeld ▼. Sugar Run B.
Co. 48 Fed. 615; Imperial Water Co. ▼.
HoUbird, 116 C. C. A. 526, 197 Fed. 4;
Ottawa V. Carey, 108 U. S. 110-124, 27
L. ed. 669-675, 2 Sup. Ct. Rep. 361; Weis-
mer v. Douglas, 91 N. Y. 91, 21 Am. Rep.
586; Re Jacobs, 98 N. Y. 99, 60 Am. Rep.
636; Williams v. Duanesburgh, 66 N. Y.
129; Inspiration Consol. Copper Co. ▼.
New Keystone Copper Co. 16 Ariz. 257,
144 Pac. 277; Cozard v. Kanawha Hard-
wood Co. 139 N. C. 283, 1 L.R.A.(N.S.)
969, 111 Am. St. Rep. 779, 61 S. E. 932;
Miller v. Pulaski, 109 Va. 137, 22 L.RJ^.
(N.S.) 662, 69 S. £. 880; Alfred Phosphate
Co. V. Duck River Phosphate Co. 120 Tenn.
260, 22 L.R.A.(N.S.) 701, 113 S. W. 410;
Howard Mills Co. v. Schwartz Lumber k
Coal Co. 77 Kan. 699, 18 L.R.A.(N.S.)
366, 95 Pac. 659; State ex rel. Tacoma
Industrial Co. v. White River Power Co.
39 Wash. 648, 2 L.R.A.(N.S.) 842, 82 Pac.
150, 4 Ann. Cas. 987; Sutter County v.
Nichols, 152 Cal. 688, 15 L.R.A.(N.S.) 616,
93 Pac. 872, 14 Ann. Cas. 900; Pere Mar-
quette R. Co. V. United States Gypsum Co.
154 Mich. 290, 22 LJl.A.(N.S.) 181, 117
N. W. 733; Kansas City v. Hyde, 106 Mo.
498, 7 L.RA.(N.S.) 639, 113 Am. St. Rep.
766, 96 S. W. 201; Arnspergcr v. Craw-
ford, 101 Md. 247, 70 L.R.A. 497, 61 Atl.
413; Rockingham County Light & P. Co.
V. Hobbs, 72 N. H. 531, 66 L.R.A. 581, 58
Atl. 46; Clark v. Mitchell County. 6!) Kan.
542, 66 L.ILA. 965, 77 Pac. 284; Logan v.
Stogsdale, 123 Ind. 372, 8 L.R.A. 58, 24
N. E. 136; Welton v. Dickson, 38 Neb. 767,
22 L.RJ^. 496, 41 Am. St. Rep. 771, 57
N. W. 559; Board of Health v. Van Hoesen,
87 Mich. 633, 14 L.R.A. 114, 49 N. W.
894; Avery v. Vermont Electric Co. 75 Vt.
235, 69 L.RA. 817, 98 Am. St. Rep. 818, 64
Atl. 179; Pittsburg, W. k K. R. Co. v.
Benwood Iron Works, 31 W. Va. 710, 2
L.R.A. 680, 8 S. E. 453; St. Louis, I. M.
& S. R. Co. V. Petty, 57 Ark. 359, 20 L.RA.
434, 21 S. W. 884; Kyle v. Texas k N. O.
R. Co. 3 Tex. App. Civ. Cas. (Willson)
518, 4 LJUk. 275; Re Barre Water Co. 62
Vt. 27, 9 L.ILA. 195, 20 Atl. 105; Brewster
T. J. k J. Rogers Co. 169 N. Y. 73, 68 L.RJk.
496, 62 N. E. 164; Wisconsin Water Co. v.
Winans, 86 Wis. 26, 20 L.R.A. 662, 39 Am.
St. Rep. 813, 54 N. W. 1003; Opinion of
Justices, 204 Mass. 607, 27 L.RJk.(N.S.)
483, 91 N. E. 405; Neitzel ▼. Spokane In-
ternational R. Co. 65 Wash. 100, 36 L.RA.
(N.S.) 622, 117 Pac. 864; SaUsbury Land
k Improv. Co. t. Com. 216 Mass. 371, 46
L.R.A.(N.S.) 1196, 102 N. E. 619; Sanborn
V. Van Duyne, 90 Minn. 216, 96 N. W. 41;
Pennsylvania Mut. L. Ins. Co. v. Philadel-
phU, 242 Pa. 47, 49 L.RJL.(N.S.) 1062,
28» U. S.
19J5.
O'NEILL T. LEAMER.
88 Atl. 904; State ez rel. Springfield In-
vert. Co. T. Superior Ct. 78 Wash. 679, 61
IJIA.(N.S.) 987, 139 Pac. 601; Anderson
r. Smith-Powers Logging Co. 71 Or. 276,
LR.A.191GB, 1080, 139 Pac. 736; SUte ex
reL Shropshire t. Superior Ct. 51 Wash. 386,
99 Pac. 3; Northern Light & P. Co. v.
Stacher, 18 Cal. App. 404, 109 Pac. 896;
State ex rel. CUrk t. Superior Ct. 62 Wash.
812, 114 Pac 444; Bradley v. Pharr, 45
La. Ann. 426, 19 L.R.A. 647, 12 So. 618;
SUte ▼. Hazelton k L. R. Co. 40 Ohio St.
804; State ex rel. Luedinghaus v. Superior
Ot 72 Wash. 480, 130. Pac. 752; Jeter t.
YintoQ-Roanoke Water Co. 114 Va. 769,
78 8. E. 021, Ann. Cas. 1914C, 1029; Re
Splitrock Cable Road Co. 128 N. T. 408,
28 N. £. 606; Re Eureka Basin Warehouse
k Mfg. Co. 96 N. Y. 42; Barton v. RiTcr-
side Water Co. 156 Cal. 609, 23 L.RJL.
(N.S.) 331, 101 Pac. 790; Garrison v.
North Pasadena Land & Water Co. 163
da. 236, 124 Pac. 1009; San Joaquin &
K. River Canal k Irrig. Co. v. Stevenson,
184 CaL 221, 128 Pac. 024; Re Niagara
Falls k W. R. Co. 121 N. Y. 319, 24 N. E.
452; Wisconsin Keeley Institute Co. v. Mil-
waukee County, 96 Wis. 153, 36 liRJi.
56, 60 Am. St. Rep. 106, 70 N. W. 68;
Opinion of Justices, 155 Mass. 698, 15
LJtJk. 809, 30 N. E. 1142; Bush v. Orange
County, 159 N. Y. 212, 45 L.R.A. 566. 70
Am. St. Rep. 538, 63 N. E. 1121 ; Baltimore
k E. S. R. Co. Y. Spring, 80 Md. 610, 27
L.R.A. 72, 31 Atl. 208; Lucas County t.
SUte (Davies v. State) 75 Ohio St 114,
7 L.RJk.(N.S.) 1196, 78 N. E. 955; State
ex rel. Garth t. Switzler, 143 Mo. 287, 40
L.R.A. 280, 66 Am. St. Rep. 653, 46 S.
W. 246; Patty v. Colgan, 97 Cal. 251, 18
LJt.A. 744, 31 Pac. 1133; Coates v. Camp-
bell, 37 Minn. 498, 36 N. W. 366; Kingman
T. Brockton, 153 Mass. 255, 11 KILA. 123,
26 N. E. 998; William Deering k Co. ▼.
Peterson, 75 Minn. 118, 77 N. W. 668;
Deal T. Mississippi Co. 107 Mo. 464, 14
L.RJ^. 622, 18 S. W. 24; Oxnard Beet Sugar
Co. ▼. State, 73 Neb. 66, 102 N. W. 80,
105 N. W. 716; Michigan Sugar Co. v.
Auditor General, 124 Mich. 674, 66 L.R.A.
929, S3 Am. St. Rep. 364, 83 N. W. 626;
Atchison, T. k S. F. R. Co. v. Campbell,
•1 Kan. 439, 48 L.R.A. 251, 78 Am. St.
B«p. 328, 69 Pac. 1051; Minnesota Sugar Co.
T. Iverson, 91 Minn. 30, 97 N. W. 464;
State ex rel. Bowen ▼. Adams County, 15
Keb. 560, 20 N. W. 96; Getchell v. Benton,
10 Neb. 870, 47 N. W. 468; Albright v.
SoMcx County Lake k Park Commission,
71 N. J. K 303, 69 L.ItA. 768, 108 Am.
8t Rep. 749, 57 Atl. 308, 2 Ann. Cas. 49;
Bailey t. New York, 8 Hill, 531, 88 Am.
Dee. 669; Wyandotte County v. Abbott, 52
Kan. 148, 34 Pae. 416; Huber t. Merkel,
•• If. ed.
117 Wis. 365, 62 L.R.A. 589, 98 Am. 8t
Rep. 933, 94 N. W. 354.
A statute declaring a corporation essen-
tially private to be public, and a purpose
essentially private to be a public purpose,
is unconstitutional and void.
Bloodgood v. Mohawk k H. River R. Co.
18 Wend. 52, 31 Am. Dec. 313; Amsperger
V. Crawford, 101 Md. 247, 70 L.R.A. 497,
61 Atl. 413; Pennsylvania Mut. L. Ins. Co.
T. Philadelphia, 242 Pa. 47, 49 L.R.A.(N.S.)
1062, 88 Ati. 904.
A legislature cannot make a private pur-
pose public by declaring it to be such, or
by authorising the exercise of the power of
eminent domain for any use which the
courts may determine not to be a public
use.
Webster ▼. Susquehanna Pole Line Co.
112 Md. 416, 76 Atl. 264, 21 Ann. Cas.
357; State ex rel. Wausau Street R. Co. v.
Bancroft^ 148 Wis. 124, 38 L.R.A. (N.8.)
526, 134 N. W. 339.
A statute having a double purpose, one
which is public and the other private, is
void as to the latter; a statute granting
a power which may be used for a public
or a private purpose at the cation of the
grantee Is void.
Atty. Gen. v. Eau Claire, 37 Wis. 437.
Dissenting landowners are rendered in-
capable of making a protest or of uttering
a syllable against the enterprise. That,
too, renders the act void.
Ferbrache x. Drainage Diet. 23 Idaho,
85, 44 L.R.A.(N.S.) 643, 128 Pac. 663, Ann.
Cas. 1915C, 43.
No particular formula is held necessary
to present a Federal question, but it is
sufficient- if, from the record, it reasonably
appears that the question was brought to
the attention of the state court, and decid-
ed adversely to the plaintiff in error.
Daniels v. Tearney, 102 U. S. 416, 418,
422, 26 L. cd. 187-189; Cornell v. Green,
163 U. S. 75, 76, 41 L. ed. 76, 77, 16 Sup.
Ct. Rep. 969.
Where a proceeding is instituted in which
it is sought to exercise the power to con-
demn property for both public and private
uses indiscriminately, that is, where the
purposes stated in the petition are part
public and part private, — the right .to pro-
ceed must be denied.
Minnesota Canal k Power Co. v. Kooch-
iching Co. 97 Minn. 429, 5 L.R.A.(N.S.)
646, 107 N. W. 405, 7 Ann. Cas. 1182.
The legislature cannot authorize the crea-
tion of a corporation the primary purpose
of which is strictly private, and by calling
it a public corporation clothe it with du-
ties that are in no sense public, but con-
fessedly private, and by that means vio-
late the fundamental law of the state, and
SUPREME COURT OF THE UNITED STATES.
Oct. l^EKM,
clothe it with the power of eminent domain,
and make that binding upon the citizen,
and upon the Federal courts. Wherever an
Attempt is made, as in this case, to do bo,
this court has jurisdiction to declare that
the state tribunal so misconstrued, its own
law as to violate the right of the individual
citizen under the 14th Amendment.
Hall V. DeCuir, 95 U. 8. 485, 499, 517,
24 L. ed. 547, 652, 558; Delmas v. Mer-
chants' Mut. Ins. Go. 14 Wall. 661, 665,
670, 20 L. ed. 757, 759, 760; Phoenix Ins. Co.
V. The Treasurer (Phoenix Ins. Co. v.
Gardiner) 11 Wall. 204, 210, 20 L. ed. 112,
114; Olcott V. Fond du Lac County, 16
WalL 678, 688, 698, 21 L. ed. 382, 386,
889.
It is elementary law (and this is the
line of demarcation between a public and
private use), that the public use that au-
Hiorizes the exercise of the right of em-
inent domain is a public governmental use;
that is, a use for some governraental pur-
pose or object as distinguished from a pri-
vate use, or a use which would be bene-
ficial to a number of persons in promoting
their private interests, or in enhancing the
value of their estates. A public use must
be clearly distinguished from a popular
use, or a use which promotes the private
interests of many persons.
Weismer v. Douglas, 64 N. Y. 91, 21
Am. Rep. 586; Connecticut College v. Cal-
vert, 89 Conn. 421, 48 L.R.A.(N.S.) 493,
88 Atl. 633; Varner v. Martjn, 21 W. Va.
534; Bloodgood v. Mohawk k H. River R.
Co. 18 Wend. 52, 31 Am. Dec. 313; Suther-
land-Innes Co. V. Evart, 30 C. C. A. 305,
58 U. S. App. 335, 86 Fed. 597; Palairet's
Appeal, 67 Pa. 479, 5 Am. Rep. 450; Salis-
bury Land &, Improv. Co. v. Com. 215 Mass.
371, 46 L.RJ^.(N.S.) 1196, 102 N. E. 619.
Mr. R. B. E^ans argued the cause, and,
with Mr. A. C. Strong, filed a brief for de-
fendants in error:
There is nothing in the Constitution of
the United States or in any Amendment
thereof which forbids the legislature of a
state or territory to exercise judicial func-
tions.
Satterlee ▼. Matthewson, 2 Pet. 380, 413,
7 L. ed. 458, 469; Baltimore & S. R. Co.
V. Nesbit, 10 How. 395, 400, 13 L. ed. 469,
471; Dryer v. Illinois, 187 U. S. 71, 83, 84,
47 L. ed. 79, 85, 23 Sup. Ct. Rep. 28, 15 Am.
Crira. Rep. 253.
The state court has held that the Pea-
body act is not in violation of the state
Constitution because of the provision re-
ferring to the courts the determination of
these questions.
Neal V. Vansickel, 72 Neb. 106, 100 N. W.
200; Barnes v. Minor, 80 Neb. 191, 114 N.
25€
W. 146; Drainage Dist. t. Richardson
County, 86 Neb. 363, 125 N. W. 796 ; O'NeiU
V. Leamer, 93 Neb. 791, 142 N. W. 112;
Drainage Dist. v. Chicago, B. 4 Q. B. Co.
96 Neb. 2, 146 N. W. 1055.
The legislature delegates no power. It
enacts conditions upon the performance of
which the corporation shall be regarded as
organized with the powers mentioned and
described in the act, and such act does not
violate the 14th Amendment of the Con-
stitution.
Fallbrook Irrig. Dist ▼. Bradley, 164
U. S. 112, 178, 41 L. ed. 369, 395, 17 Sup.
Ct. Rep. 56.
Neither the United States Constitution'
nor its Amendments were designed to in-
terfere with the power of the state, some-
times termed its police power, to prescribe
regulations to promote the health, peace,
morals, education, and good order of the
people, and to legislate so as to increase
the industries of the state, develop its re-
sources, and add to its wealth and pros-
perity. From the very necessities of so-
ciety, legislation of a special character,
having this object in view, must often be
had in certain districts, such as for the
draining of marshes and irrigating arid
plains. Regulations for these purposes may
press with more or less weight upon one
than upon the other, but they are designed
not to impose unequal or unnecessary re*
strictions upon anyone, but to promote,
with as little individual inconvenience as
possible, the general good.
Barbier v. Connolly, 113 U. S. 27, 28
L. ed. 923, 5 Sup. Ct. Rep. 357.
The inhibitions of the Constitution of
the United States upon the impairment of
the obligation of contract or the deprivation
of property without due process or the
equal protection of the laws are not vio-
lated by the exercise of legislative power in
securing public safety, health, and morals.
New York & N. E. R. Co. v. Bristol,
151 U. S. 556, 565, 567, 671, 38 L. ed.
269, 272-274, 14 Sup. Ct. Rep. 437.
The manner in which a state may provide
for the creation of a corporation will be
binding upon the Supreme Court of the
United States.
Hancock v. Louisville & N. R. Co. 145
U. S. 409, 36 L. ed. 755, 12 Sup. Ct Rep.
969; Secombe v. Milwaukee & St. P. R.
Co. 23 Wall. 108, 117, 23 L. ed. 67, 69.
The creation of an entity with power te
act as a corporation, although it is not to
called, is sufficient.
Secombe v. Milwaukee k St. P. R. Go.
supra.
The 14th Amendment does not deprive a
state of the power to determine what dor
ties may be performed by local officers, or
28» U. 8.
191S.
O'NSILLt. TiKAMKK.
whether they be. appointed or elected 1^ the
people^
Soliah ▼. Heekiii, 222 U. 8. 622, 50 L.
el 294, 32 Sap. Ct Rep. 103.
It may be true that the general rule is
that the determination of the territorial
boundaries of a municipal corporation is
purely a legislative function, bat there is
nothing in* the Federal Constitution to pre-
sent the people of a state from giving, if
they see fit, full jurisdiction over such
matters to the courts, and taking it en-
tirdy away from the legislature. The
preservation of legislatiTe control in such
matters is not one of the essential ele-
ments of a republican form of government,
which, under § 4 of article 4 of the Con-
ftitntion, the United States is bound to
guarantee to every state in this Union.
And whatever the supreme court of a state
holds that, under the true construction of
its Constitution and statutes, the courts
of that state have jurisdiction over such
matters, the Federal courts can neither
deny the correctness of the construction
nor repudiate its binding force as present-
ing anything in conflict with the Federal
Constitution.
Forsyth v. Hammond, 106 U. S. 600,
519, 41 L. ed. 1096, 1100, 17 Sup. Ct. Rep.
066.
Neither the corporate agency by which
the work is done, the excessive price which
the statute allows therefor, nor the relative
importance of the work to the value of the
Und assessed, nor the fact that the assess-
ment is made before the work is done, nor
that the assessment is unequal as regards
the benefits conferred, nor that personal
judgments are rendered for the amount as-
sessed, are matters in which the state au-
thorities are controlled by the Federal Con-
stitution.
Davidson v. New Orleans, 90 U. 6. 97,
105, 106, 24 L. ed. 016, 020.
The mann^ of voting provided by the
Peabody act violates no provision of the
Constitution of the United States or any
Amendment thereof.
United States v. Cruikshank, 92 U. 8.
642, 656, 23 L. ed. 688, 692; Minor T.
Happersett, 21 WaU. 102, 178, 22 L. ed.
627, 631; United States v. Harris, 106 U.
a 629, 637, 27 L. ed. 290, 293, 1 Sup. Ct.
Bep. 601 ; Pope v. Williams, 193 U. S. 621,
48 L. ed. 817, 24 Sup. Ct. Rep. 673; Boyd
T. Nebraska, 143 U. S. 136, 36 L. ed. 103,
12 Sup. Ct. Rq>. 376; Taylor t. Beckham,
178 U. S. 648, 671, 44 L. ed. 1187, 1198,
20 Sup. Ct. Rq>. 890, 1009; Wiley v. Sink-
ler, 179 U. S. 68, 46 L. ed. 84, 21 Sup. Ct.
Rep. 17; Swafford v. Templeton, 186 U.
8. 487, 491, 40 L. ed. 1006, 1007, 22 Sup.
Ct Rep. 783; Luther t. Bordeo, 7 How.
•0 L. ed.
1, 41, 12 L. ed. 681, 698; SUte ez rd.
Crosby t. Cones, 16 Neb. 444, 19 N. W.
082; Alfalfa Irrig. Dist V. Collins, 40 Neb.
411, 04 N. W. 1080; O'Neill v. Leamer, 93
Neb. 780, 142 N. W. 112.
To Justify the United States Supreme
Court in taking jurisdiction, the Federal
question must be specifically set up or
claimed in the state court; the party must
have the intent to invoke for the protection
of his rights the Constitution or some stat-
ute or treaty of the United States, and such
intenticm must be declared in some unmis-
takable manner.
Keokuk & H. Bridge Co. v. Illinois, 176
U. S. 020, 44 L. ed. 299, 20 Sup. Ct. Rop.
206; F. G. Oxley Stave Co. t. Butler Coun-
ty, 100 U. 8. 048, 41 L. ed. 1149, 17 Sup.
Ct Rep. 709.
To give the Supreme Court jurisdiction
of a writ of error to a state court, it must
appear by the record that a Federal ques-
tion was raised.
Inglee v. Coolidge, 2 Wheat. 803, 4 L. ed.
201; Fisher t. Cockerell, 6 Pet. 248, 8
L. ed. 114; Crawford v. Branch Bank, 7
How. 279, 12 L. ed. 700; Parmelee v. Law«
rence, 11 Wall. 30, 20 L. ed. 48; Brooks
V. Missouri, 124 U. S. 894, 31 L. ed. 464,
8 Sup. a. Rep. 443; Powell t. Brunswick
County, 160 U. 8. 483, 87 L. ed. 1134, 14
Sup. Ct Rep. 100; Ansbro v. United States,
169 U. S. 096, 40 L. ed. 310, 10 Sup. Ct
Rep. 187; Ci^ital Nat Bank t. First Nat
Bank, 172 U. 8. 426, 43 L. ed. 602, 19
Sup. Ct Rep. 202; Phcsnix Ins. Co. t. The
Treasurer (Phoenix Ins. Co. v. Gardiner) 11
WalL 204, 20 L. ed. 112; Crowell t. Ran-
dall, 10 Pet 308, 9 L. ed. 468; Choteau
T. Marguerite 12 Pet 607, 9 L. ed. 1174;
Coons V. Gallaher, 16 Pet 18, 10 L. ed.
046; Commercial Bank t. Buckingham, 6
How. 317, 12 L. ed. 109; Grand Gulf R. ft
Bkg. Co. T. Marshall, 12 How. 106, 13
L. ed. 938; Maxwell t. Newbold, 18 How.
611, 16 L. ed. 600; Hoyt v. Shdden (Hoyt
V. Thompson) 1 Black, 618, 17 L. ed. 06;
Taylor v. Morton, 2 Black, 481, 17 L. ed.
277; The Victory, 0 WaU. 382, 18 L. ed.
848; Gibson v. Choteau, 8 Wall. 314, 19
L. ed. 817; Cockroft t. Voee, 14 Wall. 6,
20 L. ed. 876; Detroit City R. Co. t. Guth-
ard, 114 U. S. 133, 29 L. ed. 118, 6 Sup.
Ct Rep. 811; Endowment Benev. Asso. T.
Kansas, 120 U. S. 103, 30 L. ed. 693, 7
Sup. Ct Rq>. 499.
The Supreme Court has no jurisdiction to
review the judgment of a state court on
writ of error, unless it affirmatively ap-
pears from the record that a question giv-
ing the Supreme Court jurisdiction was
made by the pleadings, and passed upon by
the court
Commercial Bank t. Buckingham, 6 How.
17 S57
SUPREME COURT OF THE UNITED STATES.
Oor.
817, 12 L. ed. 169; Gray v. Coan, 154 U.
a 689, and 38 L. ed. 1088, 14 Sup. Gt. Rep.
1168; Chouteau v. Qibaon, 111 U. S. 200,
28 L. ed. 400, 4 Sup. Ct. Rep. 340; Say-
ward y. Denny, 158 U. S. 180, 39 L. ed. j
941, 15 Sup. Ct Rep. 777.
The jurisdiction of this court to reTiew
the proceedings of state courts is limited
to specific instances of denials of Federal
rights specially set up in and denied hj
the state courts.
Marshall t. Dye, 231 U. S. 250, 58 L. ed.
206, 34 Sup. Ct. Rep. 92; Waters-Pierce
Oil Co. Y. Texas, 212 U. S. 86, 97, 53 L. ed.
417, 424, 29 Sup. Ct. Rep. 220; Kieman v.
Portland, 223 U. S. 151, 56 L. ed. 386,
32 Sup. Ct. Rep. 310.
A Federal question not specifically set
up or claimed in a state court cannot be
considered on writ of error from the Su-
preme Court of the United States to the
state court, merely because another Fed-
eral question not connected with it was
raised in the state court.
Keokuk & H. Bridge Co. v. Illinois, 175
U. S. 626, 44 L. ed. 299, 20 Sup. Ct. Rep.
205; Dewey v. Des Moines, 173 U. S.
193, 43 L. ed. 665, 19 Sup. Ct. Rep. 379.
The enforcement of the provision in ar-
ticle IV., § 4, of the Federal Constitution,
that the United States shall guarantee to
every state in the Union a republican form
of government, depends upon political and
governmental action through the powers
conferred on the Congress, and not through
those conferred on the courts.
Marshall v. Dye, 231 U. S. 250, 58 L. ed.
206, 34 Sup. Ct. Rep. 92; Pacific States
Teleph. A Teleg. Co. v. Oregon, 223 U. S.
118, 56 L. ed. 377, 32 Sup. Ct. Rep. 224.
A drainage district properly organized,
and whose purpose or use is public, is of
the same character as school districts, road
districts, townships, villages, etc., and is
termed or known as a public corporation.
Such corporations are sometimes termed
quasi municipal corporations.
Beach v. Leahy, 11 Kan. 23 ; Fourth
School Dist. V. Wood, 13 Mass. 103 ; Harris
V. School Dist. 28 N. H. 61; Mittman v.
Farmer, Ann. Cas. 1916C, 29, note.
But, whatever the designation, the func-
tion is a public one.
A corporation is private, as distinguished
from public, unless the whole interest be-
longs to the government, or the corpora-
tion is created for the administration of
political or municipal power.
Piqua State Bank ▼. Knoop, 16 How. 369,
14 L. ed. 977; Vincennes University t. In-
diana, 14 How. 268, 14 L. ed. 416.
Every declaration of the supreme court
of Nebraska has been that these drainage
districts are public corporations.
258
State ex rel. Harris t. Hanson, 80 Ntbu
788, 115 N. W. 294, 117 N. W. 412; BanM8
V. Minor, 80 Neb. 189, 114 N. W. 148;
O'Neill V. Leamer, 93 Neb. 789, 142 N. W.
112; Whedon v. Wells, 95 Neb. 520, 148
N. W. 1007 ( Drainage Dist ▼. Chicago, B.
4 Q. R Co. 96 Neb. 1, 146 N. W. 1068;
White V. PapillUn Drainage Dist 96 Neb.
242, 147 N. W. 218.
Drainage of lands is for a public pur-
pose.
Hagar t. Reclamation Dist. No. 188, 111
U. S. 701, 705, 28 L. ed. 560, 571, 4 8^^
Ct Rep. 663; Willson t. BUck Bird Creek
Marsh Co. 2 Pet. 245, 252, 7 L. ed. 418;
414; Wurts v. Hoagland, 114 U. 8. 808^
609, 612, 20 L. ed. 229-231, 5 Sup. Ct
Rep. 1086; Mugler v. Kansas, 123 U. GL
623, 31 L. ed. 205, 8 Sup. Ct. Rep. 278;
Fallbrook Irrig. Dist. v. Bradley, 164 U. 8.
112, 162-175, 41 L. ed. 369. 390-304, 17
Sup. Ct. Rep. 56; Sweet v. Rechel, 1»
U. S. 380,. 40 L. ed. 188, 16 Sup. Ct Rep.
43; Chicago, B. & Q. R. Co. v. Illinois,
200 U. S. 561, 585, 586, 50 L. ed. 608^
606, 607, 26 Sup. Ct. Rep. 341, 4 Ann. Cas.
1175; Laguna Drainage Dist. v. Charles
Martin Co. 144 Cal. 209, 77 Pac. 033;
Heick y. Voight, 110 Ind. 279, 11 N. E.
306; Poundstrone v. Baldwin, 145 Ind. 139,
44 N. £. 191; Heffner v. Cass A. Morgan
Counties, 193 111. 439, 58 L.RA. 353, 82
N. £. 201 ; Cleveland, C. C. k St. L. R. Co.
V. Polecat Drainage Dist. 213 111. 83, 72
N. E. 684; Sisson v. Buena Vista County^
128 Iowa, 442, 70 L.R.A. 440, 104 N. W.
454; Talbot v. Hudson, 16 Gray, 417; Stat»
ex rel. Utick v. Polk County, 87 Minn. 326,
60 L.R.A. 161, 92 N. W. 216; Mound Citj
Land & Stock Co. v. Miller, 170 Mo. 240^
60 L.RA. 190, 94 Am. St Rep. 727, 70 8.
W. 721; Norfieet v. Cromwell, 70 N. C. 684,
16 Am. Rep. 787; Porter v. Armstrong, 139^
N. C. 179, 51 S. £. 926; Lewis County t.
Gordon, 20 Wash. 80, 54 Pac. 779.
Courts will give great weight to th#
legislative declaration that a purpose is
public, implied from giving the ri^ht of
eminent domain for such purpose, and audi
declaration, in the absence of proof to th#
contrary, is sufficient
Long Sault Development Go. v. Kennedy,.
158 App. Div. 398, 143 N. Y. Supp. 454»
The fact that private individuals will be*
benefited does not prevent the use from
being a public one if the many are benefited,,
or the public are interested.
Jeter v. Vinton-Roanoke Water Co. 114
Va. 769, 76 S. W. 921, Ann. Cas. 1914C.
1029; O'Neill v. Leamer, 93 Neb. 786, 142
N. W. 112.
The words "due process of law" are in-
tended to convey the same meaning as th»
838 U. ff*
1915.
O'NEILL T. LKAMKK.
wDidi "bj the Uw of the land** in Magna
Qiirta.
Den ex dem. Murraj v. Hoboken Land
4 ImproT. Co. 18 How. 272, 16 L. ed. 372.
The phrase 'Mne process of law" refers
to the state's own process.
He Mahon, 34 Fed. 526.
The term "due process of law," when ap-
plied to judicial proceedings, means a
eoorse of legal proceedings according to
those rules and principles which have been
crtsblished bj our iurispmdence for the
protection and enforcement of private
rights. To give such proceedings any va-
fiditj, there must be a competent tribunal
to pass on their subject-matter; and, if
that involves merely a determination of the
personal liability of defendant, he must
be brought within its jurisdiction by service
of process within the state, or by his volun-
tary appearance.
Pennoyer v. Neff, 96 U. S. 714, 24 L. ed.
565; Davidson v. New Orleans, 96 U. 8.
97, 105, 106, 24 L. ed. 616, 620.
Due process of law is its regular admin-
iitration, through the courts of justice, by
i timely and regular course of proceedings
to judgment and execution. As a rule it
mcludes parties, regular pleadings, and a
trial, according to the settled course of
proeeedings.
Den ex dem. Murray v. Hoboken Land &
Improv. Co. 18 How. 273, 15 L. ed. 372.
It does not require a trial by jury.
United States v. Ferreira, 13 How. 40,
14 L. ed. 42.
Jurisdiction of the subject-matter is pow-
er to deal with general abstract questions
in empowering the court to determine each
issue within the scope of its authority ac-
eording to its own view of the law and the
eridence. Whether its decision is right or
wrong, each judgment or decision so ren-
dered is final and conclusive upon the par-
ties to it unless reviewed by writ of error
or appeal, or impeached for fraud.
Foltz V. St. Louis & S. F. R. Co. 8 C. C.
A. 635, 19 U. 8. App. 576, 60 Fed. 318;
Insley v. United States, 150 U. 8. 512, 37
L. ed. 1163, 14 Sup. Ct. Rep. 158; Des
Moines Nav. ft R. Co. v. Iowa Homestead Co.
123 U. 8. 552, 31 L. ed. 202, 8 Sup. Ct.
Rep. 217; Re Sawyer, 124 U. 8. 200, 81
U ed. 402, 8 Sup. Ct. Rep. 482.
The acts of a municipal corporation can-
itot be said to be wanting in the due process
of law guaranteed by the Constitution of
the United States or the 14th Amendment,
if such* acts, when done or ratified by the
>tate, would not be inconsistent with that
Amendment.
Owensboro Waterworks Co. v. Owens-
boro, 200 U. 6. 38, 50 L. ed. 361, 26 Sup.
Ct Rep. 249.
•0 L. ed.
Law in its regular course of administra-
tion through a court of justice is due
process, and when secured by the law of
the state, the constitutional requirement
is satisfied.
Leeper v. Texas, 139 U. 8. 462, 35 L. ed.
225, 11 Sup. Ct. Rep. 677.
The state may provide that the deoisioB
of the appraiser in a condemnation pro-
ceeding shall be final, and it is due process
of law.
Long Island Water Supply Co. t. Brook-
lyn, 166 U. 8. 685, 41 L. ed. 1165, 17 Sup.
Ct Rep. 718; Shoemaker t. United States,
147 U. 8. 282, 305, 37 L. ed. 170, 188, 18
Sup. Ct. Rep. 861; Louisville ft N. R. Oo.
T. Kentucky, 188 U. 8. 503, 515, 46 L. ed.
298, 305, 22 Sup. Ct. Rep. 95.
In the exercise of the right of eminent
domain, inquiry as to the amount of com-
pensation, provided for in some appropriate
way before some properly constituted tri-
bunal, constitutes due process of law.
A. Backus- Jr. A Sons v. Fort Street
Union Depot Co. 169 U. 8. 557, 568, 571, 42
L. ed. 853, 858, 859, 18 Sup. Ct. Rep. 445.
It is firmly established that when parties
have been fully heard in regular course of
judicial proceedings, an erroneous decision
of the state court does not deprive the un-
successful party of its property without
due process of law, within the 14th Amend-
ment to the Constitution of the United
States.
Bonner v. Gorman, 213 U. 8. 91, 53 L.
ed. 711, 29 Sup. Ct. Rep. 483.
In summing up the essentials of due
process of law in condemnation cases, this
court has said that all that is essential is
that in some approved way, before some
properly constituted tribunal, inquiry shall
be made as to the amount of con^pensation,
and that when this has been provided there
is that due process of law which is required
by the Federal Constitution.
Appleby v. Buffalo, 221 U. 8. 532, 5& L.
ed. 842, 31 Sup. Ct. Rep. 699.
Where there is no constitutional provision
prescribing the tribunal before which con-
demnation proceedings shall be brought, the
legislative power has authority to designate
it.
Spring Valley Waterworks v. Schottler,
110 U. S. 347, 382, 28 L. ed. 173, 185, 4
Sup. Ct. Rep. 48; United States v. Jones,
109 U. S. 513, 519, 27 L. ed. 1015, 1017, 3
Sup. Ct. Rep. 346.
The statute providing for the condemna-
tion of a railway right of way has been
before the supreme court of Nebraska for
construction, and that court has held that
all persons interested in the land to be af-
fected are ownors and necessary parties.
SUPREME CX)URT OF THE UNITED STATES.
Oct.
State T. HlBaoiiri P. R. So. 75 Neb. 9,
106 N. W. 988.
The same court has held that notice to
the owners is necessary.
Trester v. Missouri P. R. Co. 38 Neb.
186, 49 N. W. 1110.
The question of Whether or not sufficient
notice has been given is one for the de-
termination of the state court, when the
action is brought under the state statute.
Baltimore Traction Co. v. Baltimore Belt
R. Co. 151 U. S. 187, 88 L. ed. 102, 14
Sup. Ct. Rep. 294.
In the proceeding to condenm, the land-
owner may be heard before the county
judge, not as to value, but as to other mat-
ters he may desire to litigate, material to
the condemnation.
Freemont, E. & M. Valley R. Co. v. Mat-
theis, 89 Neb. 101, 57 N. W. 987.
Being a constitutional exercise of legis-
lative power, and providing a suitable
remedy by trial in the regular course of
justice, to recover compensation for injury
to the land of plaintiffs, it has not deprived
them of their property without due process
of law, in violation of the 14th Amend-
ment to the Constitution of the United
States.
Head v. Amoskeag Mfg. Co. 118 U. S.
9, 26, 28 L. ed. 889, 895, 5 Sup. Ct. Rep.
441; Walker v. Sauvinet, 92 U. 8. 90, 23
L. ed. 678; Davidson v. New Orleans, 96
U. S. 97, 24 L. ed. 616; Hurtado v. Cali-
fornia, 110 U. S. 516, 28 L. ed. 232, 4 Sup.
Ct. Rep. Ill, 292; Hagar v. Reclamation
IMst. Ill U. S. 701, 28 L. ad. 569, 4 Sup.
Ct. Rep. 663.
The decision by the state court that a
particular formality is or is not essential
under a state statute presents no Federal
question, if the statute as thus construed
is sufficient to provide due process of law.
Castillo V. McConnico, 168 U. S. 674,
42 L. ed. 622, 18 Sup. Ct. Rep. 229.
There is no limitation on the power of
the legislature in this respect if the pur-
pose be a public one, and just compensa-
tion be paid or tendered to the owner for
the property taken.
Secombe v. Milwaukee k St. P. R. Co. 23
Wall. 108, 23 L. ed. 67; A. Backus Jr. &
Sons V. Fort Street Union Depot Co. 169
U. S. 667, 570, 42 L. ed. 853, 859, 8 Sup.
Ct. Rep. 445; Chicago, B. A Q. R. Co. v.
Chicago, 166 U. S. 226, 236, 41 L. ed. 979,
984, 17 Sup. Ct. Rep. 581.
Due process of law does not require notice
and a hearing on the appointment of the
tribunal to assess the benefits and damages
resulting from a drain.
Bemis v. Guirl Drainage Co. 182 Ind.
36, 105 N. E. 496; Taylor v. Drainage Diet.
— Iowa, — , L.RJL.1916B, 1193, 148 N. W.
1040.
Want of notice to the landowner of the
hearing on the necessity of taking the land
does not constitute deprivation of due
process.
Water Comrs. v. Johnson, 86 Conn. 161,
41 L.R.A.(N.S.) 1024, 84 AtL 727; Water
Comrs. V. Palmar, — Conn. — , 84 Atl.
736.
The construction by a state court of the
law of the state as authorizing the court to
try and determine, in 'a condemnation pro-
ceeding, an adverse claim of the plaintiff
therein, to an interest in the property
sought to be condemned, is conclusive on
the Supreme Court of the United States,
on a writ of error to that court.
Hooker v. Los Angeles, 188 U. S. 314,
47 L. ed. 488, 63 LJI.A. 471, 23 Sup. Ct.
Rep. 395.
The assignment that the act of the legis*
lature of Nebraska under which this drain-
age district was organized is in violation
of the Constitution of Nebraska, when the
supreme court of that state has held it
constitutional, presents no Federal question.
Layton v. Missouri, 187 U. S. 356, 47 L.
ed. 214, 23 Sup. Ct. Rep. 137 ; Medberry v.
Ohio, 24 How. 413, 16 L. ed. 739; Porter
V. Foley, 24 How. 415, 16 L. ed. 740;
Congdon v. Goodman, 2 Black, 674, 17
L. ed. 257; Withers v. Buckley, 20 How.
84, 15 L. ed. 816; Jackson ex dem. Hart
V. Lamphire, 3 Pet. 280, 7 L. ed. 679; Bar-
bier V. Connolly, 113 U. S. 27, 28 L. ed.
923, 5 Sup. Ct. Rep. 367; Leeper v. Texas,
139 U. S. 462, 35 L. ed. 225, 11 Sup. Ct.
Rep. 577 ; Fallbrook Irrig. Dist. v. Bradley,
164 U. S. 112, 41 L. ed. 369, 17 Sup. Ci.
Rep. 56; Satterlee v. Matthewson, 2 Pet.
380, 7 L. ed. 458.
And such decision, when made by the
state court, is conclusive on the Federal
courts.
Rasmussen v. Idaho, 181 U. S. 198, 45
L. ed. 820, 21 Sup. Ct. Rep. 594; Mobile
Transp. Co. v. Mobile, 187 U. S. 479, 47
L. ed. 266, 23 Sup. Ct. Rep. 170; Car-
stairs V. Cochran, 193 U. S. 10, 48 L. ed.
596, 24 Sup. Ct. Rep. 318; Brown v. New
Jersey, 175 U. S. 172, 44 L. ed. 119, 20
Sup. Ct. Rep. 77; Merchants' & N. Nat. Bank
V. Pennsylvania, 167 U. S. 461, 42 L. ed.
236, 17 Sup. Ct. Rep. 829; Adams Exp.
Co. V. Ohio State Auditor, 165 U. S. 194,
41 L. ed. 683, 17 Sup. Ct. Rep. 305; Mc-
Cain V. Des Moines, 174 U. S. 168, 43 L.
ed. 936, 19 Sup. Ct. Rep. 644; Long Is-
land Water Supply Co. v. Brooklyn, 166 U.
S. 685, 41 L. ed. 1165, 17 Sup. Ct. Rep.
718; New York & N. E. R. Co. v. Bristol,
151 U. S. 556, 38 L. ed. 260, 14 Sup. Ct.
2311 U. S.
1915.
O'NEILL Y. LKAMER,
Rep. 437; Hallinger ▼. Davis, 146 U. S.
314» 3d L. ed. 986, 13 Sup. Ct. Rep. 105.
Ordinarily the prorisioBa of the 14th
Constitutional Amendment, relating to due
process of law, do not apply where the leg-
islature of a state has performed its du-
ties by providing for proceedings which
answer the constitutional requirement, and
where the fault is either with the ooiurt or
officers.
Storti V. Massachusetts, 183 U. & 138,
46 L. ed. 120, 22 Sup. Ot R^. 72.
A decision of the highest court of the
state, made on the settled pre-existing rules
of general jurisprudence of the state^ can-
not be brought to the Supreme Court of
the United States.
Bank of West Tennessee t. Citisens' Bank,
14 Wall. 9, 20 L. ed. 614.
A decision of a 'state court that the for-
malities required 1^ the tax laws were ful-
ly observed does not present a Federal ques-
tion, where the contention is not that the
statutes are unconstitutional, but that the
manner of their observance was a denial of
due process of law.
French v. Taylor, 109 U. 8. 274, 60 L.
ed. 189, 26 Sup. Ct Rep. 76.
The Supreme Court of the United States
has no jurisdiction of a case brought up
from the highest court of a state, on the
record of which it appears that the de-
cision of the state court turned upon the
construction, and not upon the validity,
of the statute of a state.
Grand Gulf R. ft Bkg. Co. t. Marshall,
12 How. 165, 13 L. ed. 938.
State courts have sole jurisdiction, in
cases which turn entirely on the validity
or interpretation of state laws, and this
court has no appellate power over their
judgments.
Congdon v. Goodman, 2 Black, 574, 17
L. ed. 257.
Decisions of a state court of last resort
construing a state statute will be followed
by United States courts.
Tullis V. Lake Erie k W. R. Co. 175 U.
8. 348, 44 L. ed. 192, 20 Sup. Ct. Rep.
136; Missouri, K. ft T. R. Co. v. McCann,
174 U. S. 580, 43 L. ed. 1093, 19 Sup. Ct
Rep. 755; Yazoo ft M. Valley R. Co. v.
Adams, 181 U. S. 589, 45 L. ed. 1011, 21
Sup. Ct. Rep. 720.
The construction of a statute by the high-
est court of the state forms a rule of de-
cision for the Federal court.
M'Keen v. Delancy, 5 Cranch, 22, 3 L.
ed. 25; Polk v. Wendal, 9 Cranch, 87, 3
L. ed. 665; Thatcher v. Powell, 6 Wheat
119, 5 L. ed. 221; ElmeUdorf v. Taylor, 10
Wheat 152, 6 L. ed. 289; M'Cormick v.
Sullivan, 10 Wheat 192, 6 L. ed. 300; Bell
V. Morrison, 1 Pet 351» 7 L. ed. 174;
•0 L. ed.
IVWolf V. Rabaud, 1 Pet. 476, 7 L. ed.
227; Davis v. Mason, 1 Pet. 503, 7 L. ed.
239; Waring v. Jackson, 1 Pet 570, 7 L.
ed. 266; FuUerton v. Bank of United States,
1 Pet. 604, 7 L. ed. 280; Ross v. Doe, 1
Pet. 655, 7 L. ed. 302; Gardner v. Col-
lins, 2 Pet 58, 7 L. ed. 347 ; Beach v. Viles,
2 Pet 675, 7 L. ed. 559; M'Cluny v. Silli-
man, 3 Pet 270, 7 L. ed. 676; United States
V. Morrison, 4 Pet 124, 7 L. ed. 804;
Henderson v. Griffin, 5 Pet. 151, 8 L. ed.
79; Hinde v. Vattier, 5 Pet 398, 8 L.
ed. 168; Ross v. M'Limg, 6 Pet 283, 8 L. ed.
400; Green v. Keal, 6 Pet. 291, 8 L. ed.
402; Brashear t. West, 7 Pet 608, 8 L.
ed. 801 ; Harpending v. Reformed Protestant
Dutch Church, 16 Pet. 455, 10 L. ed. 1029;
Kinney v. Clark, 2 How. 76, 11 L. ed.
185; Phalen v. Virginia, 8 How. 163, 12
L. ed. 1030; Sumner v. Hicks, 2 Black,
532, 17 L. ed. 355; Leffiingwell v. Warren,
2 Black, 599, 17 L. ed. 261; Richmond v.
Smith, 15 Wall. 420, 21 L. ed. 200; Carroll
County V. United States, 18 Wall. 71, 21
L. ed. 771; Aicardi v. Alabama, 19 Wall.
635, 22 L. ed. 215; State R. Tax Cases,
92 U. S. 575, 23 L. ed. 663; Meister v.
Moore, 96 U. S. 76, 24 L. ed. 826; Davie
V. Briggs, 97 U. S. 628, 24 L. ed. 1086;
Lceper v. Texas, 139 U. S. 462, 35 L. ed.
225, 11 Sup. Ct. Rep. 577; New York, L.
£. ft W. R. Co. V. Pennsylvania, 158 U.
S. 431, 39 L. ed. 1043, 15 Sup. Ct. Rep.
896.
The established rule is that the Federal
courts are to administer the laws of the
states in cases where they apply; and the
uniform practice has been to consider a
judicial interpretation placed upon a stat-
ute the same as if incorporated within the
language of the statute itself.
Olcott V. Fond du Lac County, 2 Biss.
368, Fed. Cas. No. 10,479.
The state has full control over procedure
in its courts, subject only to the qualifica-
tion that such procedure must not work a
denial of fundamental rights, or conflict
with specific and applicable provisions of
the Federal Constitution.
Maxwell v. Dow, 176 U. S. 581, 585, 607,
44 L. ed. 597, 598, 606, 20 Sup. Ct. Rep.
448, 494.
When the question is whether, under the
Constitution and laws of a state, a company
is legally organized as a corporation, the
decision of the supreme court of the states
settling the question in the affirmative,
will be accepted as conclusive.
Sccombe v. Milwaukee ft St. P. R. Co.
23 Wall. 108, 23 L. ed. 67; Mooney v.
Humphrey, 12 Fed. 612; Fitzgerald v. Mis-
souri P. R. Co. 45 Fed. 812.
The Supreme Court has no jurisdiction to
re-examine the judgment of a state court
261
SUPREME CX)UBT OF THE UNITED STATES. Oor. Tknc,
unleu the record shows affirmatively, or by l States, unless the record shows, either 1^
fair implication, that a Federal question ' words or by clear and necessary intend-
necessary for the determination of the cause ment therefrom, that the right was spe-
is involved. cifically claimed, or a definite issue as to the
Williams v. Norris, 12 Wheat. 117, 6 L. possession of the right is distinctly de-
ed. 671; Willson v. Black Bird Creek Marsh ducible from the record, without any ad-
Co. 2 Pet. 245, 7 L. ed. 412; Satterlee v. verse decision of which the judgment oould
Matthewson, 2 Pet. 380, 7 L. ed. 458; not have been rendered.
Mills V. Brown, 16 Pet. 525, 10 L. ed. Capital Nat. Bank v. First Nat. Bank,
1055; Commercial Bank v. Buckingham, 5 172 U. S. 425, 43 L. ed. 502, 10 Sup. Ct.
How. 317, 12 L. ed. 160; Furman v. Nichol, Rep. 202.
8 Wall. 44, 10 L. ed. 370 ; Brown v. Atwell, In determining whether the United States
02 U. S. 327, 23 L. ed. 511; Citizens' Bank Supreme Court has jurisdiction under | 25
V. Board of Liquidation, 08 U. S. 140, 25 of the Judiciary act, nothing outside the
L. ed. 114; Boughton v. American Exch. record certified to the court can be taken
Nat. Bank, 104 U. S. 427, 26 L. ed. 765. into consideration.
This court has no jurisdiction to re- Armstrong v. Athens County, 16 Pet. 281,
examine the judgment of a state court 10 L. ed. 065; Walker v. Villavaso, 6 Wall,
where a Federal question was not in fact 124, 18 L. ed. 853.
passed upon, and where a decision of it was The petition for the allowance of a writ
rendered unnecessary in the view which the of error forms no part of the record of the
court below took of the case. court below; and this court has no juris-
Hurley v. Street, 14 Wall. 85, 20 L. ed. diction to determine a Federal question
786; McManus v. O'SuUivan, 01 U. 8. presented in such petition, but not dis-
678, 23 L. ed. 300; Boiling v. Lersner, 01 closed by the record sent here from the
U. S. 504, 23 L. ed. 366. gtate court.
In order to bring a case from a state Warfield v. ChafTe, 01 U. S. 600, 23 L. ed.
court to this court for review, it is neces- ^g.
sary that the record should show that the ' i ^ x i. xl x xl • j ^
point giving jurisdiction to this court was ^^ f^^*^ ■**]*"f * ^''''i *x ' J^^^!?*
raised and decided in the court below. "^^^^ *^« ^«d«'»l Constitution, or the
Crowell V. Randell, 10 Pet. 368, 0 L. ed. '»«^*« <>' ^^ P"^/ thereunder, or that it is
458; Choteau v. Marguerite, 12 Pet. 507, without due process of law, will not raise
0 Lk. ed. 1174; Coons v. Gallaher, 15 Pet. a Federal question, even though the judg-
18, 10 L. ed. 645; Commercial Bank v. ment be a final one, reviewable by the
Buckingham, 6 How. 317, 12 L. ed. 160; Federal Supreme Court on writ of error.
Grand Gulf R. & Bkg. Co. v. Marshall, 12 under U. 8. Rev. Stat. § 700, especially
How. 165, 13 L. ed. 038; Maxwell v. New- where such sUtement appears only in the
bold, 18 How. 611, 15 L. ed. 605; Hoyt v. specifications of error.
Shdden (Hoyt v.. Thompson) 1 BUck, 518, Clarke v. McDade, 165 U. S. 168, 41 L.
^!,h.^; ^^1 It^J^'^nZ' ^?!^''' l^tlf"^' ed- e73, 17 Sup. Ct. Rep. 284.
481, 17 L. ed. 277; The Victory, 6 Wall y^^^^ ^^^ allegation that the suit arises
^\^l.^' tt'r^^^J ?i^n ""L^r^""' ® under the Federal Constitution is palpably
^'Lli k Ini 1:^ «7k ^trl rit?R unfounded, it does not constitute even color
14 WalL 5, 20 L. ed. 875; Detroit City R. . ^, . . j- x- « xi. tt •* j o* x^
Co. V. Quthard, 114 U. S. 133, 20 L. ed. ^o' ^^ jurisdiction for the United SUtea
118, 6 Sup. Ct. Rep. 811; Endowment circuit court.
Benev. Asso. v. Kansas, 120 U. S. 103, 30 McClain v. Des Moines, 174 U. S. 168, 181,
L. ed. 603, 7 Sup. Ct. Rep. 400. 43 L. ed. 036, 041, 10 Sup. Ct. Rep. 644;
The facts giving the Supreme Court juris- Gring ▼. Ives, 222 U. S. 365, 66 L. ed. 236,
diction to review the decision of a state 32 Sup. Ct. Rep. 167; Farrell v. O'Brien
court must appear on the record, or be nee- (O'Callaghan t. O'Brien) 100 U. S. 80, I'OO,
essarily implied therefrom. 50 l. ed. 101, 107, 96 Sup. Ct. Rep. 727;
Miller v. Nicholls, 4 Wheat. 311, 4 L. ed. payerweather v. Ritch, 105 U. S. 276, 299,
678; Satterlee v. Matthewson, 2 Pet. 380, ^^ l. ed. 103, 210, 25 Sup. Ct. Rep. 68;
IV Ti'/^^n' ?'''!^ ^°^k^^^' l^^^^' ^l Goodrich T. Ferris, 214 U. S. 71. 79, 68
^\. ^^L \^a V !^- «^f • ^k' Jl' L. ed. 014, 018, 20 Sup. Ct. Rep. 680.
Wall. 382, 18 L. ed. 848; Gibson v. Chou- JT x- « fi.-* ♦!»« !...*^.« ;.
teau, 8 WaU. 314, 10 L. ed. 317; Murray The presumption is that the purpose it
V. Charleston, 06 U. S. 432, 24 L. ed. 760. • public one. , ^ „^n ,, vr *.
The United States Supreme Court will not Heick v. Voight, 110 Ind. 270, 11 N. S.
review the judgment of a ststp court on 306; Hartwell v. Armstrong, 10 Barb. 166;
the ground of a denial by the latter court McDaniel v. Columbus, 01 Ga. 462, 17 S. S.
of a right under a statute of the United lOll.
2%2 ^^* ^* ^
1915.
O'NEILL T. LEAMER.
245-248
Mr. Justice nughtm dellTered the opin-
{on of the court :
Under the laws of Nebraska (Laws 1905,
ehap. 161; Laws 1909, chap. 147; CobbeT's
Addo. Stat. §§ 5561-5597; ReT. SUt. 1913,
If 1797 ct seq.) the district court of the
tttte made an order organizing "Drainage
District No. 2 [246] of DakoU County.''
The lands embraced within the district lay
to the southeast of the village of Jackson,
and consisted of about 7,000 acres of swamp
Isnds upon which were discharged the wat-
srs of Elk creek, coming from the northwest.
It was recited in the order that the drainage
of these lands would be "a public, utility,"
and would "be conducive to the public con-
finienoe, health, and welfare." Plans were
adopted which involved the construction of
a ditch across lands of the plaintiffs in er-
ror for the purpose of carrying the waters
of the creek to Jackson lake. These were
Isnds which did not receive the flood waters
of the creek, but were situated northeast of
Jackson and outside the drainage distiict.
The defendants in error, who had been cho-
sen as supervisors of the drainage district,
instituted condemnation proceedings in the
county court for the purpose of making the
necessary appropriation, and awards were
made.
'Ihis action was then begun by the plain-
tiffs in error (and another) in the state
€ourt to enjoin the construction of the ditch.
The plaintiffs assailed the Nebraska statute
as repugnant to the state Constitution, and
further averred that to permit the defend-
ants to construct the ditch would deprive
the plaintiffs of their property without due
process of law and deny to them the equal
protection of the laws, in violation of the
14th Amendment. It was alleged that
the enterprise was "wholly private and in the
exeltisive pecuniary interest of the so-called
corporators" of the drainage district. The
trial court made special findings, in sub-
stance, as follows : That the drainage district
had been legally organized ; that the defend-
ants had been constituted its supervisors;
that, in conformity with the statute, the
drainage district had been declared by the
district court, upon due notice to all inter-
ested parties, as required, to be a public cor-
poration of the state; that the district had
employed competent civil engineers who had
made a complete plan, which [247] had
been presented and duly confirmed, for
draining, reclaiming, and protecting the
lands in the district from overfiow ; that tho
route and ditch, thus approved, pro-
Tided the most feasible and the safest
method for taking care of the waters of
the eredc; that the description of the
ditch, as shown, was a "definite and ac-
curate description of a proper right of way" '
•0 li. ed.
through the lands of plaintiffs and others;
that having failed to agree with the plain-
tiffs as to the value of the right of way and
the damages which would result from the
construction and maintenance of the pro-
posed ditch, the defendants as supervisors
had applied to the county judge in the man-
ner provided by law for the appointment of
appraisers, who, having been duly appointed,
and having entered upon their duties and
viewed the premises, had fixed the value of
the right of way and the damages to each
of the plaintiffs at sums stated and had duly
reported accordingly; that the outlet of
the proposed ditch in Jackson lake was for-
merly tiie channel of the Missouri river at a
low stage, and that by way of this lake
there was an adequate and direct outlet for
the water of the creek into that river with-
out overfiowing the plaintiffs' lands; and
that the defendants had not claimed the
right to enter upon these lands until the
award of the appraisers should have been
paid to the county judge for the benefit of
the parties respectively. It was thereupon
adjudged that when the awards were paid
the temporary injunction which had been
issued should be dissolved and the action dis-
missed. This judgment was affirmed by the
supreme court of the state. 93 Neb. 786,
142 N. W. 112.
With many of the questions discussed in
argument this court is not concerned. It
has been held that under the state law the
drainage district was a public corporation,
duly organized, and was entitled to exercise
the power of eminent domain. The pro-
priety of the delegation of authority to the
district court in the matter of the formation
[248] of the drainage district is a state
question. The attempt to invoke $ 4 of
article 4 of the Federal Constitution is
obviously futile (Pacific' States Teleph. ft
Teleg. Co. v. Oregon, 223 U. S. 118,
56 L. ed. 377, 32 Sup. Ct. Hep. 224),
and the objection as to suffrage quali-
fications in connection with the organi-
sation and management of the district^
sought to be based on the 15th Amendment,
is likewise wholly devoid of substance. It is
also manifest that the state provided a tri-
bunal for the determination of the compen-
sation due to the plaintiffs by reason of the
appropriation in question. Constitution of
Nebraska, art. 1. § 21 ; Laws of 1905, chap.
161, S 12; Cobbey's Anno. Stat. §§ 10,517
et seq.; Rev. Stat. 1913, §§ 5940 et seq.
Appraisers were appointed, and the plaintiffs
had due notice of hearing; they had full op-
portimity to be heard, to present any rele-
vant question, and to complain of any ir-
regularity or error. The questions of fact
as to the definite location of the ditch, the
value of the right of way, and the extent of
268
248-2S0
SUPREME COURT OF THE UNITED STATES.
OoT. Tknc»
the damage to the property affected, which
would be sustained through oonstruction and
operation, were the subject of determination
in an appropriate proceeding i See United
[249] States v. Jones, 109 U. S. 613, 619,
27 L. ed. 1015, 1017, 3 Sup. Ct. Rep. 346 ; A.
Backus Jr. ft Sons v. Ft. Street Union Depot
Co. 169 U. a 567, 568, 569, 42 L. ed. 853,
858, 859, 18 Sup. Ct Rep. 445; Hooker v.
Los Angeles, 188 U. S. 314, 818, 47 L. cd.
487, 401, 63 L.RJ1. 471, 23 Sup. Ct. Rep.
395; Appleby v. Buffalo, 221 U. S. 624, 532,
65 L. ed. 838, 842, 31 Sup. Ct. Rep. 699 ; Mc-
Govern v. New York, 229 U. S. 363, 370, 371,
57 L. ed. 1228, 1231, 1232, 46 L.RJ^.(N.S.)
391, 33 Sup. Ct. Rep. 876. It is said that
no notice to the plaintiffs was required or
given of the application for the appointment
of appraisers. As to this, however, no ques-
tion of Federal right appears to have been
raised or decided in the supreme court of the
state, nor do we intimate that such a claim
would have had basis, if made. It is plain
that with respect to none of these matters
is there any question for our review. Apple-
by v. Buffalo, 221 U. S. 524, 629, 66 L. ed.
838, 840, 31 Sup. Ct. Rep. 699.
The defendants in error have moved to
dismiss upon the ground that there is no
Federal question whatever presented by the
record. But we think that the plaintiffs
sufficiently raised the question whether the
appropriation was essentially for a private
purpose, and hence contrary to the 14th
Amendment, as amounting to a deprivation
of property without due process of law, and
that tiieir contention as to their Federal
right in this respect was denied by the state
court. In this view, jurisdiction attaches
(Missouri P. R. Co. v. Nebraska, 164 U. S.
403, 417, 41 L. ed. 489, 495, 17 Sup. Ct. Rep.
80; Madisonville Traction Co. v. St. Bernard
Min. Co. 196 U. S. 239, 251, 252, 49 L. ed.
462, 467, 468, 26 Sup. Ct. Rep. 261; dark
V. Nash, 198 U. S. 361, 49 L. ed. 1085, 25
Sup. Ct. Rep. 676, 4 Ann. Cas. 1171; Strick-
ley v. Highland Boy Gold Min. Co. 200
[250] U. S. 627, 50 L. ed. 581, 26 Sup.
Ct Rep. 301, 4 Ann. Cas. 1174; Offidd
V. New York, N. H. ft H. R. Co. 203
U. S. 372, 377, 61 L. ed. 231, 236, 27
Sup. Ct. Rep. 72; Hairston v. Dan-
ville ft W. R. Co. 208 U. & 598, 606»
606, 52 L. ed. 637, 639, 640, 28 Sup. Ct. R^.
331, 13 Ann. Cas. 1008; Union Ume Co. t.
Chicago ft N. W. R. Co. 233 U. S. 211, 218,
58 L. ed. 924, 928, 34 Sup. Ct. Rep. 622 )»
and we pass to the consideration of the stat-
utory plan.
The provisions of the statute are elabor-
ate, but the principal features may be brief-
ly outlined. In a proceeding initiated by
a majority in interest of the owners "in
any contiguous body of swamp or overflowed
lands," for the purpose of having such land
reclaimed and protected from the effects of
water, the district court for the proper coun-
ty may declare the drainage district as de-
fined to be a public corporation of the state.
To this end, the initiating proprietors must
file articles of association, giving the nam*
of the proposed district, the number of yeara
it is to continue, its extent, which must not
be less than 160 acres, and an appropriate
description of parcels and owners. Provi-
sion is made for summons to nonsigning
owners of lands averred to be benefited, and
for the hearing of objections to the organi-
zation. Property not benefited may be ex-
cluded from the district. If the organiza-
tion is approved by the court, the clerks
within a time specified, is to call a meeting
of the owners of the lands within the dis-
trict for the Section of a board of five
supervisors, to be composed of such propri-
etors, and a majority of whom must be resi-
1 With respect to the rights of the plain-
tiffs under the state law, the state court
said: "The plaintiffs contend that the con-
demnation proceedings were void because
they do not condemn and take certain lands
of the plaintiff O'Neill which would be
flooded bv the waters of the ditch. If the
plaintiffs^ lands, other than those taken by
the condemnation proceedings, are damaged
by this improvement, the law affords them a
remedy, including the right of appeal to
the court of last resort. The statute pro-
vides that the same proceedings for condem-
nation of such right of way &M be had in
all other respects, as is provided by law for
the oondenmation of rights of way for rail-
road corporations; the payment of damages
and the rights of appeal shall be applicable
to the dramage ditches and other improve-
ments provid^ for in this act.' Section 12.
The law is well settled in such case by many
decisions of this court. When the remedy at
law is adequate, the prosecution of the work
964
cannot be delayed by injunction. . . »
It is objected that the application for con-
demnation did not describe and locate the
proposed ditch with sufficient accuracy.
. . . The drawings, which the appraisers
had, showed the exact location of the pro-
posed ditch. Iliere is nothing to indicate
that the appraisement of damages was in
any way affected by any supposed uncer-
tainty as to the location. The count v court
had power to correct any irregularities in
the method of appraisement. If, by reason
of the difference in the statute from that
construed in Trester v. Missouri P. R. Co.
33 Neb. 171, 49 N. W. 1110, that case is not
to be regarded as decisive of the case at bar
upon this point, which we do not decide, it
seems clear that the application was suf-
ficiently definite to give the county court
jurisdiction of the proceedings. Errors, if
any, not affecting the jurisdiction of the
court, should have been corrected in that
court or upon appeal." 93 Neb. pp. 789, 790.
239 U. S.
191S.
O'NEILL T. LSAMEB.
80O-20S
dat within tli€ eouiitj or counties in which
the district is situated; each owner is to
hsTc one vote for each acre owned. Under
the direction of this board, which has de-
fined authority and compensation, a topo-
grtphical survey is to be made of the dis-
trict, the various tracts and properties are
to be classified according to benefits, which
sre to be assessed, and each parcel within
the district is to bear its share of the en-
tire cost and expenses incurred in malcing
the improvements in proportion to benefits.
A drain commissioner is to be appointed,
who, subject to the board's control, is to
have general superintendence [251] of
woriu under contracts awarded. If it ap-
pears that lands not embraced within the
district will be benefited, proceedings may be
had to bring them in. Condemnation of
hods, easements, or franchises, within or
without the district, for the purpose of con-
stmeting the necessary ditches, dylces, etc.,
may be had. Provision is made for the hear-
ing of objections to the proposed classifica-
tion and assessments, and aggrieved objec-
tors may appeal from the decision of the
board of supervisors to the district court.
Tax levies upon the properties assessed are
provided for, and the board is authorized to
issue bonds of the district under stated con-
ditions. Any person owning lands within the
district which is separated from the ditch or
water course for which it has been assessed
nay secure access to it across intervening
lands by resort to a described proceeding.
The treasurer of the county in which the
district, or the largest part of it, is situated,
is made '*e» officio treasurer" of the dis-
trict for the purpose of collecting and dis-
bursing the taxes or assessments laid un-
der the act.
The plaintiffs in error contend that the
plan is simply one for the private advantage
of the property owners, and they direct
special attention to the provision of the stat-
ute that the fact that the district is to con-
tain 160 acres or more of wet or overflowed
lands shall be sufficient cause for declaring
the "public utility" of the improvement.
But we do not find that the supreme court of
the state has sustained the act as applicable
to any case in which it was considered,
iq>on a judicial examination of the facts,
that the undertaking served private inter-
ests alone. On the contrary, we assume it
to be the law of Nebraska that property may
be taken in the furtherance of reclamation
projects only where it is found that the
public wdfare is involved. Acts with a dif-
ferent purpose have been held unconstitu-
tional. Jenal v. Green Island Draining Co.
12 Neb. 163, 10 N. W. 647; Welton v. Dick-
son, 38 Neb. 767, 22 L.R.A. 496, 41 Am.
St Rep. 771, 57 N. W. 669. [262] With re-
•• Ii. ed.
speet to the act here in questioii the state
court hat emphatically declared that the en-
terprises which it contemplates are those
distinctly of a publie character. In Drainage
Dist. v. Richardson County, 86 Neb. 366,
126 N. W. 796, where the county was re-
quired to contribute on account of special
benefits accruing to its highways within a
drainage district organised under the stat-
ute, the supreme court of Nebraska said up-
on this point: "That question was decided
by this court in the case of Neal v. Van-
sickle, 72 Neb. 106, 100 N. W. 200. It was
there said: That the districts contem-
plated by the act are intended to be of a
purely public and administrative character
is evident as well from the title as from the
body of the law itself. Its officers are cho-
sen by popular election and their powers, du-
ties, compensation, and terms of service
are prescribed by the statute. The sources
of its income are predetermined, as are also
the uses to which it may be applied; and
the county treasurer is made the custodian
of its funds, and his disbursement of them
regulated as in case of other public moneys.
In our opinion, it is too late in the day to
contend that the irrigation of arid lands, the
straightening and improvement of water
courses, the building of levees and the
drainage of swamp .and overflowed lands for
the improvement of the health and comfort
of the conununity, and the reclamation of
waste places and the promotion of agricul-
ture, are not all and every of them subjects
of general and public concern, the promo-
tion and regulation of which are among the
most important of governmental powers, du-
ties, and functions.' . • . We see no rea-
son at this time to depart from that opin-
ion, and therefore this contention must be
considered foreclosed so far as this court is
concerned."
See also Barnes v. Minor, 80 Neb. 189,
114 N. W. 146; State ex rel. Harris v. Han-
son, 80 Neb. 724, 742, 116 N. W. 294, 117
N. W. 412. These decisions were deemed to
be controlling in the present case. 93 Neb.
pp. 788. 789, 142 N. W. 112.
[253] We find no ground for a contrary
view as to the nature of the authorized en-
terprise. We have repeatedly said that the
provisions of the 14th Amendment, embody-
ing fundamental conceptions of justice, can-
not be deemed to prevent a state from
adopting a public policy for the irrigation
of arid lands or for the reclamation of wet
or overflowed lands. States may take ac-
count of their special exigencies, and when
the extent of their arid or wet lands is such
that a plan for irrigation or reclamation ac-
cording to districts may fairly be regarded
as one which promotes the public interest,
there is nothing in the Federal Constitu-
266
26S, 264
6UPRrai£ COURT OF THE UNITED STATES.
Oct. Tebm,
tion which denies to them the right to for-
mulate this policy or to exercise the power
of eminent domain in carrying it into ef-
fect. With the local situation the sUte
court is peculiarly familiar and its judg-
ment is entitled to the highest respect.
Clark V. Nash, 198 U. 8. 361, 49 L. ed.
1085, 26 Sup. Ct. Rep. 676, 4 Ann. Cas.
1171; Strickley y. Highland Boy Gold Min.
Co. 200 U. S. 627, 60 L. ed. 681, 26 Sup. Ct.
Rep. 301, 4 Ann. Cas. 1174; Hairston v.
Danville ft W. R. Co. 208 U. S. 698, 606,
606, 62 L. ed. 637, 639, 640, 28 Sup. Ct.
Rep. 331, 13 Ann. Cas. 1008; Union Lime
Co. ▼. Chicago & N. W. R. Co. 233 U. S. 211,
218, 68 L. ed. 924, 9$$8, 34 Sup. Ct. Rep. 622.
It has been held that it is not necessary that
the state power should rest simply upon
the ground that the undertaking is ne^ed
for the public health; there are manifest-
ly other considerations of public advantage
ill prorldiiig a general plan of reclamation
1^ which wet lands throughout the state
may be opened to profitable use. Fallbrook
Irrig. Dist ▼. Bradley, 164 U. S. 112,
163, 41 L. ed. 869, 390, 17 Sup. Ct. Rep. 66.
Nor is' the statutory scheme to be condemned
because it contemplates improvements in
districts. Drainage districts may be estab-
lished as well as school districts. All lands
within the established district which require
drainage are to enjoy the benefits of the
plan. See 2 Lewis Em. Dom. 3d ed. p. 671.
Nor is it an objection that private property
within the district, which is established in
execution of the public policy, will be bene-
fited ; and it is clearly not improper that the
cost and expense should be apportioned ac-
cording [254] to benefits. Fallbrook Irrig.
Dist ▼• Bradley, supra.
In the present instance, the record shows
that the drainage district, as organijced, em-
braces a large area with many proprietors,
and that after contest in the original pro-
ceeding the district court made its deliber-
ate order that tbe enterprise would be a pub-
lic utility and conducive to the "public con-
venience, health, and welfare." Nothing
appears to warrant a different conclusion.
Neither in the statutory provisions as con-
strued by the state court nor in their ap-
plication in the particular case is there
basis for finding that the plaintiffs in error
have been deprived of their property without
due process of law. Rather must it be said
that the, ruling bM to the authority of the
state to make the condemnation for the pre-
scribed purpose has, from the standpoint
of the Federal Constitution, abundant sup-
port in the decisions of this court. Wurts
T. Hoagland, 114 U. 8. 606, 29 L. ed. 229,
5 Sup. Ct. Rep. 1086; Fallbrook Irrig. Dist.
T. Bradley, supra; Clark v. Nash, 198 U. S.
361, 49 L. ed. 1086, 26 Sup. Ct Rep. 676,
4 Ann. Cas. 1171; Strickley v. Highland
Boy Gold Min. Co. 200 U. S. 627, 60 L. ed.
681, 26 Sup. Ct. Rep. 301, 4 Ann. Cas. 1174.
Judgment affirmed.
LOUIS TTonnrr and Maiy H. G. Houck*
His Wife; Charles J. Juden and C. G.
Cox, Plffs. in Err.,
▼.
LITTLE RIVER DRAINAGE DISTRICT,
John H. Himmelberger, et aL
(See S. C. Rep(Nrter*s ed. ^2^^-267.)
Constitutional law — due process of law
— assessing drainage expenses by
acreage within district.
1. The levy of the maximum tax of 26
cents per acre to defrinr preiiminary ex-
penses, conformably to Mo. Rev. Stat. 1909,
§ 6538, upon all the lands within a drain-
age district diUy organized by a court order
under legislative authoritv, does not take,
without due process of law, contrary to
U. S. Const, 14th Amend., the proper^ of
the owners of land within the district which
may not be benefited l^ the completed drain-
age plans.
[For other cases, see Constitutional Law, 661-
681, in Digest Sup. Ct. 1908.1
Constitutional law — due process of law
— taxation for public improvement —
retrospective statute.
2. Taxinff for preliminary expenses the
property within a drainage district, con*
formabfy to Mo. Rev. Stat. 1909, % 6688,
does not ti^e property without due process
of law, contrary to U. S. Const, 14th
Amend., because this section was enacted
after the district was organized, where the
Note. — ^As to what constitutes due process
of law, generally— see notes to People v.
O'Brien, 2 LJLA^ 266; Kuntz v. Sumption,
2 L.ILA. 666; Re Gannon, 6 L.R.A. 369;
Ulman v. Baltimore, 11 L.RA. 224; Gil-
man V. Tucker, 13 L.R.A. 304; Pearson v.
Yewdall, 24 L. ed. U. S. 436; and Wilson
V. North Carolina, 42 L. ed. U. S. 866.
Generally as to what laws are void as
impairing obUgation of contracts — see notes
to Franklin County Granunar School v.
Bailey, 10 L.R.A. 406 ; Bullard v. Northern
P. R. Co. 11 LJt.A. 246; Henderson v. State
Soldiers & S. Monument Comrs. 13 L.RJ^.
169; and Fletcher v. Peck, 3 L. ed. U. 8.
162w
As to persons and property liable for ex*
pense of drainage — see notes to Hefltaer t.
Cass k Morgan Counties, 68 L.R.A. 363, and
Billings Sugar Co. ▼. Fish, 26 L.R.A.(NJ3.)
973.
Generally, as to what laws are em poet
facto—eee notes to Anderson v. CDonnell,
1 L.RJ1. 632; SUte v. Cooler, 3 L.RJ^.
181; Calder v. Bull, 1 L. ed. U. S. 648;
Sturges V. Crowninshield, 4 L. ed. U. S. 629;
Otoe County v. Baldwin, 28 L. ed. U. S.
331; Re Medl^, 33 L. ed. U. S. 836; and
BamitB v. Beverly, 41 L. ed. U. S. 94.
2St 17. B.
1915.
HOUCK V. LiriliE RIVER DRAINAGE DIST.
statute which was in force at the time of
the formation of the district (Mo. Laws
1905, § 8252) contemplated liability to
taxation to defray the preliminary expenses
as well as the ultimate cost of the improve-
ments if made, since these preliminary out-
lays must be regarded as incident to the
organization, for whidi the legislature was
competent to provide in the exercise of its
taxing power.
{For other cases, see Conatltntional Law. 661-
581, 993-1000, in Diffeit Sup. Ct. 1908.]
Constitntlonsl law — impairing con*
tract obligations — charter of pnblio
corporation.
3. Ihe charter of a drainage district as
a public corporation does not constitute a
contract with its members that the laws it
was created to administtf will not be
changed.
CPor other cases, see Constitutional Law,
1081-1087, in Digest Sup. Ct. 1908.]
[No. 35.]
Argued October 27 and 28, 1016. l^ecided
November 20, 1916.
IN ERROR to the Supreme Court of the
State of Missouri to review a decree
which affirmed a decree of the Circuit Court
of Cape Girardeau County, in that state,
dismissing the petition in a suit to restrain
the collection of a tax. Affirmed.
See same case below, 248 Mo. 373, 154 S.
W. 739.
The facts are stated in the opinion.
Messrs. Benson O. Hardesty and
Giboney Houck argued the cause, and,
with Mr. Thomas D. Hines, filed a brief for
plaintiffs in error:
What may be done under Mo. Rev. Stat.
]900, § 5538, construed in connection with
all the Missouri drainage laws, is the con-
stitutional test to be applied, and plaintiffs
in error are neither estopped nor barred
from challenging this law.
Stuart T. Palmer, 74 N. Y. 191, 30 Am.
Rep. 280, State, Agens, Prosecutor, v. New-
ark, 37 N. J. L. 420, 18 Am. Rep. 729 ; Nor-
wood V. Baker, 172 U. S. 269, 43 L. ed.
443, 19 Sup. Ct. Rep. 187; Northern P. R.
Co. V. Pierce County, 51 Wash. 12, 23
L.R.A.(N.S.) 286, 97 Pac 1099; Little
River Drainsge Dist. v. St. Louis, M. & S.
£. R. Co. 236 Mo. 94, 139 8. W. 330;
Charles v. Marion, 98 Fed. 166; Moss ▼.
Whitzel, 108 Fed. 582; Chicago, B. & Q.
R. Co. v. Chicago, 166 U. S. 226, 241, 41
L. ed. 979, 086, 17 Sup. Ct. Rep. 581; David-
son V. New Orleans, 96 U. S. 97, 104, 105,
24 L. ed. 616, 619, 620; Cooley, Const. Lim.
••356, 357; 2 Story, Const. Cooley^s ed. §
1956; Squaw Creek Drainage Dist. v.
Tumey, 235 Mo. 80, 138 S. W. 12; Violett
▼. Alexandria, 92 Va. 561, 31 L.R.A. 382,
63 Am. St. Rep. 825, 23 S. E. 909; Ohlmann
60 L« ed.
V. Clarkson Saw MiU Go. 222 Mo. 62, 28
L.R.A.(N.S.) 432, 133 Am. St. Rep. 506,
120 S. W. 1155; Gist v. Rackliffe-Gibson
Constr. Co. 224 Mo. 369, 123 S. W. 921;
Ross y. Wright County, 128 Iowa, 436, 1
L.RJL(N.S.) 431, 104 N. W. 506.
The avowed purpose and only possible
legal purpose of this section is a public
one, and involves the taking of private
property for public use.
Morrison v. Morey, 146 Mo. 563, 48 S.
W. 629; Mound City Land & Stock Co. t.
Miller, 170 Mo. 258, 60 L.RJ^. 190, 94 Am.
St. Rep. 727, 70 S. W. 721; Chicago, B. ft
Q. R. Co. V. Illinois, 200 U. S. 561, 50
lu ed. 596, 26 Sup. Ct. Rep. 341, 4 Ann.
Cas. 1175; Egyptian Levee Co. v. Hardin,
27 Mo. 496, 72 Am. Dee. 276; St. Louis use
of Creamer v. Oeters, 36 Mo. 456; Kansas
City use of Coates v. Ridenour, 84 Mo. 259;
St. Joseph V. Anthony, 30 Mo. 537; Inde-
pendence V. Gates, 110 Mo. 374, 19 S. W.
728; St Louis v. Rankin, 06 Mo. 497, 9
S. W. 910; Kansas City v. Ward, 134 Mo.
172, 35 S. W. 600.
Due process of law requires compensation
for private property taken for public use.
Long Island Water Supply Co. v. Brook-
lyn, 166 U. S. 695, 41 L. ed. 1168, 17 Sup.
Ct. Rq>. 718; Corrigan v. Gage, 68 Mo. 541;
Albright V. Fisher, 164 Mo. 68, 64 S. W.
106; St. Louis v. St Louis Theatre Co. 202
Mo. 699, 100 S. W. 627; Chicago, B. & Q.
R. Co. V. Chicago, 166 U. S. 226, 241, 41
L. ed. 979, 986, 17 Sup. Ct Rep. 581; Nor-
wood ▼. Baker, 172 U. S. 269, 43 L. ed.
443, 19 Sup. Ct. Rep. 187; Chicago, B. &
Q. R. Co. V. UUnois, 200 U. S. 561, 50 L.
ed. 596, 26 Sup. Ct. Rep. 341, 4 Ann. Cas.
1175.
If the drainage plan should fail, there
can then be no compensation of the char-
acter contemplated by due process of law.
Kiley v. Cranor, 51 Mo. 542, 14 Cyc.
1059 ; Lipes v. Hand, 104 Ind. 503, 1 N. E.
871, 4 N. E. 160 ; Kansas City v. O'Connor,
82 Mo. App. 655; Chicago v. Blair, 149
111. 310, 24 LJt.A. 412, 36 N. E. 829;
New York L. Ins. Co. v. Prest, 71 Fed. 817 ;
Pettit V. Duke, 10 UUh, 311, 37 Pac. 568;
Owensboro ▼• Sweeney, 129 Ky. 607, 18
LJlJk.(N.S.) 181, 130 Am. St Rep. 477,
111 S. W. 364 ; Stevena v. Port Huron, 140
Mich. 536, 113 N. W. 291, 12 Ann. Cas.
603; Kalamazoo v. Crawford, 164 Mich.
58, 117 N. W. 572, 16 Ann. Cas. 110; Wash-
ington Ice Co. V. Chicago, 147 lU. 327, 37
Am. St Rep. 222, 35 N. E. 378 ; Kansas City
V. St Louis & S. F. R. Co. 230 Mo. 369,
28 L.R«A.(N.S.) 669, 130 S. W. 273; Hutt
V. Chicago, ]32 111. 352, 23 N. E. 1010;
Waukegan v. Burnett, 234 lU. 460, 84 N.
E. 161; Chicago v. Kemp, 240 111. 56, 88
N. K 284; lindblad v. Normal, 224 IlL
267
SUPREME COURT OF THE UNITED STATES.
Oct.
362, 79 N. £. 675; Holdom t. Chicago, 169
111. 109, 48 N. E. 164 ; State, Kellogg, Pro0-
ecutor, y. Elizabeth, 40 N. J. L. 274; Title
Guarantee & T. Co. t. Chicago, 162 III.
505, 44 N. E. 832; Re Park Ayenue Sewers,
169 Pa. 433, 32 Atl. 574; Edwards y. Chi-
cago, 140 111. 440, 30 N. E. 350; Bridgeport
y. New York & N. H. R. Co. 36 Conn. 255,
4 Am. Rep. 63; Wistar y. Philadelphia,
80 Pa. 505, 21 Am. Rep. 112; Re Market
Street, 49 CaL 546; Hanscom y. Omaha,
11 Neb. 37, 7 N. W. 739; Chamberlain y.
Cleveland, 34 Ohio St. 551; Hartford v.
West Middle IMst. 45 Conn. 462, 29 Am.
Rep. 687; Cooley, Taxn. 416, chap. 20, ^ 1;
Cooley, Taxn. 2d ed. 606, ^ 1; Hammett
y. Philadelphia, 65 Pa. 146, 3 Am. Rep.
615; State, Agens, Prosecutor, y. Newark,
37 N. J. L. 416, 18 Am. Rep. 729; Davidson
v.. New Orleans, 96 U. S. 97, 24 L. ed. 616;
Citizens' Sav. & L. Asso. y. Topeka, 20
Wall. 655, 22 L. ed. 455; McCormack v.
Patchin, 53 Mo. 36, 14 Am. Rep. 440; Nor-
wood y. Baker, 172 U. S. 269, 43 L. ed. 443,
19 Sup. Ct. Rep. 187; 2 Dill. Mun. Corp.
4th ed. p. 934, f 761; Mobile County v.
Kimball, 102 U. S. 691, 703, 704, 26 L.
ed. 238, 241, 242; Illinois C. R. Co. y.
Decatur, 147 U. S. 190, 37 L. ed. 132, 13
Sup. Ct. Rep. 293; Bauman y. Ross, 167
U. S. 548, 589, 42 L. ed. 270, 288, 17 Sup.
Ct. Rep. 966; Barber Asphalt Paving Co.
y. French, 158 Mo. 534, 54 L.RJ^. 492, 58
S. W. 934, 181 U. S. 324, 45 L. ed. 879,
21 Sup. Ct. Rep. 625; Parsons y. District
of Columbia, 170 U. S. 54, 42 L. ed. 947,
18 Sup. Ct. Rep. 521; Heman y. Schulte,
166 Mo. 409, 66 S. W. 163; Corrigan v.
Gage, 68 Mo. 541; Spencer v. Merchant,
125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct.
Rep. 921.
Even if the drainage plan should suc-
ceed, still no compensation can result so
far as concerns the large area of plaintiffs'
lands necessarily condemned for public use,
and which same area is assessed with this
tax.
Squaw Creek Drainage Dist t. Tumey,
235 Mo. 80, 138 S. W. 12; Hanscom v.
Omaha, 11 Neb. 37, 7 N. W. 739; Cham-
berlain y. Cleveland, 34 Ohio St. 551; Hart-
ford y. West Middle Dist. 45 Conn. 462, 29
Am. Rep. 687; Re Park Avenue Sewers,
169 Pa. 433, 32 Atl. 574; Heman y. Schulte,
166 Mo. 409, 66 S. W. 163; Barber Asphalt
Paving Co. y. French, 158 Mo. 534, 54
L.R.A. 492, 58 S. W. 934, 181 U. S. 324,
45 L. ed. 879, 21 Sup. Ct. Rep. 625.
The Missouri supreme coiu^ erred in ad-
judging that said § 5538 is not retrospec-
tive so as to violate due process of law.
State ex rel. Board of Education v. Haben,
22 Wis. 660; Pawlet y. Clark, 9 Cranch,
332, 3 L. ed. 749; Terrett v. Taylor, 9
268
Cranch, 50, 3 L. ed. 653; Charles Riyer
Bridge y. Warren Bridge, 11 Pet. 603, •
L. ed. 846; Walla Walla v. Walla Walla
Water Co. 172 U. S. 9, 43 L. ed. 345, 1»
Sup. Ct. Rep. 77; Bailey v. Philadelphia,
W. & B. R. Co. 4 Harr. (Del.) 389, 44 Am.
Dec 593; Edwards y. Kearzey, 96 U. S.
595, 24 L. ed. 793; Mnhlker v. New York
& H. R. Co. 197 U. S. 544, 49 L. ed. 872,
25 Sup. Ct. Rep. 522; St. Louis use of
Creamer v. Clemens, 52 Mo. 144; State ex
rel. Haeussler y. Greer, 78 Mo. 188; Fisher
y. Patton, 134 Mo. 63, 33 S. W. 451, 34 S.
W. 1096; Re PeU, 171 N. Y. 48, 57 hJRJi.
540, 89 Am. St. Rep. 791, 63 N. E. 789;
State ex rel. Pittman y. Adams, 44 Mo.
570; Dartmouth College v. Woodward,
4 Wheat. 518, 4 L. ed. 629 ; Leete y. State
Bank, 115 Mo. 201, 21 S. W. 788; Wester-
velt y. Gregg, 12 N. Y. 202, 62 Am. Dec
160; Norris v. Beyea, 13 N. Y. 273; Holmea
v. Holmes, 4 Barb. 295; Ryder v. Hulse^
24 N. Y. 372; Sperry v. Haslam, 57 Ga.
412; Dunn y. Sargent, 101 Mass. 336;
Fletcher v. Peck, 6 Cranch, 87, 3 L. ed.
162; Davis y. Gray, 16 Wall. 203, Zl L.
ed. 447; Fisk y. Jefferson, 116 U. S. 131,
29 L. ed. 587, 6 Sup. Ct. Rep. 329; Louisi-
ana ex rel. Nelson v. St. Martin's Parish^
111 U. S. 716, 28 L. ed. 574, 4 Sup. Ct.
Rep. 648; Hall v. Wisconsin, 103 U. S. 5,
26 L. ed 302; Gordon v. Appeal Tax Ct. 3
How. 133, 11 L. ed. 529.
The Missouri supreme court erred in ad-
judging that said section does not impair
the obligation of contracts.
State ex rel. Mulholland y. Smith, 141
Mo. 1, 41 S. W. 906; Kaukauna Water
Power Co. y. Green Bay & M. Canal Co.
142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct.
Rep. 173; Wilson y. Black Bird Creek
Marsh Co. 2 Pet. 245, 7 L. ed. 412; Arm-
strong y. Athens County, 16 Pet. 281, 10
L. ed. 965; Chicago L. Ins. Co. v. Needles,
113 U. S. 574, 28 L. ed. 1084, 5 Sup. Ct.
Rep. 681; Eurdca Lake & Y. Canal Co. v.
Superior Ct. 116 U. 8. 410, 29 L. ed. 671,
6 Sup. Ct. Rep. 429; McGrew v. Missouri
P. R. Co. 230 Mo. 496, 132 S. W. 1076 ; Ex
parte Siebold, 100 U. S. 371, 25 L. ed. 717.
Messrs. Robert B. Oliver, Jr., and
Ilobert B. Oliver, argued the cause, and,
with Mr. Allen Laws Oliver, filed a brief
for defendants in error:
The general assembly of Missouri has the
legal and constitutional right to create
drainage and levee districts apd to fix their
territorial limits, and may also determine
the amount of the assessment against each
tract of land within the district. It also
has the right to delej;ate these powers to
any agency of the state created by it.
Little River Drainage Dist. v. St. Louis^
M. & S. E. R. Co. 236 Mo. Ill, 139 S. W.
239 U. S.
1915.
HOUCK T. LITTLE RIVER DRAINAGE DIST.
330; Egyptian Leree Go. ▼. Hardin, 27 Mo.
495, 72 Am. Dec 276; Oolmnbia Bottom
heiwte Co. t. Meier, 39 Mo. 57; Morrison
y. Morey, 146 Mo. 561, 48 a W. 629;
Mound City Land ft Stock Co. t. Miller, 170
Mo. 251, 60 L.RJL 190, 94 Am. St Rep.
727, 70 S. W. 721; Barber Asphalt Paving
Co. V. French, 158 Mo. 534, 54 JjJEUk. 492,
58 S. W. 034, 181 U. S. 324, 45 L. ed. 879,
21 Sup. Ct. Rep. 625; Meier v. St. Louis,
180 Mo. 408. 79 S. W. 955; Heman v. Wa-
bash R. Co. 206 Mo. 179, 12 LJIJ^.(N.S.)
112, 121 Am. St. Rep. 649, 104 S. W. 67,
12 Ann. Cas. 630; Hagar ▼. Reclamation
Dist. Ill U. S. 701, 28 L. ed. 569, 4 Sup.
Ct. Rep. 663; Walston y. Neyin, 128 U. S.
578, 32 L. ed. 544, 9 Sup. Ct Rep. 192;
Williams y. Eggleston, 170 U. S. 304, 42
L. ed. 1047, 18 Sup. Ct. Rep. 617; Spencer
v. Merchant, 125 U. 8. 345, 31 L. ed. 763,
8 Sup. Ct. Rep. 921; Bauman y. Ross, 167
U. S. 548, 42 L. ed. 270, 17 Sup. Ct. Rep.
966; Soliah v. Heskin, 222 U. S. 522, 56
L. ed. 294, 32 Sup. Ct Rep. 103 ; Cleyeland,
C. C. & St. L. R. Co. y. Porter, 210 U. S.
177, 52 L. ed. 1012, 28 Sup. Ct Rep. 647;
New Orleans Qaslij^t Co. v. Drainage Com-
mission, 197 U. S. 453, 49 L. ed. 831, 25
Sup. Ct. Rep. 471.
It is within the power of the legislature
of Missouri to charge the property within
the q>ecial assessment district at a leyel
rate, with the cost of improyements, and
apportion the same either according to the
front-foot rule, or according to the area
(acreage) rule, or according to q>ecial bene-
fits derived. In eithtf event it acts within
constitutional limits.
Chicago, B. & Q. R. Co. V. Illinois, 200 U.
8. 561, 50 L. ed. 596, 26 Sup. Ct Rep. 341,
4 Ann. Cas. 1175; Spencer v. Merchant* 125
U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep.
921; Wight V. Davidson, 181 U. a 371,
45 L. ed. 900, 21 Sup. Ct. Rep. 616; Cass
Farm Co. v. Detroit* 181 U. S. 396, 45 L.
ed. 914, 21 Sup. Ct Rep. 644; Detroit v.
Parker, 181 U. S. 399, 45 L. ed. 917, 21
Sup. Ct Rep. 624; Webster v. Fargo, 181
U. S. 394, 45 U ed. 912, 21 Sup. Ct Rep.
623; Little River Drainage Dist v. St
Louis, M. & S. E. R. Co. 236 Mo. 109, 139
8. W. 330; Egyptian Levee Co. v. Hardin,
27 Mo. 405, 72 Am. Dec. 276; Columbia
Bottcun Levee Co. v. Meier, 39 Mo. 53;
Prior v. Buehler k C. Constr. Co. 170 Mo.
448, 71 S. W. 205; Meier v. St Louis, 180
Mo. 391, 79 S. W. 955; Barber Asphalt
Paving Co. v. French, 158 Mo. 534, 54
LJLA. 492, 58 S. W. 934, 181 U. S. 324,
45 L. ed. 879, 21 Sup. Ct. Rep. 625 ; North-
em P. R. Co. v. Pierce County, 51 Wash.
12* 23 L.RJL(N.S.) 286, 97 Pac. 1099;
Gilsonite Roofing k Paving Co. v. St. Louis
Fair Asso. 231 Mo. 589, 132 S. W. 657;
60 li. ed.
Pleadwell v. Missouri Glass Co. 151 Mo.
App. 51, 131 S. W. 941; Fruin-Bambrick
Constr. Co. v. iSt Louis Shovel Co. 211 Mo.
534, 111 a W. 86; Munson v. Atdiafalaya
Basin Levee Dist 43 La. Ann. 15, 8 So.
906; Wallace v. Shdton, 14 La. Ann. 503;
Caton v. Western Clay Drainage Dist. 87
Ark. 8, 112 a W. 145; Sheley v. Detroit 45
Mich. 431, 8 N. W. 52; Creamer v. Allen, 3
Mo. App. 548; Cooley, Tazn. 1st ed. p. 454.
The legislature of Missouri has the legal
and constitutional right to apportion the
costs of the improvements upon the prop-
erty in the Little River Drainage District
according to the frontage or area rule
without judicial inquiry as to the value of
benefits the property assessed would re-
ceive, and the exercise of such a power will
not constitute the taking of private prop-
erty without due process of law under
either the state or Federal Constitution.
Briscoe V. Rudolph, 221 U. S. 547, 55 L.
ed. 848, 31 Sup. Ct Rep. 670; Spencer v.
Merchant^ 125 U. S. 345, 356, 31 L. ed.
763, 767, 8 Sup. Ct R^. 921; Hagar v.
Reclamati<m Dist 111 U. S. 701, 28 L. ed.
569, 4 Sup. Ct Rep. 663; French v. Barber
Asphalt Paving Co. 181 U. S. 324, 45 L.
ed. 879, 21 Sup. Ct Rep. 625, 158 Mo.
534, 54 L.RJL 492, 58 S. W. 934; Tona-
wanda v. Lyon, 181 U. S. 389, 45 L. ed.
908, 21 Sup. Ct. Rep. 609; Webster v. Fargo,
181 U. a 394, 45 L. ed. 912, 21 Sup. Ct
Rep. 623; Cass Farm Co. v. Detroit 181
U. S. 396, 45 U ed. 914, 21 Sup. Ct Rep.
644; Detroit v. Parker, 181 U. S. 399, 45
L. ed. 917, 21 Sup. Ct Rep. 624; Shumate
v. Heman, 181 U. S. 402, 45 L. ed. 922, 21
Sup. Ct. Rep. 645; Wormley v. District of
Columbia, 181 U. S 402, 45 L. ed. 921,
21 Sup. Ct Rep. 609; Williams v. Eggles-
ton, 170 U. S. 304, 42 L. ed. 1047, 18 Sup.
Ct Rep. 617; Hemsn v. Allen, 156 Mo. 534,
57 S. W. 550; Keith v. Bingham, 100 Mo.
300, 13 S. W. 683; Smith v. Worcester, 182
Mass. 232, 59 L.R.A. 728, 65 N. E. 40; Heman
V. Gilliam, 171 Mo. 264, 71 S. W. 163; St.
Charles ex rel. Budd v. Deemar, 174 Mo.
122, 73 S. W. 469; Meier v. St Louis, 180
Mo. 408, 79 a W. 955; Ross v. Gates, 183
Mo. 347, 81 S. W. 1107; Barber Asphalt
Paving Co. v. Munn, 185 Mo. 565, 83 S. W.
1062; People ex rel. Scott v. Pitt> 169 K.
Y. 521, 58 LJRJ^. 372, 62 N. E. 662; Arnold
V. Knoxville, 115 Tenn. 210, 3 LJLA.(N.S.)
837, 90 a W. 469, 5 Ann. Cas. 881; Cooley,
Taxn. 1st ed. pp. 36-40; Prior v. Buehler
& C. Constr. Co. 170 Mo. 439, 71 S. W.
205; Gilsonite Roofing Co. v. St Louis Fair
Asso. 231 Mo. 589, 132 S. W. 657; Ross v.
Wright County, 128 Iowa, 427, 1 LJI.A.
(N.S.) 437, 104 N. W. 506; Page k J. Taxn.
§1 123, 728; Fruin-Bambrick Constr. Co. v.
26t
SUPREME CX)UItT OF THE UNITED STATES.
Cor.
St. Louis Shovel Co. 211 Mo. 632, 111 S.
W. 86.
The constitutional provision prohibiting
the taking of private property for public
use without compensation is a limitation of
the exercise by the state of the right of
eminent domain, and not a limitation on
the taxing power of the state.
Little Tarkio Ihrainage Dist. y. Richard-
son, 237 Mo. 71, 139 S. W. 576; Keith t.
Bingham, 100 Mo. 306, 13 S. W. 683; He-
man V. Schulte, 166 Mo. 409, 66 S. W. 163;
St. Louis V. Buss, 159 Mo. 12, 59 S. W.
969; Dill. Mun. Corp. 3d ed. § 738; 25
Am. & Eng. Enc. Law pp. 18-20; Page &
J. Taxn. § 110.
It is the settled law in Missouri that
special assessments for local improvements
are referable to the taxing power of the
state.
Fruin-Bambrick Constr. Co. v. St. Louis
Shovel Co. 211 Mo. 531, 111 S. W. 86; Bar-
ber Asphalt Paving Co. t. French, 158 Mo.
534, 54 L.R.A. 492, 58 S. W. 934, 181 U.
S. 324, 339, 45 L. ed. 879, 887, 21 Sup. Ct.
Rep. 625; St. Joseph use of Gibson t. Far-
rell, 106 Mo. 437, 17 S. W. 497; Spencer v.
Merchant, 125 U. S. 345, 31 L. ed. 763, 8
Sup. Ct. Rep. 921; Cooley, Taxn. Ist ed.
pp. 430, 431.
The legislative determination of the bene-
fits derived, or the necessity and advisabil-
ity of a local assessment, is conclusive and
final, and is not subject to judicial review.
French v. Barber Asphalt Paving Co. 181
U. S. 324, 338, 339, 45 L. ed. 879, 887, 888,
21 Sup. Ct. Rep. 625, 158 Mo. 534, 54
L.RJ^. 492, 58 S. W. 934; Hagar v. Recla-
mation Dist. Ill U. S. 701, 28 L. ed. 569,
4 Sup. Ct. Rep. 663; Chadwick v. Kelley,
187 U. S. 540, 47 L. ed. 293, 23 Sup. Ct.
Rep. 175; Louisville & N. R. Co. v. Barber
Asphalt Paving Co. 197 U; S. 430, 49 L. ed.
819, 25 Sup. Ct. Rep. 466; Fallbrook Irrig.
Dist. y. Bradley, 164 U. S. 112, 41 L. ed.
.369, 17 Sup. Ct. Rep. 56; Spencer v.
Merchant, 125 U. S. 345, 31 L. ed. 763, 8
Sup. Ct. Rep. 921; Prior v. Buehler & C.
Constr. Co. 170 Mo. 451, 71 S. W. 205;
Egyptian Levee Co. v. Hardin, 27 Mo. 495,
72 Am. Dec. 276; St. Joseph y. O'Donoghue,
31 Mo. 345; Meier v. St. Louis, 180 Mo.
391, 79 S. W. 955; People ex rel. Griffin v.
Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266;
Northern P. K. Co. y. Seattle, 46 Wash.
674, 12 L.R.A.(N.S.) 121, 123 Am. St.
Rep. 955, 91 Pac. 244 ; Smith v. Worcester,
182 Mass. 232, 59 L.RA.. 728, 65 N. E.
40; Spencer v. Merchant, 100 N. Y. 585, 3
N. E. 682; Webster v. Fargo, 181 U. S.
394, 46 L. ed. 912, 21 Sup. Ct Rep. 623;
Cooley, Taxn. 1st ed. p. 446.
A legislative finding of benefits will be
presumed after an assessment has been au-
J970
thorized. jAoth courts and legislature tak»
notice of the topography of the state, and
that wet, swampy, and overfiowed land*
will be rendered more habitable and pro-
ductive, and that the public health will be
benefited, by removing water which causes
unhealthy conditions.
Hagar y. Reclamation Dist. Ill U. 8.
701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663;
Fallbrook Irrig. Dist. y. Bradley, 164 U.
S. 112, 41 L. ed. 369, 17 Sup. Ct Rep. 56 ;
French v. Barber Asphalt Paving Co. 181
U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep.
625; Chicago, B. k Q. R. Co. v. Illinois, 200
U. S. 561, 50 L. ed. 596, 26 Sup. Ct. Rep.
341, 4 Ann. Cas. 1175; Little River Drain-
age Dist. v. St Louis, M. & S. £. R. Co. 236
Mo. Ill, 139 S. W. 330; Louisville ft N.
R. Co. V. Barber Asphalt Paving Co. 107 U.
S. 430, 432, 49 L. ed. 819, 821, 25 Sup. Ct.
Rep. 466; Mound City Land & Stock Co. y.
Miller, 170 Mo. 240, 60 L.R.A. 190, 94 Am.
St Rep. 727, 70 S. W. 721 ; Fruin-Bambrick
Constr. Co. v. St. Louis Shovel Co. 211 Mo.
524. Ill S. W. 86; Prior v. Buehler & C.
Constr. Co. 170 Mo. 439, 71 S. W. 205; Meier
V. St Louis, 180 Mo. 301, 79 S. W. 0.56;
Northern P. R, Co. v. Pierce County, 61
Wash. 12, 23 L.R.A.(N.S.) 286, 97 Pac. 1000;
State ex rel. Utick v. Polk County, 87 Minn.
325, 60 L.R.A. 161, 02 N. W. 216; Smith
y. Worcester, 182 Mass. 232, 50 L.R.A. 728»
66 N. E. 40; Cooley, Taxn. 1st ed. pp. 4.30,
450.
The act of the legislature in levying as-
sessments for a definite sum against each
lot or acre of land for special improvementa
is conclusive alike of the necessity of the
work and of its benefits to the property as-
sessed; and the l^islature, in so doing, is
not compelled to give notice to the parties
resident within the district, or to give a
hearing before itself or one of its commit-
tees, or any other tribunal, on the question
of whether the property so included within
the district is in fact benefited.
Hagar v. Reclamation Dist. Ill U. S.
701, 28 L. ed. 560, 4 Sup. Ct Rep. 663;
Parsons v. District of Columbia, 170 U. 8.
46, 42 L. ed. 043, 18 Sup. Ct Rep. 521;
Goodrich v. Detroit, 184 U. S. 432, 46 L.
ed. 627, 22 Sup. Ct. Rep. 307; Chadwick y.
Kelley, 187 U. S. 540, 546, 47 L. ed. 203,
205, 23 Sup. Ct. Rep. 175; Louisville & N.
R. Co. v. Barber Asphalt Paving Co. 107.
U. 6. 430, 40 L. ed. 810, 25 Sup. Ct. Rep.
466; Williams v. £;ggleston, 170 U. S. 304»
42 L. ed. 1047, 18 Sup. Ct Rep. 617;
Davidson v. New Orleans, 06 U. S. 07, 24
L. ed. 616; Cooley, Taxn. 2d ed. p. 140;
Hanunett v. Philadelphia, 65 Pa. 155, 3
Am. Rep. 615 ; State v. Robert P. Lewis Co.
(Ramsey County v, Robert P. Lewis Co.)
82 Minn. 400, 53 L.RJ1. 421, 85 N. W. 207»
2S0 U. S.
1915.
HOUCK ▼. UTILE RIVER DRAINAGE DIST.
86 N. W. 611; Jones k P. Taxn. §§ 123,
728.
Questiont not clearly raised in the court
below will not be considered in this coiurt,
tad an assignment of errors cannot be
STaiied of to import questions into this
ease which are not shown by the record to
have been raised and passed on below.
Cleveland & P. R. Ck>. y. Cleveland, 236
U. S. 50, 50 L. ed. 127» 36 Sup. Ct Rep.
21; Ansbro v. United States, 150 U. S.
m, 40 L. ed. 310, 16 Sup. Ct. Rep. 187 ;
F. G. Oxley Stave Co. t. Butler County,
166 U. S. 648, 653, 41 L. ed. 1140, 17 Sup.
a Rep. 700; Henkel t. Cincinnati, 177
U. 8. 171, 44 L. ed. 721, 20 Sup. Ct. Rep.
573; Chicago, I. & L. R. Co. y.^MeGuire^
IM U. S. 128, 40 L. ed. 413, 25 Sup. Ct.
Sep. 200; Zadig y. Baldwin, 166 U. S. 485,
488, 41 L. ed. 1087, 1088, 17 Sup. Ct. Rep.
639; Keokuk & H. Bridge Co. y. Illinois,
175 U. S. 626, 633, 44 L. ed. 200, 302, 20
Sap. Ct. Rep. 205; Harding v. Illinois, 106
U. 8. 78, 40 L. ed. 304, 26 Sup. Ct. Rep.
176; Chesapeake & O. R. Co. y. McDonald,
214 U. S. 101, 53 L. ed. 063, 20 Sup. Ct.
Bep. 546; Cornell y. Green, 163 U. S. 75,
80, 41 L. ed. 76, 78, 16 Sup. Ct. Rep. 060;
Mtzwell y. Newbold, 18 How. 511, 15 L.
€d. 606; Marvin v. Trout, 100 U. S. 212, 50
L ed. 157, 26 Sup. Ct. Rep. 31; Pim v. St.
Lonis, 165 U. S. 273, 41 L. ed. 714, 17 Sup.
Ct Rep. 322 ; Fullerton v. Texas, 106 U. S.
192, 49 L. ed. 443, 25 Sup. Ct. Rep. 221;
Loeber y. Schroeder, 140 U. S. 580, 37 I*,
ed. 856, 13 Sup. Ct. Rep. 934.
There is no contract between the state
ind the individual of the state with respect
to the taxing power of the state. The im-
position of a tax or an assessment is a gov-
ernmental act to which the contract clause
of the Constitution of the United States
has no application.
Cape Girardeau County Ct. y. Hill (Coun-
ty a. V. United States) 118 U. S. 68, 72,
30 L. ed. 73, 75, 6 Sup. Ct. Rep. 051;
Cooley, Taxn. let ed. pp. 13, 484; Page &
J. Taxn. § 166; Gray, Limitations of Taxing
Power, § 1830; Burroughs, Taxn. § 105, p.
263; State ex rel. Hayes v. Snyder, 130 Mo.
663. 41 S. W. 216.
The creation of a public corporation by
the state creates no contract between the
state and the corporation; nor between
the state and the individual members of the
corporation ; nor between the members them-
■elves. A contract within the meaning of
I 10, art. 1, of the Constitution of the Unit-
ed States, is one based on mutual assent and
consideration.
Hunter v. Pittsburgh, 207 U. S. 161, 62
L. ed. 151, 28 Sup. Ct. Rep. 40; Morley v.
Lake Shore &, M. S. R. Co. 146 U. S. 1<&2,
M L. ed. 925, 13 Sup. Ct Rep. 64; Looisi-
•O Ii. ed.
ana ex rel. Folsom y. New Orleans, 100 U.
S. 285, 20 L. ed. 036, 3 Sup. Ct. Rep. 211;
Louisiana y. Pilsbury, 105 U. S. 286, 26
Lb ed. 1003; Columbia Bottom Levee Co. y.
Meier, 30 Mo. 53; Gray, Const. Lim. $ 068;
Sedgw. Stat. & Const. Law, 2d ed. pp. 581,
599, 600, 603.
A legislative act changing or altering the
character of a public corporation is not
an impairment of a contract, either as to
the corporation or its constituent members.
Hunter v. Pittsburgh, 207 U. S. 161, 62
L. ed. 151, 28 Sup. Ct. Rep. 40; East Hart-
ford V. Hartford Bridge Co. 10 How. 511,
535, 538, 13 L. ed. 518, 528, 620 ; Williamson
v. New Jersey, 130 U. S. 180, 200, 32 L. ed.
916, 919, 9 Sup. Ct. Rep. 453; Cape Gi-
rardeau Coimty Ct. y. Hill (County Ct. v.
United States) 118 U. S. 68, 72, 30 L. ed.
73, 75, 6 Sup. Ct« Rep. 051; Squaw Creek
Drainage Dist. v. Tumey, 235 Mo. 80, 138
S. W. 12 ; State ex rel. Compton v. Charlton
Drainage Dist. 102 Mo. 520, 90 S. W. 722.
The incorporation of the Little River
Drainage District, and the imposition of
obligations upon the land included therein
to bear its proportionate share of burdens
imposed, were contemporaneous. The legis-
lature by this section only fixed the max-
imum amount of the assessment authorized
by it, and apportioned it uniformly upon
each acre in the drainage district.
State ex rel. Mc Williams v. Bates, 235
Mo. 262, 138 S. W. 482 ; Northern P. R, Co.
V. Pierce County, 51 Wash. 12, 23 L.R.A.
(N.8.) 286, 07 Pac. 1099; French v. Barber
Asphalt Paving Co. 181 U. S. 324, 332, 333,
338, 45 L. ed. 879, 885-887, 21 Sup. a.
Rep. 625.
The legislature, in enacting § 5538, ex-
pressly authorized the board of supervisors
of the drainage district to levy an assess-
ment of not to exceed 25 cents per acre on
all lands in the district, to pay for the or-
ganization and the preliminary surveys;
hence, plaintiffs* lands, like all other lands
in the district, are subject to this assess-
ment.
St. Louis V. United R. Co. 210 U. S. 266,
52 L. ed. 1054, 28 Sup. Ct. Rep. 630; Sedgw.
Stat. & Const. Law, 2d ed. p. 599.
No one can have a vested right which he
can claim to be exempt from the lawful
exercise of the state's police power.
Mugler y. Kansas, 123 U. S. 656, 659,
31 L. ed. 200, 210, 8 Sup. Ct. Rep. 273;
Butchers' Union S. H. & L. S. L. Co. v.
Crescent City L. S. L. & S. H. Co. Ill U.
S. 746, 753, 28 L. ed. 585, 587, 4 Sup. Ct.
Rep. 652; Chicago, B. & Q. R. Co. y. Illinois,
200 U. S. 561, 50 L. ed. 506, 26 Sup. Ct.
Rep. 341, 4 Ann. Cas. 1175; Little River
Drainage Dist. v. St. Louis, M. ft S. £. R.
Co. 236 Mo. 94, 130 S. W. 330.
%1\
250, 260
SUPREME COURT OF THE UNITED STATES.
Oct. Tdm,
Mo. Rev. Stat. 1009, § 5538, does not
abridge the privileges and immunities of
citizens of the United States.
Slau^ter-House Cases, 16 Wall. 36, 21
L. ed. 304; Rosenthal v. New York, 226
U. S. 260, 57 L. ed. 212, 33 Sup. Ct. Rep. 27,
Ann. Cas. 1014B, 71; Bell's Gap R. Co. t.
Pennsylvania, 134 U. S. 232, 33 L. ed. 802,
10 Sup. Ct. Rep. 533; Lombard v. West
Chicago Park Comrs. 181 U. S. 33, 45 L.
ed. 731, 21 Sup. Ct. Rep. 507; Davidson v.
New Orleans, 06 U. S. 07, 104, 24 L. ed.
616, 610.
This section does not deny the equal pro-
tection of the laws.
Atkin T. Kansas, 101 U. S. 207, 48 L.
ed. 148, 24 Sup. Ct. Rep. 124; Slaughter-
House Cases, 16 Wall. 36, 21 L. ed. 304;
Bell's Gap R. Co. v. Pennsylvania, 134 U.
S. 232, 33 L. ed. 802, 10 Sup. Ct. Rep. 533;
Lombard v. West Chicago Park Comrs. 181
U. S. 33, 45 L. ed. 731, 21 Sup. Ct. Rep.
507; Davidson v. New Orleans, 96 U. S.
97, 104, 24 L. ed. 616, 610.
Nor does this section deprive any person
of his property without due process of
law, or take private property for public use
without compensation.
Davidson v. New Orleans, 06 U. S. 97,
24 L. ed. 616; Merchants' & M. Nat. Bank
V. Pennsylvania, 167 U. S. 461, 42 L. ed.
236, 17 Sup. Ct. Rep. 829; Den ex dem
Murray v. Hoboken Land & Improv. Co.
18 How. 272, 15 L. ed. 372; Bell's Gap R.
Co. V. Pennsylvania, 134 U. S. 232, 83 L.
ed. 802, 10 Sup. Ct. Rep. 533.
Should any doubt arise about the consti-
tutionality of this section of the Missouri
statute, the doubt should be resolved in
favor of the state.
State ex rel. McWilliams v. Bates, 235
Mo. 203, 138 S. W. 482; State ex rel. Mar-
shall V. Bugg, 224 Mo. 554, 123 S. W. 827.
The police power of a state embraces reg-
ulations designed to promote public con-
venience, public health, public morals, and
public safety. Any law providing for the
reclamation of swamp lands is an exercise
of the police power of the state, and not
prohibited by the 14th Amendment to the
Constitution of the United States.
Chicago, B. & Q. R. Co. v. Illinois, 200
U. S. 561, 50 L. ed. 506, 26 Sup. Ct. Rep.
341, 4 Ann. Cas. 1175; Little River Drain-
age Dist. V. St. Louis, M. k S. E. R. Co.
236 Mo. 94, 139 S. W. 330.
Mr. Justice Hughes delivered the opinion
of the court:
The plaintiffs in error, owners of several
thousand acres embraced within the Little
River Drainage District, of Missouri,
brought this suit to restrain the collection
of a tax of 25 cents per acre levied gen-
972
erally upon the lands within the district for
the purpose of paying its preliminary ex-
penses. The district was organized in 1907
under the provisions of article 3, chapter
122, Revised Statutes of Missouri, 1899, as
amended by the act of April 8, 1906. Its
board of supervisors appointed engineers
who made surveys and recommended a plan
of drainage. Upon the adoption of this
plan, in November, 1909, commissioners
were appointed for the purpose of viewing
the tracts within the district and assessing
benefits and damages. Pending the proceed-
ings of these commissioners, the tax in ques-
tion was levied under the act of June 1,
1900, now § 5538 of the Revised Statutes of
Missouri,' 1000, which provides as follows:
"Sec. 5538. Levy of 25 cents per acre
may be made for preliminary work. — ^As
soon as any drainage district shall have
been organized under order of the circuit
court, and a board of supervisors are elected
and qualified, such board of supervisors shall
have the pow^ [260] and authority to
levy upon each acre of land in the district^
not to exceed 25 cents per acre, as a level
rate, to be used for purpose of paying ex-
penses of organization, for topographical
and other surveys, for plans of drainage, for
expenses of assessing benefits and damages
and other incidental expenses which may be
necessary, before entering upon the main
work of drainage. Any district which may
have proceeded without such levy may, if in
the opinion of its board of supervisors it be
desirable to do so> make such level assess-
ment for such purpose, and if such items of
expense have already been paid in whole or
in pari from other sources, the surplus
shall be paid into the general fund of the
district, and such levy may be made al-
though the work proposed may have failed
or have been found impractical."
The amended petition averred in sub-
stance that as to the plaintiffs all the pro-
ceedings had been In invitum ; that the lands
in the district varied in value; that no
benefits had accrued or would accrue to
the plaintiffs' lands either from the expen-
diture of the moneys sought to be raised
by the tax, or from the carrying out of the
proposed plan; that a large portion of the
lands in the district and those of the plain-
tiffs in large part, were to be condemned
for a right of way for ditches and catch
basins; and that the tax had been levied
against every acre within the district, as
a level tax, without regard either to relative
value or to benefits, or to the fact that
portions of the lands would be damaged
and other portions would be taken by con-
demnation, or that a large extent of terri-
tory, if added to the district, as had been
proposed, would receive the benefit vof the
289 17. 6.
1015.
HOUCK y. LITTLE RIVER DRAINAGE DIST.
260-263
tax without being charged with any part, i Mo. 240, 60 L.RJk. 190, 04 Am. St. Rep. 727,
The levy of the tax, and the act authorizing 70 8. W. 721 ; State ex rcL Applcgate ▼.
it» were assailed as being contrary to the
Constitution of the state of Missouri, and
also to tlie provision of the 14th Amendment
prohibiting deprivation of property without
due process of law.
[261] Upon demurrer to the petition, the
parties stipulated that the sole question to
be determined was whether § 5538 (supra)
was constitutional The trial court held
it to be valid and dismissed the petition.
After affirmance in the supreme court of
Missouri, division one, the cause was trans-
ferred (in view of the Federal question) to
the court in banc, where the judgment was
finally affirmed, the opinion of divieion one
being adopted. 248 Mo. 373, 154 S. W. 730.
In considering the contention thus pre-
sented under the 14th Amendment, it must
be taken to be established that the district
had been organized validly for a public
purpose. It had been incorporated pursuant
to the judgmoit of the circuit court, as
in the act provided, and this judgment had
been affirmed upon appeaL Little River
Drainage Dist. v. St. Louis, M. k S. E. R.
Co. 236 Mo. 04, 139 S. W. 330. In the
opinion of the court in that proceeding, the
tracts were described as forming "a con-
tiguous body of land from 1 to 11 miles in
width, extending in a southerly direction
for a distance of about 00 miles from Cape
Girardeau on the north, to the boundary
line between Missouri and Arkansas.
Streams and water courses heading in the
higher adjacent territory carry their waters
to these low lands, where, because of in-
sufficient channels, the waters overflow and
render much of the land uncultivable and
uninhabitable." Id. p. 103. The district is,
indeed, a conspicuous illustration of the
class of enterprises which have been author-
ized in order to secure the recognized public
advantages which will accrue from reclaim-
ing and opening to cultivation large areas
of swamp or overflowed landfl. Egyptian
Levee Co. v. Hardin, 27 Mo. 405, 72 Am.
Rep. 27G; Columbia Bottom Levee Co. v.
Meier, 39 Mo. 53; Morrison v. Morey, 146
Mo. 543, 48 S. W. 620 ; State ex rcl. Comp-
ton V. Chariton Drainage Dist. 192 Mo.
517, 90 S. VV. 722; Mound City Land &
Stock Co. V. Miller, 170 Mo. 240, 00 L.R.A.
100, 04 Am. St. Rep. 727, 70 S. W. 721;
State ex rel. Applegnte v. Taylor, 224 Mo.
303, 123 S. W. 802; Squaw Creek Drainage
Dist. V. Turney, 235 Mo. 80, 138 S. W. 12;
Little River Drainage Dist. v. St. Louis, M.
& S, E. R. Co. 236 Mo. 94. 139 S. W. 3.30. It
[262] was constituted a political subdivi-
sion of the state for the purpose of perform-
ing prescribed functions of government.
Mound City Land & Stock Co. y. Miller, 170
«0 Ii. ed. 18
Taylor, 224 Mo. 393, 123 S. W. 892. These
drainage districts, as the supreme court of
the state has said, exercise the granted pow-
ers within their territorial jurisdiction "as
fully, and by the same authority, as the mu-
nicipal corporations of the state exercise
the powers vested by their charters." 248
Mo. p. 383.
In view of the nature of this enterprise
it is obvious that, so far as the Federal Con-
stitution is concerned, the state might have
defrayed the entire expense out of state
funds raised by general taxation, or it could
have apportioned the burden among the
counties in which the lands were situated
and the improvements were to be made.
Mobile County v. Kimball, 102 U. S. 691,
703, 704, 26 L. ed. 238, 241, 242. It was
equally witliin the power of the state to
create tax districts to meet the authorized
outlays. The legislature, unless restricted
by the state (Ik>nstitution, can create such
districts directly, or, as in this case, it
may provide for their institution through
a proceeding in the courts in which the
parties interested are cited to appear and
present their objections, if any. The pro-
priety of a delegation of this sort was a
question for the state alone. And with re-
spect to districts thus formed, whether by
the legislature directly or in an appropriate
proceeding under its authority, the legis-
lature may itself fix the basis of taxation
or assessment; that is, it may define the
apportionment of the burden, and its action
cannot be assailed under the 14th Amend-
ment unless it is palpably arbitrary and a
plain abuse. These principles have been
established by repeated decisions. Hagar v.
Reclamation Dist. Ill U. S. 701, 709. 28
L. ed. 569, 572, 4 Sup. Ct Rep. 663; Spencer
V. Merchant, 125 U. S. 345. 353, 356, 31 L.
ed. 763, 706. 707, 8 Sup. Ct. Rep. 921;
Fallbrook Irrig. Dist. v. Bradley, 164 U. S.
112, 167, 168, 41 L. ed. 369, 391, 392, 17
Sup. Ct. Rep. 56; Bauman v. Ross, 167 U.
S. 548, 590, 42 L. ed. 270, 288, 17 Sup. Ct
Rep. 966; Parsons v. District of Columbia,
170 U. S. 45, 52, 42 L. ed. 943, 946, 8 Sup.
Ct. Rep. 5^1 ; Williams v. [263] Eggleston,
170 U. S. 304, 311, 42 L. ed. 1047, 1049, 18
Sup. Ct. Rep. 617; Norwood v. Baker, 172
U. S. 269, 278, 43 L. ed. 443, 447, 19 Sup. Ct.
Rep. 187; French v. Barber Asphalt Paving
Co. 181 U. S. 324, 343, 45 L. ed. 879, 889,
21 Sup. Ct. Rep. 625; Wight v. Davidson,
181 U. S. 371, 379, 45 L. ed. 900, 904, 21
Sup. Ct. Rep. 016; Wagner v. Leser, de-
cided this day [239 U. S. 207, ante, 230, 36
Sup. Ct. Rep. 66].
The legislature, in this instance, fixed the
object and character of the tax, and pre-
278
263-266
SUPREME COURT OF THE UNITED STATES.
Oct. Tbuc
scribed the maximum rate. The authoritj
to levy the tax for preliminary expenses waa
to follow upon the organization of the dis-
trict. The plaintiffs in error urge that the
determination at the time the district was
organized waa merely preliminary and ten-
tative with respect to the lands to be in-
cluded, and that assessments acoording to
ascertained benefits for the purpose of
meeting the cost of works and im-
provements are reserved for subsequent
proceedings, upon notice, after surveys
have been made and the plan of drain-
age has been definitely adopted. See
Rev. Stat. (Mo.) §§ 6511 to 5519. It is
true that the elaborate inquiry which is to
follow the organization of the district may
show the advisability of bringing in other
lands (Squaw Creek Drainage Dist. v.
Tumey, 235 Mo. 80, 138 S. W. 12), and the
statute undoubtedly does postpone the as-
sessment of the cost of works and improve-
ments until the plan of drainage has been
decided upon and benefits have been de-
termined accordingly. But none the less the
organization of the district takes effect
when it is duly constituted by the judgment
of the court. The owners whose lands are
embraced in the district as proposed, and
who have not signed the articles, are sum-
moned and their objiK^ions to the organiza-
tion and to the inclusion of their lands are
heard. As a public corporation, with defined
membership, the district, when established,
is empowered to go forward with the expert
investigations and surveys which, of neces-
sity, must precede the adoption of a com-
plete scheme. The outcome of these studies
cannot be absolutely predicted; they may
even result in the abandonment of the
project. But probable feasibility has been
shown, and the district, in consequence,
[264] organized. The preliminary work
must then be done and its cost must be met.
It is work undertaken by the district. The
owners of the included lands) with one vote
for each acre) elect the district officers (su-
pervisors), who are to proceed with the sur-
veys, etc., in the manner detailed. In the
present case, the district was created upon
an adequate showing of basis (236 Mo. p.
138), and it is not disputed that the plain-
tiffs in error received the notice to which
they were entitled (Rev. Stat. [Mo.] 1009,
§ 5497; Laws of Missouri, 1005, § 8252).
They were thus apprised of whatever I^al
consequences attached to the formation of
the district with their lands in it. The
present question, therefore, cannot properly
be regarded as one of notice. The imposed
burden, if it be in its nature a lawful one,
is an incident tp the organization which
they had abundant opportunity to contest.
It is apparent that when the district was
974
duly organized it had the same footing as if
it had been created by the legislature direct-
ly; and if the legislature could have estab-
lished this district by direct act, and then
constitutionally imposed upon the lands
within the district the ratable tax in ques-
tion to pay the expenses of organization and
for preliminary work, it cannot be doubted
that the legislature had power to impose
the same tax upon the district as organized
under the judgment of the court.
The ultimate contention, then, is that the
plaintiffs in error cannot be subjected to
this preliminary tax of 25 cents an acre be-
cause their lands, as they insist, will not be
benefited by the plan of drainage. In
authorizinf the tax, it is said, the legis-
lature has departed from the principle of
benefits, and the tax is asserted to be pro
tanto an uncompensated taking of their
property for public use. But the power of
taxation should not be confused with the
power of eminent domain. Each is governed
by its own principles. Mobile County v.
Kimball, supra; Bauman v. Ross, 167 U.S.
548, 590, 42 L. ed. 270, 288, 17 Sup. Ct. Rep.
966; Wight v. Davidson, 181 U. S. 371, 379,
45 L. ed. 900, 904, 21 Sup. Ct Rep. j616;
[265] People ex rel. Griffin ▼. Brooklyn, 4
N. Y. 419, 424, 55 Am. Dec. 266; Cooley,
Taxn. p. 430; Lewis, Em. Dom. 3d ed. §§ 4,
5. A tax is an enforced contribution for the
payment of public expenses. It is laid by
some rule of apportionment according to
which the persons or property taxed share
the public burden, and whether taxation
operates upon all within the state, or upon
those of a given class or locality, its essen-
tial nature is the same. The power of seg-
regation for taxing purposes has every-day
illustration 11 the experiences of local com-
munities, the members of which, by reason of
their membership, or the owners of property
within the bounds of the political sub-
division, are compelled to bear the burdens
both of the successes and of the failures of
local administration. When local improve-
ments may be deemed to result in special
benefits, a further classification may be
made and special assessments imposed ac-
cordingly; but even in such case there is
no requirement of the Federal Constitution
that for every payment there must be aa
equal benefit. The state in its discretion
may lay such assessments in proportion to
position, frontage, area, market value, or
to benefits estimated by commissioners.
Davidson v. New Orleans," 96 U. S. 97, 106,
24 L. ed. 616, 620; Walston v. Nevin, 129
U. S. 578, 582, 32 L. ed. 544, 546, 9 Sup.
Ct. Rep. 192; Spencer v. Merchant, 125 U.
S. 345, 858, 356, 31 L. ed. 763, 766, 767, S
Sup. Ct. Rep. 921; Bauman v. Ross, 167 U.
S. 548, 590, 42 L. ed. 270, 288, 17 Sup. Ct.
2S9 V. 6.
1916.
BAILEY V. BAKER ICE MACH. 00.
265-268
Rep. 966; French ▼. Barber Asphalt PaTing
Co. 181 U. S. 324, 343, 45 L. ed. 879, 889,
21 Sup. Ct. Rep. 625; Wight v. Davidfton,
181 U. S. 371, 379, 45 L. ed. 900, 904, 21
Sup. Ct. Rep. 616. And, as we have said,
unless the exaction is a flagrant abuse, and
bj reason of its arbitrary character is mere
confiscation of particular property, it can-
not be maintained that the state has ex-
ceeded its taxing power. Wagner ▼. Leser,
239 U. S. 207, ante, 230, 36 Sup. Ct. Rep. 66.
We find no such arbitrary action here. It
was not necessary to base the preliminary
tax upon special benefits accruing from a
completed plan. It cannot be denied that
the preliminary work had peculiar relation
to the district. The initial inquiry, what-
ever its result, was for the purpose of se-
curing the reclamation of the lands of which
the district was [266] comprised. In this
inquiry, all the owners were interested.
Whether the expense of ascertaining the best
method of reclamation should subsequently
be reimbursed when final assessments were
laid according to benefits ascertained to
result from the execution of the final plan
presenta a question of policy, and not of
power. These outlays for organization and
preliminary surveys could well be consid-
ered specially to concern the district, as
constituted, as highways or public build-
ings or plans for the same (whether con-
summated or abandoned) could be said to
concern counties or towns. Further, it
would seem to be clear that the state
could appropriately provide for meeting the
preliminary expense when it was in-
curred, and could determine the man-
ner of apportionment according to the in-
terests deemed to be affected as they ex-
isted at the time. And in this view, it ia
not material to consider whether the area of
the district might subsequently be extended,
or what particular lands within it would be
appropriated for ditches, reservoirs, etc., if
a plan of drainage were adopted and carried
out. To say that the tax could not be laid
except as a result of such an inquiry would
be to assert in effect that as a preliminary
tax it could not be laid at all. We know
of no such limitation upon the state power.
And assuming that the lands within the
district, as organized, could be taxed for the
purpose stated, there was manifestly noth-
ing arbitrary in the fixing of the prescribed
rate per acre.
It is further objected that the levy of the
tax amounts to a deprivation of property
without due process of law because of the
restrospective character of the legislation, —
the section in question having been passed
after the district was organized. As to this,
it is suflicient to say that the statute which
was in force at the time of the formation ol
60 li. ed.
the district ecmtemplated liability to taxa-
tion to defray the preliminary expenses as
well as the ultimate cost of the improve-
ments if made (Laws of Missouri 1905, §
8252); [267] and these preliminary out-
lays must be regarded as incident to the
organization for which the legislature was
competent to provide in the exercise of its
taxing power. Seattle v. Kelleher, 195 U.
S. 351, 359, 49 L. ed. 232, 235, 25 Sup. Ct.
Rep. 44; Wagner v. Leser, supra.
The plaintiffs in error have also urged
that % 5538 ia invalid under § 10« article
I., of the Federal Constitution upon the
ground that it impairs the obligation ol
contract. This contention was not present-
ed by the amended petition and was not
deemed by the supreme court of the state,
division one, to be within the stipulation
upon which the case was tried. 248 Mo.
382, 394. Upon the motion to transfer the
case to the court in banc, the question under
the contract clause was raised, but the
court in banc simply adopted the opinion of
division one. Ibid. In that opinion, how-
ever, after referring to the stipulation, the
court proceeded to observe that the charter
of the district, as a public corporation, did
not constitute a contract with its members
that the laws it was created to administer
would not be changed. If this can be con-
sidered to be a decision of the question, we
see no reason to disturb it. Laramie County
V. Albany County, 92 U. S. 307, 810, 23 L.
ed. 552, 554; New Orleans v. New Orleans
Water-works Co. 142 U. S. 79, 89, 36 L. ed.
943, 946, 12 Sup. Ct. Rep. 142; Worcester v.
Worcester Consol. Street R. Co. 196 U. S.
539, 551, 49 L. ed. 591, 596, 25 Sup. Ct. Rep.
327 ; Seattle v. Kelleher, supra.
Judgment affirmed.
[268] J. F. BAILET, Trustee in Bank-
ruptcy in the Matter of Grant Brothers,
BsJikrupts, Appt.|
V.
BAKER ICE MACHINE COMPANY.
(See S. C. Reporter's ed. 268-276.)
Sale — on condition — absolute sale
with mortgage back.
1. A contract of conditional sale, not
one of absolute sale with a chattel mort-
gage back securing the deferred instalments
of purchase price, is what the parties must
have intended by a contract governed by
the Kansas laws, which provides for the re-
tention in the vendor of the title to the
NoTB. — On conditional-sale contract exe-
cuted prior to, but filed within, the four
months period as a voidable preference —
see note to Big Four Implement Co. v
Wright, 47 LJLA.(N.S.) 1223.
975
269
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
property sold until full payment is made,
although it requires the vendee to keep the
property insured for the vendor's benefit,
and in case of default in payment not only
to return the property, but to compensate
the vendor for its use and any damage to it,
and reserves to the vendor the right to file
a mechanics* lien for materials and labor
furnished under the contract.
[For other cnses, see 8ale, I. d, in Diirest
Sup. Ct. 1008.]
Bankruptcy — preference — diminish-
ing estate.
2. An act on the part of the bankrupt
whereby he surrenders or encumbers his
property or some part of it for the benefit
of a particular creditor, and thereby dimin-
ishes the estate, is what is meant by the
provisions of the bankrupt act of July 1,
1808 (30 Stat, at I^ 544, chap. 641, Comp.
Stat. 1013, § 9644) , § 60b, as amended by the
act of June 25, 1910 (36 Stat, at L. 838,
chap. 412, Comp. Stat. 1013, § 9644), which
declares that a transfer by a bankrupt of
any of his property shall be voidable by the
trustee if it be made or recorded, when re-
cording is required, within four months be-
fore the petition in bankruptcy is filed, and
the bankrupt is insolvent, and the transfer
then operates as a preference.
[For other cases, see Bankruptcy, VI. b, 2, In
Digest Sap. Ct. 1908.]
Banlcruptcy ^ i>refcrcnce ^ conditional
sale.
3. A contract of conditional sale which
was not recorded until after the conditional
purchasers 6ad become insolvent did not
operate as a preferential transfer by them,
within the meaning of the bankrupt act of
July 1, 1898 (30 Stat, at L. 544, chap. 541,
Comp. Stat. 191 3, § 9044 ) , § 60b, as amended
by the act of June 25, 1910 (36 Stat, at L.
838, chap. 412, Comp. Stat. 1913, § 9644),
which declares that a transfer by a bank-
rupt of any of his property shall be voidable
by the trustee if it be made or recorded,
when recording is re(|uired, within four
months before the petition in bankruptcy is
filed, and the bankrupt is insolvent, and the
transfer then operates as a preference,
[For other cnscs, see Bankruptcy, VI. b, 2, in
Digest Sup. Ct. 1908.)
Bnnkrnpley — lien of trustee — when
attacliin^.
4. The trustee in bankruptcy takes the
status of a creditor holding a lien as of the
time when the petition in bankruptcy is
filed, under the provision of the bankrupt
act of July 1, 1898 (30 Stat, at L. 544,
chap. 541, Comp. Stat. 1913, § 9631), § 47a,
cl. 2, as amended by the act of June 25,
1910 (36 Stat, at L. 838, chap. 412, Comp.
Stat. 1913, § 9631), that a trustee in bank-
ruptcy "as to all property in the custody, or
coming into the custody, of the bankruptcy
court, shall be deemed vested with all the
rights, remedies, and powers of a creditor
holding a lien by legal or equitable proceed-
ings."
[For other cases, see Bankruptcy, VII., in Di-
gest Sup. Ct. 190S.]
S76
[No. 42.]
Argued November 2, 1915. Decided Novem-
ber 29, 1915.
APPEAL from the United States Circuit
Court of Appeals for the Eighth Circuit
to review a decree which reversed a decree
of tlie District Court for the District of
Kansas, sustaining the action of a referee
in bankruptcy in denying the petition of a
conditional vendor to have the property
sold delivered to it by the trustee in bank-
ruptcy of the conditional purchasers. Af-
firmed.
See same case below, 126 C. C. A. 425,
209 Fed. 603.
Statement by Mr. Justice Van Dovan-
tcr:
[269] By a contract in writing, made at
Omaha, Nebraska, October 14, 1911, between
the Baker Ice Machine Company and Grant
Brothers, the former agreed to deliver and
install upon the premises of the latter at
1 lor ton, Kansas, an ice making and re-
frigerating machine for the sum of $5,940,
to be paid partly in cash and partly in de-
ferred instalments evidenced by interest-
bearing notes. It was specially stipulated
that the title to the machine should be and
remain in the Baker Company until full
payment of the purchase price; that the
machine should not be deemed a fixture to
the realty prior to full payment; that in
the meantime Grant Brothers should keep
the machine in good order and keep it in-
sured for the benefit of the Baker Company;
that if default was made in the payment
of the purchase price, the Baker (Company
should have the right to resume possession
and take the machine away; and that, in
the event this right was exercised, the com-
pany should be reimbursed for all expenses
incurred under the contract, should be com-
pensated for any damage done to the ma-
chine in the meantime, and should be al-
lowed a rental for its use equal to 6 per
cent per annum upon the purchase price
from the date of the installation to that
of the resumption of possession. And it was
further stipulated that the Baker Company
should have the right to file a mechanics'
lien for the materials and labor furnished
under the contract, and that no notice of a
purpose to file such a lien, other than that
afforded by this stipulation, would be re-
quired.
The machine was installed in February,
1912, the cash payment was made and notes
were given for the balance of the purchase
price, all as contemplated by the contract.
A partial payment upon two of the notes
brought the total payments up to $3,200.14,
and nothing more was paid. May 15, 1912,
but not before, the contract was filed for
289 V. S.
1915.
BAILEY T. BAKER ICE MACH. CO.
269, 270
record In the county register's office. At
that time Grant Brothers were insolvent,
and if the contract [270] operated as a
transfer of the machine from them to the
Baker Company, all the elements of a pref-
erential transfer, in the sense of the hank-
niptcy act, were present.
July 11, 1912, within four months after
such filing. Grant Brothers presented to
the district court for the district of Kan-
sas tlioir voluntary petition in bankruptcy,
and on the next day were adjudged Imnk-
rupts. l'os««>ssion of the machine, which
had remained with them up to that time,
was then passed to the trustee in bank-
ruptcy. Shortly thereafter, the balance of
the purchase price being due and unpaid,
the' Baker Company intervened in the bank-
ruptcy proceeding, asserted that it owned
the machine and was entitled to the pos-
session in virtue of the contract, and
applied for an order directing that the pos-
session be surrendered to it. Upon a hear-
ing before the referee the application was
denied, and upon a petition for review his
action was sustained by the district court.
An appeal to the circuit court of appeals
resulted in a reversal of the decree, with a
direction that the machine be delivered to
the Baker Company unless, within a time
to be named, the trustee pay the balance
of the purchase price. 12G C. C. A. 425,
568, 209 Fed. 603, 844.
During the pendency of the controversy,
as now appears, the machine was sold for
$2,800, pursuant to an order of the referee,
requested by the parties, whereby the pro-
ceeds were to take the place of the ma-
chine and be disposed of according to the
final decision.
Mr. Edwin A. BLrauthofT argued the
cause, and, with Messrs. Charles Curtis,
William S. McClintock, and Arthur L.
Quant, filed a brief for appellant:
The national bankruptcy act is to be con-
strued as a law passed in aid of and from
the point of commerce.
Browning v. Waycross, 233 U. S. 16, 23,
58 L. ed. 828, 832, 34 Sup. Ct. Rep. 578;
Crenshaw v. Arkansas, 227 U. S. 389, 400,
57 L. ed. 565, 669, 33 Sup. Ct. Rep. 294;
Davis v. Virginia, 236 U. S. 697, 699, 59
L. ed. 795, 797, 35 Sup. Ct. Rep. 479;
Dozier v. Alabama, 218 U. S. 128, 54 L.
ed. 967, 28 L.R.A.(N.S.) 264, 30 Sup. Ct.
Rep. 649; Gleason v. Thaw, 236 U. 8. 558,
660, 59 L. ed. 717, 719, 35 Sup. Ct. Rep.
287; Swift & Co. v. United States, 196 U.
a 375, 398, 49 L. ed. 518, 525, 25 Sup. Ct.
Rep. 276; Williams v. United States, Fi-
delity & G. Co. 236 U. S. 549, 554, 555.
59 L. ed. 713, 716, 717, 35 Sup. Ct. Rep. 289.
The right of a trustee in bankruptcy as
•0 li. ed.
a lien creditor is treated as a question of
local law.
Dale V. PaUison, 234 U. S. 399, 404, 58
L. ed. 1370, 1374, 52 L.RJ^.(N.S.) 754, 34
Sup. Ct. Rep. 785; Detroit Trust Co.
V. Pontiac Sav. Bank, 237 U. S. 186, 59
L. ed. 907, 85 Sup. Ct. Rep. 500.
The local law applicable is that of Kansas,
the place of performance and situs of tlie
property.
McGarry ▼. Nicklin, 55 Am. St. Rep. 48,
note; Beggs t. Bartels, 73 Conn. 132, 84
Am. St. Rep. 152, 46 Ati. 874; Bradley t.
Kingman Implement Go. 79 Neb. 144, 112
N. W. 346; Hart v. Barney & S. Mfg. Co.
7 Fed. 549; Lanston Monotype Mach. Co*
T. Curtis, 140 C. C. A. 89, 224 Fed. 403;
Re Legg, 9G Fed. 326; 1 Loveland, Bankr.
4th ed. § 406, p. 837 ; Re Nuckols, 201 Fed.
439 ; Pittsburgh Locomotive & Car Works v»
SUte Nat. Bank, Fed. Cas. No. 11,198 ^
Potter Mfg. Co. y. Arthur, 136 CCA.
589, 220 Fed. 845, Ann. Cas. 1916A, 1268;
Re Wall, 207 Fed. 995; Re O'Callaghan, 225
Fed. 133; John Deere Plow Co. v. Mowry,
137 C C A. 539, 222 Fed. 3.
An unrecorded contract of conditional
sale is void as against a creditor levying
on property prior to recording.
Re Fish Bros. Wagon Co. 26 L.RAl.(N.S.)
433, 90 C C A. 427, 164 Fed. 553; Gcp-
pelt v. Middle West Stone Co. 00 Kan. 539,
135 Pac. 573; Paul v. Lingenfelter, 89 Kan.
871, 132 Pac 1179.
Prior to June 25, 1910, a trustee in bank-
ruptcy was not a lien creditor.
York Mfg. Co. v. Cassell, 201 U. S. 344,
50 L. ed. 782, 26 Sup. Ct Rep. 481.
The amendment of June 25, 1910, is not
retroactive.
Detroit Trust Co. v. Pontiac Sav. Bank,.
237 U. S. 186, 59 L. ed. 907, 35 Sup. Ct.
Rep. 509 ; Holt v. Henley, 232 U. S. 637, 5»
L. ed. 767, 34 Sup. Ct. Rep. 450.
The amendment of June 25, 1910, is to
be construed in the light of the evil to be
remedied, and in such a way arto mani-
fest the spirit of the amendment.
Bingham v. Birmingham, 103 Mo. 345,
15 S. W. 533; Church of the Holy Trinity
V. United States, 143 U. S. 457, 463, 36
L. ed. 226, 229, 12 Sup. Ct. Rep. 511; 1
Kent, Com. p. 462; People ex rel. Peake t.
Columbia County, 43 N. Y. 130; Standard
Oil Co. y. State, 117 Tenn. 618, 10 L.RJ^*
(N.S.) 1015, 100 S. W. 705.
Under the amendment of June 25, 1910,
a trustee in bankruptcy has a status as if
he were a creditor holding a lien; it is not
necessary that there be a creditor actually
holding a lien.
Crucible Steel Co. v. Holt, 98 C C. A.
101, 174 Fed. 127, 224 U. S. 262, 56 L. ed.
271
SUPREME OOVRT OF THE UNITED STATES.
Oct. Tebii,
766, 32 Sup. Ct Rep. 414 ; Detroit Trust Co.
v. Pontiac Say. Bank, 237 U. S. 186, 187,
60 Jj. ed. 007, 000, 35 Sup. Ct. Rep. 500;
York Mfg. Co. t. CasBell, 201 U. S. 344,
60 L. ed. 782, 26 Sup. Ct. Rep. 481; Au-
gusta Grocery Co. v. Southern Moline Plow
Co. 130 C. C. A. 444, 213 Fed. 786; Re
Basemore, 180 Fed. 236; Black, Bankr. §
316, p. 753; Re Callioun Supply Co. 180
Fed. 637; Sattler v. Slonimsky, 100 Fed.
602; Collier, Bankr. 10th ed. by Gilbert, pp.
660-662b; Cooper Grocery Co. ▼. Park,
134 C. C. A. 64, 218 Fed. 43; Re Dancy
Hardware k Furniture Co. 108 Fed. 336;
Re Franklin Lumber Co. 187 Fed. 281; Re
Farmers' Supply Co. 106 Fed. 000; Re Gag-
lione, 200 Fed. 81; Re Gehris-Herbine Co.
188 Fed. 602; Re Geiver, 103 Fed. 128;
Re Groezinger, 100 Fed. 035; Re Hammond,
188 Fed. 1020; Re Hartdagen, 180 Fed. 546;
Ke J. S. Appel Suit & Cloak Co. 108 Fed.
322; Kraver v. Abrahams, 20 Am. Bankr.
Rep. 365; Re Kreuger, 100 Fed. 867; 1
Loveland, Bankr. 4th ed. § 372, pp. 765, 768,
777: Meier & F. Co. v. Sabin, 130 C. C. A.
605, 214 Fed. 231 ; Re Merry, 201 Fed. 360 ;
Re Nelson, 101 Fed. 233; Re Nuckols, 201
Fed. 437; Re O'Brien. 215 Fed. 120; Re
Pacific Electric & Automobile Co. 224 Fed.
220; Pacific State Bank v. Coats, 123 C. C.
A. 634, 205 Fed. 618, Ann. Cas. 101 3E,
846; Re Palmer, 218 Fed. 74; Re Pitts-
burgh-Big Muddy Coal Co. 132 C. C. A. 81,
215 Fed. V03; 2 Remington, Bankr. 2d ed.
pp. 044, 060, 061, 1022, 1023, 1081, 1105,
1123, §§ 1138, 1143, 1207, 1241, 1270; Re
RiehU 200 Fed. 456; Re Smith, 108 Fed.
876: Sturdivant Bank ▼. Schade, 116 C. C.
A. 140, 105 Fed. 188; T. L. Smith Ck>. ▼.
Orr. 130 C. C. A. 517. 224 Fed. 71; Town-
send V. Asnepoo Fertilizer Co. 128 C. C.
A. 613, 212 Fed. 07: Re Vandewater & Co.
210 Fed. 627; Re Whatley Bros. 100 Fed.
326.
A trustee's status as lien creditor relates
to a date ^anterior to the recording of the
instrumenr, which, by delay in recording,
was, for that reason, while unrecorded, void
as to creditors.
Detroit Trust Co. y. Pontiac Say. Bank,
237 U. S. 186, 50 L. ed. 007, 35 Sup. Ct.
Rep. 500; York Mfg. Co. ▼. Cassell, 201
U. S. 344, 50 L. ed. 782, 26 Sup. Ct. Rep.
481; Bank of North America v. Pennsyl-
vania Motor Car Co. 235 Pa. 108, 83 Atl.
622; Cornelius v. Boling, 18 Okla. 460, 00
Pae. 874; Williams v. German -American
Trust Co. 136 C. C. A. 257, 210 Fed. 607;
Re T. H. Bunch Commission Co. 226 Fed.
243.
In cases where an earlier date is unim-
portant, the date has been fixed as of the
filing of the petition.
Massachusetts Bonding & Ins. Co. ▼.
Kemper, 136 C. C. A. 603, 220 Fed. 860;
Potter Mfg. Co. v. Arthur, 136 C. C. A.
580, 220 Fed. 483, Ann. Cas. 1016A, 1268;
Re Williamsburg Knitting Mill, 100 Fed.
871.
Also of adjudication.
Millikin t. Second Nat. Bank, 124 G. a
A. 148, 206 Fed. 14.
Some cases hold that the right of the
trustee as a lien creditor does not antedate
the petition.
Big Four Implement Co. t. Wright, 47
LJl.A.(N.S.) 1223, 126 C. C. A. 677, 207
Fed. 535; Re Farmers' Co-Op. Co. 202 Fed.
1005; Hart t. Emmerson-Brantingham Co.
203 Fed. 60.
The question is not determinable as one
involving jurisdiction.
Acme Harvester Co. v. Beekman Lumber
Co. 222 U. S. 300, 56 L. ed. 208, 32 Sup.
Ct. Rep. 06.
Nor as involving passing of title of the
bankrupt.
Everett v. Judson, 228 U. S. 474, 478,
470, 57 L. ed. 027, 020, 46 L.R.A.(N.S.)
154, 33 Sup. Ct. Rep. 568.
But as involving property which creditors
are entitled to have treated as property of
the bankrupt.
Recording statutes are liberally construed
in favor of creditors.
Bradley v. Kingman Implement Co. 79
Neb. 144, 112 N. W. 346; Rowand v. Ander-
son, 33 Kan. 268, 52 Am. Rep. 620, 6 Pae.
255; Tooker v. Siegel-Cooper Co. 104 N. Y.
447, 87 N. E. 773.
The contract in issue is in effect a chat-
tel mortgage; not a conditional sale.
24 Am. & Eng. Enc. Law, 2d ed. pp. 1045,
1046; Andrews v. Colorado Sav. Bank, 46
Am. St. Rep. 205, note; Arbuckle Bros. v.
Kirkpatrick, 08 Tenn. 221, 36 L.R.A. 286,
60 Am. St. Rep. 854, 30 S. W. 3; Arkansas
Valley Land & Cattle Co. v. Mann, 130 U.
S. 60, 32 L. ed. 854, 0 Sup. Ct. Rep. 458;
Bailey v. Hervey, 135 Mass. 172; Baldwin
V. Crow, 86 Ky. 679, 7 S. W. 146; ^ard-
sley V. Beardsley, 138 U. S. 262, 266, 34
L. ed. 928, 929, 11 Sup. Ct. Rep. 318; Black,
Judicial Precedents, p. 168 ; Bryant v. Swof-
ford Bros. Dry Goods Co. 214 U. S. 279,
290, 63 L. ed. 997, 1002, 29 Sup. Ct. Rep.
614; Chicago R. Equipment Co. v. Mer-
chants' Nat. Bank, 136 U. S. 268, 280, 34
L. ed. 340, 352, 10 Sup. Ct. Rep. 009;
Chlckering v. Bastress, 130 111. 206, 17 Am.
St. Rep. 300, 22 N. E. 642; Corbett t.
Riddle, 126 C. C. A. 635, 200 Fed. 811;
Cowden v. Finney, 0 Idaho, 610, 76 Pae
765; Coweta Fertilizer Co. v. Brown, 80
C. C. A. 612, 163 Fed. 165; 6 Cyc. 004; 3
Enc. U. S. Sup. Ct. Rep. 745, 746; Graham
280 V. a.
1915.
BAILEY T. BAKER ICE MACH. 00.
T. Sadlier, 165 111. 07, 46 K. E. 221 ; Hark-
ness V. Russell, 118 U. S. 663, 30 L. ed.
285, 7 Sup. Ct. Rep. 51; Hart v. Barney k
8. Mfg. Co. 7 Fed. 543; Hervey t. Rhode
Island Locomotive Works, 93 U. 8. 664,
23 L. ed. 1003; Hereford v. Davis, 102 U.
S. 235, 26 L. ed. 160; Howard v. Simpkins,
70 Ga. 322; Kelly T. Sibley, 69 C. C. A.
€74, 137 Fed. 586; Herr v. Denver Mill &
Mercantile Co. 6 L.RJL. 643, note; McQour-
key V. Toledo & O. C. R. Co. 146 U. S. 536,
36 L. ed. 1079; 13 Sup. Ct. Rep. 170; Mott
V. Havana Nat. Bank, 22 Hun, 357 ; Munroe
v. Williams, 36 S. C. 572, 15 S. E. 279;
Falmer v. Howard, 72 Cal. 293, 1 Am. St.
Rep. 60, 13 Pac. 858; Parke & L. Co. v.
White River Lumber Co. 101 Cal. 39, 35
Pac. 442; Smith v. Gilmore, 7 App. D. C.
192; Stockton Sav. & L. Soc. v. Purvis,
112 Cal. 236, 53 Am. St. Rep. 210, 44 Pac.
561 ; Straub v. Screven, 19 S. C. 448 ; D. A.
Tompkins Co. v. Monticello Cotton Oil Co.
137 Fed. 629; Townsend v. Ashepoo Fer-
tiUzer Co. 128 C. C. A. 613, 212 Fed. 100;
Union Stock-Yards & Transit Co. v. West-
em Land & Cattle Co. 7 C. C. A. 660, 18
U. S. App. 438, 59 Fed. 53; Williams v.
Dnunmond Tobacco Co. 17 Tex. Civ. App.
635, 44 S. W. 185; William W. Bierce v.
Hutchins, 205 U. S. 340, 348, 51 L. ed. 828,
834, 27 Sup. Ct. Rep. 524; Abernathy v.
Madden, 91 Kan. 809, 139 Pac. 431; Anglo-
American Land, Mortg. & Agency Co. t.
Lombard, 68 C. C. A. 89, 132 Fed. 741;
Baker Ice Mach. Co. v. Bailey, 126 C. C.
A 425, 209 Fed. 603; Big Four Implement
Co. V. Wright, 47 L.R.A.(N.S.) 1223, 125
O. C. A. 577, 207 Fed. 535; Christie v.
Scott, 77 Kan. 257, 94 Pac. 214; HaU v.
Draper, 20 Kan. 139; Hallowell y. Miene,
16 Kan. 65; Moline Pk>w Co. v. Witham,
52 Kan. 189, 34 Pac. 751; First Nat. Bank
T. Tufts, 53 Kan. 710, 37 Pac. 127; Os-
borne V. Connor, 4 Kan. App. 609, 46 Pac
327; Paul v. Lingenfelter, 89 Kan. 871, 132
Pac. 1179; Standard Implement Co. ▼. Par-
lin & O. Co. 51 Kan. 566, 33 Pac. 363; Sum-
ner v. McFarlan, 15 Kan. 600; 35 Cyc. 658-
660; Contracting & Bldg. Co. v. Continental
Trust Co. 47 C. C. A. 143, 108 Fed. 3; Ed-
wards V. Symons, 65 Mich. 348, 32 N. W.
796; Mishawaka Woolen Mfg. Co. v. West-
Tcer, 112 C. C. A. 109, 191 Fed. 465.
The question of the construction of a
•contract is determinable by the local law.
Bryant v. Swofford Bros. Dry Goods Co.
214 U. S. 279, 53 L. ed. 997, 29 Sup. Ct.
Rep. 614; Dale v. Pattison, 234 U. S. 399,
404, 58 L. ed. 1370, 1374, 52 L.R.A.(N.S.)
754, 34 -Sup. Ct. Rep. 785; Harkness v.
Russell, 118 U. S. 663, 30 L. ed. 285, 7 Sup.
Ct Rep. 51; Mishawaka Woolen Mfg. Co.
V. Westveer, 112 C. C. A. 109, 191 Fed. 466;
Taney v. Penn. Nat Bank, 232 U. S. 174,
180, 58 L. ed. 558, 34 Sup. Ct Rep. 288.
40 L. ed.
The true question in Dunlop t. Mercer,
86 C. C. A. 436, 156 Fed. 545; Monitor
Drill Co. T. Mercer, 20 LJLA.(N.S.) 1065,
90 C. C. A. 303, 168 Fed. 943, 16 Ann. Cas.
214; Re Pierce, 87 C. C. A. 537, 157 Fed.
755; and York Mfg. Co. y. Caasell, 201 U.
S. 344, 50 L. ed. 782, 26 Sup. Ct Rep. 481,
is not the differentiation between condition-
al-sale contracts and chattel mortgages as
such, but whether the delivery of merchan-
dise intended for resale was fraudulent as
to creditors, whatever the character of the
instrument.
Re Carpenter, 125 Fed. 831; Coweta Fer-
tilizer Co. V. Brown, 89 C. C. A. 612, 163
Fed. 166; 35 Qyc. 635; Fitzgerald v. Fuller,
19 Hun, 180; Re Gait, 120 Fed. 443; Re
Garcewich, 53 C. C. A. 510, 115 Fed. 87;
Lewis y. McCabe, 49 Conn. 141, 44 Am.
Rep. 217; Ludden y. Hazen, 31 Barb. 650;
Pratt V. Burhans, 84 Mich. 487, 22 Am. St.
Rep. 703, 47 N. W. 1064; Re Rasmussen,
136 Fed. 704; Re Rodgers, 60 C. C. A. 567,
125 Fed. 177; Star Clothing Co. y. Norde-
man, 118 Tenn. 384, 100 8. W. 93 ; Winches-
ter Wagon Works Mfg. Co. y. Carman, 109
Ind. 31, 58 Am. Rep. 382, 9 N. E. 707.
A contract requiring a purchaser to in-
stall parts of machinery becoming an inte-
gral portion of a completed plant is not
construable as a contract of conditional
sale; and a contract placing the risk of ac-
cidental destruction on the purchaser is
not construable as a contract of conditional
sale.
American Soda Fountain Co. y. Blue, 146
Ala. 682, 40 So. 218 ; Harley y. Stanley, 138
Am. St. Rep. 903, note; J. M. Arthur & Co.
y. Blackman, 63 Fed. 536; Foley y. Fel-
rath, 98 Ala. 176, 39 Am. St. Rep. 39, 13
So. 486; Glisson y. Heggie Bros. 105 Ga.
30, 31 S. E. 118; Grant y. United States, 7
Wall. 331, 19 L. ed. 194; Jacob Strauss
Saddlery Co. y. Kingman, 42 Mo. App. 208;
La VaUey v. Ravenna, 78 Vt 152, 2 hJiJL.
(N.S.) 97» 112 Am. St Rep. 898, 62 Atl.
47, 6 Ann. Cas. 684; McConihe y. New York
& E. R. Co. 20 N. Y. 495; Marion Mfg. Co.
y. Buchanan, 118 Tenn. 238, 8 L.RJL(N.S.)'
590, 99 S. W. 984, 12 Ann. Gas. 707; 1
Mechem, Sales, § 634; Mountain City Mill
Co. y. Butler, 109 Ga. 469, 34 S. E. 565;
Planters' Bank y. Vandyck, 4 Heisk. 617;
Randle v. Stone, 77 Ga. 501 ; Roach y. Whit-
field, 94 Ark. 448, 140 Am. St Rep. 131, 127
S. W. 722; Swallow y. Emery, 111 Mass.
355.
The contract operating as an affirmative
stipulation giving the seller a definite right
to file a mechanic's lien, and notice of in-
tention to do so being declared in the con-
tract—
(a) The contract (^peratei m firm elec-
279
SUPREME COURT OF THE UNITED STATES.
Oct. Tebic»
tion to enforce the purchase price; hence
the sale is absolute, not conditional.
6 Am. & Eng. Enc. Law 2d ed. 480 note,
and cases cited; American Soda Fountain
Co. V. Blue, 146 Ala. 682, 40 So. 218, af-
firmed on second appeal in 150 Ala. 165, 43
So. 700; Arctic Ice Mach. Co. v. Armstrong
County Trust Co. 112 C. C. A. 458, 192
Fed. 114; Aultman v. Silha, 85 Wis. 359,
55 N. W. 711 ; Bailey v. Hervey, 135 Mass.
172; Benjamin, Sales, 7th ed. Bennett's
Notes, p. 301; Bensinger Self -Adding Cash
Roister v. Cain, 4 Tex. App. Civ. Cas.
(Willson) 499, 18 S. W. 136; Chicago & A.
R. Co. V. Union Rolling Mill Co. 109 U. 8.
719, 27 L. ed. 1087, 3 Sup. Ct. Rep. 594;
Re Cohn, 18 Am. Bankr. Rep. 797; Cromp-
ton V. Beach, 62 Conn. 28, 36 Am. St. Rep.
323, 25 Atl. 446; 35 Cyc. 673, 705; Dow-
dell V. Empire Furniture & Lumber Co.
84 Ala. 316, 4 So. 31; Edmead v.
Anderson, 118 App. Div. 16, 103 N. Y.
Supp. 369; Elwood State Bank v. Mock,
40 Ind. App. 685, 82 N. E. 1003; Fuller v.
Eames, 108 Ala. 464, 19 So. 366; Gaar, S.
& Co. y. Fleshman, 38 Ind. App. 493, 77 N.
E. 744, 78 N. E. 348; Hine v. Roberts, 48
Conn. 267, 40 Am. Rep. 170; Holt Mfg. Co.
V. Ewing, 109 Cal. 356, 42 Pac. 435; Hooven,
O. & R. Co. V. Featherstone, 99 Fed. 181;
Keystone Mfg. Co. v. Cassellius, 74 Minn.
115, 76 N. W. 1028; Laclede Power Co. v.
Ennis Stationery Co. 79 Mo. App. 307;
Lang Y. Adams, 71 Kan. 310, 80 Pac. 593;
Cole V. Hines, 32 L.R.A. 471, note; Leh-
man V. Van Winkle, 92 Ala. 443, 8 So.
870; Re Levin, K. & Co. 136 CCA. 279,
220 Fed. 451; Loomis v. Bragg, 50 Conn.
228, 47 Am. Rep. 638; McCormick Har-
vesting Mach. Co. V. Lewis, 52 Kan. 358,
35 Pac. 12; Case Mfg. Co. v. Smith, 5 L.R.A.
231, 40 Fed. 339; Matteson v. Equitable
Min. & Mill. Co. 143 Cal. 436, 77 Pac. 144;
1 Mechem, Sales, § 619; Merchants' & P.
Bank v. Thomas, 69 Tex. 238, 6 S. W. 565;
Minneapolis Harvester Works v. Hally, 27
Minn. 496, 8 N. W. 597 ; Moline Plow Co. v.
Rodgers, 53 Kan. 743, 42 Am. St. Rep. 317,
37 Pac. Ill; Montgomery Iron Works v.
Smith, 98 Ala. 644, 13 So. 525; Nauman
Co. V. Bradshaw, 113 C. C. A. 274, 193 Fed.
350; Parke & L. Co. v. White River Lumber
Co. 101 Cal. 37, 35 Pac. 442; Richards v.
Schreiber, C. k W. Co. 98 Iowa, 422, 67
N. W. 569; Segrist v. Crabtree, 131 U. S.
287, 292, 33 L. ed. 125, 127, 9 Sup. Ct. Rep.
687; Smith v. Barber, 153 Ind. 328, 63
N. E. 1014; Smith v. Gilmore, 7 App. D.
C. 192; Tanner & D. Engine Co. v. Hall,
89 Ala. 628, 7 So. 187; Turk v. Camahan,
25 Ind. App. 125, 81 Am. St. Rep. 86, 67
N. E. 729; Van Winkle v. Crowell, 146 U.
S. 42, 51, 36 L. ed. 880, 883, 13 Sup. Ct. Rep. I
18; Warner Elevator Mfg. Co. v. Capitol In-
280
vest. Bldg. & L. Asso. 127 Mich. 323, 89 Am.
St Rep. 473, 86 N. W. 828; WiUiston, Sales^
§ 571; William W. Bierce v. Hutchins, 205
U. S. 340, 346, 61 L. ed. 828, 833, 27 Sup.
Ct. Rep. 524; Wurmser v. Sivey, 52 Mo.
App. 424; Twentieth Century Machineiy
Co. V. Excelsior Springs Mineral Water k
Bottling Co. — Mo. App. — , 171 S. W.
944; Orcutt v. Rickenbrodt, 42 App. Div.
238, 59 N. Y. Supp. 1008; Butler v. Dod-
son, 78 Ark. 569, 94 S. W. 703; Alden t.
W. J. Dyer k Bro. 92 Minn. 136, 99 N. W.
784; D. M. Osborne k Co. v. Walther, 12
Okla. 27, 69 Pac. 953; Seanor v. McLaugh-
lin, 165 Pa. 160, 32 LJI.A. 467, 30 AtL
717; Button v. Trader, 75 Mich. 295, 42
N. W. 834; Frisch v. Wells, 23 L.R A.(N.S.)
144, note; Hickman v. Richburg, 122 Ala.
638, 26 So. 136; Heller v. Elliott, 44 N.
J. L. 467; Dowagiac Mfg. Co. v. Mahon, 13
N. D. 616, 101 N. W. 903; Fairbanks, M.
k Co. V. Baskett, 98 Mo. App. 63, 71 S. W.
1113.
(b) The contract operates as an admis-
sion that the machinery became a part of
the realty, hence not the basis of a condi-
tional sale.
Bratton v. Clawson, 2 Strobh. L. 478;
Case Mfg. Co. v. Garven, 45 Ohio St. 301,
13 N. £. 493; Corliss v. McLagin, 29 Me.
116; 27 Cyc 31, 37—39; Eaves v. Estes,
10 Kan. 314, 15 Am. Rep. 346; Fairbanks
V. Richardson Drug Co. 42 Mo. App. 262;
Farrar v. Stackpole, 6 Me. 154. 19 Am.
Dec. 201 ; Ford v. Cobb, 20 N. Y. 348 ; Fort-
man V. Goepper, 14 Ohio St. 564; Fosdick
V. Schall, 99 U. S. 235, 251, 25 L. ed. 339,
342; Geppelt v. Middle West Stone Co. 90
Kan. 639, 135 Pac. 673; Harkey v. Cain,
69 Tex. 146, 6 S. W. 637; Haven v. Emery,
33 N. H. 66; Hawkins v. Hersey, 86 Me.
396, 30 Atl. 14; Hooven, O. k R. Co. v.
John Feather8tone*s Sons, 49 C. C. A. 229,
111 Fed. 81; Jones, Chat. Mortg. 5th ed.
§ 132a; Jenks v. Colwell, 66 Mich. 420, 11
Am. St. Rep. 502, 33 N. W. 528; Lansing
Iron k Engine Works v. Walker, 91 Mich.
409, 30 Am. St. Rep. 488, 51 N. W. 1061;
Marshall v. Bacheldor, 47 Kan. 442, 28 Pac
168; Morgan v. Arthurs, 3 Watts, 140;
Murdock v. Harris, 20 Barb. 407; Oves v.
Ogelsby, 7 Watts, 106; Phelps k B. Wind-
mill Co. V. Baker, 49 Kan. 434, 30 Pac. 472;
Phoenix Iron Works Co. v. New York Secur.
k T. Co. 28 C. C. A. 76, 64 U. S. App. 408,
83 Fed. 767; Pike Electric Co. v. Richard-
son Drug Co. 42 Mo. App. 272; Porter t.
Pittsburg Bessemer Steel Co. 122 U. S.
267, 282, 30 L. ed. 1210, 1211, 7 Sup. Ct.
Rep. 1206; Progress Press Brick k Mach.
Co. V. Gratiot Brick k Quarry Co. 161 Mo.
601, 74 Am. St. Rep. 657. 62 S. W. 401;
Richardson v. Koch, 81 Mo. 264; San An-
tonio Brewing Asso. v. Arctic Ice Madi.
289 U. S.
1915.
BAILEY V. BAKER ICE MACH. CO.
Mfg. Co. 81 Tex. 09, 16 8. W. 797; Sparks
V. State Bank, 7 Blackl. 469; Springfield
Foundry & Mach. Co. v. Cole, 130 Mo. 7,
31 S. \V. 922; Re Sunflower State Ref. Co.
115 C. C. A. 132, 195 Fed. 180; Triumph
Electric Co. v. Patterson, 127 C. C. A. 612,
2U Fed. 244; Tyson v. Post, 108 N. Y.
217, 2 Am. St. Kep. 409, 15 N. E. 316;
United States v. New Orleans ^ O. R. Co.
(New Orleans ^ O. R. Co. v. Mellen) 12
Wall. 362, 365, 20 L. ed. 434, 436; Walm-
sley V. Milne, 7 C. B. N. 8. 116, 29 L. J.
C. P. X. S. 97, 6 Jut. N. S. 125, 1 L. T.
K. S. 62, 8 Week. Rep. 138; White's Ap-
peal, 10 Pa. 252; Re Williamsburg Knitting
Mill, 190 Fed. 871; Winslow T. Merchants'
ins. Co. 4 Met. 306, 38 Am. Dec. 368.
The contract being dated October, 1011,
and filed May 15, 1912, in circumstances
making a transfer voidable as a preference,
the date of the preference is reckoned as of
the date of the filing.
American Lead Pencil Co. ▼. Champion,
67 Kan. 352, 46 Pac 696; Babbitt v. Kel-
1^, 96 Mo. App. 529, 70 S. W. 384; Re
BaU, 123 Fed. 164; L. A. Becker Co. v.
Gill, 124 C. C. A. 170, 206 Fed. 37: Big
Four Implement Co. v. Wright, 47 L.R.A.
(N.S.) 1223, 125 C. C. A. 577, 207 Fed.
537; Re Bolstad, 224 Fed. 283; Re Boyd,
130 C. C. A. 288, 213 Fed. 774; Bradley,
C. ft Co. V. Benson, 93 Minn. 91, 100 N.* W.
670; Brigman v. Covington, 135 C. C. A.
250, 219 Fed. 600; Brown v. Piatt, 8 Bosw. |
3^4; Cameron v. Marvin, 26 Kan. 625;
Carey v. Donohue, 126 C. C. A. 254, 209
Fed. 328; Chapman v. Weimer, 4 Ohio St.
481; Christ v. Zehner, 212 Pa. 188, 61
Atl. 822; Claridge v. Evans, 137 Wis. 218,
25 URJk.(N.S.) 144, 118 N. W. 198, 803,
2 Cobbey, Chat Mortg. § 794; Covington
V. Brigman, 210 Fed. 499; Deupree y. Wat-
son, 132 C. C. A.' 543, 216 Fed. 483; Re
Dismal Swamp Contracting Co. 135 Fed.
415; Dixon v. Tyree, 92 Kan. 137, 139 Pac.
1026; Dobyns v. Meyer, 95 Mo. 132, 6 Am.
St. Rep. 32, 8 S. W. 251; Re Doran, 83
C. C. A. 265, 154 Fed. 467; English v. Koss,
140 Fed. 630; Eppstein v. Wilson, 79 C.
C. A. 155, 149 Fed. 197 ; First Nat. Bank v.
Anderson, 24 Minn. 435; First Nat. Bank
V. Johnson, 68 Neb. 641, 94 N. W. 837, 4
Ann. Cas. 485; First Nat. Bank v. Connett,
5 L.RwA.(N.S.) 148, 73 C. C. A. 219, 142
Fed. 35; Forrester v. Kearney Nat. Bank,
49 Neb. 659, 68 N. W. 1059; Frank
V. Miner, 50 111. 444; Gill v. Ely-Norris
Safe Co. 170 Mo. App. 486, 156 S. W.
811; Godwin v. Murchison Nat. Bank,
145 N. C. 320, 17 L.R.A. (N.S.) 935, 51)
8. E. 154; Re Great Western Mfg. Co.
81 C. C. A. 341, 152 Fed. 123; Re Hick-
erson, 162 Fed. 345; Humphrey v. Tatman,
198 U. S. 91, 49 L. ed. 956, 25 Sup. Ct
•0 Ij. ed.
Rep. 567; Re Hunt, 139 Fed. 283; John
Deere Plow Co. v. Edgar Farmer Store
Co. 154 Wis. 490, 143 N. W. 194; Johnston
V. Huff, A. & M. Co. 66 C. C. A. 534, 133
Fed. 704; Re Klein, 116 C. C. A. 603, 197
Fed. 241; Re Klingaman, 4 Am. Bankr.
Rep. 254; Knapp v. Milwaukee Trust Co.
216 U. 8. 545, 54 L. ed. 610, 30 Sup. Ct.
Rep. 412, 89 C. C. A. 467, 162 Fed. 675;
Re Standard Teleph. & Electric Co. 157
Fed. 106; Loeser v. Savings Deposit Bank
k T. Co. 18 L.RJL.(N.S.) 1233, 78 C.
C. A. 597, 148 Fed. 977 ; Long v. Farmers'
SUte Bank, 9 L.ILA.(N.8.) 585, 77 C. C.
A. 538, 147 Fed. 360; Re Sam Z. Lorch &
Co. 199 Fed. 944; McElvain v. Hardesty,
94 C. C. A. 399, 169 Fed. 31; McVay v.
English, 30 Kan. 368, 1 Pac. 795 ; Re Man-
del, 10 Am. Bankr. Rep. 774; Mathews v.
Hardt, 79 App. Div. 570, 80 N. Y. Supp.
462; Mattley v. Giesler, 110 C. C. A. 90,
187 Fed. 970; Meyer Bros. Drug Co. v.
Pipkin Drug Co. 69 C. C. A. 240, 136 Fed.
396; Re W. W. MilU Co. 162 Fed. 42;
Moffat V. Beeler, 91 Kan. 215, 137 Pac. 963,
Ann. Cas. 1915C, 602; Morgan v. First
Nat. Bank, 76 C. C. A. 236, 14| Fed. 4G(i;
Page v. Rogers, 211 U. S. 575, 53 L. cd.
332, 29 Sup. Ct. Rep. 159; Pew v. Price,
251 Mo. 614, 158 S. W. 338; Pollock v.
Junes, 61 C. C. A. 555, 124 Fed. 163; Kagau
V. Donovan, 189 Fed. 138; Roberts v. John-
son, 18 Am. Bankr. Rep. 132; Rogers v.
Page 72 C. C. A. 164, 140 Fed. 590; Roy v.
Salisbury, 134 N. Y. Supp. 733; Sexton
V. Kessler k Co. 225 U. S. 90, 98, 56 L.
ed. 095, 1000, 32 Sup. Ct. Rep. 657; Re
Shirley, 50 C. C. A. 252, 112 Fed. 301; Re
Smith, 176 Fed. 426; Studebaker Bros.
Mfg. Co. V. Elsey-Hemphill Carriage Co.
152 Mo. App. 401, 133 S. W. 412 ; Re Sturte-
vant, 110 C. C. A. 68, 188 Fed. 196; Thomp-
son y. Fairbanks, 196 U. S. 516, 49 L. ed.
577, 25 Sup. Ct. Rep. 306 ; Tilt v. Citizens*
Trust Co, 191 Fed. 441; Torrance v. Win-
field Nat. Bank, 66 Kan. 177, 71 Pac. 235;
Utley V. Fee, 33 Kan. 683, 7 Pac. 555;
Vitzthum V. Large, 162 Fed. 685; Wm. B.
Grimes Dry Goods Co. v. McKee, 51 Kan.
706, 33 Pac. 594; Williams v. German- Amer-
ican Trust Co. 135 C. C. A. 257, 219 Fed.
507; Wilson v. Leslie, 20 Ohio, 166; Wilson
Bros. V. Nelson, 183 U. 8. 191, 46 L. ed. 147,
22 Sup. Ct. Rep. 74; Youngberg v. Walsh,
72 Kan. 220, 83 Pac. 972; Zartman v. First
Nat. Bank, 189 N. Y. 267, 12 L.R.A.(N.S.)
1083, 82 N. E. 127, 109 App. Div. 406, 96
N. Y. Supp. 633. See also Baker Ice Mach.
Co. V. Bailey, 126 C. C. A. 425, 209 Fed.
603; Re Bazemore, 189 Fed. 236; Bowler
V. First Nat. Bank, 21 8. D. 449, 130 Am.
St. Rep. 725, 113 N. W. 618; Re Brown
Wagon Co. 224 Fed. 266; Re Calhoun Sup-
ply Co. 189 Fed. 537; Re Farmer's Supply
281
6UPR£M£ OOUKT OF THE UNITED 8TATE8.
Oct. Tbm,
Go. 106 Fed. 090; Re Jackson Brick & Tile
Co. 189 Fed. 636; Re Jacobson, 200 Fed.
812; Keeble v. John Deere Plow Co. Ill
O. C. A. 668, 190 Fed. 1019; Landia t. Mc-
Donald, 88 Mo. App. 336; Little v. Holley-
Brooks Hardware Co. 67 C. C. A. 46, 133
Fed. 878; Rock Island Plow Co. v. Reardon,
222 U. S. 354, 56 L. ed. 231, 32 Sup. Ct.
Rep. 164; Re Social Circle Cotton Mills, 213
Fed. 904; Sturdivant Bank v. Schade, 115
C. C. A. 140, 105 Fed. 188; Re Virgin, 224
Fed. 128; Re Wade, 185 Fed. 664; Re What-
ley Bros. 100 Fed. 326.
The conditional vendees had an interest
in the prc^erty, which, to a limited extent,
passed to the vendor by recording the con-
tract; hence the recording of the contract
operated as a transfer.
iEtna F. Ins. Co. v. Tyler, 16 Wend. 385,
30 Am. Dec. 00; Albright v. Meredith, 58
Ohio St. 100, 50 N. E. 710; 6 Am. k Eng.
Enc. Law, 2d ed. p. 455; Ames Iron Works
V. Richardson, 55 Ark. 642, 18 S. W. 381;
American Soda Fountain Co. v. Vaughn,
60 N. J. L. 582, 55 Atl. 54 ; Tufts v. Griffin,
22 Am. St. Rep. 866, note; Insurance Co.
of N. A. V. Erickson, 111 Am. St. Rep. 128,
note; Baker v. State Ins. Co. 31 Or. 41, 65
Am. St. Rep. 807, 48 Pac. 600; Beach's
Appeal, 58 Conn. 478, 20 Atl. 475; Benja-
min, Sales, 7th ed.; Bennett's Notes, p. 300;
Burnley v. Tufts, 66 Miss. 48, 14 Am. St.
Rep. 540, 5 So. 627; Carpenter v. Scott, 13
R. I. 477; Chase v. Ingalls, 122 Mass. 381;
Connecticut Mut. L. Ins. Co. v. Stinson, 62
lU. App. 330; Currier v. Knapp, 117 Mass.
324; Cutting v. Whittemore, 72 N. H. 107,
54 Atl. 1008; 32 Cyc. 648, 651; 35 Cyc.
305; Day v. Bassett, 102 Mass. 445; Dumas
T. Northwestern Nat. Ins. Co. 12 App. D.
O. 245, 40 L.R.A. 358 ; Dupreau v. Hibernia
Ins. Co. 76 Mich. 615, 5 L.R.A. 671, 43 N.
W. 585; First Nat. Bank v. Staake, 202 U.
8. 141, 146, 50 L. ed. 067, 060, 26 Sup. Ct.
Rep. 580; Geiss v. Franklin Ins. Co. 123
Ind. 172, 18 Am. St. Rep. 324, 24 N. E.
99; Geppelt v. Middle West Stone Co. 90
Kan. 539, 545, 135 Pac. 573; Hamburg-
Bremen F. Ins. Co. V. Ruddell, 37 Tex. Civ.
App. 30, 82 S. W. 826; Hanover F. Ins.
Co. V. Shrader, 11 Tex. Civ. App. 255, 31
S. W. 1100, 32 S. W. 344; Harley v. Stan-
ley, 25 Okla. 80, 138 Am. St. Rep. 000, 105
Pac. 188; Re Harrington, 20 Am. Bankr.
Rep. 606; Hartford F. Ins. Co. v. Keating,
86 Md. 130, 63 Am. St. Rep. 400, 38 Atl.
20; Imperial F. Ins. Co. v. Dunham, 117
Pa. 460, 2 Am. St. Rep. 686, 12 Atl. 668;
Jessup V. Fairbanks, M. & Co. 38 Ind. App.
673, 78 N. E. 1050; Johannes v. Standard
Fire Office, 70 Wis. 106, 5 Am. St. Rep.
150, 35 N. W. 208; Jones, Chat. Mortg.
5th ed. § 117; Jones, Liens, §§ 1061, 1105;
Knapp y. Alexander-Edgar Lumber Co. 237
I U. S. 162, 167, 50 L. ed. 894, 808, 35 Sup.
* Ct. Rep. 515 ; Lancaster v. Southern Ina.
Co. 153 N. C. 285, 138 Am. St. Rep. 665,
60 S. £. 214; Lasher t. St. Joseph F. & M.
Ins. Co. 86 N. Y. 423; Light v. Qreenwidi
Ins.. Co. 105 Tenn. 480, 58 8. W. 851; lip-
pincott ▼. Rich, 22 Utah, 106, 61 Pae. 626;
Liverpool ^ L. ^ G. Ins. Co. v. Bicker, 10
Tex. Civ. App. 264, 31 S. W. 248; Loventhal
V. Home Ins. Co. 112 Ala. 108, 83 L.RJL
258, 57 Am. St. Rep. 17, 20 So. 410; Mb-
Williams v. Cascade F. & M. Ins. Co. 7
Wash. 52, 34 Pac. 140; Matthews y. Capitol
F. Ins. Co. 115 Wis. 272, 01 N. W. 676;
Milwaukee Mechanics' Ins. Co. y. Rhea*
60 C. C. A. 103, 123 Fed. 10; National Cash
Register Co. v. South Bay Club House Asao.
64 Misc. 125, 118 N. Y. Supp. 1044; Os-
born V. South Shore Lumber Co. 01 Wis.
526, 65 N. W. 184; Re Peasley, 137 Fed.
100; Pelton v. Westchester F. Ins. Co. 77
N. Y. 605; Pennsylvania F. Ins. Co. T.
Hughes, 47 C. C. A. 450, 108 Fed. 497;
Phenix Ins. Co. v. Kerr, 66 L.R.A. 660, 64
C. C. A. 251, 120 Fed. 723 ; Phillips y. Ho^
lenberg Music Co. 82 Ark. 0, 00 S. W. 1106;
Phenix Ins. Co. v. Hilliard, 50 Fla. 590,
138 Am. St. Rep. 171, 52 So. 799; Phomiz
Ins. Co. v. Public Parks Amusement Co. 63
Ark. 187, 37 S. W. 959; Pirie v. Chicago
Title & T. Co. 182 U. & 438, 444, 45 L.
ed. 1171, 1176, 21 Sup. Ct. Rep. 906; Pom.
£q. Jur. §§ 105, 167, 368, 1046, 1161, 1263,
1406; Powers v. Burdick, 126 App. Diy.
179, 110 N. Y. Supp. 883; Queen Ins. Go.
y. May, — Tex. Civ. App. — , 35 S. W. 820;
1 Remington, Bankr. 2d ed. § 20; Rumaey
y. Phcsnix Ins. Co. 17 Blatchf. 527, 1 Fed.
396; Snyder v. Murdock, 51 Mo. 175; Stone
y. Waite, 88 Ala. 590, 7 So. 117 ; Story, £q.
Jur. § 1217, and note; Sumner y. Wood, 67
Ala. 130, 42 Am. Rep. 104; Re Sunflower
State Ref. Co. 115 C. C* A. 132, 105 Fed.
180; Tufts V. Brace, 103 Wis. 344, 70 N.
W. 414; Tufts v. Griffin, 107 N. C. 47, 10
L.R.A. 526, 22 Am. St. Rep. 863, 12 8.
E. 68; Tufts y. Wynne, 45 Mo. App. 42;
United Shoe Machinery Co. v. Ram lose, 231
Mo. 528, 132 S. W. 1133; United States
y. 00 Diamonds, 2 L.RA.(N.S.) 185, 72
C. C. A. 0, 130 Fed. 070; 1 Washb. Real
Prop. 4th ed. *500; Westchester F. Ina.
Co. V. Weaver^ 70 Md. 540, 5 L.RA. 478,
17 Atl. -401, 18 Atl. 1034; 1 Whart. Contr.
§ 617; Whitlock v. Auburn Lumber Co. 145
N. C. 120, 12 L.RA.(N.S.) 1214, 58 8. W.
000; Williston, Sales, §§ 22, 304, 326, 331,
332, 334; 6 Words & Phrases, pp. 5608,
5604.
A contract executed in October, 1011, and
not recorded until May 15, 1012, is void as
to all intermediate creditors, notwithstand-
ing that no creditor held a lien prior to the
recording.
2S9 V. S.
1915.
BAILEY T. BAKER ICE 3IACH. CX).
Abcrnathy v. liladden, 91 Kan. 809, 139
Pac. 431; American Lead Pencil Co. T.
Champion, 57 Kan. 352. 46 Pac. 696; Re At-
lanta News Pub. Co. 160 Fed. 622; Baker
▼. Parkhurat, 119 Mich. 645, 78 N. W. 643;
Baldwin v. Crow, 86 Ky. 679, 7 S. W.
146; L. A. Becker Co. v. Gill, 124 C. C.
A. 170, 20G Fed. 36; Re Beckhaus, 100 C.
O. A. 561, 177 Fed. 141; Blake v. Meadows,
225 Iklo. 1, 30 L.R.A.(N.S.) 1, 123 S. W.
868; Dowles v. Jonea, 123 Ky. 395, 96 S.
\V. 1121; Re Bothe, 97 C. C. A. 647, 173
Fed. 507; Re Braselton, 169 Fed. 960;
Brown v. Brabb, 67 Mich. 17, 11 Am. St.
Rep. 549, 34 N. W. 403; Cameron t. Marvin,
26 Kan. 612; Re Cannon, 121 Fed. 682;
Clift V. Williams, 106 Ky. 669, 49 S. W.
328, 61 S. W. 821; Crucible Steel Co. v.
Holt, 98 C. C. A. 101, 174 Fed. 127 ; 6 Cyc
1071; 16 Cyc. 681; Dayton t. People's Say.
Bank, 23 Kan. 421; Dempsey v. Pforz-
heimer, 86 Mich. 652, 13 L.RJL. 388, 49 N.
W. 465; Detroit Trust Co. v. Pontiac Sav.
Bank, 237 U. S. 186, 69 L. ed. 907, 35 Sup.
Ct. Rep. 609; Dixon v. Tyree, 92 Kan. 137,
139 Pac. 1026; Re Doran, 83 C. C. A. 265,
154 Fed. 467 ; Re Ducker, 67 C. C. A, 117,
134 Fed. 43; Fearey v. Cummings, 41 Mich.
376, 1 N. W. 946; First Nat. Bank v. Con-
nett, 5 L.RJL.(N.S.) 148, 73 C. C. A. 219,
142 Fed. 37; Gagnon v. Brown, 47 Kan. 83,
27 Pac. 104; Geiser Mfg. Co. t. Murray,
84 Kan. 450, L.RJL.— , — , 114 Pac. 1046;
Re Hamden, 200 Fed. 176; Harrison ▼.
South Carthage Min. Co. 96 Mo. App. 83,
68 S. W. 963; Hilliard v. Cagle, 46 Miss.
309; Holt y. Crucible Steel Co. 224 U. S.
262, 66 L. ed. 766, 32 Sup. Ct. Rep. 414;
Hurley v. Atchison, T. & S. F. R. Co. 213
U. S. 126, 63 L. ed. 729, 29 Sup. Ct. Rep.
466; Re Huxoll, 113 C. C. A. 637, 193 Fed.
851; Re Jacobson, 200 Fed. 812; James y.
Gray, 1 L.R.A.(NJ3.) 321, 66 C. C. A. 385,
131 Fed. 401; Re Johnson, 212 Fed. 311;
Karst V. Gane, 136 N. Y. 316, 32 N. E.
1073; Kennedy v. Dawson, 96 Mich. 79,
65 N. W. 616; Landis v. McDonald, 88 Mo.
App. 335; McAtee v. Shade, 107 G. G. A.
612, 185 Fed. 442; McElvain y. Hardesty,
94 C. C. A. 399, 169 Fed. 34; McVay y.
English, 30 Kan. 368, 1 Pac. 795; Re Mis-
sion Fixture & Mantel Co. 180 Fed. 263;
Moffat V. Bceler, 91 Kan. 209, 137 Pac. 963,
Ann. Gas. 1915G, 602; Noyes y. Brace, 8
S. D. 190, 65 N. W. 1071; Re O'Callaghan,
30 Am. Bankr. Rep. 97; Re Palmer, 218
Fed. 74; Parshall v. Eggert, 64 N. Y. 18;
Paul y. Lingenfelter, 89 Kan. 872, 132 Pac.
1179; Re Peasley, 137 Fed. 190; People
use of Esper y. Bums, 161 Mich. 174, 137
Am. St. Rep. 466, 126 N. W. 740; Post y.
Berry, 99 C. C. A. 186, 175 Fed. 564;
Putnam y. Rejmolds, 44 Mich. 113, 6 N.
W. 198; Re Riehl, 200 Fed. 466; Roe T.
•0 lis ed.
Meding, 53 N. J. Eq. 350, 88 AiL 394;
I Ruggles y. Cannedy, 127 CaL 290, 46 L.RJi.
371, 63 Pac. 911, 59 Pac. 827; Sanger t.
Guenther, 73 Wis. 364, 41 N. W. 436; Sedg-
wick City Bank y. Wichita Mercantile Co.
45 Kan. 346, 25 Pac 888; Simmons y.
Greer, 98 G. C. A. 408, 174 Fed. 664; Skil-
ton y. Codington, 186 N. Y. 80, 113 Am. St.
Rep. 885, 77 N. E. 790; Standard Paper Co.
y. Guenther, 67 Wis. 101, 30 N. W. 298;
Swafford y. Asher, 31 Ky. L. Rep. 1338, 105
S. W. 164; Thompson y. Van Vechten, 27
N. Y. 668; Union Nat. Bank y. Glum, 3
N. D. 201, 44 Am. St. Rep. 533, 64 N. W.
1034; Re Wade, 185 Fed. 664; Wicks Bros.
y. McConneU, 102 Ky. 434, 43 S. W. 206;
Wm. B. Grimes Dry Goods Co. y. McKee,
61 Kan. 704, 33 Pac 594; Williams y. Kirk,
68 Mo. App. 461; Youngberg y. Walsh, 72
Kan. 221, 83 Pac. 972; Williamson y. New
Jersey Southern R. Co. 29 N. J. Eq. 336.
The seller haying taken negotiable prom-
issory notes from the purchaser, thereby
electing to make the liability of the pur-
chaser absolute the sale was not condi-
tional.
Babbitt y. Moore, 61 N. J. L. 229, 17 Atl.
99; First Nat. Bank y. Alton, 60 Conn. 402,
22 Atl. 1010; Bannister y. Rouse, 44 Mich.
428, 6 N. W. 870; Bick y. Clark, 184 Mo.
App. 644, 114 S. W. 1144; Bigelow, Bills,
Notes & Cheques, 2d ed. § 6, pp. 32, 33,
35, 36, 40; Choate y. Steyens, 116 Mich.
28, 43 UELA. 277, 74 N. W. 289; Chicago
R. Equipment Co. y. Merchants' Nat. Bank,
136 U. S. 268, 34 L. ed. 349, 10 Sup. Ct.
Rep. 999; 7 Cyc. 632, 697; 1 Dan. Neg.
Inst. §S 1, 28, 30, 41, 52, 69, 80; Eaton
^ G. Comp. Paper, pp. 175, 656, §§ 20,
24; First Nat. Bank y. Greenyille Nat
Bank, 84 Tex. 40, 19 S. W. 334; Harkness
y. Russell, 118 U. S. 664, 30 L. ed. 286,
7 Sup. Ct Rep. 61; Killam y. Schoeps, 26
Kan. 310, 40 Am. Rep. 313; Oyerton y.
Tyler, 3 Pa. St. 346, 45 Am. Dec. 646;
Schneider y. Schiffman, 20 Mo. 571; Schmidt
V. Pegg, 172 Mich. 169, 137 N. W. 624;
Sloan y. McCarty, 134 Mass. 245; South
Bend Iron Works y. Paddock, 37 Kan. 610,
15 Pac 574; Third Nat. Bank y. Armstrong,
25 Minn. 530; Worden Grocer Co. y. Bland-
ing, 161 Mich. 264, 126 N. W. 212, 20 Ann.
Gas. 1322 ; Wright y. Trayer, 73 Mich. 493,
3 L.RJL. 60, 41 N. W. 517.
The circuit court of appeals erred in mak-
ing an order of unconditional return of the
machinery. The rights of seller and pur-
chaser are determinable according to con-
tract and principles of equity.
C. Aultman & Co. t. Olson, 43 Minn. 409,
45 N. W. 862; Barton t. Mulyane, 59 Kan.
313, 52 Pac 883; Cole y. Hinea, 81 Md. 476,
1 32 LJUL 456, 32 Atl. 196; Dederiok t.
' Wolfe, 68 MiM. 500, 24 Am. St. R^. 283,
18S
271
SUPREME COURT OF THE UNITED STATES.
Cot. Tkbm,
10 So. 64; Drew t. Pedlar, 87 Cal. 443, 22
Am. St. Rep. 257, 25 Pac. 749; Duncan v.
Stone, 45 Vt. 118; Earle v. Robinson, 30
N. Y. Supp. 178; Fleck v. Warner, 25 Kan.
492: Hamilton v. Highlands, 144 N. C.
270, 56 S. E. 029, 12 Ann. Gas. 876; Hamil-
ton V. Singer Mfg. Co. 54 111. 371; Harkness
V. Russell, 118 U. S. 663, 30 L. ed. 285,
7 Sup. Ct. Rep. 51; Hays v. Jordan, 85 Ga.
741, 9 L.R.A. 373, 11 S. E. 833; Hill v.
Towiisend, 69 Ala. 286; Hine ▼. Roberts, 48
Conn. 207, 40 Am. Rep. 170; Latham v.
Davis, 44 Fed. 862; Loomis v. Bragg, 50
Conn. 228, 47 Am. Rep. 638; Meagher v.
Hollonlierg, 9 Lea. 392; Minneapolis Har-
vester Works V. Hally, 27 Minn. 495, 8 N.
\V. 597; Moultrie Repair Co. v. Hill, 120
Ga. 730, 48 S. E. 143; Perkins v. Grobben,
lie ^lich. 172, 39 L.R.A. 815, 72 Am. St.
Kcp. .il2, 74 N. \V. 469; Preston v. Whit-
ney, 23 Mich. 260; A. D. Puffer & Sons Mfg.
Co. V. Lucas, 112 N. C. 377, 19 L.R.A. 682,
17 S. E. 174; Ross-Meehan Brake Shoe
Foundry Co. v. Pascagoula Ice Co. 72 Miss.
(>08, 18* So. 364; Shafer v. Russell, 28 Utah,
444, 79 Pac. 559; Segrist v. Crabtree, 131
U. 8. 287, 292, 33 L. ed. 125, 127, 9 Sup.
Ct. Rep. 687; Snook v. Raglan, 89 Ga. 251,
15 S. E. 364; Tufts v. D'Arcambal, 85
3Iich. 185, 24 Am. St. Rep. 79, 12 L.R.A.
446, 48 N. W. 497 ; White v. A. W. Gray*s
Sons, 96 App. Div. 154, 89 N. Y. Supp. 481 ;
Scott V. Glover, 7 Ga. App. 182.
If machinery is to be returned, the holder
of an outstanding chattel mortgage should
be cited before final decree is entered.
Riverside & D. River Cotton Mills v. Men-
efee, 237 U. S. 189, 193, 59 L. ed. 910, 912,
35 Sup. Ct. Rep. 579; Ray v. Norseworthy,
23 Wall. 128, 135, 23 L. ed. 116, 118; Re
Platteville Foundry & Mach. Co. 147 Fed.
828; Re Crowell, 199 Fed. 659; McKay v.
Ilamill, 107 C. C. A. 115, 185 Fed. 11;
2 Remington, Bankr. 2d ed. § 1889; Black,
Bankr. § 471.
Possession is prima facie evidence of
ownership, and one who permits another
to remain in possession of property belong-
ing to him is estopped to reclaim his own
property as against one who changes his
position upon the faith and strength of
such ownership.
Elkus & G. Secret Liens & Reputed Owner-
ship; Mai-tin v. Mathiot, 14 Serg. & R. 214,
16 Am. Dec. 491; Robinson t. Elliott, 22
Wall. 513, 525, 22 L. ed. 758, 763; Sexton v.
Wheaton, 8 Wheat. 229, 244, 5 L. ed. 603,
(508; Toflf V. Nelson, 109 N. Y. 316, 16 N.
E. 360: Casey v. Cavaroc, 96 U. S. 467,
484, 24 L. ed. 779, 786.
Mr. H. C. Drome argued the cause, and,
with Mr. Clinton Brome, filed a brief for ap-
pellee :
When the trustee in bankruptcy takes
281
possession of property that is not, and never
has been, a part of the bankrupt estate,
possession having been obtained by the bank-
rupt by means of a contract expressly re*
serving the title in the seller until the pur-
chase price is paid, and this contract is of
record agreeably to the laws of the state
prior to the fi[d judication in bankruptcy,
the trustee takes the interest of the bank-
rupt, and no more; that is, he may retain
the property for the benefit of the estate,
but he must, in that event, pay the \mpaid
portion of the purchase price; failing to
do this, he must surrender the property to
its true owner.
Re Farmers' Co-Op. Co. 202 Fed. 1005.
A transfer amounting to a preference
contemplated the parting with the bank-
rupt's property for the benefit of the credit-
or, and the subsequent diminution of the
bankrupt's estate.
New York County Nat. Bank v. Massey,
192 U. S. 138, 48 L. ed. 380, 24 Sup. Ct. Rep.
199.
The effort to place conditional sales, that
do not diminish the bankrupt's estate, in
the same category with chattel mortgages,
that do diminish his estate, must fail, llie
contention that the statute of Kansas, aa
construed by the supreme court of that
state, has that effect, is sufficiently an-
swered by the circuit court of appeals for
the eighth circuit in Big Four Implement
Co. V. Wright, 47 LJl.A.(N.S.) 1223, 125
C. C. A. 577, 207 Fed. 534. The facts in
that case are on all fours with the facta
of the case at bar.
[271] Mr. Justice Van Devanter, after
making the foregoing statement, delivered
the opinion of the court:
The referee and the courts below held
the contract to be one of conditional sale;
that is, one making full payment of the
purchase price a condition precedent to the
passing of title; and this is criticized by
the trustee, who insists that the contract
was one of absolute sale with a chattel
mortgage back, securing the deferred in-
stalments.
In harmony with the prevailing view, the
statutes of Kansas and the decisions of the
supreme court of the state recognize that
there is a real distinction between a condi-
tional sale and an absolute sale with a
mortgage back, in that, under the former,
the vendor remains the owner, subject to
the vendee's right to acquire the title by
complying with the stipulated condition^
while under the latter the vendee imme-
diately becomes the owner, subject to the
lien created by the mortgage. Gen Stat.
1909, §§ 5224-5220, 5232-.V2.S4. 5237; Sum-
ner v. McFarlan, 15 Kan. liOd; llallowell v.
239 U. S.
1915.
BAILEY ▼. BAKER ICE MACH. CO.
271-273
Xilne, 16 Kan. Go; Hall v. Draper, 20 Kan.
137; Standard Implement Co. v. Parlin &
O. 06. 51 Kan. 644, 33 Pac. 360; Moline
Plow Co. V. Witham, 52 Kan. 185, 34 Pac.
761; Big Four Implement Co. v. Wright,
47 L.R.A.(N.S.) 1223, 125 C. C. A. 577,
207 Fed. 535. In Hall v. Draper, the true
effect of a contract of conditional tale was
drawn in question, and the court said,
speaking through Justice Brewer, after-
wards a member of this court: "The title,
and all the rights of control and possession
flowing from title, were theirs [the vendors'],
except as in terms restricted by the con-
tract, llie only limitations upon their full
control of the organ were those created by
this instrument; and the only rights Lever-
idge [the vendee] had were those obtained
by it. In this respect such a conditional
sale differs from an absolute sale with a
mortgage back. In such case the vendee
has everything except as limited by the
terms of the mortgage. Here he has noth-
ing except as expressed [272] in his con-
tract." True, in Christie v. Scott, 77 Kan.
257, 94 Pac. 214, there is general language
which, if taken broadly, makes against this
distinction. But, according to a familiar
rule (Cohen v. Virginia, 6 Wheat. 264, 399,
5 L. ed. 267, 290; Pacific Exp. Co. v. Foley,
46 Kan. 457, 464, 12 L.H.A. 799, 26 Am.
St. Rep. 107, 26 Pac. 665), this language
should be regarded as restrained by the
circumstances in which it was used. The
ease did not present a controversy over
property conditionally sold, but only the
question whether the contract there shown
entitled the vendor, after reclaiming the
property and crediting the proceeds upon
the purchase price, to enforce payment of
the balance by the vendee. Without criti-
cizing or referring to cases like Hall v.
Draper, the court concluded its discussion
of the question by saying: 'IJnder the con-
tract attached to these notes, we hold that
the plaintiff was authorized to take the
property and sell it and apply the proceeds
toward the payment of the notes, and that
by so doing the law does not imply a revo-
cation of the contract of sale, nor does the
law imply that there remains no considera-
tion for the payment of the balance due on
the notes." It therefore is plain that we
ought not to treat the decision as over-
ruling or qualifying those before men-
tioned.
In jurisdictions where regard is had for
the distinction here indicated between a
conditional sale and an absolute sale with
a mortgage back, the question whether a
particular contract shows one or the other
turns upon the ruling intention of the par-
ties as disclosed by the entire contract, and I
not upon any single provision separately
€0 Ij. ed.
considered. Invoking this test, the trustee
contends that this contract was one of abso-
lute sale with a mortgage back, notwith-
standing the stipulation that the title
should be and remain in the vendor until
full payment. The contention does not ap-
pear to have support in any decision of
the supreme court of Kansas, and in our
opinion is not tenable. Requiring the vendee
to give notes for the deferred instalments
of the purchase price was not inconsistent
[873] with the retention of title in the vend-
or pending payment of the notes. William
W. Bieroe v. Hutchins, 205 U. S. 340, 348, 51
L. ed. 828, 834, 27 Sup. Ct Rep. 524. Nor
did any inconsistency result from the pro-
visions relating to rent, damage, and insur-
ance. Instead of making against the re-
tention of ownership by the vendor, they
were in harmony with it, and doubtless
were adopted upon the theory that the
vendee, who was to have the possession and
use of the property, should bear the bur-
den of preserving and insuring it, and, if
the purchase price was not paid, should not
only return ^e property, but compensate
the vendor for its use and any damage to
it. In Harkness v. Russell, 118 U. S. 663,
30 L. ed. 285, 7 Sup. Ct. Rep. 51, a cX>ntract
was held to be one of conditional sale, al-
though entitling the vendor to rental and
damages if the price was not paid; and in
Bryant v. Swofford Bros. Dry Goods Co.
214 U. S. 279, 53 L. ed. 997, 29 Sup. Ct.
Rep. 614, there was a like holding, not-
withstanding the vendee was required to
keep tlie property insured for the benefit of
the vendor, and, if it was destroyed by fire,
was to remain liable for the purchase price.
In neither case was the retention of own-
ership by the vendor deemed inconsist-
ent with the other features of the contract.
Coming to the provision relating to a me-
chanics' lien, we think it did no more than
reserve to the vendor a privilege or option
to file and enforce such a lien. It well
may be that the exercise of this privilege
would have been inconsistent with a con-
tinued assertion of title by the vendor.
William W. Bierce v.' Hutchins, 205 U. S.
346, 51 L. ed. 833, 27 Sup. Ct. Rep. 524.
But the privilege was not exercised, and it
hardly can be said that its mere reserva-
tion nullified the exoress words of the stipu-
lation concerning the title. That it was
not intended to do so seems manifest when
the entire contract is considered.
We therefore are of opinion that the con-
tract was rightly held to be one of con-
ditional sale.
The question next to be considered is
whether the contract operated as a prefer-
ential transfer by Grant Brothers within
the meaning of § 60b of the bankruptcy
285
273-276
SUPREME COURT OF THE UNITED STATES.
Cot. Tknc,
act, as [274] amended June 25, 1910, chap.
412, 36 Stat, at L. 838, 842, Comp. SUt.
1913, §§ 9586, 9644, which declares that
"a transfer" by a bankrupt "of any of
his property" shall be voidable by the
trustee, if it be made or recorded (when
recording is required) within four months
before the petition in bankruptcy is filed,
and "the bankrupt be insolvent and the
. . . transfer then operate as a pref-
erence^" etc. The section leaves no doubt
that to be within its terms the transfer
must be one which a bankrupt makes of
his own property and which operates to
prefer one creditor over others; and if
further light be needed tiiere is a declara-
tion in the bankruptcy act (§ 1, clause
25) that the word "transfer" shall be
taken to include every mode "of dispos-
ing of or parting with property, or the
possession of property, absolutely or con-
ditionally, as a payment, pledge, mortgage,
gift, or security." [30 Stat, at L. 545,
chap. 541, Ck>mp. Stat. 1913, § 9585.] It
therefore is plain that § 60b refers to an
act on the part of a bankrupt whereby he
surrenders or encumbers his property or
some part of it for the benefit of a par-
ticular creditor, and thereby diminishes the
estate which the bankruptcy act seeks to
apply for the benefit of all the creditors.
New York County Nat. Bank v. Massey,
192 U. S. 138, 147, 48 L. ed. 380, 384, 24
Sup. Ct. Rep. 199. Applying this test to
the contract in question, we think it did
not operate as a preferential transfer by
Qrant Brothers, the bankrupts. The prop-
erty to which it related was not theirs, but
the Baker Company's. The ownership was
not transferred, but only the possession,
and it was transferred to the bankrupts,
not from them. Being only conditional pur-
chasers, they were not to become the own-
ers until the condition was performed. No
doubt the right to perform it and thereby
to acquire the ownership was a property
right. But this right was not surrendered
or encumbered. On the contrary, it re-
mained with the bankrupts and ultimately
passed to the trustee, who was free to exer-
cise it for the benefit of the creditors. So,
there was no diminution of the bankrupts'
estate.
[875] Under the recording law of Kansas
a contract of conditional sale is valid be-
tween the parties, whether filed for record or
not, but is void as against a creditor of the
vendee who fastens a lien upon the property
by execution, attachment, or like legal proc-
efin before the contract is filed for record.
Gen. Stat. 1909, § 5237; McVay v. Eng-
lish, 30 Kan. 368, 371, 1 Pac. 795; American
Ijead Pencil Co. v. Champion, 57 Kan. 352,
357, 46 Pac. 696; Youngberg y. Walsh, 72
j9aB
Kan. 220, 227, 83 Pac. 972; Geiser ICfg.
Co. V. Murray, 84 Kan. 450, L.R.A.— , — ^
114 Pac 1046; Paul v. Lingenfelter, 99
Kan. 871, 132 Pac. 1179; Geppelt v. Middla
West Stone Co. 90 Kan. 539, 544, 135 Pac.
573; Dixon v. Tyree, 92 Kan. 137, 189, 13»
Pac. 1026; Big Four Implement Co. v.
Wright, 47 L.RJL.(N.S.) 1223, 125 C. C. A.
577, 207 Fed. 535. Here the contract was
made October 14, 1911, and filed for record
May 15, 1912. In the meantime no credi-
tor fastened a lien upon the property bf
execution, attachment, or other legal proc-
ess. But it is contended that § 47a, claus*
2, of the bankruptcy act, as amended in
1010, chap. 412, 36 SUt. at L. 838, 840,
Comp. Stat. 1913, §§ 9586, 9631, gave tho
trustee the status of a creditor having such
a lien. That section provides that a trus-
tee in bankruptcy, "as to all property in
the custody or coming into the custody of
the bankruptcy court, shall be deemed vest-
ed with all the rights, remedies, and powers
of a creditor holding a lien by legal or equi-
table proceedings." Although otherwise ex-
plicit, this provision does not designate the
time as of which the trustee is to be re-
garded as having acquired the status in-
dicated, and yet some point of time must
be intended. Is it the date of the trustee'a
appointment, the filing of the petition in
bankruptcy, or some time anterior to both?
When not otherwise specially provided, the
rights, remedies, and powers of the trustee
are determined with reference to the condi-
tions existing when the petition is filed. It
is then that the bankruptcy proceeding is
initiated, that the hands of the bankrupt
and of his creditors are stayed, and that his
estate passes actually or potentially inta
the control of the bankruptcy court. We
have said: "The filing of the petition of an
[276] assertion of jurisdiction with a view
to the determination of the status of
the bankrupt and a settlement and dis-
tribution of his estate. The exclusive
jurisdiction of the bankruptcy court is
so far in rem that the estate is regard-
ed as in cu9todia legis from the filing
of the petition.'' Acme Harvester Go.
V. Beekman Lumber Co. 222 U. S. 300, 307»
56 L. ed. 208, 213, 32 Sup. Ct. Rep. 96.
And again : "We think that the purpose of
the law was to fix the line of cleavage with
reference to the condition of the bankrupt
estate as of the time at which the petition
was filed, and that the property which vesta
in the trustee at the time of adjudication
is that which the bankrupt owned at the
time of the filing of the petition." Everett
V. Judson, 228 U. S. 474, 479, 57 L. ed.
927, 929, / 46 L.R.A.(N.S.) 154, 33 Sup.
Ct. Rep. 568. And sec Zavelo v. Reeves,
227 U. S. 625, 631, 57 L. ed. 676, 678, 33
239 U. S.
1915.
PHOENIX R. 00. T. QSABY.
276» 277
8np. Ct. Rep. 365, Ann. Gas. 1914D, 664.
Had it been intended that the trustee should
take the status of a creditor holding a lien
by legal or equitable process as of a time an-
terior to the initiation of the bankruptcy
proceeding, it seems reasonable to beliere
that some expression of that intention would
have been embodied in $ 47a as amended.
As this was not done, we thittk the better
Tiew, and one which accords with other pro-
Tisions of the act, is that the trustee takes
the status of such a creditor aa of the time
when the petition in bankruptcy is filed.
Here the petition was filed almost two
months after the contract was filed for rec-
ord, and therefore the trustee was not en-
titled to assail it under the recording law of
the state.
The record shows that between the date
off the contract and the time it was filed for
record the bankrupts mortgaged the machine
to the First National Bank of Horton, and
that the bank, although apparently assert-
ing some right under the mortgage, was not
brought into the present proceeding. In this
situation, our decision and that of the Oir-
euit Court of Appeals must be understood
to be without prejudice to further proceed-
ings respecting the rights, if any, existing
under that mortgage.
Decree affirmed.
[«77] PHCENIX RAILWAY COMPANY
OF ARIZONA, Appt.,
V.
W. PAUL GEART, Frank A. Jones, and
Amos W. Cole, Members of the Corpora-
tion Commission of the State of Arisona,
etaL
(See S. C. Reporter's ed. 277-283.)
Injunction — against state ofHclala —
confiscation.
1. A clear case of unreasonable, arbi-
trary, or confiscatory action on the part
^ a State Corporation Commission in di-
recting a street railway company to double-
track one of its lines for a specified dis-
tance must be made before a Federal court
may restrain the enforcement of the Com-
mission's order by an interlocutory injunc-
tion.
[For other cases, tee Injunction, I. ]. in Di-
gest Sap. Ct. 1008.]
Appeal — scope of review — partial in-
Talidlty of state legislation.
2. The Federal Supreme Court, on an
Note. — ^As to injunction to restrain acts
of public ofiScers — see note to Mississippi
V. Johnson, 18 L. ed. U. S. 437.
On statutes part valid and part invalid —
c notes to Titusville Iron Works v. Key-
stone Oil Co. 1 L.R.A. 363; and Fayette
County V. People's & D. Bank, 10 hJLA,
196.
•0 h. ed.
appeal from a decree of a district court re-
fusing to grant an interlocutory injunction
to restrain, on constitutional grounda, the
enforcement of an order of a State Cor-
poration Conunission directing a street rail-
way companv to double-track one of its lines,
need not determine the validity of the pen-
alty provisions of the Arizona Constitution
and laws applicable to publio service cor-
porations, in advance of an attempt to
enforce such provisions, where they are clear-
ly separable from the order of the Commis-
sion and the constitutional and statutory
provisions under which it was made, and
are not relied upon by appellant except as a
f round for invoking the jurisdiction of a
ederal court in equity.
[For other cases, see Appeal and Brror, VIIL
e; Statutes, I. d, 8; I. d, 4, in Digest Sup.
Ct. 1908.J . . . *•
[No. 48.]
Submitted October 29, 1915. Decided No-
vember 29, 1915.
APPEAL from the District Court of the
United States for the District of Ari-
zona to review a decree refusing to grant
an interlocutory injunction to restrain the
enforcement of an order of the State Cor-
poration Commission, directing a street rail-
way company to double-track one of its
lines. Aflirmed.
See same case below, 209 Fed. 694.
The facts are stated in the opinion.
Messrs. Alexander Britton, Ehrana
Browne, and Francis W. Clements sub-
mitted tlic cause for i^pellant. Messrs.
Louis H. Chalmers, Edward Kent, and Floyd
M. Stahl were on the brief:
The order of the Arizona Corporation
Commission sought to be enjoined was with-
out the power of the Ariz<ma Corporation
Commission.
Missouri P. R. Co. v. Nebraska, 217 U. 6.
196, 54 L. ed. 727, 30 Sup. Ct Rep. 461,
18 Ann. Cas. 989.
The order of the Arizona Corporation
Commission was shown to be unreasonable
and unnecessary, and therefore violative
of the 14th Amendment to the Constitu-
tion of the United States.
Washington ex rel. Oregon R.- & Nav. Co.
V. Fairchild, 224 U. S. 510, 56 L. ed. 863,
32 Sup. Ct. Rep. 535; Missouri P. R. Co.
V. Nebraska, supra; Washington, P. & C.
R. Co. V. Magruder, 198 Fed. 231.
In view of the relative degree of injury
to the respective parties by the granting
or refusal of the interlocutory injunction
prayed for, the showing of the appellant,
presented to the lower court, required the
issuance of an injunction pendente lite,
Washington, P. & C. R. Co. T. Magruder,
198 Fed. 232; New Memphis Gas & Light
187
279-281
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Co. ▼. Memphis, 72 Fed. 953; Sanitary Re-
duction Works y. California Reduction Co.
94 Fed. 696; Carpenter y. KnoUwood Ceme-
tery, 188 Fed. 867; Chicago & N. W. R. Co.
V. Dey, 1 L.R.A. 744, 2 Inters. Com. Rep.
325, 35 Fed. 881; Irving v. Joint Dist.
Council, U. B. C. & J. 180 Fed. 900 ; Harri-
man v. Northern Securities Co. 132 Fed.
475; Wilmington City R. Co. v. Taylor,
198 Fed. 197; San Joaquin ^ K. River
Canal & Irrig. Co. v. Stanislaus County, 163
Fed. 574; Russell v. Farley, 105 U. S. 403,
438, 26 L. ed. 1060, 1062; Newton ▼. Lewis,
25 C. C. A. 161, 49 U. S. App. 266, 79
Fed. 715; San Francisco Gas k Electric
Co. V. San Francisco, 164 Fed. 892; Sea-
board Air Line R. Co. v. Railroad Com-
mission, 155 Fed. 808; Pacific Teleph. &
Teleg. Co. t. Los Angeles, 192 Fed. 1009;
Ex parte Young, 209 U. S. 123, 52 L. ed.
714, 13 L.R.A.(N.S.) 932, 28 Sup. Ct. Rep.
441, 14 Ann. Cas. 764; Denver & R. G. R.
Co. Y. United States, 59 C. C. A. 579, 124
Fed. 156.
Mr. Wiley E. Jones, Attorney General
of Arizona, and Messrs. Ijeslie C. Hardy
and Eldward M. Cleary, submitted the
cause for appellees. Mr. George W. Har-
ben was on the brief:
The granting or refusing of an injunction
lies within the discretion of the court, and
should not be exercised except in a clear
case.
Knoxrille ▼. Knorville Water Co. 212 U.
S. 1, 53 L. ed. 371, 29 Sup. Ct. Rep. 148;
Ex parte Young, 209 U. S. 123, 52 L. ed.
714, 13 L.R.A.(N.S.) 932, 28 Sup. Ct. Rep.
441, 14 Ann. Cas. 764.
It has been the policy of this court in
causes which involve the regulation of pub-
lic utilities by legislative and administra-
tive bodies not to interfere with their ac-
tions unless there was an unreasonable and
arbitrary regulation.
San Diego Land & Town Co. t. Na-
tional City, 174 U. S. 739-754, 43 L. ed.
1154-1160, 19 Sup. Ct. Rep. 804; San Diego
Land k Town Co. v. Jasper, 189 U. S. 439,
47 L. ed. 892, 23 Sup. Ct. Rep. 571.
Mr. Justice Pitney delivered the opinion
of the court:
In June, 1913, the Corporation Conunis-
sion of the State of Arizona made an order
directing appellant to double-track its
line of street railway on West Washington
street in the city of Phoenix, in that state,
between Seventh and Seventeenth avenues,
— a distance of ten blocks; the work to be
commenced within thirty days from the date
of the order and completed on or before
September 1st. By a subsequent order the
time for completion was extended until
288
December Ist, 1913. Having unsuccessfully
applied to the Commission for a rehearing,
appellant filed its present bill of complaint
in the United States district court, praying
that the Commission's order be declared
null and void as in contravention of the
Constitution of the United States, and that
the defendants (who include the members
of the Corporation Commission, the attorney
general of the state, and the county attor-
ney), be enjoined from enforcing or at-
tempting to enforce it by [280] suit, pros-
ecution, or other proceeding, and from insti-
tuting any proceeding for the recovery of
fines or penalties for any violation of or re-
fusal to obey it; the ground of complaint be-
ing that the order was unjust and unreason-
able because the service already rendered up-
on Washington street by appellant was ade-
quate and efiicient; that the construction
of a double track was not required by the
needs of the public; that appellant's operat-
ing expenses exceeded its revenues, and that
it was unable to make the additional ex-
penditure of about $14,000 required for the
double-tracking; and tiiat compliance with
the order would prevent appellant from
making an adequate return, or any return
at all, upon the value of its property. The
bill further set up that, under the Consti-
tution and statutes of Arizona, complainant
was required, under severe penalties, to put
the order into effect, and to keep it in effeot
until modified or abrogated, and that while
a right to review the reasonableness and
lawfulness of the order in a state court
was given by statute, the court was pro-
hibited from issuing any injunction or
restraining order until after the final deter-
mination of the matter, and in the mean-
time the order would be in full force and
effect and must be obeyed, under heavy pen-
alties for each day's continuance of the
violation; and it was alleged that these
statutory and constitutional provisions were
adopted for the purpose of compelling ac-
quiescence in *any order made by the Cor-
poration Commission, and preventing a re-
sort to the courts to test the reasonableness*
justness, and validity thereof, and thus had
the effect of depriving complainant of its
property without due process of law, and
denying to it the equal protection of the
laws, in violation of the 14th Amendment.
Upon the filing of the bill, with accom-
panying affidavits, a temporary restraining
order was granted, and a hearing of the
application for interlocutory injunction was
thereafter had before three judges under
the provisions of § 266, [281] Judicial Code
(act of March 3, 1911, 36 Stat at L. 1087,
1162, chap. 231, Comp. Stat. 1913, §§ 968,
1243). The court held (209 Fed. 694) that
complainant's showing as to the alleged un-
289 V. S.
1915. PHCENIX R. CO. t. QEARY. 281-288
reasonableness of the Commission's order of substantial inconTenienee to the public
WIS not sufficiently strong to warrant an owing to the fact that there is but a single
injunction to restrain its enforcement pen- track with one turnout between Seventh
d«ite lite, but the temporary restraining and Seventeenth avenues, and some evidence
erdcr was continued in force pending the tending to create an inference that the reve-
present appeal, taken direct to this court nues of the company would be materially
uider the eited section of the Code. increased by the double-tracking. The Com-
The jurisdiction of a Federal court of mission's order appears to have been made
«{nity over the subject-matter is, of course, after full hearing and investigation respect-
well settled. Ex parte Young, 209 U. S. ing these matters. And, upon the whole,
123, 144, 52 L. ed. 714, 722, 13 L.R.A. we agree with the court below that the pre-
(N.S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann. sumption of reasonableness existing in favor
€u. 764; Minnesota Rate Cases (Simpson of tJie action of the Commission was not
▼. Shepard) 230 U. 8. 352, 380, 57 L. ed. overcome in the showing that was made
1511, 1534, 48 L.R.A.(N.S.) 1151, 33 Sup. upon the application for an injunction.
Ct Rep. 729; Siler v. Louisville ft N. R. The penalty provisions, except as a
Co. 213 U. 8. 175, 190, 63 L. ed. 753, 767, ground for invoking the jurisdiction of a
29 Sup. Ct. Rep. 451 ; Louisville ft N. R. Federal court in equity, are not relied upon
Co. ▼. Garrett, 231 U. 8. 298, 303, 68 L. by appellant. They are contained in cer-
ed. 229, 238, 34 Sup. Ct. Rep. 48. tain sections of the Constitution and stat-
The sole question raised is whether the utes of Arizona applicable to public serv-
bill of complaint and supporting affidavits, ice corporations. Constitution, art. 15,
in view of the rebutting affidavits tiled by §§ 16 and 17 ; public service corporation act,
the appellees, made so clear a case of un- Laws 1912, chap. 90, §§ 65, 68, 74a and b,
reasonable, arbitrary, or confiscatory action 76, 77, 79, 81; Rev. Stat. 1913, §§ 2341,
on the part of the Corporation Commission 2344, 2350a and b, 2352, 2353, 2355, 2357.
as to call for an interlocutory injunction. They are clearly separable from the order
Hie attempt was to show that there was of the Commission and the constitutional
BO reasonable necessity for the Commis- |ind statutory provisions under which it
sion's order, in view OPthe character of the was made. Const, art. 15, § 5; public serv-
eommunity to be served, the amount of ice corporation act. Laws 1912, chap. 90,
traffic over the line, the financial condi- § 36; Rev. Stat. 1913, § 2312. Therefore, in
tion of complainant, the nature and ex- advance of an attempt to enforce the pen-
tent of the service already rendered and ^j^^ ^^333 provisions, we need not pass
eapable of being rendered with the existing j^J „^ „ them. Grenada Lumber Co.
facilities, and the advantage to accrue to -^ °.. . . . oit tt c >«oo ^^o k>i t ^a
tiie public as compared with the expend!- ^' ^»~*««ippi, 217 U. 8. 433, 443, 54 L. ed.
tores to be susUined by complainsjat in 826, 831, 30 Sup. Ct. Rep. 635; Western U.
eomplying with the order. But the facts Teleg. Co. v. Richmond, 224 U. S. 160, 172,
and the inferences were much in dispute. ^^ ^ ^' 7^^' 7^^' ^^ Sup. Ct. Rep. 449;
CompUinant is not required to open up new Minnesota Rate Cases ( Simpson v. Shep-
territory, but only to give better service ^^^) 230 U. S. 352, 380, 67 L. ed. 1511,
upon a street already occupied by it un- 1534, 48 L.R.A.(N.S.) 1161, 33 Sup. a.
der a public franchise. lU line of railway R«P- 729; Louisville ft N. R. Co. v. Garrett,
<m Washington street is already double- 231 U. S. 298, 319, 58 L. ed. 229, 245, 34
tracked for a distance of 14 blocks in the Sup. Ct Rep. 48; Grand Trunk R. Co. v.
business section of the city. The 10 blocks Michigan R. Commission, 231 U. S. 457,
now required to be double-tracked lie be- 473, 58 L. ed. 310, 319, 34 Sup. Ct Rep.
tween the business section and the state 152; Ohio Tax Cases, 232 U. S. 676, 594,
Oipitol, where are [282] located the offices 58 L. ed. 738, 746, 34 Sup. Ct Rep. 372.
of the governor, the assembly chambers of 'I'^^c co«r* *>«lo^ expressed the view that
ihe sUte legislature, the court room of the ^^^ ^^^ should be retained in order to
supreme court of the sUtc and the chambers restrain prosecutions for penalties during
<d the judges, the law library of the sUte, such time as would be reasonably required
and the offices of the secreUry of sUte, the to «nable the corporation to comply with
Attorney general, the Corporation Commis- ^^^ order of the Commission. The court's
sion, and other state officials. On the line o'^er, as entered upon complainant's ap-
is located a public Ubrary and a park, both plication, contains no provision upon the
much frequented, while in the vicinity of "ubject Our affirmance of that order will
the state Capitol there is an estimated be without prejudice to the authority of
population of from 1,200 to 1,500, the city the District Court to deal with the ques-
as a whole having an estimated popula- tion of penalties,
iion of 25,000. There is abundant evidence Affirmed.
40 li. ed. 19 %%%
£84-286
SUPR£M£ COURT OF THE UNITED STATES.
Oct. Term,
PEDRO Db ELZABURU, Appi.,
V.
GENARA CHAVES et aL
(See S. C. Reporter's ed. 283-292.)
Federal courts — following dedsflons of
insular courts — rule of property.
llie Federal courts should respect the
rule of property established hy the rulings
of the Porto Rico supreme court that the
provisions of Porto Rico mortgage law, art.
395, under which a decision in proceedings
to establish the ownership of real proper^
is not res judicata, even as between the
parties, remained in force notwithstanding
the enactment of Porto Rico Code Civ. Proc.
§ 188, and Law of Evidence, §$ 59, 101,
making judgments in. special proceedings
conclusive, which that court thought, hav-
ing been enacted with full knowledge of the
provision of art. 413 of the mortgage law
(continued in force by the Forakcr act of
April 12, 1900, 31 Stat, at L. 79, chap. 191,
0>mp. Stat. 1913, § 3755, $ 8), that "none
of the articles of which this law consists
can be repealed except bv virtue of another
special law," could not have been intended
to operate as an implied repeal,— especially
in view of the contemporaneous enactment
of the "act relating to special legal pro-
ceedings," which expressly reserved from
the operation of its repealing section the
special proceedings established in the mort-
gage law.
[For other cssen, see Courts, VII., in Digest
Sup. Ct. 1908.]
[No. 62.]
Submitted November 1, 1915. Decided No-
vember 29, 1916.
APPEAL from the Supreme 0}urt of
Porto Rico to review a decree which,
reversing a decree of the District Ck)urt of
San Juan, dismissed the complaint in a
suit to annul certain possessory proceedings,
and the resulting entry of possession. Af-
firmed.
See same case below, 19 P. R. R. 162.
The facts are stated in the opinion.
Mr. Jacinto Texidor submitted the cause
for appellant.
No brief was filed for appellees,
Mr. Justice Pitney delivered the opinion
of the court:
This suit was commenced by the present
appellant in the district court of San Juan
to set aside as null and void certain pos-
sessory proceedings instituted by Paula
Chaves in the year 1896 with respect to an
estate containing 60 cuerdas of land, situate
at a place known as Honduras, in the ward
of Sabana Liana, in the municipality of
Rio Piedras, Porto Rico, and the result-
ini^ entry of possession in the registry of
190
property of San Juan, and to require the
defendants (the present appellees), who are
children and heirs of Paula Chaves, to va-
cate the property and deliver up posses-
sion to the plaintiff as the lawful own-
er. The district court rendered judgment in
his favor; but the supreme court of Porto
Rico reversed this judgment and [285] dis-
missed the complaint. 19 P. R. R. 162. The
present appeal was taken under § 244,
Judicial Code (act of March 3, 1911, 86
SUt. at L. 1087, 1157, chi^. 231, Comp.
SUt. 1913, §§ 968, 1221), it appearing that
the estate in question exceeds $5,000 in
value.
The transcript contains, in addition to
the evidence, a ''statement of facts in the
nature of a special verdict," made up for
the purposes of the present appeal in the
manner contemplated by § 36 of the Fora-
Icer act (of April 12, 1900, chap. 191, 31
Stat at L. 77, 86, Comp. Stat. 1913, §§
3747, 3791). See Rosaly t. Graham y
Eraser, 227 U. S. 584, 589, 67 L. ed. 655,
057, 33 Sup. Ct. Rep. 888; Oohoa v. Her-
nandez y Morales, 230 U. S. 139, 143, 57
L. ed. 1427, 1430, 33 Sup. Ct. Rep. 1033.
But that practice was superseded by § 244,
Judicial Code, which subjected appeals
talcen from the supreme court of Porto
Rico to the same regulations as appeals
from the district courts of the United
States, thus extending our review so as to
include questions of fact. 1
Plaintiff asserted that the 60 cuerdas
were part of a tract of 112 cuerdas, and
this in turn part of a tract oontaining be-
tween 140 and 160 cuerdas formerly owned
by Alonso Hemandes, who aoquired it in
the year 1864; that Hemandes hypothe-
cated this property to the Spanish govern-
ment as security for the faithful perform-
ance of his duties as collector of internal
revenue; that because of an embezzlement
of public funds by him the property was
seized by the government in the year 1875;
that about twenty years later, on June 6,
1895, it took possession of the land, and
on September 14, in that year, possession
was recorded in the registry in favor of the
government, without prejudice to third par-
ties who might have a better title; and that
on October 16, 1897, the tract of 112 cuerdas
was sold at auction to one Cuadrado, Who
transferred his right to plaintiff, and there-
after, by deed of [286] October 17, 1808,
the proper public ofllcial conveyed the land
to plaintiff. As to the source of the title of
Hernandez, plaintiff claims to have shown
1 Section 244, Judicial Code, was repealed
by act of January 28, 1915; 38 Stat at L.
804, chap. 22, but with a reservation of
I cases then pending in this court, as the
present case was.
239 V. S.
1915.
D£ ELZABURU ▼. CHAVES.
286-288
1^ evidence that prior to the year 1819
the whole tract was inherited by Eugenia
de la Cmz and her brother, Jos^, from their
grandparents, and the brother conveyed his
share to the sister; that in that year
Eugenia sold the land without deed to
Juana Maria de Otero; and that after the
death of Eugenia, and in the year 1836,
her son and testamentary executor insti-
tuted proceedings to prove the inheritance
of the estate by his mother and the sale of
it to Mrs. Otero. In these proceedings,
which were in evidence, several witnesses
testified that Eugenia de la Cruz was the
owner of the property then in question for
many years prior to the sale of it to Mrs.
Otero in 18J9, but agreed in saying that at
the time of testifying and for some years
before one Juan Caneti was in possession
of it under some title unknown to them.
The testimony having been forwarded to the
court of > San Juan, it was ordered that
the owners of the adjacent properties and the
sindico procurador be heard. The property
owArs waived hearing. It does not appear
that Caneti was either summoned or heard.
Ihe sindico made no objection to approving
the investigation, "for although the wit-
nesses say that said property is possessed
by Juan Caneti, this does not annul the
ownership had by Eugenia, and Juana may
iiave leased or sold it to Caneti." The in-
vestigation was thereupon approved by the
court. Hernandez's title was derived in the
year 1854 under a public deed made by a
brother and four sisters named Otero, in
their own name and for two other brothers
named, for "an estate in the barrio of Hon-
duras, Rio Piedras, which is bounded by
lands belonging to the Marchioness de Leon
and to Jos6 de la Cruz, and is composed
of 140 or 150 cuerdas, the exact number
of which will be stated in the deed to be
executed for the purpose, [287] as well as
the demarcation thereof, when the same is
surveyed."
Defendants (the present appellees) al-
leged that Juan Caneti was the true owner
at least of the tract of 50 cuerdas now in
difpute; that from him it passed to his
son, Santos Caneti, who in the year 1867
sold it on instalments to Ramon Clemen te,
the husband of Paula Chaves, from whom
it descended to Paula and the defendants,
who are her lawful children by Clemente.
There was substantial evidence tending to
support these allegations. It was also
shown quite clearly that Paula Chaves was
in continuous possession from the year 1875
until her death in 1899, after which event
defendants held continuous possession down
to the time of the suit. In the year 1895
Paula instituted proceedings for the record-
ing of her possession, in which the adjoin-
•0 L. ed.
ing owners were summoned, testimony was
taken, and the proceedings were approved
November 7, 1895, and recorded in the regis-
try of property in the month of March fol-
lowing.
The supreme court of Porto Rico treated
the present suit as partaking of the char-
acter of an action of ejectment to such
extent that it devolved upon plaintiff at
the outset to prove that he was the lawful
owner of the lands claimed by and in the
possession of defendants. The court re-
viewed the evidence, found that plaintiff's
chain of title did not clearly identify the
location or boundaries of the land claimed
by him, that the evidence of Hernandez's
title was dubious, and, while the tract of
50 cuerdas was clearly comprised within
the boundaries which the Spanish govern-
ment fixed for the properties sold by it to
plaintiff, there was so much doubt respect-
ing the question of ownership as to rendei
it impossible to reach the conclusion that
plaintiff had proved his title. It was point-
ed out that in the proceedings instituted
in 1836 no description of the property was
given, that the witnesses then examined
failed to establish the possession of Mrs.
Otero, but did [288] refer to the fact of pos-
session by Juan Caneti, who was neither
summoned nor heard; that it was not estab-
lished in what manner the Oteros who made
the deed of sale in 1854 to Hernandez were
connected with Mrs. Otero named in the
proceedings of 1836; that it was not shown
how the seizure of the property by the
Spanish government in 1875 was carried
into effect, or the quantity or location of
the property seized; that there was no rec-
ord of the details connected with the act
of taking possession of the 112 cuerdas by
the mayor of Rio Piedras in behalf of the
government on June 5, 1895, as alleged by
plaintiff, but that even if those 112 cuerdas
included the 50 cuerdas in controversy, it
appeared that Paula Chaves, who at that
time was in possession of the 50 cuerdas,
not only remained in possession, but, for
the purposes of the possessory title proceed-
ings, brought by her later in the same year,
obtained a certificate from the mayor, the
secretary, and the sindico of the municipal-
ity of Rio Piedras, stating that according
to the records in the municipal archives
she was in possession under title of owner-
ship; and that from the whole of the evi-
dence it appeared that the Canetis had held
continuous possession in early times, and
the Chaves family at least from 1875.
Our examination of the record discloses
no sufljcient ground for reversing the su-
preme court of Porto Rioo upon the ques-
tions of fact.
191
28S>291
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
The chief reliance of appellant is upon
certain questions of law, the first insistence
being that the court erred in denying the
force and effect of res judicata to a decision
rendered by the district court of San Juan
May 31, 1907, in a former action between
the present parties. It appears that de-
fendants, as heirs of Paula Chaves, in-
stituted a proceeding in the municipal
court of San Juan for the purpose of con-
verting the entry of possession of the 50
cuerdas, previously made in her favor, into
a dominion title; that plaintiff opposed the
conversion; upon the trial [280] decision
was rendered in his favor; and on appeal the
district court of San Juan declared that
the 50 cuerdas were not in possession of de-
fendants, but were part of the estate of 112
cuerdas belonging to plaintiff, that he was
in lawful possession, and that the heirs of
Chaves had no right to convert their re-
corded possession into a dominion title.
The supreme court held that this deci-
sion was not res judicata. Appellant cites
to the contrary, § 188 of the local Code of
Civil Procedure (Comp. SUt [P. R.]
§ 5172), which declares that ''a judgment
is a final determination of the rights of the
parties in an action or proceeding," and
«ii$ 50 and 101 of the law of evidence (Comp.
SUt. [P. R.] §§ 1427, 1469), which are to
the effect that, as to parties notified, "a
judgment or final order in an action or
special proceeding'* is conclusive. 1
[200] The question is whether the deci-
sion of May 31, 3907, was ''a judgment or
final order in an action or special proceed-
ing*' witliin the meaning of the sections cit-
ed. The proceeding was instituted under ar-
ticle 305 of the mortgage law (Comp. Stat.
[P. R.] p. 1108), which enables an owner
of property having no written title to record
his ownership upon proving it before the
judge of the court of first instance, or mu- 1
nicipal court, under prescribed formalities.
Notice is given to the person from whom
the property may have been acquired, or
his predecessor in interest, and to the rep-
resentative of the department of public
prosecution. The judge is to "receive writ-
ten pleadings upon the claims and evidence
which may have been presented by the rep-
resentative of the department of public
prosecution, or by the other persons who
may have attended the proceedings/' and in
view of their allegations he is to decide
upon the evidence and declare whetlier the
ownership of the property involved has been
established; any person interested may ap-
peal from this decision; and **if said deci-
sion is accepted or affirmed, it shall con-
stitute a sufficient title for the record of
the ownership."
There seems to be no question that such
a decision, as the law stood at the time of
the annexation of the island to the United
States, was not conclusive upon the ques-
tion of ownership, even as between the par-
ties participating in the proceeding, jbut
was subject to be set aside in an ordinary
action.
By article 413 of the mortgage law it was
declared: "None of the articles of which
this law consists can be repealed except by
virtue of another special law." And by
§ 8 of the Foraker act of April 12, 19U0
(31 Stat, at L. 79, chap. 191, Comp. Stat.
1913, § 3755), [201] the law was continued
in force until amended or repealed by the
legislative assembly or by act of Congress.
The Code of Civil Procedure was enacted
by the legislative assembly March 10, 1904.
The law of evidence was enacted March 9,
1905. As already shown, it refers to ''ac-
tions and special proceedings." Upon the
same day another act was approved, en-
titled, "An Act Relating to Special Legal
Proceedings." (Comp. Stat. [P. R.] p.
1(1427) Sec. 59. The effect of a judgment
or final order in an action or special pro-
ceeding before a court or judge of Porto
Rico . . . liaving jurisaiction to pro-
nounce tlie judgment or order, is as fol-
lows :
1. In case of a judgment or order against
a specific thing, or in respect to the pro-
bate of a will, or the administration of the
estate of a decedent, or in respect to the
personal, political, or legal condition or
relation of a particular person, the judg-
ment or order is conclusive upon the title
to the thing, the will, or administration, or
the condition or relation of the person;
2. In other cases the judgment or order
is, in respect to the matter directly ad-
judged, conclusive between the parties and
their successors in interest by title sub-
sequent to the commencement of the action
or special proceeding, litigating for the
same thing under the same title and in the
292
same capacity, provided they have notice,
actual or constructive, of the pendency of
the action or proceeding.
(1428) Sec. 60. Other judicial orders of
a court or judge of Porto Rico . . .
create a disputable presumption, accord-
ing to the matter directly determined, be-
tween the same parties and their repre-
sentatives and successors in interest by title
subsequent to the commencement of the ac-
tion or special proceeding, litigating for
the same thing under the same title and in
the same capacity. . • .
(1469) Sec. 101. The following p
tions, and no others, are deemed
sive:
resump-
conclu-
6. The judgment or order of a court,
when declared by this Code to be conclu*
sive; • • •
239 U. S.
1915.
ARANA DB VILLANUBVA t. VILLANUEVA
201-^3
300.) It containt provisions for the re-
cording of public instruments and wills, for
declaration of heirship, administration of
dtoedents' estates, appointment of guard-
ians, the oars of the persons and properties
of minors, and other matters; and in its
ftial section there is this declaration : "All
prefions laws in conflict herewith are here-
kj repealed; hot the special proceedings es-
tablished in the Civil Code, in the mort-
gage law and its regulations, and in any
other law, in io far as not provided for by
this act, remain in foree.**
The effect of these sabsaquent enactments
upon the special proceedings established in
the mortgage law and regulations was con-
sidered by the suprone court of Porto
Rieo in Qimfoes v. Brenes (1006) 10 P. R.
B. 124, 181, 133, etc, and again in Qon-
lales V. People (1906) 10 P. R. R. 468, 462.
In the former case it was held, with respect
to summary proceedings for the collection
of a mortgage debt under article 128, in the
hitter with respect to a special proceeding
uider article 395, that the provisions of the
mortgage law remained in foroe notwith-
standing the Code of Civil Procedure, and
in the latter case it was diatinotly held that
the proceedings to establish ownership did
not produce the effect of res judicata. This
was reaffirmed by the same court in C^l-
deroQ V. Garda (1908) 14 P. R. R. 407,
416. And see Ochoa v. Hernandez y
Morales, 230 U. S. 139, 161, 57 L. ed. 1427,
1433, 33 Sup. Ct. Rep. 1033. These deci-
sions of the supreme court of Porto Rico
are based upon reasoning that, while con-
ceding the fuU authority [898] of the legis-
lative aaaembly to repeal or modify the
mortgage law, in effect inyoket article 413
of that law (continued in force as a part of
It by the Foraker act) as prescribing a rule
of interpretation to hfi applied in testing the
intention of the law-miUcing body as ex-
pressed in subsequent enactments. No ex-
press repeal of article 305 of the mortgage
law being found, and the question being
one of implied repeal, the court deemed it
maaifest that the legislative assembly, in
adopting the Code of Civil Procedure and
the law of evidence, did so with full knowl-
edge of article 413 of the mortgage law,
and therefore intended no implied repeal.
And the law of evidence having been en-
acted contemporaneously with the act re-
lating to special proceedings, the latter act
was looked to in construing § 59 of the
former, and the express reservation of the
special proceedings established in the mort-
gage law and its regulations was treated
as showing that they were to be left in ex-
istence with their former force and effect,
and no greater. This view, to say the least,
is a reasonable one; and since it is plain
60 L. ed.
that the decisions, having stood io long un-
challenged, have established a rule of prop-
erty, it seems to us that they ought not
now to be overruled. It is worthy of re-
mark that Gonzales v. People, supra, was
decided more than a full year before the
decision of the district court of San Juan
which appellant insists ought to be treated
as conclusive. Defendants may well have
refrained from taking an appeal from the
decision of the district court in reliance
upon the prerious decision of the higher
tribunal that it had no conclusive effect.
The remaining questions of law raised by
appellant resolve themselves, upon analysis,
into a mere criticism of the process of rea-
soning by which the court reached its con-
clusions upon the facts. We find them with-
out substantial merit, so far as their effect
upon the result is ooneemed*
Judgment affirmed.
[898] TEODORA ARANA DE VILLA-
NUEVA, Appt,
V.
MARIANO P. VILLANUEVA.
(See S. C. Reporter's ed. 293-299.)
Appeal * from Philippine snpreme
oonrt — Jurisdictional amount.
1. The requisite jurisdictional amount
is involved so as to sustain an appeal to
the Federal Supreme Court from the Philip-
pine supreme court to review a decree
which affirmed a decree below, rejeotinj; a
wife's demand for a divorce, and liquida-
tion of the community, where, in addition
to an allegation in the bill of the existence
of such an amount of community property
as to give jurisdiction, an affidavit filed for
tJie purpose of the appeal asserts that the
value of the property in controversy ex-
ceeds that amount, there bein^ no counter-
vailing affidavit, and nothing m the record
to demonstrate to the contrary.
[For other caies, see Appeal and Error, I. f. In
Digest Sup. Ct 1908.]
Appeal * from Philippine supreme
oonrt — review of facta.
2. Concurrent findings of fact by the
two lower courts will be accepted by the
Federal Supreme Court on an appeal from
the Philippine supreme court, unless clear-
ly erroneous.
[For other cases, see Appeal and Error, 4931-
- -^- " ►. Ct
4959, In Digest Sap. Ot 1908.]
Note. — On appellate jurisdiction of Fed-
eral Supreme Court over supreme court of
Philippine Islands — see note to Martinez v.
International Bkg. Corp. 56 L. ed. U. S. 438.
As to amount necessary to give United
States Supreme Court jurisdiction — see
notes to Schunk v. Moline, M. ^ S. Co. 37
L. ed. U. S. 256; and Commercial Bank v.
Buckingham, 12 L. ed. U. S. 169.
29S
SUPREME COURT OF THE UNITED STATES.
Oct. TkBM,
Appeal ^ from Philippine supreme
court ~ following decision below.
3. The local law, as applied by the
court below to the facts, will be accepted
by the Federal Supreme Court on an ap-
peal from the Philippine supreme court un-
less constrained to the contrary by the con-
viction that error was clearly committed
by the court below.
[For other cases, see Appeal and Error, VIII.
m. 1, In Digest Sup. Ct. 1908.]
[No. 66.]
Argued November 0, 1915. Decided De-
cember 6, 1915.
APPEAL from the Supreme Court of the
Philippine Islands to review a decree
which aflirmed a decree of the Court of
First Instance of the Province of Albay,
dismissing a wife's suit for a divorce from
her husband, and for a liquidation and par-
tition of the communi^ property. Af-
firmed.
The facts are stated in the opinion.
Mr. C. W. O'Brien argued the cause and
filed a brief for appellant:
The doctrine of condonation is not ap-
plied BO strictly to the wife as to the hus-
band.
D'Aguilar v. D'Aguilar, 1 Hagg. Eccl.
Rep. 786; Beeby v. Beeby, 1 Hagg. Eccl.
Rep. 789; Bishop, Marr. Div. & Sep. § 284.
Condonation does not embrace all the
acts of the offending party, but only the
acts of which the condoning party had
knowledge at the time thereof.
Ralston v. Ralston, 8 Sc. Sess. Cas. 4th
series, 373 ; Alexandre v. Alexandre, L. R.
2 Prob. 164, 39 L. J. Prob. N. S. 84, 23
L. T. N. S. 268, 18 Week. Rep. 1087 ; Bishop,
Marr. Div. & Sep. § 299, note, 5; D'Aguilar
▼. D'Aguilar, 1 Hagg. Eccl. Rep. 773; Du-
rant v. Durant, 1 Hagg. Eccl. Rep. 733;
Turton ▼. Turton, 3 Hagg. Eccl. Rep. 338;
Bramwell v. Bramwell, 3 Hagg. Eccl. Rep.
618; Odom v. Odom, 36 Ga. 286; Clouser
V. Clapper, 59 Ind. 548; Verhoff v. Van
Houwenlengen, 21 Iowa, 429; Benedicto ▼.
De la Rama, 3 Philippine, 34, 201 U. S.
303, 50 L. ed. 765, 26 Sup. Ct. Rep. 485.
All condonation, especially the implied
condonation, is upon the condition that con-
tinually thereafter tlie party forgiven shall
treat the other with conjugal kindness;
wherefore a breach of the condition revives
the original right of divorce.
Bishop, Marr. Div. & Sep. §§ 308, 311-
313; 2 Greenl. Ev. § 53; Fisher v. Fisher,
93 Md. 298, 48 Atl. 833 ; Davis v. Davis, 19
111. 334; Moorhouse v. Moorhouse, 90 111.
App. 401; Timerson ▼. Timerson, 2 How.
Pr. N. S. 526; Johnson v. Johnson, 14
Wend. 637, reversing 4 Paige, 460, revers-
294
ing 4 Edw. Ch. 439; Langdon ▼. Lang-
don, 25 Vt. 678, 60 Am. Dec. 296; Durant
V. Durant, 1 Hagg. Eccl. Rep. 733; Cooke
V. Cooke, 9 Jur. N. S. 754. 32 L. J. Prob.
N. S. 154, 8 L. T. N. S. 644, 3 Swabey A.
T. 126, 11 Week. Rep. 957; Dent v. Dent,
34 L. J. Prob. N. S. 118, 13 L. T. N. S.
252, 4 Swabey & T. 105; Winscom v. Win-
scom, 10 Jur. N. S. 321, 33 L. J. Prob.
N. S. 45, 3 Swabey A, T. 380, 10 L. T.
N. S. 100, 12 Week. R^. 535; Ridgway
V. Ridgway, 29 Week. Rep. 612.
Contra, Collins v. Collins, L. R. 9 App.
Cas. 205, 32 Week. Rep. 500; Cass v. Cass,
34 La. Ann. 611; Benedicto v. De la Rama,
3 Philippine, 34.
From the fact that plaintiff occasionally
returned to her home to visit her children,
who still resided therein, it shall not be
presumed that the parties were living to-
gether as man and wife, or that th^ re-
sumed marital relations.
Harnett v. Harnett, 59 Iowa, 401, 13
N. W. 408; Toulson v. Toulson, 93 Md.
754, 50 Atl. 401; Hann v. Hann, 58 N. J.
Eq. 211, 42 Atl. 564. Contra Marsh ▼.
Marsh, 13 N. J. Eq. 281.
Mr. Howard Thayer Kingsbury argued
the cause, and, with Mr. Frederic R. Cou-
dert, filed a brief for appellee:
The burden of showing jurisdiction is
on the appellant, and she must establish
the jurisdictional facts by a fair prepon-
derance of testimony.
Wilson V. Blair, 119 U. S. 387, 30 L. ed.
441, 7 Sup. Ct. Rep. 230; Johnson v. Wil-
kins, 116 U. S. 392, 29 L. ed. 671, 6 Sup.
Ct. Rep. 600.
While in some cases where judgment goes
for the defendant the amount of the plain-
tiff's claim is the test of jurisdiction, never-
theless it must appear that the claim is
made in good faith and upon substantial
grounds.
Gorman ▼. Havird, 141 U. 8. 206, 35
L. ed. 717, 11 Sup. Ct. Rep. 943.
The law governing divorce in the Philip-
pines is the old Spanish law of the Parti-
das. How these ancient statutes are to be
construed and applied is a question of local
law, upon which this court customarily fol-
lows the ruling of the local courts, unless
they are "clearly wrong."
Santo Fe C. R. Co. v. Friday, 232 U.
S. 694, 700, 58 L. ed. 802, 803, 34 Sup. Ct.
Rep. 468; Nadal v. May, 233 U. S. 447,
454, 58 L. ed. 1040, 1041, 34 Sup. Ct Rep.
611; Ker & Co. v. Couden, 223 U. S. 268,
279, 56 L. ed. 432, 435, 32 Sup. Ct Rep.
284.
This court will also accept the findings
of fact in which both courts below have con*
curred, unless they are "clearly erroneous."
239 U. S.
1915
ARAKA DE VILLANUEVA ▼. VILLANUEVA
294-296
Dim T. Lumbermen's Credit Asso. 200
n. S. 24, 52 L. ed. 666, 28 Sup. Ct. Rep.
SS6, 14 Ann. Cas. 501; Shappirio v. Gold-
berg, 192 U. S. 232, 240, 48 L. ed. 419, 424,
24 Sup. Ct. Rep. 259.
[294] Mr. Chief Justice Wlilte delivered
the opinion of the court:
The decree which the appellant seeks to
iwerse affirmed one rendered bj the court
of first instance, rejecting her demand for
a divorce from her husband and for a liqui-
dation and partition of the property belong-
ing to the legal conununity which existed
between them. At the outset we say that
we think there is no foundation for the
suggestion that we are without Jurisdiction
because of the inadequacy of the amount
involved, since the complaint by which the
suit was begun alleged the existence of such
an amount of community property as to
give jurisdiction, and because the affidavit
filed for the purpose of the appeal also so
establishes, there being no countervailing
affidavit and nothing in the record to dem-
onstrate to the contrary. De la Rama v.
De la Rama, 201 U. S. *d03, 50 L. ed. 765,
26 Sup. Ct. Rep. 485.
The complaint for divorce and liquida-
tion of the community as it was finally
amended, which was filed in 1910, alleged
the marriage of the parties in 1867 and the
birth of ten children, nine of whom were
alive and of age and one of whom was dead,
leaving surviving issue. As a bsnis for the
divorce prayed various acts of adultery by
the defendant were charged, extending over
a period of forty- two years; that is, from
1868, shortly after the marriage, until the
bringing of the suit in 1910. The facts thus
charged embraced six periods: the first,
from 1868 until the filing of the suit with
a named person, from which relation it was
alleged there had been begotten five chil-
dren, four of whom were alive and bore their
father's surname; the second, with another
named person during 1889 and 1890, from
which relation there was begotten a daugh-
ter who likewise bore her father's surname;
the third, with a named person during the
year 1801 ; the fourth, with a named person
from 1892 until the time the [295] suit was
commenced, from which relation it was al-
leged children also were begotten; the fifth,
with a named person during the years 1001
and 1902; and the sixth, with a named per-
son during the years 1903 and 1904. The
answer set up a general denial, a special
defense that if the acts of adultery alleged
were found to have been committed, they
were done with the knowledge of the com-
plainant, who had condoned them, and,
moreover, that the action was prescribed.
After full hearing the court of first in-
stance found that the defendant had been
•0 li. ed.
guilty of adultery with the person named
in the complaint in the first period during
the years from 1868 until 1900, but that
there was no proof of any such adultery
having been committed by him with the per-
son named for the ten years preceding the
suit, that is, from 1900 to 1910. The court
also found that it was established that the
defendant had adulterous relations with
the person named during the second period,
that is, from 1889 to 1890, and that from
such relations, as alleged, a daughter named
Maria was begotten, but that the relations
had ceased years before the bringing of the
suit, since the woman named had died long
before at a period fixed approximately as
the time of the beginning of the American
occupation of the islands. The court also
found that it had been proved that acts of
adultery had been committed with the per-
son named during the fourth period, that is,
in 1892 and some time thereafter, but it
also affirmatively found that all relations
between the defendant and the person named
in this period had ceased prior to 1900. It
was moreover expressly found that there
was no proof whatever offered concerning
any of the other acts of adultery charged in
the complaint.
Concerning the first period, the court
found th&t the proof left no doubt that the
complainant at an early date became aware
of the adulterous relations to which that
[296] period related, and although she did
so, continued her marital relations with her
husband and had condoned his infidelity.
Indeed, it was found that forgiveness by the
wife was clearly established from the fact
that during the ten years which had elapsed
before the bringing of the suit and after
the illicit relations had ceased, the children
begotten of such relation were brought into
the household with the consent of the wife,
and lived as part of the common family.
Applying the law to this condition it was
held that the condonement or forgiveness
was a complete bar to the suit based upon
the acts which had been thus forgiven. So
far as concerned the acts of infidelity com-
mitted during the second and fourth peri-|
ods, as stated, although it was found that
there was no direct proof that the com-
plainant knew of such wrongs when com-
mitted, nevertheless it was held that there
was no ground for awarding relief because
of such acts irrespective of the question of
forgiveness or condonement resulting from
the long continuance of the marital rela-
tions after such acts had been committed,
for the reason that the complainant had
expressly declared in testifjring that she
solely asked relief because of the acts em-
braced in the first period, and none other,—
a situation which, it was held, brought the
case directly within the control of Laws V
29*
206-299
6UPBSME OOUBT OF THB UNITED STATES.
Oct. Tbm,
•ad 2, title 9, Partida 4, expressly confin-
ing the right to complain of adultery by
one pf the parties to a marriage to the
injured party. And this conclusion was
sustained by pointing out that although
the complaint for divorce had been sworn
to by the complainant, she had in her testi-
mony admitted that she knew nothing of
the particular acts embraced in the periods
in question, and intended only to sue for
those described in the first period; thus, as
to such other acts, giving rise to the impli-
cation that their averment was the result
of the instigation of some person not au-
thorized to act, probably impelled by some
interest direct or indirect in the liquidation
of [297] the community property whidi
would follow if the prayer ot the complain-
ant had been granted.
In a careful opinion the court below, re-
viewing the action of the court of first in-
stance, adopted and reafiirmed in every
substantial particular the facts found by
that court, and also agreed with the legal
conclusions which the court had applied to
the facts by it found. In applying the law
to the facts it was pointed out that the con-
trolling law was to be found not in the
Civil Code, but in the Partidas, and it was
held that as by provisions of the Partidas
which were cited it was expressly provided
that condonement or forgiveness of acts of
adultery excluded the subsequent right to
relief based upon the fact that they had
been committed, it followed from the con-
clusive proof of forgivenesff resulting from
the facts found that no error had been com-
mitted in rejecting the demand for a di-
vorce. In stating the reasons which led it
to this conclusion the mind of the court was
principally directed to the acts of infidelity
found to have been committed during the
first period and the acts by which forgive-
ness as to them had been Indubitably estab-
lished. But the court, considering the facts
found as to the other two periods, without
deciding that such acts of infidelity had not
been condoned, expressly held that the neces-
sary result of the provisions of the Partidas
which had been applied by the lower court,
exclusively confining the right to relief for
acts of Uifldelity to the injured spouse,
plainly justified the court of first instance
in its ruling that the disclaimer of all right
to relief as to any acts but those which the
complaint alleged were committed during
the first period excluded all right to recover
for any but those acts, to which the con-
troversy thus became confined.
The first two of the nine assignments, of
error question the finding and ruling of the
court concerning the acts committed during
the first period and their condonement or
forgiveness. The third and fourth
29«
the correctness [298] of the ooaclusion con-
cerning the second and fourth periods and
the ruling of the court relating to them,
based on the disclaimer made by the com-
plainant in her testimony of any right
to relief on account of them; and as cog-
nate to this subject, the fifth complains
of the action of the court in analyzing
the motives which prompted the inclusion
in the suit of causes upon which the com-
plainant asserted she did not rely for
relief, for the purpose of bringing the
case within the rule laid down in Laws 1
and 2, title 9, Partida 4, which both courts
applied. The remainder In general terms
but assert error committed in the findings
and in the law which was applied to them
in deciding the cause.
Although the arguments pressed at bar
to sustain these assignments apparently en-
large them, in substance they add nothing
to them, but simply reiterate in changed
and more minute forms of statement the
groiuds of error asserted in the assign-
ments. Under these conditions it is ap-
parent that all the errors relied upon*
whether embraced in the assignments or
pressed in the argument, considered in their
essence, only dispute the correctness of the
facts found by both the courts below, and
but challenge the accuracy of the principles
of the local law which were applied to the
facts for the purpose of deciding the cause.
Under these circumstances, without noticing
more in detail either the assignments or the
arguments supporting them, we content our-
selves with saying that we are of the opin-
ion, after examining and weighing them all,
that they are without merit for the follow-
ing reasons: (a) Because in so far as
they dispute the concurrent findings of fact
of both the courts below, they entirely fail
to give rise to that conviction of clear error
which must be entertained in order to au-
thorize a reversal of the findings (Texas ft
P. R. Co. V. Railroad Commission, 282 U.
8. 338, 58 L. ed. 630, 34 Sup. Ct. Rep. 438;
Gilson V. United States, 234 U. S. 380, 383,
384, 58 L. ed. 1361, 1362, 1363, 34 Sup. Ct.
Rep. 778) ; and (b) be<Miuse in so far as
they challenge the correctness of the [299]
application which the courts made of the
local law to the facts in deciding the cause,
they are totally deficient in that persuasive
strength which it is essential they should
possess in order to produce the conviction
that clear error was committed by the court
below, and thus lead us to depart from the
principle by which we follow and sustain
the local law as applied by the court below
unless we are constrained to the contrary
by a sense of clear error committed (Ker
k Co. V. Couden, 223 U. S. 268, 279, 56 L.
ed. 432, 435, 32 Sup. Ct Rep. 284; Santa
239 U. S.
1915.
MACKENZIE v. HARK
S90
Fe C. IL Co. V. Friday, 232 U. S. 604, 700,
68 L. ed. 802, 803, 34 Sup. Ct. Rep. 468;
Nadal v. May, 233 U. S. 447, 454, 58 L. ed.
1040, 1041, 34 Sup. Ct. Uep. Uilj.
Affirmed.
ETHEL C. MACKENZIE, Plff. In Err.,
V.
JOHN P. HARE, Thomas V. Cater, Charlea
L. Queen, William McDevitt, and John
Herman, as and C'Omposins the Board of
Election Commissioners of the City and
County of San Francisco.
(See 8. C. Reporter's ed. 209-312.)
Oltisens ^ expatriation ^ marriage with
foreigner.
1. No exception in favor of an Ameri-
ean-bom woman who marries a resident
foreigner and remains within the jurisdic-
tion of the United States may be read into
the provisions of the act of March 2, 1907
(S4 Stat, at L. 1228, chap. 2534, Comp.
SUt 1913, § 3960), that "any American
woman who marries a foreigner shall take
the nationality of her husband/' but may
resume her American citizenship at the
termination of the marital relation, if with-
in the United States, by her continuing to
reside therein, and, if abroad, by returning
to the United States, or by registering as
SB American citizen.
[For other csRet. see Citlsens, IV., in Digest
Sap. Ct. 1908.J
CItlxens — expatriation — marriage with
foreigner.
2. Congress could validly enact the pro-
visions of the act of March 2, 1907 (34
Stat at L. 1228, chap. 2534, Comp. Stat.
1913, § 3960), under which an American-
bom woman who marries a foreigner for-
feits her citizenship, even though she re-
mains within the jurisdiction of the United
SUtes.
[For other cases, see Cltlzent, IV., in Digest
8op. Ct. 1908.1
[No. 79.]
Argued November 11 and 12, 1915. De-
cided December 6, 1915.
IN ERROR to the Supreme Court of the
State of California to review a decree
which denied a writ of mandamus to com-
pel election officers to register as an elector
ta American-bom woman who had married
a subject of Great Britain. Affirmed.
See same case below, 165 Cal. 776,
LJtJL1916D, 127, 134 Pac. 713, Ann. Cas.
1916B, 261.
The facts are stated in the opinion.
NoTTB.— On the eflfect of marriage on wife's
itatus as an alien — sec note to Comitis ▼.
Parkerson, 22 L.R.A. 148.
•0 L. ed.
Mr. Milton T. Ulteii argued the cause
and filed a brief for plaintiff in error :
It was never the intention of Congress
to deprive an American-bom woman remain-
ing within the jurisdiction of the United
States of her citizenship by reason of her
marriage to a resident foreigner.
Re Wildberger, 214 Fed. 508; Re Levy,
1 Bart. Elec. Cas. 41.
Plaintiff, having been bom within the
United States, and subject to the jurisdic-
tion thereof, became a citizen by the fact
of her birth.
7 Cyc 137; Inglis v. Sailor's Snug Har-
bor, 3 Pet. 99, 7 L. ed. 617; United States
v. Wong Kim Ark, 169 U. S. 649, 42 L. ed.
890, 18 Sup. Ct. Rep. 456.
Sex is not involved in the question of
citizenship.
Abbott's Law Diet; Minor v. Ilappcrsett,
21 WalL 162, 22 L. ed. 627; SUte ex rel.
Campbell v. Howard County Ct. 90 Mo. 593,
2 S. W. 788; Ritchie v. People, 156 111. 98,
29 L.R.A. 79, 46 Am. St. Rep. 315, 40 N.
E. 454; Re Lockwood, 154 U. S. 116, 38 L.
ed. 929, 14 Sup. Ct. Rep. 1082; Slianks v.
Dupont, 3 Pet. 242, 7 L. ed. 666.
For definitions of expatriation, see:
Webster's Universal Diet. ; Bouvier's Law
Diet.; Standard Diet.; 14 Ops. Atty. Gen.
295; Morse, Citizenship, p. 114, f 82;
Black's Law Diet.
The prevalent doctrine of this country
always has been that a citizen has the right
to expatriate himself.
Brannon, 14th Amend, p. 21; Re Look
Tin Sing, 21 Fed. 907; 9 Ops. Atty. Gen.
62; 9 Fed. Stat. Anno. pp. 390, 391.
Expatriation is a natural and inherent
right.
7 Cyc 144; Browne v. Dexter, 66 Cal.
39, 4 Pac. 913.
Actual removal is a necessary element
of expatriation.
6 Am. & Eng. Enc. Law, 31; 14 Ops.
Atty. Gen. 295; 9 Ops. Atty. Gen. 62;
Stoughton V. Taylor (Juando ▼. Taylor)
2 Paine, 652, Fed. Cas. No. 7,558; 7 Cyc.
145, 156; Hardy v. De Leon, 5 Tex. 211.
As to the nature of allegiance, see —
Standard Diet.; Inglis v. Sailors' Snug
Harbor, 8 Pet. 99, 7 L. ed. 617; Burkett v.
McCarty, 10 Bush, 758; Ainslie v. Martin,
9 Mass. 454.
Granting, for the purpose of the argu-
ment, that certain authority over expatria-
tion resides in Congress by implication,
nevertheless such implied power is not un-
limited. It is not an arbitrary and despot
ie power under which Congress may take
from a citizen his rights of citizenship with-
out that citizen's consent.
Scott v. Sandford, 19 How. 393, 448, 15
L. ed. 691, 719; Burkett v. McCarty, 10
^^1
SUPREME COURT OF THE UNITED STATES.
Oct. TkBM,
BttBh, 758; Ainslie ▼. Martin, 9 Mass. 464;
Re Look Tin Sing, 21 Fed. 905; Osborn
V. Bank of United States, 9 Wheat 738,
825, 6 L. ed. 204, 225; United States ▼.
Wong Kim Ark, 169 U. S. 703, 42 L. ed.
910, 18 Sup. Ct. Rep. 456.
Marriage in itself is not an act of expa-
triation.
Comitis ▼. Parkerson, 22 hJSLA. 148, 66
Fed. 556; Wallenburg y. Missouri P. R.
Co. 159 Fed. 217; Brannon, 14th Amend,
p. 28; 15 Ops. Atty. Gen. 599; 10 Ops.
Atty. Gen. 321 ; Ruckgaber * . Moore, 104
Fed. 047; Shanks v. Dupont, 3 Pet. 242,
7 L. ed. 666; Beck ▼. McGillU, 9 Barb. 35.
It is true that the English and Con-
tinental courts have held for a long time
to the doctrine of the merging of the iden-
tity of the wife with that of her husband.
Under such a doctrine the wife was held
not to have a citizenship separate and apart
from that of her husband. In contempla-
tion of law, she and her husband were one,
and that one was the husband. This doc-
trine, however, in so far as it involves the
political rights of a woman, has never been
the law in the United SUtes.
Shanks v. Dupont, supra; Comitis v.
Parkerson, 22 L.RJ^. 150, note.
The doctrine of the merging of identity
is obsolete, and the cases decided upon such
reasoning are no longer authority.
Williamson v. Osenson, 232 U. S. 610,
58 L. ed. 758, 34 Sup. Ct. Rep. 442.
No constitutional rights or privileges of
an American citizen can be abridged or
taken away by international law.
Scott V. Sandford, 19 How. 393, 461, 15
U ed. 691, 720.
It is the duty of courts to be watchful
for the constitutional rights of the citizen,
and against any stealthy encroachments
thereon. Their motto should be obsia prin-
oifHts.
Boyd V. United States, 116 U. S. 616,
635, 20 L. ed. 746, 752, 6 Sup. Ct. Rep. 624.
Mr. Thomas V. Cater argued the cause,
and, with Messrs. Percy V. Long and Wil-
liam McDevitt, filed a brief for defendants
in error:
The residence of the wife is immaterial.
It is the act of marriage which, ipso fctcto,
causes her to take the nationality of the
alien husband.
Pequignot v. Detroit, 16 Fed. 211; Kane
V. McCarthy, 63 N. C. 299; Headman ▼.
Rose, 63 Ga. 458; Ware v. Wisner, 50 Fed.
310; Kelly v. Owen, 7 Wall. 496, 19 L. ed.
283; Dorsey ▼. Brigham, 177 111. 256, 42
L.R.A. 800, 69 Am. St. Rep. 228, 52 N. E.
303; Hopkins v. Fachant, 65 C. C. A. 1, 130
Fed. 842; United States v. Kellar, 13 Fed.
82, note; Leonard ▼. Grant, 5 Fed. 13; I
298
Halsey v. Beer, 52 Hun, 366, 5 N. T. Supp.
334; People v. Newell, 38 Hun, 79; Gumm
V. Hubbard, 97 Mo. 321, 10 Am. St. Rep.
312, 11 S. W. 61; Kircher ▼. Murray, 54
Fed. 621; Re Nicola, 106 C. C. A. 464, 184
Fed. 322; 14 Ops. Atty. Gen. 402; United
States ex rel. Gendering v. Williams, 173
Fed. 626; Re Rionda, 164 Fed. 368; United
States V. Cohen, 29 L.RJ^.(N.S.) 829, 103
C. C. A. 28, 179 Fed. 834.
The citizenship of a native-bom citizen
may be lost or taken away by hi& own acta.
United SUtes v. Wong Kim Ark, 169 U.
S. 649, 42 L. ed. 890, 18 Sup. Ct. Rep.
456.
The 14th Amendment did not alter the
status of free white persons, as previously
existing.
VirginU v. Rives, 100 U. S. 313, 25 U
ed. 667, 3 Am. Crim. Rep. 524; United
SUtes V. Wong Kim Ark, 169 U. S^ 674,
42 L. ed. 899, 18 Sup. Ct. Rep. 456.
All writers on inUmational law or on
the subject of citizenship treat the power
of the sovereignty over the subject of ex-
patriation as fundamenUl.
3 Moore, International Law, p. 712; Van
Dyne, Citizenship, p. 272; 2 Wharton, In-
ternational Law Dig. § 176, p. 360; Shanks
V. Dupont, 3 Pet. 242, 7 L. ed. 666; Mur-
ray V. The Charming Betsy, 2 Crandi, 120,
2 L. ed. 226; Talbot v. Janson, 3 Dall. 154,
1 L. ed. 549; Murray v. M'Carty, 2 Muni.
396; Comitis v. Parkerson, 22 L.R.A. 148,
66 Fed. 556; Pequignot v. Detroit, 16 Fed.
211.
All writers on the law of citizenship treat
marriage as a mode of expatriation.
Cockbum, Nationality, p. 24; Leonard v.
Grant, 5 Fed. 11; Kelly v. Owen, 7 WalL
496, 19 L. ed. 283; Van Dyne, Naturalixap
tion, 1907 ed. pp. 227, 333-357; Van Dyne,
Citizenship (see head ''Expatriation*') ; 2
Wharton, International Law Dig. § 186, p.
420; 3 Moore's Digest of International Law,
p. 448; Webster, Citizenship, pp. 297, 298;
Brannon, 14th Amend, p. 28; Bouv^, Ex-
clusion of Aliens, pp. 389, 300.
Transfer of allegiance by marriage resU
upon international principles, apart from
the idea of emigration.
United SUtes ex rel. Gendering ▼. Wil-
liams, 173 Fed. 626; Pequignot ▼. Detroit,
16 Fed. 211.
The act of 1907, as to § 3, was adopted
by Congress for the express purpose of
announcing iU express confirmation of the
doctrine that marriage of a native woman
to a foreigner should operate in the man-
ner decided in the case of Pequignot v. De-
troit, regardless of the re8i(!ence of the
wife.
The transfer of allegiance of a woman
239 U. 8.
1915. MACKENZIE ▼. HARE. 306-307
marrying a foreigner rests upon interna- riage the plaintiff and her husband have
tional law or comity; and the case of lived together as husband and wife. On
Shanks ▼. Dupont, 3 Pet. 242, 7 L. ed. January 22, 1913, she applied to the de-
686, does not hold that the removal of the fendants to be registerdl as a voter. She
wife is necessary. was then over the age of twenty-one years
A woman by n;arriage to a foreigner takes and had resided in San Francisco for more
the same nationality as the husband in all than ninety days. Registration was re-
the countries of the world, and the effect fused to her on the ground that, by reason
if the same in the country of her nativity of her marriage to Gordon Mackensie, a
•I elsewhere, if her former sovereign con- subject of Great Britain, she thereupon
Mats. took the nationality of her husband and
Moore's Dijest of International Law, ceased to be a citizen of the United States."
n^ra, | 412; Pequignot ▼. Detroit, supra; [165 Gal. 778, L.R.A.1916D, 127, 134 Pae.
United SUtes ex rel. Gendering v. WU- 713, Ann. Gas. 1915B, 261.]
liams, 173 Fed. 627, 106 C. G. A. 464, 184 Plaintiff in error claims a right as a voter
Fed. 322; Halsey ▼. Beer, 62 Hun, 366, 6 of the state under its Gonstitution and the
K. T. Supp. 334 ; People v. Newell, 38 Hun, Gonstitution of the United SUtes.
79; Kane v. McGarthy, 63 N. G. 299; The Gonstitution of the sUte gives the
Headman v. Rose, 63 Ga. 468; Ware ▼. Wis- privilege of suffrage to "every native
ser, 60 Fed. 310. citizen of the United States," and it is eon-
!nie act of 1007 is in clear and specific tended that under the Gonstitution of
terms, and mandatory in its expression, and the United States every person bom in the
intended the transfer of allegiance to be United States is a citizen thereof. The
uamediate upon marriage; and did not con- latter must be conceded, and if [307] plain-
template leaving open any question as to the tiff has not lost her citizenship by her mar-
nature of residence abroad. The act has riage, she has the qualification of a voter
been so interpreted by the State Depart- prescribed by the Gonstitution of the state
ment at Washington, and also by the Fed- of Galifornia. The question then is. Did
eral courts. she cease to be a citizen by her marriage?
See letter of Huntington Wilson, Acting On March 2, 1907, that is, prior to the
Secretary of State, to Mr. Kent, March 13, marriage of plaintiff in error, Gongress
1912; Re Rionda, 164 Fed. 368; United enacted a statute the 3d section of which
States V. Gohen, 29 L.RJl.(N.S.) 829, 103 provides: "That any American woman who
C G. A. 28, 179 Fed. 836. marries a foreigner shall take the nation-
alitv of her husband. At the termination
Mr. Justice McKenna delivered the opin- ^f ^he marital relation she may resume her
ton of the court: ,...«. American citizenship, if abroad, by register-
Mandamus prosecuted by plsintiff in er- .^^ ..\.« a«,««'«-« «:♦:—« .„:*u:J. -.„
...^ .xj*jx >ng as an American citizen within one year
ror as petitioner against defendants in .*:, i * xu tt 'i. j o-l x w
J 4. •! r»«^M-. with a consul ox the United States, or bv
•rror, respondents, as and composing [306] . ... -^ - X tT*^ o? *
the board of election commissioners of the f,"*""l"!« ^^Z"*",^^ "? *^^^"i,*'^. ^^^' ^'^
city and county of San Francisco, to compel 'J '?»^1?« '^, **^« U"?*«f ^tates at the
her registration as a qualified voter of the ^™»natio" of the marital relation, by con-
city and county, in the appropriate pre- *l!!>"o'"*u^ 'ofi/ o^""'""; .^M.^^^.Hh
dnct therein ^^^®' ^***P- ^^^^' ^™P- ^*^**- ^®^^» * ^^^^1
An alternative writ was issued, but a Plaintiff contends that "such legislation,
permiinent writ was denied upon demurrer '^ intended to apply to her, is beyond the
to the petition. authority of Gongress."
The facts are not in dispute and are sUted ^ Q^f tion» of construction and power are,
by Mr. Justice Shaw, who delivered the ^^'^f'^^^l P;e»«'»*«d. Upon the construction
opinion of the court, as follows: f ^^« *^,* *V" "'^^''^ * f* '* ^^"^ u""* ^^"^ ^"
"The pUintiff was born and ever since ^"*»**^ to deprive an Amencan-bom worn-
has resided in the sUte of Galifornia. On ff'.fTcfl''* """.* v"" *^^J^"^/<^*">^ o' ^«
August 14, 1909, being then a resident and ^J"'^^ ^^^^.* ^^ ^*^' citizenship by reason
dtisen of this state and of the United <^' ^«' marriage to a resident foreigner.
States, she was Uwfully married to Gordon The contention is attempted to be based
Mackenzie, a native and subject of the wpon the hUtory of the act and upon the
kingdom of Great BriUin. He had resided report of the committee, upon which, it is
in Galifornia prior to that time, still re- "aid. the legislation was enacted. Both his-
sides here^ and it is his intention to make tory and report show, it is asserted, "that
this state his permanent residence. He has the intention of Gongress was solely to Ic^is-
not become naturalized as a citizen of the late concerning the status of citizens abroad
United States and it does not appear that and the questions arising by reason there-
he intends to do so. Ever since their mar- of."
•0 li. ed. %%^
807-4110
SUPREME OOURT OF THE UNITED STATES.
Oct. TkBM,
Does the act invite or permit such assist-
ance? Its declaration is general, "that any
American woman who marries a foreigner
shall take the natfbnality of her husband.*'
There is no limitation of place; there is no
limitation of effect, the marital relation
having been constituted and continuing.
For its termination there is provision, and
explicit provision. At its termination she
may resume [308] her American citizenship
if in the United States by simply remaining
therein ; if shroad, by returning to the Unit-
ed States, or, within one year, registering as
an American citizen. The act is therefore
explicit and circumstantiaL It would tran-
scend judicial power to insert limitations
or conditions upon disputable considerations
of reasons which impelled the law, or of con-
ditions to which it might be conjectured it
was addressed and intended to accom-
modate.
Whatever was said in the debates on the
bill (M- in the reports concerning it, preced-
ing its enactment or during its enactment,
must give way to its language; or, rather,
all the reasons that induced its enactment
and all of its purposes must be supposed to
be satisfied and expressed by its words, and
it makes no difference that in discussion
some may have been given more prominence
than others, seemed more urgent and insist-
ent than others, presented the mischief in-
tended to be remedied more conspicuously
than others.
The application of the law thus being
determined, we pass to a consideration of
its validity.
An earnest argument Is presented to
demonstrate its invalidity. Its basis is that
the citizenship of plaintiff was an incident
to her birth in the United States, and, under
the Constitution and laws of the United
States, iit became a right, privilege, and im-
munity which could not be taken away from
her except as a punishment for crime or by
her voluntary expatriation.
The argument to support the contention
and the argument to oppose it take a wide
range through the principles of the com-
mon law and international law and their
development and change. Both plaintiff and
defendants agree that under tiie common
law originally allegiance was immutable.
They do not agree as to when the rigidity
of the principle was relaxed. Plaintiff in
error contests the proposition which she at-
tributes to defendants in error, [300] "that
the doctrine of perpetual allegiance main-
tained by England was accepted by the Unit-
ed States," but contends "that the prevalent
doctrine of this country always has been
that a citizoi had a right to expatriate
himself," and dtes cases to show that ex-
patriation is a natural and inherent right.
soo
Whether this was originally the law of
this country or became such by inevitable
evolution it is not important to inquire.
The first view has certainly high authority
for its support. In Shanks v. Dupont, S
Pet. 242, 246, 7 L. ed. 666, 668, Mr. Justice
Story, delivering the judgment of the courts
said: "The general doctrine is, that no
persons can by any act of their own, with-
out the consent of the government, put off
their allegiance, and become aliens." And
Kent, in his Commentaries, after a his-
torical review of the principle and discus-
sion in the Federal courts, declares that
"the better opinion would seem to be^ that
a citizen cannot renounce his allegiance to
the United States without the permission of
government to be .declared by law ; and that»
as there is no existing legislative regula-
tion on the case, the rule of the English
common law remains unaltered." 2 Kent»
14th ed. 40. The deduction would seem to
have been repelled by the naturalization
laws, and it was certainly opposed to ex-
ecutive opinion; and, we may say, popular
sentiment, so determined that it sought its
vindication by war. Further discussion
would lead us far afield, and, besides, would
only have historical interest.^ The con-
dition which Kent suggested has occurred;
there is a legislative declaration. In 1868
Congress explicitly declared the right of
expatriation to have been and to be the law.
And the declaration was in effect said to be
the dictate of necessity. [310] The act re-
cites that emigrants have been received and
invested with citizenship in recognition of
the principle of the right of expatriation
and that there should be a prompt and final
disavowal of the claim "that such American
citizens, with their descendants, are subjects
of foreign states." Rev. Stat. § 1099, Comp.
Stat. 1913, § 3056.
But plaintiff says, "Expatriation is evi-
denced only by emigration, coupled with
other acts indicating an intenti<m to trans-
fer one's allegiance." And all the acts must
be voluntary, "the result of a fixed de-
termination to change the domicil and per-
manently reside elsewhere, as well as to
throw off the former allegiance, and become
a citizen or subject of a foreign power."
The right and the condition of its exer-
cise being thus defined, it is said that the
authority of Congress is limited to giving
its consent. This is variously declared and
emphasized. "No act of the legislature,"
plaintiff says, "'can denationalize a citizen
iThe course of opinion and decision is
set forth in Van Dyne's "Citizenship of the
United States," and in his "Naturalization
in the United SUtes." Moore's Digest of
International Law. See also Cockbum on
Nationality.
239 U. S.
1915.
ESSEX ▼. NEW ENGLAND TELEO. 00.
8ia-31S
withoat his conearrence/ " citing Burkett
y. McCarty, 10 Bush, 768. "And the fov-
ereign cannot discharge a subject from his
allegiance against his consent except by
disfranchisement as a punishment for
crime," citing Ainslie v. Martin, 9 Mass.
454. "The Constitution does not authorize
Congress to enlarge or abridge the rights
of citizens," citing Osbom ▼. Bank of United
SUtes, 0 Wheat 738, 6 L. ed. 204. "The
power of naturalization vested in Congress
by the Constitution is a power to confer
citizenship, not a power to take it away.
. • • The 14th Amendment, while it
leaves the power where it was before, in
Congress, to regulate naturalization, has
conferred no authority upon Congress to re-
strict the effect of birth declared by the
Constitution to constitute a sufficient and
complete right to citizenship;" citing Unit-
ed SUtes V. Wong Kim Ark, 169 U. S. at
p. 703, 42 L. ed. 910, 18 Sup. Ct. Rep. 456.
It will thus be seen that plaintiff's con-
tention is in exact antagonism to the stat-
ute. Only volunti^ry expatriation, [311] as
she defines it, can devest a woman of her
citizenship, she declares; the statute pro-
fides that, by marriage with a foreigner, she
takes his nationality.
It would make this opinion very volumi-
nous to consider in detail the argument and
the cases urged in support of or in attack
upon the opposing conditions. Their foun-
dation principles, we may assume, are
known. The identity of husband and wife
is an ancient principle of our jurispru-
dence. It was neither accidental nor arbi-
trary, and worked in many instances for
her protection. There has been, it is true,
much relaxation of it, but in its retention
as in its origin it is determined by their
intimate relation and unity of interests,
and this relation and unity may make it
of public concern in many instances to
merge their identity, and give dominance to
the husband. It has purpose, if not neces-
sity, in purely domestic policy ; it has great-
er purpose, and, it may be, necessity, in
international policy. And this was the
dictate of the act in controversy. Having
this purpose, has it not the sanction of
power?
Plaintiff contends, as we have seen, that it
has not, and bases her contention upon the
absence of an express gift of power. But
there may be powers implied, necessary or
incidental to the expressed powers. AAs a
government, the United States is invested
with all the attributes of sovereignty. As
it has the character of nationality it has
the powers of nationality, especially those
whidi concern its relations and intercourse
with other countries. We should hesitate
long before limiting or embarrassing such
powers.^ Bat monition is not necessary in
•0 li. ed.
the present case. There need be no dissent
from the cases cited by plaintiff; there need
be no assertion of very extensive power over
the right of citizenship or of the impera-
tive imposition of conditions upon it. It
may be conceded that a change of citizen-
ship cannot be arbitrarily imposed, that is,
imposed without the ooncurrenoe of the
citizen. The law in controversy does not
have that feature. It deals with [312] a
condition voluntarily entered into, with no-
tice of the consequences. We concur with
counsel that citizenship is of tangible worth,
and we sympathize with plaintiff in her de-
sire to retain it and in her earnest assertion
of it. But there is involved more than
personal considerations. As we have
seen, the legislation was urged by
conditions of national moment. And this
is an answer to the apprehension of
counsel that our construction of the legis-
lation will make every act, though lawful,
as marriage, of course, is, a renunciation
of citizenship. The marriage of an Ameri-
can woman with a foreigner has conse-
quences of like kind, may involve national
complications of like kind, as her physical
expatriation may involve. Therefore, as
long as the relation lasts, it is made tanta-
mount to expatriation. This is no arbi-
trary exercise of government. It is one
which, regarding the international aspects,
judicial opinion has taken for granted
would not only be valid, but demanded. It
is the conception of the legislation under
review that such an act may bring the
government into embarrassments, and, it
may be, into controversies. It is as volun-
tary and distinctive as expatriation and its
consequence must be considered as elected.
Judgment affirmed.
Mr. Justice McReynolds is of opinion
that this court is without jurisdiction, and
that therefore this writ of error should be
dismissed.
[313] TOWN OF ESSEX^ Appt.,
V.
NEW ENGLAND TELEGRAPH COM-
PANY OF MASSACHUSETTS.
(See 8. C. Reporter's ed. 313-323.)
Commerce ^ power of Congress ^ tele-
graph company.
1. Congress did not exceed its powers
under the commerce clause of the Federal
Constitution by enacting the act of July
Note. — On the power of Congress to regu-
late commerce — see notes to State ex rel.
Corwin v. Indiana k 0. Oil, Gas & Min. Co.
6 L.R.A. 679 ; Bullard v. Northern P. R. Co.
11 L.R.A. 246; Re Wilson, 12 L.RJ^. 624;
Gibbons v. Ogden, 6 L. ed. U. S. 23; Brown
V. Maryland, 6 L. ed. U. S. 678; Qlouc««tA.T
Ferry Co. t. PenntyWixiVi^ ^ \u «^. V>.
SUPREME COURT OF THE UNITED STATES.
Oct. Tknc,
24, 1866 (14 But at L. 221, ehap. 2S0,
Rev. Stat § 6263, Comp. 8Ut. 1913, § 10,-
072), giving telegraph companies accepting
its provisions the right, secured against
arbitrary interference by the state, to con-
struct, maintain, and operate their lines
over and along any of the military or post
roads of the United States.
(For other cases, tee Commerce, III. o, te Dl-
gttt Sap. Ct 1908.]
Telegraphs — state Interference ^ es-
toppel.
2. A telegraph company which has ac-
cepted the provisions of the act of July
24, 1866 (H Stat, at L. 221, chap. 230,
Rev. SUt. § 6263, Comp. Stat. 1913, §
10,072), giving the riffht to construct,
maintain, and operate telegraph lines over
and along any of the military or post loads
of the United States, is protected by that
act against exclusion or other arbitrarv in-
terference by a town whose authorities,
with full knowledge of all the circum-
stances, permitted the location and con-
struction of such lines along the highways,
and for more than twenty vears acquiesced
in their maintenance and operation, al-
tiiough the telegraph company was never
granted the formal antecedent permit con-
templated by Mass. Pub. Stat. chap. 109,
I 3, ''specifying where the posts may be
located, the kind of posts, and the height
at which and the places where the wires
may nm."
(For other cases, sec Telegraphs, in Digest 8ap.
Ct. 1908.]
Injunction — against Interference with
telegraph company — extent of relief.
3. An injunction against interference
by municipal authorities with the lines of
a telegraph company which has accepted the
provisions of the act of July 24, 1866 (14
Stat, at L. 221, chap. 230, Rev. Stat.
§ 5263, Comp. Stat. 1013, § 10.072), giving
the right to construct, maintain, and oper-
ate telegraph lines over and along any of
the military or post roads of the United
States, sliould provide that nothing therein
contained be construed to prevent such au-
thorities from subjecting the location and
operation of the company's lines to reason-
able regulations.
[For other cases, see Injunction, II. b, in Di-
gest Sup. Ct 1908.]
[No. 66.]
Argued and submitted November 6, 1916.
Decided Deoember 6, 1915.
APPEAL from the District Court of the
United SUtes for the District of Massa-
chusetts to review a decree enjoining mu-
nicipal interference with the lines of a
telegraph company. Modified by subject-
ing the location and operation of such lines
to reasonable regulations, and as so modi-
fied affirmed.
See same case below, 206 Fed. 926.
The facts are stated in the opinion.
Mr. Romney Spring submitted the cause
for appellant. Messrs. William G. Thomp-
son and George £. Mears were on the brief:
The telegraph company had acquired no
right to occupy the streets by lapse of time
or by the acquiescence of any officials.
R^. V. United Kingdom Electric Teleg.
Co. 9 Cox, C. C. 174, 3 Fost. & F. 73, 2
Best. & S. 647, 31 L. J. Mag. Cas. N. 6.
166, 8 Jur. N. S. 1153, 6 L. T. N. S. 378,
10 Week. Kep. 538, 12 Eng. Rul. Cas. 562;
3 Dill. Mun. Corp. 5th ed. § 1220, and cases
cited; Com. ▼. King, 13 Met. 115; Com.
V. Upton, 6 Gray, 473 ; Young v. Yarmouth,
9 Gray, 386; Morton v. Moore, 15 Gray,
576; Com. v. Boston, 97 Mass. 555; Banks
V. Highland Street R. Co. 136 Mass. 485;
New Salem v. Eagle Mill. Co. 138 Mass. 8;
Hynes v. Brewer, 194 Mass. 435, 9 L.R.A.
(N.S.) 598, 80 N. E. 503.
The act of Congress of July 24, 1866,
confers no positive right upon any tele-
graph company which has complied with
its provisions to occupy public highways
in a state without first obtaining the per-
mission of the state as the owner of the
soil, or of the public easement therein,
whether the consent of the state or of tlie
subordinate tribunal to which the state has
delegated its power is unreasonably with-
held or not.
Pensacola Teleg. Co. v. Western U. Teleg.
Co. 96 U. S. 1, 24 L. ed. 708; Western U.
Tel^. Co. V. Atty. Gen. 125 U. S. 530, 31
L. ed. 790, 8 Sup. Ct. Rep. 961; St. Louis
V. Western U. Teleg. Co. 148 U. S. 92. 100,
101, 37 L. ed'. 380, 383, 384, 13 Sup. Ct.
Rep. 485; St. Louis v. Western U. Teleg.
Co. 149 U. 8. 465, 471, 37 L. ed. 810, 814,
13 Sup. Ct. Rep. 990; PosUI Teleg. Cable
Co. V. Baltimore, 156 U. S. 210, 30 L. ed.
399, 15 Sup. Ct. Rep. 356; Western U.
6. 158; Ratterman ▼. Western U. Teleg.
Co. 32 L. ed. U. S. 229; Harmon v. Chicago,
37 L. ed. U. S. 216; and Cleveland, C. C.
ft St. L. R. Co. V. Backus, 38 L. ed. U. 6.
1041.
On right of telegraph and telephone com-
panies to use streets — see note to St. Louis
V. Western U. Teleg. Co. 37 L. ed. U. 6.
810.
As to injunction to restrain acts of pub-
lic officers — see note to Mississippi v. John-
son, 18 L. ed. U. S. 437.
S02
On exclusion of forei^ express company
as an interference with interstate commerce
— see note to Kindel v. Beck k P. Litho-
graphing Co. 24 L.RJL 312.
On state law affecting telegraphs as regu-
lation of interstate commerce — see note to
Western U. Teleg. Co. v. Commercial MilL
Co. 36 L.R.A.(N.S.) 220.
As to right to place overhead wires in
hiffhway without grant or permission from
Sublic authority — see note to State ex reL
tartlett v. Weber, 43 L.RJ^.(N.S.) 1033.
289 U. S.
1915.
ESSEX T. NEW ENGLAND TELBQ. 00.
Tel^. Co. ▼. Pennsylvania R. Co. 195 U.
8. 640, 49 L. ed. 312, 25 Sup. Ct. Rep.
133, 1 Ann. Caa. 517; Western U. Teleg.
Co. ▼. Ann Arbor R. Co. 178 U. S. 230,
44 L. ed. 1052, 20 Sup. Ct. Rep. 867;
Western U. Teleg. Co. t. Richmond, 224
U. & 160, 167-169, CtO L- ed. 710, 715,
716, 32 Sup. Ct. Rep. 449; Banks v. High-
land Street R. Co. 136 Mass. 485; PosUl
Teleg. Cable Co. ▼. Qiicopee, 207 Mass. 343,
32 L.K.A.(N.S.) 997, 93 N. E. 927; Pos-
tal Teleg. Cable Co. ▼. Newport, 25 Ky.
L. Rep. 635, 76 S. W. 159; American Rapid
Tdeg. Co. ▼. Hess, 125 N. Y. 641, 13
ULA. 454, 21 Am. St. Rep. 764, 26 N. E.
919; Toledo ▼. Western U. Teleg. Co. 52
L.R.A. 730, 46 C. C. A. Ill, 107 Fed. 12;
Pomona v. Sunset Teleph. ft Teleg. Co.
224 U. 8. 830, 56 L. ed. 788, 32 Sup. Ct
Rep. 477.
The cases in which the effect of this
statute, or of the interstate commerce clause
of the Constitution, upon the right of the
state to impose upon telegraph companies
a license fee or tax as a condition of grant-
ing to them the privilege of doing business
within the state, has been oonsidered, are
not in point. The case at bar does not
involve in any way the question whether
a state can require a party, whether a
telegraph company or anybody else, to take
Richmond ▼. Southern Bell Teleph. &
Teleg. Co. 174 U. S. 761, 763, 43 L. ed.
1162, 1163, 19 Sup. Ct. Rep. 778; St. Louis
y. Western U. Teleg. Co. 148 U. S. 92, 100,
37 L. ed. 380, 383, 13 Sup. Ct. Rep. 485;
W^tern U. Teleg. Co. v. Pennsylvania R.
Co. 195 U. S. 540, 559, 49 L. ed. 312, 318,
25 Sup. Ct. Rep. 133, 1 Ann. Cas. 517;
Western U. Teleg. Co. ▼. Richmond, 224
U. S. 160, 165, 56 L. ed. 710, 714, 32 Sup.
Ct. Rep. 449, 178 Fed. 312; Ex parte Con-
way, 48 Fed. 77; Re Matthews, 122 Fed.
258; Newcastle ▼. Postal Teleg. Cable Co.
152 Fed. 572; Mackay Teleg. & Q^ble Co. v.
Texarkana, 199 Fed. 348.
From public streets and highways which
are post roads, and which are not owned by
a state, or municipality therein, but in
which the fee is owned by abutters, subject
to a public easement, including the occu-
pation of said streets and highways by a
telegraph line, a telegraph company which
has accepted the provisions and obligations
of the act of July 24, 1886, and whose
line does not interfere with ordinary travel
on such streets and highways, cannot be
absolutely excluded by any state or munic-
ipality, and in said streets and highways
such a company has, under said act of
Congress, a right to construct and main-
tain its line of telegraph, subject, of course.
out a license for the privilege of carrying r*^ proper state and municipal regulation
on interstate oommerce, or whether a state
can tax the property of a corporation not
situated within the state. Cases turning
upon this sort of question are:
Western U. Teleg. Co. t. Texas, 105 U. S.
460, 26 L. ed. 1067; Western U. Teleg. Co.
V. Pendleton, 122 U. 8. 347, 80 Lw ed. 1187,
1 Inters. Com. Rep. 306, 7 Sup. Ct. Rep.
1126; Leloup v. Mobile, 127 U. S. 640, 32
L. ed. 311, 2 Inters. Com. Rep. 134, 8
Sup. Ct. Rep. 1380; PosUl Teleg. Cable
Co. T. Adams, 155 U. 8. 688, 39 L. ed.
311, 6 Inters. Com. Rep. 1, 15 Sup. Ct.
Rep. 268, 3C0; Western U. Teleg. Co. ▼.
Taggart, 163 U. 8. 1, 41 L. ed. 49, 16 Sup.
Ct Rep. 1054; Western U. Teleg. Co. ▼.
New Hope^ 187 U. 8. 419, 47 L. ed. 240,
23 Sup. Ct. Rep. 204; Atlantic & P. Teleg.
Co. V. Philadelphia, 190 U. 8. 160, 47 L.
ed. 995, 23 Sup. Ct. Rep. 817; Western U.
Teleg. Co. v. Missouri, 190 U. 8. 412, 47
L. ed. 1116, 23 Sup. Ct Rep. 730; Western
U. Teleg. Co. ▼. Kansas, 216 U. 8. 1, 54 L.
ed. 355, 30 Sup. Ct. Rep. 190; Williams
V. Talladega, 226 U. 8. 404, 57 L. ed. 275,
33 Sup. Ct. Rep. 116.
Mr. G. Philip Wardner argued the
cause and filed a brief for appellee:
The streets upon which the appellee's
line of telegraph is maintained are post
roads.
•0 li. ed.
and supervision.
Pensacola Teleg. Co. t. Western U. Teleg.
Co. 96 U. a 1, 24 L. ed. 708; Western
U. Teleg. Co. ▼. Texas, 105 U. 8. 460, 26
L. ed. 1067; Western U. Teleg. Co. v. Pendle-
ton, 122 U. S. 347, 30 L. ed. 1187, 1
Inters. Com. Rep. 306, 7 Sup. Ct. Rep. 1126;
Ratterman ▼. Western U. Teleg. Co. 127
U. 8. 411, 32 L. ed. 229, 2 Inters. Com.
Rep. 59, 8 Sup. Ct. Rep. 1127; Western U.
Tel^. Co. V. Alabama Bd. of Assessment
(Western U. Teleg. Co. v. Seay) 132 U.
8. 472, 33 L. ed. 409, 2 Inters. Com. Rep.
726, 10 Sup. Ct. Rep. 161; Western U.
Teleg. Co. v. James, 162 U. 8. 650, 40 L.
ed. 1105, 16 Sup. Ct Rep. 934; Western
U. Teleg. Co. ▼. Atty. Gen. 125 U. 8. 530,
31 L. ed. 790, 8 Sup. Ct Rep. 961; Pem-
bina ConsoL Silver Min. k Mill. Co. v.
Pennsylvania, 125 U. 8. 181, 31 L. ed.
650, 2 Inters. Com. Rep. 24, 8 Sup. Ct. Rep.
737; Western U. Teleg. Co. v. Pennsylvania
R. Co. 195 U. 8. 540, 49 L. ed. 312, 25 Sup.
Ct. Rep. 133, 1 Ann. Cas. 517; Leloup v.
Mobile, 127 U. 8. 640, 32 L. ed. 311, 2
Inters. Com. Rep. 134, 8 Sup. Ct Rep. 1380;
St Louis V. Western U. Teleg. Co. 39 Fed.
59, 148 U. 8. 92, 37 L. ed. 380, 13 Sup. Ct.
Rep. 485, 149 U. 8. 465, 37 L. ed. 810, 13
Sup. Ct. R^. 990; St Louis ▼. Western U.
Tekg. Co. 68 Fed. 68; Postal Teleg. Cable
SO*"
91«, SIT BUI>K£ME COUBT OF THE UMITBD aTATES. Oat. Tku(,
Co. T. CharlMton, 1S3 U. S. 692, 3S L. ed. STI, 189 Fad. Ij Cook, Corp. Tth od. pp.
871, 4 latori. Com. E«p. 637, 14 Sup. Ct. 3880, 3886.
R«p. 1094 i Pofltal Teleg. Cable Co. T. Ad^roi,
105 U. 8. eSB, 096, 39 L. ed. 311, 310, E Mr. Jiutiec HcReynoUB dellTered tha
Inters. Com. Bep. 1, 16 Sup. Ct. Rep. S6S, opinion of the court:
360; United Sttttet t. Union P. R. Co. 160 Appciiut wm enjoined hj the daera«
U. 8. .t, 40 L. ed. 319, 16 Sup. Ct Rep. below from interfering with the operation
ISO; Sonthem Bell Teteph. i. Tcleg. Co. v. ot linei owned b^ the appellea eompwij.
Richmond, 76 Fed. 858, 28 C. C. A. 669, The controTertf aroae uudar the Mt of Con-
42 U. 8. App. 686, 85 Fed. 19, 174 U. 8. grew approved Jnlj 24, 1866 (14 SUt. kt
761, 43 L. ed. 1162, 19 Sup. Ct. Rep. 778; L. 221, chap. 230, Rev. BUt. || 6283 et
Western U. Teleg. Co. t. Ann Arbor R. Co. aeq. Comp. 6Ut. 1913, | 10,072), which
178 U. B. 239, 44 L. ed. 1062, 20 Sup. Ct. declarea that eompaniea accepting it* pro-
Rep. 887; Western U. Te1i!g. Co. t. Missouri, Tisioos "shall have the right to eonatruct,
190 U. B. 412, 47 L. ed. 1116, S3 Sup. Ct. maintain, and operate linea of telegrapli
Rep. 730; Western U. Teleg. Co. t. Rich *'« wd »long ■■>; of tha mlli-
moDd, 178 Fed. 310. 224 U. 8. 180, 96 L. tary or poet roads of the United BUt«,"
ed. 710, 32 Sup. Ct. Rep. 44B; Western U. provided they do not interfere with ordinary
Tel^. Co. V. New Hope, 187 U. S. 419, 47 travel. Appellant Insists that, aa oonatroMl
L. ed. 240, 23 Sup. Ct. Rep. 204; Atlantic ai"! H>plied below, the statute tranaoenda
Je p. Teleg. Co. v. Philadelphia, 190 V. B. t>>" powers grsnted to Congresa by the Qwi-
160, 47 L. ed. 095, 23 Sup. Ct. Rep. 817; stitutlon; and there ia auffieioit aabatanea
PosUl Teleg. Cable Co. v. New Hope, 192 •" «» cl»™ to give na juriadictioa.
U. B. 55, 48 L. ed. 338, 24 Sup. CL Rep. Th" »PP«llee "m incorporated under th*
204; Poatel Teleg. Cable Co. v. Taylor, 192 ••'■ "' Massachusetts, April 7, 1884. Im-
O. 8. 64, 48 L. ed. 342, 24 Sup. Ct E«p. mediately thereafter it flied with the Po«t-
208; Philadelphia t. Western U. Teleg. Co. "^^ General a written aceeptuios of tha
40 Fed. 616, 81 Fed. 948. 82 Fed. 797, 32 restrictions and obllgstiona prescribed by
C. C. A. 246. 60 V. 8. App. 398, 89 Fed. «»• «* ot July 24, 1866, and oonatraetM
464; PhiUdelphia v. Atlantic & P. Teleg. ''""■ <»' "'«■ •*'""« "P"" !•'•• *«™* *•"
Co. 48 C. C. A. 325, 102 Fed. 254 109 Fed commonwealth of Maisaohuaetta and pw
T. Cumberland Teleph. i ticutariy along certain streete and loada fat
the town ot Essex. Theae have heen c
Nashville v. Cumberland Teleph.
Tcl(«. Co. 76 C. C. A. 297, 146 Fed. 607; , ,
Memphis T. PosUl Tel^. Cable Co. 139 tiauoiitAj operated in connection, on tha
Fed. 707, 76 C. C. A. 292, 145 Fed. 602; =«*, with cables reaching foreign countriea.
Western U. Teleg. Co. v. American U. Teleg. "<*. on the weet, with wires leading to all
Co. 9 Biss. 72, Fed. C.s. No. 17.444; Wert- P*"^ "' *^« """"" '"' ' '*'f« ^T'J^^
em D. Teleg. Co. v. New York, 3 L.R.A. i»'« conrtjtuted an important put of the
449, 2 InteM. Com. Rep. 633, 38 Fed. 562; P*"*"' Tel-^graph k Cable system: «id
Ex parte Conway, 48 Frf. 77; Postal Teleg. ""V J*""? P'" ?LT' "'""^' *" Intenrtate
Cable Co. V. Southern R. Co. 89 Fed. 190; "* '"ff«? tSlT] mee-ges, many being
Michigan Teleph. Co. v. Charlotte, 93 Fe*; *'"!"|"'**^, If ^* ^"''^ ^^^ "*"
11; WichiU V. Old Colony Trust Co. 66 "'^^^ r^Ut o„,.
C. C. A. 19, 132 Fed. 641; Cans y. Ohio T»« «I«*'«Uy Pe'''"*"* P«"l«»« «»» «"
PosUI Teleg. Cable Co. 72 C. C. A. 186. 140 M'"*^"***'^ »-• «'• '"f *" ~T.f!l'-
Fed nfl2- MacbaT T»l«r A PjibU pJ, . incorporated for transmitting faiteUigenee
?^rS^L "b9 Fel M7 Posts' ^elel' "^ "'^t^'^"?. ^ '<"^« '^"''"K "84 and long
ieiariam*, i™ "^"i- '5L' ™"' ,f '^«; thereafter, appear in Public SUtute^ «4»p-
Cable Co. v. Chtcopee, 207 Mass. 341, 32 ,„, ,._ ' ^rr „ .„, „!,.„,„ oT ■ jo
L.RA.(N.8.) 097, 93 N. E. B27; Western ^'."!' "A„t "' *""' °^'P**' "' ' *'■
a follows:
"Each company may under the prorlai^na
,, 'n > ,.« «. n T. >.» «. ., "t the loliowing section construct lines of
D. Teleg. Co. v, Superior Ct 10 Cal. App.
688, 115 Pac. 1091, IIOO; Carver v. Stete,
T^fi^/- "f '"•."?/""■ '''■'"^"- -yV«dT«biic-^«d;:;;L-"a;y'":"^
1004, 17 Ann. Cas. 718. ^/^ withm the commonwealth, by the ere*
The telegraph line, being a quasi public ti(,„ „( the poste. piers, abutmenU, and
property, operated to give Berrlce to the jther Bxturee (except bridges) neeeasai?
public and to the United SUtes, under the to sustain the wires of ite lines; but shall
poat-road act of Congreaa, will not be not incommode the public use of highway*
treated the same as a prlrste trespasser, or public roads, nor endanger or intermpt
public interests being Involved, and the con- the navigation of any waters."
tinuity of telegraph service for the public "The mayor and aldermen or s«4ectmeB
being necessary. if a place through which the linea of a cotn*
Union P. R. Co. T. Greeley, 110 C. C. A. pany are to pass sliall give the company a
'M 181 U. S.
1915.
K88EX ▼. NEW ENGLAND TELEG. CO.
817-320
writing specifTing where the poets may be
located, the kind of poeta» and the height at
which, and the placet where, the wires may
nm. After the erection of the lines, having
first given the company or its agents op-
portunity to be heard, they may direct any
alteration in the location or erection of
the posts, piers, or abutments, and in the
height of the wires. Such specifications
and decisions shall be recorded in the rec-
ords of the city or town."
"No enjoyment by a person or corpora-
^n for any length of time of the privi-
lege of having or maintaining telegraph
posts, wires, or apparatus in, upon, over or
attadied to any building or land of other
persons, shall give a legal right to- the soo-
tinued enjoyment of such easement or raise
any presumption of a grant thereof."
**The selectmen of a town may empowelr
citizens of Massachusetts to establish and
maintain, in such town, posts, wires and
other apparatus for telegraphic and tele-
phonic [318] communication, in conformity
with the provisions of chapter 100.^'
In Pierce v. Drew, 136 Mass. 76, 76, 77,
49 Am. Rep. 7 (1883), the supreme court
said of chapter 109:
"That it was the intent of the sUtute
to grant to those corporations, formed un-
der the general incorporation laws, for the
purpose of transmitting intelligence by
electricity, the right to construct lines of
telegraph upon and along highways and
public roads upon the locations assigned to
them by the officers of the municipality
wherein such ways are situate, cannot be
doubted. . • •
"No right is given these companies to
use the highways at their own pleasure, or
to compel in all cases, as the plaintiff sug-
gests, locations therein to be given them
by the municipal authorities. The second
section of the statute is to be construed
with the third section, and shows an inten-
ti<m that a legally constituted board shall
determine not only where, but whether,
there can be a location which shall not in-
commode the ordinary public ways, with
full power to revise its own doings, and
to correct any errors which the practical
working of the arrangements may reveal."
The evidence warrants the conclusion that
in 1884 appellee made written application
to the Essex selectmen for a right of way,
but their records disclose nothing concern-
ing the matter. Directly thereafter, with-
out opposition, the existing lines were
constructed along 4 miles of the town's high-
ways. During many succeeding years no
objection appears to have been made US
their operation, and, until a short time
before this suit was begun, their presence
was acquiesced in. Certainly no sort of
•0 li. ed.
aiBrmatlTo action was taken to interfere
with them; and there is evidence indicating
that half the poles were relocated under
direction of a selectman, about 1895, when
the electric railway was laid down.
In 1902, repairs being needed, the select-
men were petitioned [319] to locate the
poles and license their future maintenance.
This request was not granted. In 1905, re-
pairs having become imperative another
petition for a location was presented. This
was refused; officers of the town then de-
nied appellee's right to use the highways,
and threatened to prevent repairs, by force
if necessary, and to take action against fu-
ture operation of the lines within its limits.
Thereupon, July 31, 1905 (twenty-one
years after original constructicm), the tele-
graph company, relying on the act of 1860,
commenced this proceeding in the district
court, seeking an injunction against threat-
ened interference. By a temporary order
granted September 5, 1905, the town, its
officers, agents, and employees, were "en-
joined and restrained, until the further or-
der of this court, from interfering in any
manner whatsoever with the complainant's
line of telegraph in said defendant town, or
with the location or relocation by the com-
plainant on the roads and highways now
occupied by its said line of telegraph in
said defendant town, or with the resetting
of the poles of said line in said town by
the complainant, or with the complainant's
making such repairs and changes as are
necessary to put said line in a condition
of safety and efficiency, or from in any man-
ner causing or allowing any other person
or corporation to interfere with or stop
such location, relocation, resetting, repairs,
or changes by the complainant."
Answering, September 26, 1905, appellant
claimed the lines were constructed without
any authority whatsoever, and denied tlie
company's right, under the act of 18G6 or
otherwise, to maintain or operate them. A
cross bill was also presented, alleging un-
lawful use of the ways, and praying that
the company be restrained therefrom until
a franchise shall be obtained as provided
by state laws.
No motion was ever made to dissolve the
temporary injunction. The cause coming
on for final hearing upon pleadings and
proofs in 1013 (twenty-nine years subse-
quent [320] to construction), the court
held that the act of 1866 protected the lines
from interference, and rendered a decree dis-
missing the cross bill, sustaining the orig-
inal bill, and awarding a perpetual injunc-
tion substantially in the language of the
preliminary order dated September 5, 1905.
Appellant now maintains that the court
below erroneously construed and applied
20 soft
-320-322
SUPREME COURT OF THE UNITED STATES.
Oct. Tebu,
the act of 1866, and undertook to bestow
upon the telegraph company rights in its
highways beyond the power of Congress to
grant; that its ways are occupied without
lawful authority, either state or Federal;
that such occupation constitutes a continu-
ing nuisance; and that the original bill
should have been dismissed, leaving the
town free to act as seemed advisable.
Many opinions of this court establish be-
yond question the validity and point out
the general purposes of the act of 1866.
*'It substantially declares, in the interest
of commerce and the convenient transmis-
sion of intelligence from place to place by
the government of the United States and its
citizens, that the erection of telegraph
lines shall, so far as state interference is
concerned, be free to all who will submit
to the conditions imposed." Pensacola
Teleg. Co. v. Western U. Teleg. Co. 96 U.
S. 1, 11, 24 L. ed. 708, 711. A sUte has
no authority to say that a telegraph com-
pany may not operate lines constructed
over postal routes within its borders
Western U. Teleg. Co. v. Atty. Gen. 126 U.
S. 530, 554, 31 L. ed. 790, 795, 8 Sup. Ct.
Rep. 961. A city may not arbitrarily ex-
clude the wires and poles of a telegraph
company from its streets, but may impose
reasonable restrictions and regulations. St.
Louis T. Western U. Teleg. Co. 148 U. 8.
92, 105, 37 L. ed. 380, 385, 13 Sup. Ct. Rep.
485; Western U. Teleg. Co. v. Richmond,
224 U. S. 160, 170, 56 L. ed. 710, 716, 32
Sup. Ct. Rep. 449. See also Western U.
Teleg. Co. v. Pennsylvania R. Co. 196 U.
S. 640, 49 L. ed. 312, 25 Sup. Ct. Rep. 133,
1 Ann. Cas. 617; United States v. Union P.
R. Co. 160 U. S. 1, 44, 40 L. ed. 319, 334,
16 Sup. Ct. Rep. 190; Postal Teleg. Cable
Co. V. Chicopee, 207 Mass. 341, 343, 32
L.R.A.(N.8.) 997, 93 N. E. 927.
If the official records of the selectmen
disclosed that, [321] responding to the pe-
tition of 1884, they gave a writing "specify-
ing where the posts may be located, the kind
of posts, and the height at which and the
places where the wires may run," and if
thereafter the telegraph company had
placed poles and strung wires accordingly,
plainly, we think, under the opinions cited
above, such lines would be protected by the
act of 1866 against exclusion or other arbi-
trary action by the town.
With full knowledge of all circumstances,
the town authorities permitted the location
and construction of lines along the high-
ways, and for more than twenty years ac-
quiesced in their maintenance and opera-
tion. The company has expended large
sums of money and perfected a great in-
strumentality of interstate and foreign
commerce, in the continued operation of
which both the general public and the goT-
emment have an important interest. Un-
der similar circumstances it has been de-
termined, upon broad principles of equity,
that an owner of land, occupied by a raU-
road without his previous consent, will be
regarded as having acquiesced therein and
be estopped from maintaining either tres-
pass or ejectment (Roberts v. Northern P.
E. Co. 158 U. S. 1, 11, 39 L. ed. 873, 877,
16 Sup. Ct. Rep. 766; Northern P. R. Co. v.
Smith, 171 U. S. 260, 271, 275, 43 L. ed.
157, 161, 163, 18 Sup. Ct. Rep. 794); and
like reasons may demand similar protection
to the possession of a telegraph company.
A municipal corporation, under exceptional
circumstances, may be held to have waived
its rights or to have estopped itself. Ran-
dolph County V. Post, 93 U. S. 602, 613,
23 L. ed. 957, 959; Boone County v. Bur-
lington & M. River R. Co. 13U U. S. 684,
693, 35 L. ed. 319, 322, 11 Sup. Ct. Rep.
687; City R. Co. v. Citizens' Street K. Co.
166 U. S. 657, 566, 41 L. ed. 1114, 1117, 17
Sup. Ct. Rep. 653; Louisville v. Cumber-
land Teleph. & Teleg. Co. 224 U. e. 649, 662,
56 L. ed. 934, 940, 32 Sup. Ct. Rep. 672;
Dill. Mun. Corp. 6th ed. §§ 1194, 1227.
The streets and highways of Essex are
undoubtedly post roads within the meaning
of the act of 1866. Western U. Teleg. Co.
V. Richmond, 224 U. S. 160, 170, 56 L. ed.
710, 716, 32 Sup. Ct. Rep. 449, act of March
1, 1884, chap. 9, 23 Stat, at L. 3, Comp.
Stat. 1913, § 7467. What rights— if any—
in respect of them [322] were immediately
secured by the telegraph company through
acceptance of that act, we need not consider.
It entered upon those now occupied notori-
ously, peacefully, and without objection, and
has developed there a necessary means of
communication. The statute must be con-
strued and applied in recognition of exist-
ing conditions and with a view to effectuate
the purposes for which it was enacted.
Among the latter, as stated in Pensacola
Teleg. Co. v. Western U. Teleg. Co. and
Western U. Teleg. Co. v. Atty. Gen. supra,
are the extension and protection of instru-
mentalities essential to commercial inter-
course and the efficient conduct of govern-
mental affairs. In the circumstances,
appellee has acquired the same Federal right
to maintain and operate its poles and wirea
along the ways in question that would have
attached had the selectmen granted a formal
antecedent permit. Commercial transac-
tions and the orderly conduct of govern-
mental business have come to depend on the
daily use of these lines, and certainly would
be as seriously hindered by their severance
as if they had been constructed after an of-
2S9 U. S.
1915.
PROVO BENCH CANAL k I. 00. v. TANNER,
822-324
lldml location^ There it no Buggestion that
ordinary travel ia being interfered with;
and, having long acquiesced in appellee's
peaceful possession, the town may not now
rely upon the claim that this was obtained
without compliance with prescribed regula-
tions, and treat the company as a naked
trespasser. Its rights under the Federal
law would be violated by the threatened
arbitrary interference.
The further claim is here made for the
first time that, in any event, the injunction
is too broad. In Western U. Teleg. Co. v.
Richmond, supra, it was pointed out that
the act of 1866 does not deprive a munici-
pality of the right to subject telegraph com-
panies occupying its streets to reasonable
regulations. The injunction as granted
might interfere with action altogether prop-
er, and the decree below will be modified by
the addition of the words, [323] "Provided,
that nothing herein shall be so construed as
to prevent the board of selectmen or the
town of Essex from subjecting the location
and operation of the company's lines to rea-
sonable regulations." With this modifica-
tion, it is affirmed. The costs will be
charged to appellant.
Modified and affirmed.
PROVO BENCH CANAL & IRRIGATION
COMPANY and the North Union Irriga-
tion Company, Plffs. in Err.,
V.
CALEB TANNER.
(See S. 0. Reporter's ed. 323-325.)
Error to state oonrt ^ scope of review
— findings of fact.
The contention that property was
taken without due process of law by an
award of nominal damages only in the pro-
ceedings by which a landowner, under UtiUi
Comp. Laws 1907, § 1288x22, secured the
right to enlarge irrigation canals already
constructed by others, presents no question
which the Federal Supreme Court may con-
sider on writ of error to a state court,
where the latter court, although expressly
recognizing the right of recovery for any
substantial damage, found as a matter of
fact that none had been shown by the proof,
and that consequently only a nominal sum
could be recovered.
[For other cnses, see Appeal and Error, 2175-
2208, in Digest Sup. Ct. 1008.]
[No. 72.]
Argued and submitted November 11, 1015.
Decided December 6, 1015.
Note. — ^As to review of questions of fact
OB writ of error to a state court — see Smiley
V. Kansas, 49 L. ed. U. 6. 546.
•0 L. ed.
IN ERROR to the Supreme Court of the
State of Utah to review a judgment
which affirmed a judgment of the District
Court for the Fourth Judicial District- of
that state, awarding nominal damages only
in a proceeding by a landowner to obtain
permission to enlarge irrigation canals al-
ready constructed by others. Affirmed.
See same case below, 40 Utah, 105, 121
Pa^. 584.
Mr. J. W. N. Whltecotton argued the
cause and filed a brief for plaintiffs in er-
ror.
Mr. Charles S. Varlan submitted the
cause for defendant in error. Mr. D. D.
Houtz was on the brief.
Memorandum opinion by Mr. Justice Mc-
Reynolds, by direction of the court:
Plaintiffs in error, having acquired ease-
ments and rights of way over certain
lands in the state of Utah, constructed
[324] thereon connecting canals to convey
water intended for irrigation purposes. Re-
lying upon the provisions of a statute of
that state (Comp. Laws 1007, § 1288x22),
copied in the margin,! the validity of which
is not contested (Clark v. Nash, 108 U. S.
361, 40 L. ed. 1085, 25 Sup. Ct. Rep. 676, 4
Ann. Cas. 1171), defendant in error Tanner
instituted the original proceeding, praying
for permission to increase the carrying ca-
pacity of the canals, that the character of
the enlargement and resulting damages be
determined, and that, upon payment of the
sum assessed and completion of the enlarge-
ment, he be decreed the right to flow water
therein. Answers were filed, proof taken,
and, the cause having been duly heard by
the court without a jury, a decree was en-
tered granting the relief prayed under care-
fully specified conditions, among them being
a perpetual bond to protect against future
injuries. Each of the owners was awarded
$1 as damages. Upon appeal the action of
iWhen any person, corporation, or asso-
ciation desires to convey water for irriga-
tion or for aay other beneficial purpose, and
there is a canal or ditch already construct-
ed that can be enlarged to convev the re-
quired quantity of water, then such person,
corporation, or association, or the owner or
owners of the land through which a new
canal or ditch would have to be constructed
to convey the quantity of water necessary,
shall have the right to enlarge said canal
or ditch already constructed, by compen-
sating the owner of the canal or ditch to
be enlarged, for the damage, if any, caused
by said enlargement; provided, uiat said
enlargement shall . be done at any time
from the 1st day of October to the 1st day
of March, or at any other time that may
be agreed upon with the owner of said canu
or ditcJu
324, 326
SUPREME COURT OF THE UNITED STATES.
Oct. Tboc,
the trial court was approved by the su-
preme court. 40 Utah, 105, 121 Pac. 584.
Counsel for plaintiffs in error asserts
here that, "after all, the whole question is,
was there a taking of the property of the
canal owners;" and, answering this in the
affirmative, he maintains that the judgment
below deprives them thereof without due
process of law. But the state court, ex-
pressly recognizing the right of recovery* for
[325] any substantial damage, found, as
matter of fact, that none had been shown by
the proof, and consequently only a nominal
sum could be recovered. It declared that
"nothing is made to appear upon which a
finding or judgment for substantial damages
can rest" — ^''there is no direct evidence upon
this point whatever," and cited Chicago, B.
ft Q. R. Co. V. Chicago, 166 U. S. 226, 41
L. ed. 079, 17 Sup. Ct. Rep. 581, in support
of the award.
The record discloses no error which we
can consider (Waters-Pierce Oil Co. v.
Texas, 212 U. S. 86, 07, 53 L. ed. 417, 424,
20 Sup. Ct. Rep. 220), and the judgment
is affirmed.
L. LAWRENCE WEBER, Appt,
V.
FREDERICK S. FREED, Deputy Collector
of United States Customs in Charge of
the Port of Newark, N. J.
(See S. C. Reporter's ed. 325-330.)
Injunction ~ to enforce entry of prize
fight films — sufficiency of bill.
The contention that Congress exceed-
ed its power under the commerce clause of
the Federal Constitution by enacting the
provisions of the act of July 31, 1012 (37
Stat, at L. 240, chap. 263, Comp. Stat. 1013,
§ 10,416), § 1, making it unlawful to bring
into or to cause to be brought into the
United States from abroad, any film or
other pictorial representation of any prize
fight which is designed to be used, or may
be used, for purposes of public exhibition,
is so obviously devoid of merit that a bill
which, on the ground of the unconstitution-
ality of such statute, sought to compel the
collector of customs to permit the entry of
Note. — On the power of Congress to regu-
late commerce — see notes to State ex rel.
Corwin v. Indiana & O. Oil & Min. Co. 6
L.R.A. 570; Bullard v. Northern P. R. Co.
11 L.RwA. 246; Re Wilson, 12 L.R.A. 624;
Gibbons v. Ogden, 6 L. ed. U. S. 23; Brovnn
▼. Maryland, 6 L. ed. U. S. 678; Gloucester
Ferry Co. v. Pennsylvania, 20 L. ed. U. S.
158; Ratterman v. Western U. Teleg. Co.
32 L. ed. U. S. 220; Harmon v. Chicago, 37
L. ed. U. S. 216 ; and Cleveland. C. C. & St.
L. R. Co. V. Backus, 38 L. ed. U. S. 1041.
SOS
photographic films of a foreign prise flght»
states no cause of action, and u properly
dismissed by a Federal district court.
[For other cases, see Injnnction, 200-217:
Commerce, III. b, in Digest Sap. Ct 1008.]
[No. 644.]
Argued December 1, 1015. Decided Decem-
ber 13, 1015.
APPEAL from the District Court of the
United States for the District of New
Jersey to review a decree dismissing a bill
in a suit to compel the collector of customs
to permit the entry into the United States
of photographic films of a foreign prize
fight. Affirmed.
The facts are stated in the opinion.
Mr. Benjamin F. Spellman argued the
cause, and, with Mr. Charles A. Towne,
filed a brief for appellant:
The police power was never delegated to
the general government.
Passenger Cases, 7 How. 470, 12 L. ed.
780; Cooley, Const. Lim. 574; Keller v.
United States, 213 U. S. 144, 53 L. ed.
738, 20 Sup. Ct. Rep. 470, 16 Ann. Cas.
1066.
Photographic-film positives, imported by
the owner, designed to be used for purposes
of public exhibition by him, and not for
purposes of traffic, sale, or commerce, are
not articles of commerce.
Definitions of Commerce: Century Diet.;
Standard Diet.; Webster's Diet.; Gibbons
V. Ogden, 0 Wheat. 1, 180, 100, 6 L. ed.
23, 68, 60; Adair v. United States, 208 U.
S. 161, 177, 52 L. ed. 436, 443, 28 Sup. Ct.
Rep. 277, 13 Ann. Cas. 764; Hannibal & St.
J. R. Co. V. Husen, 05 U. S. 465, 470, 24
L. ed. 527, 520; Lottery Case (Champion v.
Ames) 188 U. S. 321, 352, 353, 47 L. ed.
402, 400, 500, 23 Sup. Ct. Rep. 321, 13 Am.
Crim. Rep. 561; Mobile Coimty v. Kimball,
102 U. S. 601, 702, 26 L. ed. 238, 241;
Kidd V. Pearson, 128 U. S. 1, 20, 32 L. ed.
346, 340, 2 Inters. Com. Rep. 232, 0 Sup.
Ct. Rep. 6; Second Employers' Liability
Cases (Mondou v. New York, N. H. ft EL
R. Co.) 223 U. S. 1, 46, 56 L. ed. 327, 344,
38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 160,
1 N. C. C. A. 875 ; Paul v. Virginia, 8 WalL
168, 10 L. ed. 357; Hooper v. California,
155 U. S. 648, 30 L. ed. 207, 5 Inters. Com.
Rep. 610, 15 Sup. Ct. Rep. 207; New York
L. Ins. Co. V. Cravens, 178 U. S. 380, 44
L. ed. 1116, 20 Sup. Ct. Rep. 062.
The public exhibition of motion picturea
is not commerce; and hence the photo*
graphic-film positives referred to in this
case, being designed to be used for purposes
of such exhibitions, are not instrumentali-
ties of commerce.
SSS U. 8.
WEBER T. FBEED.
Pwpla T. Klaw, BS Viae. 72, 106 N. T. I
Bi9p. Ul i MetropoUUn Opera Co. t. Hun- '
■mtcin, IBS App. Div. <W1, 147 N. Y.
B^p. 638.
The ooort dccliaed to hettr AHiatuit At-
tanM7 Guieral Wftiren, who filed « brlaf
ler appellee:
Th« power of Congren to regulate eom-
■terce with foreign oationi includei the
power to prohibit. The contention of ap-
pellant that this power la limited to the
eidiuion from the United States of prop-
tftjr Intended for tale ii clearlj foreGloaed
tij tha ileciaiona of thla oonrt, and thia court
iriU daellne juriidiction of the caie, ai in
rabatance ao wholly wanting in merit ■■ to
be frlToloua and wholly unaubstantial.
Brolan t. United States, 236 V. 8. !16,
218, 221, 6S L. ed. 644, 647, 649, 36 Bup.
CL Bop. £86; Bnttfleld v. Btranahan, 192
n. 8. 470, 4B L. ed. 626, 24 Sup. Ct Bep.
MS; The Abbj Dodge, 223 U. S. 160, 176,
HL.ed.S90, 393, 32 Sup. Ct. Rep. 310.
Commerce, as used In the Conititution,
eomprdiends traffic, navigation, and every
9«eies of commercial intercourse or trade.
Interstate Commerce CommiBaion v. Brim-
tan, 164 U. B. 447, 470, 38 L. ed. 1047,
1064, 4 Intara. Com. Bep. 646, 14 Sup. Ct.
Bep. 1126; Lottery Case (Champion t.
Ames) IBS U. 8. 321, 362, 47 L. ed. 4S2,
49S, 23 Sup. CL Bep. 321, 13 Am. Crim.
Bep. 661.
The commerce clause operates to-day upon
modea of interstate commerce unlcnown to
the fathers, and It will operate with equal
forte upon any new modes of such com-
OBve which the future may derelop.
Re Defaa, 168 U. B. 664, 691, 89 L. ed.
1092, 1106, 16 Sup. Ct Rep. 90O.
Films are aiticlaa Buaeaptible of pur<
diaae and sale, and are commonly bought
and aold. Th^ are, therefore, articles of
trade, and the subject of large interstate
transactions.
United SUtea t. Motion Picture Patenta
Co. 226 Fed. 803; Mutual Film Corp. t.
Indoatrial Commlaalon, 836 U. 8. 830, 69
L. ed. 658, 36 Sup. Ct. Rep. 387; Mutual
Film Co. T. Induatrlal CommisaEon, 836
V. S. 248, 69 L. ed. 661, 36 Sup. Ct Rep.
393.
The white slave law, so far as it is dl-
Metad against trauaportation of women
for nae as a source of profit, la analogoua
to the statute at bar ; for in both caaea the
object of the transportation Is the use of
the thing or person transported, aa capi-
tal from which income Is to t>e derived,
rather than aa an object of sale.
Hoke T. United SUtes, 887 U. B. 308,
67 L. ed. 623, 43 L.R-A.(N.B.) 906, S3 Sup.
CL Rep. 881, Ann. Caa. 1913E, 906,
«0 !•.««.
The appellant contends that there eaa
he no commerce unless there are two or
more parties involved, — that commerce can-
not exiat where there is hut one party. This
broad statement ia, of course, not true
either in tact or in law.
Pipe Line Caaea (United SUtes *. Ohio
Oil Co.) 234 U. 8. 648, 68 L. ed. 1460, 34
Bup. Ct. Bep. 966; Covington k. C. Bridge
Co. T. Kentucky, 164 U. 8. 204, 38 L.
ed. 968, 4 Inters. Com. Rep. 649, 14 Sup.
Ct. Rep. 1087.
The power of Congress to exclude ar-
ticles from foreign trade la plenary, aa.
stated In the Brolan Case; but even if not
■0 plenary, its power is at least aufficlent
to forbid the introduction of prize-fight
flima, to keep them out of the channels of
commerce on the ground that, in the opin-
ion of Congreaa, they ahould be thus de-
clared to he "illicit articles— articles whidi
the law seeks to keep out of eommerce
. . . articles which are outlaws of com-
merce," in the words of thia court in Hipo-
lite Egg Co. V. United SUtes, 280 U. S.
46, 64, 67, S8, 66 L. ed. 364, 306, 36S, 31
Sup. Ct Rep. 664.
Even if Congrcai be not expressly vested
with a national police power, and even if
Congress eipresily intended to legislate to
supply deficienciea in the exercise of policv
power by certain states, yet It is vested
with express and plenary power to regulate
commerce with foreign nationa, and may eo
regulate, without superviBlon of its im-
pelling reasons by this court. Congreaa
alone is judge of the necesaity of excluaion.
from foreign trade.
United SUtea v. Marigold, 9 How. 660,
666, 667, 13 L. ed. 267, 260, 201.
While the eommerce clause empowered
Congreaa to r^ulate commerce, not publio-
morals, the second may, nevertheless, be In-
cidenUI to the first. It ia no objection t»
the validity of Congreiaional legialatioir
that an article prohibited by Congress in
the legitimate exercise of its commerce
power might also be prohibited by the atatea
in the exercise of their police power.
Hoke T. United SUtes. 227 U. S. 308,
320. 823, 67 L. ed. 623, 626, 627, 43 L.R.A.
(N.S.) 900, 33 Sup. Ct Rep. 881, Aon. Caa.
1013E, 906; Edward B. Whitney, Latest De-
velopment of the Interstate Commerce Pow-
er, in 1 Mich. L. Rev. p. 616 (1903).
Hie appellant's contuition that thla court
can inquire into the reasons impelling Con-
gress to exclude prise-fight films is unaup-
portable,
Doyle V. ContinenUl Ina. Co. 94 U. 8.
636, 641, 24 L. ed. 148, 161; Lottery Caaa
(Champion v. Ames) 188 U. S. 321, 47 L.
ed. 492, 23 Sup. Ct. Rep. 321, 13 Am. Crim.
Rep. 661) Northern SocuriUea Co. 1. U<a.\ta&
32&-330
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
StatcB, 193 U. S. 197, 337, 48 L. ed. 679,
700, 24 Sup. Ct. Rep. 436.
Mr. Chief Justice White delivered the
opinion of the court:
The act of July 31, 1912 (§ 1, chap. 263,
37 Stat, at L. 240, Comp. Stat. 1913,
§ 10,416), makes it unlawful ''to bring or
to cause to be brought into the United
States from abroad, any film or other pic-
torial representation of any prize fight or
encounter of pugilists, under whatever
name, which is designed to be used or may
be used for purposes of public exhibition."
With this provision in force, in April, 1915,
the appellant brought to the port of entry
of the city of Newark in the state of New
Jersey photographic films of a pugilistic
encounter or prize fight which had taken
place at Havana, and demanded of the dep-
uty collector of customs in charge the
right to enter the films. On refusal of the
official to permit the entry, appellant filed
his bill of complaint to enforce the right
to enter by a mandatory injunction and by
other appropriate relief to accomplish the
purpose in view. The ground relied on for
the relief was the averment that the prohi-
bition of the act of Congress [320] in ques-
tion was repugnant to the Constitution be-
cause, in enacting the same, "Congress ex-
ceeded its designated powers under the Con-
stitution of the United States, and at-
tempted, under the guise of its powers under
the commerce clause, to exercise police power
expressly reserved in the states." The col-
lector moved to dismiss on the ground that
the bill stated no cause of action because
the assailed provision of the act of Con-
gress was constitutional, and therefore on
the face of the bill there was no jurisdic-
tion to award the relief sought.
The motion was sustained and a decree
of dismissal was rendered, and it is this
decree which it is sought to reverse by the
appeal which is before us, the propositions
relied upon to accomplish that result but
reiterating in various forms of statement
the contention as to the repugnancy to the
Constitution of the provision of the act of
Congress. But in view of the complete
power of Congress over foreign commerce,
and its authority to prohibit the intro-
duction of foreign articles recognized and
enforced by many previous decisions of this
court, the contentions are so devoid of
merit as to cause them to be frivolous.
Buttfield V. Stranahan, 192 U. S. 470, 48
L. ed. 525, 24 Sup. Ct. Rep. 349; The Abby
Dodge, 223 U. S. 166, 176, 56 L. ed. 390,
393, 32 Sup. Ct. Rep. 310 ; Brolan v. United
States, 236 U. S. 216, 59 L. ed. 544, 35 Sup.
Ct. Rep. 285.
It ia true that it is sought to take this
case out of the long-recognized rule by the
proposition that it has no application be-
cause the assailed provision was enacted to
regulate the exhibition of photographic
films of prize fights in the United States,
and hence it must be treated not as pro-
hibiting the introduction of the films, but
as forbidding the public exhibition of the
films after they are brought in, — a subject
to which, it is insisted, the power of Con-
gress does not extend. But, aside from the
fictitious assumption on which the proposi-
tion is based, it is obviously only another
form of denying the power of Congress to
prohibit, since if the imaginary premise and
proposition based on it were acceded to, the
contention [330] would inevitably result in
denying the power in Congress to prohibit
importation as to every article which, after
importation, would be subject to any u»e
whatever. Moreover, the proposition plain-
ly is wanting in merit, since it rests upon
the erroneous assumption that the motive
of Congress in exerting its plenary power
may be taken into view for the purpose of
refusing to give effect to such power when
exercised. Doyle v. Continental Ins. Co. 94
U. S. 535, 541, 24 L. ed. 148, 151; McCray
V. United States, 195 U. S. 27, 53-59, 49
L. ed. 78, 94-97, 24 Sup. Ct. Rep. 769, 1
Ann. Cas. 561 ; Calder v. Michigan, 218 U.
S. 591, 598, 54 L. ed. 1163, 1167, 31 Sup. Ct.
Rep. 122.
Affirmed.
TEXAS k PACIFIC RAILWAY COM-
PANY, Plff. in Err.,
V.
J. T. BIGGER et al.
(See S. C. Reporter's ed. 330-339.)
Error to circuit court of appeals — dis-
missal on motion.
1. A writ of error to the circuit court
of appeals in a suit against a Federal cor-
poration which had removed the case from
Note. — On appellate jurisdiction of Fed-
eral Supreme Court over circuit courts of
appeals — see notes to Bagley v. General Fire
Extinguisher Co. 53 L. ed. U. S. 605, and
St. Anthony's Church v. Pennsylvania R.
Co. 59 L. ed. U. S. 1119.
As to degree of care required toward pas-
senger at station — see note to St. Louis, I.
M. & S. R. Co. V. Woods, 33 L.R.A.(N.S.)
855.
On duty of carrier as to condition of place
used as flag station — see note to Fulghum
V. Atlantic Coast Line R. Co. 39 UR.A.
(N.S.) 558.
As to what injuries may be deemed the
proximate result of discharging passenger
at improper place, or one not his destina-
tion— see note to Georgia R. & Electric Co.
V. McAllister, 7 UR.A.(N.S.) 1177.
2S9 U. S.
m^
TEXAS A P. R. CO. v. BIQOER.
a state eourt to a Federal district court
will not be dismissed where the questions
raised by such writ of error are not frivo-
lous.
(For other cases, see Appesl sod Error, VII.
1, in Digest Sup. Ct. 1908.]
Ple«dlns ^ to Jurisdiction — waiver.
2. Ihe defendant, in a suit removed by
it from a state court to a Federal district
eourt, may not raise the question of the
state court's jurisdiction by an amended
answer filed in the Federal court, where the
petition for removal contained no reserva-
tion of a question of such iurisdiction, and
where, after the case reached the Federal
court, there were pleadings to the merits
and other action submitting to the juris-
diction.
[For other cssen, see Pleading, I. g, In Digest
Sop. Ct. 1908.]
Trlml — question for Jury — knowledge
of passenger.
3. Whether or not a passenger for a
station beyond the carrier's line should have
known that there was a through coach at-
tached to the train is a question for the
jury, in an action against such carrier for
the passenger's death, alleged to have been
caused by exposure to a storm when trans-
ferring at the junction point.
[For other cases, see Trial, 402a-417. in Di-
gest Sop. Ct. 1908.1
Connecting curriers — duty to passen-
ger at Junction ffoint.
4. A carrier which has accepted a pas-
senger for a destination beyond its own line
does not discharge its duty by delivering him
at the junction point during a heavy rain,
with no other other shelter than that af-
forded by a "switch shanty," where he
could have reached a through coach at-
tached to the train by merely passing
through other cars had he been informed
that Uiere was such a coach.
(For other cases, see Carriers, II. a, 8, to
Digest Sup. Ct. 1908.]
Connecting carriers — measure of care
toward passenger at Junction point.
5. A connecting carrier owes the same
degree of care towards a through passenger
who has alighted from a train at a junc-
tion point to change cars that it is bound
to observe in his transportation.
[For other cases, see Carriers. II. a, 4. a, in
Digest Sup. Ct. 1908. J
Appeal '— error In Instructions — pre-
judice.
6. The jury in an action against a car-
rier for the death of a passenger could not
have been embarrassed by the court's in-
structions as to the degree of care which the
carrier owed to the passenger under the
circumstances, where, if the testimony for
the plaintiff was true, the carrier did not
observe even ordinary care, and if that for
defendant was true, the company was not
liable, and the jury was so instructed.
(For other esses, see Appeal end Brror, VIII.
m, 4, a, in Digest Sop. Ct. 1908.]
[No. 342.]
Submitted November .30, 1916. Decided
December 13, 1915.
«• Ii. ed.
1
N ERROR to the United SUtes Circuit
Court of Appeals for the Fifth Circuit
to review a judgment which affirmed a
judgment of the District Court for the
Western District of Texas in favor of plain-
tiff in an action against a carrier for the
death of a passenger. Affirmed.
See same case below, 133 C. C. A. 673,
218 Fed. 990.
The facts are stated in the opinion.
Messrs. George Thompson and T. D.
Cobb submitted the cause for plaintiff in
error :
The question of jurisdiction was properly
raised and preserved.
O'Connell v. Reed, 5 C. C. A. 693, 12 U.
S. App. 369, 66 Fed. 531.
Under the evidence introduced the court
erred in not instructing a verdict for de-
fendants. The death of the deceased was
caused by his own exposure and negligence
and want of care, and was not the direct
and proximate result of any injuries re-
ceived by him while he was on defendant's
train as a passenger.
Bowen v. New York C. R. Co. 18 N. Y.
408, 72 Am. Dec. 629; Brunswick ft W. R.
Co. V. Wiggins, 61 L.R.A. 113, and notes,
113 Ga. 842, 39 S. E. 551 ; Davis v. Houston
A T. C. R. Co. 26 Tex. Civ. App. 8, 69 S.
W. 844; Gulf, C. ft S. F. R. Co. T. Guess,
— Tex. Civ. App. — , 164 S. W. 1061;
Houston ft T. C. R. Co. v. Batchler, 37 Tex.
Civ. App. 116, 83 S. W. 902, 32 Tex. Civ.
App. 14, 73 S. W. 981 ; International ft G.
N. R. Co. V. Welch, 86 Tex. 204, 40 Am. St.
Rep. 829, 24 S. W. 390; Louisville ft N.
R. Co. V. Keller, 104 Ky. 768, 47 8. W.
1072; 6 Am. Neg. Rep. 348; Missouri, K.
ft T. R. Co. V. Hagan, 42 Tex. Civ.
App. 133, 93 8. W. 1017; Nunn v.
Georgia R. Co. 71 Ga. 710, 61 Am. Rep.
284; Gulf, C. ft S. F. R. Co. v. Butcher,
83 Tex. 316, 18 S. W. 683; International ft
G. N. R. Co. V. Halloren, 63 Tex. 64, 37
Am. Rep. 744; West Chicago Street R. Co.
V. Walsh, 78 111. App. 595; St. Louis South-
western R. Co. V. Missildine, — Tex. Civ.
App. — , 157 S. W. 246; St. Louis, A. ft T.
R. Co. V. Finley, 79 Tex. 88, 16 S. W. 266,
6 Am. Neg. Cas. 699; Street, Personal In-
juries, §§ 368, 394, 396; Texas ft P. R. Co.
V. Miller, 79 Tex. 78, 11 L.Rji. 396, 23 Am.
St. Rep. 308, 15 S. W. 264, 6 Am. Neg. Cas.
692; Texas ft P. R. Co. v. Bingham, 90 Tex.
227, 38 8. W. 162; Texas ft P. R. Co. v.
Cole, 66 Tex. 563, 1 8. W. 629; Wood v.
New York C. ft H. R. R. Co. 17 Am. Neg.
Rep. 276, note; 2 White, Personal Injuries,
p. 1075.
The law requires the highest degree of
care only while the passenger is on the
train. After the passenger has left the
SUPREME COURT OF THE UNITED STATES.
Oct. Xnic,
train and is no longer under the control of
the trainmen (though he may still be a
pastenger until he leaves the depot), the
railway only owes him the degree of ordi-
nary care.
Texas ft P. R. Co. t. Dick, 26 Tex. Civ.
App. 256, 63 8. W. 896, 10 Am. N^. Rep.
196; Townes, Torts (Tex.) 90; Davis v.
Houston k T. C. R. Co. 25 Tex. Civ. App.
8, 59 S. W. 844; St. Louis, A. ft T. R. Co.
V. Finley, 79 Tex. 88, 16 S. W. 266, 6 Am.
Neg. Cas. 500; Texas ft P. R. Co. v. Cole,
66 Tex. 563, 1 S. W. 629; Missouri, K. ft
T. R. Co. v. Hagan, 42 Tex. Civ. App. 133,
93 S. W. 1014; St. Louis Southwestern R.
Co. v. Missildine, — Tex. Civ. App. — , 157
S. W. 245; Gulf, C. ft S. F. R. Co. v. Guess,
— Tex. Civ. App. — , 154 S. W. 1061; 2
White, Personal Injuries, §§ 19, 20, pp.
994, 995; Texas ft P. R. Co. v. Bigham, 90
Tex. 227, 38 S. W. 162; Street, Personal
Injuries, §§ 358, 394, 396.
Railroads are not required to provide
adequate accommodations for passengers
where they alight to change cars, so that
they may be protected from the inclemency
of the weather.
St. Louis ft S. F. R. Co. t. Grider, 110
Ark. 437, 161 S. W. 1032; Stamp v. Eastern
R. Co. — Tex. Civ. App. — , 161 S. W. 450.
The carrier discharged the duty imposed
by the court's charge, viz., to provide ade-
quate^ safe, and comfortable accommoda-
tions, and such as to protect the passen-
gers from the inclemency of the weather.
It provided for such accommodation by a
through car of the I. ft G. N. R. Co. which it
transported over all its connecting lines
for passengers of the I. ft G. N. bound for
points over said line, and a through pas-
senger owed some duty and care to ascer-
tain sueh fact for himself.
2 White, Personal Injuries, pp. 586, 1075;
Gulf, C. ft S. F. R. Co. V. Guess, — Tex.
Civ. App. — , 154 S. W. 1061; 5 Am. ft
Eng. Enc. Law, pp. 557-561; International
ft G. N. R. Co. V. Welch, 86 Tex. 204, 40
Am. St. Rep. 829, 24 S. W. 390.
Bigger being sick and a consumptive when
he began his journey, he was guilty of neg-
ligence in continuing his journey in wet
clothing.
International ft G. N. R. Co. T. Halloren,
63 Tex. 54, 37 Am. Rep. 744; Texas ft P.
R. Co. V. Miller, 79 Tex. 78, 11 L.R.A. 395,
28 Am. St. Rep. 308, 15 S. W. 264; 6 Am.
N^. Cas. 592; Texas ft P. R. Co. v. Cole,
66 Tex. 563, 1 S. W. 629; Missoun, K. ft
T. R. Co. V. Hagan, 42 Tex. Civ. App. 133,
93 S. W. 1014; Gulf, C. ft S. F. R. Co. t.
Guess, — Tex. Civ. App. — , 164 S. W.
1061; 6 Am. ft Eng. Enc Law, 671; Ft.
Worth ft R. G. R. Co. V. Stewart, ~ Tex.
Civ. App. — , 146 & W. 866; St. Louis
Southwestern R. Co. v. Freles, — Tex. CiT.
App. — , 166 S. W. 91.
The said Bigger, having been an invaUd
and affected with consumption at and before
he got wet, had no business or employment.
The verdict in this case waa, therefore, ex-
cessive, and based upon no sufficient evi-
dence of expectancy.
Street, Personal Injuriee, f 394.
The court having erroneously submitted
the issue to the jury as to whether or not
defendant notified the deceased to tranafer
to the I. ft G. N. car, before reaching Long-
view, the defendant claiming to have made
the announcement in the coach in which
deceased was riding, which he as an ordi-
narily prudent person should have heard,
and having instructed the jury that there
was a sharp conflict, on the question of
announcement for the jury to reconcile^
when there was none, it was error not to
give the requested special charge to the
effect that the testimony of defendant's
witnesses could not, in the absence of anj-
thing to discredit or contradict them, be
arbitrarily disregarded because they were
employed by the railway company.
Brunswick ft W. R. Co. v. Wiggins, 61
L.R.A. 113, and note, 113 Ga. 842, 39 B.
E. 551.
The court should have instructed the jury
as requested on the question of ordinary
care required of Bigger, as a sick passen-
ger, and his failure to transfer, and his
failure to stop at Longview and otherwise
take care of himself. Bigger 's want of
care in not informing himself of the at-
tached car, and failure to have it attached
to transfer him, was both negligence and
a waiver.
6 Am. ft Eng. Enc. Law, 676.
The undisputed evidence showing that
Bigger was safely transported on the train
of and over the line of the T. ft P. R. Co.,
and that the injury, if any, was received
after he left the train at the depot to enter
the I. ft G. N. car, and the suit being based
upon the existence of a partnership between
the defendants, and no proof having been
offered to show the ownership of the ground
and whose was the duty, if any existed, to
build and maintain the depot and sheds,
it was error to dismiss any of the parties
and hold the T. ft P. alone.
International ft G. N. R. Co. v. Halloren,
53 Tex. 54, 37 Am. Rep. 744; Gulf, C. ft S.
F. R. Co. V. Butcher, 83 Tex. 316, 18 &
W. 583; Houston ft T. C. R. Co. v. Batchler»
37 Tex. Civ. App. 116, 83 S. W. 902, 82 TcK.
Civ. App. 14, 73 S. W. 981; Texas ft P.
R. Co. V. Miller, 79 Tex. 78, 11 LwR.A 895»
23 Am. St. Rep. 308, 16 S. W. 264, 6 Am.
N^. Cas. 692; Louisville ft N. R. Co. t.
KeUer, 104 Ky. 768, 47 8. W. 1072, 6 Am.
»t9 V. B.
1915 TEXAS k P. B. CO. ▼. BIGGER. 831
Keg. Rep. 348; West Chicago Street R. Co. ft S. F. R. Co. 175 Mo. App. 457, 161 S.
T. Walsh, 78 111. App. 595; Davis v. Houston W. 638; Stamp ▼. Eastern R. Co. — Tex.
4 T. C. R. Co. 25 Tex. Civ. App. 8, 59 S. Civ. App. — , 161 S. W. 450; Dallas ▼.
W. 844; Nunn v. Georgia R. Co. 71 Qa. Moore, 32 Tex. Civ. App. 230, 74 S. W.
710, 51 Am. Rep. 284 ; St. Xx>uis, A. AT. 95 ; Thomp. Neg. 1947, f 6218.
R. Co. T. Finley, 79 Tex. 88, 15 S. W. 266, The passenger is under some obligation
6 Am. Neg. Cas. 599; Texas A P. R. Co. w, to use ordinary care for himself and to
Cole, 66 Tex. 563, 1 S. W. 629; Missouri, exercise his faculties in looking out for
K. ft T. R. Co. y. Hagan, 42 Tex. Civ. App. and taking care of himself on the trip.
133, 93 S. W. 1014; St. Louis Southwestern Louisville ft N. R. Co. v. Messer, 164 Ky.
R. Co. v. Missildine, — Tex. Civ. App. — , 218, 175 S. W. 360.
167 S. W. 245; Gulf, C. ft S. F R Co. Messrs. H. O. Carter and Perry J.
"' •"' Zi /^„^^- ^PP; T' . ^' :l' Lewis submitted the cause for defendants
1061; 2 White, Personal Injuries, §§ 19, ^^ error-
20, pp. 944, 945, 1075; Wood v. New York ^^^^ ^ p^^y has asserted and submitted
C. ft H. R. R. Co. 17 Am. Neg. Rep. 276, jt^^- ^ ^^ jurisdiction of a court, it is
note; 5 Am. ft Eng. Enc. Law, 2d ed. pp. ^^ j^^^ ^j^^^ ^ 1^^^ j^^ privilege to be
658-561, 571, 576, 645; International ft G. ,„^ ;„ ^^^ ^^j^^^ ^^^
N. R. Co. v. Welch, 86 Tex. 204, 40 Am. ^^ j^oore, 209 U. S. 491-613, 52 L. ed
St Rep. 829, 24 S. W. 390; Texas ft P. 904-914, 28 Sup. a. Rep. 585, 706, 14 Ann.
R. Co. V. Bigham, 90 Tex. 227, 38 8. W. q^^ j^q^. Western Loan ft Sav. Bank v.
162; Street, Personal Injuries, §§ 358, 396, g^^^^ ^ g ^onsol. Min. Co. 210 U. S. 368-
894; Brunswick ft W. R. Co. v. Wiggins, 372, 52 L. ed. 1101-1103, 28 Sup. a. Rep.
61 L.R.A. 113, and note, 113 Ga. 842, 39 72O; Texas ft P. R. Co. v. Cox, 146 U. S.
S- ^- ^^^' , , , 593-603, 36 L. ed. 829-832, 12 Sup. Ct. Rep.
The circuit court of appeals erred in hold- ^Qg
ing that it has no authority to pass upon ^iie case of Gulf, C. ft S. F. R. Co. v.
the question of the cxcessiveness of the g^elton, 30 Tex. Civ. App. 72, 69 S. W.
verdict. ^53^ 70 8. W. 369, 96 Tex. 301, 72 S. W.
Fclton ▼. Spiro, 24 C. C. A. 327, 47 U. j^^ ^^i^ ^^^ ^ railroad was negligent
8. App. 402, 78 Fed. 576, 2 Am. Neg. Cas. ^Yiere the conductor in charge of the train
682; Mt. Adams ft E. P. Inclined R. Co. failed to inform a passenger that there were
V. Lowrey, 20 C. C. A. 596, 43 U. S. App. coaches attached to the train in which he
408, 74 Fed. 463; Farrar v. Wheeler, 75 ^^^^1^^ continue his journey, and that it was
C. C. A. 386, 146 Fed. 483; Felt v. Puget negligence on the part of the railway corn-
Sound Electric R. Co. 175 Fed. 477; Duke p^y ^ ^^^^ ^d command the passenger
V. St. Louis ft S. F. R. Co. 172 Fed. 686. ^ j^^^ ^^ ^^^^^ ^^ ^ pl^^ upon its plat-
The undisputed evidence showing that ^^^ ^^at was not a safe place for the pas-
Bigger came to San Antonio a sick man, to ggng^rs to alight. This case also holds
regain his health, because he could never ^j^at the passenger, in obeying the request
live in Tennessee, and was returning from a ^^ ^ employee, was not guilty of contrib-
visit to Tennessee, f»a the I ft G. N. and ^^^ negligence.
T. ft P. roads, in a train upon which there ^^j^^ Personal Injuries, § 663; Louis-
was an I. ft G. N. coach provided for I. ft ^.jj^ j^ j^ ^ q^ ^ K^ll^r, 104 Ky. 768,
G. N. passengers, which he could have en- 47 g ^ 1Q72, 5 Am. Neg. Rep. 348.
tered and in which he doubtless traveled The degree of care which the court charged
going to Tennessee, this being the safer j^ ^j^^ ^^^^^ ^^^ ^f ^l^i^ country,
way for him to travel, as he had traveled Indianapolis ft St. L. R. Co. v. Horst, 93
over the same route and was familiar with ^ g 291, 23 L. ed. 898, 7 Am. N^. Cas.
it, and the undisputed evidence showing 331. Missouri, K. ft T. R. Co. v. White,
that he was guilty of want of ordinary care 22 Tex. Civ. App. 424, 65 S. W. 593; St.
in not making inquiries concerning his Lo^j^ Southwestern R. Co. v. Parks, 40
route, train, or cars, or in not going in said rp^^ qj^ ^pp 430^ gQ g ^ 343. Missouri,
car, irrespective of whether the railwsy was g^ 4 j ^ ^ ^ q^^^^ _ j.^^ q.^ ^pp
guilty or not of failure of any duty in not _ j^^ g^ ^ 453. Houston ft T. C. R. Co.
giving notice to transfer to the I. ft G. N. ^ Batchler, 32 Tex. Civ. App. 14, 73 S.
car, or in not providing sheds to protect w. 981; International ft G. N. R. Co. v.
Mm from the rain after leaving the train, Holloren, 53 Tex. 54, 37 Am. Rep. 744;
— ^his own want of care was the proximate Pennsylvania Co. v. Roy, 102 U. S. 451,
cause of his injury. 26 L. ed. 141, 10 Am. Neg. Cas. 593.
International ft G. N. R. Co. v. Edwards,
100 Tex. 24, 93 S. W. 106 ; Louisville ft N. Mr. Justice MoKenna delivered the opin-
R. Co. V. Peck, 162 Ky. 6, 49 LJa.A.(N.S.) ion of the court:
108, 153 S. W. 40; RiiBsell T. St. Louii Action for panonal In^uxiM, VstfSOiigDX. V
331-334
SUPREME COURT OF THE UNITED STATES.
Cor. Tkm;
J. T. Bigger against plaintiff in error and
the International & Great Northern Rail-
way Company and the St. Louis, Iron Moun-
tain, k Southern Railway Company in the
state district court of Bexar county, Texas.
The case made by Bigger's pleading was
this:
Bigger was a passenger upon the Texas
A Pacific Railway Company's train on a
ticket from San Antonio, Texas, to Owens-
boro, Kentucky, and return, having pur-
trhased the ticket from the International &
Great Northern Railway Company, at San
Antonio, Texas. A partnership was alleged
between the companies.
Bigger was returning from Owensboro to
San Antonio, and was compelled and re-
quired to leave the train at [332] Longview
during a very severe downpour of rain at a
place where there was no protection. His
clothes became thoroughly drenched with
rain, and he was required to ride in them
so drenched until he reached San Antonio
at about 10 o'clock at night. As a result
«>f such exposure and wetting h^ became
seriously ill.
At the time the Texas k Pacific reached
the station at Longview there was in the
train a car destined to San Antonio, on the
line of the International k Great Northern
Railway, of which the employees of the
Texas k Pacific knew, but they neglected to
inform Bigger of the fact and give him an
opportunity to transfer to such car.
It was charged in his complaint that such
facts constituted negligence on the part of
the company and its employees.
In accordance with a petition by the Texas
k Pacific Company the case was removed to
the United States district court for the
western district of Texas. There an amend-
ed petition or complaint was filed, suggest-
ing Bigger 's death, and his wife and six
children were made parties plaintiff.
The St. Louis, Iron Mountain, k Southern
Railway Company filed a separate demurrer
and answer.
The International k Great Northern Rail-
way Company and the Texas k Pacific Rail-
way Company joined in a general demurrer
and in an answer to the merits. Subse-
quently both of the latter companies were
given leave to amend and availed themselves
of it. The answer of the Texas k Pacific
Railway Company contained a general de-
murrer, a general denial of the allegations,
and set up special matters in defense. It
contained no plea or exception to the juris-
diction in the court, state or Federal.
The case was continued and set for trial
upon motion of defendants, and the Texas
k Pacific Railway Company then filed a
second amended answer, in which it set
up that it was incorporated under an act
of Congress, had [333] its domicil in Dal-
las, Texas, that no part of ita road waa ia
Bexar county, and therefore the action was
improperly brought in the latter eountj,
and the court was without jurisdiction to
try it, it being "one arising under and in-
volving damages for personal injury." In-
sufficiency of the petition in law was also
alleged and that the petition showed on its
face that the company was a common car-
rier without any elements of partnership
existing between it and the other defend-
ants. The answer also contained general
denials of the allegations of the petition,
and averred besides that Bigger had ampla
opportunity to transfer from one coach to
another, and that had he used ordinary
care he would have got into the proper
coach either when he first boarded the train
or at some time during passage. That tha
railway company complied with its duty
when it safely transported Bigger to Long-
view, and at that station its relation to
him, 10 far as he was a passenger, termi-
nated, as he was entitled to ride to such
point and no farther.
That it stopped its train at the usual
place, and the station building and aheltar
from rain was in close proximity to such
point. Ihat other passengers alighted and
proceeded to such station building, that
there was no reason why Bigger should not
have done so, and that his exposure waa due
to his own negligence.
That his ill health and subsequent death
were not caused by nor were they the re-
sult of any negligence of the company, but
that he was in an extremely poor stata of
health, having been the victim for a long
time of a tubercular infection which had ao
far progressed that he had been compelled
to give up his work and return to San An-
tonio, with hope practically abandoned, and
that his death was the proximate and direct
result of such infection.
Upon the issues thus joined the case waa
tried to a jury. The court directed a verdict
for all of the companies [334] except the
Texas k Pacific, against which company »
verdict was returned in the aggregate
amount of $15,250, the amounts awarded
to the wife and children being respectively
specified. Judgment was entered accordingly
and affirmed by the circuit court of appeals.
A motion is made to dismiss or, alter-
natively, to affirm.
The motion to dismiss is overruled. The
railway company is a Federal corporation
and the questions raised are not frivoloua. 1
We pass, therefore, to the merits.
iThis case was pending in this court be-
fore and at the time of the passage of the
act of January 28, 1915, 38 Stat, at L. 804,
chap. 22, %% 6 and 6, which takes away from
SS9 U. 8.
1919.
TEXAS & P. R. CO. V. BIQOKR.
834-336
The questions of fact must be considered
u determined agftimt the company by the
ferdict of the jury; that is, that Bigger
was required to get off the train at Long-
?iew in a drenching rain, that the accom-
modations there were insufficient for the
protection of passengers, that he could have
been transferred to a coach attached to the
train, but was not, nor was he told of it,
and that the exposure resulted in his death.
And, further, the verdict is conclusive as
to the condition of his health and as to the
expectancy from his life.
Our consideration, therefore, must be con-
fined to the questions of law arising on giv-
ing or refusing instructions, or on some
other ruling of the court. There is such
other ruling. The company in its second
amended answer in the district court ex-
cepted to plaintiff's petition on the ground
that it showed on its face that the suit was
improperly brought in Bexar county. The
exception was overruled and this is at-
ligned as error. It was not error. The
petition for removal contained no reserva-
tion of a question of the jurisdiction of the
itate court, and after the case reached
the district court there were pleadings to the
[835] merits and other action submitting
to the jurisdiction. Texas k P. R. Ck)'. v.
Hill, 237 U. S. 208, 59 L. ed. 918, 35 Sup.
Ct. Rep. 575.
There is the general contention that a
verdict should have been directed for the
company. The contention involves the
whole case, and facts and law are so inter-
mingled as to make the latter inseparably
dependent upon the former. For instance,
it is urged that Bigger did not exercise
care when he boarded the train at Little
Rock. He could have known, it is said,
that there was an International & Great
Korthem coach attached to the train, and
that he should have heard the announce-
ment to passengers to transfer to that
coach ; and "should at some time during the
route have looked and listened." The an-
nouncement is disputed, and whether he
should have known of the International k
Great Northern coach was for the jury to
decide.
There is testimony to the effect that Big-
ger was required to get out at Longview
during a rain of such severity as to amount
to a cloud-burst, and which had covered the
ground with water. Against this, it is said
that where he descended from the train was
a suitable place to walk, and that there
were sheds and depots and other buildings
courts of the United States jurisdiction in
raits by or against any railroad company
on the ground that such company was in-
corporated under an act of Congress. The
ict excepts actions or suits pending at the
time of the passage of the act.
•• li. ed.
near at hand to protect him from the rain.
And it is urged that he should not have
continued his journey in wet clothes; that
he could have changed clothes at a hotel in
Liongview or sought the accommodations
of a Pullman sleeper. Finally it is said that
the Texas k Pacific owed him no further
duty when he left its train. The latter con-
tention can be immediately risjected. Tha
company accepted him as a passenger for a
destination beyond Longview, and its duty
was not discharged by delivering him to a
storm, protected from its inclemency only
by the shelter afforded by a "switch shanty,"
so-called by an employee of the road. We
may remark that to that shanty a lady
passenger was also conducted by the portcor
of the train, he apparently not having
knowledge of the existence [336] of other
buildings which the company alleged were
available to Bigger. The lady testified that
the water was "3 inches deep on the ground"
and came to her ankles, and that "it was
raining just like a cloud-burst." Nor was
it a condition suddenly occurring. It
rained before the train reached Longview.
"and the tracks looked," the witness said*
"like they were covered with water." And*
we may say, as indicating the severity of
the storm, the train was compelled to re-
turn to Longview on account of washouts.
Such conditions of discomfort and peril to
health she. Bigger, and, it appears, two
other passengers, were required to pass to
and endure in order to take a car which
was attached to the train and which could
have been reached by merely passing
through other cars. And these were the
conditions a jury had the right to believe
existed, although there was contradiction
of them. The other contentions involved
considerations for the judgment of the jury.
There is an objection to the charge of the
court that it gave too much emphasis to the
duty of the company, and not enough to
the duty of Bigger as a passenger. The ob-
jection involves the charge as a whole, and,
as it would be inconvenient to quote it, we
simply say that the. objection is not justi-
fied. The court expressed the elements of
liability of the company, and it expressed
as well the conditions of recovery on the
part of plaintiffs, and it is hypercritical to
say that the emphasis was more on one than
on the other, as presently will be shown.
The most important contention of the
company is based on the charge of the
court as to the degree of care required of the
company. The court said that if Bigger's
"illness and subsequent death did not result
directly from the negligence of the defend-
ant, they [plaintiffs] would not be entitled
to recover." And, it was added, "What,
then, it negligence t It \a t>DA i«^\uT« \a>
83&^89
SUPREME COURT OF THE UNITED STATES.
Oct. TkBM»
do what a reasonable person would ordi-
narily have done under the circumstances of
[337] the situation, or the doing what such
person, under the existing circumstances,
would not have done. The essence of the
fault mav He in omission or in commission.
The duty is dictated and measured by the
exigencies of the occasion."
The court - recited the evidence and the
contentions of the parties, and said that it
was the duty of the company "to provide
adequate and safe accommodations for pas-
sengers where they could alight to change
cars and wliere they could be protected."
And, further, that if this was done the com-
pany had fulfilled its duty and no recov-
ery could be had against it. If it had not
done so, and, "if the employees of the de-
fendant required the deceased to get off the
train in a severe rain, and his illness re-
sulted therefrom without any fault or neg-
ligence on his part, the plaintiffs would be
entitled to recover." And it was said: "In
this connection you are further instructed
that the deceased was required to look out
for his own comfort and safety; and if he
was in any respect guilty of negligence con-
tributing to his illness and death, then no
recovery can be had by the plaintiffs in this
proceeding."
The court, at the request of the company,
further instructed the jury that if Bigger,
at the time he entered the car, was sick with
lung trouble, and knew thrre were chances
of injury by exposure, and he neglected to
use ordinary care and prudence to protect
himself against any contingency which
might arise during the journey, and if he
changed cars when, by the use of ordinary
care, he could have avoided doing so, or if
there was a safer way for him to have gone,
which lie might have ascertained by ordi-
nary care, the company would not be re-
sponsible for the injury which resulted, if
any resulted. And, further, that "all these
facts and circumstances in connection with
his [Bigger's] condition" should be consid-
ered in determining "whether or not he
used that ordinary care and prudence which
an ordinarily prudent person would have
exercised [338] under similar circum-
stances." To these instructions there was
no objection except to that part which ex-
tended the duty of the company to the pro-
tection of passengers after they had alighted
from the train.
But the court instructed the jury, at the
request of plaintiffs, that the railway com-
pany "owed its passengers the duty to exer-
cise that high degree of care that would be
exercised by every prudent person under
the same or similar circumstances, and a
failure to exercise such degree of care would I
be negligence." This instruction is at- 1
S16
tacked as error only because it imposed »
high degree of care on the company aft«r
Bigger had left the train "and was there-
fore in a position to use care in taking
care of himself." The ground of the ob-
jection seems to be that the duty of the
company ceased upon the arrival of ita
train at Longview. To this, as we have
already said, we cannot assent. The aame
care was necessary to be observed for Big-
ger's protection at that place, -under the
circumstances presented by the record, as
was necessary to be observed in his trans-
portation, and the charge of the court cor-
rectly expressed it. Pennsylvania Co. v.
Roy, 102 U. S. 451, 26 L. ed. 141, 10 Am.
Neg. Gas. 693; Indianapolis & St. L. R.
Co. V. Horst, 93 U. S. 291, 23 L. ed. 898, 7
Am. Neg. Cas. 331.
But even if the railway company could
plead a lesser degree of care than that de-
clared to be its duty in the charge of the
court, it is very disputable if error was com-
mitted to the prejudice of the company. Be-
tween the plaintiffs' ground of action and
the company's ground of defense there was
a clear line of distinction. The testimony
of plaintiffs was to the effect that Bigger
was compelled to descend from the train in
the midst of a severe storm to the inade-
quate protection of a mere shanty to await
the car for San Antonio, such car being at-
tached to the train he was on and to which
he could have gone by simply passing
through other cars had he been told that
it was part of the train. The company as-
serts that he was told and that he dis-
regarded the information. If the latter
[330] was true the company was not liable,
and the court so instructed the jury. If
the testimony of plaintiffs was true, th«
company did not observe even ordinary care;
and which was the fact it was for the jurj
to decide, and their judgment in deciding
could not have been embarrassed by a con*
sideration of degrees of negligence or care.
The other contentions of the company we
think do not require special comment. Thej
are directed to the proposition, many times
repeated, that the company owed no duty
to Bigger, or else had observed it, and that
Bigger had not used care either in avoiding
exposure or in preventing an injurious ef-
fect from it. They attack the sufficiencj
of the evidence, and assert, in effect, tha4
its conflicts should be resolved againat
plaintiffs. The propositions of law involved
are those which we have considered.
Judgment affirmed.
The Chikt Jusncs, Mr. Justice Van Be*
vanter, and Mr. Justice McReynolds di»>
sent, because they are of opinion that some
2S9 U. 8.
inc. ATOEISOH, T. t 8. F. R. CO. t. SWEARINOBR. SM
rf ttw butmetioiii oompUlned of laid upoi Ur. Bobvrt Dnnlap «rgacd th* oftUM,
tt« emrriar K heavier Antj than th* la« and, with Meiara. Gardiner Lathrop, J. W.
neofnlica. Tttj, and A. H. Culw«ll, flled a, brief for
plaintiff In error:
_^^^ Tha court erred in charging in effeot
that a violation of the honra of aerTiee act
waa n^ligence pw •«, and dcatroyed tha
defenaea of auuBicd riak and contributorj
negligence, regardieai of whether or not it
CLAUDB SWBABINOBN. *■■ *^« proximate cause of the aecldenL
St. Loula, I. M. & S. R. Co. t. Mo-
(Sm a C. Eeporter'i ad. 339-344.) Whirter, 2M U. 8. 266, ZBO, 281, 57 L.
ed. 1179, I1B7, 1133, 33 Sup. Ct. Rep. 8SS;
Kaater and aerrajit — employera' Ila- Nitro-Glycerine Caie (Parrott t. Weill) 16
bllilj — TloUtlon of hoara of aervlca Wall 637, El L. ed. 211; Puget Sound
act — Mssnmed riak — contributor] Traction Light A P. Co. t. Hunt, 139 C
>rcllgenc«. C. A. 432, 223 Fed. 955; 29 Cyc. 800; His-
The unjnattfled retant.on of an in „„,i k. t T. R. Co. v. Foreman, 08 C. C.
tnatat« railway employee on dutj for mori , „, ,-, _ . ,-1. wmi.„.i v.ii«. t>
than aixt«m hours, e™trary to the houn ^ ^^\"\ ^'^i t / "''*'"°'l. ^j"^ ^
•f serrica act of March 4, 1907 (34 SUt ^o. v. Fulgham L.R.A.-, -, 104 C. C. A.
•t L. 1416, Ohap. 2939, Corap. SUt. 1913 161, 181 Fed. 96; Felt ». Boston 4 M. R.
I 3677), I 2, doaa not make the railway com Co. ISl Masa. 311, 37 N. E. 376; Hannigan
Moy nnqnalifledly liable for ncgligentlj' in t. Lehigh k H. River R. Co. 167 N. Y. 244,
jnring hun. Irrespective of hli contributor] 51 N E 9S2
atgUgenea or awmned riik, nnleas the re xhe conrfs suhmieelon of tha prorlao of
tentioD eontributed to the injury, since th< ,|,. ■,„„„ „. __ai_. .«* -,.. _„» s^,in.j_„ti_
lUtnta that excludes contributory negli "" ""•"" °' ■"""• "^ **' '"'' »"ffl=i'^tly
rice and a«iun.ption of riak i« anch c?.e. comprehensive.
not the hour* of aerTlce act itaeU, bu( ^tiJUd States v. New World, O. t W. R.
tha inbaequent employers' liability act ol Co. 21S Fed. 704; Chicago, St. L. A N. 0.
April 22, IBOe (35 Stat, at L. tt6, chap R. Co. t. Pullman Southern Car Co. 139
149, Comp. SUt. 1913, §| 8669, 8660), || 3, U. 8. 79, B8, 35 L. ed. 97, 100, ll'Sup. Ct.
4, whidi haa that operation only when tbt Rep. 490.
toeaeh of the law contributM to the Injury There are four provtao* to the act, and
it must be assumed that a definite meaning
*■""■ '*■' was intended for each of them, and that
they did not mean the aame thing.
United SUtes t. Great Northern R. Co.
130 C. C. A. 238, 220 Fed. 033.
IN ERHOB to t^a United State, Circuit , ^*"'" **■* '^'^f"' «<» consequent de-
1 Court of Appeals for the Fifth Circuit ^^ "" " unavoidable acold«t, or the
~ . . , ,. I., I. •» J , , result of a cause not known to the carrier,
tojeriew a judgment which affirmed a judg- -. m a. ■ i ' i t.
V , .. T^Ii ._. ^ _. . „ ,., . or lU officer or agent in charge of such em-
■edl of the District Court for tlie Western , i .v .- u , i « .i.
«._. ■_. . T. 11 . 1 . i-« . ployeo at the time such employee left the
DUtnct of Texa. in favor of plaintiff m an [^rminal, and which could uot have been
action for per^inal injunea. Reversed. reasonably foreseen, were appropriate que.-
The facte are steted in the opinion. ^^^^ ^j ,,pt „hich shouU have been sub-
} the jury, unleu, of course, de-
evidence of exoneration waa clear
liability act — ace notes to Lamphere v. Ore- und undisputed.
CR. A NaT. Co. 47 L.R.A.(I4.S.) 38; and Missouri, K. A T. R. Co. v. United 6tete^
board Air Line R, Co. v. Horton, L.R.A. ^31 u. 8. 112, 68 L. ed. 144, 34 Sup. Ct.
1W6C, 47. ,,_.,..■ ,* Rep. 20; United SUtes T.Lehigh Valley R.
Aa to the validity of legislation r^lat- [^I'^g ^ j, j^ ^BZ, 219 Fed. 632.
mm houra of labor — see note to Atkin t. .. . ., . . . < r< _, , >_
K^uaa, 48 L. ed. U. B. 148; Ej. parte It was not the intent of Congress to make
Wong Wing. 61 L.R.A.(N.8.) 361; and the railway companies Insurers, nor to exact
Killer T, WUaon, L.RA.1915F, 829. from them practical impassibilities.
Otmerally, aa to servant's aiaumption of Northern P. R. Co. v. United SUtes, 129
riak—aee notes to Pidcock t. Union P. R. 0. C. A. 514, 213 Fed. 163; United States
Co. 1 L.RA. 131; Foley t. Pettee Mach. ,, Missouri P. H. Co. 130 C. C. A. 6, 213
Works, 4 L.R.A. 61; Howard v. Delaware k ^^ j^q
p. R. Co. T. Dooly. 12 L.R.A. 342; Kehler ^" plamtifl wight recover in any one tif
T. Sehwenk, 13 L.R.A. 374; and Southern 1»b contingencies mentioned, ignoring the
t. Co. T. 8eley, 38 L. ed. U. fi. 391. question whether in any such case the al-
M L. ed. W^
342, 343
SUFREBiE COURT OF THE UNITED STATES.
Oct. Tebm,
leged negligence was the proximate cause
of the accident or injury ^ and, moreover,
the evidence was insufficient to justify the
submission of certain alleged grounds of
recovery to the jury.
Chambers v. Everding & Farrell, 71 Or.
521, 136 Pac. 885, 143 Pac. 620; Texas &
P. R. Co. V. Bigham, 90 Tex. 223, 38 S. W.
163; Milwaukee & St. P. R. Co. v. Kellogg,
94 U. S. 469, 24 L. ed. 256 ; Wolosek v. Ciii-
cago & M. Electric R. Co. 158 Wis. 475, 149
N. W. 201 ; Cole v. German Sav. k L. Soc.
63 L.R.A. 416, 59 C. C. A. 593, 124 Fed.
113, 14 Am. Neg. Rep. 676; Stefanowski ▼.
Chain Belt Co. 129 Wis. 484, 7 L.R.A.(N.S.)
955, 109 N. W. 532; Missouri P. R. Co. v.
Columbia, 65 Kan. 300, 58 L.RA. 399, 69
Pac. 338; Cleghom v. Thompson, 62 Kan.
727, 54 L.R.A. 402, 64 Pac. 605; 1 Suther-
land, Damages, 3d ed. § 16; 1 Shearm. &
Redf. Neg. 4th ed. § 28; Fleming v. Beck,
48 Pa. 313; Hoag v. Lake Shore A M. S. R.
Co. 85 Pa. 293, 27 Am. Rep. 653; Morrison
V. Davis, 20 Pa. 175, 57 Am. Dec. 695;
Memphis A C. R. Co. v. Reeves, 10 Wall.
176, 19 L. ed. 909 ; Chicago, St. P. M. k O.
R. Co. V. Elliott, 20 L.R.A. 582, 5 C. C. A.
347, 12 U. S. App. 381, 55 Fed. 952, 7 Am.
Neg. Cas. 478; SchefTer v. Washington City,
V. M. & G. S. R. Co. 105 U. S. 249, 26 L.
ed. 1070; Glassey v. W'orcester Consol.
Street R. Co. 185 Mass. 315, 70 N. £. 190,
16 Am. Neg. Rep. 86; Stone v. Boston &
A. R. Co. 171 Mass. 536, 41 L.R.A. 794,
51 N. £. 1, 4 Am. Neg. Rep. 490; Kreigh
V. Westinghouse, C. K. &, Co. 11 LuRJk..
(N.S.) 684, 81 C. C. A. 338, 152 Fed. 120.
The evidence was conclusive that plaintiff
assumed the risk of the position of the
engine in the train, and of the position and
size of the sill step.
Seaboard Air Line R. Co. v. Horton, 233
U. S. 504, 505, 58 L. ed. 1070, L.R.A.1915C,
1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B,
475, 8 N. C. C. A. 834; Kohn v. McNulta,
147 U. 8. 238, 37 L. ed. 150, 13 Sup. Ct. Rep.
298; Southern P. Co. v. Seley, 152 U. S.
145, 38 L. ed. 391, 14 Sup. Ct. Rep. 530.
The evidence was wholly insufficient to
submit certain grounds of alleged negli-
gence to the jury.
Griffin ▼. Springfield Street R. Co. 219
Mass. 55, 106 N. E. 552.
The court erred in instructing the jury in
this case that, in respect to allegations as
to assumed risk and contributory negli-
gence and the existence of a casualty and
an unforeseeable cause, the burden of proof
rested upon the defendant.
Beach» Contrib. Neg. 3d ed. gg 427, 428.
«1S
Mr. Perry J. Lewis submitted the cause
for defendant in error. Messrs. C. P. John-
son and S. Engelking were on the brief:
The language of the court, *'If you find
that the breaking of the valve yoke could
have been guarded against, or foreseen by
the exercise of ordinary care, then you are
instructed that the law authorizes you to
infer negligence on the part of the defendant
at the time of his injury in requiring him to
be on duty more than sixteen hours,*' is
complained of as charging negligcnV:c per se.
However, this identical language, under sim-
ilar circumstances, was approved by this
court in Grand Trunk R. Co. v. Ives. 144
U. S. 408, 418, 36 L. ed. 485, 480, 12 Sup.
Ct. Rep. 679, 12 Am. Nog. Cas. 650, and
seems to have been literally embo<lied in
the charge.
The inference of proximate cause was in-
evitable.
Delaware^ L. & W. R. Co. v. Converse, 139
U. S. 469, 472, 35 L. ed. 213, 215, 11 Sup.
Ct. Rep. 569.
The general charge fully covered the iden-
tical matter set out in special charge num-
ber two. Its refusal was therefore proper.
Hartford Life Annuity lus. Co. v. Unsell,
144 U. S. 439, 447, 36 L. ed. 4t0, 409, 12 Sup.
Ct. Rep. 671; New York, L. E. A VV. R. Co.
V. Winter, 143 U. S. 60, 70, 75. 3G L. ed. 71,
79, 80, 12 Sup. Ct. Rep. 356, 8 Am. Nog.
Cas. 690.
Tlie charge which places on defendant the
burden of proof as to the defenses of con-
tributory negligence, assumed risk, and the
relief of the proviso, was proper.
Indianapolis A St. L. R. Co. v. Horst, 93
U. S. 291, 298, 23 L. ed. 898, 900, 7 Am.
Neg. Cas. 331; Washington & G. R. Co. t.
Harmon (Washington &. G. R. Co. v. To-
briner) 147 U. S. 671, 580, 37 L, ed. 284,
288, 13 Sup. Ct. Rep. 557.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is a suit for personal injuries suf-
fered by the plaintiff (defendant in error)
while acting as fireman upon and in charge
of a defective engine tluvt had been picked
up by a train. He had been kept on duty for
more than [343] sixteen hours, and, as we
take it for present purposes, contrary to the
act of March 4, 1907, chap. 2939, S 2, 34
SUt. at L. 1415, 1416, Comp. SUt. 1913, §|
8677, 8678, without the justifications or ex-
cuses allowed in § 3. While about to do
some oiling according to directions, he fell
from the running board of the pilot and his
leg was cut off. There was evidence of neg-
ligence on the part of the railroad, but the
defendant set up that the plaintiff was
2S9 U. S.
1915.
UNITED STATES t. NORMILE.
343, 344
guilty of contributory negligence and as-
sumed the risk. The only matter that we
have to consider here is an instruction giv-
en to the jury touching the effect of keeping
the plaintiff on duty overtime upon these
matters alleged by the defense.
The delay that led to keeping the plaintiff
on duty too long was caused by th& breaking
of a valve yoke, and a part of the charge
was as follows: "If, hewever, you believe
that said breaking of the valve yoke was no
such casualty or unknown and unforeseeable
cause as is provided by law, that is to say, if
you find that the breiJcing of the valve yoke
could have been guarded against or foreseen
by the exercise of ordinary care, then you
are instructed that the law authorizes you
to infer negligence on the part of the defend-
ant at the time of plaintiff's injury, in re-
quiring him to be on duty more than sixteen
hours. And if in the breaking of the valve
yoke you find no casualty or such unknown
and unforeseeable cause as aforesaid, then
and in that event you will entirely disregard
defendant's pleas of contributory n^ligence
and assumed risk, as then the plaintiff can
in no way be held to have been guilty of
contributory negligence in going upon the
pilot while the engine was moving, nor can
he in any way be held to have assumed any
of the risks ordinarily incident to his work
or even open and apparent to him at the
time he was hurt."
The last half of this instruction was ex-
cepted to in the presence of the jury, but the
charge was not modified. It was the one in-
struction specifically directed to the matter
[344] of overtime. The natural under-
standing of it by people untrained in the
law, if not by everybody, would be that the
unjustified retention of the plaintiff at his
work for more than sixteen hours would
make the defendant liable whether the
retention contributed to the injury or
not. The statute that excludes the de-
fenses of contributory negligence and as-
sumption of risk in such a case is not
the hours of labor act itself, but the
subsequent employers' liability act of April
22, 1908, chap. 149, §§ 3, 4, 36 Stat, at L.
65, 66, Comp. SUt. 1913, §§ 8657, 8659, 8660.
The latter has that operation only when
the breach of the law contributes to the in-
jury. St. Louis, I. M. A S. R. Co. ▼• Mc-
Whirter, 229 U. S. 265, 279, 280, 57 L. ed.
1179, 1187, 33 Sup. Ct Rep. 858. We do not
think it possible to read the absolute lan-
guage of the instruction as implicitly lim-
ited to such a case.
Judgment reversed.
Mr. Justice Day and Mr. Justice Pitney
dissent.
6« lu
UNITED STATES, Appt.«
v.
SIMON NORMILE, John A. Fastabend,
and William F. McGregor, Late Partners
as Normile, Fastabend, & McGregor. (No.
83.)
SIMON NORMILE, John A. Fastabend,
and William F. McGr^or, Late Partners
as Normile, Fastabend^ A McGregor,
Appts.,
V,
UNITED STATES. (No. 84.)
(See S. C. Reporter's ed. 344-349.)
United States — contracts — Increased
cost — temporary structures.
1. The cost of the last two of three
unsuccessful temporary dams erected by
the contractor for a public work at a place
designated by the government engineer in
charge, and the charges for superintendence
during the time consumed in constructing
them, are not chargeable to the United
States, where the contract was silent as to
temporary structures, and the site desig-
nated by the engineer seems to have been as
good as any other, the final success on a
new site having be^ achieved by new meth-
ods, not by change of place, there beins
nothing to show that the new methods could
not earlier have been adopted.
[For other cases, see United States, VI. f.
Id Digest Sup. Ct. 1908.]
United States — contracts — extra ex-
pense — delay.
2. The increased cost of the necessary
labor and materials for a public work, due
to the breaking out of the war of 1898 with
Spain, is not chargeable to the United States
because of an unexplained delay on its part
in notifying the contractors that they could
begin work, where the notice was given in
time to begin work as early as contemplated
by the specifications, and the prices had ad-
vanced before the supposed neglect on the
part of the government began, and the con-
tractors had not the facilities to accumulate
materials, even if they had been notified
at an earlier date.
[For other cases, see United States, YI. f»
in Digest Sup. Ct. 1908.]
[Nos. 83 and 84.]
Argued December 3, 1916. Decided Decem-
ber 13, 1916.
CROSS APPEALS from the Court of
Claims to review a judgment allow-
ing in part a claim for extra expense in-
curred in carrying out a contract for a
public work. Judgment reversed and pe-
tition dismissed.
See same case below, 49 Ct. CI. 78.
The facts are stated in the opinion.
S19
84e, 347
SUPREME COURT OF THE UNH^ED STATES.
Oct.
Aflsistant Attorney General Thompson
argued the cause, and, with Mr. Philip M.
Aahford, filed a brief for the United States.
Messrs. Frank Carter Pope and Ben-
jamin Carter argued the cause and filed a
brief for Simon Normile et al.:
In determining the rights of parties under
a contract, a court will give great defer-
ence to the practical interpretation which
has been put on it, in the course of its
performance, by the parties themselves.
District of Columbia v. Gallaher, 124 U.
6. 606, 31 L. ed. 626, 8 Sup. Ct. Rep. 686;
Brooklyn Lb Ins. Co. v. Dutcher, 96 U. S.
269, 24 L. ed. 410; Old Colony Trust Co.
V. Omaha, 230 U. S. 100, 67 L. ed. 1410, 33
Sup. Ct. Rep. 967; Simpson v. United
SUtes, 172 U. S. 372, 382, 43 L. ed. 482,
486, 19 Sup. Ct. Rep. 212; Topliff v. Top-
liff, 122 U. S. 121, 30 L. ed. 1110, 7 Sup.
Ct Rep. 1067; Fitzgerald y. First Nat.
Bank, 62 C. C. A. 276, 114 Fed. 474.
The United States, in letting a construc-
tion contract, warrants the adequacy of the
plan and the competence and diligence of
its agents in the performance of all duties
imposed upon them by the contract.
Simpson y. United States, 172 U. S. 372,
43 L. ed. 482, 19 Sup. Ct. Rep. 212; Christie
y. United States, 237 U. S. 234, 69 L. ed.
933, 36 Sup. Ct. Rep. 666; United States v.
Gibbons, 109 U. S. 200, 27 L. ed. 906, 3 Sup.
Ct. Rep. 117; Moore y. United States, 46
Ct. CI. 139; Spearin y. United States, Ct. CI.
not reported; Wyandotte & D. R. Co. y.
King Bridge Co. 40 C. C. A. 326, 100 Fed.
197.
One party to a contract, having prevented
performance by the other within the stipu-
lated time, is not relieved from liability
by anything done in the enforcement or dis-
charge of provisions in the contract, or of
other agreements supplemental thereto, by
which liquidated damages were to be paid
by such other party in the event of delay
chargeable to him or purely accidental.
Maryland Steel Co. v. United SUtes, 236
U. S. 461, 69 L. ed. 312, 36 Sup. Ct. Rep.
190; United States v. United Engineering
A Contracting Co. 234 U. S. 236, 68 L. ed.
1294, 34 Sup. Ct. Rep. 843.
One party, who has prevented the per-
formance of a contract, cannot be heard
to say, in defense of a claim against him
for damages, that the other party should
have gone on and done those things, unless
in the situation which actually arose, that
would have been required for performance
of the contract on his part.
Hinckley v. Pittsburgh Bessemer Steel
Co. 121 U. S. 264, 30 L. ed. 967, 7 Sup.
Ct. Rep. 876.
When one party to a contract has pre-
sso
vented performance thereof in accordance
with its terms, and plans made by the other
party for obtaining his materials have been
upset thereby, the innocent party is not
bound, upon the termination of the delay,
to buy forthwith the entire supply of mate-
rials which will be required, — and least of
all where, by reason of the delay, condi-
tions have so changed that the materials
cannot be used as rapidly as was intended
by the contract.
Kelly ft Kelly v. United States, 81 Ct
CI. 861.
[346] Mr. Justice Holmes delivered the
opinion of the court.
This is a claim for extra expenses in-
curred in performing a contract to build a
dam and certain accessories on the Yamhill
river, Oregon. The contract was made on
March 11, 1898, and required the claim-
ants to begin work as prescribed l^ f 41
of the specifications, to complete the keep-
er's dwelling, etc., within sixty days from
notification, and the whole work before De-
cember 31, 1898. Paragraph 41 of the q>eei*
fications stated that the sites for the oob-
struction had not yet been purchased and
that no work would be begun until they were
secured. It then provided that within ten
days after notification that the sites had
been secured and the contract had been ap-
proved, the contractor "must proceed with
the work in a vigorous manner; he musi
complete the keeper's dwelling, woodshed,
walks, fences, etc., within sixty days
from date of notification, and the whole
contract on or before December 31, 1808.**
It added that because of the spring rise
of the Willamette, etc, it was probable
that work on the lock and dam could
not be beguu before June at the ear-
liest; and that the date of completion had
been set because it was desired that all work
should be finished during one low-water
season, — the meaning of which was known
by the claimants. Authority to purchase
was asked by telegraph on March 10 and
granted on March 16. The abstract of title
and deeds were sent to the Chief of Engi-
neers on April 9 and 14, and the contraetora,
fvho had given notice of their readiness
to begin, were told on April 9 that the deeds
had been sent on. On April 29 a telegram
was received showing encumbrances to be
removed before the deeds were accepted. On
May 13 the attorney for the United States
approved the title. On May 12 the oontraet-
ors began work on the keeper's dwellings
etc., and on June 14 were given the notifica-
tion to proceed.
[347] Before June 14, 1898, considerable
work had been done, material had been as-
2S9 V. 8.
1915.
UNITED STATES t. NORMILE.
847-349
•embled, and labor employed. The war with i superintendence during the time consumed
Spain began on April 21, 1898, raising the in constructing them, we are of opinion that
price of labor and materials. The increased the United States is entitled to prevail in
eost ia found, but it is found also that this i its appeal. The contract was silent as to
increase was not shown to be due to any them, and did not embrace them. A contract
breach of contract by the United States,
and that the claimants did not have room
tnd facilities for storing large consignments
of materials. The claimants, however, in-
sist upon this item being allowed, and make
it the ground of their cross appeal.
In 1899, after a lock wall had been built
it right angles with the line of the wing
dam and parallel to the line of the stream,
it became necessary to divert the water
from the line of the wing dam in order that
the latter might be built. •This had to be
done by sending the water through the lock
chamber, and to that end it was necessary
to build a temporary dam. The claimants
had no civil engineer, although they com-
■landed some experience. They asked the
local engineer in charge for the United
States where the temporary dam should be
placed. He indicated a site near the head of
the lock, where the river was narrow, as the
only suitable place, and the claimants start-
ed upon the dam in June. The up-stream
end of the lock chamber was closed with a
lift-wall, and to turn the water through the
chamber it had to be raised 16 feet. The
bottom of the river was inclined to disin-
tegrate, and when the water was raised to
12 feet the dam broke. Two more attempts
were made with the same result. Early in
1900 the claimants applied to the local en-
gineer for leave to change the place and to
cut a hole through the lift-wall, which was
granted, and the dam was built. The bot-
tom of the river at the new site was similar
to that at the old, and it would not have
been possible to construct the dam there
without the relief afforded by the hole. The
eourt of claims allowed the cost of the last
two temporary dams and the United States
appeals.
[348] The specifications provided that if
the time for performance should be extended,
all expenses for inspection and superintend-
ence should be deducted. The claimants re-
vested an extension of time, not suggesting
violence of the elements, contemplated in the
contract as a ground, or fault of the United
States. The extension was granted with a
warning that it would not absolve them from
the above expenses. The court of claims al-
lowed the claimants the expenses accrued
during the time of building the second and
third temporary dams, from which allow-
ance also the United States appeals.
Taking up first the allowance for the un-
«icce8aful temporary dams and charges for
«0 li. ed. 21
to produce a result does not bring the means
employed to provide it into the contract.
Bacon ▼. Parker, 137 Mass. 309, 311 ; United
States V. O'Brien, 220 U. S. 321, 327, 65 L.
ed. 481, 484, 31 Sup. Ct. Bep. 406. They
remain under the control of the contractors
alone. The claimants rely upon specifica-
tion 40: "The lines and levels for this
work will be established on the ground by
the engineers, and the contractor must con-
form and keep thereto." But this refers to
the work, the permanent structure, not to
the transitory instrumentality used in build-
ing it. While the engineer in answer to
the claimants pointed out a place for the
temporary dam, it does not appear to have
been ordered to be placed there. Moreover,
the site seems to have been as good as any
other, the final success having been achieved
by cutting a hole in the lift-wall of the
lock chamber, not by the change of place.
There is nothing to show that the claimants
could not have left this opening, or have ob-
tained leave to make it earlier. Leave was
granted as soon as asked, llie mode of
constructing the temporary dam was whol-
ly the claimants' affair.
[340] Upon the cross appeal also we are
of opinion that the government is in the
right. If it had attempted to hold the
claimants to the time originally men-
tioned in the contract, the question
might be different, but we see no ground
for a claim on their part to hold the
United States liable for delay. Speci-
fication 41, the substance of which has been
stated, is inconsistent with the implication
of an undertaking that the claimants shall
be notified to begin within any particular
time. The findings hardly warrant the
statement in the opinion that the delay from
May 13 to June 14 was chargeable to the de-
fendant's neglect. It simply ia left unex-
plained. The notice was given in time to be-
gin work on the lock and dam as early as
was contemplated by specification 41. But
further, as is pointed out by the court be-
low, the prices had advanced before the sup-
posed neglect began, — ^not to speak of the
finding that the claimants had not the fa-
cilities to accumulate material even if they
had been notified at an earlier date.
Judgment reversed*
Petition dismissed.
Mr. Justice McReynolda took no part Id
the consideration or decision of these eases.
849
SUPREME COURT OF THE UNITED STATES.
Oct. Tmmu,
GREAT NORTHERN RAILWAY COM-
PANY, Plff. in Err.,
V.
H. W. OTOS.
(See S. C. Reporter's ed. 349-352.)
Master and serraDt — safety appliances
— employers' liability — switching
to repair track.
1. A car in an interstate train which
was marked for repairs and was to be
switched to the repair track before going
farther was not withdrawn from interstate
commerce so as to relieve the carrier from
liability, under the safety appliance acts
of March 2, 1893 (27 Stat, at L. 631, chap.
106, Comp. Stat. 1913, § 8606), and April
14, 1910 (36 Stat, at L. 298, chap. 160,
Comp. Stat. 1913, § 8617), and the employ-
ers' liability act of April 22, 1908 (35 SUt.
at L. 65, chap. 149, Comp. Stat. 1913, |
8657), to a switch foreman engaged in
breaking up the train, who was injured in
the switching operations because of a de-
fective automatic coupler on such car.
[For other cases, see Master and Servant,
II. a, in Digest Sup. Ct. 1908.]
Master and servant — safety appliances
— moving car for repairs.
2. Whether or not the absolute liabili-
ty imposed upon the carrier, under the
safety appliance act of March 2, 1893 (27
Stat, at L. 531, chap. 196, Comp. Stat. 1913,
§ 8600), extends to the moving of a car
defectively e<)uipped to a place where it
may be repaired, the supplementary act of
April 14, 1910 (36 Stat, at L. 298, chap.
160, Comp. SUt. 1913, S 8617), unmis-
takably imports that the liability exists.
[For other cases, see Master and Servant,
II. a, In Digest Sup. Ct. 1908.]
Master and servant — employers' liabil-
ity — safety appliances — contribu-
tory negligence.
3. Contributory negligence of an injured
employee is not a defense to an action by
him under the safety appliance acts of
March 2, 1893 (27 Stat, at L. 531, chap.
196, Comp. SUt. 1913, § 8606), and April
14, 1910 (36 Stat, at L. 298, chap. 160,
Comp. Stat. 1913, § 8617), and the employ-
ers' liability act of April 22, 1908 (35
Stat, at L. 65, chap. 149, Comp. Stat. 1913,
Note. — On the constitutionality, applica-
tion, and effect of the Federal employers'
liability act — see notes to Lamphere v. Ore-
gon R. A Nav. Co. 47 L.R.A.(N.S.) 38; and
Seaboard Air Line R. Co. v. Horton, L.R.A.
1915C, 47.
On the liability of a railroad comprny for
injuries to an employee while coupling cars
•^-^ee notes to Kohn v. McNulta, 37 L. ed.
U. S. 150; and Northern P. R. Qo. v. Everett,
38 L. ed. U. S. 373.
On the duty and liability under Fedsral
and state railway safety appliance acts — see
notes to Chicago, M. A St. P. R. Co. v.
United States, 20 L.R.A.(N.S.) 473; Lake
Shore & M. S. R. Co. v. Benson, 41 L.R.A.
(NS.) 49.
S22
I 8657), if a defective automatic coupler
was the proximate cause of the injurv.
[For other cases, see Master and Servant^
II. a, in Digest Sap. Ct. 1908.)
[No. 429.]
Argued November 30, 1915. Decided De*
cembar 13, 1915.
JN ERROR to the Supreme Court of the
State of Minnesota to review a judg-
ment which, on a second appeal, affirmed
a judgment of the District Court of the
County of Yellow Medicine, in that state, in
favor of plaintiff in an action under the
safety appliance and employers' liability
acts. Affirmed. *
See same case below on first appeal, 129
Minn. 283, 150 N. W. 922; on second ap-
peal, 129 lyiinn. 523, 151 N. W. 1102.
The facts are stated in the opinion.
Mr. E. C. lilndley argued the cause, and„
with Messrs. M. L. Countryman and A. L.
Janes, filed a brief for plaintiff in error :
A wrong or tort cannot be founded upon
a non-negligent necessary act, performed
pursuant to a paramount duty.
Cooley, Torts, 2d ed. 791; Bigelow, Torts,
64; Pollock, Torts, 19; Sqammon v. Chica-
go, 25 111. 424, 79 Am. Dec. 334.
A car, even though loaded with interstate
commerce, while being taken to a repair
track for necessary repairs of defects dis-
covered by inspection in transit, is not
engaged in interstate commerce, and such
movement is not a violation of the Federal
safety appliance law. It is a necessary
act, done in compliance with the statutory-
duty.
Texas k P. R. Co. v. Rigsby, 138 C. C. A.
51, 222 Fed. 221; Delk v. St. Louis & S. F.
R. Co. 220 U. 8. 580, 55 L. ed. 590, 31 Sup.
Ct. Rep. 617.
Mr. Tom Davis argued the cause, and,^
with Messrs. Samuel A. Anderson and Ern-
est A. Michel, filed a brief for defendant in
error :
Defendant in error was engaged in inter-
state commerce.
St. Louis A S. F. R. Co. v. Conarty, 23a
U. S. 243, 59 L. ed. 1290, 35 Sup. Ct. Rep.
785; Delk v. St. Louis k S. F. R. Co. 220
U. S. 580, 589, 55 L. ed. 590, 596, 31 Sup.
Ct. Rep. 617; Johnson v. Southern P. Co^
196 U. S. 1, 49 L. ed. 363, 25 Sup. Ct. Rep.
158, 17 Am. Neg. Rep. 412; Chicago, M. k
St. P. R. Co. V. Voelker, 70 L.R.A. 264, 65
C. C. A. 226, 129 Fed. 522; Pederson v.
Delaware, L. k W. R. <^. 229 U. S. 146,
57 L. ed. 1126, 33 Sup. Ct. Rep. 648, Ann.
Caa. 1914C, 153, 3 N. C. C. A. 779.
The safety appliance act applies to alt
2S9 U. 8»
lyio.
GREAT XORTHERX R. CO. t. OTOS.
360-352
care and similar vehicles used on any rail-
road engaged in interstate commerce.
Johnson ▼. Southern P. Go. 196 U. S. 1,
49 L.. ed. 363, 26 Sup. Ct. Rep. 158, 17 Am.
Neg. Rep. 412; Schlemmer ▼. Buffalo, R. ft
P. R. Co. 206 U. S. 1, 61 L. ed. 681, 27
Sup. Ct Rep. 407; Southern R. Co. y.
United States, 222 U. S. 20, 66 L. ed. 72,
32 Sup. Ct. Rep. 2, 3 N. C. C. A. 822.
There is a liability while the car is being
removed to the repair track, under the
amended statute.
Doherty, Liability of Raihroads to Inter-
tfUte Employees, pp. 200, 308-310; St. Louis
ft S. F. R. Co; V. Gonarty, 238 U. S. 243,
59 L. ed. 1290, 35 Sup. Ct. Rep. 785.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is an action under the safety ap-
pliance act and employers' liability act.
The plaintiff (defendant in error) was a
switch foreman and was breaking up a train
that had come into his state from the west.
At the moment when he was hurt he had
three cars attached to a switching engine;
the rear one consigned to Duluth, and to be
switched to another track; the next con-
signed to Minneapolis; both loaded. The
automatic coupler on the Minneapolis car
was out of order, the pin lifter was missing,
other repaire were needed, and there was
evidence that it had been marked for re-
pairs and was to be switched to the repair
track before going further. In the switch-
ing operation the plaintiff, being unable to
uncouple the Duluth car from the side where
the pin lifter was missing without going
between the cars, did so while the cars were
moving, and was badly hurt The jury was
instructed that [351] if th.e injuries "were
due directly to the absence and imperfect
working condition of the coupler in ques-
tion" the defendant would be liable. The
plaintiff got a verdict and judgment was or-
dered for $30,000, which order was affirmed
by the supreme court of the state. 128
Minn. 283, 150 N. W. 922.
The defendant argues that the car had
been withdrawn from interstate commerce,
and that therefore the act of March 2, 1893,
chap. 196, § 2, 27 SUt at L. 631, Comp.
Stat 1913, § 8G06, does not apply; that if it
does apply, the defendant was required
by that act and the supplementary act of
April 14, 1910, chap. 160, 36 Stat, at L.
298, Comp. SUt. 1913, § 8617, to remove
the esLT for repairs, and that its effort to
comply with the statutes could not consti-
tnte a tort; and that the plaintiff was a per-
son intrusted by it with the details of the
•0 L. ed.
removal, and could not make it responsible
for the mode in which its duty was carried
out; that he might have detached the car
while it was at rest. But we are of opinion
that the argument cannot prevail.
The car was loaded and in fact was car-
ried to Minneapolis the next day. It had
not been withdrawn from interstate com-
merce, but merely subjected to a delay in
carrying it to its destination. At the mo-
ment of the accident it was accessory to
switching the Duluth car. It does not seem
to us to need extended argument to show
that the oar still was subject to the act of
Congress. Delk v. St. Louis ft S. F. R. Co.
220 U. S. 680, 56 L. ed. 590, 31 Sup. Ct.
Rep. 617. As the safety appliance act gov-
erned the case, it imposed an absolute lia-
bility upon the carrier. St Louis, I. M. 4
8. R. Co. V. Taylor, 210 U. S. 281, 62 L. ed.
1061, 28 Sup. Ct Rep. 616, 21 Am. Neg. Rep.
464; Chicago, B. & Q. R. Go. v. United
SUtes, 220 U. S. 559, 55 L. ed. 582, 31
Sup. Ct Rep. 612. The supplementary act
of April 14, 1910, chap. 160, $ 4, 36 Stat
at L. 299, Comp. Stat 1913, § 8621, re-
lieves the carrier from the statutory penal-
ties while the car is being hauled to the
nearest available point where it can be re-
paired, but expressly provides that it shall
not be construed to relieve from liability
for injury to an employee in connection with
the hauling of the car. The [352] next
section recites that under § 4 the movement
of a car with defective equipment may be
made within the limits there specified with-
out incurring the penalties, '*but shall in all
other respects be unlawful." . Whether or
not the absolute liability created by the earl-
ier act extended to the present case, and we
are far from implying that it did not, the
act of 1910 imports, with unmistakable itera-
tion, that the liability exists. Under the
instructions of the court the jury must have
found that the defect was the proximate
caiAie of the injury, as that was made a
condition of the plaintiff's right to recover.
If BO, the fact that the plaintiff's conduct
contributed to the result was not a defens^.
Act of April 22, 1908, chap. 149, §§ 3, 4,
36 SUt. at L. 65, 66, Comp. Stat 1913, §|
8667, 8659, 8660. Grand Trunk Western
R. Co. V. Lindsay, 233 U. S. 42, 58 L. ed.
838, 34 Sup. Ct Rep. 681, Ann. Gas. 1914C,
168. In view of the statutes, it is unneces-
sary to consider the limits to the plaintiff's
authority by his instructions from above.
In any view of the evidence he was not
withdrawn from the protection of the acts.
Judgment afiOrmeiL
MS
SUPREME COURT OF THE UNITED STATES.
SEABOARD AIR LINE RAILWAY, Plff.
in Err.,
V.
BEAUREQARD MAGDALENE KOEN-
NECKE, M Administratrix of the Es-
tate of J. T. KOENNECKE, Deceased.
(See S. C. Reporter's ed. 362-866.)
Ck>nstltntlonaI law ^ due process of
law ^ procedure ^ refaslng continu-
ance.
1. Requiring the trial of an action for
the death of an interstate railway employee
to proceed after allowing an amendment to
the complaint, which already contained an
allegation of dependency, so as specifically
to bring the case within the Federal employ-
ers' liability act of April 22, 1908 (35 SUt
at L. 65, chap. 149, C^omp. Stat. 1913,
§ 8657), is not such an abuse of discretion
as amounts to a denial of the due process
of law guaranteed by U. S. Const., 14th
Amend., where defendant's counsel was not
willing to say that he was taken by sur-
prise, although stating that he was not pre-
pared on the question of dependency.
[For other cases, see Constitutional Law,
IV. b, 8, in Diffest Sup. Ct. 1908.]
Master and servant — employers' lia-
bility — when servant is engaged in
interstate commerce.
2. A railway employee injured while
acting as switchman was employed in in-
terstate commerce within the meaning of
the Federal employers' liability act of April
22, 1908 (35 Stat, at L. 65, chap. 149, Comp.
Stat. 1913, § 8657), where he was engaged
at the time in distributing the cars from an
interstate train, and clearing the track for
another interstate train.
(For other cases, see Master and Senrant, II.
a, In Diffest Sup. Ct. 1908.]
Trial ^ taking case from Jury ^ negli-
gence ^ assumption of risk.
3. An action against a railway com-
pany for the death of a switchman in its
yard could not have been taken from the
jury on the ground either that there was no
negligence, or that the deceased assumed
the risk, where the iury might have found
that he was killed by a train which had
just come in and was backing into the
yard, that the movement was not a yard
movement, that it was on the main track,
and that there was no lookout on the end of
the train, and no warning of its approach.
[For other en Res, see TriaU VL d, in Digest
Sup. Ct. 1908.1
[No. 491.1
Oct. Teem,
Decided Ds-
NoTE. — On the constitutionality, applica-
tion, and effect of the Federal employers'
liability act — see notes to Lamphere v. Ore-
gon R. & Nav. Co. 47 L.R.A.(N.S.) 38; and
Seaboard Air Line R. Co. v. Horton, L.R.A.
1915C, 47.
On volenti non fit injuria as a defense to
actions by injured servants — see note to
O'Maley v. South Boston Gaslight Co. 47
L.R.A. 161.
I Argued November 30, 1915. Deci
cember 13, 1915.
IN ERROR to the Supreme Court of ths
State of South Carolina to review a
judgment which affirmed a judgment of the
Court of Common Pleas for Richland Coun-
ty, in that state, in favor of plaintiff in an
action for death. Affirmed.
See same case below, 101 S. C. 86, 85 S.
£. 374.
The facts are stated in the opinion.
Mr. Jo Berry S. Lyles argued the cause
and filed a brief for plaintiff in error :^
Since the Federal act does not provide
the specifications and regulations or rules of
conduct in detail, we must look to the
common law to fill the gap; but it must
be the common law as it exists uniformly
throughout the area to which the act ap-
plies, and, still seeking uniformity, this
can be found only in the common law as
construed uniformly in the Federal courts,
and not in the varying and different rules
and regulations found in the conunon law
as construed by the several states.
Second Employers' Liability Cases (Mon-
dou V. New York, N. H. & H. R. Co.) 223
U. S. 1, 56 L. ed. 327, 38 L.RJl.(N.S.) 44,
32 Sup. Ct Rep. 169, 1 N. C. C. A. 875;
Seaboard Air Line R. Co. v. Horton, 233
U. S. 492, 58 L. ed. 1062, L.R.A.1915C, 1,
34 Sup. Ct. Rep. 635, 8 N. C. C. A. 834,
Ann. Cas. 1915B, 475; Seaboard Air Line
R. Co. V. Tilghman, 237 U. S. 499, 59 L. ed.
1069, 35 Sup. Ct. Rep. 653; Central Ver-
mont R. Co. V. White, 238 U. S. 507, 69
L. ed. 1433, 35 Sup. Ct. Rep. 865, 9 N. C.
C. A. 265.
The uniform rule prevailing in the Fed*
eral courts is that an employee in a switch-
ing yard, primarily purposed and used for
the constant switching movement of cars
and engines, is charged with notice of such
primary purpose, as a man of ordinary in-
telligence and prudence, and can reasonably
expect no special warning of such a move-
ment so long as it is an ordinary and cus-
tomary one. The primary purpose of such
a yard is the ordinary switching of cars
and engines, and employees there take their
employment for the purpose of assisting in
such, not for the purpose of hindering or
delaying it. Employees, therefore^ must
look out for the moving cars and engines,
and so long as there is nothing unusual
about the movement, those in charge of the
cars and engines are not obliged to look
out for employees.
Aerkfetz v. Humphreys, 145 U. S. 418,
36 L. ed. 758, 12 Sup. Ct. Rep. 835; Tuttle
V. Detroit, G. H. & M. R. Co. 122 U. S. 194,
30 L. ed. 1114, 7 Sup. Ct. Rep. 1166; Nor-
839 U. S.
Itl5.
SEABOARD A. L. R. CO. v. KOEMNECKS.
folk k W. R. Co. ▼. GeBswine, 76 C. C. A.
814, 144 Fed. 56; Connelly v. Pennsylvania
R. Co. 47 L.R.A.(N.S.) 867, and note, 119
G. C. A. 392, 201 Fed. 54.
Error was committed by the trial court
in not taking the case from the Jury and
instructing a verdict for the defendant upon
the assumption that there was no evidence
mfficient to justify the submission of the
ease to the jury for its consideration.
Seaboard Air Line R. Co. v. Padgett, 236
U. S. 668, 59 L. ed. 777, 35 Sup. Ct Rep.
481.
There was no evidence that plaintiff's
intestate was employed in interstate com-
merce.
Seaboard Air Line R. Co. t. Duvall; 225
U. 8. 477, 482, 56 L. ed. 1171, 1174, 82 Sup.
Ct Rep. 790; Grand Trunk Western R. Co.
?. Lindsay, 238 U. S. 42, 58 L. ed. 838, 34
Sap. Ct. Rep. 581, Ann. Cas. 1914C, 168;
Illinois C. R. Co. v. Behrens, 233 U. S. 473,
68 L. ed. 1051, 34 Sup. Ct. Rep. 646, Ann.
Ofts. 1914C, 163.
The question is still open for review in
this court whether there was any evidence
of negligence on the part of the defendant,
and whether there was any evidence proxi-
mately connecting any breach of duty shown
to have existed with the injuries suffered
bjr the intestate.
St Louis, I. M. & S. R. Co. v. McWhirter,
220 U. S. 265, 57 L. ed. 1179, 33 Sup. Ct.
Rep. 858.
Even granting that the testimony shows a
breach of duty on the part of defendant
ander some one or more of ther allegations
of the complaint, there is no evidence to
justify the reasonable inference that such
breach of duty was a proximate cause of
intestate's death. The cause of intestate's
death is a matter of pure surmise, and it
it is no more reasonable to conjecture that
it was caused by the negligence of the de-
fendant in any of the particulars alleged
than it is to conjecture that it was caused
entirely by the negligence of intestate, by
a mistake of judgment on his part, or in
any other manner to which the limitless
road of conjecture may lead us.
Patton V. Texas & P. R. Co. 179 U. S. 658,
46 L. ed. 361, 21 Sup. Ct. Rep. 275; Qreen
?. Southern R. Co. 72 S. C. 308, 52 S. £. 45,
6 Ann. Cas. 165.
The evidence admitted only of the infer-
ence that intestate assumed the risks.
Seaboard Air Line R. Co. v. Horton, 233
TJ. 8. 492, 58 L. ed. 1062, L.R.A.1915C, 1,
34 Sup. Ct. Rep. 635, 8 N. C. C. A. 834,
Ann. Cas. 1915B, 475; Randall v. Baltimore
* 0. R. Co. 109 U. S. 478, 27 L. ed. 1003,
3 Sup. Ct. Rep. 322; Tuttle v. Detroit, G.
H. k M. R. Co. 122 U. S. 194, 30 L. ed.
10 L. ed.
1116, 7 Sup. Ct. Rep. 1166; Southern R. Co.
V. Logan, 71 C. C. A. 281, 138 Fed. 725.
When the plaintiff sought to change her
complaint by alleging the facts that the
defendant carrier was engaged, and the
plaintiff's intestate employed, in interstate
conunerce, she sought absolutely to change
her cause of action from one under one
statute to one under another and different
statute, as these are the two facts making
the Federal act applicable^
Seaboard Air Line R. Co. v. Duvall, 225
U. S. 477, 482, 56 L. ed. 1171, 1174, 32
Sup. Ct. Rep. 790; Grand Trunk Western
R. Co. V. Lindsay, 233 U. S. 42, 58 L. ed.
838, 34 Sup. Ct. Rep. 581, Ann. Cas. 1914C,
168.
The theory of the supreme court of South
Carolina that the change made by the
amendment was merely technical, and not
substantial, is contrary to the decisions of
this court.
Troxell v. Delaware, L. k W. R. Co. 227
U. S. 435, 57 L. ed. 586, 33 Sup. Ct. Rep.
274; St. Louis, I. M. k S. R. Co. v. Hes-
terly, 228 U. S. 702, 57 L. ed. 1031, 33
Sup. Ct. Rep. 703; St. Louis, 8. F. k T.
R. Co. v. Scale, 229 U. S. 156, 67 L. ed.
1129, 33 Sup. Ct. Rep. 651, Ann. Cas. 1914C,
156; North Carolina R. Co. v. Zachary, 232
U. S. 248, 58 L. ed. 591, 34 Sup. Ct. Rep.
305, 9 N. C. C. A. 109, Ann. Cas. 1914C,
159; Toledo, St. L. k W. R. Co. v. Slavin,
236 U. S. 454, 59 L. ed. 671, 35 Sup. Ct.
Rep. 306.
The defendant was, therefore, forced on
to trial on an entirely distinct and separate
cause of action, on which it had never been
summoned into court, and on which it had
had no notice. It was forced to proceed
with the trial of this new case over its
objection, and its prayer for a reasonable
time within which to prepare to meet the
new case was denied.
Coe V. Armour Fertilizer Works, 237 U.
S. 413, 59 L. ed. 1027, 35 Sup. Ct. Rep.
625.
Mr. Frank O. Tompkins argued the
cause, and, with Messrs. C. S. Monteith and
W. H. Cobb, filed a brief for defendant in
error:
The allowance of this amendment in no
way contravened the Federal act. The
court merely gave effect to a rule of local
practice.
Birt V. Southern R. Co. 87 S. C. 239, 69
S. £. 233; Shelton v. Southern R. Co. 86
S. C. 98, 67 S. E. 899; Hewlett v. South
Bound R. Co. 93 S. C. 76, 76 S. E. 32.
And such practice has the approval of this
court.
Missouri, K. k T. R. Co. v. Wulf, 226
U. S. 570, 67 L. ed. 356, 33 Sup. Ct. Re^.
353, 354
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tebic,
135, Ann. Cas. 1914B, 134; North Carolina
It. Co. y. Zachary, 232. U. 8. 248, 58 L.
ed. 591, 34 Sup. Ct. Rep. 305, 9 N. C. C. A.
109, Ann. Cas. 1914C, 159; Wabaah R. Co.
V. Hayes, 234 U. S. 86, 58 L. ed. 1226, 34
Sup. Ct. Rep. 729, 6 N. C. C. A. 224; Toledo,
St. L. & W. R. Co. y. Slavin, 236 U. S. 454,
59 L. ed. 671, 35 Sup. Ct. Rep. 306.
The amendment allowed in the case at
bar was clearly within the power and discre-
tion of the court: Such an amendment may
be allowed even during the trial, when it
does not so materially change the claim or
defencie as to result in prejudice to the ad-
verse party.
Shelton v. Southern R. Co. ; Birt v. South-
ern R. Co., and Hewlett v. South Bound R.
Co., supra; Central Vermont R. Co. v.
White, 238 U. S. 507, 59 L. ed. 1433, 35
Sup. Ct. Rep. 865, 9 N. C. C. A. 265.
Where such amendments are asked for
during the trial, if the opposite party
would be misled or surprised thereby to
his prejudice, it is incumbent upon him to
make the fact appear by affidavit or other-
wise, to the satisfaction of the court; and,
if that is done, the court would either re-
fuse the amendment, or, granting it, would
continue the hearing, or impose such other
terms and conditions as it might deem nec-
essary to prevent prejudice.
Shelton v. Southern R. Co. supra.
Intestate was engaged in interstate com-
merce.
St. Louis, S. F. & T. R. Co. v. Scale, 229
U. S. 156, 57 L. ed. 1129, 33 Sup. Ct. Rep.
651, Ann. Cas. 1914C, 156; Pederson v.
Delaware, L. & W. R. Co. 229 U. S. 146, 57
L. ed. 1125, 33 Sup. Ct. Rep. 648, 3 N. C.
C. A. 779, Ann. Cas. 1914C, 153; New York
C. A H. R. R. Co. v. Carr, 238 U. S. 260,
59 L. ed. 1298, 35 Sup. Ct. Rep. 780, 9 N.
v/. C A. 1.
The engine that killed deceased was not
engaged in an ordinary or customary switch
or intra-yard movement, but was engaged
in a train movement over main line tracks,
which movement had not been completed,
and the movement was not and could not
be made with the freedom which is usual
in an intra-yard movement.
United States v. Chicago, B. & Q. R. Co.
237 U. S. 410, 59 L. ed. 1023, 35 Sup. Ct
Rep. 634; United States v. Erie R. Co.
237 U. S. 402, 59 L. ed. 1019, 35 Sup. Ct.
Rep. 621.
There was ample testimony offered in
support of every allegation of negligence
charged in the complaint, and the case was
submitted to the jury under a full charge of
the court. The charge was such as has been
approved by this court in Seaboard Air Line i
R. Co. V. Moore, 228 U. 8. 433, 57 L. ed.
907, 33 Sup. Ct. Rep. 580; McGovem v.
Philadelphia & R. R. Co. 235 U. S. 389, 59
L. ed. 283, 35 Sup. a. Rep. 127, 8 N. C. C.
A. 67.
Even if we were to concede, which we by
no means do, that the testimony offered in
support of the allegations of negligence in
the complaint was meager, this court should
not dismiss the case.
American R. Co. v. Didricksen, 227 U. S.
145, 57 L. ed. 456, 33 Sup. Ct. Rep. 224;
Myers v. PitUburgh Coal Co. 233 U. S. 184,
58 L. ed. 906, 34 Sup. Ct. Rep. 550.
A direction of a verdict was not war-
ranted and would have been improper.
McGovem v. Philadelphia & R. R. Co.
supra.
The contention advanced by the plaintiff
in error to the effect that the question of
dependency was not an issue, under the
state law, is erroneous. It is true that re-
covery under the state law can be had in
the absence of evidence showing pecuniary
loss, but where there is no evidence of
pecuniary loss, it is the duty of the court
to instruct the jury not to consider pe-
cuniary loss as an element of damage.
Barksdale v. Seaboard Air Line R. Co.
76 S. C. 183, 56 S. E. 906.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is an action brought by the defendant
in error for causing the death of her intes-
tate, J. T. Koennecke. That latter was run
over by a train of the plaintiff in error (the
defendant) while acting as switchman in
the defendant's yard at Cayce, South Caro-
lina. The declaration alleged reckless neg-
ligence, and set out that the wife and four
children nanied were the only heirs and dis-
tributees of the deceased, that they were
dependent upon him for support, and that
they had suffered damage to the amount of
$75,000. There was a statute in South Car-
olina similar to Lord Campbell's act and
allowing exemplary damages in the case
alleged. In view of testimony brought out
on cross-examination of the plaintiff's wit-
nesses the plaintiff [354] asked leave to
amend so as specifically to bring the case
under the employers' liability act of Con-
gress, of April 22, 1908, chap. 149, 35 SUt.
at L. 65, Comp. SUt. 1913, § 8657, the dec-
laration as it stood not disclosing in terms
under which statute the action was brought.
If it were read as manifestly demanding ex-
emplary damages, that wuuld point to the
state law, but the allegation of dependence
was relevant only under the act of Congress.
The amendment was allowed over a denial
of the power of the court to allow it, which,
however, is not argued here. Central Ver-
mont R. Co. V. White, 238 U. S. 507, 59 L.
239 V. S.
mfc CHRIBTUNSON v. KINO COUNTY. SIM-S66
•d. 1433, 35 Sup. Ct. Rep. 866; Miuouri yard, thftt the movement was not s yard
K. ft T. R. Co. T. Waif, 226 V. S. 670, C76 moTement, that it was on the main track,
fi7 L. ed. 355, 363, 33 Sup. CL Rep. 135 and that there waa no lookout on the end
inn. Cai. 1S14B, 134. The defendant then of the train and no warning of ita ap-
objected to the trial going on. The courl proach. In ahort, the jury might have
hft it to the counsel to say whether he wai found that the eaae waa not that of an in-
taken by iurprise, and, the counsel not being jury done by a awitching engine known to
billing to eay so, although saying that h« i„ engaged upon its ordinary buelneea in »
wa. not prepared on the question of d^ ^^^ ^-^^^ Aerkfeti v. HumphreyB, 115 D.
pendency ordered the trial to proceed. I g ^^^ jg ^ ^ ^^^ ^2 Sup Ct Rep. B35,
waa alleged as an error that the requiremenl i. .< i. ^i. i i ^^ 1
™ contrary to the Uth Amendment. Th, bt^ one where the rule, of the company and
other error, alleged concerned the eulGciency "'^''^We care required a lookout to be
of the evidence said to bring the case with. ''«?»■ " •«'"• *^ »» "'•» " "•»"« have
in the act of CongrcM and al<K> the evidence '««'' »""PO."ble to take the ease from the
touching the questions of nf^Iigence and as- J"'? on the ground either that there woe no
sumption of risk. The plaintiff got » ver- negligence or that the deceased asaumed the
diet fur $22,600, and the supreme court ol "'^- ^P"" *■ consideration of all the ob-
tbe state .usUined the judgment. 101 fi. C, jections urged by the plaintiff in error fn
8S, 8S S. £. 374. its argument and in it. briefs, we are
There is nothing to show that the trial o' opinion that the judgment should b« af-
eonrt exceeded . ita discretionary power in fl>'R>ed.
allowing the trial to go on, — atill less that Judgment affirmed,
there was such an arbitrary requirement as
to amount to a denisl of due process of law —
within the Hth Amendment. The court well ,---,, THn\f*s rHRifSTTAHRns Piff i,
may have considered that the defendant was "**J THOMAS CHRISTIANSON, Pl«. in
endeavoring to get a technical advantage, -trr.,
n it had a right to, but that it would ^'
MfTer no wrong, ilie cause of action arose COUNTV OF KINO,
under a different law by the amendment. Reporter's ed. 369-373.)
but the facta constituting the tort were v ct u . (»- *- < i
He same, whichever law gave them that ef-
fect, and the court wa. warranted in think-
ii^ that on the matter of dependency there
[35S1 Next it i. urged that there waa no court of appeals i. not final where it suf-
evidence that the deceaaed was employed In Aclently appear, from the amended bill that
iatersUte commerce. Upon .uch matters, jur'sdietion below did not depend solely
a. upon queetion. of negligence and the like, "pO" ""■ cititenahip of the respective par-
brought here only because arising in actions Nora.— On appellate jurisdiction of Fed-
on the .tatat«, and involving no new prin- eral Supreme Court over circuit courts of
eiple, we conSne ourselves to a summary appeals — see notes to Bagley v..General Fire
■tatement of reaults. The deceased was en- Extinguisher Co. 53 L. ed. U. S. fl05; and St.
Kaged in distributing the cars from an in- *„''',''™j'',,^"^,''J', J- Pe'»''«yl'""'ia R. Co.
tersUU train and clearing the track for ^^J^ ??■ "■ ^- ", n / i ■
..~.i. ■ . * i . - I? J On the power of Congress over terntonea
Mother interstate tram. He see no ground _^ „„J~t„ pj^t Naj. Bank v. Yankton
for dispute upon tbi. point. Illinoi. C. R. County, 25 L. ed. U. S. 1048.
Co. r. Behrena, 233 U. S. 473, 478, 68 L. ed. As to whether judicial proeeeding ia neces-
10S1. 1065, 34 Sup. Ct. Rep. 646, Ann. Cas. sary to effect escheat— see note to Louiaville
IBUC. 163. The tuggeation that, the train School Board v. King, 16 L.RJk.(N.S.) 379.
Ihat had come in being a local train, it *■ *• ewheat, generally— see notes to
■Igfat have dropped all the cars that came Awe'lc" i^oitft. Co. v. Tennille, 12 L,B.A.
hL outaid. the sUU and taken up other., f^^^"^ Hunilton y. Brown, 40 L. «!. U.
appears to us to present too remote a po«- On wnclusivenesa of judgments, gereral-
tibility to warrant withdrawing the case |y, .ee notes to Sharon v. Terry, 1 L.R.A.
from the jury. See New York C. & H. R. 672; Bollong v. Schuyler Nat. Bank, 3
H, Co. V. Carr, 238 U. S. 260, 50 L. ed. 1208, I>.R.A. 142; Wlese v. San Francisco Musical
36 Sup Ct Rep 730 Fund Soc. 7 L.RA. 677; Morrill v. Morrill,
We see dually little ground for the con- lio^^-*-„^"\?'!?!:i'o''; ""P*"-. " ^-^-^i
•».:» .fc.» .w™ _„ .„ij ^r '*B; Bank of United States v. Beverly, 11
tention that there was no evidence of neg- ^^ ^ ^ g, ^ j^^„^ g^^^, gtreet^Bail
ligence. It at least might have been found ^.^ , Wharton. 38 L. ed. U. 8. 420; and
that Koennecke was killed by a train that Southern P. R. Co. t. United States, 42 L.
had jiut come in and was backing into the ed. U. S. 365.
«• L. ed. \%1
867, 358
SUPREME CX)UBT OF THE UNITED STATES.
Oct. TkBic,
ties, bnt that the controversy inyoWed, with
other questions, the construction of an act
of Congress prescribing the authority of a
territorial legislature.
[For other caues, see Appeal and Error, ni.
d, 2, b, in Digest Sap. Ct. 1908.]
Territories ^ legislative power ^ es-
cheat.
2. To provide for escheat to the county
on the death of an owner in fee without
heirs, as was done by Wash. Laws 1862-^,
p. 262, was within tiie legislative power of
the territorial legislature, which was de-
fined by the Washington organic act of
March 2, 1853 (10 Stat, at L. 172, chap. 90,
Ck>mp. Stat. 1913, § 3438), § 6, as extending
to "all rightful subjects of legislation," not
inconsistent with the Federal Constitution
and laws, notwithstanding the further pro-
vision of that section that "no law sh^ll be
passed interfering with the primary dis-
posal of the soil.*'
[For other cnnes, see Territories, II., In Digest
Sop. (X 1908.]
Statutes ^ entitling ^ expression of
anbject ^ plurality of subjects.
3. The provisions of Wash. Laws 1862-
63, p. 262, for escheat to the county on the
death of an owner in fee without heirs, have
"proper relation" to other matters embraced
in the statute, and are adequately "ex-
pressed in the title," within the meaning of
the Washington organic act of March 2,
1853 (10 Stat, at L. 172, chap. 90, Comp.
Stat. 1913, § 3425), § 6, where the title of
the act was "An Act Defining the Jurisdic-
tion and Practice in the Probate Courts of
Washington Territory," and it covered the
whole subject of probate practice, of wills,
of descent, and of distribution.
[For other cfines, see Statutes, I. e, in Diffest
Sup. Ct. 1908.]
Territories ~ legislative powers — es-
cheat.
4. The Washington territorial legisla-
ture having authority under the organic
act of March 2, 1853 (10 Stat, at L. 172,
chap. 90, Comp. Stat. 1913, § 3425), § 6,
to provide for escheat on failure of heirs,
could suitably provide as to the tribunal
which should have jurisdiction and the
procedure for determining whether the rule
was applicable in a particular case.
[For other en Men, see Territories, II., in Digest
Snp. Ct. 1908.1
Probate courts ^ Jurisdiction — es-
cheat.
6. A probate court having power under
Wash. Laws 1862-63, p. 193, to determine
the interests of the heirs of a decedent in
the real estate to be distributed, had also
the power to determine whether there were
heirs, and if it found that there were none,
to decree an escheat to the county, under a
provision of that act which made such es-
cheat on failure of heirs a part of the
scheme of distribution as tiierein defined.
[For other cases, see Courts, II. b, 2, In
Digest Sop. Ct. 1908.1
Executors and administrators — ap-
pointment — collateral attack.
6. The appointment of an administra-
tor by a probata court having Jurisdiction
8t8
over the subject-matter is not subject to
collateral attack l>ecause of any informality
in the petition for his appointment.
[For other cases, see Bxecators and Admin>
istrators, IL b, in Digest Sup. Ct. 1908.]
Ck>nstltntlonaI law — due process of law
^ escheat.
7. Property is not taken without due
process of law, contrary to U. S. Const,,
14th Amend., by a decree of a probate court,
made under statutory authority, escheating
to the county, after appropriate notice, the
real property of an intestate who was found
to have left no heirs.
[For other cases, see Constitutional Law,
441-622, in Diffest Sap. Ct. 1908.]
Judgment — conclusiveness — collater*
al attack ^ probate court.
8. Th^ decree of a probate court of com-
petent iurisdiction, made under statutory
authority, escheatiuff to the county, after
appropriate notice, Uie real property of an
intestate who was found to have left no
heirs, is not open to collateral attack by a
person claiming title as heir and grantee
of other heirs.
[For other cases, see Judgment, 882-891, in
Digest Sup. Ct. 1908.1
[No. 67.]
Argued November 9 and 10, 1915. Decided
December 13, 1915.
IN ERROR to the United SUtes Circuit
Court of Appeals for the Ninth Circuit
to review a judgment which aflirmed a judg-
ment of the District Court for the Western
District of Washington, Northern Division,
sustaining a demurrer to, and dismissing,
the complaint in an action to recover land
and to quiet title. Affirmed.
See same case below, 122 C. C. A. 188»
203 Fed. 894.
Statement by Mr. Justice Hughes:
This is a suit, brought in 1911, to recover
lands in the city of Sesittle, county of King,
state of Washington, and to quiet title.
See Rem. & Bal. Code (Wash.) § 785. The
plaintiff claimed title as heir, and grantee
of other heirs, of Lars Torgerscm Qrotnes,
who died intestate in the county of King,
territory of Washington, in March, 1865.
The defendant, the county of King, succeeded
the county of King of the territory, which
had control of the property pursuant to a
decree of escheat which was passed by the
probate court in May, 1869. The legislature
of the territory had provided that in case,
of the death of an iutestate leaving no kin-
dred, his estate should escheat to the county
in which it was situated. Washington Laws
1862-63, p. 262. [358] Donurrer was filed
to the amended complaint on the grounds
(among others) that the complaint did not
state facts sufficient to constitute a cause of
action, and that the action had not been eom-
889 U. 8*
VU. CHRIBTUNBON t. EINO 00UNT7. U8-»»
Braced wtthin the time limited bf law. hereby distribiited U followa, to wit: The
The demurrer was auatained and judgment entire estate to the eountj of King, in Walh-
diamitaing the complaint waa affirmed bj ington territory.
the court of appcali. 122 C. C. A. IBS, 203
Fed. 69*. "The following is a particular desoription
After alleging title in tee in Lars Tor- of the said reaidue of said estate referred
fcraoB Grotnea, and the fact that he had to in thia decree, and of which diatribution
icqnircd the land under the name of John is ordered, adjudged, and decreed, to wit;
Thompaon (liaving changed his name to con- "let. Cash, to wit: t343.B3 gold coin.
«i*l his identity) through certain mesne "2d. And real estate, to wit: One hun-
eraveyaneea from the grantee of the United dred and sixty acrea of land on Duwamish
fttatea, the amended complaint aet forth in river, in King count;, W. T., more partleu-
letail the procecdinga in the probate court, larly described in a certain deed from Jo-
whieh may be anmmarited as follows: That aeph Williamson and William Qrcenfleld to
<■ Uareh 20, 18G5, the probate court, upon Jolin Thompaon, dated January IDth, A. n.
U informal request of H. L, Yealer and J, ISB". ^"d recorded in Volume 1 of the ree-
WUIiamwrn, aaaumcd to appoint Daniel Bag- o"^* "t King county, W. T., on pages 468,
lay adminiatrator of the estate of John *^°' *f^ *™-
Thompaon, deceased, the order reciting that
tte deeedent bad died in the county, intea- ''"'
to; tb.t Ju, ^k.1. tau,.rii.t. pro. ;?"«' ^-y f ,'■■ ;»"■■• ,
<«di»g. tl,. .dmml.tr.l»r pr.MnM U. p» '.' "' J ''f,? ""'5 tl" "'VtX,
~r7 " ^ , ,„ ,„„„ , .. .. , and void, tliat the probate court waa wholly
fibon on February 12. 1869, stating that no ^^^^^^ juri^liction to paMi [360] upon th«
beirs at Uw had been found after diligent ^.^^^ ^^ j^e land described or to declare it ee-
•eareh, and praying that the administrator cheated; that ail claims to the land by de-
might be discharged and that afUr due no- tendmt, and all its sets relating thereto,
tice the eataU might be turned over to the i,„d beea under this assailed decree, and
eoonty or aueh further order made as might that the defendant had no instrument or
be meet; and that on May 20, 18B9, after judgment purporting to evidence any title
publication of notice for four weeks in a in it; that neither the defendant nor any
local newspaper, a lliial decree of dittribu- other authority had inatituted any suit or
tiou was entered which recited the proceed- proceeding before any tribunal for the pur-
higs and continued aa follows: poae of liaving an escheat declared or its
"That said decedent died intestate In the claim of title conHrmed. Tlie acU of the
county of King, Washington territory, on county in relation to the land were set forth,
the — day of March, a, d. 1805, leaving do the tracts involved being described aa the
Iwirs surviving him; "King County Farm," "King County Eo(-
*........ pital Grounds," "King County Addition to
"There being no heirs of said decedent, the City of Seattle," "King County 2d Ad-
tbat the entire estate escheat to the county dition to the City of Seattle." The plain-
U King, in Washington territory. tiff did not seelc to recover the lands whicli
[358] "Now on this 20th day of May, liaJ been appropriated for railroad rights of
i. D. ISOQ, on motion of said Daniel Bagley, way or highways, or that portion wJiich
administrator of said estate, and no excep- had been sold to innocent purchasers, and
tious or objections being tiled or made by it was also conceded that the county might
any person interested in the said estate or retain tlie buildinga and tangible better-
etherwiae; ments which it had placed upon the land, aa
"It ia hereby ordered, adjudged, and dc- stated,
ereed: that ell the acts and proceedings of At the outaet, after alleging that the
■aid administrator, aa reported by thia court plaintifT tvna a subject of the King of Nor-
ud as appearing upon the recorila thereof, way and that the matter in dispute exceeded
bt and tiic same are hereby approved and in value the sum of $300,000, the amended
eonflrmed; and that after deducting said es- complaint set forth that the controversy In-
timated expenses of cloaing the adminiatra- volved the construction of Amendments K
Hon, the residue of aaid estate of John and 14 of the Constitution of the United
Thompson, deceased, not heretofore distrib- States, and of g| 18S1, 1907, and 1924 of the
nted, hereinafter particularly described, and Revised Statutes of the United Statea
now remaining in the hands of aaid adminia- (Comp. Stat. 1B13, g S438), relating to the
trator, and any other property not now territory of Washington.
blown or discovered which may belong to It was further stated that the hetrs of
tlie aaid estate, or in which the said estate the decedent had no knowledge of his wfaere-
Biiy have any interest, be and the aame is abouta or death until three years prior t«
ID L. ed. \%«
3eo
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tfsii,
tbe beginning of the action, and that the I
heirs, and particularly the plaintiff, had
been diligent since receiving thia informal
tion in searching for the proofs of the de-
cedent's identity and of their relationship.
Mr. Edward Jndd argued the cause, and,
with Messrs. Livingston B. Stedman and S.
S. Langland, filed a brief lor plaintiff in
«rror :
Under our system of government all prop-
erty that escheats in a territory goes to the
United States.
Williams ▼. Wilson, Mart. & Y. 248;
Etheridge ▼. Doe, 18 Ala. 565; Territory ▼.
Lee, 2 Mont. 124, 6 Mor. Min. Rep. 248;
Church of Jesus Christ of L. D. S. v. United
SUtes, 136 U. S. 1, 34 L. ed. 481, 10 Sup.
Ct. Rep. 792.
The organic law of the territory conveyed
to it no property rights of the United
States.
36 Cyc. 1171, 1177.
The territorial act giving escheated prop-
erty to its counties trenched upon the pri-
mary disposal of the soil in a manner for-
bidden by the organic act.
Territory v. Lee, 2 Mont. 124, 6 Mor. Min.
Rep. 248; King v. Ware, 53 Iowa, 97, 4
N. W. 868.
The territorial act giving escheated prop-
erty to its counties had not, under the or-
ganic law, a title broad enough to aover the
aubject-matter.
Bradley Engineering & Mach. Co. v.
Muzzy, 54 Wash. 227, 103 Pac. 37, 18 Ann.
Cas. 1072; Harland ▼. Territory, 3 Wash.
Terr. 131, 13 Pac. 453.
The sovereign does not take escheated
property as a successor to the decedent.
For failure of heirs the title of the decedent
•ceases and terminates; the original title of
the sovereign revives, and the title of the
sovereign is based upon its original owner-
ship, and not upon the ownership of the
decedent.
State V. Ames, 23 La. Ann. 71 ; Re Miner,
143 Cal. 194, 76 Pac. 968.
It is necessary to have a proceeding of
""office found'* before title to escheated lands
can revest in the sovereign.
People ex rel. Atty. Gen. ▼. Roach, 76
Cal. 294, 18 Pac. 407; Re Miner, supra;
Wilbur V. Tobey, 16 Pick. 180; Doe ex dem.
Hayne v. Redfem, 12 East, 96; Hall v. Git-
tings, 2 Harr. & J. 125; Wallahan v. In-
gersoll, 11:7 111. 123, 7 N. E. 620; Jackson
«z dem. Smith v. Adams, 7 Wend. 367 ; Peo-
ple V. Folsom, 6 Cal. 379 ; Peterkin v. Inloes,
4 Md. 175; University of North Carolina v.
Harrison, 90 N. C. 385; Catham v. State,
2 Head, 653; People v. Fulton F. Ins. Co. 25
Wend. 218; Hammond v. Inloes, 4 Md. 138;
Wiederanders v. State, 64 Tex. 133; Hamil- '
ton V. Brown, 161 U. S. 261, 40 L. ed. 094,
16 Sup. Ct. Rep. 585.
The territorial act defining the jurisdic-
tion of the probate court did not cover es-
cheats.
Stewart v. Lohr, 1 Wash. 343, 22 Am. St.
Rep. 150, 25 Pac. 457 ; Re Alfstad, 27 Wash.
176, 67 Pac. 593; Re Belt, 29 Wash. 540, 92
Am. St. Rep. 916, 70 Pac. 74; Harris y.
M'Kee, 4 Mart. N. S. 485.
The proceedings were insufficient, under
the territorial laws, to give jurisdiction.
18 Cyc. 122.
The probate proceedings were not due
process of law.
8 Cyc. 1080; Hamilton v. Brown, 161 U.
S. 261, 40 L. ed. 604, 16 Sup. Ct. Rep. 585.
Mr. Robert H. Evans argued the cause,
and, with Messrs. Alfred H. Lundin and
John F. Murphy, filed a brief for defendant
in error:
So far as the original complaint is con-
cerned, jurisdiction in the district court de-
pended entirely upon the diverse citizenship
of the parties.
Hanford v. Davies,' 163 U. S. 274, 41 L.
ed. 157, 16 Sup. Ct. Rep. 1051.
A case cannot be said to arise under the
Constitution of the United States, or be con-
trolled by Federal statute, unless its de-
cision turns upon the construction to be
given thereto.
Empire State-Idaho Min. & Developing Co.
V. Hanley, 205 U. S. 226, 51 L. ed. 779, 27
Sup. Ct. Rep. 476.
It must affirmatively appear from plain-
tiff's pleadings that the case is one substan-
tially and really dependent upon the con-
struction to be given the particular section
of the Constitution or the Federal statute,
and this must be asserted by plaintiff as an
issue of fact in his pleadings in logical form,
such as is required by the rules of good
pleading.
Omaha Electric Light & P. Co. v. Omaha,
230 U. S. 123, 57 L. ed. 1419, 33 Sup. Ct.
Rep. 974.
Plaintiff in error, by electing to carry his
case for review to the circuit court of ap-
peals, instead of directly to this court, if
the case is really one involving the Consti-
tution of the United States, has exhausted
his right to have the decision of the dis-
trict court against him reviewed on appeal,
and, as a result thereof, this court is with-
out jurisdiction.
Bois^ Artesian Hot k Cold Water Co. y.
Bois4 City, 230 U. S. 98, 57 L. ed. 1409,
33 Sup. Ct. Rep. 1003; Macfadden ▼. United
States, 213 U. S. 291, 53 L. ed. 801, 29 Sup.
Ct. Rep. 490.
Congress never disapproved any of the
probate acts of Washington territory. They
tS9 U. S.
IflS.
CHRISTIANSON v. KING COUNTY.
361, 382
are to be deemed valid unless ao disap-
proYed.
ClinUm y. Englebrecht, 13 Wall. 434, 20
Ia, ed. 659.
The claim that the territorial legisla-
ture was without power to legislate upon
the subject of escheats is based upon the
restriction that no law should be passed
interfering with the' primary disposal of
the soil. T)ie county •claims that this re-
striction has no possible application to the
<atse. It was only intended by Congress to
prerent the territorial legislature from
passing laws interfering with the authority
of Congress to direct the manner in which
the public domain of the United States
should be disposed of by the government.
Oury Y. Goodwin, 3 Ariz, 255, 26 Pac.
376; Topeka Commercial Security Co. v.
McPherson, 7 Okla. 332, 54 Pac. 489; Crane
Y. Reeder, 21 Mich. 24, 4 Am. Rep. 430.
Congress intended to, and did, leave the
subject-matter of escheat to the several
states and territories, and escheated prop-
erty must go where the ' local statutes di-
rect.
Hamilton v. Brown, 101 U. S. 256, 40
Ix ed. 691, 16 Sup. Ct. Rep. 585.
The supreme court of Washington, as
well as the local Federal courts, have rec-
ognized the validity of the territorial stat-
utes of 1862, and the power of the territorial
assembly to enact laws dealing with es-
cheats.
Territory v. Klee, 1 Wash. 183, 23 Pac.
417; Pacific Bank v. Hannah, 23 C. C. A.
522, 59 U. S. App. 457, 90 Fed. 72; Re Sul-
livan, 48 Wash. 631, 94 Pac. 483, 05 Pac. 71.
There is nothing in the organic act to
prevent the territorial assembly from con-
ferring jurisdiction over escheats or the
distribution of estates of deceased persons
in case of failure of kindred. The organic
set places no restriction upon the territorial
legislature from conferring the ordinary
jurisdiction and powers upon its probate
courts.
Ferris v. Higley, 20 Wall. 375, 22 L. ed.
383.
Plaintiff in error - contends that before
the estate could be escheated, it was neces-
sary, under the law, for the public authori-
ties to bring some proceeding in the nature
of an inquest of office, or office found, in
some court other than the probate court.
•Such may have been the method pursued
st common law, but whether this or some
other method shall be resorted to in this
eountry depends wholly upon the statutes of
the particular state or territory where the
property is situated.
Hamilton v. Brown, supra.
No one. can claim a vested right before
death of the intestate in the laws controlling
«0 li. ed.
the descent and distribution of property,
and such laws and regulations are subject,
like rules of the common law, to legislative
change at any time.
Munn V. Hlinois, 94 U. S. 113, 24 L. ed.
77.
No different effect can be given to the de-
crees of probate courts, made within this
jurisdiction, from that given to the de-
crees of other courts of record. Both are
conclusive and binding.
Broderick's Will (Kieley y. McGlynn) 21
Wall. 503, 22 L. ed. 599.
Such effect has been given to the decrees
of the probate courts of the state of Wash-
ington by the supreme court of the state.
Re Ostlund, 67 Wash. 359, 135 Am. St.
Rep. 990, 106 Pac. 1116; Magee v. Big
Bend Land Co. 51 Wash. 406, 99 Pac. 16.
Mr. Justice Hughes, after making the
foregoing statement, delivered the opinion
of the court:
The motion to dismiss must be denied. It
sufficiently appears from the amended bill
that jurisdiction did not depend solely upon
the citizenship of the respective [362] par-
ties, but that the controversy involved, with
other questions, the construction of the act
of Congress prescribing the authority of the
territorial legislature. In this view, the de-
cision of the circuit court of appeals is not
final. Vicksburg v. Henson, 231 U. S. 259,
267, 58 L. ed. 209, 215, 34 Sup. Ct. Rep. 95.
The plaintiff in error contends that the
land in question did not escheat to the coun-
ty of King, territory of Washington, for the
reasons (1) that the territory was not a
sovereign, but a municipal corporation; (2)
that the organic law of the territory con-
veyed to it no property rights of the United
States; (3) that the act of the territorial
legislature providing for escheat to counties
was forbidden by the organic law; (4) that
this legislative act was invalid because its
title was not broad enough to cover the sub-
ject-matter; and (5) that there was never
any office found.
There is, of course, no dispute as to the
sovereignty of the United States over the
territory of Washington, or as to the con-
sequent control of Congress. As an organ-
ized political division, the territory pos-
sessed only the powers which Congress had
conferred, and hence the territorial legis-
lature could not provide for escheat unless
such provision was within the granted au-
thority. Sere v. Pitot, 6 Cranch, 332, 337,
3 L. ed. 240, 241; American Ins. Co. v. 356
Bales of Cotton, 1 Pet. 511, 543, 7 I*, ed.
242, 255 ; First Nat. Bank v. Yankton Coun-
ty, 101 U. S. 129, 133, 26 L. ed. 1046, 1047.
The organic act (March 2, 1853, 10 Stat, at
L. 172, 175, chap. 90, Comp. Stat. 191 3«
362-366
SUPREME COURT OF THE UNITED STATES.
Oct. Temm,
§§ 3425, 3438; see Rev. Stat. §§ 1851, 1924,
Comp. Stat. 1913, f 3438) provided as fol-
lows:
"Sec. 6. • • • That the legislative power
of the territory shall extend to all rightful
subjects of legislation not inconsistent with
the Constitution and laws of the United
States. But no law shall be passed interfer-
ing with the primary disposal of the soil;
no tax shall be imposed upon the property
of the United States; nor shall the lands
or other property of nonresidents be taxed
higher than the lands or other property of
residents. All the [363] laws passed by the
legislative assembly shall be submitted to
the Congress of the United States, and, if
disapproved, shall be null and of no effect:
Provided, That nothing in this act shall be
construed to give power to incorporate a
bank or any institution with banking pow-
ers, or to borrow money in the name of the
territory, or to pledge the faith of the people
of the same for any loan whatever, directly
or indirectly. No charter granting any
privileges of making, issuing, or putting in-
to circulation any notes or bills in the like-
ness of bank notes, or any bonds, scrip,
drafts, bills of ^change, or obligations, or
granting any other banking powers or privi-
leges, shall be passed by the legislative as-
sembly; nor shall the establishment of any
branch or agency of any such corporation,
derived from other authority, be allowed in
said territory; nor shall said legislative as-
sembly authorize the issue of any obligation,
scrip, or evidence of debt» by said territory,
in any mode or manner whatever, except
certificates for service to said territory.
And all such laws, or any law or laws incon-
sistent with the provisions of this act, shall
be utterly null and void. And all taxes shall
be equal and uniform; and no distinctions
shall be made in the assessments between
different kinds of property, but the assess-
ments shall be according to the value there-
of. To avoid improper influences, which may
result from intermixing in one and the same
act such things as have no proper relation
to each other, every law shall embrace but
one object, and that shall be expressed in the
title."
This manifestly was not a grant of the
property of the United States, but it was
an authority which extended to "all right-
ful subjects*' of legislation save as it was
limited by the essential requirement of con-
formity to the Constitution and laws of the
United States and by the restrictions im-
posed. Tlie prohibition against interference
''with the primary disposal of the soil*' de-
fined a limitation which had been established
from the beginning in organizing [364]
territorial governments. This provision
was found in the ordinance passed by
the Congress of the Confederation, April
23, 1784, for the government of the
Western Territory (Amer. Cong. Pub.
Journals, vol. 4, 1782-1788, p. 379),
and it was re-enacted in the supersed-
ing ordinance of 1787 (art. 4, 1 Stat, at L.
52, note). It was incorporated either by ap-
propriate reference^ or by express statement*
in the organic acts of the territories, and It
was continued in substantially the same
words in many of the enabling acts under
which states were admitted to the Union. <
For example, when Wisconsin was admitted,
it was stipulated as a condition (9 Stat, at
L. 68, chap. 89 ) that the state should "never
interfere with the primary disposal of the
soil within the same by the United States,"
— a condition which had its exact equivalent
in the provision of other enabling acts that
the states should "never interfere with the
primary disposal of the public lands" lying
within them (Arkansas, 5 Stat, at L. 51,
chap. 100; Iowa, Florida, 5 Stat, at L. 743,
chap. 48 ; California, 9 Stat, at L. 452, chap.
50). The restriction had reference to the
disposition of the public lands of the United
States, and neither as to state nor as to
territory did these words purport to limit
the legislative power, otherwise duly exer-
cised, where property had passed into
private ownership and there was no interfer-
ence with the exclusive authority of Con-
gress in dealing with the public domain.
Carroll ▼. Safford. 3 How. 441, 461, 11 L. ed.
671,680; Witherspoon ▼. Duncan, 4 Wall.
210, 218, 18 L. ed. 339, 342; Van Brocklin ▼.
Tennessee (Van Brocklin v. Anderson) 117
U. S. 151, 164, 163, 29 L. ed. 845, 849, 850, 6
Sup. Ct. Rep. 670; [365] Crane v. Reeder,
21 Mich. 24, 74, 4 Am. Rep. 430; Oury v.
Goodwin, 3 Ariz. 255, 260, 26 Pac. 376; To-
peka Commercial Secur. Co. v. McPherson, 7
Okla. 332, 338-340, 64 Pac. 489. So far as
"the primary disposal of the soil" was con-
cerned, provision for escheat on the death of
1 Territory south of the Ohio, 1 SUt. st
L. 123, chap. 14; Mississippi, 1 Stat, at Ia.
549, chap. 28; Indiana, 2 Stat, at L. 68,
chap. 41 ; Michigan, 2 Stat, at L. 309, chap.
5; Illinois, 2 Stat, at J>. 514, chap. 13; Ala-
bama, 3 Stat, at L. 371, chap. 59.
s £. g. Territory of Orleans, 2 Stat, at L.
284, chap. 38; Missouri, 2 Stat, at L. 747,
chap. 95; Florida, 3 Stat, at L. 655, chap.
13; Wisconsin, 5 Stat, at L. 13, chap. 54;
Iowa, 5 Stat, at L. 237, chap. 96; Oregon,
9 Stat, at L. 325, chap. 177: Minnesota, 9
Stat, at L. 405, chap. 121; New Mexico,
9 Stat, at L. 449, chap. 49; Utah, 9 SUt.
at L. 454, chap. 51.
SE. g. Missouri, 3 Stat, at L. 547, chap.
22; Arkansas, 5 Stat, at L. 51, chap. 100;
Iowa, Florida, 5 Stat, at L. 743, chap. 48;
California, 9 Stat, at !>. 452, chap. 50;
Wisconsin, 9 Stat, at L. 58, chap. 89; Kan*
sas, 12 Stat at L. 127, chap. 20. '
as9 u. s.
1916.
CHKISTIANSOK v. KING COUNTY.
365-367
as owner in fee without beira could not be
deemed to be an interference, whether the
proriaion was enacted by a territory or by a
lUte.
The ecope of the authority conferred upon
territorial governments has frequently been
described. Subject to the general scheme of
local government defined by the organic act,
and the special provisions it contains, and
subject also to the right of Congress "to re-
vise, alter, and revoke at its discretion," the
local legislature has generally been intrusted
''with the enactment of the entire system of
municipal law." Hombuckle v. Toombs, 18
WalL 648, 655, 21 L. ed. 906, 067. "Right-
ful subjects" of legislation, except as other-
wise provided, included all those Subjects
upon which legislatures had been accustomed
to act Maynard v. Hill, 125 U. S. 190, 204,
31 L. ed. 654, 656, 8 Sup. Ct Rep. 723 ; Clin-
ton Y. Englebrecht, 13 WalL 434, 442, 20
L ed. 659, C61; Cope v. Cope, 137 U. S. 682,
684, 34 L. ed. 832, 833, 11 Sup. Ct. Rep. 222;
Walker v. New Mexico & S. P. R. Co. 165 U.
8. 593, 604, 41 L. ed. 837, 843, 17 Sup. Ct.
Rep. 421, 1 Am. Neg. Rep. 768. Unquestion-
ably, authority was granted to the territory
to legislate with respect to the devolution
of real property on the death of the owner.
Tlius in Cope v. Cope, 137 U. S. 682, 684,
34 L. ed. 832, 833, 11 Sup. Ct. Rep. 222,
where the validity of an act of the territori-
al legislature of Utah permitting inheritance
by illegitimate children was sustained, it
was said by the court, after referring to the
restrictions of the organic act: "With the
exceptions noted in this section, the power of
the territorial legislature was apparently as
plenary as that of the legislature of a state.
Haynard y. Hill, 125 U. S. 190, 204, 31 L.
ed.*654, 656, 8 Sup. Ct. Rep. 723. The dis-
tribution of and the right of succession to
the estates of deceased persons are matters
exclusively of state cognizance, and are
such as were within the competence of the
territorial legislature to deal with as it
saw fit, in the absence of an inhibition by
Congress." Escheat on failure [366] of
heirs was a familiar subject of legislation in
the American commonwealths. The rule of
the common law in this respect, as in others,
was subject to modification, and adaptation
to local conditions was essentially a matter
<if legislative policy. In the case of the ter-
ritories. Congress could have dealt with this
subject if it chose, but it did not see fit to
establish a rule of its own. The matter,
however, remained a ''rightful subject" of
legislation, and Congress did not except it
from the broad grant of legislative power.
Assuming that it had authority, the legis-
lative assembly of the territory of Washing-
ton at its first session provided in its article
on '^Descent of Real Estate" that ''if the in-
•0 Ii. ed.
testate shall leave no kindred, his estate
shall escheat to the territory." Statutes of
Washington Territory 1854, p. 306. Similar
provision was made in the case of personal-
ty. Id. p. 308. In 1860, it was enacted that
if the intestate should leave no kindred his
real estate should escheat to the county in
which it was situated, and his personal es-
tate to the county in which the administra-
tion was had. Washington Laws 1859-60,
pp. 222, 224. These provisions were re-en-
acted in the ''probate practice act" of 1863.
Washington Laws 1862-63, pp. 262, 265. By
the Code of 1881, the estate, on failure of
heirs, was to escheat to the territory "for
the support of the common schools" in the
county in which the decedent resided or
where the estate was situated. Sec. 3302,
Eighth. It is significant that these acts,
thus asserting the legislative power from
the time of the organization of the territory
until it became a state, were never disap-
proved by Congress.
It is urged that to sustain the legislative
authority to enact legislation of this charac-
ter would be contrary to the principles de-
clared in the case of the Church of Jesus
Christ of L. D. S. y. United States, 136 U.
S. 1, 34 L. ed. 478, 10 Sup. Ct. Rep. 702.
But this contention is without basis. In
that case, the suit was brought pursuant to
an act of Congress, and it was pointed out
that Congress had expressly declared in the
earlier act of 1862 that all real [367] estate
acquired by the corporation contrary to its
provisions should "be forfeited and escheat
to the United States." Id. p. 47. Our at-
tention is also directed to statements in the
opinions in Williams y. Wilson, Mart, k Y.
248, 252, and Etheridge v. Doe, 18 Ala. 565,
574, but neither of these cases involved the
question of the validity of territorial legis-
lation for escheat. In Territory v. Lee, 2
Mont. 124, 6 Mor. Min. Rep. 248, the act
of the territory by which it was attempted
to forfeit placer mines held by aliens was de-
clared to be invalid, but the controlling con-
sideration was that its provisions were re-
pugnant to the authority and action of Con-
gress with respect to the disposition of the
public lands. See also King v. Ware, 53
Iowa, 97, 4 N. W. 858, 860. On the other
hand, in Crane v. Reeder, 21 Mich. 24, 76, 4
Am. Rep. 450, the legislation of the territory
of Michigan providing for escheat on failure
of lawful heirs was found not to be in con-
flict with the ordinance of 1787 or with any
act of Congress. And, so far as the question
has been considered with regard to the ter-
ritory of Washington, the authority of the
legislature has been upheld. Pacific Bank
Y. Hannah, 32 C. C. A. 522, 59 U. S. App.
457, 90 Fed. 72, 79; see Territory y. Klee,
1 Wash. 183, 188, 23 Pac 417.
367-370
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tbkm,
It is also objected that the title of the
act here involved was not sufficient under
the last provision of § 6 of the organic act
above quoted. Rev. Stat. § 1924. The stat-
ute under which the proceeding was had was
entitled, ''An act Defining the Jurisdiction
and Practice in the Probate Courts of Wash-
ington Territory." Washington Laws 1862-
63, p. 193. It covered the whole subject of
probate practice, of wills, of descent, and
of distribution. We are of the opinion that
the matter of escheat for failure of heirs
did have "proper relation'' to the other mat-
ters embraced in the statute, and that the
object was adequately expressed in the title
within the meaning of the organic law. The
objection that there was no "office found"
is not substantial, save as it may be deemed
to [368] raise the question whether there
was compliance with the territorial legisla-
tion, which we shall presently consider. If
the legislature had authority to establish its
rule as to escheat, it was also competent for
it suitably to provide as to the tribunal
which should have jurisdiction, and the pro-
cedure for determining whether the rule was
applicable in a particular case. Hamilton v.
Brown, 161 U. S. 256, 263, 40 L. ed. 691,
695, 16 Sup. Ct. Rep. 585.
Concluding that escheat in the case of
death of an owner without heirs was a right-
ful subject of legislation within the meaning
of the organic act, — ^not inconsistent with
the Constitution and laws of the United
States, and not embraced within the stated
exceptions, — and that the provision in the
probate practice act was a valid exercise of
the authority thus granted, we are brought
to the question as to the jurisdiction of the
probate court to enter the decree set forth
in the amended complaint, and as to the
effect of that decree.
Section 9 of the organic act (10 Stat, at
L. 175, chap. 90; see Rev. Stat. § 1907)
provided that the "judicial power'' of the
territory should be vested "in a supreme
court, district courts, probate courts, and
In justices of the peace," and that the juris-
diction of these courts, including the probate
courts, should be "as limited by law." The
territorial legislature, having the power to
define the jurisdiction of the probate courts,
provided in the act which was in force at
the time of the proceedings in question that
these courts should have original jurisdic-
tion within their respective counties over
probate proceedings, the granting of letters
testamentary and of administration, and the
settlement of accounts of executors and ad-
ministrators (probate practice act of Janu-
ary 16, 1863, 9 3; Washington Laws 1862-
63, p. 199) . On qualification, an administra-
tor was entitled to tlie immediate possession
of the real estate as well as of the personal
3S4
estate of the deceased, and to receive the
rents and profits until the estate was set-
tled [369] or delivered over by order of tlie
probate court to the heirs or deviseed ( id. §
165, p. 228). At any time subsequent to the
second term of the probate court after the
issue of letters, any heir might present his.
petition to the court, asking for his share of
the estate (id. § 309, p. 256) ; and the act
contained the following express provisions
for distribution, which related to both real
and personal property: "Sec. 317. Upon
the settlement of the accounts of the execu-
tor, or administrator, or at any subsequent
time, upon the application of the executor
or administrator, or any heir, devisee or leg-
atee, the* court shall proceed to distribute
the residue of the estate, if any, among the
persons who are by law entitled.
"Sec. 318. In the decree the court shall
name the person and the portion, or parts
to which each shall be entitled; and such
persons shall have the right to demand and
recover their respective shares from the
executor or administrator, or any person
having the same in possession."
Those "by law entitled" to the real es-
tate were described in § 3401 (id. pp. 201,
262 ) , which gave the order of taking [370]
according to relationship, and in the last
paragraph provided for escheat to the coun-
ty if there were no kindred. It does not
seem to be disputed that under this act, if
proceedings in a probate court were properly
initiated, that court would have jurisdiction
to enter a decree determining the interests
of heirs and distributing the real estate to
those of the kindred, if any, who were found
to be entitled to take as provided in this
section. This jurisdiction formerly exer-
iThis section provided:
"Sec. 340. When any person shall die
seised of any lands, tenements, or heredita-
ments, or any ri^ht thereto, or entitled to
any interest therein, in fee simple, or for the
life of another, not having lawfully devised
the same, they shall descend, subject to his
debts, as follows:
"1st. In equal shares to his children, and
to the issue of any deceased child, by right
of representation, and if there be no child
of the intestate living at the time of his
death, his estate shall descend to all hla
other lineal descendants; and if all the
same descendants are in the same degree of
kindred to the intestate, they shall have
the estate equally, otherwise they shall take
according to representation.
"2d. If he shall leave no issue, his estate
shall descend to his father."
(Then follow paragraphs 3d, 4th, Sth,
6th, and 7th with respect to kindred of
different decrees.)
"8th. If the intestate shall leave no kin-
dred, his estate shall escheat to the county
in which such estate may be situate."
839 V. 8.
ine. CHRIBTIAN80N y KING COUNTY. 370-371
dMd Irf th« probate courts of tlie territory the BBme form in the Code of 18S1 (S 713).
ku been cootiaued in the luperior courta of It appeara that from 1863 to tbe year 19QT
the lUte, litting fn probate. Kern, ft Bal. (aee Rem. ft Bal. Code, S 13S6) there was
Code (Waih.) Jg 1587 et wq. See Stewart no proviaion in the Uwe of either the terri-
t. Lobr, 1 Waah. 341, 342, 22 Am. St. Hep. tory or the aUt« in relation to escheat, aave
150, 23 Pac. 457 1 Balch v. Smith, 4 Wash, thoae found in the probate practice acte;
4>7, 500, 502, 30 Pac. 048; Haielton v. Bo- and the act of 1907 did not dUturb thtt
gardui, S Wash. 102, 103, 3fi Psc. 602; Re juriidictioa of the court which had the ad-
Snllivan, 48 Waah. 031, S4 Pac. 483, 95 Pac. miniHtration of the estate. Referring to
Tl; Re Oitlund, 57 Wash. 35S, 364, 366, JS6 this, it is sUtad bj tbe district judge that
Am. St. Rep. B0O, 106 Pac. 1116. Speak- "the probate coutte of the territory and tbe
ag of the essential nature of this proceed- superior eourU of the state have unitorm-
isg for distribution, and describing the dc- If assumed jurisdiction in this class of caaea,
cree If rendered upon due process of law and the right of the state or county to ap-
u flnal and conclusive, the court said in the pear in the probate proceeding and contest
case of Re Ostlund, 67 Wash. 359, 364, 366, the rights of other clnimaute has been
135 Am. St. Rep. 090, 106 Pac. 1116: "Its recognized by the highest court of the sUte."
nrj object and purpose is to judicially 168 Fed. p. 706, citing Re Sullivan, 48
determine who takes the property left by Waah. 631, 94 Fac. 483, 65 Pac. 71. See
the deceased." See also Alaska Bkg. k. S. also Helm t. Johnson, 40 Wash. 420, 4^1,
D. Co. T. Noyes, 64 Wash. 672, 678, 117 Pac. 82 Pac. 402.
4>2; McDowell v.. Beckham, 72 Wash. 224, Deeming it to be clear that the probate
tt7, 130 Pac. 350; Krohn Y. Birsch, 81 court had jurisdiction to declare sn escheat
Wash. 222, 226, 142 Pac. 647. But it U and to distribute the real property to the
MBtended that the county, asserting escheat, county when it was found thiit the intes-
did not claim as successor to the decedent; tete had left no kindred (probate practice
that the jurisdiction of the probate court act 1H63, |§ 317, 318, 340, Bth, p. 262),
ctaaed as soon as it ascertained that there [3Tt] we pass to the remaining question
«ere no heirs, and that it had no power to with respect U> the proceedings that were ac-
deelare the escheat and decree distribution tually taken in that court in connection with
to the county. We cannot accede te this the property in controversy. It is objected
view. It is not tlie ease, in a proper sense, that the petition for the appointment of an
of an attempt to determine the title of third administrator was informal ; that it did not
persons, that is, of adverse claimants, set forth the jurisdictional facts; that it
Stewart t. Lohr, 1 Wash. 341, 342, 22 Am. was signed by Uie persons not shown to liavc
St Rep. 160, 25 Pac. 457. Tbe provision for nny interest in the esUte, and asked for tbe
escheat to the county in case the intestate appointment of another "stranger;" and
left no kindred was a part of the scheme of that hence the court never acquired juris-
distribution defined by the act, and we can- diction, and that ite appointment of the ad-
not doubt that not only had the court the ministrator and its subsequent proceedings
power to determine the interests of the were null and void. But it is not disputed
[S71J heirs in the real estate to be distribu- that the real property was witliin the coun-
ted, but it likewise had the power to deter- ty. The owner, a resident of that county,
laine whether timers were heirs, and if it was had died. The order of appointment re-
found that there were none, to decree dis- cited that he had died intestete. As m
tribution according to the statute. court of record (id. | 5, p. 200) having ca-
It is insisted that S 480 of the civil prac- paeity to administer, ita jurisdiction over
tiee act of 1834 (p. 218) prescribed the the subject— as has been said by the su-
procedurc in relation to escheats; that is, preme court of the state of Washington
it provided for tbe filing of an information „iti, reference to the probate court of the
by the prosecuting attorney in the district territory i— "carries with it the presump-
._„. „ .». .„ ..,_. ^j^^ ^^ ^^^ integrity of the judgment^ the
s does the judgment of a oourt of
jurisdiction." Magee v. Big Bend
•Mill mnnponded to ! 480 of Ih. (omer oot roid, uid, not bam; to.d, it 1. not .ob-
;?..'5' '.".'f "f'.'r*", T" "r"" ~! ITh. refer.™. I, to tb, prob.t. ooorl of
(I 472. p. »S) . In lb. tlv.l pmct.ce not of ^, ,.„i„„ „ a a,|,ud md.r tb. Cod.
1883. tbis proTilion. without th. referniM ^[ iggj. ^ut iU juri.dirtfon »a. not M-
to McbMt. wai rantinunl [) 61B. Waihing- Mntially dilT.rent from tbat of th. probata
ton Lawa 1862-83. p. 192). and it ia found in court under the Mrlier probata practica act.
•0 L. ed. ***
372-374 SUPREME OOURT OF THE UNITED STATES. Oor. Xnoc,
ject to collateral attack. Ibid.; Grignon t. [374] ROBERT MOODT k SONS, Apptt^
Astor, 2 How. 319, 339, 11 L. ed. 283, 291; v.
Florentine y. Barton, 2 Wall. 210, 216, 17 CENTURY SAYINGS BANK.
L. ed. 783, 785; Comatock v. Crawford, 3
Wall. 396, 403, 18 L. ed. 34, 37; McNitt T. (See S. C. Reporter's ed. 374-382.)
Turner, 16 Wall. 352, 366, 21 L. ed. 341,
348; Veach v. Rice, 131 U. S. 293, 314, 33 Appeal — to oircnlt court of appeals
L. ed. 163, 170, 9 Snp. Ct. Rep. 730; Sim- — bankruptcy case.
mons V. Saul, 138 U. S. 439, 457, 34 L. 1- ^'hi* appearance of the mortgagees in
ed. 1054, 1062, 11 Sup. Ct. Rep. 360; ^V^ ^ notice of the petition of the
A -D Au no »• 1 OA aa mortgagor's trustees m bankruptcy for the
4 Bacon, Abr. 96; Pick v. Strong, 26 marsKaling of assets, the sale of the encum-
Minn. 303, 3 N. W. 697; Morgan v. Locke, bered property, and the application of the
28 La. Ann. 806 ; Riley v. McCord, 24 Mo. proceeas to the payment of all liens thereon,
265. It appears that subsequently the pro- ^^^ *^«ir assertion of their conflicting rishts
bate court Iter opportunity had b^n af- jir^^j rvH^V.: rS*^.^ A
forded to discover [373] heirs, entertained proceeds, was the equivalent of ui affirma-
a petition of the administrator for final ac- tive intervention, and, when taken in eon-
dount and distribution. The statutory notice nection with the trustees' petition, brought
(probate practice act 1863, § 319) was pub- ^^ ^^« bankruptcy proceedings a "contro-
... J J XL A J Au J versy" over which the circuit court of ap-
lished and on the return day the proceed- ,J ^^^ ^^3^^^ ^ ^^ bankrupt act S
mg was duly continued, and, on hearing, the J^jy j^ ^393 (39 stat. at L. 644, chap. 641,
decree was entered settling the account, find- Comp. Stat. 1013, § 1229), § 24, with the
ing that there were no heirs, and directing same appellate jurisdiction which, under the
distribution of the real property, as de- Judicial Code, § 128, it possesses in other
scribed, to the county of King. This pro- f**^' ^. . , ^ « ™
J. *• 111. • -D /\-Ai J f^<>' other cases, see Appeal and Error, III.
ceedmg was essentially m rem. Re Ostlund, c, in Digest Sup. Ct. 1008.]
supra; Alaska Bkg. & 8. D. Co. t. Noyes, Marshaling assets ~ homestead ~ walT-
64 Wash. 672, 676, 117 Pac. 492; McDowell er.
V. Beckham, 72 Wash. 224, 227, 130 Pac. ^ ^' /?^® 'i^^* **^.*°^i!!^; *^* P"^
350; Krohn v. Hirsch, 81 Wash. 222, 226, I'ZL^'' l!!^' 1 ^^^O. under which a
1^0 T> aAf rj, 4. 4, M AX. homestead, even when validly mortgaged,
142 Pac. 647. It was competent for the may be sold "only for a deficiency r^S^
court to inquire whether there were heirs, ing after exhausting all other property*'
and, if there were such, to determine who covered by such mortgage, is not stricuy
were entitled to teke according to the order Personal to the mortgagors, but may be as-
prescribed by the statute, and also. If it was f^^ ^^ a junior mortgagee in a proceed-
;,.,./, V • * 1 Av ing" to marshal assets as to the varions moit-
found that there were no heirs, to make the ^^ge liens, notwithsUnding the subsequent
distribution to the county, as the statute waiver bv the mortgagors of their home-
required. It is apparent that there was no stead right.
deprivation of property without due process ^^D^g^Jt^^SupV^Ct. Toos.*"*"*""^ ^^^ *"
of law. The court, after appropriate notice,
did determine that there were no heirs, and r^^ 7q 1
its decree, being the act of a court of
competent jurisdiction under a valid stat- ^^^ November 10 and 11, 1916. Decided
ute, bound all the world, including the plain- December 13 1916.
tiff in error. It cannot be regarded as open
to attack in this action. Grignon v. Astor, . t>t>-b»at * xv tt 'a j ox 1. n>i sx
o XT 910 oon 11 T A OQQ 001 . T?i«,.«« A PPEAL from the United States Circuit
2HOW.310 339 n L ed 283 291; Floren. ^ ^^^ ^^ ^^^ ^^^
«T ;c°"p'*°'.^„^*"w^'^'/?a"- n- 't cuit to review a decree which rfveri^d »
783 785; Caujo le y Ferr.« (Caujolle v. ^^^^ ^^ ^^^ ^.^^^.^ ^^^ ^^^ ^^
^o nL T" ^-n ',^- ; i,f^ \' «"» Di"*"'* <>« !»*•. apportioning the pro-
612; Broderick's Will (Kieley v. McGlynn) ' *^^ ^ *^
21 Wall. 603, 22 L. ed. 699; Simmons v. NoTE.-On appellate jurisdiction of Fed-
Saul, 138 U. 8. 439, 457, 34 L. ed. 1054, 1062, gy^j Supreme Court over circuit courts of
11 Sup. Ct. Rep. 369; Goodrich v. Ferris, appeals— see notes to Bagley v. General Fir«
214 U. S. 71, 80, 81, 53 L. ed. 914, 918, 919, Extinguisher Co. 53 L. ed. U. S. 605: and
29 Sup. Ct. Rep. 580. St. Anthony's Church v. Pennsylvania K.
As, in this view, the judgment of the Co. 69 L. ed. U. S. 1119.
court below must be affirmed, we do not find ^n appellate jurisdiction of Federal Su-
,. . 'J ▲!. A* xu x preme Court in bankruptcy cases — see note
it necessary to consider the questions that P^ j^^^^ ^ g^^^^ g^ ^ ^ g ^^3
have been argued with respect to the ap- q^ marshaling assets for benefit of mori-
plication of the statute of limitationa gi^^r— see note to Newby v. Norton, 47
Judgment affirmed. L.ILA.(N.S.) 302.
SSd tS9 U. 8.
uu.
UOODT V. CBNTUBT SAT. BANK.
ceeda of the Hte of a b^nkrupt'i encumbered
propertj. Affirmed.
See same case below, 120 C. C. A. 49B,
a» Fed. 77S.
Tfae twcte are atated in the opinion.
Hr. S. F. Proatjr argued the cause, and,
with Meiara. George F. Haid and NewUrn
P. Willia, filed a brief for appellanU:
The homcfltead waj » defeasible right in
the owner of tha propertj, and it remained
hotneatead jiut ao long as the beneficiaries
(the familj) desired to continue It as such.
Anj act, therefore, which destroyed tha
homestead charactsr of th« propertj, also
radarad inapplkable the statutory provl-
siaa with reference thereto. So, ahandon-
■lent bj the selection of another homestead,
a conTc^ane* of the absolute fee bj the
bnslMnd and wife, or a waiver in writing
of the homestead by husband and wife,
would place the property in the same con-
dition as other non -homestead property.
Davia, M. ft Co. v. Kelley, 14 Iowa, 623;
Godfrey v. Thornton, U Wis. 683, 1 N. W.
»2.
The statute undoubtedly was enacted tor
the benefit of the owner of the homestead,
aad, like other proTisiona of law, may be
waived hy him.
Dilger V. Palmer, 60 Iowa, 121, 10 N. W.
763, 11 N. W. 134.
The supreme court of Iowa held in the
eaae of Furman v. Dewell, 3E Iowa, 170,
that where a. judgment debtor moved from
one parcel of land to another after the
docketing of the judgment, but both of
which parcels he owned before, the lien was
enforceable against the old homestead only.
The appellee in the present case is in no
position to assert any exemption which
might at one time hare existed with ref-
erence to the homestead property, because
its rights are no greater or stronger than
would be those of a purchaser ol the home-
atcad.
Barktf t. Hollins, 30 Iowa, 413.
It was not within the power ol the owner
either to convey or otherwise confer upon a
third person any of the rights acquired by
him under the statute, lite rights so con-
ferred were purely personal. The statute
does not pretend to create an estate, but
■imply attempts to confer upon the owner
an axanptloa. Bums v. Eeas, 21 Iowa,
250) or a valuable right (Sayers r. Child-
«rs, 112 Iowa, 680, 84 N. W. 038), for the
purpose of securing to him a place of
abode safe from eviction by his creditors.
Where a mortgage is executed on the
homestead and other real estate, and, be-
fore foreclosure, the mortgagor sells and
eotiTeys the other real estate and a part
of the homestead to others, he cannot in-
«t lb ed. E
slet, in a foreclosure proceeding, that the
property so sold and conveyed by him shall
be first exhausted before that part of the
homestead which he retains ihail be sold
to pay the mortgage debt The words
"other property" in said section mnst be
limited to proper^ which belongs to the
mortgagor at the time of foreclosure.
Dilger v. Palmer, 60 Iowa, 117, 10 N. W.
763. 14 N. W. 134.
Under the doctrine of this ease it must
be held that the Iowa court recogniwd the
construction for which we contend, that the
status of the property at the time of the
sale determines the rights and liabilities of
the parties, and it at that time all of the
property subject to the mortgage is non-
exempt property, then the whole of it may
be sold, regardless of the statute.
If none bf the property of the bankrupt
came within the provisions of the Iowa stat-
ute, the case was one for the application
of the equitable doctrine of marshaling
assets; and, as between Johnson and Moody,
Moody would have a right to first require
the exhausting of the property on which
homestead formerly existed by the Johnson
mortgage before resorting to the fund or
property upon which they had a common Hen.
' Pom. Eq. Jur. 3d ed. | 306; Re Hobson,
81 Iowa, 3B2, 11 L.RJl. 266, 40 N. W. 1005.
The right to marshal assets is not a
fixed rl^t, and is, therefore, more or lesa
shifting, to adapt itself to subsequent as
well as to prior equities.
Green *. Rsmtge, 18 Ohio, 428, SI Am.
Dec. 468; Richards v. Cowles, 106 Iowa,
741, 76 N. W. 04B.
The court of appeals was without juris-
diction to consider the case upon an appeal,
Thompson t. Mauzy, BS C. C. A. 467,
174 Fed. 814; Snow t. Dalton, 122 C. C. A.
101, 203 Fed. 846; First Nat. Bank v.
Chicago Title * T. Co. 108 U. S. 280, 2B1,
40 L. ed. 1051, 1066, 26 Sup. Ct. Rep. 603;
Barto T. Stewart, 21 Wash. 606, GB Pac.
480; Re Whitener, 44 C. C. A. 434, 105 Fed.
186; Holder v. Stratton, J91 U. 6. 115, 48
L. ed. 116, 24 Sup. Ct. Bep. 45; Wynkoop,
H. C. Co. v. Gaines, 227 U. 8. 4, S, 67 L. ed.
3B1, 3S3, 33 Sup. Ct. Bep. 214; TefTt, W. t
Co. V. Munsuri, 222 U. S. 114, 120, 66 L.
ed. 118, 120, 32 Sup. Ct Rep. 67; Be
Mueller, 68 C. a A. 34S, 135 Fed. 714.
Mr. William O. Harvlson argued the
cause, and, with Messrs. Horatio F. Dale
and Thomas F. Stevenson, filed a brief for
appellee ;
The bank's right of appeal to the dr-
cuit court of appeals from the order of the
district court in this case is allowed under
the court of appeals act of March 3, 18B1.
Be Irving, 224 U. S. 183, 66 L. ed. 726,
2 %%1
SUPREME COURT OF THE UNITED STATES.
Oct. Twmm,
32 Sup. Ct. Rep. 446; Knapp v. Milwaukee
TruBt Ck>. 216 U. 8. 545, 54 L. ed. 610,
30 Sup. Ct. Rep. 412; Coder v. Aria, 213
U. S. 223, 53 L. ed. 772, 20 Sup. Ct. Rep.
436, 16 Ann. Caa. 1008; First Nat. Bank
y. Chicago Title & T. Co. 198 U. S. 280,
40 L. ed. 1051, 25 Sup. Ct. Rep. 603;
Files V. Brown, 59 C. C. A. 403, 124 Fed.
133; Re Friend, 67 C. C. A. 500, 134 Fed.
778; Martin v. Globe Bank & T. Co. 119
C. C. A. 363, 201 Fed. 31; Rode & Horn
▼: Phipps, 115 C. C. A. 316, 195 Fed. 414;
Re Mueller, 68 C. C. A. 349, 135 Fed. 711;
Brady v. Bernard, 95 C. C. A. 656, 170
Fed. 576; Morehouse v. Pacific Hardware
ft Steel Co. 100 C. C. A. 647, 177 Fed. 337.
Such right of appeal is also allowed by §
24a of the bankrupt act of 1898.
Hobbs y. Head & D. Co. 231 U. S. 692,
58 L. ed. 440, 34 Sup. Ct. Rep. 253 ; Lazarus
y. Prentice, 234 U. S. 263, 58 L. ed. 1305,
34 Sup. Ct. Rep. 851; Greey y. Dockendorflf,
231 U. S. 513, 58 L. ed. 330, 34 Sup. a.
Rep. 166; Houghton y. Burden, 228 U. S.
161, 57 L. ed. 780, 33 Sup. Ct. Rep. 491;
Re Loying, 224 U. S. 183, 56 L. ed. 725,
32 Sup. Ct. Rep. 446; Tefft, W. & Co. y.
Munsuri, 222 U. S. 114, 56 L. ed. 118, 32
Sup. Ct. Rep. 67 ; Knapp y. Milwaukee Trust
Co. 216 U. S. 545, 54 L. ed. 610, 30 Sup.
Ct. Rep. 412; Coder y. Arts, 213 U. S.
223, 53 L. ed. 772, 29 Sup. Ct. Rep. 436,
16 Ann. Cas. 1008; First Nat. Bank y.
Chicago Title & T. Co. 198 U. S. 280, 49
L. ed. 1051, 25 Sup. Ct. Rep. 693; Hewit
y. Berlin Mach. Works, 194 U. S. 296, 48
L. ed. 986, 24 Sup. Ct. Rep. 690; Triumph
Electric Co. y. Patterson, 127 C. C. A. 612,
211 Fed. 244; New Hampshire Say. Bank
T. Vamer, 132 C. C. A. 631, 216 Fed. 721 ;
Sterne y. Merchants' Nat. Bank, 133 C. C.
A. 66, 216 Fed. 862; Thomas y. Woods, 26
L.RJl.(N.S.) 1180, 97 C. C. A. 535, 173
Fed. 585, 19 Ann. Cas. 1080; Files y. Brown,
59 C. C. A. 403, 124 Fed. 133; Re Friend,
67 C. C. A. 500, 134 Fed. 778; Rode &
Horn y. Phipps, 115 C. C. A. 316, 195 Fed.
414; Barnes y. Pampel, 113 C. C. A. 81,
192 Fed. 525; Brady y. Bernard, 95 C. C. A.
666, 170 Fed. 576; Re Mueller, 68 C. C. A.
349, 136 Fed. 711; Kirkpatrick y. Hames-
berger, 118 C. C. A. 334, 199 Fed. 886;
Thompson y. Mauzy, 98 C. C. A. 457, 174
Fed. 611; Re J. Jungmann, 108 C. C. A.
380, 186 Fed. 302; Morehouse y. Pacific
Hardware ft Steel Co. 100 C. C. A. 647,
177 Fed. 337.
Such right of appeal is also allowed by
S 25a (3) of the bankrupt act of 1898.
Re Loying, 224 U. S. 183, 56 L. ed. 725,
32 Sup. Ct. Rep. 446; Tefft, W. ft Co. y.
Munsuri, 222 U. S. 114, 56 L. ed. 118, 32
Sup. Ct. Rep. 67; Coder y. Arts, 213 U. S.
sss
223, 53 L. ed. 772, 29 Sup. Ct. Rep. 436»
16 Ann. Cas. 1008.
The action before the court ia not a
"proceeding in bankruptcy'* proper. It ia a
''controversy arising in bankruptcy pro-
ceedings," or a "controversy arising in the
settlement of the estate of a bankrupt." The
right of appeal therein is allowed as in the
last three propositions above stated.
Houghton v. Burden, 228 U. S. 161, 67
L. ed. 780, 33 Sup. Ct. Rep. 491; Tefft,
W. ft Co. y. Munsuri, 222 U. S. 114, 56 L.
ed. 118, 32 Sup. Ct. Rep. 446; Hewit y.
Berlin Mach. Works, 194 U. S. 296, 48 L.
ed. 986, 24 Sup. Ct. Rep. 690; Files y.
Brown, 59 C. C. A. 403, 124 Fed. 133; Re
Friend, 67 C. C. A. 500, 134 Fed. 778.
The waiver of homestead by the bankrupt
and his wife was without effect as against
the bank and its rights under its mortgage.
1. The homestead ordinarily is exempt
from judicial sale, and in this case consists
of 40 acres.
Re Bailey, 176 Fed. 990.
2. The homestead, being so exempt, did
not pass to the trustees by virtue of the
adjudication of bankruptcy.
Ibid.; Hull y. Dicks, 235 U. S. 684, 50
L. ed. 372, 35 Sup. Ct. Rep. 152.
The homestead was liable to sale in pay-
ment of the Johnson, or first, mortgage, but
only after exhausting the remaining 920
acres covered thereby. The 920 acres of
non-homestead land having sold for more
than enough to pay the Johnson mortgage,
the excess of proceeds of the 920 acres was
properly applied upon the Moody, or second,
mortgage. This left the homestead 40 acres
subject to sale under the bank's mortgage
only.
Taylor y. Trulock, 59 Iowa, 558, 13 N. W.
661.
By executing the bank's mortgage, the
bankrupt and his wife, for a valuable con-
sideration, conveyed to, or waived, their
homestead right in favor of the bank. The
bank, in legal effect, became a purchaser,
for value, of the homestead, subject to tlie
bankrupt's right to redemption only. The
bankrupt had no power to subsequently
again convey or waive the homestead to
the bank's prejudice.
Re Gill, 79 Iowa, 296, 9 L.R.A. 126, 44 N.
W. 553 ; Central Trust Co. v. Stepanek, 138
Iowa, 131, 15 L.R.A.(N.S.) 1025, 128 Am.
St. Rep. 175, 115 N. W. 891; Boggs y.
Douglass, 105 Iowa, 344, 75 N. W. 185;
Linscott v. Lamart, 46 Iowa, 312.
The bank has the same rights under its
mortgage upon the homestead, and aa
against Moody, that it has as against John-
son and against the bankrupt, becauae
Moody has no right in the homeatead, either
1915.
MOODY V. CENITJRY SAV. BANK.
37ft, 376
as a secured or as a general creditor. Un-
der its mortgage, tlie bank steps into the
shoes of, or is subrogated to the exemption
rights of, the bankrupt.
Alley y. Bay, 9 Iowa, &09; Bolton v.
Obeme, H. & Co, 79 Iowa, 278, 44 N. W.
547; Redfield v. Stocker, 91 Iowa, 383^ 59
N. W. 270; Waugh v. Bridgeford, 69 Iowa,
336, 28 N. W. 626; Re Bailey, 176 Fed.
090; Linscott v. Lamart, 46 Iowa, 312.
Equity regards the substance, not the
form. In fact, the bank had a lien on one
fund only, the proceeds of the homestead.
11 Am. & Eng. Enc. Law, 2d ed. title,
Equity, 184.
Marshaling of assets can only be applied
where the creditor against whom the rule
is invoked has two or more funds to look
to, and his rights will not be prejudiced by
the application of the rule.
Story, £q. Jur. 12th ed. §§ 660, 642; 8
Pom. Eq. Jur. 1905, ed. § 1414; Re Hobson,
81 Iowa, 392, 11 L.R.A. 255, 46 N. W. 1095 ;
Cutler V. Ammon, 65 Iowa, 281, 21 N. W.
604; Wolf V. Smith, 36 Iowa, 454; Clarke
T. Bancroft, 13 Iowa, 320 ; Dickson v. Chom,
6 Iowa, 19, 71 Am. Dec. 382; Tollerton
T. Anderson, 108 Iowa, 217, 78 N. W. 822;
Wallin V. Murphy, 117 Iowa, 640, 91 N. W.
93(0; Re Bailey, 176 Fed. 990; McArthur
T. Martin, 23 Minn. 74; Marr v. Lewis, 31
Ark. 203, 25 Am. Rep. 553; Dorr v. Shaw,
4 Johns. Ch. 17; Evertson v. Booth, 19
Johns. 486; Woolcocks v. Hart, 1 Paige,
Ch. 186; Stevens v. Church, 41 Conn. 369;
Shedd & Co. v. Bank of Brattleboro, 32
Vt. 709; Walker v. Covar, 2 S. C. 16; Den-
ham V. Williams, 39 Ga. 312; Calloway v.
People's Bank, 54 Ga. 672; Briggs v. Plan-
ters' Bank, Freem. Ch. (Miss.) 574; Em-
mons ▼. Bradley, 56 Me. 333; Herriman v.
Skillman, 33 Barb. 378; Sweet v. Redhead,
76 111. 374.
Mr. Justice Van Devanter delivered the
opinion of the court:
The facts bearing upon the questions pre-
sented by his appeal are tlicse: On his vol-
untary petition Oscar M. Hartzell, a resident
of Madison county, Iowa, was adjudged a
bankrupt. He owned 960 acres of land in
that county, 40 acres of which he and his
family had been and were occupying as a
homestead. Three mortgages in terms cover-
ing all the land had been given by him, —
the first to Emma Johnson, the second to
Moody k Son, and the third to the Century
Savings Bank. His wife had joined in the
first and third, but not in the second. Aft-
er he was adjudged a bankrupt, he and his
wife executed an instrument waiving and
surrendering their right in the homestead,
ai|d authorizing the trustees in bankruptcy
60 Ij. ed.
to take possession and dispose of the same
for the benefit of all the creditors. At
a later date the trustees filed in the bank-
ruptcy proceeding a petition asserting title
to all the land, reciting the existence of the
mortgages and other asserted liens, and
praying that the 960 acres be sold free of
all liens, that the proceeds be held by the
trustees subject to the further order of the
court, that all persons asserting liens on
any part of the land be required to set them
up by answer, that certain of the asserted
liens be declared void, and that as to the
others the assets be marshaled. Acting up-
on this petition the court, with the assent
of the parties in interest, directed that the
land be sold as prayed, that all liens thereon
be transferred to the proceeds, and that the
latter be held by the trufttees for the pay-
ment of whatever liens or claims might be es-
tablished against the same. The lands were
sold, all liens found to be superior to the
three mortgages were paid out of the pro-
ceeds, and there remained a balance of $54-
264.77, [376] which, although $13,683.94 in
excess of what was required to pay the
first mortgage, was insufficient to pay
it and either of the others. Of this
balance, $8,000 arose from the sale of
the homestead. Moody & Son and the
Century Savings Bank, both appearing
in response to notice of the trustees' pe-
tition, asserted confiicting rights under
their respective mortgages to a part of the
proceeds. Although conceding that the first
mortgage — ^that to Johnson— should be fully
paid, they differed widely respecting the
disposition of the proceeds of the home-
stead. Moody & Son asserting a right
to have the same applied on the first
mortgage, and to receive on their mort-
gage whatever remained of the proceeds
of the other land, and the bank as-
serting a right to have the first mortgage
satisfied from the proceeds of the other land,
and to receive on its mortgage the proceeds
of the homestead. Under the first conten-
tion Moody & Son would receive $13,683.94
and the bank nothing, while imder the oth-
er. Moody & Son would receive $5,083.04
and the bank $8,000. The bankruptcy court
rejected both contentions and held that the
proceeds of the homestead and those of the
other land should be proportionally applied
in paying the first mortgage, that the bal-
ance then remaining from the sale of the
homestead, being $2,947.22, should be paid
on the bank's mortgage, and that the balance
from the sale of the other land, being ^10,-
736.67, should be paid on Moody & Son's
mortgage. A decree was entered accordingly
and the bank appealed to the circuit court
of appeals, which, after overruling a motion
challenging its jurisdiction^ sustained the
STf-Sn SUPREME COUKT OF THE UNITED STATES. Oct. TEUi,
bulk's contentitm, and reversed the decrei! homestead whpn the mortgages were givoi
with instructions vhich were equivalent and up to the time of the walrer before men-
dee Chesapet^e i, P. Teleph. Co. t. Han- tioned. The homeaUad [378J right in thU
Ding, ISe U. S. Z3B, 840, 40 L. ed. 1144, 114S, land was a creation of the statutes of the
2S Sup. Ct. Rep. BSl; Metropolitan Water state, and therefore to determine what bear-
Co. V. Kaw Valley Drainage Dist. 223 U. 8. ing this right had upon the validity and op-
S19, S23, 56 L. ed. S33, G36, 32 Sup. Ct. Rep. erafion of the mortgages «e must turn to
2461 to directing a decree giving full effect those statutes and the decisions of the au-
to that contention. ]23 C. C. A. SBC, 204 preme court of the state construing and ap-
Fed. 003; 126 C. C. A. 49B, 209 Fed. 77fi. pljing them. The sUtutei are found in the
Moody i. Son then appealed to this court. Code of 1BB7, and are as follows:
[3TT] Whether the circuit court of ap- "Sec. 2972. The homestead of every fami-
peala rightly sustained this jurisdiction ly, whether owned by the husband or wife,
turns upon whether this is one of those is exempt from judicial sale, where there ia
"controversies arising in bankruptcy pro- no special declaration of statute to the con-
ceedings" over which the circuit courts trary. , . .
of appeals are invested, by g 24a of the "Sec. 2974. No conveyance or encum-
bankruptcy act, with the same appel- brance of or contract to convey or encumber
late jurisdiction that they possess in the homestead, if the owner is married, i*
other caaea under the Judicial Code, valid, unless the husband and wife join in
I 188 (36 Stat, at L. 1133, chap. 231, the execution of the same joint instrument,
Comp. Stat. 1913. g 1120), or is a mere step whether the homestead is exclusively the
In bankruptcy proceedings, the appellate subject of the contract or not, but such cart-
review of which is regulated by other pro- tracts may be enforced ai to real estate
visions of the bankruptcy act. If it is a other than the homestead at the option of
controversy arising in bankruptcy proceed- the purchaser or encumbrancer. . . .
Ings, the jurisdiction of that court was prop- "Sec. 2976. The homestead may be sold
erly invoked, as is also that of this court, on execution for debts contracted prior to
We entertain no doubt that it is such a con- its acquisition, but in such case it shall not
troversy. It has every attribute of a suit in be sold except to supply any deficiency ra-
equity for the marshaling of assets, the aale maining after exhausting the other property
of the encumbered property, and the applica- qf the debtor liable to execution. It may
tion of the proceeds to the liens in the order also be sold tor dehU created by written
and mode ultimately fixed by the decree, contract, executed by the pers(His having
'I'ne, it was begun by the trustees, and not 'he power to convey, and expressly stipulat-
by an adverse claimant, but this is imma- ing that It is liable therefor, but then only
terial. for the mortgagees, who claimed ad- for a deBcien<7 remaining after exhauating
Tersely to the trustees, not only appeared all other property pledged by the same con-
In response to notice of the trustees' peti- tract for the payment of the driit. . . .
tion, but asserted their mortgage liens and "Sec. 2981. The owner may, from time to
•ought to have them enforced against the pro- time, change the limits of the homestead by
eeeda of the property conformably to the con- changing the metes and bounds, as well aa
tentiona before stated. This was the eqniva- th^ record of the plat and description, or
lent of an affirmative intervention, and, v^caU It, but such changes shall not preju-
when taken in connection with the trust«cB' jj^^ conveyances or liens made or created
petition, brought into the bankruptcy pro- p„viously thereto, and no such change of
eeedlngs a controversy which was quite ^j,^ ^^^[^^ homestead, made without the oon-
apart from the ordina^ steps in such pro- ^^^^^ ^, ^^^ j^^^^^^ ^^ „„^ ,1,^,1 ^^
ceedings and well withm the letter "ad ^j, „ ter [379] rights, or those of the chil-
T't "oln's wr^'nn'-J'J ^ n«« ^•^- The new hom.st^d, to the extent in
iai.2 St^. 2!sr8: ^'5W:^t '» «- -"- ">« «'<! - '--" o- -"">
Cd. 610, 613, 30 Sup. Ct. Rep. 412; Tett, W. """^ '>*«''■ ^ ^^ ^ ^ ^. , .
4 Co. V. Munsuri, 222 U. S. 114. 118, 66 L. Counsel are agreed that under these stat-
ed. 118, 119, 32 Sup. Ct. Rep. 87; Houghton "tes the mortgages to Johnson and the bank,
V. Burden, 228 U. S. 181, 185, 57 L. ed. 780, In "h"'* the wife joined, became valid liens
788, 33 Snp. Ct. Rep. 491; Globe Bank & T. on the homestead as well aa'on the other
Co. V. Martin, 230 U. S. 2B8, 206, 69 L. ed. land; that the intervening mortgage to
«83, 587, 35 Sup. Ct. Rep. 377. Moody & Son, in which the wife did not join.
Coming to the merits, the matter for de- was void as to the homestead, and became
elsion is the proper application or dispcsi- a valid lien only on the other land; that
tton of the proceeds of the 40 acres which this mortgage remsined void as to the home-
tfae bankrupt and bis family occupied aa a stead, notwithstanding the subsequent waiv-
s^a i» V. s.
lOlff.
MOODY v. CENTUBY SAV. BANK.
879-381
cr of the homestead right, and that ita in-
Tmlidity in that respect could be asserted
bj the bank as a subsequent mortgagee. We
tiierefore come to the provision in f 2076
that the homestead, even where validly
mortgaged, may be sold "only for a deficiency
remaining after exhausting all other prop*
erty" covered by the same mortgage.
Whether only the mortgagors may claim the
benefit of this provision, and they only
while they retain the homestead, is the real
point in dispute. Moody & 8<m insist that
it merely confers on the mortgagors a per-
sonal privilege which they may exercise or
waive, as they choose; that in this instance
the privilege was surrendered or terminated
when the homestead right was waived, and
in consequence the provision has no bearing
on the proper application or disposition of
the proceeds of either the homestead or the
other land. The bank, on the other hand,
insists that the right to have this provision
followed is not strictly personal to the mort-
gagors, but may be asserted by one to whom
they transfer an interest in the homestead,
such as a subsequent vendee or mortgagee,
and that no act of theirs, done after the
transfer, can prejudice the transferee in the
exercise of this right. The solution of the
question is not free from difficulty, but we
are persuaded, as was the circuit court of
appeals, that, in view of the decision of the
supreme [380] court of the state in lin-
soott V. Lamart, 48 Iowa, 312, the bank's
contention must be sustained.
The facts in that case, so far as 'now
material, were these: One Ash owned 71
acres of land, 40 of which were his home-
stead. He and his wife mortgaged the en-
tire tract to Lamart. Linscott subsequently
obtained a judgment against Ash and pur-
chased one half of the tract at a sale under
the judgment. Later Ash and his wife sold
and conveyed the entire tract to Lamart, it
being understood that this should not ex-
tinguish the mortgage. Lamart went into
possession and Linscott brought a suit to
determine the rights of the parties in the
land. Lamart prevailed and the supreme
court affirmed the decree, saying: "Ash and
his wife had the right to sell and convey
the homestead to Lamart, and he has tho
right to hold it exempt from judicial sale
on plaintiff's judgment." And, after hold-
ing the sale under the judgment void be-
cause it included part of the homestead, the
court further said: ''What, then, are the
rights of the parties? If Ash had not con-
veyed to Lamart, upon foreclosure of the
mortgage, the homestead could only "he sold
to supply the deficiency remaining after ex-
hausting the other property' included in the
mortgage. Lamart paid Ash some $1,400
for the whole tract, being more than twice
80 L. ed.
the amount of the mortgage. No fraud is
diarged or shown, and as he had the right
to purchase the homestead and hold it as
against plaintiff's judgment, he should now
have the right to have the proceeds of the
land, aside from the homestead, applied in
payment of his mortgage, to the exclusion of
junior liens. In other words, it would bo
inequitable to put him in a worse position
than he would be if he had not taken the
title from Ash. The plaintiff, by this rule,
is left in precisely the same position he
would now occupy if Ash were still holding
his homestead, and Lamart his mortgage.'*
Thus, under tilie influence of the provision
in 8 2978, it was ruled [381] that the
mortgage, which embraced the home-
stead and other land, could be satis-
fied out of the latter to the exclusion
of a junior judgment lien embracing
the other land, but not the homestead^
and this although the mortgagors had
sold the homestead and no longer had any-
right therein. This decision is more nearly
in point than any other, and we think it
shows that the right to invoke the provi-
sion in § 2978 is neither strictly personal
to the mortgagors nor wholly terminated by
their waiver of the homestead right. Moody
k Son place some reliance upon Barker v.
BoUins, 30 Iowa, 412, and Dilger v. Palmer,
80 Iowa, 117, 10 N. W. 783, 14 N. W. 134,
although conceding that the cases are not
closely in point. We think they are without
present bearing. In the former a purchaser
of a mortgaged homestead, who thereafter
made the land his homestead, claimed that
this entitled him to have the mortgage sat-
isfied from other unmortgaged property of
the mortgagor, and the claim was denied,
the court observing: **Hi8 homestead was
not within the contemplation of the parties
to the contract sued on. The creditor might
well be held to have contracted with refer-
ence to all the phases of homestead claimed
by his debtor; but not as to any such claim
by third parties, who should voluntarily
purchase the property with full knowledge
of the encumbrance upon it. They cannot
intrude their rights upon the property to the
prejudice of the creditor." In the other
case a homestead was mortgaged with other
land, and the mortgagors thereafter sold
the latter to a third person, but retained
the former. When it was sought to fore-
close the mortgage, the mortgagors claimed
that § 2978 entitled them to have the mort-
gage satisfied from the nonhomestead prop*
erty, which they had sold, and the claim
was rejected, the court holding that by their
sale of the nonhomestead land they were
estopped from insisting that it constituted
the primary fund for the payment of th»
mortgage.
S41
882^84
SUPREME COURT OF THE UNITED STATES.
Got. Tbim,
[382] Concluding, as we do, that the
Circuit Court of Appeals rightly applied
the local statutes as construed bj the Su-
preme Court of the state, its decree is af-
firmed.
NORTHERN PACIFIC RAILWAY COM-
PANY, Plff. in Err.,
V.
P. J. CONCANNON and Wife.1
(See S. C. Reporter's ed. 382-388.)
Adverse possession — of railway right
of way.
1. Adverse possession enjoyed after the
passage of the act of April 28, 1904 (33
Stat, at L. 538, chap. 1782), confirming con-
veyances "hertofore made" of portions of
the Northern Pacific Railroad Company's
right of way outside the 200-foot limit,
cannot be considered in determining whether
the possession has continued long enough
to ripen into title.
(For other cases, see Adverse Possession. I.
h, In Digest Sup. Ct. 1908.]
Error to state court — proper Jadgment
— reversal — leaving local question
open.
2. The Federal Supreme Court, when
reversing a judgment of a state court which
erroneously held that adverse possession en-
joyed after the passage of the act of April
28, 1904 (33 Stat, at L. 538, chap. 1782),
confirming conveyances "heretofore made"
of portions of the Northern Pacific Rail-
road Company's right of way outside the
200-foot limit, could be considered in deter-
mining whether possession had continued
long enough to ripen into title, — will leave
open the question of adverse possession as-
serted to have been completed prior to the
Sassage of that act which the state court
id not dispose of because of the erroneous
opinion which it entertained concerning the
meaning of that act.
[For other cases, see Appeal and Error, IX. e.
in Digest Sup. Ct. 1908.]
[No. 87.]
Argued and submitted December 3, 1916.
Decided December 20, 1915.
IN ERROR to the Supreme Court of the
State of Washington to review a judg-
ment which affirmed a judgment of the Su-
perior Court of Pierce County, in that state.
In favor of defendants in an action of eject-
ment. Reversed and remanded for further
proceedings.
^Stipulation was filed in Northern P. R.
Co. ▼. Shade and Northern P. R. Co. v.
Classen [Nos. 88, 89] that they should abide
the event of this case.
Note. — On adverse possession of railroad
right of wav — see notes to Roberts v. Sioux
City & P. R. Co. 2 L.R.A.(N.S.) 272; and
Dufin V. Ohio River R. Co. L.RJL1916B,
S57.
See same case below, 76 Wash. 591, 136
Pac. 652.
The facts are stated in the opinion.
Mr. Charles W. Bnnn argued the cause
and filed a brief for plaintiff in error.
Mr. 'William H. Hayden submitted the
cause for defendants in error.
Mr. Chief Justice White delivered the
opinion of the court :
As the successor to the rights of the
Northern Pacific Railroad Company, the
Railway Company, plaintiff in error, sued
to recover a piece of land alleged to be with-
in the strip 400 feet wide granted by the act
of Congress to the former company as a
right of way. 13 Stat, at L. 365, chap. 217.
The asserted right to a reversal of the de-
cree which awarded the land to the defend-
ant is based upon an error which it is as-
serted the court committed in interpreting
an act of Congress. 33 Stat, at L. 538, chap.
1782.
To at once recur to a previous ruling
concerning the power of the company to dis-
pose of land embraced in the grant of right
of way which undoubtedly led to the adop-
tion of the act of Congress referred to, and
additionally to refer to a decision concern-
ing the significance of that act, rendered
before this case arose, will make clear the
question to be decided.
In Northern P. R. Co. v. Townsend, 190
U. S. 267, 47 L. ed. 1044, 23 Sup. Ct. Rep.
671, it became necessary tc determine wheth-
er title by adverse possession under a state
law could be acquired to any portion of the
railroad's right of way. Applying the prin-
ciples announced in Northern P. R. Co. t.
Smith, 171 U. S. 261, 43 L. ed. 158, 18 Sup.
Ct. Rep. 794, it was held that as the Rail-
road Company to which the right of way was
originally granted was incapable [384] of
conveying any part of the 400 feet strip
composing its right of way, it followed that
no possession adverse to the company could
confer title, any state law to the contrary
notwithstanding. About a year after thi)i de-
cision the act to which we have previously
referred was adopted, the title and first sec-
tion reading as follows:
An Act Validating Certain Conveyances of
the Northern Pacific Railroad Company
and the Northern Pacific Railway Com*
pany.
That all conveyances heretofore made by
the Northern Pacific Railroad Company or
b^ the Northern Pacific Railway Company,
of land forming a part of the right of way of
the Northern Pacific Railroad, granted by
the government by any act of Congress, are
hereby legalized, validated, and confirmed:
Provided, That no such conveyance shall
2S9 U. 8.
1915.
NORTHERN P. R. CO. v. CONCANNON.
384-387
hATe effect to diminish said right of way to
a less width than one hundred feet on each
side of the center of the main track of the
railroad as now established and maintained.
The second and last section made the act
operative only upon acceptance of its terms
by the Northern Pacific Railway Company.
There was presented in Northern P. R.
Co. V. Ely, 197 U. S. 1, 40 L. ed. 639, 25
Sup. Ct. Kcp. 302, the question whether this
statute gave validity to a title by adverse
possession to a piece of land outside of the
200, but within the 400, feet of the right
of way, where the possession relied upon was
completed before the act was adopted, and
therefore was adequate at that time under
the state law to bar the title of the com-
pany. Although the statute only expressly
embraced "conveyances heretofore made," it
was decided that, in view of its remedial
purposes, its provisions were applicable to
the case in hand; that is, it was held that
the word '"conveyance" included also a suf-
ficient adverse possession completed when
the act was passed.
[385] As the land in controversy in this
case is within the 400, but outside the 200,
feet, the court below was right in concluding
that it was within the provisions of the act
if they were otherwise applicable. In deter-
mining such applicability, as it was found
that at the time the act was passed the
possession of the defendant had not existed
for a sufficient length of time to bar the
right of the railroad, the court came to
consider whether tlie statute authorized the
taking into view of adverse possession en-
joyed after the passage of the act. An-
swering this inquiry from a consideration
not only of the text of the act, but of the
ruling in Northern P. R. Co. v. Ely, supra,
it was decided that the statute intended to
permit the consideration of such subsequent
possession, and therefore the title by pos-
aession of the defendant, which was inade-
quate considering the state of things ex-
isting at the time of the passage of the
statute, was decided to be valid as against
the Railroad Company, in consequence of the
-effect given to the possession after the pas-
sage of the statute. 75 Wash. 691^ 135 Pac.
652.
We are of opinion that this interpretation
-of the act is inconsistent with its text, and
was erroneously supposed to be supported
l>y the ruling in Northern P. R. Co. v. Ely.
We say it is inconsistent with its text, be-
cause in express terms the validating pow-
der which the act exerted was made appli-
cable only to "all conveyances heretofore
made," and nothing in the context lends
itself to the conclusion that Congress con-
templated conferring on the Railway Com-
pany unlimited power in the future to dis-
^0 li. ed.
pose of its right of way, or to give the right
to others to devest the railroad of the title
to such right of way by future adverse pos-
session. And this meaning of the act is
aptly illustrated by its title, since it treats
its provisions as only confirming convey-
ances theretofore made, and not as confer-
ring power on the Railway Company to
make conveyances of its right of way for the
future.
[386] But the argument is that although
this interpretation may, as an original ques-
tion, be well founded, it is not open to adopt
it consistently with the ruling in the Ely
Case. The reasoning is this: The statute, it
is said, if literally interpreted, only relates
to conveyances, and not to adverse posses-
sion; but as adverse possession complete at
the time of the passage of the act was
brought within its scope by the ruling in
the Ely Case, therefore the statute was in
that case interpreted in a broad, and not a
literal, sense. Giving to the statute this
significance, the argument is that it is in-
consistent to now hold that the statute does
not include all conveyances and all posses-
sion without regard to whether they were
made or perfected before or after the pas-
sage of the act. But this fails to consider
that the ruling in the Ely Case related
exclusively to a possession which had com-
pletely ripened at the time of the passage
of the act, and therefore that case was con-
cerned only with the subject with which the
statute dealt; that is, rights hitherto ac-
quired, and which were in a generic sense
within the remedy which the statute was
intended to afford, — ^the curing of infirmi-
ties in titles which had become complete
prior to the passage of the act. Indeed,
the opinion in the Ely Case shows that the
reasoning by which it came to pass that the
word ''conveyances" in the statute also em-
braced titles by possession perfected before
the passage of the act was but an applica-
tion of the familiar rule that a remedial
statute, where it is reasonably possible to
do so, must be interpreted so as to embrace
the remedies which it was obviously intend-
ed to afford. The difference, then, between
that case and this, is that which exists be-
tween, on the one hand, interpreting the
words of the statute so as to cause them to
include things which are within its contem-
plation, and, on the other hand, adopting
of an interpretation which would destroy
the express limitations of the statute and
cause it to accomplish a purpose which its
text plainly demonstrates it was not in-
tended to reach.
[387] It is urged that even if it be found
that error was committed in interpreting
the statute, nevertheless the judgment be-
low should be affirmed, because it rests not
alone upon* the mistakesi intAX^TC^XAAXQii ^\
887, 888
SUPREME COURT OF THE UNITED STATES.
Got. Tbim,
the itatute, but also upon an independent
state ground adequate to sustain it; that
is, a finding that there had been possession
adequate to bar the right of the Railway
Compsny, completed before the adoption of
the act. We are of opinion, however, that
there is no ground upon which this propo-
sition can rest since the court below, after
finding that the defendsnt's possession be-
fore the act had not been for a suflScient
time to bar the right of the Railway Com-
pany, and then considering whether an ade-
qviate lapse of time would not result from
joining to the possession of the defendant
the prior possession of other persons assert-
ed to be predecessors in title of the defend-
ant, did not pass upon that question. On
the contrary, the court, after pointing out
difficulties arising from what it considered
to be infirmities in the proof concerning the
nature and character of the possession of
the alleged predecessors and their privity
with the defendant, held that it was unnec-
essary to solve such difficulties because,
under the statute, the defendant could
complete the time necessary to bar the right
of the Railway Company by resorting to
possession enjoyed by him after the passage
of the act.
Although from these considerations it re-
sults that our duty is to reverse because of
the erroneous construction given to the act
of Congress, and which was the sole basis
of the decision below, we are of opinion that
the order of reversal should not preclude
the right in the court below to consider
and pass upon, in the light of the statute
as correctly construed, the question of ad-
verse possession asserted to have been com-
pleted prior to the passage of the act, which,
as we have seen, the court did not dispose
of because of the erroneous opinion which
it entertained concerning the meaning of
the act of Congress; and our decree^ [388]
therefore, will leave that question open. The
issue thus left open involves a question
arising under the state law which should
be passed upon primarily by the state court.
In saying this, however, we must not be
considered as holding that ultimate authori-
ty to review such question when passed
upon would not exist in tliis court to the
extent that such power to review may be
essential to the enforcement of the provi-
sions of the act of Congress in question.
Elansas City Southern R. Co. v. C. H. Albers
Commission Co. 223 U. S. 673, 591, 66 L.
ed. 556, 665, 32 Sup. Ct. Rep. 316; Creswill
v. Grand Lodge, K. P. 225 U. S. 246, 251, 56
L. ed. 1074, 1076, 32 Sup. Ct. Rep. 822;
Norfolk & W. R. Co. v. Conley, 236 U. S.
606, 609, 610, 69 L. ed. 745, 747, 748, P. U.
R. 1915C, 293, 35 Sup. Ct. Rep. 437. See
Gaar, S. & Co. v. Shannon, 223 U. S. 468,
144
470, 471, 66 L. ed. 610, 512, 32 Sup. Ct.
Rep. 236. It follows, subject to the reserva-
tion stated, that the judgment below must
be roTersed and the case remanded for
further proceedings not inconsistent with
this opinion.
And it is so ordered.
ATLANTIC COAST LINE RAILROAD
COMPANY, Plff. in Err,
V.
R. W. GLENN.
(See S. C. Reporter's ed. 888-394.)
Error to state court — declsioii on non-
Federal groand.
1. A decision of the highest state court,
affirming a judgment against a terminal car-
rier in an action bv a shipper for damages
on account of a delay in trsnsit, cannot be
said to rest upon a local ground independ-
ent of the question of the validity under the
Federal Constitution of the provisions of
S. C. Civ. Code 1912, §§ 2764, 2765, making
each carrier participating in a through
shipment liable for loss or damage occur-
ring anywhere en route, because the jury
was instructed that there was a presump-
tion which might be rebutted that the de-
lay, if any, occurred on the line of the
terminal carrier, where evidence offered by
such carrier which would have a tendency to
show that it was not in fault, and hence
tending to rebut the presumption, was ex-
cluded from the consideration of the jury
by a ruling that the statute imposed upon
the terminal carrier the duty to responci to
the shipper for the negligence of the initial
carrier.
[For other cases, see Appeal and Brror, 1463-
1528, In Digest Sup. Ct. 1908.]
Note. — On the general subject of writ*
of error from the United States Supreme
Court to state courts — see notes to Martin
V. Hunter, 4 L. ed. U. S. 97; Hamblin t.
Western Land Co. 37 L. ed. U. S. 267; Re
Buchanan, 39 L. ed. U. S. 884; and Kipley
V. Illinois, 42 L. ed. U. S. 998.
On what adjudications of state courts can
be brought up for review in the Supreme
Court of the United States by writ of error
to those courts — see note to Apex Transp.
Co. V. Garbade, 62 L.R.A. 513.
On how and when questions must be
raised and decided in a state court in order
to make a case for a writ of error from the
Supreme Court of the United States — see
note to Mutual L. Ins. Co. v. McGrew, 63
L.R.A. 33.
On liability of connecting carrier for looa
beyond its own line — see notes to Roy y.
Chesapeake & O. R. Co. 31 L.RA.(N.S.) 1;
and Galveston, H. & S. A. R. Co. v. Wallace^
56 L. ed. U. S. 516.
On the constitutionality of statutes re-
stricting contracts and business, generally—
see note to State v. Loomis, 21 L.R.A 780.
1S9 V. B^
1915.
ATLANTIC C. L. R. CO. v. GLENN.
Constitutional law — dne process off law
— > freedom off contract — regnlatini^
liability off connecting carrier.
2. No rights under U. S. Const., 14th
Amend., are infringed by the provisions of
S. C. Civ. Code 1912, §§ 2754, 2755, under
which all carriers participating in a through
intrastate shipment are made the agents
of each other with respect to the transpor-
tation, so that any of the carriers may.be
sued for loss or damage occurring on any
part of the route, being given the right of
recovery over against the carrier in fault.
[For other cases, see Constitutional Law. 441-
499. 591t604, 870-876. in Digest Snp. Ct.
1908.1
[No. 91.]
Argued and submitted December 6, 1915.
Decided December 20, 1915.
IN ERROR to the Supreme Court of the
State of South Carolina to review a
judgment which affirmed a judgment of the
Court of Common Pleas of Dillon County,
in that state, in favor of a shipper in an
action against a terminal carrier for dam-
ages growing out of delay in transit. Af-
firmed.
Scte same case below, 96 S. C. 357, 80 S.
S.898.
The facts are stated in the opinion.
Mr. P. A. Wlllcox argued the cause, and,
with Mr. F. L. Willcox, filed a brief for
plaintiff in error:
Stipulations like iKose against which
this legislation was directed have at all
times been recognized previous to the legis-
lation as lawful and reasonable limita-
tiona Previous to this legislation the ini-
tial carrier could not make a contract bind-
ing upon the terminal carrier.
Venning v. Atlantic Coast Line R. Co.
78 S. C. 49, 12 L.RA.(N.S.) 1217, 125
Am. St. Rep. 768, 58 S. E. 983.
Previous to this legislation the liability
of a common carrier terminated with its
prompt delivery of the property in good
order to the next connecting carrier, and
likewise, it would seem, the liability of a
connecting carrier terminated upon its
prompt delivery of the property to the next
connecting carrier, or to the consignee, in
the same condition in which the property
was received by it.
St. Louis Ins. Co. v. St. Louis, V. T. H.
k I. R. Co. 104 U. 8. 146, 26 L. ed. 679.
A citizen of the state of South Carolina
has an inherent right to enter into a con-
tract with a common carrier for the trans-
portation of property over its own and con-
necting lines. He has an inherent right to
make a contract for a fair consideration,
passing to him, relieving the common car-
rier— whether initial or otherwise — ^from
60 li. ed.
liability for the default of another, which
has already occurred. This act, as enforced
by the stsjke supreme court, deprives a citi-
zen of that right. It likewise deprives the
common carrier of the reciprocal right to
carry goods at a lower rate than would
otherwise be applicable upon condition that
it should not be liable for the default of
another — possibly insolvent— conmion car-
rier.
Allgeyer v. Louisiana, 165 U. S. 578, 41
L. ed. 832, 17 Sup. Ct. Rep. 427; Wil-
liams V. Fears, 179 U. S. 270, 45 K ed.
186, 21 Sup. Ct. Rep. 128.
Messrs. P. A. Willcox, P. L. Willcox, and
Henry Buck also filed a brief for plaintiff
in error.
Mr. Frederick S. Tyler submitted the
cause for defendant in error. Messrs. Jou
P. Lane and L. B. Haselden were on the
brief:
The police power of a state embraces
regulations designed to promote the public
convenience or the general prosperity as
well as regulations designed to promote the
public health, the public morals, or the pub-
lic safety.
Chicago, B. & Q. R. Co. v. Illinois, 200 U.
S. 561, 502, 50 L. ed. 506, 609, 26 Sup. Ct.
Rep. 341, 4 Ann. Cas. 1175 -, Crowley v.
Christensen, 137 U. S. 86, 34 L. ed. 620,
11 Sup. Ct. Rep. 13; Noble State Bank v.
Haskell, 219 U. S. 104, 111, 55 L. ed. 112,
116, 32 L.R.A.(N.S.) 1062. 31 Sup. Ct. Rep.
186, Ann. Cas. 1912A, 487.
There is no such thing as absolute free-
dom of contract. Contracts which contra-
vene public policy cannot be lawfully made
at all, and the power to make contracts
nuiy in all cases be regulated as to form,
evidence, and validity as to third persons.
The power of government extends to the
denial of liberty of contract to the extent
of forbidding or regulating every contract
which is reasonably calculated to injurious-
ly affect the public interests.
Atlantic Coast Line R. Co. v. Riverside
Mills, 219 U. S. 186, 202, 55 L. ed. 167,
180, 81 L.R.A.(N.S.) 7, 31 Sup. Ct. Rep.
164.
The legislature or law-making powers are
the judges of public policy, and when they
have the constitutional power to legislate,
public policy is what the statutes passed
by them enact; and when the state has
spoken through its legislature, there is no
more room for speculation as to what the
policy of the state is.
9 Cyc. 482.
The mere fact that a court may differ
with the legislature in its views of public
policy, or that judges may hold views in-
consistent with the propriety of the legia-
389-391
SUPIl£3f£ COURT OF THE UNITED STATES.
Oct.
Ution in question, affords no ground for
judicial interference, unless the act in ques-
tion is unmistakably and palpably in excess
of legislative power.
McLean v. Arkansas, 211 U. S. 547, 63
L. ed. 319, 29 Sup. Ct. Rep. 206.
Will the Supreme Court of the United
States declare unconstitutional an act of
the legislature of South Carolina when it
only affects matters within the borders of
that state, and is a regulation in the best
interests of the public, and is made in the
interests of public policy?
Atlantic Coast Line R. Co. v. Riverside
Mills, 219 U. S. 186, 206, 55 L. ed. 167,
182, 31 L.RA..(N.S.) 7, 31 Sup. Ct. Rep.
164; Crowley v. Christensen, 137 U. S. 86,
34 L. ed. 620, 11 Sup. Ct. Rep. 13; Noble
State Bank v. Haskell, 219 U. S. 104-110,
55 L. ed. 112-116, 32 L.R.A.{N.8.) 1062,
31 Sup. Ct. Rep. 186, Ann. Cas. 1912A,
487; Hurtado v. California, 110 U. S. 516-
558, 28 L. ed. 232-246, 4 Sup. Ct. Rep.
Ill, 292; Patterson v. The Eudora, 190
U. S. 169, 179, 47 L. ed. 1002, 1007, 23
Sup. Ct. Rep. 821 ; Twining v. New Jersey,
211 U. S. 78, 127, 53 L. ed. 97, 117, 29
Sup. Ct. Rep. 14; Knoxvillc Iron Co. v.
Harbison, 183 U. S. 13, 22, 46 L. ed. 55,
61, 22 Sup. Ct. Rep. 1; McLean v. Arkan-
sas, 211 U. S. 547, 53 L. ed. 319, 29 Sup.
Ct. Rep. 206; Billings v. Illinois, 188 U.
S. 97, 104, 47 L. ed. 400, 403, 23 Sup. Ct.
Rep. 272; Mobile County v. Kimball, 102
U. S. 691, 707, 26 L. ed. 238, 243; Cam-
field V. United States, 167 U. S. 518, 42
L. ed. 260, 17 Sup. Ct. Rep. 864.
Mr. Chief Justice White delivered the
opinion of the court:
Sections 2754 and 2755 of the Civil Code
of South Carolina (1912) provide in part
as follows:
"All common carriers over whose transpor-
tation lines, [390] or parts thereof, any
freight, baggage or other property received
by either of such carriers for through ship-
ment or transportation by such carriers on a
contract for through carriage, recognised,
acquiesced in or acted upon by such carriers,
shall in this state, with the respect to the
undertaking and matters of such transpor-
tation, be considered and construed to be
connecting lines, and be deemed and held
to be the agents of each other, each the
agent of the others, and all the others the
agents of each, and shall be held and deemed
to be under a contract with each other and
with the shipper, owner and consignees of
such property for the safe and speedy
through transportation thereof from point
of shipment to destination; and such con-
S46
tract as to the shipper, owner or ooDsignee
of such property shall be deemed and held
to be the contract of each of such common
carriers; • . .
"For any damages for injury, or damage
to, or loss, or delay of any freight, baggage
or other property sustained anywhere in
such through transportation over connecting
lines, or either of them, as contemplated
and defined in the next preceding section of
this act, either of such connecting carriers
which the person or persons sustaining such
damages may first elect to sue in this state
therefor, shall be held liable to such per-
son or persons, and such carrier so held
liable to such person or persons shall be
entitled in a proper action to recover the
amount of any loss, damage or injury it
may be required to pay such person or per-
sons from the carrier through whoee negli-
gence the loss, damage or injury was sus-
tained, together with costs of suit."
In November, 1911, these provisions being
in force, Glenn, the defendant in error,
through an agent, delivered to the Southern
Railway Company at Chester, South Caro-
lina, a carload of cattle for through ship-
ment to Latta, South Carolina, on the At-
lantic Coast Line Railroad. The Southern
Railroad accepted the cattle, issued [391] a
bill of lading for their shipment to Latta
over its own and its connecting lines, and
transported them over its own line to Co-
lumbia, South Carolina, where they were b^
it delivered to and accepted by the Atlantic
Coast Liine Railroad Company, by which
compsny they were carried under the origi-
nal bill of lading to Latta and there de-
livered to Glenn, the consignee. There waa
delay in the transit, and to recover dam-
ages on account of resulting injury to the
cattle Glenn brought this suit against
the Atlantic Line, alleging, conformably to
the statute above quoted, that the Southern
Railway, in so far as the shipment involved
was concerned, was the agent of the de-
fendant, and consequently asserting a right
to recover from the defendant damages re-
sulting from the negligence of the South-
ern Railway or of the defendant or both.
The defendant denied this right and sought
to escape all liability by establishing that
it had promptly transported and delivered
the cattle after receiving them from tho
Southern Railway, that the delay, if any,
had not occurred on its line, and that by
virtue of the following provision of the
contract of shipment defendant was not re-
sponsible for any delay occurring on the
line of the Southern Railway:
"That the responsibility, either as com-
mon carrier or warehouseman, of each car-
1S9 U. 8.
1915.
ATLANTIC C. L. R. 00. v. GLENN.
391-494
rier orer whose line the property nhipped
hereunder shall be transported, shall cease
MB soon as delivery is made to the next car-
rier or to the consignee; and the liability
of the said lines contracted with is several,
and not joint; neither of the said carriers
shall be responsible or liable for any act,
omission, or negligence of the other carriers
over whose lines said property is or is to be
transported."
Ihis defense was, on motion of the plain-
tiff, stricken by the court from the answer
on the ground that the provision of the con-
tract was void because in conflict with the
statute which we have quoted, and irulings
to the same effect were [392] made during
the course of the trial in excluding evidence
offered by the defendant, in refusing instruc-
tions by it requested, and in charging the
jury that the provisions of the statute were
applicable to the case, and that the defend-
ant was liable for damage resulting from
its own or the negligence of the Southern
Railway. A judgment in favor of the plain-
tiff, rendered on the verdict of the jury,
was affirmed by the court below, which held
that the statute was rightly applied to the
case and was not repugnant to the due proc-
ess clause of the 14th Amendment (96 S.
C. 357, 80 S. £. 898), and the correctness
of that conclusion is the question for de-
cision on this writ of error.
We fil^t dispose of a motion to dismiss.
It is based on the proposition that since
the court instructed the jury that there
was a presumption, which might be rebut-
ted, that the damage to the cattle, if any,
occurred on the line of the delivering carri-
er, that is, the defendant company, the jury
might have found for the plaintiff wholly
irrespective of the statute, and therefore
the judgment rests upon an independent
state ground broad enough to sustain it.
But the want of foundation for the proposi-
tion is manifest when it is considered that
evidence offered by the defendant which
would have a tendency to show that no
damage and no delay occurred on its line,
and hence tended to rebut the presumption,
was excluded from the consideration of
the jury by the ruling of the court that the
statute imposed upon the defendant the
duty to respond to the plaintiff for the neg-
ligence of the Southern Railway. The mo-
tion is therefore denied.
Coming to the merits we are of the opin-
ion that the case is controlled by Atlantic
Coast Line R. Co. v. Riverside Mills, 219
U. S. 180, 65 L. ed. 167, 31 L.R.A.(N.S.)
7, 31 Sup. Ct. Rep. 164. In that case the
constitutionality of the act of Congr
40 L. ed.
known as the Carmaek amendment to the
act to regulate commerce was considered,
the question presented being whether Con-
gress, under its power to regulate commerce,
could make an initial carrier liable to
[393] the holder of a biU of lading issued
by it for a through interstate shipment of
property over its own and connecting lines
for a loM occurring after the property had
been delivered by it to a connecting carrier,
and while in the control of such carrier. It
was decided that the act was a valid regula-
tion of interstate commerce, and hence that
no rights of the initial carrier secured by
the 5th Amendment had been violated. It is
true that case involved the power of Con*
gress over interstate, while this concerns the
power of a state over intrastate, commerce,
but the reasoning by which the conclusion
as to the existence of the power was sus-
tained in that case compels a like conclusion
with reference to the power of a state over
commerce wholly within its borders. In-
deed, in argument the controlling force in a
general sense of the Riverside Case is con-
ceded; but it is insisted that it can here
have no application because liability is im-
posed by the state statute upon the terminal
and intermediate carriers as well as the in-
itial or receiving carrier; while in the
Riverside Case the liability alone of the
latter was under consideration^ But it is
obvious that this proposition challenges not
the power, but the wisdom of exerting it,
since in the nature of things the power to
constitute an initial carrier the agent of
the terminal carrier is not different from
the power to make the terminal carrier the
agent of the initial carrier. Of coarse we
confine onrselves to the ease before us and
therefore do not decide what would be the
rights of the terminal carrier if, against
its will, it had be«i compelled to accept the
cattle from the initial carrier in a damaged
condition, or if they had never been deliv-
ered to it. These questions are not present-
ed by the record, since it is not contended
that the acceptance of the cattle by the
Atlantic Coast Line was not voluntary. In
fact, it is stated in the argument of the
plaintiff in error that long prior to. the
shipment in question the statute had been
construed by the court below to permit the
connecting carrier, upoki [894] accepting a
shipment from an initial carrier^ to repudi-
ate the original bill of lading and issue a
new one. Venning v. Atlantic Coast Line R.
Co. 78 S. C. 42, 12 L.R.A(N.8.) 1217, 126
Am. St. Rep. 768^ 58 S. E. 983«
Affirmed.
S47
394
SUPREME CX)URT OF THE UNITED STATES.
Oor. IteM,
J. C. HADACHECK, Plff. in Err.,
V.
a E. SEBASTIAN, Chief of Police of the
City of Lot Angeles.
(See S. C. Reporter's ed. 304-414.)
Ck^nstltatlonal law — due procees off law
— police power — forbidding brick-
yards in designated area.
1. A municipal ordinance enacted in
good faith as a police measure, prohibiting
brickmaking within a designated area, does
not take, without due process of law, the
property of an owner of a tract of land
within the prohibited district, although
such land contains valuable deposits of clay
suitable for brickmaking which cannot
profitably be removed and manufactured
mto brick elsewhere, and is far more valua-
ble for brickmaking than for any other pur-
pose, and had been acquired by him before it
was annexed to the municipality, and had
long been used by him as a brickyard.
[For other cases, see Constitotlonal Law. IV.
b, 6; IV. c, 8, in Digest Sup. Ct. 1908.]
Ck^nstitutional law — equal protection
of the laws — forbidding brickmak-
ing in designated area.
2. Prohibiting by municipal ordinance
the manufacture of brick within a desig-
nated area cannot be said to deny the equal
protection of the laws to the owner of a
brickyard within the prohibited district,
where thd record does not show that brick-
yards in other localities within the mu-
nicipality where the same conditions exist
are not regulated or prohibited, or that
Note. — For a discussion of police power,
generally — see notes to State v. Marshall, 1
L.RA.. 51; Re Gannon, 5 L..R.A. 359; State
V. Schlemmer, 10 L.R.A. 135; Ulman v. Bal-
timore, 11 L.R.A. 224; Electric Improv. Co.
V. San Francisco, 13 L.R.A. 131; and Bar-
bier V. Connolly, 28 L. ed. U. S. 923.
As to municipal power over nuisances —
see notes to Grossman v. Oakland, 36 L.R.A.
593; and Ex parte Lacey, 38 L..R.A. 640.
As to the constitutionality of statutes re-
stricting contracts and business — see note
to State v. Loomis, 21 L.RJk. 789.
As to the business of burning brick as a
nuisance, see note to Phillips v. Lawrence
Vitrified Brick & Tile Co. 2 L.R.A.(N.S.)
92.
On the general subject of writs of error
from United States Supreme Court to state
courts — see notes to Martin v. Hunter, 4
L. ed. U. S. 97; Hamblin v. Western Land
Co. 37 L. ed. U. S. 267; Re Buchanan, 39
L. ed. U. S. 884 ; and Kipley v. Illinois, 42
L. ed. U. S. 998.
On what questions the Federal Supreme
Court will consider when reviewing the
judgments of state courts — see note to Mis-
soiu'i ex reL Hill v. Dockery, 63 L.R.A.
571.
Validity of municipal regulation or prohibi-
tion of brick kilns or yards.
Very few cases involve this question.
A municipal ordinance making a yard
where bricks are burned, within the city
limits, and within 1,200 feet of any private
residence or public schoolhouse or park,
without permission, a nuisance, is void both
for unreasonableness and as effecting an
unconstitutional taking or destroying of
private property without due process of
law. Denver v. Rogers, 46 Colo. 479, 25
L.RJk.{N.S.) 247, 104 Pac. 1042.
But an ordinance prohibiting the erec-
tion of brick kilns in the corporate limits,
by a city that has charter power to make
and enforce the necessary police regula-
tions and regulate the erection of all build-
ings and other structures within the cor-
porate limits, is valid as against an action
S48
in mandamus to compel the city building
inspector to issue a permit in violation
thereof, in the absence of a showing that
the enactment was an unreasonable and
arbitrary invasion of individual rights un-
der the guise of police regulations. State
ex rel. Knttenbrink v. Withnell, 91 Neb.
101, 40 L.R.A.(N.S.) 898, 135 N. W. 376.
An ordinance of a town board of health
f prohibiting the exercise within the town
imits of the trade or employment of ex-
cavating clay for the purpose of manufac-
turing bricks except upon premises '*now
owned and operated" by a specified brick
company, without a permit, and without
furnishing a bond conditioned upon the ob-
servance of the terms of the permit, was
refused enforcement in Belmont v. New Eng-
land Brick Co. 190 Mass. 442, 77 N. E. 604,
as against the said brick company which was
excavating clay from additional land ac-
quired after the passage of the ordinance.
The court said: *To make bricks requires
clay, and the occupation of manufacturing
them in which the defendant was engaged
is not within the class of employments pre-
sumably offensive, or for which, under Itev.
Laws, chap. 75, § 99, a license must be
obtained before they can be prosecuted law-
fully. Neither is this business generally
recognized as directly harmful to the healtii
or property of the community. But the
prohibition that clay could not be dug for
this purpose except out of land owned by
the aefendant when the order was passed
might be indirectly sufficient to prevent the
further transaction of its business for want
of material; and if the acquisition of the
additional land described in the bill from
which clav could be dug became necessary,
the prohibition might come very near to
being a confiscation of property rights with-
out compensation." The object of the or-
dinance, viz,, the prevention of the accumn-
lation of stagnant water in the pits, form-
ing breeding places for mosquitoes, could
have been accomplished, the court said,
without "an impairment of private rights so
disproportionate with the gain to the public
health as to make it unreasonable and there-
fore invalid."
189 U. S.
UU HADACHECK v. SEBASTUK.
•thw objcetioiiftU* buBincMM ^n permitUd Huekcattlut's Appeal, 70 Pa. 102, 10
within ue ume dirtrict. Am. Kep. M9; BtaU es rel. Horikottle v.
Kiiop to rt-t. oourt - Kopo ol renew ^ ^"f" .^'''i^fi ?";''^* J''* ^- "
— loGsI I»w. ^■•'- **3' 2 I'.B-i.(N.B.) 92, 82 Pm. 787;
S. The decision of ths highert court of Denver v. Rogers, 46 Colo. 47B, 26 L.JLA.
a lUte thkt a municipal ordinance which is (N.S.} 247, 104 Pac. 1042; Windfall Mfg.
•nerted to violate the Federal ConBtitution Co. v. PattenoD, 148 lad. 414, S7 L.RjL
ii within the cjty'i charter powerj, and ia 381, 62 Am. St. E«p. 032, 47 N. B. 2, 18
not forbidden by the itate ConaUtution, la u^. Mhi. Rep. 074; Belmont t. New Eng-
eoocluelTe upon the Federal Supreme Court ,^j g^^ j^ j^q ^^^^ ^^ „ j^^
oa writ of error to the itate court. -J^,
iror other oaea, a*t Appeal and Brror, 3134- '^
tUl, In Dlxeet Snp. Ct IVOB.) Therefore the dty cannot prohibit the
maintenance of n hriekyard uulcu, by ren-
[Ho. 32.] ion of the manner of Ita opermtitm. It be-
come* a nuiaance in fact.
Sidaitted October 22, IBIB. Decided De- Yate. v. Milwaukee, 10 Wall. 497, 10
oember 20, IBIB. l. ed. 884; Everett v. Council Bluffs, 46
I.. -»n«T. . .1 o ^ -. . .1 Ifwa, 66; Ei parte Sing Lee, 08 Cal. 354,
M ERROR to the Supreme Court of the g^ ^.j^ ^^/ 3^ ^^ g^ ^ 2I8, 31
SUte of Cahfornia to review a judg- p^ 245; Re Sam Kee, 31 Fed. 680; Be
Bent refu«ng relwf by habeo corpiu to a ^ ^^j, gg Fed. 623; Ex parte Whitwall,
perMn convicted of Tiolatlng a municipal gg [,^j ^3 jg ^.r.a. 727, 35 Am. St. Rep.
ordinance prohibiting brickmaking within a ^52, 32 Pac. 870; Stockton Laundry Ca«>,
-«.„,.*«! .re^ Affirmed g^ ^^ ^^^ , ^J ^
lie below, 166 Csl. 416. L.RA. ^„ „ t i> . ,wo. o^f nn^ i>.. -.n.^.
deeignated area. Affirmed.
See same case below, 16{
1»16B, 1248, 132 Pac. 684.
470, 25 L.E.A.(N.8.) 247, 104 Pac. 1042;
XI.- ».,.- .™ .».*^ t„ fk. i»ini»n Denver v. Mullen, 7 Colo. 34e, 3 Pac. 607;
The facts are stated in tne opinion. ni_.iii ^ r. -.a r- < m. .-, • c.
'^ Phillips V. Denver, IS Colo. 184, 41 Am. St.
Hr. Emmet H. WlUon submitted the Rep. 230, 34 Pac. 002.
cauae for plaintiff In error. Mr. C. 0, De The city council of the city of Lob Ange-
Gsrmo was on the brief: lee ie not empowered to paBB an ordinance
If the ordinance purport* to have been making that a nuisance which ie not a
enacted to protect the public health, morals, nuisance per *«. The legislative declare-
or aafetjr, but has no subatantial relation tion cannot alter the character of a business
to those object*, constitutional rights have go «* to make a nuisance of that which is
been invaded, and it ie the dnty of the court not auch In fact.
m to adjudge. Ex parte Sing Lee, OS Cal. 364, 24 L.Rj|,.
Yick Wo T. Hopkins, 118 U. S. 366, 30 195, 3I Am. St. Rep. 218, 31 Pac. 246;
L. ad. 220, a Sup. Ct. Rep. 1064; Lochner Los Angeles County r. Hollywood Cem«-
V. New York, 108 U. 8. 45, 49 L. ed. 937, tery Asso. 124 Cal. 344, 71 Am. St. Rep.
SS 8vp. Ct. Rep. 539, 3 Ann. Cas. 1133; 711, 57 Pu. 153; Grossman v. Oakland, 30
lawton T. Steele, 152 D. 8. 183, 38 L. ed. Or. 478, 30 L.R.A. 593, 60 Am. St. Rep.
385, 14 Sup. Ct Rep. 499. 832, 41 Pac. 5; Re Sam Kee, 31 Fed. 680;
The state, or any political auhdiflslon Re Hong Wah, 82 Fed. 623; Ex parte
thereof, when legisl^ing for the protection Whltwell, 98 Cal. 73, 19 L.R.A. 727, 86
of the public health, the publie morals. Am. SL Rep. 152, 32 Pac. 870; Yatea t.
or the publie safety. Is subject to the para- Milwaukee, 10 Wall. 497, 19 L. ed. 984;
mount authori^ of the Constitution of the Everett v. Council Bluffs, 46 Iowa, 06;
United States, and ia not permitted to via- Stockton Laundry Case, 26 Fed. 611.
late rights secured or guaranteed thereby. The power possesBed by the city to abate
Haiderson v. New York (Henderson v. nuieancee doea not include power to prevent
Wickham) 92 tT. S. 259, 28 L. ed. 643; unless the business is a nuisance per •«,
HannUAl ft St. J. R. Co. ▼. Husen, 05 tJ. Such things as become nuisances only be-
8. 465, 24 L. ed. 527; New Orleans Gaslight cause of the method of their operation can-
Co. V. Louisiana Light k H. V. k Mfg. not be Stopped or luppressed, under the
Co. lis U. S. 650, 29 L, ed. 616, 8 Sup. power to abate, except upon clear demon-
Ct Rep. 262; Walling v. Michigan, 116 stration that they are nuisances.
U. a. 446, 20 L. ed. 691, 6 Sup. Ct. Rep. Lake View t. Lets, 44 111. SI.
454; Yick Wo t. Hopkins, 118 U. S. 356, The mere l^islative declaration of th«
SO Li, ed. 220, 6 Sup. CL Rep. 1064. existence of a nuisance will not be ae-
The business of operating brickyards and cepted as a fact by the courts,
manufacturing brick is a useful, uceeasary, Dobbins v. Los Angeles, 195 U. S. 223, 49
and lawful occupation, and is not a nui- L. ed. 16S, 26 Sup. Ct. Rep. 18; Re Hong
sance per se. Wah, 82 Fed. 623 ; Stockton Laundry Case,
00 Z^ ed. %^%
SUPREME COURT OF THE UNITED STATES.
Got. IteM,
26 Fed. 611; Re Smith, 143 C^l. 371, 77
Pae. 180; Ex parte Sing Lee, 96 Cal. 357,
24 L.R.A. 105, 31 Am. St. Rep. 218, 31
Pac. 245; Hume v. Laurel Hill Cemetery,
142 Fed. 563; Los Angeles County ▼. Holly-
wood Cemetery Asso. 124 Cal. 350, 71 Am.
St. Rep. 75, 57 Pac. 153 ; Laurel Hill Ceme-
tery V. San Francisco, 152 Cal. 472, 27
L.RJk.(N.S.) 260, 03 Pac. 70, 14 Ann. Cas.
1080; Freund, Pol. Power, § 63; Dill. Mun.
Corp. 5th ed. § 666.
The determination by the legislative body
of what is a proper exercise of the police
power is neither final nor conclusive, but
is subject to the supervision of the courts.
Legislative judgment as to the reasonable-
ness of an ordinance is not necessarily ac-
cepted by the courts.
Dobbins v. Los Angeles, 105 U. S. 223,
40 L. ed. 169, 25 Sup. Ct. Rep. 18; Re
Kelso, 147 Cal. 611, 2 L.R.A. ( N.S. ) 706,
100 Am. St. Rep. 178, 82 Pac. 241; Cov-
ington & L. Tump. Road Co. v. Sandford,
164 U. S. 578, 502, 41 L. cd. 560, 565, 17
Sup. Ct. Rep. 108; Lawton v. Steele, 152
U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep.
400; Re Smith, 143 Cal. 368, 77 Pac. 180;
Ex parte Whitwell, 08 CaL 73, 10 L.RJk.
727, 35 Am. St. Rep. 152, 32 Pac. 870;
Ex parte Sing Lee, 06 Cal. 354, 24 L.R.A.
105, 31 Am. St. Rep. 218, 31 Pac. 245;
Yates V. Milwaukee, 10 Wall. 407, 10 L.
ed. 084; Laurel Hill Cemetery v. San Fran-
cisco, 152 Cal. 470, 27 L.R.A.(N.S.) 260,
93 Pac. 70, 14 Ann. Cas. 1080; Ruhstrat
v. People, 185 111. 133, 40 L.R.A. 181, 76
Am. St. Rep. 30, 57 N. E. 41, 12 Am. Crim.
Rep. 453; Freund, Pol. Power, § 144.
In cases of this kind the court must
scrutinize the objects and purposes sought
to be accomplished by the ordinance in
question for the purpose of determining its
validity. In so doing they are not limited
to matters that appear upon the face of
the ordinance, but may consider all the
circumstances in the light of existing con-
ditions.
Dobbins v. Los Angeles, 105 U. S. 223,
40 L. ed. 169, 25 Sup. Ct. Rep. 18; Lake
View V. Tate, 130 III. 247, 6 L.R.A. 268,
22 N. E. 701; Ex parte Patterson, 42 Tex.
Crim. Rep. 256, 51 L.RJk. 654, 58 S. W.
1011; People v. Armstrong, 73 Mich. 288,
2 L.R.A. 721, 16 Am. St. Rep. 578, 41 N.
W. 276; Oxanna v. Allen, 90 Ala. 468, 8
So. 70; Tugman ▼. Chicago, 78 111. 405;
Cleveland, C. C. & St. L. R. Co. v. Con-
nersville, 147 Ind. 277, 37 L.R.A. 176, 62
Am. St. Rep. 418, 46 N. E. 570; State v.
Boardmaa, 03 Me. 73, 46 L.R.A. 750, 44
Atl. 118; Kosciusko v. Slomberg, 68 Miss.
460, 12 L.R.A. 528, 24 Am. St. Rep. 281,
SftO
9 So. 297; Crowley v. West, 52 La. Ann.
526, 47 L.RJi. 652, 78 Am. St. Rep. 355,
27 So. 53; Hume V. Laurel Hill Cemetery,
142 Fed. 552; Laurel Hill Cemetery v. San
Francisco, 152 Cal. 472, 27 L.RJk.(N.8.)
260, 03 Pac. 70, 14 Ann. Cas. 1080; Odd
Fellows' Cemetery Asso. v. San Francisco,
140 Cal. 236, 73 Pac. 087; Re Smith, 143
Cal. 370, 77 Pac. 180; Re Kelso, 147 CaL
612, 2 L.RJi.(N.S.) 706, 100 Am. St. Rep.
178, 82 Pac. 241; Los Angeles County v.
Hollywood Cemetery Asso. 124 Cal. 350,
71 Am. St. Rep. 75, 57 Pac. 153; Freund*
Pol. Power, §§ 68, 138; Pieri v. Shields-
boro, 42 Miss. 403; Corrigan v. Gage, 68
Mo. 541; Chicago v. Rumpff, 45 III. 90,
02 Am. Dec. 106.
Discriminatory legislation cannot be sus-
tained even though enacted under color of
sanitary power.
Laurel Hill Cemetery v. San Francisco,
152 Cal. 464, 27 L.R.A.(N.S.) 260, 03 Pac.
70, 14 Ann. Cas. 1080; Freund, Pol. Power,
§ 138.
A law is not general or constitutional if
it imposes peculiar disabilities or burden-
some conditions in the exercise of a common
right upon a person selected from the gen-
eral body of those who stand in precisely
the same relation to the subject of the law.
Pasadena v. Stimson, 01 Cal. 238, 27 Par.
604; Bruch v. Colombet, 104 Cal. 347, 3h
Pac. 45; Darcy v. San Jose, 104 Cal. 642,
38 Pac. 600; People v. Central P. R. Co.
105 Cal. 584, 38 Pac. 905; Cullen v. Glen-
dora Water Co. 113 Cal. 503, 30 Pac. 760,
45 Pac. 822, 1047; Ex parte Clancy, 00
Cal. 553, 27 Pac. 411; Krause v. Durbrow,
127 Cal. 681, 60 Pac. 438.
The imposition of dissimilar regulations
upon different persons engaged in the same
business must be founded upon differences
that will rationally justify the diversity
of legislation.
Ex parte Jentzsch, 112 Cal. 474, 32 L.R.A.
664, 44 Pac. 803; Darcy v. San Jose, 104
Cal. 642, 38 Pac. 500; Ex parte Bohen,
115 Cal. 372, 36 L.ILA. 618, 47 Pac. 55;
Ex parte Dickey, 144 Cal. 237, 66 L.R.A.
028, 103 Am. St. Rep. 82, 77 Pac. 024, 1
Ann. Cas. 428; People ex rel. Wineburgh
Adv. Co. V. Murphy, 105 N. Y. 126, 21
L.R.A.(N.S.) 735, 88 N. E. 17; Phillipn
V. Denver, 10 Colo. 170, 41 Am. St. Rep.
230, 34 Pac. 002; Belmont v. New Eng-
land Brick Co. 190 Mass. 442, 77 N. £.
504; Com. v. Maletsky, 203 Mass. 241, 24
L.R.A.(N.S.) 1168, 80 N. E. 245; Chicago
V. Netcher, 183 111. 104, 48 L.R.A. 261, 75
Am. St. Rep. 03, 55 N. E. 707; Bracevillc
Coal Co. V. People, 147 111. 66, 22 L.R.A.
340, 37 Am. St. Rep. 206, 35 N. E. 62.
The ordinance in question deprives the
2S9 U. S.
1915.
HADACHECK t. SEBASTIAN.
plaintiff in error of his property without
doe process of law, and is therefore void.
Frorer v. People, 141 111. 171, 16 L.RJk.
492, 31 N. E. 305; Ramsey t. People, 142
111. 380, 17 L.R.A. 853, 32 N. E. 364; Chi-
etgo, B. & Q. R. Ck). v. Chicago, 166 U.
8. 226, 41 L. ed. 979, 17 Sup. Ct Rep.
581; Chicago v. Netcher, 183 111. 104, 48
LR.A. 261, 75 Am. St. Rep. 93, 55 N. E.
707; Braecville Coal Co. v. People, 147
Ul. 66, 22 L.RJk. 340, 37 Am. St. Rep. 206,
35 N. £. 62.
In order to sustain the validity of a
muiicipal ordinance it is necessary for the
court to determine that its provisions are
reasonable.
Chicago v. Rumpff, 45 111. 90, 92 Am. Dec.
196; Toledo, W. & W. R. Co. v. Jackson-
Tille, 67 111. 37, 16 Am. Rep. 611; Tugman
T. Chicago, 78 111. 405; Lake View v. Tate,
130 111. 247, 6 L.RJk. 268, 22 N. E. 791;
Oxanna v. Allen, 90 Ala. 468, 8 So. 79.
The ordinance is unreasonable because
the severe measures adopted were not rea-
sonably necessary for the prevention of the
sets complained of in reference to the brick-
yard. Remedies other than confiscation of
the property would have been effective.
Dobbins v. Los Angeles, 196 U. S. 223,
49 L. ed. 169, 25 Sup. Ct. Rep. 18; Laurel
Hill Cemetery v. San Francisco, 162 Cal.
472, 27 L.R.A.(N.S.) 260, 93 Pac. 70, 14
Ann. Cas. 1080; Hume v. Laurel Hill Ceme-
tery, 142 Fed. 552; Los Angeles County v.
Hollywood Cemetery Asso. 124 Cal. 349, 71
Am. St. Rep. 75, 57 Pac. 153; Judson v.
Los Angeles Suburban Gas Co. 157 Cal.
168, 26 L.R.A.(N.S.) 183, 106 Pac. 581,
21 Ann. Cas. 1247; Ex parte Sing Lee, 96
Cal. 354, 24 L.R.A. 195, 31 Am. St. Rep.
218, 31 Pac. 245.
The ordinance is unreasonable because,
if any nuisance has existed, the same may
be abated by regulatory rather than by
■oppressive and confiscatory measures. The
Irasiness should be allowed to continue up-
on eliminating such features, if any, as
constituted a nuisance.
Hume V. Laurel Hill Cemetery, 142 Fed.
564; Judson v. Los Angeles Suburban Gas
Co. 157 Cal. 168, 26 L.R.A.(N.S.) 183,
106 Pac. 681, 21 Ann. Cas. 1247; Green v.
Like, 54 Miss. 540, 28 Am. Rep. 378;
Chamberlain v. Douglas, 24 App. Div. 582,
48 N. Y. Supp. 710; Pach v. Geoffroy, 67
Hun, 401, 22 N. Y. Supp. 275; Yocum v.
Hotel St. George Co. 18 Abb. N. C. 340;
Miller v. Webster City, 94 Iowa, 162, 62 N.
W. 648.
The ordinance is unreasonable because it
ii not limited with reference to conditions
ud measures. The danger may be slight
ttd remote, while the remedy — entire sup-
pression—could not be more drastic
•6 L. ed.
Re Smith, 143 Cal. 371, 77 Pac. 180; Hume
V. Laurel Hill Cemetery, 142 Fed. 564;
Laurel Hill Cemetery ▼. San Francisco, 152
Cal. 472, 27 L.RJ^.(N.S.) 260, 93 Pac. 70,
14 Ann. Cas. 1080; Freund, PoL Power,
§ 143.
The ordinance is unreasonable because
the means adopted is out of proportion to
the danger involved. The restraint should
not be disproportionate to the danger.
Los Angeles County v. Hollywood Ceme-
tery Asso. 124 Cal. 350, 71 Am. St. Rep.
75, 57 Pac. 153; Odd Fellows' Cemetery
Asso. V. San Francisco, 140 Cal. 233, 73
Pac. 987; Hume v. Laurel Hill Cemetery,
142 Fed. 564; Freund, Pol. Power, §§ 150,
158.
The ordinance is imreasonable because
the law will not take cognizance of petty
inconveniences and slight grievances.
Freund, Pol. Power, § 178; Joyce, Nui-
sances, §§ 93, 96; Laurel Hill Cemetery
V. San Francisco, 152 Cal. 470, 27 L.R.A.
(N.S.) 260, 93 Pac. 70, 14 Ann. Cas. 1080;
Van De Vere v. Kansas City, 107 Mo. 83,
28 Am. St. Rep. 396, 17 S."w. 695; Sus-
quehanna Fertilizer Co. v. Spangler, 86 Md.
562, 63 Am. St. Rep. 533, 39 Atl. 270;
Tuttle V. Church, 53 Fed. 422; Gilbert v.
Showerman, 23 Mich. 448; McGuire ▼.
Bloomingdale, 8 Misc. 478, 29 N. Y. Supp.
580; Miller v. Webster City, 94 Iowa, 162,
62 N. W. 648; Gallagher v. Flury, 99
Md. 181, 57 Atl. 672.
The ordinance is discriminatory and im-
reasonable because the district was un-
reasonably and irrationally created.
Re Sam Kee, 31 Fed. 680; Stockton
Laundry Case, 26 Fed. 611; Re Hong
Wah, 82 Fed. 623; Re Smith, 143 Cal.
372, 77 Pac. 180; Freund, Pol. Power,
§ 179.
The police power cannot be used' for the
purpose of protecting property values.
Hume V. Laurel Hill Cemetery, 142 Fed.
565; Re Hong Wah, 82 Fed. 625; Dobbins
V. Los Angeles, 195 U. S. 223, 49 L. ed.
169, 25 Sup. Ct. Rep. 18; Chicago v. Gun-
ning System, 214 111. 628, 70 L.R.A. 230,
73 N. E. 1035, 2 Ann. Cas. 892; Ex parte
Whitwell, 98 Cal. 73, 19 L.R.A. 727, 35
Am. St. Rep. 152, 32 Pac. 870; Ex parte
Dickey, 144 Cal. 236, 66 L.R.A. 928, lOa
Am. St. Rep. 82, 77 Pac. 924, 1 Ann. Cas.
428; Re Smith, 143 Cal. 368, 77 Pac. 180;
Re Kelso, 147 Cal. 609, 2 L.R.A.(N.S.) 796,
109 Am. St. Rep. 178, 82 Pac. 241; Cooley,
Const. Lim. 7th ed. 837.
Mr. Alber lice Stephens submitted the
cause for defendant in error. Messrs.
Charles S. Burnell and Warren L. Williams
were on the brief:
We submit the opinions and decisidna of
SUPREME COURT OF THE UNITED STATES.
Cor. Tkuc,
the supreme court of the state of California
upon the case here under consideration.
Ex parte Hadacheck, 165 Cal. 416, L.RJI.
1016B, 1248, 132 Pac. 584; Hadacheck ▼.
Alexander, 169 Cal. 259, 147 Pac. 259.
Also other decisions of said court, pass-
ing upon the validity of similar ordinances
prohibiting the maintenance of certain class-
es of business in residence districts.
Ex parte Quong Wo, 161 Cal. 220, 118
Pac. 714; Grumbach v. Lelande, 154 Cal.
679, 08 Pac. 1059; Re Montgomery, 163
Cal. 457, 125 Pac. 1070, Ann. Cas. 1914A,
130; Re Linehan, 72 Cal. 114, 13 Pac. 170.
The police power extends to all the great
public needs.
Camfield v. United States, 167 U. S. 518,
42 L. ed. 260, 17 Sup. Ct. Rep. 864; Bacon
V. Walker, 204 U. S. 311, 317, 51 L. ed.
409, 502, 27 Sup. Ct. Rep. 289 ; Chicago, B.
& Q. R. Co. V. Illinois, 200 U. S. 592, 50 L.
ed. 609, 26 Sup. Ct. Rep. 341, 4 Ann. Cas.
1175; Noble State Bank v. Haskell, 219 U.
S. 104, 55 L. ed. 112, 32 L.R.A.(N.S.)
1062, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A,
487; Lake Shore & M. S. R. Co. v. Ohio,
173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct.
Rep. 465; Thorpe v. Rutland & B. R. Co.
27 Vt. 140, 62 Am. Dec. 625: Pound v.
Turck, 95 U. S. 464, 24 L. ed. 527; Han-
nibal & St. J. R. Co. V. Husen, 96 U. S.
470, 24 L. ed. 530; German Alliance Ins.
Co. V. Lewis, 233 U. S. 389, 58 L. ed. 1011,
L.R.A.1915C, 1189, 34 Sup. Ct. Rep. 612;
Bracey v. Darst, 218 Fed. 482.
Under what circumstances the police
power should be exercised to prohibit the
conduct of certain classes of business with-
in a certain district is a matter of police
regulation for the municipal authorities.
New Orleans v. Murat, 119 La. 1093, 44
So. 898; Barbier v. Connolly, 113 U. S. 27,
28 L. ed. 923, 5 Sup. Ct. Rep. 357; Soon
Hing V. Crowley, 113 U. S. 703, 28 L. ed.
1145, 5 Sup. Ct. Rep. 730.
It is primarily for the legislative body
clothed with the proper power, to determine
when such regulations are essential, and
its determination in this regard, in view of
its better knowledge of all the circumstan-
ces, and of the presumption that it is acting
with a due regard for the rights of all
parties, will not be disturbed in the courts
imless it can plainly be seen that the regu-
lation has no relation to the ends above
stated, but is a clear invasion of personal
or property rights imder the guise of police
regulation.
Ex parte Hadacheck, 165 Cal. 416, L.R.A.
1916B, 1248, 132 Pac. 584; Ex parte Quong
Wo, 161 Cal. 230, 118 Pac. 714; SUte ex
rel. Krittenbrink v. Withnell, 91 Neb. 101, 1
40 L.RJ^.{N.S.) 898, 135 N. W. 376; Re
^52
Montgomery, 163 Cal. 457, 125 Pac. 1070,
Ann. Cas. 1914A, 130; Odd Fellaws' Ceme-
tery Asso. V. San Francisco, 140 CaL 226,
73 Pac. 987; Re Smith, 143 CaL 370, 77
Pac. 180; Missouri P. R. Go. y. Omaha,
235 U. S. 121, 59 L. ed. 157» 35 Sup. Ct.
Rep. 82 ; German Alliance Ins. Go. y. Lewis,
233 U. S. 389, 414, 58 L. ed. 1011, 1022,
L.R.A.1915C, 1189, 34 Sup. Ct. Rep. 612;
Laurel Hill Cemetery v. San Francisco, 152
Cal. 464, 27 L.RJk.(N.S.) 260, 93 Pac 70,
14 Ann. Cas. 1080; Ex parte Tuttle, 01 CaL
591, 27 Pac. 933.
The reasons actuating the legislative body
in enacting the regulation need not neces-
sarily appear from a reading of the ordi-
nance itself.
Grumbach v. Lelande, 154 Cal. 685, 98 Pae.
1059; Odd Fellow's Cemetery Asso. v. San
Francisco, 140 Cal. 233, 73 Pac. 987; Ex
parte Tuttle, 91 Cal. 591, 27 Piu^ 933; Re
Zhizhuzza, 147 CaL 334, 81 Pac 955.
The laws and policy of a state may be
framed and shaped to suits conditions of
climate and soil, and the exercise of the
police power may and should have refer-
ence to the particular situation and needs
of the oonmiunity.
Ohio Oil Co. V. Indiana, 177 U. S. 190, 44
L. ed. 729, 20 Sup. Ct. Rep. 676, 20 Mor.
Min. Rep. 466; Clark v. Nash, 198 U. 8.
361, 49 L. ed. 1085, 25 Sup. Ct. Rep. 676,
4 Ann. Cas. 1171; Strickley v. Highland
Boy Gold Min. Co. 200 U. S. 527, 60 L.
ed. 581, 26 Sup. Ct. Rep. 301, 4 Ann. Ca«.
1174; Offield v. New York, N. H. ft H. R.
Co. 203 U. & 372, 51 L. ed. 231, 27 Sup.
Ct. Rep. 72; New Mexico ex rel. McLean v.
Denver & R. G. R. Co. 203 U. S. 38, 61 L.
ed. 78, 27 Sup. Ct. Rep. 1; Sown v. Walling,
204 U. S. 320, 51 L. ed. 503, 27 Sup. Ct
Rep. 292; Bacon v. Walker, 204 U. S. 311,
51 L. ed. 499, 27 Sup. Ct. Rep. 289; Plessy
V. Ferguson, 163 U. S. 537, 41 L. ed. 256,
16 Sup. Ct. Rep. 1138; Welch y. Swasey,
193 Mass. 364, 23 L.RJ^.(N.S.) 1160, 118
Am. St. Rep. 523, 79 N. E. 745.
It is not necessary that a business be a
nuisance per se to be regulated.
Ex parte Lacey, 108 Cal. 326, 38 L.R^
640, 49 Am. St. Rep. 93, 41 Pac 411; Ez
parte Quong Wo, 161 Cal. 220, 118 Pac
714; Moses v. United States, 16 App. D. C.
428, 50 L.R.A. 532; Rhodes v. Dunbar, 67
Pa. 275, 98 Am. Dec 221; Beadman y.
Tredwell, 31 L. J. Ch. N. S. 892; Bardiam
V. Hall, 22 L. T. N. S. 116; Bamford v.
Turnley, 3 Best, k S. 62, 31 L. J. Q. B. N.
S. 286, 9 Jur. N. S. 377, 10 Wedc. Rep.
803; Campbell v. Seaman, 63 N. Y. 568,
20 Am. Rep. 567.
The question whether the classification of
subjects for the exercise of the police power
1S9 V. S.
1919.
HADACHECK v. SEBASTIAN.
is proper Ib not to be determined upon hard
and fast rules, but must be answered after
a consideration of the particular subject of
litigation.
Re Stoltenberg, 165 Cal. 789, 134 Pac.
971.
Whenever a thing or act is of such a
nature that it may become injurious to the
welfare of the community if not suppressed
or regulated, the legislative body may, in
the exercise of its police power, make and
enforce ordinances to regulate or prohibit,
although it may never have been offensive
or injurious in the past. The exercise of
this power is not limited to regulation of
such things as may have already become
nuisances.
Odd Fellows' Cemetery Asso. v. San Fran-
cisco, 140 Cal. 231, 73 Pac. 987.
The length of time during which a busi-
ness has existed in a certain locality does
not make its prohibition for the future un-
constitutional.
Tiedeman, State k Federal Control of
Persons & Property ; State ex rel. Russell v.
Beattie, 16 Mo. App. 131; Sedgw. Stat. &
Const. Law, 434; Chicago, B. & Q. R. Co.
V. Illinois, 200 U. S. 502, 50 L. ed. 609,
26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175;
Frcund, Pol. Power, § 529; State ex rel.
Horskottle v. Board of Health, 16 Mo. App.
8; Powell V. Brookfleld Pressed Brick &Tile
Co. 104 Mo. App. 713, 78 S. W. 648; Bush-
nell V. Robeson, 62 Iowa, 542, 17 N. W.
888; Baltimore v. Fairfield Improv. Co. 87
Md. 352, 40 L.R.A. 494, 67 Am. St. Rep.
344, 39 Atl. 1081 ; Harmison v. Lewiston, 46
m. App. 164; Com. v. Upton, 6 Gray, 473;
Rhodes v. Dunbar, 57 Pa. 275, 98 Am. Dec.
221; People v. Detroit White Lead Works,
82 Mich. 471, 9 L.R.A. 722, 46 N. W. 735.
Where the police power restricts con-
stitutional rights, particularly as to prop-
erty, the value of that property is not ma-
terial to the issue.
Mugler V. Kansas, 123 U. S. 623, 31 L.
ed. 205, 8 Sup. Ct. Rep. 273; Grumbach v.
Lelande, 154 Cal. 684, 98 Pac. 1059; West-
em Indemnity Co. v. Pillsbury, — Cal. — ,
151 Pac. 398 ; Erie R. Co. v. Williams, 233
U. S. 685, 700, 58 L. ed. 1155, 1161, 51
LJLA.(N.S.) 1097, 34 Sup. Ct. Rep. 761.
The size of the territory affected by the
ordinance is no criterion by which to be
guided in judging of its discriminatory qual-
ities.
Ex parte Quong Wo, 161 Cal. 226, 118
Pac. 714; Re Martin, 157 Cal. 67, 26 L.R.A.
(N.S.) 242, 106 Pac. 235; Re Miller, 162
Cal. 687, 124 Pac. 427; Miller v. Wilson,
236 U. S. 373, 59 L. ed. 628, L.R.A.1915F,
829, 35 Sup. Ct. Rep. 342.
That a statute will result in injury to
legislature of power to enact it, though a
statute is invalid where its purpose is pri-
marily the destruction of property.
Enos V. Banff, 98 Neb. 245, 152 N. W.
397.
The character and value of property con*
tiguous to the business of plaintiff in error
is very much to be considered.
SUte ex rel. Krittenbrink v. Withnell, 91
Neb. 101, 40 L.R.A.(N.S.) 898, 135 N. W.
376.
That similar conditions exist in other
localities is no reason why an ordinance
regulating and equally affecting everyone in
a given locality should be declared uncon-
stitutionaL
Ex parte Tuttle, 91 Cal. 591, 27 Pac. 933;
Re Smith, 143 Cal. 370, 77 Pac. 180; Re
Zhizhuzsa, 147 Cal. 334, 81 Pac. 955; Ex
parte Quong Wo, 161 Cal. 220, 118 Pac.
714.
A statute enacted within the police power
will not be adjudged invalid merely be-
cause omitted cases might have been prop-
erly included in the statute.
People V. Charles Schweinler Press, 214
N. Y. 395, LJI.A.— , — , 108 N. E. 639;
People ex rel. Krohn v. Warden, 152 N. Y.
Supp. 1136; State v. Olson, 26 N. D. 304,
L.R. A.— , — , 144 N. W. 661 ; King v. Vicks-
burg R. & Light Co. 88 Miss. 456, 6 L.RJL
(N.S.) 1036, 117 Am. St Rep. 749, 42 So.
204; Rochester v. Macauley-Fien Mill. Co.
199 N. Y. 207, 32 LJR.A.(N.S.) 554, 92 N.
E. 641.
Every holder of property holds it under
the implied liability that its use may be
so regulated that it shall not encroach in*
juriously on the enjoyment of property by
others, or be injurious to the community.
Pittsburg, C. C. & St. L. R. Co. v. Chap-
pell, — Ind. — , 106 N. E. 403.
Brickyards and brick manufacturing
plants, as well as all businesses which re-
quire the generation of smoke, soot, and
gas, have universally been held to be ob-
jectionable and may be enjoined or regu-
lated.
State ex rel. Krittenbrink v. Withnell, 91
Neb. 101, 40 L.R.A.(N.S.) 898, 135 N. W.
376; Susquehanna Fertilizer Co. v. Malon^
73 Md. 268, 9 L.R.A. 737, 25 Am. St. Rep.
596, 20 Atl. 900; Booth v. Rome, W. k O.
Terminal R. Co. 140 N. Y. 267, 24 L.R.A.
105, 37 Am. St. Rep. 558, 35 N. E. 592;
McMorran v. Fitzgerald, 106 Mich. 649,
58 Am. St. Rep. 511, 64 N. W. 569; King
V. Vicksburg R. k Light Co. 88 Miss. 456,
6 L.R.A.(N.S.) 1036, 117 Am. St. Rep. 749,
42 So. 204; Rochester v. Macauley-Fien
Mill. Co. 199 N. Y. 207, 32 L.R.A.(N.S.)
554, 92 N. E. 641; Powell v. Brookfleld
Pressed Brick k Tile Mfg. Co. 104 Mo. App.
tome private interest does not deprive the 713, 78 S. W. 648; Odd Fellows' Cemetery
«• li. ed. 23 ^^%
404» 406
SUPREME COURT OF THE UNITED STATES.
Cot. Tknc»
Asso. y. San Fnwciaco, 140 Gal. 228, 73 Pao.
087 ; Kirchgraber ▼. Lloyd, 69 Mo. App. 69.
The supreme court of California baa de-
termined aa a fact, after considering the
evidence (consisting of affidavits and coun-
ter-aflSdavits accompanying the petition and
return), that the district surrounding peti-
tioner's brickyard has become primarily a
residence section, and that the occupants
of neighboring dwellings are seriously dis-
commoded by petitioner's operations.
Ex parte Hadachecic, 166 CaL 410, L.RJL
1916B, 1248, 132 Pac. 684.
The presumption is in favor of the valid-
ity of the ordinance, and this presumption
has not been rebutted by any evidence pro-
duced by plaintiff in error, but, on the con-
trary, the evidence presented at the hear-
ing of the petition for a writ of habeas
corpus, by way of affidavits, shows that
the ordinance was one that was necessary
for the protection of the public health, com-
fort, safety, and welfare.
Ibid.
It is well settled that prohibition of in-
dustries in certain sections of cities is but
a regulation, and is always so treated.
£z parte Byrd, 84 Ala. 17, 6 Am. St.
Rep. 328, 4 So. 397; Re Wilson, 32 Minn.
146, 19 N. W. 723; Shea v. Muncie, 148
Ind. 14, 46 N. E. 138; Cronin v. People,
82 N. Y. 318, 37 Am. Rep. 564; Newton v.
Joyce, 160 Mass. 83, 56 Am. St. Rep. 385,
44 N. £. 116; Ex parte Quong Wo, 161 Cal.
231, 118 Pac. 714; Little Rock v. Rein-
man-Wolfort Automobile Livery Co. 107
Ark. 174, 156 8. W. 105; St. Louis ▼. Rus-
sell, 110 Mo. 248, 20 L.RJk. 721, 22 S. W.
470; Ex parte Botts, — Tex. Crim. Rep.
— , 44 L.RJl.(N.S.) 029, 154 S. W. 221.
The city has the right to regulate an
occupation by confining the conducting
thereof within prescribed limits.
Ex parte Quong Wo, 101 Cal. 220, 118
Pae. 714; Re Montgomery, 103 Cal. 457,
126 Pac. 1070, Ann. Cas. 1914A, 130; Grum-
bach V. Lelande, 154 Cal. 079, 98 Pac. 1059;
Ex parte Lacey, 108 Cal. 320, 38 L.RJI.
040, 49 Am. St. Rep. 93, 41 Pac. 411; White
V. Bracelin, 144 Mich. 332, 107 N. W. 1056,
8 Ann. Cas. 250; Strauss v. Galesburg, 203
IlL 234, 07 N. E. 830; Shea v. Muncie, 148
Ind. 14, 40 N. E. 138; New Orleans v.
Murat, 119 La. 1093, 44 So. 898; Uttle
Rock T. Reinman-Wolfort Automobile Co.
107 Ark. 174, 155 S. W. 105; St. Louis v.
Russell, 110 Mo. 248, 20 L.RJI. 721, 22
8. W. 470; Ex parte Botts, — Tex. Crim.
Rep. — , 44 L.R.A.(N.S.) 029, 154 S. W.
221 ; Barbier v. Connolly, 113 U. S. 27, 28
L. ed. 923, 5 Sup. Ct. Rep. 357; Soon Hing
T. Crowley, 113 U. S. 703, 28 L. ed. 1145,
6 Sup. Ct Rep. 730.
SS4
Mr. Justice MoKenna delivered the opin-
ion of the court:
Habeas corpus prosecuted in the supreme
court of the state of California for the dis-
charge of plaintiff in error from the cus-
tody of defendant in error, chief of police
of the city of Los Angeles.
Plaintiff in error, to whom we shall refer
as petitioner, was convicted of a misde-
meanor for the violation of an ordinance
of the city of Los Angeles which makes it
unlawful for any person to establish or
operate a brickyard or brickkiln, or any
establishment, factory, or place for the
manufacture or burning of brick within
described limits in the city. Sentence was
pronounced against him [405] and he was
committed to the custody of defendant in
error as chief of police of the city of Los
Angeles.
Being so in custody he filed a petition in
the supreme court of the state for a writ of
habeas corpus, llie writ was issued. Sub-
sequently defendant in error made a return
thereto, supported by affidavits, to which
petitioner made sworn reply. The court
rendered judgment discharging the writ and
remanding petitioner to custody. The chief
justice of the court then granted this writ
of error.
Ihe petition sets forth the reason for re-
sorting to habeas corpus and that petitioner
is the owner of a tract of land within the
limits described in the ordinance, upon
which tract of land there is a very valuable
bed of clay, of great value for the manu-
facture of brick of a fine quality, worth to
him not less than $100,000 per acre, or
about $800,000 for the entire tract for
brickmaking purposes, and not exceeding
$00,000 for residential purposes, or for any
purpose other than the manufacture of
brick. That he has made excavations of
considerable depth and covering a very large
area of the property, and that on account
thereof the land cannot be utilized for resi-
dential purposes or any purpose other than
that for which it is now used. That he
purchased the land because of such bed of
clay and for the purpose of manufacturing
brick ; that it was, at the time of purchase,
outside of the limits of the city, and distant
from- dwellings and other habitations, and
that he did not expi*ct or believe, nor did
other owners of property in the vicinity
expect or believe, that the territory would
be annexed to the city. That he has erected
expensive machinery for the manufacture
of bricks of fine quality which have been
and are being used for building purposes
in and about the city.
That if the ordinance be declared valid,
he will be compelled to entirely abandon hia
SS9 U. 8.
l»lf.
HADACHECK ▼ SEBASTIAN.
4OIMO0
business and will be deprived of the use of
his property.
[406] That the manufacture of brick
must necessarily be carried on where auit-
sble clay is found, and the clay cannot be
transported to some other location ; and, be-
sides, the clay upon his property is particu-
larly fine, and day of as good quality can-
not be found in any other place within the
city where the same can be utilised for the
manufacture of brick. That within the pro-
hibited district there is one other brickyard
besides that of plaintiff in error.
That there is no reason for the prohibi-
tion of the business; that its maintenance
cannot be and is not in the nature of a nui*
lance as defined in § 8479 of the CiTil Code
of the state, and cannot be dangerous or
detrimental to health or the morals or
safety or peace or welfare or convenienoo ol
the people of the district or eity.
That the business is so conducted as not
to be in any way or degree a nuisanoe; no
noises arise therefrom, and no noxious odors,
and that by the use of certain means (which
are described) provided and the situation of
the brickyard an extremely small amount
of smoke is emitted from any kiln, and what
is emitted is so dissipated that it is not a
nuisance nor in any manner detrimental to
health or comfort. That during the seven
years which the brickyard has been conduct-
ed no complaint has been made of it, and no
attempt has ever been made to regulate it.
That the city embraces 107.62 square miles
in area and 76 per cent of it is devoted to
residential purposes; that the district de-
scribed in the ordinance includes only about
3 square miles, is sparsely settled, and con-
tains large tracts of unsubdivided and unoc-
cupied land; and that the boundaries of the
district were detemAned for the sole and
ipecific purpose of prohibiting and suppress-
ing the business of petitioner and that of
the other brickyard.
That there are and were, at the time of
the adoption of the ordinance, in other dis-
tricts of the city thickly built up with resi-
dences brickyards maintained more detri-
mental to the inhabitants of the city. That
a petition was filed, [4071 signed by sever-
al hundred persons, representing such brick-
yards to be a nuisance, and no ordinance or
regulation was passed in regard to such pe-
tition, and the brickyards are operated with-
out hindrance or molestation. That other
brickyards are permitted to be maintained
without prohibition or regulation.
That no ordinance or regulation of any
kind has been passed at any time* regulating
or attempting to regulate brickyards, or in-
quiry made whether they could be main-
tained without being a nuisance or detri-
mental to health.
•0 li. ed.
That the ordinance does not state a publie
offense, and is in violation of the Constitu-
tion of the state and the 14th Amendment
to the Constitution of the United SUtes.
That the business of petitioner is a lawful
one, none of the materials .used in it ara
{ combuatible, the machinery is of the moat
approved pattern, and its conduct will no4
create a nuisance.
There is an allegation that the ordinance^
if enforced, fosters and will foster a monop-
oly, and protects and will protect other per-
sons engaged in the manufacture of brick
in the city, and discriminates and will dis-
criminate against petitioner in favor of
such other persons, who are his competitors^
and will prevent him from entering into
competition with them.
The petition, after almost every para-
graph, charges a deprivation of property, the
taking of property without compensation,
and that the ordinance is in consequence in-
valid.
We have given this outline of the petition,
as it presents petitioner's contentions, with
the circumstances (which we deem most
material) that give color and emphasis to
them.
But there are substantial traverses made
by the return to the writ, among others, a
denial of the charge that the ordinance waa
arbitrarily directed against the business of
[408] petitioner, and it is alleged that
there is another district in which brick-
yards are prohibited.
There was a denial of the allegations that
the brickyard was conducted or could be
conducted sanitarily, or was not offensive to
health. And there were affidavits supporting
the denials. In these it was alleged that the
fumes, gases, smoke, soot, steam, and dust
arising from petitioner's brickmaking plant
have from time to time caused sickness and
serious discomfort to those living in the
vicinity.
There was no specific denial of the value
of the property, or that it contained depos-
its of clay, or that the latter could not be
removed and manufactured into brick else-
where. There was, however, a general de-
nial that the enforcement of the ordinance
would "entirely deprive petitioner of his
property and the use thereof."
How the supreme court dealt with the al-
legations, denials, and affidavits we can
gather from its opinion. The court said,
through Mr. Justice Sloes: "The district
to which the prohibition was applied con-
tains about 3 square miles. Tlie petitioner
is the owner of a tract of land, containing
8 acres, more or less, within the district de-
scribed in the ordinance. He acquired his
land in 1902, before the territory to which
the ordinance was directed had been annexed
«)8-411
SUPREME COURT OF THE UNITED STATES.
Oct. Tteic,
to the city of Los Angeles. His land contains
valuable deposits of clay suitable for the
manufacture of brick, and he has, during the
entire period of his ownership, used the land
for brickmaking, and has erected thereon
:ilns, machinery, and buildings necessary for
such manufacture. The land, as he alleges,
is far more valuable for brickmaking than
for any other purpose." [166 Cal. 418,
L.R.A.1016B, 1248, 132 Pac. 684.]
The court considered the business one
which could be regulated, and that regula-
tion was not precluded by the fact "that the
value of investments made in the business
prior to any legislative action will be greatly
diminished," and that no complaint could
be based upon the fact that [409] petition-
er had been carrying on the trade in that
locality for a long period.
And, considering the allegations of the
petition, the denials of the return, and the
evidence of the aflidavits, the court said that
the latter tended to show that the district
created has become primarily a residential
section, and that the occupants of the neigh-
boring dwellings are seriously incommoded
by the operations of petitioner; and that
such evidence, "when taken in connection
with the presumptions in favor of the pro-
priety of the legislative determination, is
certainly sufficient to overcome any conten-
tion that the prohibition [of the ordinance]
was a mere arbitrary invasion of private
right, not supported by any tenable belief
that the continuance of the business . . .
was so detrimental to the interests of others
as to require suppression."
The court, on the evidence, rejected the
contention that the ordinance was not in
good faith enacted as a police measure, and
that it was intended to discriminate against
petitioner, or that it was actuated by any
motive of injuring him as an individual.
The charge of discrimination between lo-
calities was not sustained. The court ex-
pressed the view that the determination of
prohibition was for the legislature, and that
the court, without regard to the fact shown
in the return that there was another district
in which brickmaking was prohibited, could
not sustain the claim that the ordinance
was not enacted in good faith, but was de-
signed to discriminate against petitioner
and the other brickyard within the district.
"The facts before us," the court finally said,
''would certainly not justify the conclusion
that the ordinance here in question was de-
signed, in either its adoption or its enforce-
ment, to be anything but what it purported
to be; viz., a legitimate regulation, operat-
ing alike upon all who come within its
terms."
We think the conclusion of the court is
Justified by the evidence and makes it unnec-
sse
essary to review the many [410] cases cited
by petitioner in which it is decided that the
police power of a state cannot be arbitrarily
exercised. The principle is familiar, but in
any given case it must plainly appear to
apply. It is to be remembered that we are
dealing with one of the most essential powers
of government,— -one that is the least limit-
able. It may, indeed, seem harsh in its
exercise, usually is on some individual, but
the imperative necessity for its existence
precludes any limitation upon it when not
exerted arbitrarily. A vested interest can-
not be asserted against it because of condi-
tions once obtaining. Chicago & A. R. Co. v.
Tranbarger. 238 U. S. 67, 78, 69 L, ed. 1204,
1211, 35 Sup. Ct. Rep. 678. To so hold
would preclude development and fix a city
forever in its primitive conditions. There
must be progress, and if in its march private
interests are in the way, they must yield to
the good of the community. The logical re*
suit of petitioner's contention would seem to
be that a city could not be formed or en-
larged against the resistance of an occupant
of the ground, and that if it grows at all
it can only grow as the environment of the
occupations that are usually banished to the
purlieus.
The police power and to what extent it
may be exerted we have recently illustrated
in Reinman v. Little Rock, 237 U. S. 171,
69 L. ed. 900, 35 Sup. Ct. Rep. 611. The
circumstances of the case were very much
like those of the case at bar, and give reply
to the contentions of petitioner, especially
that which asserts that a necessary and law-
ful occupation that is not a nuisance per se
cannot be made so by legislative declaration.
There was a like investment in property, en-
couraged by the then conditions; a like re-
duction of value and deprivation of property
was asserted against the validity of the or-
dinance there considered; a like assertion of
an arbitrary exercise of the power of prohi-
bition. Against all of these contentions, and
causing the rejection of them all, was ad-
duced the police power. There was a pro-
hibition of a business, lawful in itself, there
as here. It was a livery stable there; a
brickyard here. They differ in [411] par-
ticulars, but they are alike in that whidi
cause and justify prohibition in defined
localities, — that is, the effect upon the
health and comfort of the community.
The ordinance passed upon prohibited the
conduct of the business within a certain de-
fined area in Little Rock, Arkansas. This
court said of it: granting that the business
was not a nuisance per se, it was clearly
within the police power of the state to regu-
late it, "and to that end to declare that in
particular circumstances and in particular
localities a livery stable shall be deemed "x
239 U. S.
1915.
HADACHECK v. SEBASTIAN.
411-113
nuisance in fact and in law." And the only
limitation upon the power was stated to be
that the power could not be exerted arbi-
trarily or with unjust discrimination. There
was a citation of cases. We thinlc the pres-
ent case is within the ruling thus declared.
There is a distinction between Reinman t.
Little Rock and the case at bar. There a
particular business was prohibited which
was not affixed to or dependent upon its lo-
cality; it could be conducted elsewhere.
Here, it is contended, the latter condition
does not exist, and it is alleged that the
manufacture of brick must necessarily be
carried on where suitable clay is found, and
that the clay on petitioner's property can-
not be transported to some other locality.
This is not urged as a physical impossibility,
but only, counsel say, that such transporta-
tion and the transportation of the bricks to
places where they could be used in construc-
tion work would be prohibitive "from a
financial standpoint." But upon the evi-
dence the supreme court considered the case,
as we understand its opinion, from the
standpoint of the offensive effects of the op-
eration of a brickyard, and not from the
deprivation of the deposits of clay, and dis-
tinguished Ex parte Kelso, 147 Cal. 609, 2
L.IUL(N.S.) 796, 109 Am. St. Rep. 178,
82 Pac. 241, wherein the court declared in-
valid an ordinance absolutely prohibiting
the maintenance or operation of a rock or
stone quarry within a certain portion of the
city and county of San Francisco. [412]
The court there said that the effect of the or-
dinance was "to absolutely deprive the own-
ers of real property within such limits of a
valuable right incident to their ownership,
via., the right to extract therefrom such
rock and stone as they may find it to their
advantage to dispose of." The court ex-
pressed the view that the removal could be
regulated, but that "an absolute prohibition
of such removal under the circumstances"
could not be upheld.
In the present case there is no prohibi-
tion of the removal of the brick clay; only a
prohibition within the designated locality
of its manufacture into bricks. And to this
feature of the ordinance our opinion is ad-
dressed. Whether other questions would
arise if the ordinance were broader, and
opinion on such questions, we reserve.
Petitioner invokes the equal protection
clause of the Constitution and charges that
it is violated in that the ordinance (1)
"prohibits him from manufacturing brick
upon his property while his competitors are
permitted, without regulation of any kind,
to manufacture brick upon property situat-
ed in all respects similarly to that of plain-
tiff in error;" and (2) that it "prohibits
the conduct of his business while it permits
the maintenance within the same district of
•0 li. ed.
any other kind of business, no matter how
objectionable the same may be, eitiier in its
nature or in the manner in which it is con-
ducted."
If we should grant that the first q[>ecifica-
tion shows a violation of classification, that
is, a distinction between businesses which
was not within the l^islative power, peti-
tioner's contention encounters the objection
tliat it depends upon an inquiry of fact
which the record does not enable us to de-
termine. It is alleged in the return to the
petition that brickmaking is prohibited in
one other district, and an ordinance is re-
ferred to regulating business in other dis-
tricts. To this plaintiff in error replied
that the ordinance attempts to prohibit the
operation of certain [413] businesses hav-
ing mechanical power, and does not prohibit
the maintenance of any business or the op-
eration of any machine that is operated by
animal power. In other words, petitioner
makes his contention depend upon disput-
able considerations of classification and up-
on a comparison of conditions of which there
is no means of judicial determination, and
upon which, nevertheless, we are expected
to reverse legislative action exercised upon
matters of which the city has control.
To a certain extent th% latter conunent
may be applied to other contentions; and,
besides, there is no allegation or proof of
other objectionable businesses being permit-
ted within the district, and a speculation of
their establishment or conduct at some fu-
ture time is too remote.
In his petition and argument something is
made of the ordinance as fostering a monop-
oly and suppressing his competition with
other bricknmkers. The charge and argu-
ment are too illusive. It is part of the
charge that the ordinance was directed
against him. The charge, we have seen, waa
rejected by the supreme court, and we find
nothing to justify it.
It may be that brickyards in other lo-
calities within the city where the same con-
ditions exist are not regulated or prohibited^
but it does not follow that they will not be»
That petitioner's business was first in time
to be prohibited does not make its pro-
hibition unlawful. And it may be, as said!
by the supreme court of the state, that the-
conditions justify a distinction. However,,
the inquiries thus suggested are outside of
our province.
There are other and subsidiary conten-
tions which, we think, do not require discus-
sion. They are disposed of by what we have
said. It may be that something else than
prohibition would have satisfied the condi-
tions. Of this, however, we have no means
of determining, and besides, we cannot de-
clare invalid the exertion of a power which
the city undoul)tedly has because of a charge
85T
413-416
SUPREME COURT OF THE UNITED STATES.
Got. Tknc,
that it does [414] not exactly accommodate
the conditionB, or that some other exercise
would have been better or less harsh. We
must accord good faith to the citj in the ab-
sence of a clear showing to the contrary and
an honest exercise of Judgment upon the cir-
cumstances which induced its action.
We do not notice the contention that the
ordinance is not within the city's charter
powers, nor that it b in violation of the
state Constitution, such contentions raising
only local questions which must be deemed
to have been decided adversely to petitioner
by the supreme court of the state.
Judgment affirmed.
ELI P. WILLIAMS, Elmer Williams, and
Charles H. Williams, Plffs. in Err.,
V.
BEN F. JOHNSON.
(See S. C. Reporter's ed. 414-421.)
Oonstltntional law — impairing contract
obligations — due process of law —
Indian allotments.
Congress, in the exercise of its ple-
nary control over Indians, could, notwith-
standing the contract and due process of
law clauses of the Federal Constitution, pro-
vide, as it did in the act of April 21, 1004
(33 Stat at L. 204, chap. 1402), that the
restrictions on alienation by allottees of In-
dian blood under the act of July 1, 1002
(32 SUt. at L. 641, chap. 1362 ), which that
act imposes, could be removed by the Secre-
tarv of the Interior upon application to the
Indian agent in charge if the latter should
be satisfied, upon a uill investigation, that
the removal of the restrictions was for the
interest of the allottee.
CFor othe^ cases, see Conntltuttonal Law, lY.
b. 6; IV. ff. 2; IndUns, WllU. in Digest
8ap. Ct 1908.1
[No. 110.]
Submitted December 6, 1915. Decided De-
cember 20, 1916.
IN ERROR to the Supreme Court of the
State of Oklahoma to review a decree
which affirmed a decree of the District Court
of Grady County, in that state, in favor of
plaintiff in a suit to quiet title. Affirmed.
Note. — Generally as to what laws are
Toid as impairing obligation of contracts —
oee notes- to Franklin County Grammar
School V. Bailey, 10 L,RJi. 405; Bullard
▼. Northern P. R. Co. 11 L.R.A. 246; Hen-
derson V. State Soldiers & 8. Monument
Comrs. 13 L.RJL. 160; and Fletcher v. Peck,
3 L. ed. U. S. 162.
On power of Congress over Indians — see
note to Worcester v. Georgia, 8 L. ed. U.
S. 484.
^53
See same case below, 32 Okla. 247, 122
Pac. 485.
The facts are stated in the opinion.
Messrs. EU P. Williams, Elmer Wil-
liams, and Charles H. Williams, in propriif
perMonia, submitted the caiyM for plaintiffs
in error:
Congress is without power to change a
contract or agreement for a valuable con-
sideration with an individual Indian allot-
tee.
Choate v. Trapp, 224 U. S. 665, 56 L. ed.
941, 32 Sup. Ct. Rep. 565; Jones v. Meehan,
175 U. S. 1, 44 L. ed. 49, 20 Sup. Ct. Rep.
L
The Choctaw and Chickasaw Nations have
complete title except that said Nations
have no right to transfer or alienate the
land except to the United States, or with
its consent.
Marchie Tiger v. Western Invest. Co. 221
U. S. 286, 55 L. ed, 738, 31 Sup. Ct. Rep.
578.
Where Congress has passed an act, and
property rights or contract rights are ac-
quired under said act, thereafter Congress
is without power to pass an act annulling
or in any way affecting the rights so ac-
quired under the former act of Congress.
Carondelet Canal & Nav. Co. v. Louisiana,
233 U. S. 362, 58 L. ed. 1001, 34 Sup. Ct
Rep. 627.
Mr. Reford Bond submitted the cause
for defendant in error. Messrs. Alger Mel-
ton and Adrian Melton were on the brief :
No contract or agreement can exist as
between the government and these Indians
by reason of the treaty.
United Stotes v. Kagama, 118 U. S. 375,
30 L. ed. 228, 6 Sup. Ct. Rep. 1109; Lone
Wolf V. Hitchcock, 187 U. S. 553, 47 L.
ed. 299, 23 Sup. Ct. Rep. 216; Choctaw
Nation v. Hitchcock, 119 U. S. 1, 30 L.
ed. 306, 7 Sup. Ct. Rep. 75; Stephens T.
Cherokee Nation, 174 U. S. 445, 43 L. ed.
1041, 19 Sup. Ct. Rep. 722; Starr v. Long
Jim, 227 U. S. 613, 57 L. ed. 670, 33 Sup.
Ct. Rep. 358.
[416] Mr. Justice McKenna delivered
the. opinion of the court:
Suit to quiet title, brought by Johnson,
defendant in error, in the district court of
Grady county, state of Oklahoma, against
plaintiffs in error.
The contention of defendant in error is
that the land was an allotment to one Selin
Taylor, a member of the Choctaw Tribe of
Indians by blood; that on November 22,
1904, a patent was duly issued to him, exe-
cuted by the proper officers of that Nation
and the Chickasaw Nation, and the United
2S9 U. S.
191&
WILLIAMS T. JOHNSON.
416-418
States, and that at the time of the allotment
the land was inalienable.
On February 9, 1906, the United States
Indian agent issued to Taylor a certificate
(No. 2458) removing Taylor's disabilities re-
specting the alienation of the land, and on
February 16th Taylor conveyed the land by
warranty deed to C. B. Campbell, and the
latter and his wife, on March 13th following,
conveyed the land by like deed to Johnson.
The deeds were duly recorded.
On November 15, 1906, Taylor and his
wife conveyed the land by warranty deed to
James £. Whitehead, and on October 22,
1909, Whitehead conveyed the land to one
McNeill, who, on the 25th of that month,
conveyed to Johnson.
Johnson's petition alleged that the claim
of title of the defendants ( plaintiffs in error
here) was based upon a power of attorney
covering the land, executed by Taylor on
March 11, 1907, and charged that the power
of attorney constituted a cloud upon his
(Johnson's) title.
The answer of the defendants admitted
the allotment to Taylor and the execution of
the various instruments of conveyance from
him and his grantees to Johnson, and al-
leged that Taylor received his allotment un-
der an act of Congress of July 1, 1902,
known as an "Act to Ratify and Confirm an
Agreement with the [417] Choctaw and
Chickasaw Tribes of Indians, and for Other
Purposes" [32 Stat, at L. 641, chap. 1362],
and that the act was called an "agreement"
and was ratified by Congress and the voters
of those tribes, and was a binding contract
upon the United States and the Indians of
those tribes, and particularly Taylor. That
Taylor is not a ward of the United States
and was not at the time the land was allot-
ted, and that by an act of Congress of March
3, 1901 (31 Stat, at L. 1447, chap. 869)
Taylor was made a citizen of the United
States, with the rights, privileges, and im-
munities of such.
That the Choctaw and CHiickasaw Nations,
and not the United States, are the grantors
in the patent to Taylor, and imposed re-
strictions upon him against the alienation
of the land, and have not consented to the
removal of those restrictions. That the
deeds executed by Taylor under which John-
son claimed title were in violation of such
restrictions and therefore void. That the
patent to Taylor was issued by authority of
S 29 of the act of Congress of June 28, 1898
(30 Stat, at L. 495, chap. 517), and con-
tained the following clause: "Subject, how-
ever, to the provisions of the act of Con-
gress approved July 1st, 1902 (32 Stat, at
L. 641, chap. 1362)."
That Taylor and the defendants claim
title to the land under that agreement and
60 L. ed.
patent; that the restrictions imposed upon
the alienation of the land were for the pro-
tection and benefit of the members of the
tribes; that Taylor was a full-blood Choc-
taw Indian and a member of the Choctaw
tribe, did not understand the English lan-
guage, was wholly ignorant of laud values,
was in need of and entitled to the protection
and benefit of the restrictions so imposed;
and that such "protection was of great value
and was to him property as much as the
land itself."
That the deeds executed by Taylor to
Campbell and Whitehead were in open vio-
lation of the restrictions against alienation
in the act of Congress of July 1, 1902, supra,
under which Taylor was allotted the land,
and also in [418] violation of the restric-
tions upon alienation contained in the pat-
ent from the Choctaw and Chickasaw Na-
tions to him, and were executed under an
unconstitutional act of Congress approved
April 21, 1904 (33 SUt. at L. 204, chap.
1402). That the object of that act of
Congress and of the certificate to Tay-
lor was to remove the restrictions upon
the alienation of the land, and that
they impair the obligation of the con-
tract or binding agreement "upon the United
States and upon the Choctaw and Chickasaw
Nations and upon all Choctaws and Chicka-
saws," and especially Seiin Taylor, and are
repugnant to the act of Congress under
which Taylor was allotted the land, and also
to the Constitution of the United States
and the clause in the 5thAmendment thereof
which provides that no person siial! be de-
prived of his property without due process
of law. A cancelation of the deeds was
prayed, the annulment of the interest of
Johnson in the land and the rents thereof,
and judgment for the possession of the land.
A demurrer to the answer was sustained,
and defendants (plaintiffs in error) declin-
ing to plead further, a decree was entered
quieting Johnson's title to the land. Upon
appeal the judgment was sustained by the
supreme court of the state, and error was
prosecuted from this court.
The record presents the general question.
Was the land alienable by Taylor T This
depends upon the validity of certificate No.
2458, issued to Taylor, and that again on
the validitv of the act of Congress of April
21, 1904 (83 Stat, at L. 204, chap. 1402).
This act removed the restrictions imposed
by the act of July 1 , 1902, upon allottees of
either of the Five Civilized Tribes who were
not of Indian blood, and provided for the
removal by the Secretary of the Interior of
all restrictions upon the alienation of all
other allottees of said tribes (with certain
exceptions) upon application to the Indian
agent in charge of such tribes, il the agent
418-421
SUPREME COURT OF THE UNITED STATES.
Oct. Tsim»
was Batisfled, upon full investigation of each
individual [419] case, that the removal of
restrictions was for the interest of the al-
lottee.
The certificate shows that the implication
was made by Taylor, and yet plaintiffs in
error assert the invalidity of boUi certificate
and act because they are, it is contended,
repugnant to the act of Congress of July 1,
1002 (32 SUt. at L. 641, chap. 1362), which,
it is contended, constituted a contract be-
tween the United States and the Choctaw
and Chickasaw Nations and all Choctaws
and Chickasaws; that the restriction upon
alienation was a protection to Taylor
"against his own improvident acts," that it
was '*not a personal privilege and repeal-
able," but was "an incident attached to the
land itself," and "was to him property as
much as the land itself."
The act of July 1, 1902, is entitled, "An
Act to Ratify and Confirm an Agreement
with the Choctaw and Chickasaw Tribes of
Indians, and for Other Purposes." It re-
cites that "in 'consideration of the mutual
undertakings here contained, it is agreed"
that (§16) all land shall be alienable after
issue of patent in certain quantities and at
certain times, "provided that such land shall
not be alienable by the allottee or his heirs
at any time before the expiration of the
Choctaw and Chickasaw tribal governments
for less than its appraised value;" that (§
68) "no act of Congress or treaty provision,
nor any provision of the Atoka agreement,
inconsistent with this agreement, shall be
in force in said Choctaw and Chickasaw
Nations;" and, further (§ 73), that "this
agreement shall be binding upon the United
States and upon the Choctaw and Chicka-
saw Nations and all Choctaws and Chicka-
saws, when ratified by Congress and by a
majority of the whole number of votes cast
by the legal voters of the Choctaw and
Chickasaw Tribes in the manner following:
n
It is conceded by plaintiffs in error that
an act of Congress can supersede a prior
treaty, but they insist that it is [420] well
settled "that (>>ngress is without power to
chancre a contract or agreement for a valua-
ble consideration with an individual Indian
allottee." Choate v. Trapp, 224 U. S. 665,
56 L. ed. 041, 32 Sup. Ct. Rep. 565, and
Jones V. Meehan, 175 U. S. 1, 44 L. ed. 40,
20 Sup. Ct. Rep. 1, are cited, and incidental-
ly Marchie Tiger v. Western Invest. Co. 221
TJ. S. 286, 55 L. ed. 738, 31 Sup. Ct. Rep.
678, and Mullen v. United SUtes, 224 U. S.
448, 56 L. ed. 834, 32 Sup. Ct. Rep. 404.
The cases do not apply. It has often
been decided that the Indians are wards of
the nation, and that Congress has plenary
control over tribal relations and property,
S«0
and that this power continues after the In-
dians are made citizens, and may be ezer-
eiafid as to restrictions upon alienation.
Marchie Tiger v. Western Invest. Co. supra.
Against this ruling Choate t. Trapp does
not militate. In the latter ease it was de-
cided that taxation could not be imposed
upon allotted land a patent to which was
issued under an act of Congress containing
a provision "that the land should be non-
taxable" for a limited time; and, excluding
the application of the Marchie Tiger Case,
it was said that exemption from taxation
"and nonalienability were two separate and
distinct objects." And further, 'H>ne con-
veyed a right and the other imposed a limi-
tation." The power to do the latter was
declared, and it was said "the right to re-
move the restriction [limitation upon alien-
ation] was in pursuance of the power under
which Congress could legislate as to the
status of the ward, and lengthen or shorten,
the period of disability. But the provision
that the land should be nontaxable was a
property right, which Congress undoubtedly
had the power to grant. That right fully-
vested in the Indians and was binding upoiL
Oklahoma."
Jones V. Meehan, supra, is an instance of
the same principle, and is not opposed Uy
the power of Congress to remove restrictions
upon alienation. And there is nothing an-
tagonistic to the cited cases in Mullen v..
United States, supra.
A question was intimated in the Marchie
Tiger Case whether a [421] grantee of an
Indian could avail himself of the Indian's
right, if he had any, to assert the unconsti-
tutionality of an act of Congress, and it is>
still more questionable whether plaintiffs in
error can be heard to urge the rights of the
Choctaw and Chickasaw Nations. However,
we may reserve opinion. Those nations are
not parties to this suit and no contract,
rights of Taylor have been violated.
Judgment atlirmed.
CHICAGO, ROCK ISLAND, & PAaFIC
RAILWAY COMPANY, and Frank Drake,.
Plffs. in Err.,
V.
DANIEL C. WHTTEAKER.
(See 8. C. Reporter's ed. 421-425.)
Error to state court — scope of reviewr
— removal of causes.
1. Whether or not the petition states w^
• Note. — On error to state court where re-
morval to Federal court was sought — see note-
to Williams v. First Nat. Bank, 64 L. ed.
U. S. 626.
2S9 U. S^
lOlJ.
CHICAGO, R. L & P. R. CO. t. WHITBAKEB.
cause of action against a resident joined
as oodefendant with a nonresident is a mat-
ter of local law which is not open on a writ
of error from the Federal Supreme Court,
presenting the question whether the joinder
was frftuaulently made for the purpose of
frcventing a removal to a Federal court.
For other cases, see Appeal and Error, 2072-
2123. in Digest Sap. Ct. 1908.]
Removal of causes — separable contro-
versy — fraudulent Joinder.
2. Tlie motive of plaintiff in joining an
impecunious resident railway employee as
a codefendant with a nonresident railway
eorporation in a n^ligence suit is not ma-
terial upon the question of the right of the
latter to remove the caxise to a Federal
wart if such defendants are jointly liable
uider the local law.
[For other cases, see Removal of Causes, lY.
C in Digest Sup. Ct 1908.]
Removal of causes — fraudulent Joinder
— snlHcienoy of petition.
3. Allegations in the petition by which
a nonresident railway company joined aa
codefendant with a resident employee in a
negligence suit seeks to remove the case to
a Federal court on the ground of fraudu-
lent joinder are insufficient if they merely
traverse the allegations upon which the lia-
bility of the resident defendant is rested,
where no negligent act or omission person-
al to the railway company is charged in the
petition in the state court, which, tested by
the local law, states a case of joint liability,
the company's liability, like that of the em-
ployee, being in effect based upon his alleged
aegligence.
[For other cases, see Removal of Caoses. IV.
b; VI. d, iu Dlcest Sup. Ct. 1908.]
[No. 111.]
Submitted December 8, 1915. Decided De-
cember 20, 1916.
IN EKROK to the Supreme Court of the
State of Missouri to review a judgment
which affirmed a judgment of the Circuit
Court of Clinton County, in that state, in
favor of plaintiff in an action against a for-
eign railway company and a resident em-
ployee, which the corporate defendant had
attempted to remove to a Federal court.
Affirmed.
As to removal of causes in cases of sep-
arable controversy — see notes to Miller v.
Clifford, 6 L.R.A.(N.S.) 50; Sloane v. An-
derson, 29 L. ed. TJ. S. 899; Butler v. Na-
tional Home for Disabled Volunteer Sol-
diers, 86 L. ed. U. 8. 346; Merchants' Cotton
Press & S. Co. v. Insurance Co. of N. A.
38 L. ed. U. S. 195; and Torrence v. Shedd«
36 L, ed. U. 8. 528.
On fraud in joining a resident as co-
defendant with a nonresident defendant for
the purpose of preventing a removal to the
Federal courts on the ground of diverse
citizenship, see note to Boatmen's Bank v.
Fritslen, 22 L.R.A.(NJ3.) 1236.
•a L. e4.
See same case below, 252 Mo. 438, 160
6 W. 1009.
The facts are stated in the opinion.
Messrs. Paul B. Wallcer and H. Jj,
Bell submitted the cause for plaintiffs in
error:
A simple and conclusive test of the suffi-
ciency of the allegations of the petition
for removal and the accompanying affida-
vits is whether or not such facts, if pleaded
in an answer, would have been subject to
demurrer on the ground that, as a matter
of law, and being admitted to be true, they
would not be a defense so far as the de-
fendant Drake is concerned.
Little York Gold-Washing & Water Co.
V. Kcyes, 96 U. S. 199, 24 L. ed. 656.
If the state court had granted the re-
moval, and the plaintiff in the Federal court
had filed a motion to remand without tak-
ing direct issue on the facts alleged in the
petition for removal and acompanying af-
fidavits, the motion to remand would have
been but the filing of a demurrer, which
would have raised only the legal question
whether, upon the facts stated in the peti-
tion for removal and accompanying affida-
vits, a case for removal was made out.
Kentucky v. Powers, 201 U. S. 1, 33-35,
50 L. ed. 633, 648, 649, 2G Sup. Ct. Kep.
387, 5 Ann. Cas. 602; Dishon v. Cincin-
nati, N. 0. & T. P. R. Co. 06 C. C. A. 345,
133 Fed 471 ; Hunter v. Illinois C. R. Co.
110 C. C. A. 459, 188 Fed. 649; Gibson
V. Chesapeake & 0. R. Co. 131 C. C. A.
332, 215 Fed. 26.
The state court has no power to try
questions of fact arising upon the petition,
but must accept the facts therein alleged
as true.
Foster, Fed. Pr. 5th ed. $ 654.
In holding that the question for determi-
nation was confined to the consideration of
whether the petition on its face stated a
joint cause of action, the Missouri courts
ignored the long and well settled rule to
the contrary.
Black's Dillon, Removal of Causes, §§ 76,
101; Moon, Removal of Causes, § 177;
Stone T. South Carolina, 117 U. S. 430,
432, 29 L. ed. 962, 963, 6 Sup. Ct Rep.
799; Carson v. Hyatt, 118 U. S. 279, 287,
30 L. ed. 107, 169, 6 Sup. Ct. Rep. 1050;
Burlington, C. R. & N. R. Co. v. Dunn, 122
U. S. 513, 615, 516, 30 L. ed. 1159, 1160,
7 Sup. Ct. Rep. 1262.
Where the facts stated in the petition
for removal show a cause properly remov-
able from a state to a Federal court, the
state court has no jurisdiction to pass final-
ly upon them; that right is only for a Fed-
eral court, it having the exclusive province
of passing upon such questions of fact.
6UFBEME COURT OF THE UNITED STATES.
Oct. Iknc,
Texas & P. B. Go. t. Eastin, 214 U. S.
163, 159, 63 L. cd. 046, 060, 20 Sup. Ct.
Rep. 664; Chesapeake & 0. R. Co. t. Mc-
Cabe, 213 U. S. 207, 63 L. ad. 766, 20 Sup.
Ct. Rep. 430; Iowa C. R. Co. v. Bacon,
236 U. S. 306, 310, 69 L. ed. 601, 603, 36
Sup. Ct. Rep. 367; Chicago, R. I. & P. R.
Co. y. Dowell, 229 U. S. 102, 113, 57 L. ed.
1000, 1095, 33 Sup. Ct. Rep. 684; Rea T.
Standard Mirror Co. 158 N. C. 24, 73 S.
E. 116; Donovan v. Wells, F. & Co. 22
I..R.A.(N.S.) 1250, 04 C. C. A. 600, 160
Fed. 368; Hunter v. Illinois C. R Co.
110 C. C. A 459, 188 Fed. 648; Gibson
▼. Chesapeake & 0. R. Co. 131 C. C. A.
832, 216 Fed. 26; Boatman's Bank v. Fritz-
len, 75 Kan. 488, 22 L.RA.(N.S.) 1235,
80 Pac 015, 68 C. C. A 288, 135 Fed. 650,
653, 212 U. S. 364, 373, 53 L. ed. 551,
667, 20 Sup. Ct. Rep. 366.
The fact that, following an improper
refusal of a state court to grant a removal,
a jury returns a joint verdict against both
the nonresident and the resident defendants,
is of no importance.
Whitcomb v. Smithson, 176 U. S. 636,
638, 44 L. ed. 303, 305, 20 Sup. Ct. Rep.
248; Illinois C. R. Co. v. Outland, 160 Ky.
714, 170 S. W. 48; Illinois C. R. Co. v.
Sheegog, 215 U. S. 308, 316, 64 L. ed.
208, 211, 30 Sup. Ct. Rep. 101.
So, it has been held by this court that a
decision upon the trial in a state court,
after a petition for removal has been de-
nied, to the effect that there is no liabil-
ity against the resident defendant, does
not show that the case was removable at
the time the original petition therefor was
filed, nor does it make it removable at the
time of such ruling by the trial court.
Whitcomb v. Smithson, 175 U. S. 635,
44 L. ed. 303, 20 Sup. Ct. Rep. 248; Ala-
bama G. S. R. Co. V. Thompson, 200 U. S.
217, 50 L. ed. 447, 26 Sup. Ct. Rep. 161,
4 Ann. Cas. 1147; Lathrop, S. & H. Co. v.
Interior Constr. & Improv. Co. 216 U. S.
246, 261, 64 L. ed. 177, 170, 30 Sup. Ct.
Rep. 76; American Car & Foundry Co. t.
Kettlehake, 236 U. S. 311, 315, 316, 50
L. ed. 594, 696, 597, 36 Sup. Ct. Rep. 356.
The action of a court or jury upon the
merits of a controversy cannot control or be
persuasive upon a consideration of the ques-
tion of jurisdiction. It is fundamental, as
this court has so frequently held, that the
question of jurisdiction must be deter-
mined by and only by the record as it stood
at the time the petition for removal and its
accompanying documents were filed.
Sears v. Atchison, T. & S. F. R. Co. 163
Mo. App. 711, 147 S. W. 860.
The decision of this court in Wecker t.
National Enameling k Stamping Co. 204
U. S. 176, 185, 186, 61 L. ed. 430, 435,
436, 27 Sup. Ct. Rep. 184, 0 Ann. Cas. 767,
seems conclusive of the situation now be-
fore the court.
See also Illinois C. R. Co. y. Sheegog;
215 U. S. 308, 316, 64 L. ed. 208, 211, 80
Sup. Ct. Rep. 101 ; Chesapeake & O. R. Co.
V. Cockrell, 232 U. S. 146, 164, 68 L. ad.
644, 547, 34 Sup. Ct. Rep. 278.
Mr. Paul E. Walker filed a separate brief
for plaintiffs in error:
False and fraudulent devices conceived
for the purpose of preventing a litigant
from exercising a guaranteed right of re-
moval have been unequivocally condemned.
Arapahoe County v. Kansas P. R Co.
4 DilL 277, Fed. Cas. No. 502; Wecker ▼.
National Enameling & Stamping Co. 204
U. S. 176, 185, 186, 61 L. ed. 430, 436, 486,
27 Sup. Ct. Rep. 184, 9 Ann. Cas. 767;
Chesapeake & O. R. Co. v. Cockrell, 232 U.
S. 146, 164, 58 L. ed. 644, 647, 34 Sup. Ci.
Rep. 278.
The verdict of the jury in the state court
against both defendants cannot be taken as
proof that the removal was properly de-
nied. It has long been the settled law that
neither the decision of a court nor the ver-
dict of a jury, either for or against a
resident defendant, can be considered in
the determination of the question of juris-
diction upon a petition for removaL A
ruling or decision on the merits cannot re-
late back and determine the correctness of
a ruling on the question of jurisdiction.
Whitcomb v. Smithson, 175 U. S. 635, 638,
44 L. ed. 303, 305, 20 Sup. Ct. Rep. 248;
Illinois C. R. Co. v. Sheegog, 216 U. S.
308, 316, 54 L. ed. 208, 211, 30 Sup. Ct.
Rep. 101; Alabama G. S. R. Co. v. Thomp-
son, 200 U. S. 206, 217, 60 L. ed. 441, 447,
26 Sup. Ct. Rep. 161, 4 Ann. Cas. 1147;
Lathrop, S. k, H. Co. v. Interior Constr.
k Improv. Co. 215 U. S. 246, 261, 64 L. ed.
177, 179, 30 Sup. Ct. Rep. 76; American Car
k Foundry Co. y. Kettelhake, 236 U. 8.
311, 315, 316, 69 L. ed. 594, 596, 697, 36
Sup. Ct. Rep. 365.
Messrs. James P. Gilmore and Press
T. Cross submitted the cause for defend-
ant in error:
The petition for removal was properlj
denied.
Chesapeake & 0. R. Co. v. Cockrell, 232
U. S. 146, 58 L. ed. 544, 34 Sup. Ct. Rep.
278; Chicago, R. I. A P. R. Co. v. Schwy-
hart, 227 U. S. 184, 57 L. ed. 473, 33 Sup.
Ct. Rep. 250; Chicago, B. & Q. R. Co. ▼.
Willard, 220 U. S. 413, 65 L. ed. 621, 31
Sup. Ct. Rep. 460; Illinois C. R. Co. t.
Sheegog, 215 U. S. 308, 54 L. ed. 208, 30
Sup. Ct. Rep. 101; Southern R. Co. ▼.
Miller, 217 U. S. 209, 64 L. ed. 732, 80
Sup. Ct. Rep. 460; Alabanm Q. S. R. Co. t.
2S9 V. B.
1915.
CHICAGO, B. L & P. R. CO. ▼. WHITEAKBR.
428» 424
Thompflon, 200 U. 8. 206-218, 60 L. ed.
441-446, 26 Sup. Ct Kep. 161, 4 Ann.
Cu. 1147.
On removal, the only question to con-
sider was whether there was a real inten-
tion to get a joint judgment, and whether
there was colorable ground for it, shown
as the record stood at the time the removal
WM denied.
Chicago, R. I. & P. R. Co. y. Schwyhart,
227 U. 8. 1S4, 57 L. ed. 473, 33 Sup. a.
Hep. 250.
Under the petition and the Missouri law,
onless plaintiff obtained a judgment against
the servant defendant he could not recover
against the railway company, and plaintiff
will be presumed to have joined the servant
in good faith, and with the intent to get a
joint judgment.
McGlnnis v. Chicago, R. I. k P. R. Co.
200 Mo. 347, 0 L.R.A.(N.S.) 880, 118 Am.
8t Rep. 661, 98 S. W. 590, 9 Ann. Cas.
656; Whiteaker v. Chicago, R. I. & P. R.
Co. 252 Mo. 438, 160 8. W. 1009.
Where a master and servant are joined
as defendants, and a judgment is sought
against the master on the sole ground of
the servant's negligent acts, then any claim
of fraud and falsehood in joining the serv-
ant goes to the merits of the action as an
entirety, and not to the joinder, and indi-
cates that plaintiff's case is iU founded as
to all the defendants.
Chesapeake & O. R. Co. t. Cockrell, 232
U. 8. 146, 58 L. ed. 544, 34 Sup. Ct. Rep.
278.
All doubts are to be resolved in favor
of the jurisdiction of the state court. No
presumption can be indulged in favor of
the jurisdiction of the Federal court.
Mexican Nat. R. Co. v. Davidson, 157
U. 8. 208, 39 L. ed. 675, 15 Sup. Ct. Rep.
563; Hanrick v. Hanrick, 153 U. 8. 192,
38 L. ed. 685, 14 Sup. Ct. Rep. 835; Shaw
V. Quinpy Min. Co. 145 U. 8. 444, 36 L.
el 768, 12 Sup. Ct. Rep. 935.
The state court is not ousted of juris-
diction unless the cause is properly re-
movable. Federal jurisdiction cannot be
inferred, but it must appear positively up-
^ the face of the pleadings.
Hanford v. Bavies, 163 U. 8. 273, 41
Ii. ed. 157, 16 Sup. Ct. Rep. 1051; Bors v.
Preston, 111 U. 8. 252, 28 L. ed. 419, 4
Sup. Ct. Rep. 407; Mansfield, C. k L. M.
R. Co. V. Swan, 111 U. 8. 379, 28 L. ed.
462, 4 Sup. Ct. Rep. 510; Grace v. Am-
erican Cent. Ins. Co. 109 U. 8. 278, 27
L ed. 932, 3 Sup. Ct. Rep. 207 ; National
8. 8. Co. V. Tugman, 106 U. 8. 118, 27 L.
«1 87, 1 Sup. Ct. Rep. 58; Southern R.
Co. V. Carnon. 194 U. 8. 138, 8 L. ed. 909,
24 Sup. Ct. Rep. 609.
The joint liability of the defendant un-
60 L. ed.
I der the pleadings is a matter of stats law,
' and the decision of the highest court of the
state will not be reversed by the Federal
Supreme Court on the question of fraudu-
lent joinder to prevent removal
Chicago, R. I. & P. R. Co. v. Schwyhart,
227 U. S. 184, 57 L. ed. 473, 83 Sup. Ct.
Rep. 250; Chicago, R. I. A P. R. Co. v.
Dowell, 229 U. 8. 102, 57 L. ed. 1090, 33
Sup. Ct. Rep. 684; Alabama G. S. R. Co.
V. Thompson, 200 U. 8. 206, 50 L. ed. 441,
26 Sup. Ct. Rep. 161, 4 Ann. Cas. 1147;
Illinois C. R. Co. v. Sheegog, 215 U. 8.
308, 54 L. ed. 208, 30 Sup. Ct. Rep. lOL
Mr. Justice HcKenna delivered the opin-
ion of the court:
Action foA* damages, brought against the
Chicago, Rock Island, k Pacific Railway
Company and Frank Drake, as defendants,
in the circuit court of Clinton county, state
of MisBoiiri.
The action was for personal injuries in-
flicted upon defendant in error by Drake,
who was a conductor on a train of the
railway company. It is alleged that Drake,
"while acting in the line of his duties to de-
fendant railway company, as such conduct-
or and agent, and in the course of his em-
ployment, approached plaintiff (who was
then sitting on the top of one of the cars
in said train) . . . and wrongfully and
unlawfully" kicked him from the train
while it was running at a high rate of speed,
plaintiff being without fault. The injuries
received were detailed, and judgment was
prayed for $15,000.
The railway company filed a petition for
removal of the case to the United States
circuit court for the western district of
Missouri, in which it was alleged that the
controversy was between citizens of dif-
ferent states, the plaintiff in the action be-
ing a citizen of Missouri and the railway
company a citizen of Illinois. That the al-
leged cause of action was a separable con-
troversy capable of determination between
the plaintiff and the railway company ; that
Drake was joined as defendant for the sole
and fraudulent purpose of preventing the
company from removing the action from the
state court, and thereby defeating the juris-
diction of the United States circuit court.
[424] That plaintiff did not have and could
not have had any cause of action against
Drake or upon which to base a recovery
against him, all which was known to plain-
tiff at the time of the institution of the ac-
tion ; that Drake was a man of small means,
having but little property from which a
judgment could be recovered, while the rail-
way company had property more than suffi-
cient to pay the amount sued for. That any
act of n^Ugenoe on the part of Drake was
424-426 SUPREME COURT OF THE UNITED STATES. Oct. Tekm.
Ml Act of the nilwa; compan]', and It wai language of the elted caae ia aigaia kppli-
accordingljr reaponaible and liable for th< cable; "Ab no negligent act or MniHiaii p«r-
itame, Xbat plaintiff, when he instituted the tonal to the railway eompanjr waa charged,
action, had no reHBOnable hope, intention, and ita liability, like that" irf Ita employee,
or expectation of recovering any judgment "waa, in effect, predicated upon the allied
against Drake. negligence of the latter, the ihowing mani-
A bond was duly tendered and the peti- (estly went to the merita of the action as an
tion waa accompanied by two aflldaTita entirety, and not to the joinder; that is to
which in effect contradicted the allegations 9ay, it indicated that the plaintiB'a caae
of the p«tition aa to Drake by showing that was ill founded ae to all the defendant*.*
he was not on top of the train, and could not We conclude here as we concluded ther^
have attempted nor have dohe the acts that the plaintiff had a right of action under
charged against him. the law of the state and to insist upon
I'he petition for removal waa denied and Drake's piesence as a real defendant "••
the case aubeequently tried to a jury which upon that of the raiUay company." There
returned a verdict for plaintiff in the sum was no error, therefore, in the ruling of the
of fB.SOO, upon which judgment was entered Supreme Court, and its judgment ia af-
It was affirmed by the supreme court of the firmed.
■tAte.
There la but one question presented: the
eorrectness of the ruline upon the petition . _
fcr ,«,o..l to the DniUd SUtt. dr.ui. t««J ""M^ ™"ER. PH. ta Err.,
court. The railway company assails the '■
ruling in an elaborate argument and by an SiOl. J. STRAHL.
industrious review of case^L In reply re- ^^ Reporter', ed. 428-435.,
cent decision* of thia court need only be ' '^ '
coMidered. Conatltntlonal Uw — police power —
The supreme court of the state decided rcguluUng Inntecper'e dutj in cmo
that the petition stated a cause of action gf g^^.
against Drake and the railway company, and i, ihe requirement of Neb. Rev. Stat.
whether it did, we said in Chicago, R. I. 1913, S 3104, that innkeepers in case of lire
t P. R. Co. T. Bchwyhart, 2Z7 U. S. 1B4, D7 shall give notice of the same to all guesU
■ ^ ip ct. Rep, 250, was a mat- ""* inmates at once, and shall do all la
We held further that "■"" "" '' "" ■* ' '"
motive of plaintiff, taken by itself,
not affect the right to remove," and
"if there is a joint liability he has an [M5] tion,' a'guesrwas perm Uted to slMp for't ..
absolute right to enforce it, whatever the hours after there were indications that a
reason that makes him wish to assert the fire existed, awaking only to find that all
right." In that case aa in this there was a means of escape, except by a rope which
petition for removal on the ground of fraud- proved too weak to sustain his weight, were
nient joinder of detendante to defeat Feder- ="' •>'f >'?,""' d^n^'ty "f the smoke, and the
al jurisdiction. The case, are substantial- J^-^ S'r \f^::'Z' ^.Z^^Zir^:,. IV.
ly parallel, e, in Dlseit Snp. Ct. 1908.J
In Chesapeake t 0. R. Co. t. Coekrell. Note.— For a discussion of police power,
232 U. 8. 146, 58 L. ed. 644, 34 Sup. tt. Rep. ™erally-Bee notes to SUte v Mar^ll. 1
278, it was decided that it is not enough to L.R.A. 161; Re Gannon, 5 L.R.A. 359; SUU
assert that there was a fraudulent joinder v. Schlemmer, 10 L.R.A. 136; Ulman v. Bal-
of defendants, hut there must be "a. state- timore, 11 L.R.A. 224; Electric Improv. Co.
ment of facts rightly engendering that con- v. San Francisco, 13 L.R.A. 131 ; and Bar-
elusion;" and that "merely to traverse the bier v. Connolly. 28 L. ed. U. 8. 023.
- s upon which the liability of the . 9" ""> ^'»:T^? "' '". '""peeper for in-
. - '^ / .„„,„ juries caused by lack or insufflciency of fire
.*^ "PP'y protection— see note to Ritter V. Norman, 43
™= ^,, — ^. ™ — jOinder wiil [,h.A.{N.S.) 661.
not suffice: the showing must be auch as Generally, as to liability for injuriee
compels the conclusion that the joinder is caused by lack or ingiifficieaey of fire ea-
without right and made in bad faith." And t^pes — see notes to Rose v. Kin^ 15 L.R.A.
"it was not such," it was said, "unless it 160; Yall v. Snow, 10 L.R.A.(N.S.} 177;
was without any reasonable basis." Arnold v. National Starch Co. 21 L..R.A.
There is nothing more than a traverse of JN|-) "|i -nd West v. Inman, 39 L.R.A.
the cause of, action in the present case. ' ;■''. .; „ ,...^ , .,.„ i.^ , .__
_ ,, .' ,. 1.^.1.4111 Asto the validity of class legislatitm.
The attempt was made to show that Drake j,„„ally-see notes to SUte v. eoodwill.
could not have been guilty as charged be- g L.RJi. 621 ; and State v. Loomis, 21 L.R-&.
cause he waa elsewhere on the train. The 789.
S0* **9 V. 3.
1016.
MILLER V. STRAHL.
ConsUtQtioiiAl law — due process of law
— uncertainty of statute.
2. There is no such uncertaintj in the
requirement of Neb. Rey. Stat. 1013, § 3104,
that innkeepers in case of fire shall "do all
in tJieir power" to save guests and inmates,
as to render the statute invalid under U.
S. Const., 14th Amend., as wanting in due
process of law.
[For other cases, see Constitutional Law» IV.
b, 7, in Digest Sup. Ct. 1008.]
Constitntional law — equal protection
of tbe laws — classification — regulat-
ing duty of Innkeepers In case of fire.
3. Singling out hotels having more than
fifty rooms as proper subjects for r^;ula-
tions respecting tiie duty of hotel keepers
towards guests and inmates in case of fire, as
18 done by Neb. Rev. Stat. 1013, § 3104, does
not render the statute repugnant to U. S.
Const., 14th Amend., as denying the equal
protection of the laws.
fFor other cases, see Constitntional Law, IV.
a, 5, in Digest Sap. Ct. 1008.]
[No. 458.]
Argued November 20, 1015. Decided De-
cember 20, 1015.
IN ERROR to the Supreme Court of the
State of Nebraska to review a judgment
which affirmed a judgment of the District
Court of Douglas County, in that state, in
favor of plaintiff in an action against a
hotel keeper to recover for personal injuries
sustained by a guest during a fire. Af-
firmed.
See same case below, 07 Neb. 820, 151 N.
W. 052.
The facts are stated in the opinion.
Mr. Edgar M. Morsman, Jr., argued
the cause and filed a brief for plaintiff in
error:
Requiring a person to do all in his pow-
er to save another fails to point out to
such person with sufficient clearness the
course of conduct to be pursued, and fur-
nishes no criterion whereby such person
can judge his acts. Therefore .fine, im-
prisonment, and payment of damages for
failure to do all in one's power to save
another deprives a person of liberty and
property without that due process of law
guaranteed by the Constitution of the Unit-
ed SUtes.
Collins y. Kentucky, 234 U. S. 634, 58
L. ed. 1510, 34 Sup. Ct. Rep. 024; Interna-
tional Harvester Co. v. Kentucky, 234 U.
S. 216, 58 L. ed. 1284, 84 Sup. Ct. Rep.
853; State v. Mann, 2 Or. 238; Cook v.
State, 26 Ind. App. 278, 50 N. £. 480;
United SUtes ▼. Capital Traction Co. 34
App. D. C. 502, 10 Ann. Cas. 68; Brown
v. State, 137 Wis. 543, 110 N. W. 338;
Tozer y. United States, 4 Inters. Com. Rep.
245, 52 Fed. 017; Railroad Commission v.
•0 li. ed.
Grand Trunk Western R. Co. 170 Ind. 255,
100 N. £. 852; United States v. Reese, 02
U. S. 214, 23 L. ed. 563; American School
y. McAnnulty, 187 U. S. 04, 47 L. ed. ^0,
23 Sup. Ct. Rep. 331; Czarra y. Medical
Supervisors, 25 App. D. C. 443; Chicago,
M. & St. P. R. Co. y. Polt, 232 U. S. 165,
58 L. ed. 554, 34 Sup. Ct. Rep. 301.
A master must fumish his employee a
safe place in which to work; and, failing
to do so, must respond in damages. But,
having furnished a safe place, the master
cannot be made liable because he fails to
risk his own safety to save the servant.
An innkeeper may be made responsible for
damage done by fire, but, not being made
responsible therefor, he cannot be held lia-
ble because he fails to risk his own safety
in order to save his guest unharmed.
Louisville A N. R. Co. v. Com. 00 Ky.
132, 33 L.R.A. 200, 50 Am. St. Rep. 457,
35 S. W. 120; Jacobson v. Massachusetts,
107 U. S. 11, 40 L. ed. 643, 25 Sup. Ct.
Rep. 358, 8 Ann. Cas. 765; Munn v. Illinois,
04 U. S. 113, 24 L. ed. 77; Gastenau v.
Com. 108 Ky. 473, 40 LJIJI. Ill, 04 Am.
St. Rep. 386, 56 S. W. 705; Coppage v.
Kansas, 230 U. S. 1, 50 L. ed. 441, LJt.A.
1015C, 060, 35 Sup. Ct. Rep. 240.
Requiring that the keepers of inns hav-
ing more than fifty rooms shall awaken and
notify guests of fire, and do all in their
power to save them unharmed from fire,
denies the equal protection of the laws to
such innkeepers, as compared with the keep-
ers of inns having less than fifty rooms.
Atdiison, T. & S. F. R. Co. v. Vosburg,
238 U. S. 56, 50 L. ed. 1100, L.RJL1015E,
053, 35 Sup. Ct Rep. 675.
Mr. H. C. Brome argued the cause, and,
with Messrs. Clinton Brome and H. S.
Daniel, filed a brief for defendant in error:
The 14th Amendment to the Constitution
of the United States does not prohibit legis-
lation which is limited either in the objects
to which it is directed, or by the territory
within which it is to operate. It merely
requires that all persons subjected to such
legislation shall be treated alike, imder like
circumstances, both in the privileges and
liabilities imposed.
Hayes v. Missouri, 120 U. S. 68, 30 U
ed. 578, 7 Sup. Ct. Rep. 350; Barbier v.
Connolly, 113 U. S. 27, 28 L. ed. 023, 5
Sup. Ct. Rep. 357 ; McLean v. Arkansas, 211
U. S. 546, 53 L. ed. 318, 20 Sup. Ct. Rep.
206; Williams v. Arkansas, 217 U. S. 70,
54 L. ed. 673, 80 Sup. Ct. Rep. 403, 18
Ann. Cas. 865 ; Atchison, T. & S. F. R. Co.
V. Vosburg, 238 U. S. 56, 50 L. ed. 1100,
LJLA.1015E, 053, 35 Sup. Ct. Rep. 675.
It is not enough that a state law, as
written, is capable of a construction that
SUPREUE COUST OF THE UKITBD STATES. OOT. Iteu,
would render it repngnant to tone provi- room* uid w»m four or mora itoriM U|^i
•Ion of the Constitution of th« United tlut botween midnight and d«wB, Juiiujj
States, to authorize this court to pronounce 23, ISll, ■ "boatUe fire" broke oat in the
It Invalid. If the law, aa conatrued b^ the hotel, which, it la alleged, bj reaaon of the
oonrta of the state, doea not oSend against' negligence of plaintiff in error, waa not prop'
ooDatitntlonal provisions, then it must be erij' discovered or controlled, and a portion
held valid here. of the hotel waa burned, the halls thereof
Tampa Waterworks Co. v. Tempa, IBB U. filled with amokc and gssea, endangering the
B. 241, 60 U ed. 170, 26 Sup. Ct. Rep. Uvea of the guests and inmatea; that phun-
£3; Bmiler v. Kanaaa, 1B6 U. 8. 447, 4B till in error and his acrvanta failed and
Ih ed. fi46, 25 Sup. Ct. Rep. SSB; Soper neglected to awaken the guest* or give them
T. Lawrence Bros. Co. 201 U. S. 371, 50 notice of the Are, and that by reason there-
in, ed. 7B2, 26 Bnp. Ct. Rep. 473; Gatewood of defendant in error waa injured bj the
T. North Carolina, 203 U. 8. 631, 61 L. smoke and gases in attempting to eocape
ed. 305, 27 Sup. Ct. Rep. 167; Uaiorano from the hotel.
V. Baltimore ft O. R. Co. 213 U, S. 268, The specifications of n^Iigence are m fol-
63 L. ed. 782, 29 Bup. Ct Rep. 424. lowai '
It will be time enough to consider wheth- {1| Failure to maintain • competent
er or not the penal provisions of the Ne- night watchman; that the hotel waa not
brsaka innkeepera act are enforceable when properly patrolled, examined, or inapected,
that question eriaes. '■^^ that its emplojcea negligently fatted
Wyatt V. McCreery ft Co. 126 App. Div. to be at their posts of duty to reipond to
660. Ill N. Y. Bupp. (W; Wolf v. Smith, 14B the warninga given them,
Ala. 457, 9 L.R.A.(y.H.l 338, 42 Bo. 824. '^l Plaintiff in error did not maintain
The l^slativfl enactment compUlned of «" efficient or sufficient system of Are gongs
It a valid and salutary exerciae of the lor erouHing guesta, that he did not, as soon
police power of the state. Barring apeciflc »• "le A" *" discovered, ring or cause to
requirements, all property designed to pro- ** """K • 8" fo^S o» *•>• (ourth floor, or
Biote the public health and safety, ft doea ^^K " «"'■» *•» ^ ru°« • telephone in the
BO more than declare the common-law du^ ""o*"" "* defendant In error, or in any other
of the innkeeper with respect to his guests. ^*7 »waken, arouse, or notify him of the
Ths supreme court of the state of Ne- eiiatence of the Are.
bra*ka has given the law a senaible and (3) PUintlff in error did not aotify de-
proper construction. As construed by that fendant in error of the location of the atair-
oourt, there is no danger that plaintUT in ""J leading from the fourth floor; that
error will be compelled to endanger hia *• ''°t«I did not have a sufficient number
life or that of his employee in performing <»* eUirwaya; that plaintiff in error failed
the dutiea Imposed upon him or them. to "peraU the elevator, failed to respond to
United States v. Kirby, 7 Wall. 482, IB defendant In error's demand to be removed,
L. ed. 278; Clancy v. Barker, 71 Neb. 83, "^ '»"«> ^ ''*"' ""y I'K^*' ■'«"• " "o*'"
SB ULA. 642, 115 Am. St. Rep. 65B, B8 indicating the location of the elevator.
M. W. 440, 103 N. W. 446, 8 Ann. Cas. *^1 Defendant in error's room was fur-
682, 15 Am. N«g. Rep. 584, 18 Am. N«g. "'"^ed with a [430] rope which pUintiff in
^^a, 173, error represented could i>c used for the pur-
pose of a fire escape, but that it waa too
Mr. Juatiee HcKenna delivered the opin- ""•Jl "d inaufflcient for such purpose, and
ton of the court: that proper directions were not given for
Action for the recovery of $16,000 on ae- 't« use as a means of escape. Defendant in
oount of injuriea auatained by defendant in error attempted to eacepe by means of this
error while a guest at the hotel of plain- rope and in doing so suffered bodily in-
tlff in error, cauaed by the negligence of juries.
the latter and in violation of a law of the There were general denials of these allc-
state of Nebraska. gations and averments of negligence on the
Plaintiff in the case, defendant in error part ol defendant in error which directly,
here, alleges that the plaintiff in error was it is averred, contributed to and caused his
the proprietor and operator of what la injuries, and without which, it is further
known as the Millard Hotel, located in averred, he would not have received them.
Omaha, Nebraska, and that, as such, he A knowledge of or mesne of knowledge of the
received and entertained [4S9] defendant plans of the hotel and meana of ingress and
in error as a guest for hire; that on the ^eaa were averred, and also the equip-
alght of January 22, 1911, and during the ment of the hotel lights in ite halls, notices
morning of January 23, defendant in error and tire escapes.
occupied a room on the fourth floor of the] The case whs tried to a jury which re-
hotel; that the hotel had more than fifty turned a verdict for defendant in error in
'«« ISI V. s.
191&
KILLER T. STRAHU
a(M88
th« ram of $6^00, up<»i which Judgment
wag entered. It wm affirmed by the au-
preme eourt of the atate.
The aupreme court in ita opinion aaya:
It ia undiaputed that the amell of amoke
waa detected by one of the employeea in
the hotel about 1:30 A. M., and that later
a gueat called the attention of the night
clerk to the amell of amoke; that the clerk
did nothing further than to look into the
coapidor to aee if paper, or aome like com-
bnatible matter, might be burning there.
And thia was two houra before the appellee
awoke to find the halla filled with amoke.
Theae facta, together with the teatimony
relating to the fire gonga, fire eacapea, and
the general conduct of appellant'a agenta,
were all properly aubmitted to the jury."
[97 Neb. 823, 151 N. W. 952.]
The court decided that there waa a com-
mon-law liability upon a hotel keeper "to
protect hia gueata from danger when it ia
reaaonably within hia power to do ao," and
cited beaides, § 3104 of the Reviaed Stat-
utea of the atate, 1913, which reada aa fol-
towa:
*'In hotela or lodging houaea containing
more than fifty [431] rooms, and being four
or more stories high, the proprietor or lessee
of each hotel or lodging house shall employ
and keep at leaat one competent watchman,
whose duty it shall be to keep watch and
guard in such hotel or lodging house againat
fire and to give warning in case a fire should
break out. Such watchman shall be on
duty between the hours of 9 o'clock P. M.
and 8 o'clock ▲• M., and in case of fire he
shall instantly awaken each gueat and all
other peraona therein, and inform them of
rach fire. A large alarm bell or gong shall
be placed on each fioor or story, to be used
to alarm the inmates of such hotel or lodg-
ing house in case of fire therein. It shall
be the duty of every proprietor, or keeper of
inch hotel or lodging house, in case of fire
therein to give notice of same to all guests
and inmates thereof at once and to do all
in their power to save such guests and in-
mates."
The statute ia attacked on the ground
that it contravenea the Constitution of the
state (with which we have no concern) and
the Conatitution of the United States. Aa
a foundation for the contention plaintiff in
error aaserta that the trial court, whose
actimi waa affirmed by the aupreme court
of the atate, specifically instructed the jury
that plaintiff in error "and all his employees
and the night watchman at the hotel owed"
to defendant in error "the active duty after
the fire had broken out [italics counsers]
aa followa: (a) To notify him (Strahl) of
the exiatence of the fire ao that he might
eacape unharmed, (b) To do all in their '
•0 Ii. ed.
power to aave him (Strahl) from the fire^
and that failure to perform either of theae
dutiee made Rome Miller [plaintiff in error]
liable in damagea. In other words, the
trial court conatrued the act of 1883, above
mentioned, ao aa to make Rome Miller li-
able for the penalty mentioned in the 'act
(fine, impriaonment, and liable for dam-
agea) in the event (1) either he or the
watchman or any employee in the hotel
failed to do all in their power to aave £mil
J. Strahl from the fire [432] free of injury
or (2) either the proprietor of the hotel
(Miller), the watchman, or any other em-
ployee, failed to awaKcn and notify Strahl
of the exiatence of the fire."
Plaintiff in error admits that the atate of
Nebraaka may "without limit" preacribe
"regulations having reference to the pert
formance of acta and the taking of preci^u-
tion prior to the time when a fire breaka
out." But oounael aaya, "After the fire
breaka out, we deny that the legislature,
under ita police power, can compel the inn-
keeper or the watchman, or any employee, to
do any act which involvea a riak to the life
and liberty of auch person." Such limita-
tion of the police power ia ezpresaed in
varioua waya, and that it ia not within
such power to compel a watchman or other
employee to remain in a burning building
"for the purpose of doing all in their pow-
er to save the lives of the guestu, and for
the pi rpose of awakening the guests and
notifying them of the fire," auch lives being,
it ia added, "just as precious and valuable
to the state aa ia the life of the gueat."
We need, not pause to conaider differences
between the value of livea to the state, or
whether one life ia more- precioua than an-
other to the atate, or of more concern to
the state to preserve than the other. It ia
quite certain that he who aaaumea duties
may be required to perform them. When
plaintiff in error engaged in the business of
hotel keeper he undertook its obligations,
and we need not consider whether the stat-
ute exacts from him and his employees hero-
ic conduct, and not much more need be said
in answer to the contentiona of plaintiff in
error.
The command of the atatute ia that in
case of a fire the keepers of hotels must
f^ive "notice of the aame to all guesta and
inmates thereof at once, and to do all in
their power to save auch gueata and in-
mates." Could the statute exact less? It
is the dictate of humanity, and gets nothing
from its expression aa a legal obligation
except a penalty for ita violation, and the
facta of the case reject [433] any charge
that it was enforced to the extent of risk of
the life of anybody or to the injury of any-
body*
%%1
483-436
SUPREME COURT OF THE UNITED STATES.
Cor. TsiMy
Plaintiff in error was charged with cer-
tain acts of omission, the jury found that
he was guilty as charged, and the finding
was sustained by the trial and supreme
courts. We may say without particular re-
view that they were plain violations of duty
required by the statute. There was an es-
pecially significant fact: the fire was de-
tected by one of the employees of the hotel
about 1: 30 A. M., and later a guest called
the attention of the clerk to the smell of
smoke. The clerk was moved by this warn-
ing to look into a cuspidor, and no further ;
and this was two hours before defendant in
error awoke to find the halls filled with
smoke. The neglect cannot be magnified
by comment. If the action of a clerk un-
der such circumstances would be a discharge
of duty to one guest it would be a dis-
charge of' duty to many guests; if to men,
then to women and children, and the trage-
dy which might result appalls the imagi-
nation. But to one or many the duty to
investigate when the existence of a fire is
indicated or suspected is clear. It is to be
remembered that in the case at bar there
were indications of fire at 1 : 30 ▲• M., and
that at 3: 30 defendant in error awoke to
find the halls filled with smoke. He could
get no response to his calls by telephone;
he sought the elevator, but it was not run-
ning, and, not knowing the location of the
stairway, he returned to his room and at-
tempted to escape by means of a rope fire
escape. These facts and others referred to
by the court justified the jury in concluding
that plaintiff in error did not do all in his
power to save defendant in error.
It is entirely aside from the questions in
the case and the requirements of the statute
to consider the dismays and perils of an
extreme situation, and what then might be
expected of courage or excused to timidity.
It was one of the purposes of the statute
to preclude such extremity. [434] It re-
quires careful inspection of conditions,
especially through the night, to detect
the existence of fire, and prompt action
if it is detected. Had these require-
ments been observed in the present case,
defendant in error would not have been
permitted to sleep in a burning hotel
for two hours until means of escape
were cut off by the density of the smoke
and the absence of the employees of the
hotel from their posts— except by a rope,
which proved too weak to sustain his
weight.
Plaintiff in error contends further that
the statute "is lacking in due process of
law" because "it fails to prescribe any
fixed rule of conduct." The argument is
that the requirement "to do all in one's
power" fails to inform a man of ordinary
363
intelligence what he must or must not do
under given circumstances..
Rules of conduct must necessarily be ex-
pressed in general terms and depend for
their application upon circumstances, and
circumstances vary. It may be true, ns
counsel says, that "men are differently con-
stituted," some being "abject cowards, and
few only are real heroes;" that the brains
of some people work "rapidly and normally
in the face of danger while other people lose
all control over their actions." It is mani-
fest that rules could not be prescribed to
meet these varying qualities. Yet all must
be brought to judgment. And what better
test could be devised then the doing of "all
in one's power" as determined by the cir-
ctmistances?
The case falls, therefore, under the rule of
Nash V. United States, 229 U. S. 373, 67 L.
ed. 1232, 33 Sup. Ct. Rep. 780, and not un-
der the rule of International Harvester Co.
V. Kentucky, 234 U. S. 216, 68 L. ed. 1284,
34 Sup. Ct. Rep. 863.
It is objected that, as the statute is di-
rected to keepers of hotels having more than
fifty rooms, and does not apply to keepers
of hotels having less, it therefore discrimi-
nates against the former and deprives them
of the equal protection of the laws. The
contention is untenable. McLean y. Arkmn-
sas, 211 U. S. 630, 63 L. ed. 316, 29 Sup. Ct.
Rep. 206; Williams y. Arkansas, 217 [436]
U. S. 79, 64 L. ed. 673, 30 Sup. Ct. Rep. 403,
18 Ann. Cas. 866; Chicago, B. & Q. R. Co. y.
McGuire, 219 U. S. 649, 66 L. ed. 328, 31
Sup. Ct. Rep. 269 ; Quong Wing y. Kirken-
dall, 223 U. S. 69, 66 L. ed. 360, 32 Sup.
Ct. Rep. 192; SQhmidinger y. Chicago, 226
U. S. 678, 67 L. ed. 364, 33 Sup. Ct. Rep.
182, Ann. Cas. 1914B, 284; Booth v. Indi-
ana, 237 U. S. 391, 69 L. ed. 1011, 36 8up.
Ct. Rep. 617.
Judgment affirmed*
EX PARTE JESSE W. UPPERCU, PcU-
tioner.
(See S. C. Reporter's ed. 436-441.)
Records — access to sealed depositions
and exhibits.
1. The right of any litigant of access
to depositions and exhibits on file in another
cause which contain evidence material to
Note. — ^As to when mandamus is the
proper remedy, generally — see notes to
United States ex rel. International Con-
tracting Co. V. Lament, 39 L. ed. U. S. 100;
M'Cluny v. Silliman, 4 L. ed. U. S. 263;
Fleming v. Guthrie, 3 L.Rji. 64; Bumsville
Turnpk. Co. v. State, 3 L.RA.. 266; State
ex rel. Charleston, C. & a R. Co. v. White-
239 U. 8.
191G.
EX PARTE UPPERCU.
his case cannot be defeated by an order of
the court sealing such depositions and im-
pounding the exhibits, where neither the
parties to the original action nor the de-
ponents have any privilege.
I For other cases, see Becord, in Digest Sop.
Ct. 1908.]
Jfmndamus — access to Judicial records
^ other remedy.
2. The right to require by mandamus
that petitioner be afforded access to deposi-
tions and exhibits containing evidence ma-
terial to his case wbich are on file in an
Action brought by the United States in a
Federal district court, but which are sealed
by the order of that court, is not defeated
because of an order not appealed from, re-
jecting his motion for leave to inspect such
depositions, on the ground that such motion
was made in tbe original case and that he
was not a party to it, nor by the subsequent
denial of the government's motion to Tacate
or modify the court's order so as to allow
the depositions to be used, to which denial
exceptions were taken which have not yet
been heard by the circuit court of appeals.
[For other cases, see Mandamus, II. b, in Di-
gest Sap. Ct. 1908.]
[No. 14, Original.]
Argued December 6, 1915. Decided Decem-
ber 20, 1916.
ORIGINAL PETITION for a Writ of Man-
damns to enforce petitioner's ri*;ht of
access to certain depositions and exhibits on
file in an action, but sealed by order of a
Federal District Court. Rule made abso-
lute.
The facts are stated in the opinion.
sides, 3 L.K.A. 777 ; and £x parte Hum, 13
L.R.A. 120.
Right of access to judicial records.
The right of a litigant to inspect judicial
records which concern him seems unques-
tioned.
Thus, plaintiff in an action for malicious
prosecution is entitled to inspect and make
A copy of the information taken by a jus-
tice of the peace on which the warrant for
the arrest was granted. Welch v. Rich-
ards, Barnes, 468.
And plaintiff in an action of trespass and
^Jse imprisonment may inspect the book of
proceedings of the court in which he was
sued and was taken in execution, but only
«o far as they relate to the suit against
himself. Wilson v. Rogers, 2 Strange, 1242.
And the record of proceedings on an in-
finest, or to discover the murderer, under
Tex. Code Crim. Proe. Acts, 941, 942, in
which testimony of the witnesses is taken
^wn, is a public document which one ac-
cused of murder has a right, on proper mor
tion, to inspect and use. Jenkins v. Stat^
46 Tex. Crim. Rep. 173, 76 S. W. 312.
A person indicted for homicide is entitled
to inspect the testimony taken at the cor-
oner's inquest, which, conformably to Conn.
Rev. Laws 1888, § 2011, 6ad been reduced
to writing and lodged with the clerk of the
superior court, since, if not a public record,
it is a public document relating to matters
of public interest, and required by law to
be kept by a public officer, who is the cus-
todian of the records of judicial proceedings
and other public documents. And a different
ruling is not demanded because of $§ 2009,
2016, which authorize the inquest or any
part of it to be in private, and empower the
coroner to keep the witnesses separate.
Daly V. Dimock, 66 Conn. 679, 12 Atl. 406.
Ihe committing magistrate or his clerk,
if the latter has official charge of the crim-
inal complaint on which the warrant of
arrest issued, must, under N. Y. Code Crim.
Proc. §§ 188, 206, permit the accused's at-
torney to inspect such complaint^ — and this
40 L. ed.
although a different attorney appeared for
the prisoner at the time of his arrest. Peo-
ple ex rel. Steinhardt v. Fuller, 16 N. Y.
Crim. Rep. 344, 68 N. Y. Supp. 742.
Some of the cases go so far as to extend
this right of access to anyone.
Thus, it has been held that the transcript
of record on appeal and all the papers and
documents relating thereto, upon filing with
the clerk of the appellate court become pub-
lic judicial records to which all persons
have the right of access. £x parte Draw-
baugh, 2 App. D. C. 404.
And, in Nash v. Lathrop, 142 Mass. 29, 6
N. E. 669, it was held that any person,
though not a citizen, had a right of access
to the opinions of the supreme court of
Massachusetts.
On the other hand. It has been held that
a party is not entitled to the inspection of
judicial records unless some satisfaetorv
reason is given. Rex v. Maidstone, 6 Dowl.
& R. 334.
An imlimited right of a citizen of the
United States to Sispect and examine all
the records and papers belonging to the
court does not exist, said the court in Re
McLean, 2 Flipp. 612, Fed. Cas. No. 8,877.
So, the clerk of a court may refuse to
furnish a copy of the proceedings in a di-
vorce suit for newspaper publication, in the
absence of any statutory provision on the
subject. Re Caswell, 18 K. I. 836, 27 LJt.A.
82, 49 Am. St. Rep. 814, 29 Atl. 269.
Parties to pending suits mav, under the
direction of the court, lawfully withhold
the records and papers in the case so as to
prevent examination by a newspaper re-
porter until the ease is made public by the
consent of the parties or by proceedings in
open court. Schmedding v. May, 86 Mich.
1, 24 Am. St. Rep. 74, 48 N. W. 201.
But the rules and practice of the Patent
Office furnish no warrant for ordering that
the files relating to an appeal from the Pat-
ent Office to the court of appeals of the
District of Columbia shall be preserved in
secrecy, and directing the clerk not to per-
mit said files or any part thereof to be in-
spected except OB request of appellant or
24 se»
SUPREME COURT OF THE UNITED STATES.
Oct. Tkuc/>
Blr. Alrin Cashini^ Cass argued the
cause and filed a brief for petitioner:
The writ of mandamus is the proper
remedy.
Re Winn, 218 U. 8. 458, 53 L. ed. 873,
29 Sup. Ct Rep. 515; Re Pollitz, 206 U.
a 331, 51 L. ed. 1083, 27 Sup. Ct Rep.
729; Re Grossmayer, 177 U. S. 48, 44 L.
ed. 665, 20 Sup. Ct Rep. 535; Re Hohorst,
150 U. S. 653, 37 L. ed. 1211, 14 Sup. Ct
Rep. 221.
Court records are inherently public, and,
subject to reasonable regulations, any per-
son showing a legitimate interest (and this
is liberally construed) has the common-law
right of full disclosure.
Sloan Filter Co. v. El Paso Reduction
Co. 117 Fed. 504; Bell v. Commonwealth
Title Ins. & T. Co. 180 U. S. 131, 47 L.
ed. 741, 23 Sup. Ct Rep. 560.
Mr. Frank W. Knowlton argued the
cause, and, with Messrs Charles F. Choatc,
Jr., and James Garfield, filed a brief for
respondent:
A writ of mandamus will never be granted
where there is another adequate legal
remedy open to the petitioner. It cannot be
used, for example, to perform the functions
of an appeal or a writ of error.
Ex parte Roe, 234 U. S. 70, 58 L. ed.
1217, 34 Sup. Ct Rep. 722; Ex parte Hard-
ing, 219 U. S. 363, 55 L. ed. 252, 37 L.R.A.
(N.S.) 392, 31 Sup. Ct. Rep. 324; Re Pol-
Utz, 206 U. S. 323, 51 L. ed. 1081, 27 Sup.
Ct. Rep. 729; Chandler v. Pailthorp, 97
Mich. 621, 57 K. W. 189.
A writ of mandamus can never be aaad
to control the Judicial discretion of a sub-
ordinate court.
Ex parte Roe, 234 U. S. 70, 58 L. ed.
1217, 34 Sup. Ct. Rep. 722; Re Winn, 21S
U. S. 458, 468, 53 L. ed. 873, 877, 29 Sup.
Ct Rep. 515.
Though mandamus may be used under
appropriate circumstances to compel a court
to decide an issue, it cannot be used to-
dictate how such issue shall be decided.
Consequently, it cannot compel the review-
ing or vacating of a judgment, decree, or
order already made, on the ground that the
issue was wrongly decided.
Ex parte Morgan, 114 U. S. 174, 29 L.
ed. 185, 5 Sup. Ct Rep. 825; Ex parte
Schwab, 98 U. S. 240, 25 L. ed. 105; Ex
parte Loring, 94 U. S. 418, 24 L. ed. 165;
Chiera t. Brevoort, 97 Mich. 638, 57 N. W.
193.
The act of a court suppressing or refus-
ing to suppress a deposition, being judicial,,
will not be controlled by mandamus.
Ex parte Elston, 25 Ala. 72; 26 Cyc.
205.
A writ of mandamus will never be grant-
ed unless the petitioner has a clear and
specific right to be enforced by it.
Re Key, 189 U. S. 84, 47 L. ed. 720, 2*
Sup. Ct. Rep. 624; Ex parte Cutting, 94
U. S. 14, 24 L. ed. 49.
Depositions differ from other public docu-
ments which are required to be open to the
inspection of alL
Wigmore, Ev. § 2111 (3); Myers v.
his attorneys, or upon special order of the
court, first obtained after notice to appel-
lant's attorneys. Such files are subject to
public inspection like those in any other
case. Ex parte Drawbaugh, supra.
Statutes exist in some jurisdictions ex-
tending the right of inspection to any per-
son.
Under a West Virginia statute "the rec-
ords and papers of every court shall be
open to the inspection of any person." State
ex rel. Clark v. Long, 37 W. Va. 266, 16 S.
E. 578.
But this does not mean that inspection
is for everyone for pastime, whim, or fancy.
The person seeking it must have some in-
terest and the purpose of the inspection
must be legitimate. Payne v. Staunton,
55 W. Va. 202, 46 S. E. 927, 2 Ann. Cas.
74.
The books containing docket or minute
entries of the judgments and decrees of
the Federal circuit and district courts were
by statute "open to the inspection of any
person." Re McLean, supra.
The docket of a justice of the peace where-
in judgments are recorded is a public record
within the meaning of Neb. Comp. Stat.
chap. 74, declaring Siat "all citizens of this
state and all other persons interested in
S70
the examination of the public records, are
herebv fully empowered and authorized to
examine the same, free of charge, during
the hours the respective offices may be kept
open for the ordinary transaction of busi-
ness." State ex rel. hewby v. Ellsworth, 61
Neb. 444, 85 N. VV. 439.
And the sustaining of an objection to
the use of a copy of a stenographic report
of evidence in another trial, because the
party using the juime had refused to allow
mspection, was error, since the original
was open to the inspection of either party,
and either or both could have obtained 'a
copy of the same. Spielman v. Flynn, 1&
Neb. 342, 27 N. W. 224.
Any citizen may, without payment of fee,,
inspect and make memoranda for purposea
of newspaper publication of the contents of
a marriage license docket kept by the clerk
of the orphans' court. The docket, under
the local statutes, is -a public record, and
the record therein of the issuance of a li-
cense is the record of a judicial act, the
clerk's decision for or against the license
being as much a judgment as an^ other
act involving the exercise of judicial con-
duct Marriage License Docket, 4 Pa. Dist^
R. 162.
See, however, Kalamasoo Qazette Co. t»
191&.
EX PARTE UPPSRCU.
438, 490
Roberto, 36 FU. 255, 17 So. 358; Re Mc-
LesB, 2 Flipp. 512, Fed. Cat. No. 8,877;
Be Cincinnati Enquirer, Fed. Cas. No.
2;719; Beale v. Thompson, 8 Cranch, 70, 3
L. ed. 491; Gross t. Ck>ffe7, 111 Ala. 474,
20 8o. 428; House t. Can^>, 32 Ala. 649;
Koore t. M'Cullough, 6 Mo. 444; Weeks,
Depositions, § 365.
A court has power and discretion to sup-
press depositions:
(1) For irre^larities in the taking or
return.
Dunkle ▼. Worcester, 6 Biss. 102, Fed.
Gas. No. 4,162.
(2) For containing scandalous matter.
Re Caswell, .18 R I. 835, 27 L.RA. 82,
49 Am. St. Rep. 814, 29 Atl. 259.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is a petition for a writ of mandamus
to direct the judges and clerk of the district
eonrt for the district of Massachusetts to
allow the petitioner access to depositions
ind exhibito on file in a certoin case, but
now Sep led by order of the court. The facts
alleged, shortly stated, are as follows: The
ease referred to was an action by the p^ov.
eminent against the Dwight Manufactur-
ing Company for penalties under the immi-
gration act of February 20, 1907, chap.
1134, 34 Stat, at L. 898, Ck>mp. SUt. 1913,
§ 4242. On June 22, 1914, it was com-
promised by the payment of $50,000 and
the action was discontinued. lu pursuance
of a preyious agreement with the Secretary
of Commeree and Labor the petitioner was
paid $25,000 for services rendered in the
suit. He now is sued by one Paehinakis
for 45 per cent of that sum upon an' allega-
tion of title to the amount. It is allied
that the testimony of Pachinakis in one of
the depositions will show that he swore that
he had ''no interest or right in or expecta-
tion to those moneys;" that Pachinakis was
the principal violator of the law, and that
his present claim is an attempt to profit
by his own wrong, and against publio policy.
The petitioner also is sued by an employee
of Henry C. Quinby, the attorney in both
suits, upon an assigned claim of William
H. Garland for $3,750, in respect of services
of Garland in the former action. Garland
having been a salaried Assistant United
States Attorney until January, 1914, and
thereafter until the end of the action spe-
cial [439] counsel for the government, and,
as the petitioner believes, having been fully
paid by the government. The petitioner ex-
pects to prove from the papers on file that
Garland's services were rendered to the gov-
ernment alone, and not to him; that Gar-
land's claim for additional compensation is
against public policy; and that it is exorbi-
tant as well as unjust. Quinby is Gar-
land's lawyer, and is employed by Pach-
inakis upon Garland's advice by an ar-
rangement between the two.
When the former action was compromised.
Judge Dodge, the respondent, made an or-
der, "both parties consenting, that all depo-
sitions herein be sealed by the clerk and
Kalamazoo County Clerk, 148 Mich. 460,
111 N. W. 1070, where the court, while
folding that the records of marriage li-
censes and returns in the county clerk's
office could not be withheld from inspec-
tion by newspaper reporters, manifestly
regarded such records as "public," not
judicial."
The county records as filed, which, by
Mass. Pub. Stat. chap. 37, § 13, are ordered
to be open for public inspection and ex-
amination, and of which any person may
take copies, are the records and files of the
county, not of the courts of the common-
wealth within and for that county. Cow-
ley V. Palsifer, 137 Mass. 392, 50 Am. Rep.
818.
Written instructions from the attorney
for an execution creditor to the sheriff with
reference to the enforcement of the execu-
tion are not "public records or other mat-
ters in the oflice" of the sheriff which, imder
Cal. Pol. Code § 1032, are required to be
open to inspection by any citizen of the
itste, nor are they "public writings" which,
mider Cal. Code Civ. Prov. § 1892, every
dtizen has a right to inspect. Whelan v.
Snperior Ct. 114 Cal. 548, 46 Pac. 468.
An inspection of the justice's files and
nemoranda was refused before he had made
•0 L. ed.
up his record, although the local statute
provided that the justice shall keep a record,
and his "books" of records shall be at all
times subject to the inspection of persons
interested. Perkins v. Cummings, 66 Vt.
485, 29 Atl. 675.
Tlie user of an alleged patented device
has such an interest in a suit in which the
novelty of the invention and validity of
the patent are in issue that he may inspect
and obtain copies of the testimonv and
documents on file, and the court will not
permit such right to be defeated by allow-
ing a withdrawal of the testimony and ex-
hibits from the files upon a settlement and
dismissal of the suit. Sloan Filter Go. v.
El Paso Reduction Co. 117 Fed. 504.
Cases bearing upon the right of access
for private abstract purposes are not here
included, that question being the subject
for consideration in a note to Bell v. Com-
monwealth Title Ins. & T. Co. 47 L. ed.
U. S. 741. '
Nor does this note include the right to
inspect grand jury minutes— as to whi6h
see note to State v. Rhoads, 27 L.R.A.(N.S.)
558. I
Generally, on the right to inspect publie
records, see note t6 Re Caswell, 27 L.R.A.
82. •
%1V
439-441
SUPREME COURT OF THE UNITED STATES.
Oct. Taau.
retained in the file* of liii office, Bubject
to the right of either p&rtj U> inspect till
Munc, tad that all exhibits be impounded
with th* clerk, subject to the aame right ol
«tth«r pkrty to iuipect them." After tb(
flret preientAtion of the claim of Pachinakit,
the petitionet'i couniel made a motion in
the former action for leave to intpect tbc
•bove'meotioDed depoaitiona. The United
States assented, although Garland, when
referred to as the Assistant Attorney last
in charge of the matter, advised against it.
The former defendant opposed the motion
and it was denied, seemingly and as was
understood by the petitioner's counsel, on
tbe ground that the petitioner was not a
party to the cause. Subsequently the Unit-
ed States District Attorney made a motion
that the order be vacated or modified so
•s to allow the depositions to be used, and,
after a denial, renewed the motion with a
fuller statement of grounds, suggesting a
misapprehension at the former bearing.
This motion also was denied and exceptions
were taken that have not yet been heard
by the circuit court of appeals.
It appears from what we have said that
there are documents present within tbe
jurisdiction that furnish evidence mnterial
to the petitioner's case. The general prin-
ciple is that he has a ri^ht to have them
produced. [MO] It does not matter whetli-
«r th^ have been used in the original cause
or not. or to whom they belong. The right to
evidence to be obtained from an existing ob-
ject does not depend upon having an in-
terest in it, or, in a case like this, upon
having an Interest in the original cause,
or upon tbe object being admissible or in-
admissible in the cause for which it was
prepared, or upon the right or want of right
of the public to examine tbe thing. The
necessities of litigation and the require-
ments of justice found a new right of a
wholly different kind. So long as the object
physically exists, anyone needing it as evi-
dence at a trial has a right to call for it,
unlesB some exception is shown to the gen-
eral rule. We discover none here. Neither
the parties to the original cause Dor the
deponents have any privilege, and the mere
unwillingnesB of an unprivileged person to
have the evidence used cannot be strength-
ened by such a judicisi flat as this, forbid-
ding it, however proper and effective the
•ealing may have been as agsinst the public
«t large. Ttut, as the custodian could not
obey the summons of a magistrate to pro-
duce the documents without encountering
tbe command of his immediate superior, the
orderly course is to obtain a remission of
that command from the source from which
It came, — a remission which, in oar opinion.
It is the duty of the judge to graaL
J 7*
The only other queation is whether ther*
is any technical difficulty in the way of
this court ordering what in ita opinion jna-
tice requires and what otherwise the peti-
tioner mgy not be able to obtain. The
previous proceedings do not stand in his
way. The rejection of his motion on the
narrow ground that it was made in the
former action and that be was not a party
to it did not require to be followed up,
and that of the government, although in
his interest by reason of his being particu-
larly concerned in a general act of justice
being done, doea not confine him to ft pro-
ceeding In which be is not master of the
cause. [441] The assertion of his rights re-
quires no particular formality. It would
have been enough if, on the attention of tbe
court being called to tbe matter, it had
directed that the order should not be con-
strued as affecting those who otherwise had
a right to copies of tbe papers. It is enough
lor this court that it has been intimated
with luflicient clearness that the order has
a wider scope and is to be applied as against
him. As against the petitioner the order
has no judicial character, but is simply an
unauthorized exclusion of him by virtue of
de facto power. The proceeding is not for
delivery of the papers upon a claim of
title, but simply to remove the unautboriced
impediment and to correct an act in excea*
of the jurisdiction of the lower eourt. We
are of opinion that the authority of this
court should be exercised in this ease.
Rule absolute.
STATE BOARD OF EQUAUZATION, and
Elitts M. Ammons, James B. Pearee, M.
A. Leddy, Roady Kenehen, and Fred Frt-
rar, as Members, etc., et al.
(See 8. C. Reporter's ed. 441-440.)
Error to state conrt — scope at review
— construction of aUte Constltatlan
and laws.
], The proper construction of the Con-
stitution and laws of a state is not tor tbe
Federal Supreme Court to determine on a
writ of error to a state court.
[For otlier caaeii, ■« Appeal and Error, 2124-
21S1, In DlESat Sop. Ct. ISOS.I
Note. — On the general subject of writs of
error from United States Supreme Court
to state courts — see notes to Martin v. Hun-
ter, 4 L. ed. U. 3. 97; Hamblin v. Weetem
Und Co. 37 L. ed. U. S. 867; Re Buchanan,
39 L. ed. U. S. 884; and Kipley v. Illinota.
IS L. ed. U. 8. 998.
On what questions the Federal Buprem*
sat u. s.
1915. BIMETALLIC INVEST. GO. v. STATE BO. OF EQUALIZATION.
Error to state oonrt ^ scope of review
— tocal law.
2. The Federal Supreme Court, on a
writ of error to a state court to review a
deeree directing the dismissal of a suit in
equity, may not consider the question wheth-
er or, not the state oourt could have thrown
out the suit on the ground that there was
an adequate remedy at law, where the high-
est state court treated the merits as legiti-
mately before it.
[For other cases, see Appeal and Error, 2209-
2226, in Digest Sop. Ct. 1908.]
Constitutional law » due process of law
— notice and hearing — tax matters.
3. An order of the Colorado Tax Com-
mission and State Board of Equalization,
requiring the local taxing officer to make a
40 per cent increase in the assessed valua-
tion of all taxable property in the city and
county of Denver, is not wanting in due
process of law because no opportimity to
be heard was given to the individual tax-
payers, nor to any city or county official
other than such as they ma^ have had by
reason of the fact that the time of meeting
of the boards is fixed by law.
(For other cases, see CoDstltotional Law, 725-
744. in Digest Sop. Ct^ 1908.]
(No. 116.]
Argued December 7 and 8, 1916. Decided
December 20, 1015.
IN ERROR to the Supreme Court of the
State of Colorado to review a decree
which, reversing a decree of the District
Court of the City and County of Denver,
in that state, directed the dismissal of a
suit to enjoin the enforoement of an order
of the State Tax Commission and State
Board of Equalization, increasing the valua-
tion of taxable property in Denver. Af-
firmed.
See same ease below, 56 Colo. 512, 138
Pac. 1010.
The facts are stated in the opinion.
. Mr. Horace Phelps, argued the cause and
^ed a brief for plaintiff in error:
In matters of taxation the proceedings for
assessment of property are necessarily sum-
mary in their nature, but where the tax is
laid against the property according to value,
there must be provision for such notice and
hearing as are appropriate in such cases.
Hagar v. Reclamation Dist. Ill U. S.
701, 710, 28 L. ed. 569, 572, 4 Sup. Ct.
Rep. 663; Weyerhaueser v. Minnesota, 176
U. S. 550, 44 L. ed. 583, 20 Sup. Ct. Rep.
485.
It is essential to due process that notice
and a hearing be demandable as a matter
of right, not granted as a mere matter of
favor or grace, and that the hearing be be-
fore an officer or board or tribimal having
jurisdiction to hear and determine the mat-
ter and to give appropriate relief.
Roller Y. Holly, 176 U. S. 398, 409, 44
L. ed. 520, 524, 20 Sup. Ct. Rep. 410;
Security Trust k S. V. Co. v. Lexington,
203 U. S. 323, 333, 51 L. ed. 204, 208, 27
Sup. Ct. Rep. 87; Londoner v. Denver, 210
U. S. 373, 52 L. ed. 1103, 28 Sup. Ct. Rep.
708; Stuart v. Palmer, 74 N. Y. 183, 30
Am. Rep. 289.
The action of the Colorado Tax Commis-
sion and the State Board of Equalization
complained of here constituted a reassess-
ment of all property affected thereby.
Gray, Limitations of Taxing Power, §
1295, p. 639; Kuntz v. Sumption, 117 Ind.
1, 2 L.RA.. 655, 19 N. E. 474; Carney v.
People, 210 HI. 434, 71 N. E. 365; People
Y. Cosmopolitan L. Ins. Co. 246 111. 448,
92 N. E. 922; Overing v. Foote, 65 N. Y.
269; Douglas y. Westchester County, 172
N. Y. 309, 65 N. E. 162; Tohnan v. Salomon,
191 lU. 204, 60 N. E. 809.
Even if the power of reassessment or
revaluation were vested in and could law-
fully be exercised by either or both of those
boards, the reassessment or raise in valua-
tion could only be made upon notice and
hearing, or opportunity to be heard.
Gray, Limitations of Taxing Power, §
1295; Bellingham Bay & B. C. R. Co. v.
New Whatcom, 172 U. S. 314, 43 L. ed.
460, 19 Sup. Ct. Rep. 205; Davidson v.
New Orleans, 96 U. S. 97, 105, 24 L. ed.
616, 620; Gale v. Stat!er, 47 Colo. 72, 105
Pac. 858; State Revenue Agent v. Tonella
(Adams v. Tonella) 70 Miss. 714, 22 L.R.A.
846, 14 So. 17; Kimts v. Sumption, 117
Ind. 1, 2 LJLA. 655, 19 N. £. 474; People
ex reL Barnard v. Wemple, 117 N. Y. 77,
22 N. E. 761; Meyers v. Shields, 61 Fed.
718.
There was no hearing; thete was no no-
tice; the rights of the property owner were
ignored; and the decision of the supreme
court of the state, sustaining the order of
the boards, was state action depriving the
taxpayer of property without due process
Court will consider in reviewing the judg-
ments of state courts — see note to Missouri
ex rel. Hill v. Dockery, 63 L.R.A. 571.
As to what constitutes due process of law,
generally — see notes to People v. O'Brien, 2
L.R.A. 235 ; Kuntz v. ^Sumption, 2 L.R.A.
655; Re Gannon, 5 L.R.A. 359^ Ulman t.
Baltimore, 11 L.RJI. 224; Gilman v. Tucker,
60 L. ed.
13 L.RJk. 304; Pearson v. Yewdall, 24 L^
ed. U. S. 436; and Wilson v. North Caro-
lina, 42 L. ed. U. S. 865.
On notice and hearine required to con-
stitute due process of law — see notes to
Kuntz V. Sumption, 2 L.R.A. 657; Chauvin
V. Valiton, 3 hJSLA. 194; and Ulman v.
Baltimore, 11 L.ILA. 225.
443, 444
SUPREME OOUBT OF THE UNITED STATES.
Got. Tkrm,
of law, in yiolation of the provisions of the
14th Amendment.
Central of Georgia R. Go. t. Wright,
207 U. S. 127, 62 L. ed. 134, 28 Sup. Ct
Rep. 47, 12 Ann. Gas. 463.
Mr. Fred Farrar, Attorney General of
Colorado, and Mr. Xorton Montgomery
argued the cause and filed a brief for de-
fendant in error the State Board of Equali-
zation :
It is acknowledged, that the right to tax
is a soyereign power, and that the power of
the legislature in adopting laws for taxa-
tion and the procedure therefor is plenary,
limited only by the express inhibitions of
national and state Constitutions.
Cooley, Const. Lim. 6th ed. chap. 7; New-
man v. People, 23 Colo. 306, 47 Pac. 278;
Bellingham Bay Improv. Co. v. New What-
com, 172 U. S. 320, 43 L. ed. 463, 19 Sup.
Ct. Rep. 873.
Even though it should be conceded that
the plaintiff in error was denied by the
statutes of Colorado due process of law,
still it would not have been entitled to
judgment imless it had further shown that
it had brought itself within some of the
recognized heads of equity Jurisprudence.
Singer Sewing Mach. Co. v. Benedict, 220
U. S. 481, 57 L. ed. 1288, 33 Sup. Ct. Rep.
941; SUte R. Tax Cases, 92 U. S. 675,
613, 23 L. ed. 663, 673.
In determining what is meant by due
process of law, a marked distinction is
recognized in cases involving general taxes,
from cases involving other subject-matters,
the authorities and decisions holding that
matters involving general taxes should be
given a most liberal construction.
Turpin v. Lemon, 187 U. S. 51, 47 L. ed.
70, 23 Sup. Ct. Rep. 20; McGehee, Due
Process of Law, p. 232; Cooley, Taxn. 3d
ed. 53-55; McMillen v. Anderson, 95 U. S.
41, 24 L. ed. 335; Kelly v. Pittsburgh, 104
U. S. 79, 26 L. ed. 658; Pittsburgh, C. C.
A St. L. R. Co. V. Bac*^us, 154 U. S. 425,
38 L. ed. 1036, 14 Sup. Ct. Rep. 1114.
County boards of equalization, as well as
state boards of equalization, have the right
to raise or lower the assessed valuation of
all property within a particular district or
county without notice to each or any own-
er of such property.
State ex rel. Jennings Bros. Invest. Co.
v. Armstrong, 19 Utah, 117, 56 Pac. 1079;
Territory v. First Nat. Bank, 10 N. M.
203, 65 Pac. 172; SUte R. Tax Cases, 02
U. S. 575, 23 L. ed. 663; Suydam v. Mer-
rick County, 19 Neb. 155, 27 N. W. 142;
Carrico v. Crocker, 38 Okla. 440, 133 Pao.
183.
874
Mr. James A. Marsh argued the cause,
and, with Mr. George Q. Richmond, filed a
brief for defendant in error Clair J. Pitch-
er:
The constitutional guaranty of due process
of law was not afforded to the plaintiff in
error.
Gale V. Statler, 47 Colo. 74, 105 Pac 858;
Brown v. Denver, 7 Colo. 311, 3 Pac 455;
People ex rel. State Normal School v. State
Bd. of Equalization, 20 Colo. 220, 37 Pac.
964; Security Trust & S. V. Co. v. Lexing-
ton, 203 U. S. 323, 51 L. ed. 204, 27 Sup.
Ct Rep. 87; Central of Georgia R. Co. v.
Wright, 207 U. S. 138, 52 L. ed. 141, 28
Sup. Ct. Rep. 47; Londoner v. Denver, 210,
U. S. 373, 52 L. ed. 1103, 28 Sup. Ct. Rep.
708; Taylor v. Louisville & N. R. Co. 31
C. C. A. 537, 60 U. S. App. 166, 88 Fed.
360; Carney v. People, 210 111. 434, 71
N. E. 365; Hovey v. Elliott, 167 U. S.
414, 42 L. ed. 220, 17 Sup. Ct. Rep. 841;
Chicago, B. & Q. R. Co. v. Chicago, 166 U.
S. 235, 41 L. ed. 984, 17 Sup. Ct. Rep.
581; Galpin v. Page, 18 Wall. 350, 21 L.
ed. 959; Glidden v. Harrington, 189 U. S.
258, 47 L. ed. 801, 23 Sup. Ct. Rep. 574;
Turpin v. Lemon, 187 U. S. 51, 47 L. ed.
70, 23 Sup. Ct. Rep. 20; Hagar v. Recla-
mation Dist. Ill U. S. 701, 708, 28 L. ed.
569, 572, 4 Sup. Ct Rep. 663; Railroad
Tax Cases, 8 Sawy. 238, 13 Fed. 752;
Bellingham Bay & B. C. R. Co. v. New
Whatcom, 172 U. S. 318, 43 L. ed. 461,
19 Sup. Ct. Rep. 205; Kimtz v. S^umption,
117 Ind. 1, 2 L.R.A. 655, 19 N. E. 474;
Walsh V. State, 142 Ind. 357, 33 L.R.A.
392, 41 N. E. 65; Lehman v. Robinson, 59
Ala. 219; Clcghorn v. Postlcwaite, 43 111.
431 ; Tolman v. Salomon, 191 111. 204, 60
N. E. 809; State ex rel. Ziegenhein v.
Spencer, 114 Mo. 574, 21 S. W. 837; Phil-
lips V. New Buffalo Twp. 64 Mich. 683, 31
N. W. 582; Winona & St. P. R. Co. v.
Minnesota, 159 U. S. 526, 40 L. ed. 247,
16 Sup. Ct. Rep. 83; Weyerhaueser v. Min-
nesoU, 176 U. S. 550, 44 L. ed. 583, 20
Sup. Ct. Rep. 485; Gallup v. Schmidt, 183
U. S. 305, 46 L. ed. 212, 22 Sup. Ct Rep.
162; Coe v. Armour Fertilizer Works, 237
U. S. 413, 424, 59 L. ed. 1027, 1031, 35
Sup. Ct. Rep. 625; St. Louis Southwestern
R. Co. V. Arkansas, 235 U. S. 350, 362, 59
L. ed. 265, 271, 35 Sup. Ct. Rep. 99.
Mr. Justice Hohnes delivered the op in*
ion of the court:
This is a suit to enjoin the State Board
of Equalization and the Colorado Tax Com-
mission from putting in force and the de-
fendant Pitcher, as assessor of Denver, from
obeying, an order af the boards, increasing
the valuation of all taxable property in Den-
ver 40 per cent The order [444] was sus-
ast u. 8.
19U.
DAYTON GOAL & I. CO. v. CINCINNATI, N. O. 4 T. P. B. 00. 444-446
tftinad and the suit directed to be dismiBsed
by the eupreme court of the state. 56 Colo.
512, 188 Pac. 1010. See 66 Colo. 343,. 138
Pac 509. The plaintiff is the owner of real
«Btate in Denver, and brings the case here on
the ground that it was given no opportunity
to be heard, and that therefore its property
will be taken without due process of law,
contrary to the 14th Amendment of the Con-
stitution of the United States. That is the
only question with which we have to deal.
There are suggestions on the one side that
the construction of the state Constitution
and laws was an unwarranted surprise, and
on the other, that the decision might have
been placed, although it was not, on the
ground that there was an adequate remedy
at law. With these suggestions we have
nothing to do. They are matters purely of
state law. The answer to the former needs
no amplification; that to the latter is that
the allowance of equitable relief is a ques-
tion of state policy, and that as the su-
preme court of the state treated the merits
as Intimately before it, we are not to
^>eculate whether it might or might not
have thrown out the suit upon the prelimi-
nary ground.
For the purposes of decision we assume
that the constitutional question is presented
in the baldest way, — ^that neither the plain-
tiff nor the assessor of Denver, who pre-
sents a brief on the plaintiff's side, nor any
representative of the city and county, was
l^ven an opportunity to be heard, other
than such as they may have had by reason
of the fact that the time of meeting of the
boards is fixed by law. On this assumption
it is obvious that injustice may be suffered
if some property in the county already has
been valued at its full worth. But if cer-
tain property has been valued at a rate dif-
ferent from that generally prevailing in
the county, the owner has had his oppor-
tunity to protest and appeal as usual in
our system of taxation (Hagar v. Reclama-
tion Dist. Ill U. S. 701, 709, 710, 28 L. ed.
689, 572, 573, 4 Sup. Ct. Rep. 663), so that
it mnst be assumed that the property [445]
owners in the county all stand alike. The
question, then, is whether all individuals
have a constitutional right to be heard be-
fore a matter can be decided in which all are
equally concerned, — ^here, for instance, be-
fore a superior board decides that the local
taxing officers have adopted a system of
undervaluation throughout a cpunty, as
notoriously often has been the case. The
answer of this court in the State R. Tax
Cases, 02 U. 8. 575, 23 L. ed. 663, at least,
ma to any further notice, was that it was
hard to believe that the proposition was
■eriously made. |
Where a rule of conduct applies to more
•e ii. ed.
than a few people, it is impracticable that
everyone should have a direct voice in its
adoption. The Constitution does not re-
quire all public acts to be done in town
meeting or an assembly of the whole. Gen-
eral statutes within the state power are
passed that affect the person or property ol
individuals, sometimes to the point of ruuHf
without giving them a chance to be heard.
Their rights are protected in the only way
that they can be in a complex society, bj
their power, immediate or remote, over
those who make the rule. If the result in
this case bad been reached, as it might have
been by the state's doubling the rate of
taxation, no one would suggest that the
14th Amendment was violated unless every
person affected had been allowed an oppor-
tunity to raise his voice against it before
the body intrusted by the state Constitu-
tion with the power. In considering this
case in this court we must assume that the
proper state machinery has been used, and
the question is whether, if the state Con-
stitution had declared that Denver had been
undervalued as compared with the rest of
the state, and had decreed that for the cur-
rent year the valuation should be 40 per
cent higher, the objection now urged could
prevail. It appears to us that to put the
question is to answer it. There must be a
limit to individual argument in such mat-
ters if government is to go on. In Lon-
doner V. Denver, 210 U. S. 373, 385, 52 L.
ed. 1103, 1112, 28 Sup. Ct. Rep. 708, [446]
a local board had to determine "wheth-
er, in what amount, and upon whom" a
tax for paving a street should be levied
for special benefits. A relatively small
number of persons was concerned, who
Were exceptionally affected, in each case
upon individual grounds, and it was held
that they had a right to a hearing. But
that decision is far from reaching a gen-
eral determination dealing only with the
principle upon which all the assessments in
a county had been laid.
Judgment affirmed.
DAYTON COAL & IRON COMPANY,
Limited, Plff. in Err.,
V.
CINCINNATI, NEW ORLEANS, & TEXAS
PACIFIC RAILWAY COMPANY, Nash-
ville, Chattanooga, & St. Louis Railway
Company, and Western k Atlantic Rail-
road Company.
(See S. C. Reporter's ed. 446-451.)
Error to state court — scope of rerlew
^ Jurisdiction below.
1. The judgment of the highest state
SUPREME COURT OF THE UNITED STATES. Oct. Tboc,
court ordering a bill and cross bill to be
dismissed for want of jurisdiction is con-
clusive upon the Federal Supreme Court on
writ of error unless the denial of a Federal
right is involved.
[For other cases, see Appeal and Error, 2209-
2226, in Digest Sup. Ct. 1908.]
Carriers — establishing Joint rates —
restriction to published tariffs.
by the initial carrier over the protest of a
party thereto.
Camden Iron Works t. United States, 85
C. C. A. 685, 158 Fed. 561; Black Horse
Tobacco Co. v. Illinois C. R. Co. 17 Inters.
Com. Rep. 588; Judson, Interstate Com-
merce, 2d ed. §§ 313, 314; Louisville k N.
R. Co. v. Dickerson, 112 C. C. A. 295, 191
2. A through freight rate duly filed by Fed. 709 ; Chicago, B. k Q. R. Co. t. United
the initial carrier with the IntersUte Com- states, 85 C. C. A. 194, 157 Fed. 830.
merce Commission became on its effective
date the lawful through joint rate, and the Mr. M. M. Allison argued the cause for
only one which the connecting carrier might defendant in error the Cincinnati, New Or-
is wfully receive or the shipper properly pay, leans, & Texas Pacific Railway Company,
where such connecting carrier received the
new tariff and stamped and filed it, and. Mr. Joseph E. Brown argued the cause,
without giving any formal notice to the and, with Messrs. Foster V. Brown, Frank
initial carrier of its acceptance, which was Spurlock, and Claude Waller, filed a brief
not at that time required by the Interstate for defendants in error the Nashville, Chat-
Commerce Commission, acted upon such tanooga, & St. Louis Railway Company and
tariff, insisting that the new rate was the the Western & Atlantic Railroad Company:
{^^SlauTpa^y^^^^^^^^^^ "'"^^^^ ,J»^e courts of Tenn^ee omnot^li^e
[For other csrcs. see Carriers. III. g, In Dl- *"« plaintiff m error from the controlling
sest Sup. Ct. 1908.] effect of the rate filed with the Commission
|.^ g. . by the defendant in error. The plaintiff in
'- '^ error could only be relieved from the bind-
Argued November 12. 1915. Decided De- i"f '^'f*^ °^*^*» "**^^y ^f *^^«* °^ **"•
cember 20 1915 Interstate Commerce Commission.
' Texas & P. R. Co. v. Abilene Cotton Oil
IN ERROR to the Supreme Court of the Co. 204 U. S. 426, 61 L. ed. 653, 27 Sup.
State of Tennessee to review a decree Ct. Rep. 350, 9 Ann. Cas. 1076; Baltimore
which, reversing a decree of the Chancery * C. R. Co. v. United States, 215 U. S.
Court of Hamilton County, in that state, di- ^^^> ^ ^- «d- ^92, 30 Sup. Ct. Rep. 164;
rected the dismissal of the original bill and Robinson v. Baltimore ft 0. R. Co. 222 U.
cross bill in a suit between shipper and car- S. 506, 56 L. ed. 288, 32 Sup. Ct. Rep. 114;
rier over the right of the latter to enforce MitcheU Coal ft Coke Co. v. Pennsylvania
a new through joint freight rate. Affirmed. R. Oo, 230 U. S. 247, 57 L. ed. 1472, 3S
See same case below, 183 8. W. 739. Sup. a. Rep. 916.
ITie facts are stated in the opinion. The publication and filing of the rate
, , . of 70 cents per ton by the defendant in
^^^'^^^^^^y^'^i^Y^l^.^^ **"?'. 't'^i ^"^^' «>^^'i°g **>« transportation of iron
Mr. W. B. MiUer filed a brief for plaintiff ^^^e between the points named therein, so
in error: ^ l^^ig ^^ jt remained uncanceled by the In-
The state court had jurisdiction to m- terstate Commerce Commission, was as fixed
quire whether the original joint and law- ^^d unalterable, either by the shipper or
fully established rate from Cartersville to ^y the carrier, as if that particular rate
Dayton, via Chattanooga, had been changed jj^d been established by an act of Congress.
in the manner required by the act, and if ^fter the filing of this rate it became the
so, what change therein resulted. absolute duty of the defendant in error to
Clafiin V. Houseman, 93 U. S. 130-143, ^gg^g ^^ ^He^ the freight charges speci-
23 L. ed. 833-840; Pennsylvania R. Co. v. ^^ therein, and it would have been unUw-
PuriUn Coal Min. Co. 237 U. S. 131, 59 f^y f^^ jt to have collected any other or
L. ed. 873, 35 Sup. Ct. Rep. 484; Illinois different rate.
C. R. Co. V. Mulberry Hill Coal Co. 238 United States ▼. New York C. ft H. R.
U. S. 275, 69 L. ed. 1306, 35 Sup. a. Rep. R. Co. 212 U. S. 509, 53 L. ed. 629, 29 Sup.
760. Ct. Rep. 309; Armour Packing Co. v. United
An agreed joint rate may not be changed States, 209 U. S. 56, 83, 52 L. ed. 681, 695,
Note. — On the general subject of writs
of error from United States Supreme Court
to state courts — see notes to Martin v. Hun-
ter, 4 L. ed. U. S. 97; Hamblin v. Western
Land Co. 37 L. ed. U. S. 267 ; Re Buchanan,
39 L. ed. U. S. 884; and Kipley v. Illinois,
42 L. ed. U. S. 998.
On what questions the Federal Supreme
Court will consider in reviewing the judg-
ments of state courts — see note to Missouri
»x rel. Hill v. Dockery, 63 L.R.A. 571.
As to the right of a carrier to recover
difference between rate charged shipper and
proper rste — see note to Central R. Co. t.
Mauser, 49 L.R.A.(N.S.) 92.
1915. DAYTON COAL ft I, CO. v. CINCINNATI, N. O. ft T. P. B. 00. 447, 448
28 Sup. Ct. Rep. 428; PemiflylTaiiia R. Co.
T. International Coal Min. Co. 230 U. &
184, 67 L*. ed. 1446, 33 Sup. Ct Rep. 893;
Mitchell Coal ft Coke Co. y. Pennsylvania
R Co. 230 U. S. 247, 57 L. ed. 1472, 33
Sup. Ct. Rep. 916; Boston ft M. R. Co. v.
Hooker, 233 U. S. 97, 58 L. ed. 868, L.ILA.
191«B, 450, 34 Sup. Ct. Rep. 526, Ann. Cas.
1915B, 593.
The quotation of a rate, or a contract
for a rate, less than the established rate, or
one afterwards established by the carrier, is
not binding upon the carrier.
Gulf, C. & S. P. R. Co. V. Hefley, 168 U.
& 98, 39 I*, ed. 910, 15 Sup. Ct. Rep. 802;
Armour Packing Co. v. United States, 209
U. S. 66, 83, 62 L. ed. 681, 696, 28 Sup.
Ct. Rep. 428; Texas ft P. R. Co. v. Mugg,
202 U. S. 242, 50 L. ed. 1011, 26 Sup. Ct.
Rep. 628; Louisville ft N. R. Co. v. Mottley,
219 U. S. 467, 56 L. ed. 297, 34 L.RJl.(N.S.)
671, 31 Sup. Ct. Rep. 265; Illinois C. R. Co.
T. Henderson Elevator Co. 226 U. S. 441,
57 L. ed. 290, 33 Sup. Ct. Rep. 176; Boston
ft M. R. Co V. Hooker, 233 U. S. 97, 58 L.
ed. 868, L.R.A.1916B, 460, 34 Sup. Ct. Rep.
526, Ann. Cas. 1915D, 593; Louisville ft N.
R. Co. V. Maxwell, 237 U. S. 99, 69 L. ed.
855, L.R.A.1915E, 665, P.U.R.1916C, 300,
35 Sup. Ct. Rep. 494.
An actual concurrence is not necessary
to the lawfulness or validity of a joint
freight rate.
United States v. New York C. ft H. R.
R. Co. 212 U. S. 609, 53 L. ed. 629, 29 Sup.
Ct. Rep. 313.
Since the enactment of the act to regulate
commerce and the amendments thereto the
Interstate Commerce Commission has uni-
formly exercised the jurisdiction and power
to determine the reasonableness and legality
of interstate freight rates, and has held
that joint through rates are legal, although
not concurred in by the carriers named in
the schedule.
Robertson Paper Co. v. Boston ft M. R.
Co. 21 Inters. Com. Rep. 254.
Participation by one of several carriers
in a rate named in tariffs filed by others is
evidence of the lawful rate as against such
participating carrier, and the initial line
publishing such a tariff thereby becomes re-,
sponsible to the shipper under the tariff.
Camden Iron Works v. United States, 85
C. C. A. 585, 158 Fed. 561; Chicago, B.
ft Q. R. Co. V. United States, 86 C. C. A.
194, 157 Fed. 830; Kansas City Southern R.
Co. V. C. H. Albers Commission Co. 223 U.
8. 573, 56 L. ed. 556, 82 Sup. Ct Rep. 316.
Mr. Justice Day delivered the opinion of
the court:
Tlie Dayton Coal ft Iron Company, Limit-
ed, hereinafter called the Dayton Company,
•0 L. ed.
filed its bill in the chancery court at Chatta-
nooga, Tennessee, seeking to enjoin the Cin-
cinnati, New Orleans, ft Texas Pacific Rail*
way Company, generally known as, and
hereinafter called, the Southern Railway,
from prosecuting a certain suit in the Unit-
ed States circuit court for the southern
district of Ohio, brought by the Southern
Railway against the Dayton Company to
recover upon certain shipments of iron ore
which it was alleged had been shipped at a
tariff of 70 cents per ton, being 10 cents
more per ton than the Dayton Company
contended was the true rate on such ship-
ments. The difference amounted to $4,-
933.08, for which sum the Federal suit was
brought.
The shipments of iron ore were made
from Carterville, and other points in
Georgia, to Da3rton, Tennessee, the Nash-
ville, Chattanooga, ft St. Louis Rail-
way Company, operating the Western ft At-
lantic Railroad Company, being the initial
carrier. The bill averred that the Dayton
Company had a defense against the action
in the Federal court, partly legal and part-
ly equitable, and that the [448] Nashville*
Chattanooga, ft St. Louis Railway Company
and the Western ft Atlantic Railroad Com-
pany were necessary and proper parties to
the determination of the controversy, and
were not within the jurisdiction of the Fed-
eral court. It was further charged that the
freight contract was binding upon all the
parties for 60 cents per ton, and that each
and all of the defendants were bound by
that rate.
The Southern Railway answered, setting
up, among other things, that, according to
the requirements of the Federal act to regu-
late commerce, as amended in 1906 [34
Stat, at L. 684, chap. 3591, Comp. Stat.
1913, § 8563], the Nashville, Chattanooga,
ft St. Louis Railway duly filed and pub-
lished a schedule known as "Tariff I. C. C.
#1351 A," showing the joint rate for the
transportation of iron ore from Carters-
ville, Georgia, and nearby points, to Dayton,
Tennessee, to be 70 cents a ton, and that
that tariff became effective on March 5th,
1907; that the Southern Railway was
named as one of the parties to this joint
tariff, and it and the other defendants were
bound by it and prohibited by law from
charging more or less than the tariff named
and filed ; that after the tariff went into ef-
fect on March 5th, 1907, the Southern Rail-
way billed to the Dayton Company iron ore
shipped from Cartersville, Georgia, and
from Emerson ft Rogers, Georgia, to Day-
ton, Tennessee, covered by the through tariff
rate, filed as aforesaid, at the rate of 70
cents per ton, and insisted and still insists
upon the payment of that rate; that the
S77
448H161
SUPREME CX)URT OF THE UNITED STATES.
Oor. TiBM,
Dayton Company, insisting that the rate
was 10 cents over the legal rate, had settled
its freight bills monthly, making a deduc-
tion of 10 cents by an arrangement witli the
Southern Company; that the Dayton Com-
pany refused to pay this difference, and
therefore the suit was brought in the United
States circuit court for the southern dis-
trict of Ohio, and that before answering in
that suit complainant had filed the present
bill, though the suit in the United States
court was still pending and [449] undeter-
mined. The other railroad companies de-
fendants also filed an answer, making like
allegations as to the making and filing of
the 70-cent rate, eifectiye March 6th, 1907.
The Southern Railway filed a cross bill,
in which it again set up the alleged legal
effect of the filing of the 70-cent rate to
take effect on March 5th, 1907, averring
that it had paid the Nashville, Chattanooga,
ft St. Louis Railway Company its propor-
tion of said rate, and that the difference be-
tween the 60- and 70-cent rate was due to it
from the Dayton Company, and asked that
it be given judgment upon its cross bill
against that company on that account for
the sum of $4,933.08; or, if it should be de-
termined that it was not entitled thereto,
because of the illegality of the published
rate, made and insisted upon by the Nash-
ville, Chattanooga, & St. Louis Railway
Company, that it have judgment for that
amount against its codefendant, the Nash-
ville, Chattanooga, & St. Louis Railway
Company. Answers were filed to this cross-
bill.
Upon hearing, the chancery court de-
termined the case in favor of the complain-
ant, holding that the 70-cent rate was
illegal, inequitable, and unenforceable, and
that the complainant was entitled to the
60-cent rate, as contended for by it ; and en-
joined the Southern Railway from prose-
cuting its suit in the Federal court except
for certain items not included in the contro-
versy about the rates, and held that upon
the cross bill the Southern Railway was en-
titled to recover from the Nashville, Chatta-
nooga, & St. Louis Railway Company the
10 cents per ton which the latter company
had received because of ore shipped by
complainant from Cartersville and other
southern points to Dayton, Tennessee, un-
der color and by reason of the 70-cent rate.
Upon appeal, the supreme court of Tennes-
see reversed the decree of the chancery
court, and held that the 70-cent rate was
[450] the legal rate in force from and after
March 5th, 1907, and that if it had jurisdic-
tion to determine the case it would so de-
cide. For reasons set forth in its opinion,
however, it reached the conclusion that, be-
cause'of the acts of Congress concerning the
Interstate Commerce Commission, there was
no jurisdiction to entertain the original bill,
and that it and the cross bill must be dis-
missed. It is to reverse this decision that
the writ of error in this case was sued out.
The supreme court of Tennessee is, of
course, the ultimate judge of the extent of
its jurisdiction, and unless a denial of Fed-
eral rights is involved, its decision upon
that subject is final and conclusive. From
what we have already said, however, it is
apparent that the real Federal question in-
volved in this controversy concerns the
right of the Southern Railway to enforce
the 70-cent rate on the shipments of iron
ore from Cartersville and other points in
Georgia to Dayton, Tennessee. Upon this
point the supreme court reached the con-
clusion that the 70-cent rate was the only
legal rate in force at the time of the ship-
ments; that it was filed with the Interstate
Commerce Commission on February 2d,
1907, to take effect on March 5th, 1907;
that it was thus filed by the Nashville,
Chattanooga, k St. Louis Railway Com-
pany and duly received and stamped by the
Southern Railway as the connecting car-
rier; and that the last-named railroad con-
curred in the tariff by receiving freight
under that schedule and making settlements
under it. This made the rate a joint one,
in accordance with the rulings of the Inter-
state Commerce Commission at that time»
and under tlie interstate commerce act there
could be no departure from this published
rate.
Our examination of the record (Kansas
City Southern R. Co. ▼. C. H. Albers Com-
mission Co. 223 U. S. 573, 56 L. ed. 656,
32 Sup. Ct. Rep. 316) satisfies us tiiat
upon this question of the legal effect of the
filed tariffs and the consequent establish-
ment of the 70-cent rate the supreme [451]
court of Tennessee was clearly right It ap-
pears that the 70-cent rate was duly filed
by the Nashville, Chattanooga, & St. Louis
Railway Company with the Interstate Com-
merce Commission; that it became effective
upon March 5th, 1907; that ttie connecting
carrier, the Southern Railway, received the
tariff and stamped and filed it, and acted
upon it, insisting that 70 cents was the
legal rate, although permitting the Dayton
Cpmpany to make payments at the rate of
60 cents per ton. Such payments could not
have the effect to modify the right of the
parties to insist upon the legal rate as filed
and published. True, the Southern Rail-
way did not formally inform the initial
carrier of its acceptance of this tariff; nor
was this necessary. United States y. New
York C. k H. R. R. Co. 212 U. S. 509, 5S
I L. ed. 629, 29 Sup. Ct. Rep. 313. This prac-
tice of acceptance without formal notice
2St U. 8.
1916.
CHICAGO & A. R. 00. V. WAGNER.
451, 462
reeognised by the Interstate Commerce
Commfwion, as appears by its orders set
oat in the record, until the order of the
Commission in May, 1907, requiring accept-
ance to be specifically given and certified
to the Commissicm, thus avoiding the con-
fusion and misunderstandings which arose
under the former practice.
That it is essential to the maintenance of
uniform rates and the avoidance of rebates
and preferential treatment that the tariff
rates filed with the Commission according
to the interstate oommerce act» while in
force, shall be the only rates which the car-
rier may lawfully receive or the shipper
pn^>erly pay is too thoroughly settled by
the former decisions of this court to require
further discussion. The principle is stated
and many previous cases in this court cited
in a case decided at the last term, — ^Louis-
▼iDe & N. R. Co. v. Maxwell, 237 U. S. 94,
97, 98, 59 L. ed. 853, 865, L.ILA.1915E,
666, P.U.R.1916C, 300, 35 Sup. Ct. Rep.
494.
It follows that the Supreme Court of
Tennessee did not err, in so far as any
Federal right is involved, in the judgment
rendered dismissing the bilL
Affirmed.
[462] CHICAGO & ALTON RAILROAD
COBiPANY, Plff. in Err.,
V.
JOSEPH M. WAGNER.
(See S. a Reporter's ed. 462-468.)
Error to state oonrt ^ Federal question
— release of one Joint tort feasor.
1. The contention that an agreement by
a railway employee that his acceptance of
''benefits for injury" from a railway com-
pany's relief department shall release the
company from all liability for damages grow-
ing out of such injury, athough it may be
Note. — On the general subject of vn'its
of error from United States Supreme Court
to state courts — see notes to Martin v. Him-
ter, 4 L. ed. U. S. 97; Hamblin v. Western
Land Co. 37 1m ed. U. S. 267 ; Re Buchanan,
39 L. ed. U. S. 884; and Kipley ▼. Hlinois,
42 L. ed. U. S. 998.
On what questions the Federal Supreme
Court will consider in reviewing the judg-
ments of state courts — see note to Mis-
souri ex rel. Hill v. Dockery, 63 L.R.A. 671.
As to the effect of release of one joint
tort feasor on liability of other — see note to
Abb V. Northern P. R. Co. 58 L.RA. 293.
On the constitutional^^, application, and
effect of the Federal empkr^ers' liabili^ act
—see note to Lainphere v. Oregon R. & Nav.
Co. 47 LJI.A.(NJ.) 38; Seaboard Air Line
R. Co. V. Horton» LJLA. 1916C, 47.
•0 L. ed.
invalid as to such company under the Fed-
eral employers' liability act of April 22, 1908
(36 Stat, at L. 65, chi^. 149, Comp. Stat.
1913, 1 8661), S 6, operates to discharge an-
other railway company as a joint tort feasor
from its common-law liability, presents no
Federal question which may be reviewed by
the Federal Supreme Court on writ of er-
ror to a state court, where the latter court
held that the release, being invalid as to the
employing company, was not available as
a defense to the other company.
[For other cases, see Appeal and Error, 2072->
2128, in Digest Sup. Ct; 1908.]
Joint tort feasors — release of one ^
effect of employers' liability act.
2. An agreement by a railwav employee
that his acceptanee of "benefits lor injury"
from the railway company's relief depart-
ment shall release the company from all
liability for damages growing out of such
injury, which would 1^ invalid as to the
employing company imder the Federal em-
ployers' aability act of April 22, 1908 (35
Stat, at L. 66, chap. 149, Comp. Stat 1913,
I 8601), § 5, if sued under that act by an
employee engaged at the time of injury in
interstate commerce, must also be deemed
invalid in an action by such employee
against another railway company which, be-
cause of such agreement, seeks to escape its
common-law liability for the injury on the
theory that it was a joint tort feasor, and
that the release of one joint tort feasor is
the release of all, since it is impossible to
determine whether the employing company
is discharged except by determining what
would happen were it sued.
[Matters as to joint tort feasors, see Joint
Creditors and Debtors, in Digest Svp. Ct.
1908.1
[No. 376.]
Submitted November 29, 1915. Decided De-
cember 20, 1915.
IN ERROR to the Supreme Court of the
State of Illinois to review a judgment
which affirmed a judgment of the Appellate
Court of that state for the First District,
modifying, and affirming as modified, a
judgment of the Superior Court of Cook
County in favor of plaintiff in a personal-
injury suit. Affirmed.
See same ease below, 266 111. 245, 106 N.
E. 809, Ann. Cas. 1916A, 778.
The facts are stated in the opinion.
Messrs. Silas H. Strawn, Sdward W.
Brerett, and J. Sidney Condit submitted
the cause for plaintiff in error:
Section 6 of the employersj liability act
is inapplicable in this case because plaintiff
was not an employee of defendant.
Robinson v. Baltimore 4 O. R. Co. 237
U. S. 84, 69 L. ed. 849,. 36 Sup. Ct. Rep.
491, 8 N. C. C. A. 1; Missouri, K. 4 T.
R. Co. V. West, 232 U. S. 682, 68 L. ed. 796,
34 Sup. Ct Rep. 47L
454, 455
SUPREME CX)URT OF THE UNITED STATES.
Got. Tkbic
Section 5 of the employers' liability act
does not invalidate a release, resultant to
a joint tort feasor from the acceptance of
relief benefits under a relief contract.
Robinson v. Baltimore &. 0. R. Co. supra.
The misapplication of § 5 of the em-
ployers' liability act» and th& denial of
plaintiff's asserted construction thereof, pre-
sent a Federal question giving this court
jurisdiction.
Seaboard Air Line R. Ck). v. Horton, 233
U. S. 492, 499, 58 L. ed. 1062, 1068, L.R^.
101 5C, 1, 34 Sup. Ct. Rep. 635, 8 N. C. C.
A. 834, Ann. Cas. 1915B, 475; St. Louis,
I. M. k S. R. Co. v. McWhirter, 229 U. S.
265, 57 L. ed. 1179, 33 Sup. Ct. Rep. 858;
St. Louis, I. M. & S. R. Co. v. Taylor, 210
U. S. 281, 292, 52 L. ed. 1061, 1066, 28
Sup. Ct. Rep. 616, 21 Am. Neg. Rep. 404;
Seaboard Air Line R. Co. v. Tilghman, 237
U. S. 499, 59 L. ed. 1069, 35 Sup. Ct. Rep.
653; Toledo, St. L. & W. R. Co. v. Slavin,
236 U. S. 454, 59 L. ed. 671, 35 Sup. Ct.
Rep. 306; Seaboard Air Line R. Co. v. Pad-
gett, 236 U. S. 668, 59 L. ed. 777, 35 Sup.
Ct. Rep. 481; Southern R. Co. v. Crockett,
234 U. S. 725, 58 L. ed. 1564, 34 Sup. Ct.
Rep. 897; Missouri, K. & T. R. Co. v. West,
232 U. 8, 682, 58 L. ed. 795, 34 Sup. Ct.
Rep. 471; Nutt v. Knut, 200 U. S. 12, 19,
50 L. ed. 348, 852, 26 Sup. Ct. Rep. 216;
McCormick y. Market Nat. Bank, 165 U.
S. 538, 41 L. ed. 817, 17 Sup. Ct. Rep.
433; El Paso & N. E. R. Co. v. Gutierrez,
215 U. S. 87, 54 L. ed. 106, 30 Sup. Ct.
Rep. 21; Straus v. American Publishers'
Asso. 231 U. S. 222, 58 L. ed. 192, L.R.A.
1915A, 1099, 34 Sup. Ct. Rep. 84, Ann. Cas.
1915 A, 369; Houston & T. C. R. Co. t.
Texas, 177 U. S. 66, 67, 44 L. ed. 673, 674,
20 Sup. Ct. Rep. 545; Buel v. Van Ness, 8
Wheat. 312, 321, 5 L. ed. 624, 626; Mat-
thews V. Zane, 4 Cranch, 382, 2 L. ed. 654.
Where the highest court of the state
assumes that the record sufficiently presents
for its decision a question of Federal right,
this court will take jurisdiction.
Mallinckrodt Chemical Works v. Missouri,
238 U. S. 41, 59 L. ed. 1192, 35 Sup. Ct.
Rep. 671; Chambers v. Baltimore &. O. R.
Co. 207 U. S. 142, 148, 52 L. ed. 143, 146,
28 Sup. Ct. Rep. 34; San Jos^ Land k Water
Co. V. San Jo84 Ranch Co. 189 U. S. 177, 47
L. ed. 765, 23 Sup. Ct. Rep. 487; Montana
ex rel. Haire v. Rice, 204 U. S. 291, 51 L.
ed. 490, 27 Sup. Ct. Rep. 281; Home for
Incurables v. New York, 187 U. S. 157,
47 L. ed. 118, 63 L.R.A. 320, 23 Sup. Ct.
Rep. 84; Missouri, K. & T. R. Co. ▼. Elliott,
184 U. S. 530, 46 L. ed. 673, 32 Sup. Ct.
Rep. 446.
Mr. James C. McShane submitted the
cause for defendant in error:
The state court's holding that plaintiff's |
S80
acceptance of benefits from the Burlington
relief department did not operate as a re-
lease, or satisfaction, to defendant, does not
present a Federal question.
Seaboard Air Line R. Co. v. Duvall, 225
U. S. 477-488, 56 L. ed. 1171-1176, 32 Sup-
Ct. Rep. 790; Waters-Pierce Oil Co. ▼.
Texas, 212 U. S. 86, 53 L. ed. 417, 29 Sup.
Ct. Rep. 220; Chesapeake & O. R. Co. v.
McDonald, 214 U. S 191, 53 L. ed. 963, 29
Sup. Ct. Rep. 546; F. G. Oxley Stave Co.
V. Butler County, 166 U. S. 648, 41 L. ed.
1149, 17 Sup. Ct. Rep. 709.
The release was void as between the' par-
ties to it, and, consequently, it could not
operate as a valid release to defendant.
McMullen v. Hoffman, 174 U. S. 654, 43 L.
ed. 1123, 19 Sup. Ct. Rep. 839; 6 R. C. L. §
215, p. 819.
Mr. Justice Hughes delivered the opin-
ion of the court:
Joseph M. Wagner brought this action
in the superior court of Cook county,
Illinois, against the Chicago &. Alton Rail-
road Company to recover damages tor in-
juries alleged to have been sustained
through its negligence. At the time of the
accident, he was employed by the Chicago,
Burlington, & Quincy Railroad Company as
a conductor in charge of a switching crew,
and was engaged in moving cars over a
track of the Chicago & Alton Railroad Com-
pany in Chicago, — ^the track being used by
the Burlingtcm company under an arrange-
ment with the Alton company. He was in-
jured by striking a semaphore post which,
as he alleged, was in dangerous proximity
to the track. The Burlington company was
not a party to the suit. In defense, tho
Alton company proved that Wagner was a
member of the relief department of the
Burlington company, to which the em-
ployees of that company made monthly
contributions, and that in his agreement
with that company it was provided that his
acceptance "of benefits for injury" should
operate ''as a release and satisfaction
of all claims against said company and
all other companies associated there-
with in the administration of their
relief departments, for damages aris-
ing from or growing out of said injury.**
The Alton company was not thus associated
with the Burlington company, and the re-
lease by its terms did not run to it. But it
was insisted that the Burlington company
was a [455] joint tort feasor with the Al-
ton company, and hence that release to the
former would operate to discharge the latter.
It was found by the state court that after
the injury Wagner had accepted from the
relief fund of the Burlington company the
sum of $1,231 as benefits, and that there
239 U. S.
Jllo.
CHICAGO & A. R. CO. v. WAQN£R.
46(M157
hftd been paid in his behalf for hospital
bills, etc., $1,349.59; and it was further
found that the contribution of the Burling-
ton company did not exceed 15 per cent of
this amount, or $387.09. In rebuttal (and
over the defendant's exception) Wagner
introduced evidence that at the time of the
accident he was engaged as the employee of
the Burlington company in interstate com-
merce, and he contended that the agreement
for the release of that company through ac-
ceptance of benefits from the relief fund wa^
invalid under § 5 of the employers' liability
set (35 Stat, at L. 65, chap. 149, Com p. Stat.
1913; § 8661). The trial court refused to
Ifive a peremptory instruction in favor of
the Alton company, and also denied a re-
quest to instruct the jury, in substance,
that if it found that Wagner had accepted
ptyment from the Burlington company in
tttisfaction of his claim against that com-
pany arising from the injury, such accept-
ance would be a bar to this action against
the Alton company. The court did charge
that if the Alton company was found to be
guilty, it should not be credited with any
amn which the Burlington company had
paid. To these rulings the Alton Company
excepted. A verdict was rendered against
it for $15,000, and judgment was entered
accordingly. The appellate court, first dis-
trict, required a remittitur of $387.09, the
amount found to have been contributed by
the Burlington company to the benefits re-
eeived, and affirmed the judgment for the
remainder.' 180 111. App. 196. And the
judgment for the reduced amount was af-
firmed by the supreme court of the state.
^ 111. 245, 106 N. £. 809, Ann. Cas. 1916A,
778.
The jurisdiction of this court is invoked
upon the ground that, in refusing to give
effect to the release, the state court mis-
eonstrued § 5 of the employers' liability
[456] act.i St. Louis, I. M. & S. R. Co. v.
Taylor, 210 U. S. 281, 293, 52 L. ed. 1061,
1067, 28 Sup. Ct. Rep. 616, 21 Am. Neg. Rep.
464; St. Louis, I. M. & S. R. Co. v. Mc-
Whirter, 229 U. S. 265, 275, 57 L. ed. 1179,
1185, 33 Sup. Ct. Rep. 858.
The action was not brpught under that
act. There were allegations in the original
declaration to the efi'ect that Wagner, at
the time of the injury, was engaged in
interstate commerce as an employee of the
Burlington company, but it seems to have
been agreed upon the trial that 'the action
was not governed by the Federal statute;
and this indeed was manifest, as the Bur-
lington company was not a party to the
action, and the Alton company was not the
plaintiff's employer. Robinson v. Baltimore
4 O. R. Co. 237 U. S. 84, 91, 59 L. ed. 849,
851, 35 Sup. Ct. Rep. 491, 8 N. C. C. A. 1.
It was tried as a common -law action on
the case.
It was also undisputed that the Alton
company was not a party to the contract for
release, or associated in the Burlington's
relief department.. Section 5 of the Fed-
eral act has plainly no application to re-
leases given to those who are not employers
(Robinson v. Baltimore & O. R. Co.
supra), and wc do not understand that
there was any contention or ruling to the
contrary in the state court. The Alton
company simply claimed the benefit of the
release to the Burlington company upon the
ground that the Burlington company was a
joint tort feasor. But the rule invoked,
that the release of one joint tort feasor is a
release of all, is a rule of the common law,
— in this case, of the [457] common law of
Illinois. Chicago v. Babcock, 143 111. 358,
366, 32 N. £. 271. That is, assuming that
the Burlington company was the employer,
and that the contract for its discharge from
liability for this injury through the ac-
ceptance of benefits from ita relief depart-
ment was invalid under § 5 of the employ-
ers' liability act, the question whether that
release, thus invalid as against the Burling-
ton company, would operate to discharge the
Alton company as a joint tort feasor from
its common-law liability, was not, and we
do not find that it was held to be, a matter
of Federal law. The supreme court of the
state said upon this point, after stating
that there was no valid release to the plain-
tiff's employer: "If it" (the release) "was
not valid so far as the Burlington company
was concerned, it was clearly invalid as to
the plaintiff in error, and constituted no
defense to this action." This, as we view
it, was but to say that the release could
not aid the Alton company for the very
plain reason that the alleged joint tort
feasor had not been discharged. The state
law did not recognize the discharge of the
defendant by virtue of a release of a joint
^This section is as follows:
"Sec. 6. That any contract, rule, regula-
tion, or device whatsoever, the purpose or
intent of which shall be to enable any com-
iion carrier to exempt itself from any lia-
bility created by this act, shall to that ex-
tent be void : Provided, That in any action
brought against any such common carrier
40 L. ed.
under or by virtue of any of the provisions
of this act, such common carrier may set off
therein any sum it has contributed or paid
to any insurance, relief benefit, or indemni-
ty that may have been paid to the injured
employee or the person entitled thereto on
account of the injury or death for which
said action was brought."
457-460
SUPREME COURT OF THE UNITED STATES.
Oor. TMaM,
tort feasor which, under the law applicable
thereto, wai found to be without validity.
The only Federal question which it can
be said was decided was with respect to the
validity of the release as between Wa^er
and the Burlington company. It is urged
that § 5 was wholly inapplicable in an
action brought against a third person to
enforce a liability not created by the Fed-
eral act. The argument is, in substance,
that in this action against the Alton com-
pany, inasmuch as it is not brought to en-
force the liability imposed by the Federal
statute, § 5 cannot be considered for any
purpose; that is, that under § 5 the release
can be decmpd to be invalid only so far as it
is actually used to protect the Burlington
company from liability in a suit against it
under the act. This involves, we think, a
fundamental misconception. It is, of course,
impossible to determine [458] whether a
joint tort feasor is discharged except by
asking what would happen if he were sued.
The liability created by the act arose when
the injury was received, and it is clear tliat
if it was received while Wagner was en-
gaged in interstate commerce, his acceptance
of benefits under the relief contract would
not bar an action against his employer.
Philadelphia, B. & W. R. Co. v. Schubert,
224 U. S. 603, 613, 56 L. ed. Oil, 016, 32
Sup. Ct. Rep. 580, 1 N. C. C. A. 802.
When, therefore, the Alton company sought
to escape from liability, otherwise exist-
ing under the state law, by reason of
a release to the Burlington company, it was
entirely competent for the plaintiff to
show the nature of his employment and
that the asserted release was within the
Federal statute, and could not operate
as a discharge of the Bui'lington com-
pany with respect to the injury sus-
tained. And the state court found upon
abundant evidence that Wagner was en-
gaged as an employee of that company in
interstate commerce when he was hurt.
There was thus no misconstruction of the
Federal act in holding that the contract
between Wagner and the Burlington com-
pany, and his acceptance of benefits there-
under, did not release the latter from lia-
bility for the injury, and that under § 5
that company, assuming it to be a joint
tort feasor, would merely have the right to
set off any sum which it had contributed to
the benefits received; and there was no de-
nial by the state court of any Federal right
in declining to treat the relief contract,
and the acceptance of benefits, as a dis-
charge of the Alton company.
Judgment affirmed.
sss
[459] INTER-ISLAND STEAM NAVIGA-
TION COMPANY, Limited, Plff in Err.,
▼.
J. J. BYRNE and Daniel Kaleikl.
(See S. C. Reporter's ed. 450-463.)
Execution — exemptions ^ seamen**
wages.
Ihe exemption of seamen's wages
from attachment, given by the act of June
7, 1872 (17 SUt. at L. 2&Z, chap. 3^,
Comp. Stat. 1013, § 8287), § 61, re-enacted
as U. S. Rev. Stat. § 4536, Comp. Sut.
1013, § 8325, was repealed as to seamen en-
gaged in the coastwise trade by the pro-
visions of the act of June 0, 1874 (18 Stat,
at L. 64, chap. 260, Comp. Stat. 1013, §
8201), that none of the provisions of the
earlier act "shall apply to sail or steam
vessels engaged in the coastwise trade."
[For other cusea, see Execution, II. a, in Di-
gest Sup. Ct. 1008.J
[No. 288.]
Submitted November 20, 1015. Decided De-
cember 20, 1015.
IN ERROR to the Supreme Court of the
Territory of Hawaii to review a judg-
ment which affirmed a judgment of the
District Court of Honolulu in favor of
plaintiff in a garnishment suit. Affirmed.
See same case below, 22 Haw. 160.
The facts are stated in the opinion.
Mr. Charles R. Hemenway submitted
the cause for plaintiff in error. ' Mr. S. W.
Sutton was on the brief.
Messrs. Frank E. Thompson and John
W. Cathcart submitted the cause for de-
fendants in error.
Mr. Justice McReynolds delivered the
opinion of the court:
Defendant in error Byrne brought suit
against Kaleiki in the district court of Hon-
olulu and served the navigation company
with a garnishee summons in accordanoe
with the local statute. Answering, the com-
pany set up that Raleiki was hired direct-
ly by it (not through a shipping commis-
sioner) as a mate on the "Claudine," ply-
ing only in the interisland coast trade, and
asked a discharge because of the exemption
from attachment of seamen's wages by S
4536, Revised Statutes of the United States
(Comp. Stat. 1013, § 8326). The trial
court held that subsequent legislation ex-
cluded seamen engaged in such coastwise i
[460] trade from the exemption, and ren- "
dered judgment against both Kaleiki and J
Note. — As. to exemption of seamen's wages ^
from attachment — see note to Tod y. Ken- -^
tucky Union R. Co. 18 IJEtJL SIO.
9St V.
1915.
JNTERISIAND STEAM NAV. CO. v. BTRNE.
460-462
the company. This action waa aflSnned by
the lapreme court of the territory of Hawaii
(22 Haw. 160), and the cause is here upon
writ of error.
By a comprehensive act containing sixty-
eight sections, approved Jime 1, 1872, and
entitled, "An Act to Authorize the Ap-
pointment of Shipping Commissioners by the
Several Circuit Courts of the United States,
to Superintend the Shipping and Discharge
of Seamen Engaged in -Merchant Ships Be-
longing to the United States, and for the
Further Protection of Seamen/' chap. 322,
17 Stat, at L. 262, Comp. Stat. 1913, §
8287. Congress prescribed regulations con-
cerning the employment, wages, treatment,
and protection of seamen. Section 61 reads
aa follows: "That no wages due or accru-
ing to any seaman or apprentice shall be
■ubject to attachment or arrestment from
any court; and every payment of wages
to a seaman or apprentice shall be valid in
law, notwithstanding any previous sale or
assignment of such wages, or of any attach-
ment, encumbrance, or arrestment thereon;
and no assignment or sale of such wages,
or of salvage made prior to the accruing
thereof, shall bind the party making the
same, except such advanced securities as
are provided for iii this act." Without
material modification in language, this be-
came § 4536 of the Revised Statutes ( Comp.
Stat 1913, § 8325), enacted into law June
22, 1874, with the following limitation —
S 5601 Comp. Stat. 1913, § 10,598):
"The enactment of the said revision is
not to affect or repeal any act of Con-
gress passed since the 1st day of De-
cember one thousand eight hundred and
seventy-three, and all acts passed since that
date are to have full effect as if passed aft-
er the enactment of this revision, and so
far as such facts vary from, or conflict with
any provision contained in said revision,
they are to have effect as subsequent stat-
utes, and as repefiling any portion of the
revision inconsistent therewith."
The act of June 9, 1874, chap. 260, 18
Stat at L. 64, Comp. Stat 1913, § 8291, "in
reference to the operations of the shipping
oommissioners' act, approved [461] June
■eventh, eighteen hundred and seventy-two,"
provided: "That none -of the provisions
of an act entitled 'An Act to Authorize the
Appointment of Shipping Commissioners
by the Several Circuit Courts of the United
States to Superintend th6 Shipping and Dis-
charge of Seamen Engaged in Merchant
Ships Belonging to the United States, and
for the Further Protection of Seamen' shall
apply to sail or steam vessels engaged in the
cosstwise trade, except the coastwise trade
between the Atlantic and Pacific coasts,
or in the lake-going trade touching at for-
€0 Ii. ed.
eign ports or otherwise, or in the trade be-
tween the United States and the British
North American possessions, or in any case
where the seamen are by custom or agree-
ment entitled to participate in the profits
or result of a cruise, or voyage."
The understanding of Congress concern-
ing the effect of the repealing act of 1874
is indicated by subsequent legislation re-
ferred to below.
Section 2 of an act approved June 19,
1886, chap. 421, 24 Stat at L. 79, Comp.
Stat. 1913, § 8138, specified that "shipping
commissioners may ship and discharge
crews for any vessel engaged in the coast-
wise trade ... at the request of the
master or owner of such vessel," etc.
"An Act to Amend the Laws Belative to
Shipping Commissioners," approved August
19, 1890, chap. 801, 26 Stat at L. 320, Comp.
Stat 1913, § 8293, declared that when a
crew is shipped by a shipping commissioner
for any American vessel in the coastwise
trade, as authorized by § 2, act of 1886
above, an agreement shall be made with
each seaman in the same manner as pro-
vided by §§ 4511 and 4512, Rev. Stat Comp.
Stat. 1913, §§ 8300 and 8302 (both from the
act of 1872) ; and it further provided that
other sections of the Revised Statutes (not
including § 4536), also originally in the act
of 1872, shall extend to and embrace such
vessel to the same extent as if mentioned
therein.
By an act approved February 18, 1895,
chap. 97, 28 Stat, at L. 667, Comp. Stat.
1913, § 8293, [462] the act of 1890, supra,
was so amended as to render applicable to
seamen in the coastwise trade when shipped
by a shipping commissioner certain other
sections of the Revised Statutes, including
§ 4536, from the act of 1872; and it fur-
ther provided, "but in all other respects
such shipment of seamen and such ship-
ping agreement shall be regarded as if both
shipment and agreement had been entered
into between the master of a vessel and a
seaman without going before a shipping
commissioner: Provided, That the cloth-
ing of any seaman shall be exempt from
attachment"
Tlie act of March 8, 1897, chap. 389, 29
Stat, at L. 687, 689, Comp. Stat 1913,
S^§ 8293, 8296, amends the foregoing act
of 1895 by adding another section of the
Revised Statutes to those therein enumer-
ated.
Plaintiff in error maintains : "The words
in the act of 1874 'none of the provisions
. . . shall apply to said or steam vessels
engaged in the coastwise trade' are apt in
their application to many of the sections
in the act of 1872, as, for example, §§ 4511
to 4519, inclusive (Comp. Stat 1913,
t9
462, 463
SUPREME COURT OF THE UNITED STATES.
Oot. TtMM,
8300-8310). These words are not such as
would be expected it § 4536 (Comp. Stat.
1913, § 8325) was intended to be referred
to, for there is nothing in that section which
applies to vessels or the duties of masters
and owners under the shipping commission-
ers' act. As we view it, § 4536 remained
unaffected by the act of 1874, neither spe-
cifically nor by reasonable implication re>
pealed as to seamen in the coastwise trade."
The fundamental purpose of the act of
1872 was to afford protection to seamen in
respect to their treatment and wages. The
act of 1874 by its express terms rendered
the provisions of the earlier act inapplica-
ble to vessels in the ordinary coastwise
trade (United States v. The Grace Lothrop,
05 U. S. 527, 632, 24 L. ed. 514, 515), and
the suggested narrow construction would
tend to defeat the particular end in view, —
the relief of vessels making relatively short
[463] voyages, with frequent opportunities
for reaching ports, from burdensome require-
ments not then deemed essential to the wel-
fare of seamen employed thereon. Certain-
ly, we think, the provisions in the act of
1872 having direct reference to wages (in-
cluding those in § 4536, Rev. Stat. Comp.
Stat. 1913, § 8325), because of their inti-
mate connection with the navigation of
vessels, must be considered as applicable
thereto and therefore included within the
scope of the amendment of 1874. Subse-
quent legislation clearly indicates that Con-
gress entertained this view. It would be
difficult to account for the acts of 1886,
1890, 1895, and 1897, supra, upon any other
tlieory.
The particular point now presented was
reserved in Wilder v. Inter-Island Steam
Nav. Co. 211 U. S. 239, 245, 53 L. ed. 164,
20 Sup. Ct. Rep. 58, 15 Ann. Cas. 127. It
has become of less importance since the act
of March 4, 1915, chap. 153, 38 Stat, at L.
1164, 1169, wherein the provisions of § 61
of the act of 1872 were re-enacted.
The judgment of the court below is af-
firmed.
CATHERINE C. REESE, Administratrix
of the Estate of Garrett Tracy Reese,
Deceased, Plff. in Err.,
V.
PHILADELPHIA ft READING RAILWAY
COMPANY.
(See S. C. Reporter's ed. 463-466.)
Appeal — withdrawing case from jury
— when not error.
The conclusions of the two lower
courts that the evidence was insufficient to
<*arry to the jury the question of negligence
in an action for death brought under the
SS4
Federal employers' liability act of April
22, 1908 (35 Stat, at L. 65, chap. 149,
Comp. Stat. 1913, § 8657), will not be dia-
turbed by the Federal Supreme Court where
the evidence shows that the deceased, a ea*
pable, experienced fireman in a night switch-
ing crew operating in a properly lighted
yard, who was acquainted with the condi-
tions, was icilled by coming in contact with
a freight car standing on a parallel track
while, with his engine in motion, he was at-
tempting, about midnight, to procure drink-
ing water at a tap on the side of the tender
at a point in the vard where both tracks
were occupying a highway, and were closer
together than the standard distance.
[For other cases, see Appeal and Brror, Yin.
m, 6; TrUl, VI. b, In Digest Sup. Ct. 1908.]
[No. 608.]
Argued December 1, 1915. Decided Decem-
ber 20, 1915.
IN ERROR to the United States Circuit
Court of Appeals for the Third Circuit
to review a judgment which affirmed a judg-
ment of the District Court for the Eastern
District of Pennsylvania, granting a non-
suit in an action brought under the Fed-
eral employers' liability act. Affirmed.
See same case below, 140 C. C. A. 060,
225 Fed. 518.
The facts are stated in the opinion.
Mr. George Denuning argued the canae
and filed a brief for plaintiff in error:
Inasmuch as the next duty to be per-
formed by the engine was to pull a train of
loaded cars from the Noble street yard to
Berks street, which hauling was part of
the journey or trip of this train of can,
and of which train of cars two cars' were
destined to points outside the state, and
the engine was actually on itb road to per-
form this duty, the engine and its crew,
including the dead fireman, were engaged in
interstate commerce.
Pedersen v. Delaware, L. ft W. R. Co.
229 U. S. 146, 57 L. ed. 1125, 33 Sup.
Ct. Rep. 648, 3 N. C. C. A. 779, Ann. Gas.
1914C, 153; St. Louis, S. F. ft T. R. Co.
V. Scale, 229 U. S. 156, 57 L. ed. 1129,
33 Sup. Ct. Rep. 651, Ann. Cas. 1914C, 156;
Norfolk ft W. R. Co. v. Earnest, 229 U. 8.
114, 57 L. ed. 1096, 33 Sup. Ct. Rep. 654,
Ann. Cas. 1914C, 172; North Carolina R.
Co. V. Zachary, 232 U. S. 248, 58 L. ed.
591, 34 Sup. Ct. Rep. 305, 9 N. C. C. A.
109, Ann. Cas. 1914C, 159; New York C.
ft H. R. R. Co. V. Carr, 238 U. S. 260, 60
Note. — On the constitutionality, appliea-
tion, and effect of the Federal employers'
liability act — see notes to Lamphere v. Ore-
gon R. ft Nav. Co. 47 L.R.A.(N.S.) 38; and
Seaboard Air Line R. Co. v. Horton, L.RJL
1915C, 47.
aS9 V. 8.
1915.
BEE8B V. PHILADELPHIA 4 K. B. GO.
li. ed. 1298, 35 Sup. Ct. Rep. 780, 0 N. C.
C. A. 1.
Although A munidpality, under excep-
tional circumstances, can require a railroad
to replace its two tracks in a crowded street
with one track (Baltimore v. Baltimore
Trust & G. Co. 166 U. S. 673, 41 L. ed.
1160, 17 Sup. Ct. Rep. 696), yet it would
iiecm to be clearly beyond its police power
to attempt to regulate railroad tracks on
a public street in such a way as to en-
danger the life and limb of railroad em-
ployees. Ihis would be injustice and op-
pression, and tiierefore unlawful.
New York & N. E. R. Co. v. Bristol, 151
U. S. 556, 38 L. ed. 269, 14 Sup. Ct. Rep.
437.
If a local or municipal regulation, ordi-
nance, direction, or supervision did require
the placing of tracks so close together as
to violate the standard of safety, such local
or municipal regulation, ordinance, direc-
tion, or supervision would be improper, un-
lawful, and unenforceable, because it would
be imposing an arbitrary and imreasonable
requirement upon interstate commerce.
Chicago, B. ft Q. R. Co. ▼. Railroad Com-
mission, 237 U. S. 229, 59 L. ed. 931, P.U.R.
1915C, 309, 35 Sup. Ct. Rep. 560.
Such a regulation, if it did exist, would
be an unfair one, and an imreasonable exer-
cise of the police power, in that it would
deny the railroad employees the equal pro-
tection of the law guaranteed by the 14th
Amendment of the Federal Constitution,
and therefore could not be sustained and
should not be obeyed.
Atchison, T. ft S. P. R. Co. ▼. Vosburg,
238 U. S. 56, 59 L. ed. 1199, L.R.A.1915E,
953, 35 Sup. Ct. Rep. 675; Great Northern
R. Co. V. Minnesota, 238 U. S. 340, 59 L.
ed. 1337, P.U.R.1915D, 701, 35 Sup. Ct.
Rep. 753; Southwestern Teleg. ft Teleph.
Co. V. Danaher, 238 U. S. 482, 59 L. ed.
1419, L.R.A.1916A, 1208, P.U.R.1915D, 571,
35 Sup. Ct. Rep. 886; Chicago, M. ft St. P.
R. Co. V. Wisconsin, 238 U. S. 491, 59 L.
ed. 1423, L.R.A.1916A, 1133, P.U.R.1915D,
706, 35 Sup. Ct. Rep. 869.
It might be pleaded that to properly con-
struct and maintain the tracks on this
street and thereby safeguard the lives and
limbs of employees would involve great ex-
pense. But it has been held that a railroad
cannot escape a duty by pleading the ex-
pense of its performance.
Chicago, B. ft Q. R. Co. v. Railroad Com-
mission, supra.
A railroad company is bound to anticipate
and to provide against that which is a
regular custom or habit of its employees in
the line of their duties. A normal response
with that duty, so far as responsibility of
the employer is concerned.
26 C^c. 1250; Taylor, B. ft H. R. Co.
V. Taylor, 79 Tex. 104, 23 Am. St. Rep.
316, 14 S. W. 918; Keenan v. Flemington
Coal Co. 40 Scot L. R. 144, 5 Sc. Sess. Cas.
5th Series, 164, 10 Scot. L. T. 409 ; Blovelt
V. Sawyer [1904] 1 K, B. 271, 73 L. J.
K. B. N. S. 155, 68 J. P. 110, 52 Week. Rep.
503, 89 L. T. N. S. 658, 20 Times U R. 105,
6 W. C. C. 16; Elliott v. Rex, 6 W. C. C.
27; Jarvis v. Hitch, — Ind. App. — , 65
N. E. 608; Birmingham Rolling Mill Co. v.
Rockhold, 143 Ala. 115, 42 So. 96; Neice
V. Farmers' Co-Op. Creamery ft Supply Co.
90 Neb. 470, 133 N. W. 878; Houston ft T.
C. R. Co. V. Turner, 99 Tex. 547, 91 S. W.
562; 1 Bradbury, Workmen's Compensation
Cases, pp. 419-452 inclusive; also footnotes
to Milwaukee v. Althoff, 4 N. C. C. A. 122 ;
Heldmaier v. Cobbs, 96 111. App. 315, 105
111. 172, 62 N. E. 853 ; Thomas v. Wisconsin
C. R. Co. 108 Minn. 485, 23 LJC.A.(N.S.)
954, 122 N. W. 456; Carnegie Steel Co. v.
Rowan, 30 Ohio C. C. 202; Adams v. South-
ern R. Co. 166 Ala. 449, 51 So. 987.
Where a railroad company for nine years
without objection permitted its employees
to ride on its engines and the steps there-
of in the discharge of their duties, it was
held to be charged with knowledge of their
custom in doing so, and negligent in per-
mitting obstructions so close to the track
as to strike such employees.
Heilig V. Southern R. Co. 152 N. C.
469, 67 S. E. 1009.
It is thoroughly competent and proper to
prove the custom, usage, and continuous
practice of employees, and both the master
and servant are bound thereby.
Prescott V. Ball Engine Co. 176 Pa. 459,
53 Am. St. Rep. 683, 35 Ati. 224.
Where it is customary for the brakemen
to ascend to and descend from the tops of
the cars by the side ladders instead of the
end ladders, a railroad company is negligent
if it permits obstructions so close to the
tracks as to strike them In so doing.
Georgia P. R. Co. v. Davis, 92 Ala. 300,
25 Am. St. Rep. 47, 9 So. 252; Chicago
ft I. R. Co. V. Russell, 91 111. 298, 33 Am.
Rep. 54; Allen v. Burlington, C. R. ft N.
R. Co. 57 Iowa, 623, 11 N. W. 614; Sisco
V. Lehi^ ft H. R. R. Co. 76 Hun, 582, 27
N. Y. Supp. 671; Texas ft P. R. Co. v. Hohn,
1 Tex. Civ. App. 36, 21 S. W. 942 ; Riley v.
West Virginia C. ft P. R. Co. 27 W. Va.
145; Central Trust Co. v. East Tennessee,
V. ft G. R. Co. 73 Fed. 661.
The nonsuit altered by the lower court
cannot be sustained upon the ground of the
assumption of risk on the part of the de-
to a call of nature, while on duty, is en- j ceased fireman.
tirely proper, and inseparably connected Stewart v. Central R. Co. 235 Pa. 811, 84
60 L. ed. 25 S9^
464, 466
SUPKEME COURT OF THE UNITED STATES.
Oct. TtMM,
AtL 38; Dwyer v. St. Louia & S. F. R. Co.
62 Fed. 87 ; West v. Chicago, B. ft Q. R. Co.
103 C. C. A. 293, 170 Fed. 801; Chesa-
peake & 0. R. Co ▼. Cowley, 02 C. C. A.
201, 166 Fed. 283; Chicago, M. ft St. P.
R. Co. v. Donovan, 87 C. C. A. 600, 160
Fed. 826; San Francisco ft P. S. S. Co.
V. Carlson, 89 C. C. A. 45, 161 Fed. 861
(low appliance) ; Pennsylvania R. Co. v.
Jones, 60 C. C. A. 87, 123 Fed. 753 (ab-
sence of bumper) ; Pittsburgh, S. ft N. R.
Co. V. Lamphere, 69 C. C. A. 542, 137 Fed.
20 (low trestle) ; Gila Valley, G. ft N. R
Co. V. Lyon, 203 U. S. 465, 51 L. ed. 276,
27 Sup. Ct. Rep. 146 (defective buffer) ; 26
Cyc. 1240, 1250; Norfolk ft W. R. Co. ▼.
Beckett, 90 C. C. A. 25, 163 Fed. 479; Choc-
taw, O. ft G. R. Co. V. McDade, 191 U. 8.
64, 48 L. ed. 96, 24 Sup. Ct. Rep. 24, 15 Am.
Neg. Rep. 230; Seaboard Air Line R. Ck). v.
Horton, 233 U. S. 492, 68 L. ed. 1062, LJt.A.
1915C, 1, 34 Sup. Ct. Rep. 635, 8 N. C. C.
A. 834, Ann. Cas. 1915B, 475; Harvey v.
Texas ft P. R. Co. 92 C. C. A. 237, 166 Fed.
385, affirmed in 228 U. S. 310, 5J L. ed. 862,
33 Sup. Ct. Rep. 518; Texas ft P. R. Co.
V. Swearingen, 196 U. S. 61, 49 L. ed.
382, 25 Sup. Ct. Rep. 164, 17 Am. Neg.
Rep. 422; Louisville ft N. R. Co. v. Lank-
ford, 126 C. C. A. 247, 200 Fed. 321.
With all the inferences which might be
deduced from the testimony, there are sev-
eral views, at least, which can be properly
taken of the facts in the case, which would
completely exonerate the dead fireman of
all blame from negligence, as well as as-
sumption of risk.
Kreigh v. Westinghouse, C. K. ft Co. 214
U. S. 249, 53 L. ed. 984, 29 Sup. Ct. Rep.
619; Choctaw, O. ft G. R. Co. v. McDade,
191 U. S. 64, 48 L. ed. 96, 24 Sup. Ct. Rep.
24,, 15 Am. Neg. Rep. 230; Gardner v.
Michigan C. R. Co. 150 U. S. 349, 37 L.
ed. 1107, 14 Sup. Ct. Rep. 140; Deserant v.
Cerillos Coal R. Co. 178 U. S. 409, 44 L.
ed. 1127, 20 Sup, CJt. Rep. 067, 20 Mor. Min.
Rep. 673; Norfolk ft W. R. Co. v. Earnest,
229 U. S. 114, 57 L. ed. 1090, 33 Sup.
Ct. Rep. 654, Ann. Cas. 1914C, 172; Chi-
cago R. I. ft P. R. CJo. V. Brown, 229 U.
S. 317, 319, 321, 57 L. ed. 1204-1206, 33
Sup. Ct. Rep. 840, 3 N. C. C. A. 826 ; Sea-
board Air Line R. Co. v. Tilghman, 237
U. S. 499, 59 L. ed. 1069, 35 Sup. Ct Rep.
653; Central Vermont R. Co. v. White, 238
U. S. 507, 60 L. ed. 1433, 35 Sup. Ct. Rep.
865, 0 N. C. C. A. 265; Richmond ft D. R.
Co. V. Powers, 140 U. S. 43, 45, 37 L. ed.
042, 043, 13 Sup. Ct. Rep. 748, 7 Am. Neg.
Cas. 369; Texas ft P. R. Co. v. Harvey, 228
U. S. 319, 57 L. ed. 852, 33 Sup. Ct. Rep.
518.
S8«
Mr. William Clarke Mason argued the
cause, and, with Mr. Charles Heebner, filed
a brief for defendant in error:
The record is barren of sufficient evidence
.upon which to sustain a verdict based upon
negligence on the part of the railway com-
pany.
Baltimore ft 0. R. Co. v. Newell, 116 C.
C. A. 428, 196 Fed. 866.
Mr. Justice McReynolds delivered the
opinion of the court:
Relying upon the Fctleral employers' lia^
bility act, plaintiff in error brought salt
against the railway company in the district
court to recover damages for her husband's
death, alleged to have resulted from the
negligent and improper construction and
maintenance of its tracks in too close prox-
imity to each other.
At the conclusion of plaintifTs testimony,,
the trial court, finding '*no evidence of
negligence or neglect to provide him [the
employee] with a safe place to work as to
the act he was performing at that time,''
entered a nonsuit and afterwards refused to
take it off. This was aflirmcd by the circuit
court of appeals (140 C. C. A. G60, 22i>
Fed. 518) upon the ground tliat the rail-
road ''did not fail in its duty to provide
the deceased with a reasonably safe place
to work;" and the sole question for our
consideration is whether any other con-
clusion could be legitimately drawn front
the facts disclosed.
[465] For use in shifting freight cars
and making up trains, the defendant main-
tains as a part of its Xoble street yard, two
parallel tracks running north and south
along Front street, Philadelphia, from which
other tracks, curves, and turnouts lead into
different freight sheds, warehouses, etc.
These were located and are maintained
under an ordinance of the city accord in<^ to
plans duly approved by its officials. At and
near the place of the accident the street ia
almost entirely occupied by tliero. Tlic
distance between such north and south
tracks is much less than the general stand-
ard adopted by the company, and box cara
moving thereon have barely enough roon>
to pass. These conditions are obvious and
have existed for fifteen years or more.
Deceased was a capable, experienced fire-
man in a night switching crew operating in-
the yard, whicli was properly lighted, and
acquainted with the general conditions de-
scribed. The cause was tried upon the^
theory that about midnight, November 18,
1912, while his engine was moving 5 milea
per hour along one of the parallel tracks,
he attempted to procure drinking water at
a tap in the side, near the bottom, and ^
feet from the front of the tender; that \rt
as9 u. s^
1913.
UKITGD STATES v. HAUBUBGAUERIKANISCHE CO.
doiDg 10 his body was extended ouUide tbt
line of both tender and engine and crushed
bj conUct with K freight ear itanding on
tlie Other parallel track; and that the rail-
way negligently constructed and maintained
these tracks too near each other.
The rule ia welt settled that a railroad
company is not to be held as guarantying or
varranting absolute safety to its employees
under all circumatances, but la bound to
e\cTci»e the care which the exigency reaaon-
alily demands in furnishing proper roadbed,
traeka, and other structorea. A failure to
ciereiso such care constitutes negligence.
L'nioo P. B. Co. t. O'Briea. 181 U.
S. 1S1, 45T, 40 L, ed. 766, 770, 16 Sup.
Ct Rep. 61B; Choctaw, 0. A O. R. Co. r.
McDade, 101 U. S. 64, 67, 4S L. ed. 96, 100,
24 Sup. Ct. Rep. 24, 15 Am. Neg. Rep. 230;
Myers v. Pittsburgh Coal Co. S33 U. S. 184,
Ifil, 58 L. ed. S08, 010, 34 Sup. Ct. Rep. 650.
A railroad yard [466] where traina arc made
up neceaaarily lias a great number of tracks
and switcliea close to one another (Randall
». Baltimore 4 O. R. Co. 100 U. S. 478, 482,
27 L. cd. 1003, 1005, 3 Sup. Ct. Rep. 322) ;
and certainly the mere existence of such
conditiona is not enough to support an in-
ference of negligence where, as here, it ia
n<>cesaBry to utilize a public street. Both
the District Court and the Circuit Court of
Appeals felt constrained to hold the eri-
denee insufTicicnt to carry the question of
negligence to the jury, and, having ex-
amined the record, wfe are unable to say
tlut they reached a wrong result. The
judgment is alErmcd.
Ifr. Justice Hnghca and Mr. Juatice
Pllmej are of the opinion that upon the
question of the defendant's negligence, — the
only question upon which the court below
ruled, — there wss sufficient evidence to go
to the jury, and therefore dissent.
pean War preventa the Federal SuproM
Court from deciding on the nerita an ap-
peal from a decree presenting the question
whether the provisions of the an ti -trust aet
of July 2, 1890 (26 Stat, at L. 200, chap.
647, Comp. But. 1013, 1 3B20), ara violated
by a combination of steamship companies t»
monopoliu Trans- Atlantic transportation..
(For other case*, sea Apiieil and Srror, VII.
1. 2. In Dlgeat Sup. C^ 1908.]
Evidence ^ Judicial notice ^ eslstcnco
of w«r.
2. The Federal Supreme Court takes
judicial notice of the existence of the prea-
ent European War.
[For otbcr cases, see Evldeuce. I. d, la Digest
Sap. Ct. 1908.]
Appeal — judcment — revcrslnc wltli-.
ODt prejndltw.
3. The Federal Supreme Court, inatead
of dismissing an appeal from a decree of a
Federal district court adverse to the gov-
ernment's contention that a combination of
steamship companies to monopolite Trans-
Atlantic transportation violates the anti^
truat act of July 2, 1890 (20 SUt. at L.
209, chap. 047, Comp. Stat. 1013, § B820),
because the controversy has become a moot
one in view of the Kuropean War, will re-
verse the decree and remand the case with
directions to dismiss the bill without preju-
dice to the right of the government in the
future to assail any actual contract or com-
bination deemed to oSend againat the anti-
USITED STATES OF AMERICA, Appt.,
HAMBURG- AM EHIKANISCHE PACKET-
FAHRT-ACTIEN GESELI^CHAFT et
aL, Appts.,
(See 8. C. Reporter'a ed. 466-178.)
Appeal — dismissal ^ moot cane.
J. The moot character of the contra- 1
versy beeauac of the existence of the Euro- '
to L. cd.
' [Nob. 288 and 332.]
Argued November 3 and 4, 1015. Decided
January 10, 1010.
CROSS APPEALS from the District Court
of the United States for the Southern
Diatrict of New York to review a decree
granting a portion only of the relief sought
by the United States ia a suit under the
anti-trust act againat Trans -Atlantic steam-
ship companies. Reversed and remanded,
wilJi directions to diamisa the bill without
prejudice.
See same case below, 216 Fed. 071.
The facts are stated in the opinion. 1
Assistant to the Attorney General G. I
Carroll Todd argued the cause, and, with |
Special Assistant to the Attorney General
Thurlow M, Gordon, Bled a brief for tha
United SUtea:
The esse has not become moot by reason
of the European War.
United Statea v. Trans-Miasouri Freight
Asso. 166 U. S. 290, 30S, 41 L. ed. 1007,
1016, 17 Sup. Ct. Bep. 840; Southern P.
Terminal Co. v. Interstate Commerce Com-
mission, 219 U. 8, 408, 65 L. ed. 310, 31
Note. — As to judicial notice — see note to
live v. State, 4 L.R.A. 33.
468, 469 SUPREME COURT OF THE UNITED STATES. Oof. TkBM,
Sup. Ct. Rep. 279; Boise City Irrig. & Mr. Chief Justice While deliyered the
Land Co. t. Clark, 65 C. C. A. 309, 131 Fed. opinion of the court:
415; United States t. Prince Line, 220 Fed. The United States, on January 4th, 1911,
230. commenced this suit to prevent the further
ikf. ^^.«><Ba — jAv execution of an agreement to which the
Mr. Charles P. Spooner argued the , . , , ^' . a ^u:-.i. 'a
J — ai.u -».€ *^_ , ^»a defendants were parties and which it waa
cause, and, with Messrs. John C. Spooner , , ... J^ ., ^ . ,... _ . .^
JT T »•!. iiij X. • * £ Av charged constituted the foundation of an
aiid James L. Bishop, filed a brief for the .^^^j combination in violation of the
Hamburg-American Steamship Company et ^„^tru8t act (26 SUt. at L. 209, chap.
*^ 647, Comp. Stat 1913, § 8820). The reUef
Mr. liuciua H. Beers argued the cause, asked, moreover, in the nature of things
and, with Mr. Allan B. A. Bradley, filed a embraced certain subsidiary agreements
brief for the Cunard Steamship Company made during the course of the execution of
et aL the main contract, in furtherance of its al«
Mr. Charles C. Barllngham argued the >««*«» prohibited result The prineipa}
cause, and. with Mr. Roseoe H. Hnpper. ^v*^*" J^iofi k f I ^ >
llled a brirf for the Americw, Line et al.: f«''™'!7 ^'^^^]' ""* '*• >« «••""•«; '"
Among the parties are corporations of '"'«! *''*7»""'' *'* VT* , '"*k ""
i-i i. T> -i. ' f^ -D y '\^ J T>.. not later than December Ist of each year a
Great Britain, Germany, Belgium, and Rus- .. m j.x. - *. *,- *, ^ *.-
, . . ' / V * notice of the intention not to continue was
sia, countries now at war, by reason of r^ rk -.u o inin u^ ^..^- i . 4,
, , . ., A u • • i» i. i. given. On December 3, 1010, however, just
which the agreement, being in effect a part- ® _ 4,u v. t ^ *i,:- I..-* «.-- «i«j \u^
, . , . ® ., ' ** .. , '^, a month before this suit was filed, the
nership between these corporations, is abso- . ___-___x ^ Question was renewed for a
lutely at an end and all further transac- ^^^^J g^^ y^rs renewed for a
tions under it are void and illegal. All com- P^^^ ^J^ ^^^ argument on behalf of
mercal intercourse between these parties ^^^ ^^^ g^^^^ ^ statement of the corpo-
has been prohibited, as can be judicially ^^^ defendante to the bill, some of wh^
noticed. rr -^ a o^ t ic nr n ^^ become parties to the alleged illegal
Montgomery V. United States, 16 Wall, .^^^ination by subsidiary a^p^eement or
396, 21 L. ed. 97 ; United States v. Lapfene, ^^^^^^^^ ^A^ a* ^ later date than the
17 Wall. 601, 21 L. ed. 693, 7 Moore, Inter- ^^ff^rn^^TrJo!
.. , T V-,. a. J. OCA original contract,
national Law Dig. 244, 250. ^ ^r^y^^ ^jj^ j^^^ Steamship Company,
Thw court will not entertain moot cases limited, hereafter called the 'Allan Lin^'
or cases in which the issues have already ^ g^.^j^j^ corporation, operating from
been settled by Upse of time or otW^ Portland, Boston, and Philadelphia to
Richardson vMcChesney, 218 U. 8. 487, j^^^ Liverpool, and Glasgow and re-
54 L. ed. 1121, 31 Sup. Ct. Rep. 43; Buck's ^^^^ » r » -o
Stove & Range Co. V American Federation ^^^^^ g "International Mercantile Ma-
of Labor 219 U. 8. 681, 66 L. ed 345 31 ^^^ Company, a New Jersey corporaUon,
Sup. Ct. Rep. 472; Gompers v Buck's Stove operating from New York and PhiladelphU
t^!^ o?-T^l\^;^o1 o%:f^o\ a ^ ^ to Liverpool and Southampton and return.
797, 809, 34 L.R.A.(N^.) 874, 31 Sup. Ct 3 .j^^^ together with those of its
Rep. 492; Wmgert v. First Nat. Bank, 223 ^^^^i^^ company, defendant IntemaUon-
F.\®'t^.I?; ^^ « lo. TT ^o -h^F: al Navigation Company, Limited, also oper-
391; Little v. Bowery 134 U. S. 647, 33 ^4. ^^^^ ^^^ y^^k and Philadelphia to
L. ed. 1016, 10 Sup. Ct Rep. 620; Flour Liverpool and Southampton, ... are
Inspectors v. Glover, 160 U. S. 170, 40 L. referred to as the 'American Line.' Be-
ed. 382, 16 Sup. Ct. Rep. 321; California v. ^.^j^ International Navigation Company,
San Pablo & T. K Co. 149 U. S. 308, 37 L. Limited, it also controls through stock
cd. 747, 13 Sup. Ct. Rep. 876; San Mateo ownership the defendants British & North
County V. Southern P. R. Co. 116 U. S. 138, Atlantic Steam Navigation Company,
29 L. ed. 689, 6 Sup. Ct. Rep. 317; Mills Limited, Soci6t« Anonyme de Navigation
V. Green, 169 U. S. 661, 40 L. ed. 293, 16 g^jg^ Americaine, and Oceanic Steam Navi-
Sup. Ct. Rep. 132; Jones v. Montague, 194 g^^i^^ Company, Limited.
U. S. 147, 48 L. ed. 913, 24 Sup. Ct. Rep. 4. "British & North Atlantic Steam Navl-
611. gation Company, Limited, a British corpo-
Mr. Joseph Iiarocque argued the cause, ration, hereafter called the 'Dominion Line,'
and, with Messrs. William G. Choate and operating from Portland to Liverpool and
Nelson Shipman, filed a brief for the North '^®*"''"- .^^^ , ^ xt • *• « ,
German Lloyd et al. , ^' 7^^^^ ^T^" Navigation Beige
'' Americaine, a Belgian corporation, here-
Mr. Ralph James M. Bullowa filed a brief after called tlie *Red Star Line,' operating
for the Russian East Asiatic Steamship I from New York and Philadelphia to Ant-
Company et aL werp and return.
1915.
UNITED STATES v. HAMBURGAMERIKANISCHE Oa 469-478
6. "Oeemnie Steam Navigation Company,
Limited^ a British corporation, hereafter
eallcd the 'White Star Line/ operating
from New Yoric and Boston to Liverpool
and Southampton and return.
7. "The Anchor Line (Henderson Broth-
ers), Limited, a British corporation, here-
after called the 'Anchor Line,' operating
from New York to Glasgow and return.
8. "Canadian Pacific Railway Company,
a Canadian corporation, operating a regu-
lar line of steamships, hereafter called the
'Canadian Pacific Line,' from Montreal,
Quebec, and St. John in the Dominion of
Canada to Liverpool, England, and return.
It also owns and operates a transconti-
nental railroad which, partly through
branches running into the United States
and partly through connections with the
Wabash and other American railroads,
[470] transports a substantial proportion
(12 per cent) of its steamship passengers
to and from points in this country.
0. "The Cunard Steamship Company,
Limited, a British corporation, hereafter
called ttiB 'Cunard Line,' operating from
New York and Boston to Liverpool in Eng-
land, Fiume in Hungary, and Trieste in
Austria, and return.
10. "Hamburg-Amerikanische Packetfahrt-
Actien Gesellschafti a German corporation,
hereafter called the 'Hamburg-American
Line,' operating from New York to Ham-
burg and return.
11. "Nord Deutscher Lloyd, a German
corporation, hereafter called the 'North Ger-
man Lloyd Line/ operating from New York,
Baltimore, and Galveston to Bremen and
return.
12. "Nederlandsh-Amerikaansche Stoom-
vaart Maatschapij ( Holland- Amerika Lijn ) ,
a Netherlands corporation, hereafter called
the 'Holland-American Line/ operating be-
tween New York and Rotterdam and re-
turn.
13. "Russian East Asiatic Steamship
Company, a Russian corporation, hereafter
called the 'Russian-American Line,' oper-
ating between New York and Libau, Rus-
sia, and return."
The individuals named as defendants
were the principal officers and agents in
this country of the corporate defendants.
We extract from the argument on behalf
of the government the following statement
of the main provisions of the principal
agreement.
"(1) The parties guarantee to each
other certain definite percentages of the
entire steerage traffic carried by them both
eaatbound and westbound between Euro-
pemn ports and the United States and
Canada, except Mediterranean passengers.
"(2) Any line exceeding its allotment
•0 Ii. ed.
must pay into the pool a compensation
price of £4 for each excess passenger, which
sum is to be paid proportionately to the
line or lines [471] which have not carried
their full quota. It is expressly stated that
this provision 'forms one of the main fea-
tures of the entire contract'
"(3) Each line must make a weekly re-
port of the number of steerage passengera
carried, and from these the secretary of the
pool compiles weekly statements showing
the pool position of each line. He also pre-
pares each month provisional accounts of
the compensation due from lines which
have exceeded their quota. This must be
paid immediately on pain of heavy penal-
ties. Final settlements are made at the
end of each year.
"(4) Each line undertakes to arrange its
rates and service in such manner that the
number of steerage passengers it actually
carries shall correspond as nearly as pos-
sible with the number allotted to it by the
contract. If any line exceeds its proportion
it is in duty bound to adopt measures
calculated to bring about a correct adjust-
ment. The other lines may either await the
action of the individual line, or a majority
of the lines representing 75 per cent of the
pool shares can immediately order rates on
a plus line to be raised or rates on a minus
line to be lowered, and from this order
there is no appeal. It is expressly stated,
however, that 'all parties were unanimous-
ly of the opinion that the adjustment is,
whenever practicable, to be effected not by
reducing the rates of one line, but, on the
contrary, by raising the rates of one or
several of the lines. i
"(5) No line has the right to alter its
steerage rates without having previously
informed the secretary; i. e., all lines are
bound to maintain existing rates until the
other pool members are notified.
"(6) No circulars or publications shall
be issued by any line reflecting upon or
instituting comparisons with any other
conference line unfavorable to the latter,
and no party shall support (advertise in) .
any newspaper which shall systematically
attack any conference line. I
"(7) To insure the faithful performance
of the agreement, [472] each line deposits
with the secretary a promissory note in the
amount of £1,000 for each per cent of traffic,
allotted to it in the pool. From this
amount penalties may be collected ranging
from £250 for smaller infractions to the
forfeiture of the entire deposit if the line
withdraws from the agreement before its
expiration, refuses to pay compensation
money, or assists directly or indirectly any
opposition line. {
"(8) New lines may be admitted or th«
472-474
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
terms of the agreement altered only by
unanimous vote, unless otherwise provided
in the contract.
"(0) To assist in the carrying out of the
agreement a secretary was appointed.
*'(10) Regular meetings are to be held
alternately at London and Cologne for the
purpose of carrying out this agreement and
agreements collateral thereto. These meet-
ings constitute what is called the Atlantic
Conference.
"Representatives of the Atlantic Confer-
ence Lines likewise meet in New York in
what is called the American Atlantic
Conference or New York Conference."
It is to be observed in addition that the
agreement expressly provided that the
withdrawal of any one of the lines from the
contract should release all others from all
future obligation unless the others agreed
among themselves to continue.
To the elucidation of the view we take of
the case it suffices to say that, as the re-
sult of the answers of the defendants, the
issues which arose for decision were two-
fold in character: Did the anti-trust act
relate to the business of ocean transporta-
tion with which the assailed agreement and
those subsidiary to it were concerned; and
if so, did the agreements and the conduct
of the defendants under them constitute a
violation of the provisions of the anti-trust
act?
The court below, although deciding that
the ocean [473] transportation covered by
the main agreement was under the control
of the anti-trust act, yet held that the as-
sailed contract and the action of the parties
under it were not within the terms of the
act, and therefore that the complaint of the
government on that subject was without
foundation. The court, however, concluded
that a certain subsidiary agreement which
had been entered into in the process of the
execution of the original agreement had
given rise to a practice which was rep-
robated by the anti-trust act, and the
further execution of such agreement and the
carrying out of the practice under it were
by the decree forbidden. The court reached
these conclusions upon opinions formed
concerning the nature and character of
ocean transportation with which the agree-
ment was concerned, the evils which had
existed in the traffic and which it was the
purpose of the agreement to remedy, the
practice of the commercial world in dealing
with such transportation in the past, the
benefit which had resulted to commerce
from the execution of the agreement, the
reflex light thrown upon its intent and
object by the reaisonable rates which had
been applied in its execution, and many
other conditions which had come to pass as
890
a result of the agreement, tending to the
amelioration of the conditions of steerage
travel and the resulting benefaction to the
safety, comfort, and health of the millions
of human beings traveling by steerage, to
which class of traffic alone the contract re-
lated. 21G Fed. 071.
The contentions which presumably were
urged in the court below and which it ia
deemed by the parties here arise for de-
cision will at once appear by giving a brief
statement concerning those made on thia
appeal by the United States and by the de-
fendants as appellees or on a cross appcaL
On behalf of the United States it is insisted
that the provisions of the anti-trust act
govern the subject, that the terms of the
agreement constitute a plain violation of
tliat act, that the conduct of the parties
under [474] it adds additional force to the
considerations arising from the text of the
contract, since it demonstrates that the
purpose of the agreement was to destroy
competition, to acquire dominion over ratets
and to fix them as the result of monopoly,
and that it is wholly irrelevant to inquire
whether, in executing the wrongful powers
which were acquired by the contract, the
parties were beneficent in their action, since
what the act forbids is the monopoly and
the combination for the purpose of obtain-
ing monopoly, and there is no distinction
in the act between a good monopoly and a
bad one. On the other hand, the conten-
tions of the defendants are as follows:
First, that, conceding the power, it is not
to be assumed, in the absence of express
declaration to that effect, that the purpose*
of Congress in the anti-trust act was to
extend its authority into foreign countries
to prevent the execution in such countries
of contracts which were there legal and
and which were intended, in view of tiie
conditions there prevailing, to better enable
the discharge by ocean carriers of their
duty. Second, that it appears from subse-
quent legislation of Congress that it was
not its intention to deal with ocean trans-
portation from and to foreign countries by
the anti-trust act, since such transportation
was dealt with in subsequent legislation in
a manner which persuasively leads to such
conclusion. Chap. 349, §§ 73-77, 28 Stat,
at L. 570, Comp. Stat. 1913, §§ 8831-8835 ;
chap. 11, § 34, 30 Stat, at L. 213; Joint
Resolution, 38 Stat, at L. 779. Third, that
in fully investigating and considering the
question whether ocean transportation to
and from foreign countries was included in
the anti-trust act, in an elaborate report a
committee of the House of Representatives
had expressed conclusions in conflict with
the view that the act did apply, and had
recommended the adoption of legislation to
239 U. 8.
1915.
UNITED STATES v. HAMBURGAMERIKANISCHE CO. 474-477
fotrd agminst evils in such trafllc, if any,
tnd which legislation, if adopted, would be
in a large sense incompatible [475] with
the conclusion that the anti-trust act was
applicable to such transportation.
While this mere outline shows the ques-
tions which are at issue and which would
require to be considered if we had the right
to decide the controversy, it at once fur-
ther demonstrates that w^ may not, without
disregarding our duty, pass upon them be-
cause of their absolute want of present
sc'tuality ; that is, because of their now moot
character as an inevitable legal consequence
springing from the European War which
is now flagrant,— ra matter of which we
take judicial notice. Montgomery v. Unit-
ed SUtes, 15 Wall. 395, 21 L. ed. 97;
United States v. Lap^ne, 17 Wall. 601, 21
L. ed. 693, 7 Moore, Int. Law Dig. 244, 250.
The legaUproposition is not in substance
controverted, but it is urged, in view of
the character of the questions and the possi-
bility or probability that, on the cessktion
of war, the parties will resume or recreate
their asserted illegal combination, we should
now decide the controversies in order that
by operation of the rule to be established
any attempt at renewal of or creation of
the combination in the future will be ren-
dered impossible. But this merely upon a
prophecy as to future conditions invokes the
exercise of judicial power not to decide an
4^xisting controversy, but to establish a
rule for controlling predicted future con-
duct, contrary to the elementary principle
which was tlius stated in California v. San
Pablo k T. R. Co. 149 U. S. 308, 314, 37 L.
ed. 747, 748, 13 Sup. Ct. Rep. 876:
'The duty of this court, as of every ju-
dicial tribunal, is limited to determining
rights of persons or of property which are
actually controverted in the particular
case before it. When, in determining such
rights, it becomes necessary to give an
opinion upon a question of law, that opinion
may have weight as a precedent for future
decisions. But the court is not empowered
to decide moot questions or abstract
propositions, or to declare, for the govern-
ment of future cases, principles or rules of
law which cannot affect the result as to the
thing in issue [476] in the case before it.
No stipulation of parties or counsel, whether
in the case before the court or in anv othdr
case, can enlarge the power, or aflfect the
duty, of the court in this regard."
See also Lord Veazie, 8 How. 251, 12 L.
ed. 1067; Cheong Ah Moy v. United States,
113 U. S. 216, 28 L. ed. 983, 6 Sup. Ct. Rep.
431; Little v. Bowers, 134 U. S. 547, 33 L.
•0 li. ed.
ed. 1016, 10 Sup. Ct. Rep. 620; Jones v.
Montague, 194 U. S. 147, 48 L. ed. 013, 24
Sup. Ct. Rep. 611; Security Mut. L. Ins.
Co. V. Prcwitt, 200 U. S. 446, 50 L. ed. 546,
26 Sup. Ct. Rep. 314; Richardson v. Mc-
Chesney, 218 U. S. 487, 54 L. ed. 1121, 31
Sup. Ct. Rep. 43; Stearns v. Wood, 236 U.
S. 75, 50 L. ed. 475, 35 Sup. Ct. Rep. 229.
Our attention has indeed been directed
to a recent decision in United States t.
Prince Line, 220 Fed. 230, where, al-
though it was recognized that "the combi-
nation against which this proceeding is
directed, composed of two British and two
German steamship companies, has been
practically dissolved as a result of the
European War," and 'the questions present-
ed "have become largely academic," the
court nevertlieless proceeded to consider and
dispose of the case on the merits, observing
in conclusion, however: "In view of the
fact that the logic of events has turned this
investigation into an autopsy, instead of a
determination of live issues, it seems un-
necessary to discuss the persuasiveness of
the proofs," etc. But we cannot give our
implied sanction to what was thus done or
accept the persuasiveness of the reasoning
upon which the action was based, in view
of the settled decisions of this court to the
contrary, and the fundamental principles of
public policy upon which they are based.
In fact, at this term, although we were
pressed to take jurisdiction of a cause in
a capital case after the death penalty had
been inflicted on the accused, we declined to
do so and dismissed for want of jurisdic-
tion because the case had become a moot
one. Director of Prisons v. Court of First
Instance, 230 U. S. 633, post, 478, 36 Sup.
Ct. Rep. 220.
Nor is there anything in United States ▼.
Trans-Missouri Freight Asso. 166 U. S. 290,
41 L. ed. 1007, 17 Sup. Ct. Rep. 540, and
Southern Pacific Terminal Co. v. Interstate
Commerce Commission, 219 U. S. 498, 55 L.
ed. 310, 31 Sup. Ct. Rep. 270 [477] which
conflicts with this fundamental doctrine. In
the first, the Trans-Missouri Case, a combi-
nation between railroads, charged to be
illegal, was by consent dissolved, and it
was held that, in view of the continued
operation of the railroads and the relations
between them, their mere consent did not
relieve of the duty to pass upon the pending
charge of illegality under the statute of
their previous conduct, since by the mere
volition of the parties the combination
could come into existence at any moment.
Leaving aside some immaterial diflferences.
in terms the ruling in the Southern Paciflc
477» 478 SUPREME COURT OF
Case was baaed upon the decision in the
Trans-Missouri Case. Here, on the con-
trary, the business in which tiie parties to
the combination were engaged has, by force
of events beyond their control, ceased, and
by the same power and a continued relation
concerning it between them has become un*.
lawful and impossible. The difference be-
tween this and the Trans-Missouri Case was
clearly laid down in Mills t. Green, 169 U.
S. 651, 40 L. ed. 293, Id Sup. Ct Rep. 132,
where, after announcing the general rule
as to the absence of authority to consider
a mere moot question, and referring to
possible exceptions resulting from the fact
that the want of actuality had arisen either
from the consent of the parties or the action
of a defendant, it was declared: "But if
the intervening event is owing to the plain-
tiff's own act or to a power beyond the con-
trol of either party, the court will stay its
hand."
Although it thus follows that there are
no issues on the merits before us which we
have a right to decide, it yet remains to be
determined what our order should be with
reference to the decree below rendered,
which, as we have seen, was against the
government and in favor of the assailed
combination because it was found not to be
within the prohibitions of the anti-trust
act. As established by the ruling in South
Spring Hill Gold Min. Co. v. Amador
Medean Gold Min. Co. 145 U. S. 300, 30
L. ed. 712, 12 Sup. Ct Rep. 921, our con-
clusion on such subject must be reached
without at all considering the merits of the
cause, [478] and must be based solely upon
determining what will be "most consonant
to Justice" in view of the conditions and
circumstances of the particular case.
Coming to consider the question in that
light, and in view of the nature and char-
acter of the conditions which have caused
the case to become moot, we are of opinion
that the ends of justice exact that the judg-
ment below should not be permitted to
stand when, without any fault of the
government, there is no power to review it
upon the merits, but that it should be re-
versed and the case be remanded to the
court below with directions to dismiss the
bill without prejudice to the right of the
government In the future to assail any
actual contract or combination deemed to
offend against the anti-trust act.
And it ia so ordered.
Mr. Justice McReynoIds took no part in
the consideration or decision of these oases.
THE UNITED STATES.
Oot. Twkm,
MYLES SALT COMPANY, Limited, Plff.
in Err.,
V.
BOARD OF COMMISSIONERS OF THE
IBERIA k ST. MARY DRAINAGE DIS-
TRICT and George Henderson, Sheriff
and £x-officio Tax Collector of the Par-
ish of Iberia.
(See S. C. Reporter's ed. 478-485.)
Error to state ooart — Federal question
— validity of state law as adminis-
tered.
• 1. The contention that a state law as
administered and justified by the highest
court of the state violates the Federal Con-
stitution presents a Federal question which
will support a writ of error from the Feder-
al Supreme Court to the state court, al-
though the state law as written is not
attacked.
[For other cases, see Appeal and Error, 1645-
1672. in Digest Sup. Ct. 1808.] .
Constitutional law — due process ot
law — drainage district ^ inclndini:
land not benefited.
2. An island which, being high land,
is not, and cannot be, benefited directly or
indirectly by a drainage improvement, may
not, consistently with the due process of
law clause of U. S. Const., 14th Amend., be
included within the drainage district sole-
ly fot the purpose of deriving a revenue
from the levy and collection of drainage
taxes thereon for the benefit of other lands
subject to be improved by drainage.
[For other cases, see Constitutional Law,
661-581, in Digest Sup. Ct. 1808.]
[No. 141.]
Argued December 16, 1915. Decided Jan*
uary 10, 1916.
IN ERROR to the Supreme Court of the
State of Louisiana to review a decree
which affirmed a decree of the District
Note. — On the general subject of writs of
error from United States Supreme Court to
state courts — see notes to Martin v. Hun-
ter, 4 L. ed. U. S. 97; Hamblin v. Western
Land Co. 37 L. ed. U. S. 267 ; Re Buchanan,
30 L. ed. U. S. 884; and Kipley v. lUinoia
42 L. ed. U. S. 998.
As to what adjudications can be brought
up for review in the Supreme Court of the
United States by writ of error to those
courts — see note to Apex Transp. Co. v.
Garbade, 62 L.R.A. 513.
As to what constitutes due process of law,
generally — see notes to People v. O'Brien,
2 L^RJl, 255; Kuntz v. Sumption, 2 L.ILA.
655; Re Gannon, 5 L.R.A. 350; Ulman ▼•
Baltimore, 11 L.R.A. 224; Gilman v. Tuck-
er, 13 L.R.A. 304; Pearson v. Yewdall, 24
L. ed. U. S. 436 ; and Wilson v. North Caro-
lina, 42 L. ed. U. S. 865.
On necessity of special benefit to sustain
assessments for local improvements — see
note to Re Madeira Irrig. Dist. 14 LJLA,
755.
SS9 V. 8.
UYLEB SALT CO. t. BD. OP COMUISBIOHIEBB.
land tor drKinage Uxm. Reveried and »• Mlsaonrl P. S. Co. t. Flt^erald, 160 U.
■uidad loT further proceedingi. 8. 666, 40 L. cd. fi36, 16 Sup. Ct. Rep. 38V.
Sm ume CAW below, 134 Ia. SOS, M Hie question propounded ll nob Federal,
Bo. 823. bnt one td be determined by tbe lani of
1 be facta are stated in tbe opinion. Louisiana. Under tbe Uv of Louiaiana. th«
Mr. EdKW H. F.rrar ai«ued tb. cam* ■'=**'>'' "' *^' leglalatiYO body In the eier-
Ud flirf a brief for plainUS in error: ^^'^ <•' **» di^wetioa u to what property
Tbe drainagB tax waa in the nature of a "'"U ^ included in a. drainage dietrict will
beal aMesament, baaed on aome benefit to ■"•' *^ Inquired Into by the court, except
tke properly tued. Tbia ia the law of "P*"" 'Pec'"! aMnnent of fraud, which waa
LouUian*. "''* pl«*ded.
Levee Comre. ». Lorio Broa. 33 La. Ann. ^ GraTelle t. Iberia t St. M. Drainage
«76: Chamocl: t. Fordoehe ft G. T. SpecUl ^'"'- ^^ ^- "3, 28 So. 802; Burguierea r.
Leree Diet. 38 La. Ann. 323; Williams t. Sanders, HI La. 110, 36 Bo. 4T8; Kelly *.
Bayou Sale Drainace Dirt. 130 Ia. 9ffl>, 68 Chadwick, 104 La. 719, 29 Bo. 286; Bernard
Sfc 847. •■ Bayou Portage Drainage Dirt. 180 I*.
The aboTo ia the rule to be applied in- the
837, 68 So. 4S3.
t of the 14th Amendment to the ■""" »TP™ent that benefit to the property
Conatitution of the United Statea, where '" "■• •"'= **•" °P°" "'"''* **•" *"" """W
the aeUon of a state in asseaaing such a ** justified, and, that there wai, therefore,
Uz U arbitrary and conflacatory. * *"'n8 "' property without due process of
Norwood V. Baker, 172 U. S. 280, 43 L, ^^- ^«» ""*- '" **•" •beenee of aTcrmenta
•d. 443, 10 Sup. Ct. Rep. 187; French y. ""* ^'" *" '* **"'8 ^"''^ *" contraven-
Barber Asphalt Paving Co. 181 U. S. 324, *'"'' °* **" '*"• "' *^« ***** "' Louisiana, or
« L. ed. 879. 21 Sup. Ct. Rep. 025; Ton- that the laws of Louisiana i
«wud» v. I^yon. 181 U. S. 380, 46 L. ed. ^,^^ Constitution of the I
908, 21 Sup. Ct Rep. BOB; Cau Farm ^'^^"H * Federal question into the case lor
Co. T. Detroit, 181 U. S, 396, 45 L. ed. ^«i«ion.
914, 21 Sup. Ct. Hep. 644; Detroit t. New Orleans t. New Orleans Waterworks
Parker, 181 V. S. 3B0, 46 L. ed. fil7, 21 Sup. Co- "2 U. 8. 79, 36 L. ed. 843, 12 Sup. Ct
Ct Bep. 624; Union Refrigerator Tranait ^"P' "*! ^""'"B ^- I*^"""- B' U. S. 694.
Co. T. Kentucky, 199 U. 8. 194, 50 L. ed. ^^ ^- «"■ 388; Brown t. Atwell, 92 U. S.
ISO, 26 Bup. Ct. Hep. 36, 4 Ann. Caa. 493. ^^^- ^^ ^- «''■ >"' Church t. Kel»ey, 121
And the supreme wnrt of Louisiana it«lf V'^-^^fj ="^ \ "^: •'™; \ ^up Ct. Hep.
applied this doctrine in a drainage case 887; California Powder Works t. Davis, 161
Wh^ the property in one part of a distrirt U. 8. 389, 38 L ed. 208, 14 Sup. Ct Hep.
waa being taxed for the sole benefit of prop- " •
er^ in another part of the district „ ^o give thie court jurisdiction nnder U.
Williame v. Bayou Sale Drainage Diet "■ ^'"- ^tat. i 708, several things ahonld
130 La 869 G8 So 847 ^ apparent front tbe record; the first is
The 'prop^ilion that' legislative dlsore- that thqre was a Federal question involved
tien in delimiting a district within which '""^ determination ; that a decision of the
local assessments are to be levied can if *'ederal question was necessary to the de-
•xercieed in an arbitrary and cooilscstory "'''°'' °' ">« ">«* »"* "" actually decided
way. and that courts have no authority to ^^' *'*'* <*""?■ , „
right the wrong, is distinctly repudUted by Chouteau v. Gibson, 111 U. S. ZOO, 28 L.
thia court in Norwood v. Baker, 172 U. S. «''■ *""' ^ ^up. Ct. Rep. 340; Dibble t. Bel-
268. 43 L. ed. 443, 10 Sup. Ct. Rep. 187, ''ngham Bay Land Co. 183 U. 8. 68. 41
and Union Refrigerator Transit Co. v. L. ed. 74, 16 Sup. Ct. Bep. 938; Meyer v.
Kentucky, 180 U. 8. 184, 50 L. ed. 160, Riclunond, 172 U. S. 100, 43 L. ed. 381, 18
28 Sup. Ct. Rep. 30, 4 Ann. Cas, 493. Sup. Ct Rep. 106.
The peculiar facts of this esse, as averred If it appear from the record that s Fed-
tn the plaintilT's petition, constitute a tsk- oral question was directly involved, so that
ing of property without due process of law, s state court could not have given judg-
ta flagrant and as manifest as that in the ment without deciding it, that would be
Norwood Case. sufficient; but resort cannot be had to the
Mr. L. T. Dulan; argued the csuse snd expedient of importing into the record the
filed a brief for defendants in error: legislation of the state as Judicially known
The judgmmt of the supreme court of the to ita courts, snd holding the vslldity ot
state rests entirely upon an independent I such legislation to have been drawn into
question of pleadings under the laws of question and decision necessarily rendered
•0 L. ed. «««
479-181
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
tliereoii in arriving at concluBions actually
presented and considered.
Powell v.* Brunswick County, 150 U. S.
433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 160.
The only issue raised by the pleadings
and passed upon by the state court is one
to bo determined under the laws of Louisi-
ana; and the issue and judgment are in no
manner affected by the allegations that
plaintiff's property is being taken without
due process of law, in contravention of the
Federal Constitution, when the averments
of the petition are insufficient to maintain
an attack upon the tax, which is not com-
plained of as being in violation of the Con-
stitution and laws of the state, and where
•no averment is made that the Constitution
and laws of Louisiana are repugnant to, or
in contravention of, the protective provi-
sions of the Federal Constitution.
Capital City Dairy Co. v. Ohio, 183 U.
8. 238, 248, 46 L. ed. 171, 170, 22 Sup.
Ct. Rep. 120.
The decision of the supreme court of Lou-
ifiana, affirming the decision of the trial
court, and maintaining the exception of no
cause of action, is based entirely upon the
settled jurisprudence of the state as an-
nounced by the supreme court in a number
of cases, all consistent with the jurispru-
dence of the Supreme Court of the United
States, as announced in French v. Barber
Asphalt Paving Co. 181 U. S. 324, 45 L.
sd. 870, 21 Sup. Ct. Rep. 625; Norwood v.
Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup.
Ct. Rep. 187; DeGravelle v. Iberia ft St.
M. Drainage Dist. 104 La. 703, 29 So. 302;
Burguieres v. Sanders, 111 La. 110, 35 So.
478; Bernard v. Bayou Portage Drainage
Dist. 130 La. 637, 58 So. 493 ; Moody ft Co.
▼. Chadwick, 108 La. 66, 32 So. 181 ; Kelly
▼. Pittsburgh, 104 U. S. 78, 26 L. ed. 658;
Kirtland v. Hotchkiss, 100 U. S. 401, 498,
400, 25 L. ed. 558, 562; Fallbrook Irrig.
Dist. v. Bradley, 164 U. S. 112, 41 L. ed.
360, 17 Sup. Ct. Rep. 56; Spencer v. Mer-
chant, 125 U. S. 345, 31 L. ed. 763, 8 Sup.
Ct. Rep. 021; Kelly v. Chadwick, 104 La.
710, 20 So. 205.
Mr. Justice McKenna delivered the opin-
ion of the court:
Suit to restrain the sale of plaintiff in
error's land about to be made, it is alleged,
by defendants in error, to collect a tax of
6 mills for four years, aggregating the sum
of $2,000 and penalties. (We shall refer
to the parties as plaintiff and defendants,
respectively, that being their relation in
the state courts.)
There is no dispute about the state laws.
It is stated in plaintiff's brief that it is a
matter of ordinary 'geographic knowledge
that large portions of the flat lands in
3»4
Louisiana adjacent to the Gulf coast are
subject to fluvial or tidal overflow and must
be leveed and drained by systems of gen-
eral and special public levees and drains.
To this end [480] legislation has been en-
acted, beginning in 1888 and receiving con-
stitutional sanction in 1808 (art. 281). By
an act passed in 1900 (Acts of 1900, p. 12)
previous statutes were consolidated and it
was provided that when the drainage of any
locality was such that, in the opinion of
the police juries of the respective parishes,
it should become necessary to organize or
create a drainage district composed partly ,
of land situated in adjoining parishes, then
such drainage district should be created by
joint action of the police juries of the re-
spective parishes.
The districts were authorized to issue
bonds for drainage purposes and levy a 5-
mill tax on all property subject to taxa-
tion situated in them. The statute was
amended in details and re-enacted in 1002
and 1010 (Acts of 1002, p. 203; Acta of
1010, p. 542).
Acting under these statutes the police
juries of the adjoining parishes of Iberia and
St. Mary organized the drainage district
with which the case at bar is concerned,
and the organization of which is attacked.
The ground of the attack is that the
district for the construction and mainte-
nance of which the tax was levied was of no
benefit to plaintiff's land and was formed
only for the benefit of the other lands,
was an unconstitutional usurpation of au-
thority, and was and is an effort to take
plaintiff's property without due process of
law, in violation of the 14th Amendment to
the Constitution of the United States.
The case was heard upon the petition in
the case and an exception by defendants of
no cause of action. The court dissolved
the injunction that had been theretofore
granted and dismissed the suit with an
»ward of costs and attorneys* fees. Judg-
ment was entered accordingly and sustained
by the supreme court of the state.
The trial court held that the gist of plain-
tiff's demand was to the effect that no bene-
fit was or would be derived by its property
by the general drainage system and the levy
[481] and collection of tiie tax on its prop-
erty. The court said the question presented
by the demand was no longer an open one.
The principle laid down by the courts, it
was declared, is that the ereation and deter-
piination of drainage districts being a l^it-
imate and lawful exercise of discretionary
powers, the courts are without power to
impugn or inquire into motives "where no
fraud is pleaded." The supreme oourt af-
firmed the action of the district court and
the principle upon which it was based, aay-
189 U. 8.
1915.
MYLES SAI-T CO. v. BD. OF C0M311SSI0NERS.
481-483
ing tlimt that court accepted the view as
comet "that the decisions heretofore ren-
dered lettle the question forever, that the
local authorities as to drainage have the ab-
solute right to organize drainage districts
and give them shape and boundary lines
as they choose." And it was further said:
"It is upon that theory that the case is be-
fore us for decision; . . • without an
element of fraud alleged, the court properly
dismissed the suit. . . . Here no fraud
has been alle^^ed, nor its equivalent." [134
La. 005, 906, 04 So. 825.] Prior cases were
cited.
la this a correct view of the petition?
The principle of law involved in the answer
to the question is well known. There is
no doubt that the legislature of a state
may constitute drainage districts and de-
fine their boundaries, or may delegate such
authority to local administrative bodies, as,
in the present case, to the police juries of
the parishes of the state, and that their ac-
tion cannot be assailed under the 14th
Amendment unless it is palpably arbitrary
and a plain abuse. Mouck v. Little River
Drainage Dist. decided November 20, 1015
[230 U. 8. 254, ante 266, 36 Sup. Ct. Rep.
3d]. Does the district under review come
within the principle or its limitation? Was
it formed in an arbitrary manner and in
plain abuse of power? The answer depends
upon the allegations of the petition, which,
being excepted to for insufficiency in law,
must be taken as true.
We condense them narratively as follows:
Weeks island, [482] the property which is
the subject of the controversy, is one of sev-
eral islands, being the highest uniform ele-
vation above sea level in southwest Louisi-
ana. It rises abruptly 175 feet or more, is
surrounded on two sides by bayous, on the
rear by a salt-water marsh, and on the
front by a bay (Vermilion bay), with a
small strip of salt-water marsh intervening.
Its topography is high and rolling, the
drainage excessive, and washing and erosion
are serious problems. The country around
it outside of the sea marsh is thickly set-
tled and presents the character of low
lands as distinguished from high lands or
uplands, reaching a maximum elevation of
about 15 feet as against a maximum eleva-
tion of Weeks island of 175 feet.
In lieu of needing drainage the problem
the island is confronted with "is to guard
against washing and erosion, and that the
drainage of all of the territory between it
and Bayou Teche on all sides and to all
extents leads to the marshes subject to
tidal overflow between it and the main-
land."
Some years ago a drainage district, known
as the Iberia & S. Mary Drainage District,/
•0 li. ed.
was organized at the instigation of inter-
csted individuals for the purpose of drain-
age into the bayous and marshes surroupd-
ing Weeks island of certain lands lying
between Bayou Teche and the marshes.
Solely with the view of deriving revenues
from the assessment of Weeks island and
the salt deposit therein, and only for the
benefit of the other properties, and not
upon the theory that a general scheme of
drainage would inure to the benefit of all
of the property therein, even indirectly,
and not through an exercise of sound and
legal legislative discretion, the island waa
included within the confines of the district.
In pursuance of such scheme and plan an
election was held for the imposition of an
ad valorem tax of 5 mills for a period of
forty years [483] upon which to predicate
an issue of bonds. The election resulted in
the imposition of the tax.
It was not intended nor has it ever been
intended, nor was it possible nor is it
possible, to give any of the benefits of the
drainage scheme to Weeks island or to the
salt deposit therein, directly or indirectly,
its inclusion in the district being solely
and only for the purpose of deriving revenue
therefrom for the special benefit of the
other lands subject to be improved by drain-
age, without any benefit to plaintiff or its
property whatever. The island is the high-
est assessed piece of property in the district,
and has never received one single cent of
benefit from the drainage system construct-
ed and maintained in such district, and
never can or will in the future receive any
benefit whatever from the system.
PlaintiflT has uniformly, for the reasons
detailed, refused to pay the tax, and at no
time prior to this year has an effort been
made to collect the same, plaintiff having
based its refusal to pay on its constitution-
al rights. But at the instance of the com-
missioners of the district the sheriff and*
ex-officio tax collector of Iberia parish has
demanded the tax on the island and its salt
mine, and is about to advertise the property
as delinquent for the period of four years,
aggregating $2,000 with the addition of the
penalties provided by law.
The inclusion of the island within the
district is charged to be an unconstitution-
al usurpation of authority and an effort to
take plaintiff's property without due proc-
ess of law. A like charge is made as to
the assessment of the tax and its collec-
tion.
There is no doubt that a Federal right
was asserted. Indeed, plaintiff was at pains,
it says, "not to invoke for its protection
any provision of the Constitution and laws
of the state of Louisiana; not to make any
attack upon any law of the state of Louisi-
483-486
SUPREME COURT OF THE UNITED STATES.
Oot. Tbm,
ana or of any of its subdivisionB." And,
further, the pleadings "were deliberately
[484] cast in this form so as to exclude
every question of local or state law and to
compel the consideration and decision of the
Federal question only."
But, notwithstanding the studied effort
so made and declared, defendants contend
that plaintiff missed its purpose and that
a Federal question was neither presented
to the courts below nor decided by them,
and a motion is made to dismiss. It is
said that "under the law of Louisiana
the action of the legislative body (the po-
lice jury), in the exercise of its discretion as
to what property shall be included in a
drainage district, will not be inquired into
by the court, except upon a special aver-
ment of fraud, which is not pleaded." And
such decision, it is further contended, was
a decision upon the state law, and presents
no Federal question, the statute of the state
not being attacked.
We cannot concur in the contention. It
if true the law of the state as written is
not attacked, but the law as administered
and justified by the supreme court of the
state is attacked, and it is asserted to be
a violation of the Constitution of the United
States. The question presented is Feder-
al and the motion to dismiss is denied. And
the considerations that move a denial of
the motion move a decision of the merits
of the question.
The charge is that plaintiff's property
was included in the district not in the
exercise of ' legal legislative discretion," not
that the scheme of drainage would inure
to the benefit of the property, even indirect-
ly, but with the predetermined "purpose
of deriving revenues to the end of granting
a special benefit to the other lands subject
to be improved by drainage, without any
benefit" to plaintiff "or its property what-
ever," present or prospective.
Nothing could be more arbitrary if drain-
age alone be regarded. But there may be
other purposes, defendants say, and, besides,
that the benefit to the property need not
be direct or immediate; it may be indirect,
such as might [485] accrue by reason of the
general benefits derived by the surrounding
territory. But such benefit is excluded by
the averments, and it certainly cannot be
said that the elevated land of Weeks island
could be a receptacle for stagnant water,
or would be otherwise a menace to health
if not included within the district, or would
defeat the purpose of the law, which seems
to have been the ground of decision in
George v. Young, 45 La. Ann. 1232, 14 So.
137.
Tlie case, therefore, if within the limita-
tion of the power of the state as laid down
spe
in Houck ▼. Little River Drainage Dist.
supra, which cites Norwood ▼. Baker, 172
U. S. 269, 43 L. ed. 443, 10 Sup. Ct. Rep.
187, and retains its principle. It has not
the features which determined French v.
Barber Asphalt Paving Co. 181 U. 8. 324,
45 L. ed. 879, 21 Sup. Ct. Rep. 625, and
the cases which have followed that case,
and Phillip Wagner v. Leser [239 U. S.
207, ante, 230, 36 Sup. Ct Rep. 66], decided
coincidently with Houck v. Little River
Drainage Dist. and cited in the latter.
It is to be remembered that a drainage
district has the special purpose of the im-
provement of particular property, and when
it is so formed to include property which is
not and cannot be benefited directly or in-
directly, including it only that it may pay
for the benefit to other property, there is
an abuse of power and an act of confisca-
tion. Phillip Wagner v. Leser, supra. We
are not dealing with motives alone, but as
well with their resultant action; we are
not dealing with disputable grounds of dis-
cretion or disputable degrees of benefit, but
with an exercise of power determined by
considerations not of the improvement of
plaintiff's property, but solely of the im-
provement of the property of others, — pow-
er, therefore, arbitrarily exerted, imposing a
burden without a compensating advantage
of any kind.
Therefore, the judgment of the Supreme
Court of Louisiana is reversed and the case
remanded for further proceedings not incon-
sistent with this opinion.
So ordered.
[486] NORTHWESTERN LAUNDRY and
T. R. Hazard, Appts.,
V.
CITY OF DES MOINES et al.
(See S. C. Reporter's ed. 486-496.)
Appeal — from district court — extend-
ing review beyond Federal question.
1. The jurisdiction of the Federal Su-
preme Court of an appeal from a final de-
cree of a Federal district court dismissing
on the merits the bill in a suit involving a
Federal question extends to a determina-
tion not only of such question, but of every
other question properly arising on the
record.
[For other caseR, see Appeal and Error, 4297-
4300, In Digest Sup. Ct. 1908.]
Note. — On direct review in Federal Su-
preme Court of judgments of district or cir-
cuit courts — see notes to Gwin v. United
States, 46 L. ed. U. S. 741 ; and B. Altman
k Co. v. United States, 56 L. ed. U. S. 804.
For a discussion of police power, gen-
>erally — see notes to State v. Marshall, 1
289 U. S»
Itli.
NORTHWESTERN LAUNDRY ▼. DBS H0INS8.
Conitttvtioiial law — police power —
legnlaflng smoke naisan<*e — dae
pgoea— of law ^ eqaal protection of
the laws.
2. 80 far SB the Federal Constitution
is eoncerned, a state may, by itself or
through authorised municipalities, declare
the emission of dense smoke^ in cities or
populous neighborhoods to be a nuisance and
subject to restraint as such, and the harsh-
ness of such legislation or its effect upon
business interests, short of a merely arbi-
trary ensctment, are not valid constitu-
tional objections, nor is there any valid
Federal constitutional objection in the fact
that the regulation may require the dis-
continuance of the use of property, or
subject the occupant to large expenses in
complying with the terms of the 'law or
ordinance.
[For other cases, see Constitntional Law,
IV. a, 5; IV. b, 5; IV. c, 8, in Digest Sup.
Ct. 1908.]
Statutes — repeal and re-enactment —
effect.
3. The express repeal by Iowa act of
March 20, 1913, of the earlier act of April
15, 1911, which granted identically the
same authority to municipalities to abate
the smoke nuisance as is conferred by the
repealing statute, did not have the effect
of annulling a municipal ordinance adc^ted
under the sanction of the earlier law.
CFor other cases, see Statntes, III. c; IV., in
Dlirest Sap. Ct. 1908.]
Mnnidpal corporations ^ powers —
atmtlug smoke nuisance.
4. Authority to abate the smoke nuisance
conferred upon municipalities by the Iowa
act of April 15, 1911, extends to the adop-
tion of an ordinance declaring the emis-
sion of dense smoke in certain parts of the
city to be a nuisance, and prohibiting the
same, and delegating first to an inspector
and then to a smoke abatement commission
the power, subject to judicial review, to
prescribe the requirements in each case.
(For other cases, see Mnnlclpal Corporations,
II. c. In Digest Sap. CL 1908.]
Constitutional law — equal protection
of the laws — atiating smoke nui-
sance.
5. The equal protection of the laws is
not denied by a municipal ordinance for the
Srevention of the emission of dense smoke
1 portions of the city, where it applies to
all coming within its terms, although other
businesses might have been, but were not,
included.
(For other cases, see Constltatlonal Law, IV.
a, B, in Digest Sap. Ct. 1908.]
[No. 121.]
Argued and submitted December 9, 1916.
Decided January 10, 1910.
APPEAL from the District Court of the
United States for the Southern District
of Iowa to review a decree dismissing the
bill in a suit to enjoin the enforcement of
a municipal ordinance prohibiting the emis-
sion of dense smoke in portions of the city.
Affirmed.
The facts are stated in the opinion.
Mr. O. M. Brocket submitted the cause
for appellants:
Injunction lies to restrain enforcement of
invalid municipal ordinances, the execution
of which injuriously affects private rights.
Deems v. Baltimore, 80 Md. 164, 26
L.R.A. 541, 45 Am. St Rep. 339, 30 Atl.
648; Mobile v. Louisville & N. R. Co. 84
Ala. 115, 5 Am. St. Rep. 342, 4 So. 106;
Stevens v. St. Mary's Training School, 144
111. 336, 18 L.R.A. 832, 36 Am. St. Rep.
438, 33 N. £. 962; Austin v. Austin City
Cemetery Asso. 87 Tex. 330, 47 Am. St. Rep.
114, 28 S. W. 528; Bear v. Cedar Rapids,
147 Iowa, 341, 27 L.R.A.(K.S.) 1150, 126
N. W. 324.
It is a violation of the 14th Amendment
to the Constitution of the United States to
vest in any officer or body of officers wholly
arbitrary and unregulated discretion to
grant or withhold licenses to hold and enjoy
the natural and lawful rights of property
and occupation, as is attempted by the pro-
visions of the ordinance complained of.
Yick Wo v. Hopkins, 118 U. S. 359, 30
L. ed. 221, 6 Sup. Ct. Rep. 1064; Richmond
V. Dudley, 129 Ind. 112, 13 L.R.A. 587,
28 Am. St. Rep. 180, 28 N. E. 312; Grainger
V. Douglass Park Jockey Club, 78 C. C. A.
199, 148 Fed. 513, 9 Ann. Cas. 997.
Prior to the enactment of Iowa Laws
1911, chap. 37, it was well-settled law in
this state that cities had no power to de-
clare what should constitute nuisances, or
prescribe punishment for their maintenance,
nor to bring actions in court for their abate-
ment.
Everett t. Council Bluffs, 46 Iowa, 66;
Cole V. Kegler, 64 Iowa, 59, 19 N. W. 843;
Nevada v. Hutchins, 59 Iowa, 506, 13 N.
W. 634; Knozville v. Chicago, B. t Q. R.
Co. 83 lowA, 636, 32 Am. St. Rep. 321, 50
N. W. 61 ; Chariton ▼. Barber, 54 Iowa, 360,
L.KA. 51; Re Gannon, 5 L.R.A. 359; State
V. Schlcmmer, 10 L.R.A. 135; Ulman v.
Baltimore, 11 L.R.A. 224; Electric Improv.
Co. V. San Francisco, 13 L.R.A. 131 ; and
Barbier v. Connolly, 28 L. ed. U. S. 923.
As to municipal control over smoke as
• public nuisance — see notes to St. Louis
▼• Edward Heitzeberg Packing &, Provision
Co. 39 L.RAl. 551 ; Atlantic City v. France,
18 L.R.A.(N.S.) 156 i and Rochester v.
•0 L. ed.
Macauley-Fien Mill. Co. 32 L.R.A.(N.S.)
554.
As to the validity of class legislation, gen-
erally— see notes to State v. Goodwill, 6
L.RJL 621 ; State v. Loomis, 21 L.KA. 789.
As to constitutional equality of privi-
leges, immunities, and protection, generally
— see note to Louisville Safety Vault & T.
Co. V. Louisville & N. R. Co. 14 UR.A. 579.
StJPfiEME COURT OF THE UNITED STATES.
Cot. Tebx,
37 Am. B«p. 209, a N. W. 528; Ottumw« v.
Chiim, 75 Iowa, 407, 38 N. W. 870.
If the repealing clause found in loifB ftct
Hucli 20, 1913, in fact repe^ed the act of
tb« 34tb general aisembly, the onl; ftu-
thority claimed for the offensive ordinancs
was thereby withdrawn and the ordinauee
was therefore nullified.
Martin v. OakalDOM, — Iowa, — , BS N.
W. 567; Pritcbard v. Savannah Street A: R.
Resort R. Co. 87 Ga. 204, 14 L.R.A. 721,
13 S. E. 4S3; St. Louis t. Kellman, 235 Mo.
6S7, 139 S. W. 433.
Was Iowa Laws 1911, cbap. 37 repealed
b; the act of March 20, ISlSt
United States v. Muagrave, 160 Fed. 700;
United SUtcs t. 09 Diamonds, 2 L.R.A.
(N.8.) 185, 72 C. C. A. 0, 139 Fed. 961;
Kunkalman v. Gibaon, 171 Ind. 503, 84 N.
E. 985, 86 N. E. 850; Elmer v. United
States, 45 Ct. CI. SO; People ex rel, Higgins
V. Frreman, 242 III. 152, 89 N. E. 067;
People ex rel. Eaaterday v. McCullough,
143 111. App. 112; Rockingbam County t.
Cbase, 75 N. H. 127, 71 Atl. 634; Hampton
T. Hickey, 88 Ark. 324, 114 S. W. 707;
Thornton v. State, 5 Ga. App. 307, S3 S. E.
301; Ruffalo v. Lewis, 102 N. Y. 193, 84 N.
E. 809; Milligan t. Arnold, 60 Ind. App.
660, 98 N. E. 822; Pctitti t. SUte, 7 Okla.
Crim. Rep. 12, IZl Pac. 278; Murpby v. Ut-
ter, 1B6 U. S. 9S, 46 L. ed. 1070, 22 Sup. Ct.
Rep. 776; United States t. Tynen, 11 Wall.
88, 20 L. ed. 1S3; 36 Cyc. 1077, 1076; Childs
V. Shower, 18 Iowa, 272; Allen v. Daven-
port, 107 Iowa, 00, 77 N. W. 532; Ogden v.
Witherspoon, 3 N. C. (2 Hayw.) 2Z7, Fed.
Cas. No. 10,461.
The provisions of the ordinance which
are the basis for the prosecutions com-
plained of are in giccbb of the authority
delegated by the acts in question.
Clarke, D. i. Co. v. Davenport, 14 Iowa,
600; Tuttle V. Church, 63 Fed. 426.
The features of the ordinance here in-
volved are void for unreasonablenets.
Davie v. AniU, 73 Iowa, 326, 36 N. W.
244; State Center v. Barenstein, 60 Iowa,
240, 23 N. W. 662; Meyere v. Chicago, R.
I. A P. R. Co. 67 Iowa, 655, 42 Am. Rep.
60, 10 N. W. 80«; Munsell v. Carthage, 105
111. App. 110; Everett v. Council Bluffs, 46
Iowa, 96; Bush v. Dubuque, 60 Iowa, 233,
28 N. W. 642; CenUrviUe v. MilUr, 67 Iowa,
66, 10 N. W. 203; St. Louis t. Edward
Heitzeberg Packing ft PToviaion Co. 141 Mo.
376, 39 L.R.A. 651, 64 Am. St. Rep. 610,
42 S. W. 054.
The Iowa statute, if construed to dele-
gate authority to enact ordinancea contain-
ing the provisions in queetion, is void be-|
cause repugnant to both the state and Fed-I
eral Constitutions. '
S»0
. Neola V. Reichart, 131 Iowa, 402, 100 N.
W. 5; Iowa City ». Mclnnemy, 114 Iowa.
680, 87 N. W. 408; Bloomfield v. Trimble,
64 Iowa, 399, 37 Am. Rep. 212, 6 N. W.
686; Bear v. Cedar Rapids, 147 Iowa, 341,
27 L.R.A.1N.S.1 1160, 126 N. W. 324; SUte
V. Benekc, 0 Iowa, 203; OeebTiek t. StaU.
6 Iowa, 401; SUte v. Weir, 33 Iowa, 134,
11 Am. Rep. 115; Weir v. Cram, 37 Iowa,
649; Ford v. North Dea Moines, 80 Iowa,
626, 46 N. W. 1031 ; SUte ex rel. Howe v.
Des Moines, 103 Iowa, 76, 30 L.R.A. 285,
64 Am. St. Rep. 167, 72 N. W, 639; Dowling
V. Lancashire Ins. Co. 92 Wis. 63, 31 L.R.A,
112. 85 N. W. 738; State v. King, 37 Iowa,
462; Dea Moines v. HilHs, 66 Iowa, 043, S
N. W. 638; Robert J. Boyd Paving t Con-
tracting Co. V. Ward, 2B C. C. A. 687, 56 U.
S. App. 730, S6 Fed. 27; SUte ex r«I. Child*
V. Copeland, 66 Minn. 316, 34 L.R^. 777,
61 Am. St. Rep. 410, 60 N. W. 27; SUte
v. Tower, 185 Mo. 79, 68 L.R.A. 402, 84
S. W. 10; SUte, Dcxheiraer, Prosecutor, v.
Orange, 60 N. J. L. Ill, 30 Atl. 706.
Mr. Eskil C. Carlson argued the cause,
and, witl) Messrs. H. W. Byers and Karl
M. Steer, Sled a brief for appellees:
A Federal court cannot iaaue an injunc-
tion to restrain judicial proceedings in a
sUte court, except in bankruptcy matters.
Haines v. Carpenter, 01 U. S. 254, 23 L.
ed. 346; Dial v. Reynolds, 08 U. S. 340, 24
L. ed. 044; Re Sawyer, 124 U. S. 200, 31 L.
Dd. 402, e Sup. Ct. Rep. 482.
A court of equity cannot issue an injunc-
tion to restrain the enforcement of a crim-
inal ordinance, at least, without a showing
of Irreparable injury, there being a plain,
speedy, and adequate remedy at law.
Re Sawyer, 124 U. S. 200, 31 L. ed. 402,
S Sup. Ct. Rep. 482; Harkrader v. Wadley,
172 U. S. 148, 43 L. ed. 398, 10 Sup. Ct.
Rep. 110; FitU v. McGhee, 172 U. S. SIO.
43 L. ed. 635, 19 Sup. Ct. Rep. 260; Davia
ft F. Mfg. Co. T. Los Angeles, 180 U. S.
207, 47 L. ed. 778, 23 Sup. Ct. Rep. 40S;
Ewing V. Webster City, 103 Iowa, 220, 72
N. W. 511; 22 Cyc. 903.
In construing and interpreting the sUtute
and ordinance, and in determining their
validity under the state Constitution
and sUtutes, this court must follow the de-
cisions of the highest court of the sUte.
W. W. Cargill Co. v. MinnewiU, 180 U.
S. 452, 45 L. ed. 619, 21 Sup. Ct. Rep. 423;
Hasmussen v. Idaho, ISl U. S. 108, 45 L.
ed. 820, 21 Sup. Ct. Rep. 504; Yaeoo ft M.
Valley R. Co. v. Adams, IBl U. S. 580, 4S
L. ed. 1011. 21 Sup. Ct. Rep. 720, 180 U.
S. 1, 45 L. ed. 395, 21 Sop. Ct. Rep. 240;
Robinson v. Belt, 187 U. 8. 41, 47 L. ed.
65, 23 Sup. Ct. Rep. 16; Manley v. Park,
187 V. S. 547, 47 L. ed. 206, 23 Sup. Ct.
SSt V. s.
1915.
XORTHWE8TEHN LAUNDRY t. D£S MOINEa
Rep. 208; Wliitmier k F. Co. ▼. Buffalo,
U8 Fed. 773; 12 Cyc. 808.
The emission of densj smoke in populous
cities is a proper subject of police regula-
tion as a public nuisance.
Moses V. United States, 16 App. D. G.
428, 50 LJLA. 532; Harmon v. Chicago, 110
111. 400, 51 Am. Rep. 608; -People ▼. Lewis,
86 Mich. 273, 40 N. W. 140; 8t. Paul v.
Haugbro, 03 3linn. 50, 66 L.RJk. 441, 106
Am. St. Hep. 427, 100 N. W. 470, 2 Ann.
Cas. 580; State t. Tower, 185 Mo. 70, 68
JjJLJi. 402, 84 8. W. 10; Rochester ▼. Ma-
cauley-Fien MUl. Co. 100 N. Y. 207, 32
L.RJk.(N.S.) 554, 02 N. E. 641; McGill ▼.
Pintsch Compressing Co. 140 Iowa, 429,
20 L.RJl.(N.S.) 466, 118 N. W. 786'; Bow-
ers ▼. Indianapolis, 160 Ind. 105, 81 N. £.
1097, 13 Ann. Cas. 1108.
The repeal and simultaneous re-enactment
of substantially the same provisions is to
be construed and considered as a continua-
tion of the prior statute, subject to the mod-
iflcations, and the binding force and effect
thereof is not destroyed or interrupted
thereby.
Hancock v. Perry, 78 Iowa, 550, 43 N. W.
527; State v. Prouty, 115 Iowa, 657, 84
N. W. 670; Allen v. Davenport, 107 Iowa,
90, 77 N. W. 532; Robinson v. Ferguson,
110 Iowa, 325, 03 N. W. 350.
The delegation to cities of the power to
regulate the emission of dense smoke within
their limits is proper, valid, and constitu-
tional.
State T. King, 37 Iowa, 462; Des Moines
Gas Co. T. Des Moines, 44 Iowa, 505, 24
Am. Rep. 756; Des Moines v. Hillis, 55
Iowa, 643, 8 N. W. 638 ; State ex rel. Howe
v. Des Moines, 103 Iowa, 76, 30 L.RJl. 285,
64 Am. St. Rep. 157, 72 N. W. 630; Fair-
field V. Shallenberger, 135 Iowa, 615, 113
N. W. 450; 11 Cyc, 603.
Tlie classification of cities affected ac-
cording to population is reasonable, valid,
and constitutional.
Missouri v. Lewis (Bowman v. Lewis)
101 U. S. 22, 25 L. ed. 089; Hayes v. Mis
souri, 120 U. S. 68, 30 L. ed. 578, 7 Sup. Ct.
Rep. 350; Haskel v. Burlington, 30 Iowa,
232; Owen v. Sioux City, 91 Iowa, 100, 50 N.
W. 3; Ulbrecht v. Keokuk, 124 Iowa, 1, 07
N. ^. 1082; Eckerson v. Des Moines, 137
Iowa, 452, 115 N. W. 177 ; SUte v. Tower,
185 Mo. 70, 68 L.R.A. 402, 84 S. W. 10.
The statute is uniform in its operation,
within the meaning of the Constitution of
Iowa, art. 1, § 6.
Haskel v. Burlington, 30 Iowa, 232 ^ Owen
V. Sioux City, 91 Iowa, 190, 50 N. W. 3;
Fairfield v. Shallenberger, 135 Iowa, 615,
U3 N. W. 450; Eckerson ▼. Des Moines,
137 Iowa, 452, 115 N. W. 177.
60 L. ed.
The legislature did not authorise double
punishment for the same offense, but it
could have authorized municipalities to
punish an offense also punishable under the
state law.
Bloomfield v. Trimble, 54 Iowa, 300, 87
Am. R^. 212, 6 N. W. 586; Avoca ▼. Heller,
120 Iowa, 227, 105 N. W. 444; Blodgett v.
McVey, 131 Iowa, 552, 108 N. W. 230;
NeoU ▼. Reichart, 131 Iowa, 402, 100 N.
W. 5; 2 DiU. Mun. Corp. §§ 630-^33; Fox
▼. Ohio, 5 How. 410, 12 L. ed. 213; United
States V. Marigold, 0 How. 560, 13 L. ed.
257 ; Moore v. Illinois, 14 How. 13, 14 L. ed.
306.
The ordinance is fairly within the au-
thority conferred upon the city by the stat-
ute, under the rule that the city may exer-
cise such powers as are inherent in it, and
such as are expressly or impliedly conferred
upon it, including those necessary or inci-
dental to the carrying into effect of its
express powers, regard always being had
to the intention of the legislature.
Davenport v. Kelly, 7 Iowa, 102; Mul-
larky v. Cedar Falls, 10 Iowa, 21; Dubuque
V. Stout, 32 Iowa, 47, 80, 7 Am. Rep. 171 ;
State ex rel. Cedar Rapids v. Holcomb, 68
Iowa, 107, 56 Am. Rep. 853, 26 N. W. 33;
Wood V. Farmer, 60 Iowa, 533, 20 N. W.
440; Walnut v. Rankin, 70 Iowa, 65, 29
N. W. 806; Taylor v. McFadden, 84 Iowa,
262, 50 N. W. 1070.
The classification of plants in the ordi-
nance is reasonable and valid, and there is
no unjust discrimination.
Moses V. United States, 16 App. D. C.
428, 50 L.RJl. 532; Bowers v. Indianapolis,
160 Ind. 105, 81 N. E. 1007, 13 Ann. Cas.
1108; Harmon v. Chicago, 110 111. 400, 51
Am. Rep. 698; People v. Lewis, 86 Mich.
273, 49 N. W. 140; SUte v. Chicago, M.
k St. P. R. Co. 114 Minn. 122, 33 L.R.A.
(N.S.) 404, 130 N. W. 545, Ann. Cas. 1912B,
1030; State v. Tower, 185 Mo. 79, 68 L.R.A.
402, 84 S. W. 10; Barbier v. Connolly, 113
U. S. 27, 28 L. ed. 023, 5 Sup. Ct Rep. 357.
The ordinance is not unreasonable and
void as vesting arbitrary and unregulated
discretion in the smoke inspector and smoke
abatement commission.
Hubbell v. Higgins, 148 Iowa, 36, 126 N.
W. 014, Ann. Cas. 1012B, 822; Western U.
Teleg. Co. v. Richmond, 224 U. S. 160, 56
L. ed. 710, 32 Sup. Ct. Rep. 440; Davis v.
Massachusetts, 167 U. S. 43, 42 L. ed. 71,
17 Sup. Ct. Rep. 731; Gundling v. Chicago,
177 U. S. 183, 44 L. ed. 725, 20 Sup. Ct. Rep.
633; Fischer v. St. Louis, 104 U. S. 361,
48 L. ed. 1018, 24 Sup. Ct. Rep. 673.
The provision for the use of Reigelman's
smoke chart is reasonable and valid.
Rochester v. Macauley-Fien MilL Co. 109
Stt
489-491
SUPBSIIE COURT OF THE UNITED STATES.
Cor. TmKMf
N. Y. 207, 32 L.RJL(NJ3.) 654, 92 N. E.
641; Cincinnati ▼. Burkhardt, 30 Ohio C.
0. 350.
There is no violation of the constitutional
proTisions respecting exoessiTft fines and un-
usual punishments.
Pervear t. Massachusetts, 5 WalL 475, 18
L. ed. 608; 2 Dill. Mun. Corp. 5th ed. g 646;
State ▼. Botkin, 71 Iowa, 87, 60 Am. Rep.
780, 32 N. W. 185; Hooper ▼. California, 155
U. S. 648, 30 L. ed. 297, 5 Inters. Com. Rep.
610, 15 Sup. Ct. Rep. 207.
The ordinance is presumed to he reason-
able and valid; the party attacking it has
the burden of showing invalidity, and any
doubt should be resolved in favor of its
validity.
State ex rel. Cedar Rapids v. Holoomb,
68 Iowa, 107, 56 Am. Rep. 853, 26 N. W.
ZZ; Snouffer v. Cedar Rapids & M. C. R
Co. 118 Iowa, 287, 02 N. W. 79; McGuire
V. Chicago, B. ft Q. R Co. 131 Iowa, 340, 33
LJl.A.(N.S.) 706, 108 N. W. 902; Hubbell
▼. Higgins, 148 Iowa, 36, 126 N. W. 914,
Ann. Cas. 1912B, 822; 2 Dill. Mun. Corp.
5th ed. § 640; 2 McQuillin, Mun. Corp. g
974; 21 Am. k Eng. Enc. Law, 2d ed. 978.
An ordinance should not be held unrea-
sonable or invalid as a violation of the Con-
stitution or otherwise, unless such invalid-
ity is clearly and unmistakably made to ap-
pear.
Fletcher v. Peck, 6 Cranch, 87, 3 L. ed.
162; Livingston County v. Darlington, 101
U. S. 407, 25 L. ed. 1015; Ificol v. Ames, 173
U. S. 500, 43 L. ed. 786, 19 Sup. Ct. Rep.
522.
Mr. Justice Day delivered the opinion of
the court:
The Northwestern Laundry and T. R
Hazard, its president, filed a bill in the
district court of the United States for the
southern district of Iowa, against the city
of Des Moines, Iowa; James R. Hanna,
mayor; W. A. Needham, commissioner;
Zell G. Roe, commissioner; F. T. Van Liew,
commissioner; J. I. Myerly, commissioner;
W. H. Byers, commerce counsel; R. 0.
Brennan, city solicitor; Eskil C. Carlson,
assistant city solicitor; Harry McNutt,
smoke inspector; and Paul Beer, W. H.
Harwood, L. Harbach, B. S. Walker, and
Geo. France, members smoke abatement
commission. The purpose of the bill was to
enjoin the enforcement of an ordinance of
the city of Des Moines, effective September
6th, 1011, which provided that the emission
of dense smoke in portions [400] of that
city should be a public nuisance and pro-
hibited the same. To that end the ordinance
authorized the appointment of a smoke in-
spector, and otherwise dealt with the sub- i
Jeet with a view to effecting the prohibited
purpose declared. The case was heard upon
the bill and a motion practically *«»i^iit«ng
to a demurrer.
The bill and amended bill are very
lengthy. For our purposes^ their allega-
tions and the requirements of the ordinance
sufliciently appear in what is said in the
discussion and disposition of the case.
The protection of the due process and
equal protection clauses of the 14th Amend-
ment is invoked. It is insisted that the
ordinance is void because its standard of
efficiency requires the remodeling of practi-
cally all furnaces which were in existence
at the time of its adoption; it forbids re-
modeling or substituted equipment without
a prescribed license; it forbids new con-
struction without such license; it fails to
specify approved equipment, and instead
delegates, first to the inspector, and second,
to the smoke abatement commission, the
unregulated discretion to arbitrarily pre-
scribe the requirements in each case, with-
out reference to any other as to the required
character of smoke prevention device, thus
making the right of complainants and their
class to own and operate such furnaces sub-
ject to the pleasure of the inspector and
commission. It is averred that the ordi-
nance exceeds the authority delegated to the
city by the legislature; that it attempts to
substitute its own definition of the crime
and nuisance committed by the emission of
dense smoke for that enacted by the legis-
lature in the act under the pretended au-
thority of which the ordinance is adopted;
that it is unreasonable and tyrannical and
exceeds the authority delegated for want
of uniformity as to the whole city and
because the exceptions specified are not
natural and just. It is alleged that the
ordinance prescribes arbitrary tests of de-
grees of density, and enables the inspector
to present irrebuttable [401] proof of vio-
lation; that it provides for uulimited prose-
cutions and successive fines, constituting ex-
cessive punishment in the aggregate, with-
out adequate remedy or relief, and under-
takes to deprive the courts of power to de-
termine whether the nuisances have in fact
been committed or maintained.
A motion to dismiss the bill covered three
grounds: First, that the bill did not state
any matter of equity entitling complain-
ants to the relief prayed, nor were the facta,
as stated in the bill, sufficient to entitle
complainants to any relief against defend-
ants; second, that the bill showed upon its
face that the complainants have a plain,
speedy, and adequate remedy at law; and
third, as it appeared on the face of the bill
that the complainants were all residents
of the state of Iowa, and the relief demand-
ed was against an ordinance of the defend-
ast 17. 8.
1»U. NOBTHWESTERN LAUKDKT t. DES MOINEB. 401-4M
ant citf , the court ««■ without jurisdic- 1 BUch appears to be the law In Iowa. Mo-
tion. Tho court auitaiiied the motion, and Gill v. Pintsch Compressing Co. 140 Iowa,
«otered a Itnal decree dismiaaing the biU 429, 20 I>B^,(N.S.) 468, 118 N, W. 788.
»ith prejudice. There was no attempt to it is contended that the ordinance is in
make a separate iHue on the question of excess of the legialatiTB authority conferred
jurisdiction, or to take an appeal upon by tho state of Iowa upon the city of Des
that question alone to this court. Judicial Moines. This question does not teem to
Code, g 238, 36 SUt. at L. 1157, chap. 231, have been directly passed upon by the sn-
Comp. SUt. 1013, I 1215. preme court of Iowa.
The decree waa a general one on the mer- n,* aUtute of Iowa enacted April 16th,
it*, and, as the bill charged a violation of iQH, before the passage of thfa ordinance,
the 14th Amendment not so frivolous as to ia as follows:
fail to give original juriadiction, the ap-
peal to thia court from the final decree An Act Declaring the Emission of Smoke
brings the whole case here. Holder v.Ault- within the Corporate UmiU of Certain
, Jl. A Co. 16S U. S. Bl, 88, 42 L. ed.
fi«0, 671, IB Sup. Ct. Bep. 26S} Field v.
Barber Asphalt Paving Co. 194 U. B. 61B,
620, 48 L. ed. 1142, nS2, 24 Sup. Ct. Bep.
784; Bois« Artesian Hot k Cold WaUr Co.
V. Boia« City, 230 U. S, S4, SI, 67 L. ed.
1400, 1406, 33 Sup. Ct. Bep. 997.
We are not furnished with any reference
to an Iowa statute giving an adequate rem-
edy at law, and we find none auch. We
hne therefore to deal with the questions,
Ptdcral and state, made npon the face of
the bill.
So far as the Federal Constitution
eaanrned, we have no doubt the state m
I? itself, or through authorised muuicipni-
ilin, declare the emission of dense smoke
in [4BS] cities or populous neighborhoods
a nuisance and subject to restraint as auch ;
sad that the harahneas of such l^slatii
Cities to be a Public Nuisance, and Con*
f erring upon Such Cities Additional
Powers for the Abatement of Buch Nnl-
Be it enacted by the General Assembly
of the State of Iowa:
Section I. Declared a nuisance. — The
1 of dense smoke within the corpo-
mits of any of the [493] cities of thia
state now or hereafter having a population
of aixty-five thousand {65,000) inhabitants
ver, including cities acting under the
commission plan of government is hereby
declared to be a public nuisance.
Section 2. Abatement. — Every such ei^
is hereby empowered to provide by ordi-
nance for the abatement of such nuisance
litber by fine or imprisonment or by ac-
___^ „_,„„,.„ „. _u^u „ .outiiuu *'**" '" district court of the county in
witai^ert'uMnb^^Bi^VVwMU%hort"of ''*''''^^ ""=*' "^' '• located, or by both, auch
a merely arbitrary enactment, are not valid ''"™ *° ^ proaecuted in the name of tho
fonstitutional objections. Nor is there ■*"?■ ^'^ ""? "'"^ *>? ordinance prov.d*
7 valid Federal constitutional objection *n necessary rules and regulation, for
- - smoke inspection and the abatement and
prevention of the smoke nuisance. 34 Lawa
of Iowa, chap. 37, p. 27.
The ordinance in question was passed
on the eth day of September, ISll, and be-
came effective, as we have said, on that
date. The city of Des Moines Is within
L. ed. 1204, 36 Sup"."ct.' E™."678rHada''c'heck "" t«™" "' *'■ «»■ On March 20th, 1013,
v. Sebaatian, decided December 20th, 1916 J*"* "eg'"!"'"'* !«">»'' Mother law, as fol-
[239 U. S. 304, ante, 348, 36 Sup. Ct. Bep. ''"'• =
143].
That snch emiaaion of smoke is within ^° ^"^ Declaring the Emission of Smoke
the regulatory power of the state has been Z}^^'° 0>e , Corporate L.mita of Certain
in the fait that the regulation may require
the disconUnuance of the use of property,
or subject the occupant to large expense in
complying witb the terms ol the law or
ordinance. Becent cases in this court are
Beinman v. Little Bock, 237 U. S. 171, SB
J., cd. 900, 33 Sup. Ct. Bep. 611; Chicago
A A. B. Co. T. Tranbcrger, 238 U. S. 67, ""
«ften affirmed by state courts. Harmon i
Chicago, 110 lU. 400, SI Am. Bep. 608;
Bowers v. Indianapolis, 169 Ind. 105, 81
N. E. 1097, 13 Ann. Cas. 1198; People v.
Lewis, SB Mich. 273, 49 N. W. 140; St.
Paul T. Haugbro, 93 Minn. 69, 66 L.B.A.
441, 10« Am. St Bep. 427, 100 N. W. 470,
2 Ann. Cas. 580; State v. Tower, 185 Mo.
TO, 88 LB.A. 402, 84 S. W. 10; Bocheater of the State of loWa:
T. Haeanley-Fien Mill Co. 190 N. Y. 207, Saction 1. Declared
32 L.B.A.(N.B.) 664, 92 N. E. 641. And emission of dense smoke within the cqt^<v-
«0 Ii. «d. 2S 4«V
Cities, Including Cities Acting under
Special Charter, to be a Public Nuisance
and Conferring upon Such Cities Addi-
tional Powers for the Abatement of Such
Nuisances and Bepcaling Chapter Thirty-
seven (37) of the Laws of the Thirty-
fourth General Assembly. . . ,
Be it enacted by the General Assembly
403-496
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
rate limits of the cities of the state, includ-
ing cities acting under commission form of
government, now or hereafter having a
population of thirty thousand or over and
in cities acting under special charter or
hereafter having a population of sixteen
thousand or over, is hereby declared a
nuisance.
Section 2. Abatement. — Every such city
is hereby empowered to provide by ordi-
nance for the abatement of [404] such nui-
sance either by fine or imprisonment, or by
action in the district court of the county in
which such city is located, or by both; such
action to be prosecuted in the name of the
city. They may also by ordinance provide
all necessary rules and regulations for
smoke inspection and the abatement and
prevention of the smoke nuisance.
Section 3. Repeal. — That chapter thirty-
seven (37) of the laws of the thirty -fourth
general assembly be and the same is here-
by repealed. 35 Laws of Iowa, p. 43.
This statute likewise includes the city of
Des Moines.
The former statute was repealed by the
new one. The effect of this repeal upon
the validity of the ordinance is a state
question, and as we understand the Iowa
decisions, the authority of the ordinance
here in question remained unimpaired. The
statutory change did not have the effect
to annul the ordinance passed under the
former identical grant of authority. Allen
V. Davenport, 107 Iowa, 90, 77 N. W. 532;
State V. Prouty, 116 Iowa, 657, 84 N. W.
670.
It is further contended that, conceding
the statutory authority, the ordinance is
in excess of the legislative grant. This
question does not seem to have been passed
upon specifically in any Iowa case called
to our attention. The statute, after de-
claring the emission of dense smoke with-
in the corporate limits of such cities as Des
Moines to be a nuisance, authorizes the
city to provide by ordinance for the abate-
ment of such nuisance b} fine or imprison-
ment or by action in the district court of
the county, or both, such action to be prose-
cuted in the name of the city; and, further-
more, municipalities are authorized to pro-
vide by ordinance all necessary rules and
regulations for smoke inspection and the
abatement or prevention of the smoke nui-
sance. The smoke inspector must be
qualified by training and experience to
understand the theory and practice of smoke
inspection. He has the benefit of coun-
sel of the smoke abatement commission,
[405] consisting of five members to be ap-
pointed by the city council, at least one of
whom must have had experience in the
40S
installation and conduct of power and
heating plants. From the smoke inspec-
tor there is an appeal to the smoke
abatement commission in case of dis-
agreement over plans for newly con-
structed plants or reconstruction of old
ones. This grant of authority would seem
to be sufficient to authorize the passage
of an ordinance of a reasonable nature, such
as we believe the one now under considera-
tion to be. It delegates authority to carry
out details to boards of local commis-
sioners. That such rules and regulations
are valid, subject as they are to final con-
sideration in the courts, to determine
whether they are reasonably adapted to ac-
complish the purpose of a statute, has
been frequently held. 2 Dill. Mun. Corp.
5th ed. § 574. We find nothing in the Iowa
cases to indicate that the supreme court of
that state has laid down any different rule
upon this question. That the courts of
Iowa may be resorted to in case of an abuse
of the powers vested in the inspector and
commission seems to follow from the deci-
sion of the supreme court of that state in
Hubbell V. Higgins, 148 Iowa, 86, 126 K.
W. 914, Ann. Cas. 1912B, 822.
As to the attack upon the ordinance be-
cause of arbitrary classification, this ques-
tion has been so often discussed that noth-
ing further need be said. The ordinance ap-
plies equally to all coming within its
terms, and the fact that other businesses
might have been included does not make
such arbitrary classification as annuls the
legislation. Nor does it make classifica-
tion illegal because certain cities are in-
cluded and others omitted in the statute.
Eckcrson v. Des Moines, 137 Iowa, 452, 115
N. W. 177.
We think the District Court was right
in dismissing the bill upon its merits.
Affirmed.
[406] SOUTHERN RAILWAY COMPANY,.
Plff. in Err.,
V.
W. L. LLOYD.
(See S. C. Reporter's ed. 496-502.)
Removal of causes — separable con*
troversy — sufficiency of petition.
1. Allegations in the petition for the
removal of an alleged separable controversy
to a Federal court for diverse citizenship
are not sufficient where they amount sim-
NoTE. — As to removal of causes in cases
of separable controversy — see notes to Mil-
ler v! Clifford, 5 L.R.A.(N.S.) 50; Sloane
V. Anderson, 29 L. ed. U. S. 899; Butler v.
National Home, 36 L. ed. U. S. 346; Tbr-
ast u. s.
191S.
SOUTHERN R. CO. v. LLOYD.
ply to a traverse of the factt alleged in
the plaintifiTs petition, and in that way un-
dertake to try the merits of a cause of
action good upon its face.
[For other cases, see RemoTsl of Csnses, IV.
b; IV. c; VL d, in Digest Sup. Ct. llK>8.j
Removal of canses — separable con-
iroTersy ^ nonsuit as to resident de-
fendant.
2. An order of nonsuit as. to the resi-
dent -corporation which was joined as co-
defendant with a nonresident corporation
did not convert the action into a separable
controversy for the purpose of removal to
a Federal court, where plaintiff excepted to
such order, with the right of review in the
highest state court.
[Foi other cases, see Removal of Causes, IV.
c, in Digest Sup. Ct. 1908.]
Removal of causes — diverse citlien*
ship ^ separable controversy ^ salt
brought nnder Federal employers'
liability act.
3. Jhe prohibition of the Judicial Code,
§ 28, against the removal to a Federal
court of any case arising under the Fed-
eral employers' liability act or any amend-
ment thereto, prevents the removal for di-
verse citizenship as a separable controversy
of a nit brought under that statute in
which a resident and nonresident corpora-
tion were made defendants upon a removal
petition which alleges fraudulent joinder,
and avers that the injury did not happen
in interstate commerce.
[For other cases, see Removal of Caaseii. IV.
b; IV. c; VI. d. In Digest Sup. Ct. 1008.]
Error to state court — scope of review
— question of local practice.
4. A ruling of the highest state court
in an action brought under the Federal
employers' liability act that no issue as to
assumption of risk was made or submitted
to the trial court, and that therefore under
the state practice no question concerning
that subject was presented on appeal, de-
nies no right of a Federal character which
may be reviewed in the Federal Supreme
Court on writ of error to the state court.
[For other cases, see Appeal and Error. 2200-
2226, io Digest Sup. Ct. 1008.]
[No. 206.]
Argued November 20, 1015. Decided Jan-
uary 10, 1016.
IN ERROR to the Supreme Court of the
State of North Carolina to review a
judgment which, on a second appeal, af-
firmed a judgment of the Superior Court
of Guilford County, in that state, in favor
of plaintiff in an action under the Federal
employers' liability act. Affirmed.
See same case below on first appeal, 162
N. C. 485, 78 S. £. 480; second appeal, 166
N. C. 24. 81 S. E. 1003, 7 N. C. C. A. 520.
The facta are stated in the opinion.
Mr. John M. Wilson argued the cause,
and, with Messrs. L. E. Jeffries and H.
O'B. Cooper, filed a brief for plaintiff in
error:
The North Carolina Railroad Company
was fraudulently joined as defendant.
Chesapeake k 0. R. Co. v. Cockrell, 232
U. 8. 146, 68 L. ed. 544, 34 Sup. Ct. Rep.
278; Wecker v. National Enameling &
Stamping Co. 204 U. S. 176, 51 L. ed. 430,
27 Sup. Ct. Rep. 184, 0 Ann. Cas. 757;
Stone V. South Carolina, 117 U. S. 430, 20
L. ed. 062, 6 Sup. Ct. Rep. 700; Rea v.
Standard Mirror Co. 158 N. C. 28, 73 S< £.
116; Lloyd v. North Carolina R. Co. 162
N. C. 485, 78 S. E. 480.
The state court had no authority to ex-
amine questions of fact on a petition to
remove.
Chesapeake ft 0. R. Co. v. Cockrell, 232
U. S. 146, 58 L. ed. 544, 34 Sup. Ct. Rep.
278; Rea v. Standard Mirror Co. 158 N.'C.
28, 73 S. E. 116.
Making a defense in the state court was
no waiver of the right to remove.
Powers V. Chesapeake ft 0. R. Co. 160
U. S. 04, 42 L. ed. 673, 18 Sup. Ct. Rep.
264; Removal Cases, 100 U. S. 457, 25 L.
ed. 503; Home L. Ins. Co. v. Dunn, 10 Wall.
214, 22 L. ed. 68; Baltimore ft (X R. Co. v.
Koontz, 104 U. S. 5, 26 L. ed. 643; Stone v.
South Carolina, 117 U. S. 430, 20 L. ed.
062, 6 Sup. Ct. Rep. 700.
Was the Federal employers' liability act
applicable?
Illinois C. R. Co. v. Behrens, 233 U. 8.
473, 58 L. ed. 1051, 34 Sup. Ct. Rep. 646,
Ann. Cas. 1014C, 163; Ruck v. Chicago, M.
ronce v. Shedd, 36 L. ed. U. S. 528; and
Merchants' Cotton Press ft S. Co. v. Insur-
ance Co. of N. A. 38 L. ed. U. S. 196.
On removal of causes in cases of diverse
citizenship — see notes to Whelan v. New
York, L. E. ft W. R. Co. 1 L.R.A. 65: Sed-
don V. Virginia, T. ft C. Steel ft I. Co. 1
L.RJ^. 108; Huskins v. Cincinnati, N. 0.
ft T. P. R. Co. 5 L.RJI. 545; Bierbower v.
Miller, 0 L.R.A. 228; Brodhead v. Shoe-
maker, 11 L.R.A. 567; Meyer v. Delaware
R. Constr. Co. 25 L. ed. U. S. 503; Butler
V. National Home, 36 L. ed. U. S. 346; and
Torrence v. Shedd, 36 L. ed. U. S. 528.
On the constitutionality, application, and
«0 I«. ed.
effect of the Federal employers' liability act
— see notes to Lamphere v. Oregon R. ft
Nav. Co. 47 L.R.A. (N.S.)38; and Seaboard
Air Line R. Co. v. Horton, L.R.A.1015C, 47.
On the general subject of writs of error
from the United States Supreme Court to
state courts — see notes to Martin v. Hunter,
4 L. ed. U. S. 07 ; Hamblin v. Western Land
Co. 37 L. ed. U. S. 267; Ro Buchanan, 30
L. ed. U. S. 884; and Kipley v. Illinois, 42
L. ed. U. S. 998.
On what questions the Federal Supreme
Court will consider when reviewing the
judgments of state courts — see note to Mis-
souri ex rel. Hill v. Dockery, 63 L.R.A. 571.
SUPREME COURT OF THE UNITED STATES.
Oct. Tekm,
& St. P. R. Ck). 163 WiB. 158^ 140 N. W.
1074; Gray v. Chicago & N. W. R. Co. 163
Wis. 637, 142 N. W. 505; La Casae ▼. New
Orleans, T. k M. R. Co. 135 La. 129, 64
So. 1012; Wright v. Chicago, R. I. k P. R.
Co. 94 Neb. 317, 143 N. W. 220; Parsons
V. Delaware & H. Co. 167 App. Div. 636,
153 N. Y. Supp. 179 ; Rosney v. Erie R. Co.
68 C. C. A. 155, 135 Fed. 311; Chicago &
N. W. R. Co. V, United States, 21 L.R.A.
(N.S.) 690, 93 C. C. A. 450, 168 Fed. 236;
Siegel V. New York C. & H. R. R. Co. 178
Fed. 873; United States v. Rio Grande
Western R. Co. 98 C. C. A. 293, 174 Fed.
399.
There was not sufficient evidence 'of neg-
ligence to support a verdict under the Fed-
eral employers' liability act.
Seaboard Air Line R. Co. v. Padgett, 236
U. S. 668, 69 L. ed. 777, 35 Sup. Ct. Rep.
48L
Ordinary risks are presumed to have been
undertaken by a servant.
I^batt, Mast & S. 1167, 1171, 1173.
Assumption of risk incident to service is
not really assumption of risk, but is merely
the absence of negligence, and consequently
is not necessary to be pleaded as a defense.
Labatt. Mast. & S. 1186a; New York,
N. H. & H. R. Co. V. Vizvari, L.R.A.1916C,
9, 126 C. C. A. 632, 210 Fed. 118.
The rule of ordinary care obtains in the
Federal courts, and the plaintiff assumes
the risk incident to the service.
Pattonv. Texas & P. R. Co. 179 U. S. 668,
46 L. ed. 361, 21 Sup. Ct. Rep. 276; North-
ern P. R. Co. V. Peterson, 162 U. S. 346,
40 L. ed. 994, 16 Sup. Ct. Rep. 843; Hough
V. Texas & P. R. Co. 100 U. S. 213, 25 L.
ed. 612; Southern P. Co. v. Seley, 162 U.
S. 146, 38 L. ed. 391, 14 Suf. Ct. Rep. 630;
See also White v. Thomasville Light k P.
Co. 161 N. C. 368, 66 S. E. 210; Dartmouth
Spinning Co. v. Achord, 84 Ga. 14, 6 L.R.A.
190, 10 S. E. 449; Lane v. North Carolina
R. Co, 154 N. C. 96, 69 S. E. 780.
The issue of contributory negligence
should have been submitted.
Norfolk Southern R. Co. v. Ferebee, 238
U. S. 269, 69 L. ed. 1303, 36 Sup. Ct. Rep.
782.
If the plaintiff was not engaged in inter-
state commerce, the suit should have been
dismissed.
Second Employers' Liability Cases (Mon-
dou V. New York, N. H. ft H. R. Co.) 223
U. S. 1, 66 L. ed. 327, 38 L.R.A.(N.S.) 44,
32 Sup. Ct. Rep. 169, 1 N. C. C. A. 876;
Seaboard Air Line R. Co. v. Horton, 233 U.
S. 492, 68 L. ed. 1062, L.R.A.1916C, 1, 34
Sup. Ct. Rep. 636, Ann. Cas. 1916B, 476,
9 N. C. C. A. 834; Delaware, L. k W. R.
Co. ▼. Yurkonis, 238 U. S. 439, 69 L. ed.
Jd97, 36 Sup. Ct. Rep. 902.
Mr. Aubrey L. Brooks argued the cause
and filed a brief for defendant in error:
The North Carolina Railroad Company,
as lessor to the Southern Railway Company,
is engaged in interstate commerce.
North Carolina R. Co. v. Zachary, 232 U.
S. 248, 68 L. ed. 693, 34 Sup. Ct. Rep. 305,
Ann. Cas. 1914C, 159, 9 N. C. C. A. 109.
An action may be maintained against it
for such negligence as is shown in this
record.
Ibid.; Logan v. North Carolina R. Co.
116 N. C. 941, 21 S. E. 959.
Suit was maintainable against the South-
ern Railway Company and the North Caro-
lina Railroad Company as joint tort feasors.
Torrence v. Shedd, 144 U. S. 627, 36 L.
ed. 628, 12 Sup. Ct. Rep. 726.
The case was not removable, the joinder
of the resident defendant being the exercise
of a lawful right.
Chesapeake k 0. R. Co. v. Cockrell, 232
U. S. 146, 68 L. ed. 644, 34 Sup. Ct. Rep.
278.
The act under which the suit was brought
expressly conferred jurisdiction upon the
state court to try and determine the issue
involved, whether the suit had been brought
against the North Carolina Railroad Com-
pany or the Southern Railway Company, or
both jointly.
Kansas City Southern R. Co. v. Leslie,
238 U. S. 699, 69 L. ed. 1478, 36 Sup. Ct.
Rep. 844.
The defendant in error at the time of
the injury was engaged in interstate com-
merce.
North Carolina R. Co. v. Zachary, 232 U.
S. 248, 68 L. ed. 691, 34 Sup. Ct. Rep. 306,
Ann. Cas. 1914C, 169, 9 N. C. C. A. 109;
Pedersen v. Delaware, L. ft W. R. Co. 229
U. S. 146, 57 L, ed. 1125, 33 Sup. Ct. Rep.
648; Ann. Cas. 1914C, 163, 3 N. C. C. A.
779; St. Louis, S. F. k T. R. Co. v. Scale,
229 U. S. 166, 67 L. ed. 1129, 33 Sup. Ct.
Rep. 661, Ann. Cas. 1914C, 166; Sears v.
Atlantic Coast Line R. Co. 169 N. C. 446,
86 S. E. 176.
The defendant did not plead assumption
of risk, nor was any issue relating thereto
tendered by it, or submitted by the court.
This is necessary, under our practice and
procedure, in order to raise that question,
as we regard it as a distinct defense, which
must be pleaded and an issue thereon ten-
dered by the defendant or submitted by the
court, of its motion.
Dorsett v. Clement-Ross Mfg. Co. 131 N.
C. 264, 42 S. £. 612 ; Eplee v. Southern R.
Co. 166 N. C. 293, 71 S. £. 326; Bolden ▼.
Southern R. Co. 123 N. Q, 614, 31 S. E.
851; West v.* Brevard Tanning Co. 164 N.
C. 44, 69 S. £. 087.
ast u. s.
1918L
SOUTHERN R. CO v. LLOYD.
497-490
[497] Mr. Justice Day delivered the
opinion of the court:
W. L. Lloyd, herein called the plaintiff,
brought his action in the superior court of
Guilford county, North Carolina, against
the defendant, the Southern Railway Com-
pany, joined with its lessor, the North
Carolina Railroad Company. The action
was brought under the Federal employers'
liability act of 1908, 35 Stat, at L. 65,
ehap. 149, as amended April 5th, 1910, 36
Stat, at L. 291, chap. 143,'Comp. SUt
1913, § 8662.
The North Carolina Railroad Company la
a corporation of the state of North Caro-
lina, owning a railroad line extending
from Goldsboro, North Carolina, to Char-
lotte, in the same state. The Southern
Railway Company is organized under the
laws of the state of Virginia, and is a com-
mon carrier engaged in interstate commerce,
transporting freight and passengers from
the city of Washington, District of Colum-
bia, through Greensboro, and over the tracks
of the North Carolina Railroad Company
ihrough Spencer, Salisbury, and Charlotte.
The petition charges that the Southern
Railway Company was, at the time of the
injuries complained of, operating as lessee
of the North Carolina Railroad Company
the roads and side tracks at Spencer; that
on January l!2th, 1911, plaintiff was cm-
ployed as an engineer by the defendant,
Southern Railway Company, upon its
freight trains running over said line of
road from Spencer, North Carolina, to
Monroe, Virginia, and was engaged in in-
terstate traffic; that upon said date he was
directed as engineer to take charge of a
certain engine at Spencer, to ascertain
whether the same was in serviceable con-
dition, as it had just come from the re-
pair shops; that while he was operating |
the engine on one of the side tracks of the
North Carolina Railroad Company's main
line at Spencer, and was oiling and in-
specting the same, in stooping over the
engine to ascertain if the ash pan and other
equipments were in proper condition, a lever
about 2 [408] feet long, located at the rear
of the driving wheel and the lower side of
the engine, used for the purpose of operat-
ing the damper to the ash pan, tripped and
violently struck the plaintiff in the fore-
head, causing serious harm and injury;
that the defective condition was known to
the Southern Railway Company, and un-
known to the plaintiff; that the plaintiff,
at the time of the injury, was employed by
the Southern Railway Company for the
purpose of transporting interstate commerce
running to and from Spencer, North Caro-
lina, along the main line of the Southern
Railway Company, part of which said line
•O L. ed.
included the portion of said North Carolina
Railroad Company's line leased by the
Southern Railway Company from Greens-
boro, North Carolina, to Spencer, North Car-
olina ; that the engine upon which the plain-
tiff was hurt was, and had been, exclusively
used by the Southern Railway Company in
the transportation of interstate commerce
over the line of said road between Spencer
and Monroe, Virginia, and that the plain-
tiff, at the time of his injury, was in charge
of said engine. Negligence of the Southern
Railway Company ia charged in furnishing
the plaintiff with an unsafe and dangeroua
engine, knowing the same to be such, and
thereby rendering the plaintiff's employ-
ment hazardous and dangerous, and un-
necessarily exposing him to peril.
The Southern Railway Company in due
season filed its petition for removal of the
case to the district court of the United
States for the western district of North
Carolina, because of its diversity of citi-
zenship with the plaintiff, and alleging that
the joinder of the North Carolina Railroad
Company, the local defendant, was fraudu-
lently made to avoid Federal jurisdiction;
that the plaintiff was not engaged in inter-
state commerce at the time of the accident;
that the engine upon which he was injured
was not engaged in any kind of commerce at
the time of the accident; and that these al-
legations in the petition were [400] fraud-
ulent and false, which the plaintiff know, or
could have ascertained by the exercise of
the slightest diligence upon his part. The
court refused to remove the case, to which
refusal the Southern Railway Company
excepted.
Upon issue joined, the case came on for
trial at the February term, 1913, of the
superior court of Guilford county. At the
close of plaintiff's testimony, the court inti-
mated that there was no cause of action
against the North Carolina Railroad Com-
pany; upon this intimation a nonsuit was
taken as to that company. Thereupon the
Southern Railway Company filed a second
petition for removal which the court, after
argument, granted, and an order was made,
removing the case to the district court of
the United States for the western district
of North Carolina. The plaintiff excepted
to this order of removal, and to the non-
suit as to the North Carolina Railroad Com-
pany, and, upon appeal to the supreme
court of North Carolina, that court held
that the case should not have been removed,
and remanded it to the superior court of
Guilford county for trial. 162 N. C. 485,
78 S. £. 489.
The case coming on again for trial in the
superior court, the Southern Railway Com-
pany renewed its objections to the juris-.
400-^1
SUPREME COURT OF THE UNITED STATES.
Oct. XkBK»
diction bj a plea, and set up that the case
had been docketed in the district court of
the United States for the western district
of North Carolina, that no motion had been
made to remand the same, that the order
removing it had not been revoked, and that
the case was then pending for trial in the
district court as aforesaid. The North
Carolina Railroad Company also filed a
plea to the jurisdiction. These pleas were
overruled, and upon trial a verdict and
judgment was rendered in favor of the
plaintiff. Upon appeal to the supreme court
of North Carolina, that judgment was af-
firmed. 166 N. C. 24, 81 S. E. 1003, 7 N.
C. C. A. 620.
From the statement of the case already
made, it is apparent that the plaintiff
sought to recover under the [500] Federal
employers' liability act, joining both rail-
road companies upon .the theory that the
lessor company remained liable under the
law of North Carolina upon the cause of ac-
tion asserted by the plaintiff. See North
Carolina R. Co. v. Zachary, 232 U. S. 248,
68 L. ed. 691, 34 Sup. Ct. Rep. 306, Ann. Cas.
101 4C, 160. On the face of the petition a
case was made invoking the jurisdiction of
the state court to recover under the Fed-
eral act, because of the negligence charged.
That the state court had jurisdiction of
such an action is expressly provided by
the Federal statute. Act of April 6, 1910,
36 Stat, at L. 291, chap. 143, Comp. Stat.
1913, § 8662.
In no case can the right of removal be
established b^r a petition to remove which
amounts simply to a traverse of the facts
alleged in the plaintiff's petition, and in
that way undertaking to try the merits of
a cause of action, good upon its face. Chesa-
peake & 0. R. Co. V. Cockrell, 232 U. S.
146, 68 L. ed. 644, 34 Sup. Ct. Rep. 278. It
is only in cases wherein the facts alleged
in the petition for removal are sufficient to
fairly raise the issue of fraud that the state
court is required to surrender its juris-
diction. The order of nonsuit in the trial
court as to the North Carolina Railroad
Company, appealed from by plaintiff, with
the right of review in the supreme court of
the state, did not make the case removable
as to the Southern Railway Company.
American Car k Foundry Co. v. Kettelhake,
236 U. S. 811, 60 L. ed. 694, 36 Sup. Ct.
Rep. 367. Moreover, as we shall see later,
under the employers' liability act, no case
is removable merely because of diversity of
citizenship.
The act of 1910, supra, expressly gives
jurisdiction to the state court, and pro-
Tides that no case arising under its provi-
•sions, brought in a state court of competent
jurisdiction, shall be removed to any court
of the United States. Section 28 of the
Judicial Code, 36 Stat, at L. 1087, chap.
231, Comp. Stat. 1913, § 1010, conUins a
like provision, and expressly provides that
no case arising under the employers' lia-
bility act or any amendment thereto,
brought in a state court of competent juris-
diction, shall be removed to any court of the
United States. The question of the effect
of this provision upon the right [501] to
remove a case because of diversity of citi-
zenship, since* the passage of the act re-
ferred to, was before this court and passed
upon in Kansas City Southern R. Ca v.
Leslie, 238 U. S. 699, 69 L. ed. 1478, 36
Sup. Ct. Hep. 844. It was therein held that
there was no authority to remove such ac-
tion from the state court to the Federal
court because of diversity of citizenship.
Nor did the alleged fraudulent joinder of
the local defendant in the state court give
such right. North Carolina R. Co.* v. Zach-
ary, supra. And see Chicago, R. I. k P. R.
Co. V. Whiteaker, decided in this court,
December 20, 1016 [239 U. S. 421, ante, 360,'
36 Sup. Ct. Rep. 152]. Such right did not
arise from the allegation of the removal
petition that the injury did not happen in
interstate commerce. Chesapeake & 0. R.
Co. V. Cockrell, supra. It follows that the
state court did not err in its judgment as
to the right of removal upon the facts pre*
sen ted in this case.
As to other questions of a Federal char-
acter, they may be briefly disposed of. It
is insisted that the trial court should have
given the instruction requested by the rail-
road company to the effect that, upon the
facts shown, the plaintiff was not engaged
in interstate commerce at the time of his
injury. Upon this subject there is testi-
mony in the record to support the allega-
tions of plaintiff's petition and the charge
to the jury as given. The trial court
charged that, in order to recover, the bur-
den was upon the plaintiff to show that at
the time he received his injury he was en-
gaged in interstate commerce. In refusing
the request asked, and leaving the issue to
the jury, the trial court committed no er-
ror, and the supreme court of the state
rightly affirmed the judgment in that re-
spect. North Carolina R. Co. v. Zachary,
supra; Pedersen v. Delaware, L. & W. R.
Co. 229 U. S. 146, 67 L. ed. 1126, 33 Sup.
Ct. Rep. 648, Ann. Cas. 1914C, 153, 3 N.
C. C. A. 779; New York C. & H. R. R. Co.
V. Carr, 238 U. & 260, 69 L. ed. 1298, 35
Sup. Ct. Rep. 780; Pennsylvania Co. v.
Donat, decided by this court November 1st,
1916 [239 U. S. 60, ante, 130, 36 Sup. Ct
Rep. 4.]
The court properly refused the request as
to contributory negligence and gave the rule
ast u. s.
Idlb.
HAPAI ▼. BKOWK.
601, 502
laid down in the employers' [602] liability
act. Ab to assumption of risk, the su-
preme court held that no such issue was
made or submitted to the trial court (a
conclusion fully supported by the record),
and therefore under the state practice no
question concerning that subject was pre-
sented on appeal. This conclusion denied
no right of a Federal character.
Judgment affirmed.
HENRY C. HAPAI, G. W. A. Hapai, and
Nelson K. Sniffen, Plffs. in £rr.,
▼.
HAY K. BROWN, Arthur M. Brown, Her
Husband, Blanche Walker, John Walker,
Her Husband, et al.
(See S. C. Reporter's ed. 502-506.)
Foreign Judgments ^ collateral attack.
1. A d^ree of the highest court of the
Kingdom of Hawaii, which has been given
«fTcct by ^he territorial supreme court as
an adjudication of title, should not be de-
clared invalid by the Federal courts on
the ground that the bill, being one for
partition, could not be made the means of
trying a disputed title.
I For otlier cases, see Judgment, VI. a. In Di-
gest Sap. Ct 1908.]
Appeal ^ mode of review ^ error to
IIa%valian sopreme court.
2. A decree of the Hawaiian supreme
court in a suit involving the requisite juris-
dictional amount, triea without a jury, is
reviewable in the Federal Supreme Court
by writ of error, under the provision of
the Judicial Code, § 246, by which writs
«f error and appeals from the final judg-
ments and decrees of the Supreme Court of
Hawaii may be taken in the same manner,
under the same regulations, and in the
same classes of cases in which they may be
taken from the final judgments and decrees
of the courts of a state, and also in all
cases wherein the amount involved, exclu-
sive of costs, exceeds the sum or value of
$5,000.
(For other cases, see Appeal and Error, II.
b. In Digest Sup. Ct. 1008.]
[No. 120.]
Argued December 17, 1015. Decided Jan-
uary 10, 1916.
I
N ERROR to the Supreme Court of the
Territory of Hawaii to review a decree
Note. — As to conclusiveness of judgment
Tendered in foreign country— see notes to
Dunstan v. Higgins, 20 L.R.A. 668; and
Fisher, B. & Co. v. Fielding, 32 L.R.A. 236.
(>u appellate jurisdiction of Federal Su-
preme Court over Hawaiian courts — see
note to Toyota v. Hawaii, 57 L. ed. U. S.
180.
«0 L. ed.
which afllrmed a decree of the Circuit Court
of the First Judicial Circuit in favor of
defendants in a suit to quiet title. Affirmed.
See same case below, 21 Haw. 756.
The facts are stated in the opinion.
Mr. Ix>rrin Andrews argued the cause
and filed a brief for plaintiffs in error:
A bill for partition cannot be made a
means of trying a disputed title.
Kaaimanu v. Kauwa, 3 Haw. 612; Kap-
uakela v. laea, 0 Haw. 555; Ahin v. Opele,
17 Haw. 525; Kaneohe Rice Mill Co. v.
Holi, 20 Haw. 600; Brown v. Davis, 21 Haw.
327 ; 4 Kent, Com. 365 ; Freeman, Cotenancy
k Partition, § 502; Bispham, Eq. 535; Nash
V. Simpson, 78 Me. 142, 3 Atl. 53; Pierce
V. Rallins, 83 Me. 172, 22 Atl. 110; Chapin
V. Sears, 18 Fed. 814; Clark v. Roller, 109
U. S. 541, 50 L. ed. 300, 26 Sup. Ct. Rep.
141; Brown v. Cranberry Iron & Coal Co.
18 C. C. A. 444, 25 U. S. App. 670, 72
Fed. 96, 40 Fed. 850; Stuart v. Coalter, 4
Rand. (Va.) 74, 15 Am. Dec 731; Hoff-
man V. Beard, 22 Mich. 62; Manners v.
Manners, 2 N. J. Eq. 384, 35 Am. Dec. 512 ;
I^eil V. West, 21 Fla. 508; Hay v. Estell,
18 N. J. Eq. 252; Lucas v. King, 10 N.
J. Eq. 280; Tobin v. Tobin, 45 Wis. 200;
Slockbower v. Kanouse, 50 N. J. Eq. 481,
26 Atl. 333; Horton v. Sledge, 29 Ala. 478;
Shearer v. Winston, 33 Miss. 140; Ellis
V. Feist, 65 N. J. Eq. 548, 56 Atl. 369;
Havens v. Seashore Land Co. 57 N. J. Eq.
143, 41 Atl. 755; Riverview Cemetery Co. v.
Turner, 24 N. J. Eq. 18; Lewis v. Cocks,
23 Wall. 471, 23 L. ed. 71; Walker v. Laflin,
26 111. 473.
The jurisdiction to review judgments or
decrees of the courts of the territory of
Hawaii is to be determinedi not by the law
governing as respects territories generally,
but by U. S. Rev. Stat. § 709, relating to
the power to review judgments and decrees
of state courts.
Equitable Life Assur. Soc. v. Brown, 187
U. S. 309, 47 L. ed. 191, 23 Sup. Ct. Rep.
123; Wilder's S. 8. Co. v. Hind, 47 C. C.
A. 243, 108 Fed. 113.
This court hat considered writs of error
in jury-waived cases and decided the same
on their merits.
Damon v» Hawaii, 104 U. 8. 154, 48 L.
ed. 016, 24 Sup. Ct Rep. 617.
Mr. A. A. Wilder argued the cause, and,
with Messrs. Alexander Britton, Evans
Browne, and F. W. Clements, filed a brief
for defendants in error:
The trial and the determination of the
issue of title was with the consent of the
parties. Under such circumstances the ob-
jection must now be deemed to have been
waived.
Kuala V. Kuapahi, 16 Haw. 800; Reynes
603-505
SUPREME COURT OF THE UNITED STATES.
Oci. Term,
V. Dumont, 130 U. S. 354, 305, 32 L. ed.
934, 946, 9 Sup. Ct. Rep. 486; Kilbourn v.
Sunderland, 130 U. S. 505, 514, 32 L. ed.
1005, 1008, 9 Sup. Ct. Rep. 594; Brown,
B. & Co. ▼. Lake Superior Iron Co. 134
U. S. 530, 33 L. ed. 1021, 10 Sup. Ct. Rep.
604; Tyler ▼. Savage, 143 U. S. 79, 97, 36
L. ed. 82, 88, 12 Sup. Ct. Rep. 340; Re
Tyler, 149 U. S. 164, 181, 37 L. ed. 689,
694, 13 Sup. Ct. Rep. 785 ; Hollina ▼. Brier-
field Coal k I. Co. 150 U. S. 371, 381, 37
L. ed. 1113, 1115, 14 Sup. Ct. Rep. 127;
Ingley v. United States, 150 U. S. 512, 515,
37 L. ed. 1163, 1165, 14 Sup. Ct. Rep. 158;
Pollock V. Farmers' Loan k T. Co. 157 U.
S. 429, 554, 39 L. ed. 759, 809, 1^ Sup. Ct.
Rep. 673; Detroit v. Detroit Citizens' Street
R. Co. 184 U. S. 368, 381, 46 L. ed. 592,
605, 22 Sup. Ct. Rep. 410; Beyer v. Le
Fevre, 186 U. S. 114, 118, 46 L. ed. 1080,
1082, 22 Sup. Ct. Rep. 765.
The appellate jurisdiction of this court
over the judgment of a territorial court in
a case where there was no trial by jury is
by appeal, and by appeal only.
Stringfellow v. Cain, 99 U. S. 610, 25 L.
ed. 421; Hecht v. Boughton, 105 U. S. 235,
26 L. ed. 1018; United States v. Union P.
R. Co. 105 U. S. 263, 26 L. ed. 1021; Story
v. Black, 119 U. S. 235, 30 L. ed. 341, 7
Sup. Ct. Rep. 176; Woolf v. Hamilton, 108
U. S. 15, 27 L. ed. 635, 1 Sup. Ct. Rep. 139;
Bonnifleld v. Price, 154 U. S. 672, and 26
L. ed. 1022, 14 Sup. Ct. Rep. 1194; Porto
Rico v. Emmanuel, 235 U. S. 251, 59 L.
ed. 215, 35 Sup. Ct. Rep. 33.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is a bill to quiet title to an un-
divided ^%Q of the ahupuaa of Kaonoulu,
a large tract of land in the island of Maui,
territory of Hawaii. The plaintiffs claim
through the children of one Keaka other
than one daughter, Paakuku, through whom
the defendants claim the whole tract.
One of the defenses was res judicata.
The proceeding relied upon as having de-
cided the relative rights of the parties was
a bill brought in November, 1871, by the
plaintiffs' predecessors against Paakuku and
others, alleging title in Keaka during her
life; a devise by her to her heirs, followed
by joint possession on the part of the
plaintiffs and of Paakuku as quasi trustee;
and waste, a wrongful sale and a wrongful
lease by Paakuku. The bill prayed for an
account from Paakuku, that the sale and
lease be ordered to be canceled as against
the plaintiffs, and that a partition be de-
creed. Paakuku's answer set up a convey-
ance of the premises by Keaka to her in
fee, and continuous possession by her since
the date of the same. It also alleged that
408
Keaka's will, if not overridden by the sub-
sequent deed, devised the land to Paakuku
in fee, subject to some merely personal and
revocable rights in some of the plaintiffs.
[504] The case was tried in the supreme
court before the Chief Justice. On October
1, 1874, a minute was entered: "The opin-
ion of the court is that the petitioners have
no title to the lands of Kaonoulu and Kalu-
apulu and so adjudge. There is no con-
troversy about the title of the land at
Wailuku and the petition for partition of
that land is hereby granted and decreed
accordingly." An <^inion filed two days
later discusses the title, decides that the
deed alleged by Paakuku is freed from
every suspicion, and repeats the language
of the minute. On October 12 it was de-
creed that the plaintiffs take nothing by
their bill. The supreme court in the pres-
ent case expressed the opinion which, apart
from the deference due to it upon a local
matter, does not require argument to sup-
port it, that the intention and meaning of
the decree of October 12 was t» dismiss
the bill on the ground that the plaintiffs
had not the title alleged. It therefore af-
firmed a judgment for the defendants, hold-
ing that the plaintiffs were concluded by
the former decree. The only point, if any,
that can be argued, is that in general a
bill for partition cannot be made a means
of trying a disputed title (Clark v. Roller,
199 U. S. 541, 545, 60 L. ed. 300, 302, 26
Sup. Ct. Rep. 141), and that therefore the
decree should be taken to be a dismissal for
want of jurisdiction, or at least allowed
no greater effect than if it had gone on
that ground.
But, as we cannot doubt the import of
the decree when rendered, we are narrowed
in our inquiry to the question of juris-
diction in an accurate sense. Unless we
are prepared to pronounce the decree void
for want of power to pass it, and open to
collateral attack, the decision in this case
must stand. But there was no inherent
difliculty, no impossibility in the nature of
things or for want of physical power, in
the attempt to decide title in the suit of
1871. And, as was observed at the last
term, it would seem surprising to suggest
that the highest court in the Hawaiian
Islands did not Know its own powers, or de-
cide in accordance [505] with the require-
ments of the law of which that court was
the final mouthpiece. John li Estate v.
Brown, 235 U. S. 342, 349, 59 L. ed. 259, 35
Sup. Ct. Rep. 106. The plaintiffs in the
former case in no way protested against the
trial of their title, but, on the contrary^
sought relief distinct from partition, that
made the trial necessary. Even if we were
disposed to go behind the decisions of the
239 U. S.
191&
HAUiOWELL V. COMMONS.
605, 50d
Qiief Justice of the Kingdom and of the
highest court of the territory upon a mat-
ter like this, it would seem to us as un-
reasonable to hold the adjudication of title
void because partition was prayed as to hold
it void because the decree was made upon a
multifarious bill. The cases where objec-
tions to the jurisdiction, though taken in
the cause, have been held to have been
waived, go farther than we have to go
here. We will not speculate as to how ex-
treme a case must be to produce a different
result; it is enough that this is far from
the line.
The defendants in error filed a motion to
dismiss, which, in view of our opinion up-
on the merits, they probably would not
care to press, but which we are not at
liberty to disregard. The case is brought
here by writ of error, whereas, it is said,
it should have been brought up by appeal.
By § 246 of the Judicial Code of March 3,
1911, chap. 231, 36 Stat, at L. 1087, Comp.
SUt. 1913, § 1223, writs of error and ap-
peals from the final judgments and de-
crees of the supreme court of Hawaii may
be taken ''in the same manner, under the
lame regulations, and in the same classes
of cases, in which" they may be taken from
the final judgments and decrees of the
court of a state, ''and also in all cases
wherein the amount involved, exclusive of
eoets, . . . exceeds the sum or value of
five thousand dollars.'' The present suit
comes here under the last clause; at the
trial a jury was waived, and the proposi-
tion is that the earlier, provisions of the
section do not govern this clause, but that,
except when there is s trial by jury, the
cases there mentioned must be brought to
this court by appeal under the act of April
7, 1874, chap. 80, § 2, 18 Stat at L. 27,
Comp. Stat. 1913, § 1652. It is said that
[606] this has been the practice. See, e, g.^
William W. Bierce v. Uutchins, 206 U. S.
340, 51 L. ed. 828, 27 Sup. Ct. Rep. 524.
Whether or not the incidental assumption in
that decision that an appeal would lie was
correct, we are of the opinion that the pro-
ceeding by writ of error was justified by
the plain meaning of § 246. So far as the
policy ot Congress . might permit (see act
of March 3, 1915, chap. 90, § 274b, 38 Stat,
at L. 956), we should be disposed to be a
little astute to save a party's rights from
being lost through mistakes upon a techni-
cal matter in the somewhat confused con-
dition of the statutes. But we cannot
doubt that the path adopted was right.
Judgment affirmed.
•• Ii. ed.
SIMEON HALLOWELL, Appt.,
V.
JOHN M. COMMONS, as Acting IndUn
Agent and Superintendent and Special
Disbursing Agent for the Omaha Tribe
of Indians of Nebraska, and Sarah II.
Walker.
(See S. C. Reporter's ed. 506-509.)
Federal courts — jurisdiction — suit
by heir of Indian allottee.
1. Any jurisdiction which the Federal
courts may have had of suits to establish
the equitable title of alleged heirs of an
Indian allottee dying intestate during the
trust period must be deemed to have been
taken away, even as to pending cases, by the
provisions of the act of June 25, 1910 (36
Stat, at L. 855, chap. 431, Comp. Stat.
1913, § 4226), vesting in the Secretary of
the Interior the final and conclusive ascer-
tainment of such heirs, notwithstanding
the provision of U. S. Rev. Stat. § 13,
Comp. Stat. 1013, § 14, that the repeal of
any statute shall not extinguish any lia-
bility incurred under it.
[For other cases, see Courts, V. c, 2, g, In
Digest Sup. Ct. 1908.]
Federal courts — jurisdiction — con-
gressional control — suit by heir of
Indian allottee.
2. Congress, in the exercise of its con-
trol over courts of its own creation and
over the Indians, could validly take away,
even as to pending cases, as it did by the
act of June 25, 1910 (36 Stat, at L. 855,
chap. 431, Comp. SUt. 1913, § 4226), any
jurisdiction which the Federal district
courts may have had of suits to establish
the equitable title of alleged heirs of au
Indian allottee dying intestate during the
trust period, and vest in the Secretary of
the Interior the final and conclusive as-
certainment of such heirs.
[For other cases, see Courts. I. J; Indians^
VIII., in Digest Sup. Ct. 1908.]
[No. 135.]
Submitted December 15, 1915. Decided
January 10, 1916.
•
APPEAL from the United States Circuit
Court of Appeals for the Eighth Cir-
suit to review a decree which afiirmed a
decree of the District Court for the District
of Nebraska, dismissing the bill in a suit
to establish the equitable title of an alleged
heir of an Indian allottee dying intestate
during the trust period. Afiirmed.
See same case below, 127 C. C. A. 343,
210 Fed. 793.
The facts are stated in the opinion.
Note. — ^As to Federal control over In-
I dians — see note to Worcester ▼. Qeorgia, 8
' L. ed. U. S. 484.
607, 508
SUPREME COURT OF THE UNITED STATES.
Oct. Tsmm,
Messrs. Hiram Chmse and William
Ross King submitted the cause for appel-
lant:
The repeal or amendment of a statute con*
ferrlng a right has been held not applicable
to pending cases.
United SUtes Fidelity & G. Co. ▼. United
States, 209 U. S. 306, 52 L. ed. 804, 28 Sup.
Ct. Rep. 537; United States Fidelity k G.
Co. V. United States, 204 U. S. 349, 51 L.
ed. 516, 27 Sup. Ct. Rep. 381; Burton v.
Seifert A Co. 108 Va. 338, 61 8. E. 933.
. At common law, all actions were ter-
minated with the repeal of the statute under
which they existed. The evil, effect of this
rule, both with respect to criminal and civil
actions pending at the time of amendment,
has been recognized by numerous statutes
and by the trend of decisions, which in every
way seek to avoid the consequences of the
common-law rule.
Eastman v. Clackamas County, 32 Fed.
33; Hertz v. Woodman, 218 U. S. 216, 54
L. ed. 1006, 30 Sup. Ct. Rep. 621; Burton
V. Seifert & Co. 108 Va. 338, 61 S. E. 933;
Merlo V. Johnston City & B. M. Coal k Min.
Co. 258 111. 328, 101 N. E. 525; Consolidated
Barb Wire Co. v. Stevenson, 71 Kan. 64,
79 Pac. 1085; Wells v. Remington, 118 Wis.
573, 95 N. W. 1004; Murphy v. Uttter, 186
U. S. 95, 46 L. ed. 1070, 22 Sup. Ct. Rep.
776; Hochstettler v. Mosier Coal & Min. Co.
8 Ind. App. 442, 35 N. E. 027.
Assistant Attorney General Knaebel
submitted the cause for appellees:
The plain result of the act of 1910 was
to transfer back to the Secretary of the In-
terior the exclusive power to settle disputes
like the one here involved, which had been
taken away from him and vested in the
Federal courts by the acts of 1894 and
1901; and so it has been held, even in cases
which were pending before the act of 1910
became effective.
Bond V. United States, 181 Fed. 613 ; Pel-
AU-Yakot V. United States, 188 Fed. 387 ;
Parr v. Colfax, 117 C. C. A. 48, 107 Fed.
302.
If a law conferring jtirisdiction is 're-
pealed without any reservation as to pend-
ing cases, all such cases fall with the law.
Baltimore & P. R. Co. v. Grant, 08 U. S.
398, 401, 25 L. ed. 231, 232.
Mr. Justice Holmes delivered the opin-
ion of the court:
lliis is a bill to establish the equitable
title of the plaintiff to an allotment made
to Jacob Hallowell, deceased, a member
of the Omaha Tribe, in accordance with
§§ 5, 6, of the act of August 7, 1882, chap.
434, 22 Stat, at L. 341. The patent to
Jacob Hallowell followed the language of
4f
§ 6, and declared that the United Staten
would hold his land for the period of
twenty-five years in trust for the sole use
of the allottee "or in case of his decease, of
his heirs according to the laws of the state
of Nebraska." Ihe plaintiff says that he
is the sole heir as against various other
claims set forth in the bilL We do not go
into further particulars, as we are of opin-
ion that the circuit court of appeals was
right in holding that the district court had
no [508] jurisdiction of the case. 127 C.
C. A. 343, 210 Fed. 793.
It is unnecessary to consider whether
there was jurisdiction when the suit was
begun. By the act of June 25, 1910, chap.
431, 36 Stat, at L. 855, Comp. Stat. 1913,
§ 4226, it was provided that in a case like
this of the death of the allottee intestate
during the trust period, the Secretary of
the Interior should ascertain the legal heirs
of the decedent, and his decision should be
final and conclusive; with considerable dis-
cretion as to details. This act restored to
the Secretary the power that had been taken
from him by acts of 1894 [28 Stot. at L.
305, chap. 290] and February 6, 1901, chap.
217, 31 Stat, at L. 760, Comp. Stat. 1913,
§ 4214. McKay v. Kalyton, 204 U. S. 458,
468, 51 L. ed. 566, 570, 27 Sup. Ct. Rep.
346. It made his jurisdiction exclusive in
terms, it made no exception for pending
litigation, but purported to be universal,
and so to take away the jurisdiction that
for a time had been conferred upon the
courts of the United State^. The appellant
contends for a different construction on the
strength of Rev. Stat. § 13, Comp. Stat.
1913, § 14, that the repeal of any statute
shall not extinguish any liability incurred
under it (Hertz v. Woodman, 218 U. S.
205, 216, 54 L. ed. 1001, 1000, 30 Sup. Ct.
Rep. 621), and refers to the decisions up-
on the statutes concerning suits upon cer-
tain bonds given to the United States (Unit-
ed States Fidelity & G. Co. v. United States,
209 U. S. 306, 52 L. ed. 804, 28 Sup. Ct. Rep.
537). But, apart from a question that we
have passed, whether the plaintiff even at-
tempted to rely upon the statutes giving ju-
risdiction to the courts in allotment cases, the
reference of the matter to the Secretary,
unlike the changes with regard to suits upon
bonds, takes away no substantive right, but
simply changes the tribunal that is to hear
the case. In doing so ii evinces a change
of policy, and an opinion that the rights
of the. Indians tan be better preserved by
the quasi paternal supervision of the gen-
eral head of Indian affairs. The considera-
tion applies with the same force to all
eases, and was embodied in a statute that
no doubt was intended to apply to all, so
far as construction is concerned.
289 U. S.
1915.
SEVEN CASES v. UNITED STATES.
600, 610
[509] There is equally little doubt as to
tlie power of Congress to pass the act, so
construed. We presume that no one would
question it if the suit had not been begun.
It is a strong proposition' that bringing
this bill intensified, strengthened, or en-
larged the plaintiff's rights, as suggested in
De Lima ▼. Bidwell, 182 U. S. 1, 190, 200, 45
L. ed. 1041, 1057, 1058, 21 Sup. Ct Rep.
743. See Simmons ▼. Hanover, 23 Pick.
188, 103, 194; Hepburn v. Cnrts, 7 Watts,
300, 32 Am. Dec. 760; Welch v. Wadsworth,
30 Conn. 140, 154, 70 Am. Deo. 236; Atwood
V. Buckingham, 78 Conn. 423, 62 Atl. 616.
The diillculty in applying such a proposi-
tion to the control of Congress over the
jurisdiction of courts of its own creation is
«8pecially obvious. See Bird v. United
SUtes, 187 U. a 118, 124, 47 L. ed. 100,
103, 23 Sup. Ct. Rep. 42. In any event, the
rights of the Indians in this matter re-
mained subject to such control on principles
that have been illustrated in many ways.
See Marchie Tiger v. Western Invest. Co.
221 U. S. 286, 55 L. ed. 738, 31 Sup. Ct.
Rep. 578; Hallowell v. United SUtes, 221
U. S. 317, 55 L. ed. 750, 31 Sup. Ct Rep.
587.
The decision of the Circuit Court of Ap-
peals in this case is in accord with such
earlier decisions, as we have seen. Bond
T. United SUtes, 181 Fed. 613; Pel-aU-yakot
v. United SUtes, 188 Fed. 387; Parr ▼.
Colfax, 117 C. C. A. 48, 197 Fed. 302.
Decree dismissing the bill for want of
jurisdiction affirmed.
(510] SEVEN CASES (More or Less),
Eaeh ConUining Twelve Bottles of Eck-
man's Alterative, Eckman Manufacturing
Company, Owner, Plff. in Err.,
V.
UNITED STATES OF AMERICA. (No. 50.)
SIX CASES (More or Less), Each Con-
Uining Twelve Bottles of Eckman's Al-
terative, Eckman Manufacturing Com-
pany, Owner, Plff. in Err.,
V.
UNITED STATES OF AMERICA. (No. 51.)
(See S. C. Reporter's ed. 510-519.)
Commerce — In misbranded drugs ^
power of Congress — prohibiting
false Btatemenu as to curative ef-
fecu.
1. Congress, in the exercise of iU au-
thoribr over interstate commerce, could
lawful] V amend the food and dru^ act of
June SN), 1906 (34 SUt. at L. 768, chap.
^915), § 8, as it did by the act of August
23, 1912 (37 SUt. at L. 416, chap. 352,
Comp. SUt. 1913, § 8724), so as to make
40 L. ed.
contraband of intersUte commerce, as mis-
branded, drugs which bear or oonUin in
or upon packages or Ubels false and fraud-
ulent sUtemenU as to ourative or thera-
peutic effect.
[For other cases, see Commerce, lY. b, 1, in
Digest Sup. Ci 1908.1
Pure food and drugs law — misbrand-
iniT ^ statements in circnlara.
2. Circulars conUined in the package
are comprehended by the amendment of
August 23, 1912 (37 SUt. at L. 416, chap.
352, Comp. SUt. 1913, § 8724), to the
foo4 and drugs act of Jime 30, 1906 (34
SUt. at L. 768, chap. 3915), § 8, declaring
that a drufl shall be deemed to be mis-
branded if lu package or laliel shall bear
or conUin any sUtement, design, or de-
vice regarding the curative or werapeutic
effect of the drug or anv of the ingredients
or substances conUined therein, which is
false and fraudulent.
[For other cases, see Food and Drngs, In Dl-
^tt Sup, Ct. 1918 Supp.]
Constitutional law ^ due process of
law — indeflniteness of penal sUtuto.
3. There is no such uncerUinty in the
amendment by the act of August 23, 1912
(37 SUt. at L 416, chap. 362, Comp. SUt.
1913, S 8724), to the food and drugs act of
June 30, 1906 (34 SUt. at L. 768, chap.
3915), § 8, making contraband of intersUte
commerce, as misbranded, drugs which bear
or conUin in or upon packages or labels
false and fraudulent sUtemenU as to cura-
tive or therapeutic effect, as te render the
amendatery act repugnant, te U. S. Const.,
5th Amend., as operating as a deprivation
of liberty and property without due process
of law, or to the 6th Amendment, as not
permitting of the laying of a definite
charge.
[For other cases, see Constitutional Law, IV.
b. 9; Criminal Law, I. a, la Digest Sup. Ct.
1908.1
Pnre food and drugs law — snfllclency
of libel — allegation of false and
fraudulent statements of tlierapentio
effect.
4. The falsity and fraudulent char-
acter of the sUtemenU and circulars con-
Uined in each package of a drug, vis.,
"Effective as a prevenUtive for pneumonia,'*
and "We know it has cured," and that it
NoTK. — On the power of Congress te regu-
late commerce — see notes te SUte ex rel.
Corwin v. Indiana & 0. Oil, (?as k Min. Co.
6 L.R. A. 579 ; Bullard v. Northern P. R. Co.
11 L.R.A. 246; Re Wilson, 12 L.RJI. 624;
Gibbons v. Ogden, 6 L. ed. U. S. 23 ; Brown
V. Maryland, 6 L. ed. U. S. 678; Gloucester
Ferry Co. v. Pennsylvania, 29 L. ed. U. S.
158; Ratterman v. Western U. Teleg. Co.
32 L. ed., U. S. 229; Harmon t. Chicago,
37 L. ed. U. S. 216; and Cleveland, C. C. &
St. L. R. Co. V. Backus, 88 L. ed. U. S. 1041.
As te validity of police regulations as te
branding or labeling articles of commerce-^
see note to Alcorn Cotton Oil Co. v. SUte,
40 L.RJl.(N.S.) 875.
As to expression of opinion as fraud —
see note to Hedin v. Minneapolis Medical k
Surgical Institute, 85 L.RJL 417.
4ii
SUPBEME OOURT OF THE UNITED STATES.
Oor.
*'will cure tuberculosis/' is sufficiently
shown in libels for the condemnation of
the drues as misbranded, in violation of
the food and drugs act of June 30, 1006
(34 Stat, at L. 708, chap. 3915), § 8, as
amended by the act of August 23, 1912
(37 Stat, at L. 416, chap. 352, Comp. Stat.
1013, § 8724), where it is alleged that
such statements were false and fraudulent,
and with respect to tuberculosis it was
averred that the statement was that the
article "has cured," and "will cure," where-
as, "in truth and in fact," it will "not cure,"
and there is no "medicinal substance nor
mixture of substances known at present"
which can be relied on to effect a cure.
[For Giber cases, see Food and Drugs, in Dl-
gest Sup, Ct. 1913 Supp.l
[Nob. 50 and 51.]
Argued December 2, 1915. Decided Janu-
ary 10, 1916.
TWO WRITS OF ERROR to the District
Court of the United States for the
District of Nebraska to review judgments
condemning drugs as misbranded. Affirmed.
The facts are stated in the opinion.
Mr. Daniel W. Baker argued the cause,
and, with Mr. Francis D. Weaver, filed a
brief for plaintiff in error:
This is a penal statute and must be con-
strued as such.
Hipolite Egg Co. ▼. United States, 220 U.
S. 45-60, 55 L. ed. 364-369, 31 Sup. Ct
Rep. 364; United States v. Johnson, 177
Fed. 313: Huntington v. Attrill, 146 U. S.
667-669, 36 L. ed. 1127, 1128, 13 Sup. Ct.
Rep. 224; United States v. Chouteau, 102
U. S. 603, 26 L. ed. 246; Lagler v. Bye,
42 Ind. App. 592, 85 N. E. 36; Diversey v.
Smith, 103 111. 390, 42 Am. Rep. 14; Boyd
V. United States, 116 U. S. 616, 29 L. ed.
746, 6 Sup. Ct. Rep. 524; Coffey v. United
States, 116 U. S. 436, 29 L. ed. 684, 6 Sup.
Ct. Rep. 437; Lees v. United States, 150
U. S. 476, 37 L. ed. 1150, 14 Sup. Ct. Rep.
163; Hepner v. United States, 213 U. S.
Ill, 53 L. ed. 723, 27 L.R.A.(N.S.) 739,
29 Sup. Ct. Rep. 474, 16 Ann. Cas. 960;
United States v. Harris, 177 U. S. 305, 44
L. ed. 780, 20 Sup. Ct. Rep. 609; United
States ▼. Lacher, 134 U. S. 629, 33 L. ed.
1083, 10 Sup. Ct. Rep. 625; Northern Se-
curities Co. ▼. United SUtes, 193 U. S.
358, 48 L. ed. 709, 24 Sup. Ct. Rep. 436<
The power of Congress over interstate
commerce is not an unlimited power. The
power of Congress is prescribed by the Con-
stitution. And the power to regulate com-
merce is like all 'the other powers given by
the Constitution, and it cannot and must
not be construed to extend to regulations
of police, which have been left with the
4ia
states and cannot be assumed by the na-
tional government.
Keller v. United States, 213 U. S. 138,
53 L. ed. 737, 29 Sup. Ct. Rep. 470, 16
Ann. Cas. 1066; United States v. Delaware
& H. Co. 164 Fed. 229 ; McDermott v. Wis-
cousin, 228 U. S. 115, 57 L. ed. 754, 47
LJLA.(N.S.) 984, 33 Sup. Ct. Rep. 431,
Ann. Cas. 1915A, 39.
The act violates the 5th and 6th Amend-
ments to the Federal Constitution.
United States ▼. Delaware & H. Co. 164
Fed. 229; American School v. McAnnulty,
187 U. S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep.
33; Tozer v. United States, 4 Inters. Com.
Rep. 245, 52 Fed. 919; Todd v. United
States, 158 U. S. 282, 39 L. ed. 982, 15
Sup. Ct. Rep. 889; United States v. Lacher,
134 U. S. 628, 33 L. ed. 1083, 10 Sup. Ct.
Rep. 625; United States v. Grimaud, 170
Fed. 210; State v. Mann, 2 Or. 241; Brown
V. State, 137 WU. 543, 119 N. W. 338;
United States v. Capital Traction Co. 34
App. D. C. 597, 19 Ann. Cas. 68.
Ihe libel is not specific, in that it docs
not directly point out to the defendant
wherein he has violated the law.
United States v. Simmons, 96 U. S. 360,
24 L. ed. 819; United SUtes v. Carll, 105
U. S. 611, 26 L. ed. 1135, 4 Am. Crim. Rep.
246; United States v. Hess, 124 U. S. 483,
31 L. ed. 516, 8 Sup. Ct. Rep. 571; Petti-
bone V. United States, 148 U. S. 202, 37
L. ed. 422, 13 Sup. Ct. Rep. 542; Blitz v.
United States, 153 U. S. 315, 38 L. ed. 727,
14 Sup. Ct. Rep. 024; Evans v. United
States, 153 U. S. 587, 38 L. ed. 831, 14 Sup.
Ct. Rep. 934, 9 Am. Crim. Rep. 668; Led-
better v. United States, 170 U. S. 610, 42
L. ed. 1163, 18 Sup. Ct. Rep. 774.
Where there is used a written instrument
as a ground for an offense or cause of ac-
tion, such instrument must be set out either
in its legal effect or in substance, and it
cannot be referred to by disconnected parts
or sentences.
McClure v. Review Pub. Co. 38 Wash.
160, 80 Pac. 303; Edgerley v. Swain, 32
N. H. 481; Com. v. Wright, 1 Cush. 62;
Schubert v. Richter, 92 Wis. 199, 66 N. W.
107.
There can be no proceeding under the
pure food and drugs act to condemn drugs,
unless alleged fraudulent and false state-
ments appear on the original packages, or
on the bottles themselves. There can be no
seizure where the statements are not con-
tained on the label or on the package.
United States v. American Druggists' Syn-
dicate, 186 Fed. 387; McDermott v. Wis-
consin, 228 U. S. 115, 57 L. ed. 754, 47
L.RJi.(N.S.) 984, 33 Sup. Ct. Rep. 431,
Ann. Cas. 1915A, 39.
2S9 V. 8,
1915.
SE^'EX CASES V. UNITED STATES.
^alaely/' when used at a foundation for
a criminal prosecution, or a quasi criminal
proceeding like this, means something more
than merely untrue.
Hatcher ▼. Dunn, 102 Iowa, 411, 36 L.R^.
489, 71 N. W. 343; Ratterman v. Ingalls,
48 Ohio Si. 468, 28 N. E. 168; SUte ▼.
Brady, 100 Iowa, 191, 36 L.RJL 693, 62
Am. St. Rep. 560, 69 N. W. 290.
By the use of the word "fraudulent," in
the Sherley amendment, it was intended that
the statement made must be a fraudulent
act on the part of the person making it, —
that the party making the statement must
be guilty of some act of moral turpitude.
MiUer ▼. Tobin, 18 Fed. 609; Ball t.
lively, 4 Dana, 370; Hagerman ▼. Buchan-
mn, 45 N. J. Eq. 292, 14 Am. St. Rep. 732,
17 Atl. 946; Byard ▼. Holmes, 34 N. J. L.
296, • Mor. Min. Rep. 657; People t.
Wiman, 85 Hun, 320, 32 N. Y. Supp. 1037 ;
Re Reiifeld, 36 Misc. 472, 73 N. Y. Supp.
808; 4 Bouvier's, Inst. 167.
The words "fraud" and "fraudulent" are
mere conclusions of law, and the mere use
of them in a pleading is of no effect. The
pleading must state facts showing the state-
ments to be fraudulent.
Phcenix Ins. Co. ▼. Moog, 78 Ala. 284, 56
Am. Rep. 31; St. Louis A, S. F. R. Co. v.
Johnson, 133 U..S. 566-578, 33 L. ed. 683-
687, 10 Sup. Ct. Rep. 390; Fogg t. Blair,
139 U. S. 118-127, 35 L. ed. 104-107, 11
Sup. Ct. Rep. 476; Fox y. Hale k N. Silver
Hin. Co. 5 Cal. Unrep. 980, 53 Pac. 32;
Tolbert ▼. Caledonia Ins. Co. 101 Ga. 746, 28
S. E. 991; Anderson Transfer Co. v. Fuller,
73 111. App. 52; Ward ▼. Luneen, 25 111.
App. 160; Kerr ▼. Steman, 72 Iowa, 241,
33 N. W. 654; Cohn ▼. Goldman, 76 N. Y.
284; 16 Cyc. 231; Cqsgrove T. Fisk, 90 Cal.
75, 27 Pac. 56; New Bank y. Kleiner, 112
Wis. 287, 87 N. W. 1090; Cade v. Head
Camp, P. J. W. W. 27 Wash. 218, 67 Pac.
603; Crowley y. Hicks, 98 Wis. 566, 74
N. W. 348; Brans y. United States, 153
U. S. 584, 38 L. ed. 830, 14 Sup. Ct. Rep.
934, 9 Am. Crim. Rep. 668; United States
T. Post, 113 Fed. 852; Erbaugb v. United
States, 97 C. C. A. 663, 173 Fed. 435;
Etheredge y. United SUtes, 108 C. C. A.
356, 186 Fed. 437; United States y. Louis-
TUle k N. R. Co. 165 Fed. 036; United SUtes
▼. 68 Cases of Syrup, 172 Fed. 782 ; United
States y. 650 Cases of Tomato Catsup, 166
Fed. 773; Nave-McCord Mercantile Co. y.
United States, 104 C. C. A. 486, 182 Fed.
46.
Assistant Attorney General Underwood
trgoed the cause and filed a brief for de-
teidant in error:
The letter of the amendment, its spirit
tad that of the entire act» the evil to be
60L. ed.
remedied, and the legislative history of the
amendment, all show indubitably that Con-
gress intended to exclude from interstate
commerce all articles accompanied by false
and fraudulent representations of the kind
in question, whether printed on the ex-
terior label or upon circulars inclosed with-
in the original package.
Church of the Holy Trinity v. United
SUtes, 143 U. S. 457, 463, 36 L. ed. 226,
229, 12 Sup. Ct. Rep. 511; Lake County
V. Rollins, 130 U. S. 662, 670, 32 L. ed.
1060, 1063, 9 Sup. Ct. Rep. 651; United
States y. Lexington Mill k Elevator Co. 232
U. S. 399, 400, 58 L. ed. 658, 661, LJtA.
1915B, 774, 34 Sup. Ct. Rep. 337; United
States y. Antikamnia Chemical Co. 231 U.
S. 654, 667, 58 L. ed. 410, 425, 34 Sup.
Ct. Rep. 222, Ann. Cas. 1915A, 49; United
SUtes y. Goldenberg, 168 U. S. 95, 102, 42
L. ed. 394, 398, 18 Sup. Ct. Rep. 3; Pot-
ter's Dwarr. SUt. 146; New Lamp Chimney
Co. V. Ansonia Brass k Copper Co. 91 U.
S. 656, 663, 23 L. ed. 336, 339; Johnson v.
Southern P. Co. 106 U. S. 1, 18, 49 L. ed.
363, 369, 25 Sup. Ct. Rep. 158, 17 Am.
Neg. Rep. 412; United States v. Winn, 3
Sumn. 211, Fed. Cas. No. 16,740; Post-
master General v. Early, 12 Wheat. 136,
148, 6 L. ed. 577, 582; Murphy v. Utter,
186 U. S. 95, 46 L. ed. 1070, 22 Sup. Ct.
Rep. 776; Piatt v. Union P. R. Co. 99 U.
S. 48, 58, 25 L. ed. 424, 427.
The Sherley amendment is a constitution^
al regulation of intersUte commerce.
Gibbons v. Ogden, 9 Wheat. 1, 196, 6
L.^ed. 23, 70; Lottery Case (Champion v.
Ames) 188 U. S. 321, 353, 355, 47 L. ed.
492, 500, 501, 23 Sup. Ct. Rep. 321, 13 Am.
Crim. Rep. 561; M'Culloch v. Maryland,
4 Wheat. 421, 4 L. ed. 605; Hipollte Egg
Co. y. United SUtes, 220 U. S. 45, 55 L.
ed. 364, 31 Sup. Ct. Rep. 364; Flint v. Stone
Tracy Co. 220 U. S. 107, 176, 55 L. ed.
389, 423, 31 Sup. Ct. Rep. 342, Ann. Cas.
1912B, 1312; Legal Tender Cases, 12 Wall.
457, 20 L. ed. 287 ; United SUtes v. Patten,
226 U. S. 525, 57 L. ed. 333, 44 L.R.A.
(N.S.) 325, 33 Sup. Ct. Rep. 141; Loewe
v. Lawlor, 208 U. S. 274, 52 L. ed. 488, 28
Sup. Ct. Rep. 301, 13 Ann. Cas. 815; Second
Employers' Liability Cases (Mondou v. New
York, N. H. k H. R. Co.) 223 U. S. 1, 47,
56 L. ed. 327, 345, 38 L.R.A.(N.S.) 44, 32
Sup. Ct. Rep. 169, 1 N. C. C. A. 875; Mc-
Dermott v. Wisconsin, 228 U. S. 115, 128,
130, 57 L. ed. 754, 764, 47 L.R.A.(N.S.)
984, 33 Sup. Ct. Rep. 431, Ann. Cas. 1915A,
39; Hoke v. United SUtes, 227 U. S. 308,
322, 323, 57 L. ed. 523, 527, 5293, 43 L.R.A.
(N.S.) 906, 33 Sup. Ct. Rep. 281, Ann. Cas.
1913E, 905; Gloucester Ferry Co. v. Penn-
sylvania, 114 U. S. 196, 215, 29 L. ed. 158,
41f
512
SUlPREME CJOURT OF THE UNITED STATES.
Oor. Tbbic»
166, 1- Inters. Com. Rep. 382, 5 Sup. Ct.
Rep. 826; Cooley, Const. Lim. 7th ed. 856.
The Sherley amendment is not a regula-
tion of matters of opinion.
Chaffee v. United States, 18 Wall. 516,
542, 21 L. ed. 008, 912; Cliquot's Cham-
pagne, 3 Wall. 114, 18 L. ed. 116; Stebbins
▼. Eddy, 4 Mason, 423, Fed. Cas. No. 13,342;
Russell V. Clarke, 7 Cranch, 60, 04, 3 L. ed.
271, 280; McDonald v. Smith, 130 Mich. 211,
102 N. W. 668; Com. v. Pierce, 138 Mass.
165, 52 Am. Rep. 264, 5 Am. Crim. Rep.
301; Cooley, Torts, 3d ed. p. 025; Smith v.
Land & House Property Corp. L. R. 28 Ch.
Div. 15, 51 L. T. N. S. 718, 40 J. P. 182;
Hedin v. Minneapolis Medical & S. Institute,
62 Minn. 146, 35 L.R.A. 417, 54 Am. St
Rep. 628, 64 N. W. 158; State v. Jules, 85
Md. 311, 36 Atl. 1027; Reg. v. Giles, 10
Cox, C. C. 44, Leigh. & C. C. C. 502, 32
L. J. Mag. Cas. N. S. 50, 11 Jur. N. S. 110,
11 L. T. N. S. 643, 13 Week. Rep. 327 ; Fos-
ter V. Swasey, 2 Woodb. & M. 217, Fed. Cas.
No. 4,084; Reg. v. Bruce, 1 Frost. &
F. 523; Murray v. Tolman, 162 111. 417,
44 N. E. 748; Scott v. Burnright, 131
Iowa, 507, 10 N. W. 422; Culley v.
Jones, 164 Ind. 168, 73 N. E. 94; Simar
V. Canaday, 53 N. Y. 298, 13 Am. Rep.
523; Hickey v. Morrell, 102 N. Y. 454,
5 Am. Rep. 824, 7 N. E. 321; French
V. Ryan, 104 Mich. 625, 62 N. W. 1016;
McDonald v. Smith, 130 Mich. 211, 102 N.
W. 668; Montgomery Southern R. Co. v.
Matthews, 77 Ala. 357, 54 Am. Rep. 60;
Eibel V. Von Fell, 55 N. J. Eq. 670, 38 Atl.
201; Birdsey v. Butterfield, 34 Wis. 52;
Darling v. Stuart, 63 Vt. 570, 22 Atl. 634 ;
Cruess v. Fessler, 30 Cal. 336; Smith v.
Griswold, 6 Or. 440; Kohler Mfg. Co. v.
Beeshore, 8 C. C. A. 215, 17 U. S. App. 352,
50 Fed. 572 ; Missouri Drug Co. v. Wyman,
120 Fed. 623; Walters v. Rock, 18 N. D.
45, 115 N. W. 511; Ayres v. French, 41
Conn. 142; Pom. Eq. Jur. § 878; State ex
rel. Feller v. State Medical Examiners, 34
Minn. 301, 26 N. W. 125 ; Durland v. United
SUtes, 161 U. S. 306, 313, 40 L. ed. 709,
711, 16 Sup. Ct. Rep. 508; Evans v. United
SUtes, 153 U. S. 584, 502, 38 L. ed. 830,
833, 14 Sup. Ct. Rep. 034, 0 Am. Crim. Rep.
668; Public Clearing House v. Coyne, 104
U. S. 407, 516, 48 L. ed. 1002, 1101, 24
Sup. Ct. Rep. 780; Bowen v. State, 0 Baxt.
45, 40 Am. Rep. 71; United States v. Am-
erican Laboratories, 222 Fed. 104.
The act is not violative of the 5th or 6th
Amendment.
Hoke V. United States, 227 U. S. 308, 323,
57 L. ed. 523, 527, 43 L.R.A.(N.S.) 006, 33
Sup. Ct. Rep. 281, Ann. Cas. 1013E, 005;
Gibbons v. Ogden, 0 Wheat. 1, 107, 6 L. ed.
23, 70; Dent v. West Virginia, 120 U. S.
^J4
114, 32 L. ed. 623, 0 Sup. Ct. Rep. 231;
WaUon V. Maryland, 218 U. S. 173, 54 L.
ed. 087, 30 Sup. Ct. Rep. 644; Collins v.
Texas, 223 U. S. 288, 206, 56 L. ed. 430,
444, 32 Sup. Ct. Rep. 286; Hawker v. New
York, 170 U. S. 180, 42 L. ed. 1002, 18 Sup.
Ct. Rep. 573; Reetz ▼. Michigan, 188 U.
S. 505, 47 L. ed. 563, 23 Sup. Ct. Rep. 300.
This is a proceeding in rem, — a civil, and
not a criminal, case.
Friedenstein v. United SUtes, 125 U. S.
224, 231, 31 L. ed. 736, 740, 8 Sup. Ct. Rep.
838; Whelan v. United SUtes, 7 Cranch,
112, 3 L. ed. 286; Hipolite Egg Co. v.
United States, 220 U. S. 45, 55, 55 L. ed.
364, 367, 31 Sup. Ct. Rep. 364; The Tliree
Friends, 166 U. S. 1, 40, 41 L. ed. 807, 013,
17 Stlp. Ct. Rep. 405; Swearingen v.
United SUtes, 161 U. S. 446, 451, 40 L.
ed. 765, 766, 16 Sup. Ct. Rep. 562; United
SUtes V. Wong Kim Ark, 160 U. S. 640,
42 L. ed. 890, 18 Sup. Ct. Rep. 456; Keck
V. United SUtes, 172 U. S. 434, 446, 43
L. ed. 505, 510, 10 Sup. Ct. Rep. 254; Ohio
ex rel. Lloyd v. Dollison, 104 U. S. 445,
450, 48 L. ed. 1062, 1066, 24 Sup. Ct. Rep.
703; United SUtes v. Smith, 5 Wheat.
153, 150, 160, 5 L. ed. 57, 58, 50; United
SUtes V. Kelly, 11 Wheat. 417, 6 L. ed.
508; Baker v. SUte, 12 Ohio St. 214; Com.
V. Exler, 243 Pa. 155, 80 Atl. 068; SUte
V. Camley, 67 Vt. 322, 31 Atl. 840; Nash
V. United SUtes, 220 U. S. 373, 377, 57
L. ed. 1232, 1235, 33 Sup. Ct. Rep. 780;
International Harvester Co. v. Kentucky,
234 U. S. 216, 223, 58 L. ed. 1284, 1288,
34 Sup. Ct. Rep. 853.
The libel in this case meeU even the re-
quirements of the rules of pleading in crim-
inal cases.
United SUtes v. Simmons, 06 U. 8. 360,
362, 24 L. ed. 810, 820; Fogg v. Blair, 130
U. S. 118, 127, 35 L. ed. 104, 107, 11 Sup.
Ct. Rep. 476; Wecker v. National Enameling
& SUmping Co. 204 U. S. 176, 185, 51 L.
ed. 430, 435, 27 Sup. Ct. Rep. 184, 0 Ann.
Cas. 757 ; Evans v. United States, 153 U. S.
584, 503, 38 L. ed. 830, 833, 14 Sup. Ct.
Rep. 034, 0 Am. Crim. Rep. 668; Morrow
V. Bonebrake, 84 Kan. 724, 34 L.RJiL.(N.S.)
1147, 115 Pac. 585; Garvin v. Harrell, 27
Okla. 373, 35 L.R.A.(N.S.) 862, 113 Pac
186, Ann. Cas. 1012B, 744.
Mr. Justice Hughes delivered the opin-
ion of the court:
Libels were filed by the United SUtes, in
December, 1012, to condemn cerUin articles
of drugs (known as "Eckman's Alterative")
as misbranded in violation of § 8 of the
food and drugs act. The articles had been
shipped in interstate commerce, from Chi-
cago to Omaha, and remained at the latter
2S9 U. S.
1915.
SEVEN CASES v. UNITED STATSa
612-515
place unsold and in the unbroken original i
packages. Ihe two cases present the same I
questions, tlie libels being identical save
with respect to quantities and the persons
in possession. In each case demurrers were
filed by the shipper, the Eckman Manufac-
turing Company, which challenged both the
Euflicieiicy of the libels under the applicable
provision of the statute and the constitu-
tionality of that provision. [513] The de-
murrers were overruled, and, the Eckman
Company having elected to stand on the de-
murrers, judgments of condemnation were
entered.
Section 8 of the food and drugs act, as
amended by the act of August 23, 1012,
chap. 352, 37 SUt. at L. 416, Comp. Stat.
1913, § 8724, provides, with respect to the
misbranding of drugs, as follows:
"Sec. 8. That the term 'misbranded,' as
used herein, shall apply to all drugs or
articles of food or articles which enter into
the composition of food, the package or
label of which shall bear any statement,
design, or device regarding such article, or
the ingredients or substances contained
therein which shall be false or misleading
in any particular, and to any food or drug
product which is falsely branded as to the
state, territory, or country in which it is
manufactured or produced.
"That for the purposes of this act an
article shall also be deemed to be mis-
branded. In case of drugs:
"Third. If its package or label shall bear
or contain any statement, design, or device
regarding the curative or therapeutic effect
of such article or any of the ingredients
or substances contained therein, which is
false and fraudulent."
The amendment of 1912 consisted in the
addition of paragraph "Third," which is the
provision here involved.
It is alleged in each libel that every one
of the cases of drugs sought to be con-
demned contained twelve bottles, each of
which was labeled as follows:
''Eckman's Alterative, — contains twelve
per cent of alcohol by weight, or fourteen
per cent by volume — used as a solvent. For
all throat and lung diseases including
Bronchitis, Bronchial Catarrh, Asthma,
Hay Fever, Coughs and Colds, and Catarrh
of the Stomach and Bowels, and Tuberculo-
sis (Consumption) . '. . Two dollars a
bottle. Prepared only by Eckman Mfg. Co.
Laboratory Philadelphia, Penna., U. S. A."
[514] And in every package, containing
one of the bottles, there was contained a cir-
cular with this statement:
"Effective as a preventative for Pneu-
monia." "We know it has cured and that
it has and will cure Tuberculosis."
•0 L. ed.
The libel charges that the statement "ef-
fective as a preventative for pneumonia"
is* "false, fraudulent, and misleading in this,
to wit, that it conveys the impression to
purchasers that said article of drugs can
be used as an effective preventative for
pneumonia, whereas, in truth and in fact,
said article of drugs could not be so used ;"
and that the statement, "we know it has
cured" and that it "will cure tuberculosis"
is "false, fraudulent, and misleading in this,
to wit, that it conveys the impression to
purchasers that said article of drugs will
cure tuberculosis, or consumption, whereas,
in truth and in fact, said article of drugs
would not cure tuberculosis, or consump-
tion, there being no medicinal substance nor
mixture of substances known at present
whidi can be relied upon for the effective
treatment or cure of tuberculosis, or con-
sumption."
Ihe principal question presented on this
writ of error is with respect to the validity
of the amendment of 1912.
So far as it is objected that this measure,
though relating to articles transported in
interstate commerce, is an encroachment
upon the reserved powers of the states, the
objection is not to be distinguished in sub-
stance from that which was overruled in
sustaining the white slave act, 36 Stat, at
L. 825, chap. 395, Comp. Stat 1913, § 8812.
Hoke V. United SUtes, 227 U. S. 308, 57 L.
ed. 523, 43 L.RJiL.(K.S.) 906, 33 Sup. Ct.
Rep. 281, Ann. Cas. 1913E, 905. There,
after stating that "if the facility of inter-
state transportation" can be denied in the
case of lotteries, obscene literature, dis-
eased cattle and persons, and impure food
and drugs, the like facility could be taken
away from "the systematic enticement of
and the enslavement in prostitution and de-
bauchery of women," the court concluded
with the reassertion of [515] the simple
principle that Congress is not to be denied
the exercise of its constitutional authority
over interstate commerce, and its power to
adopt not only means necessary but conveni-
ent to its exercise, because these means may
have the quality of police regulations. Id.
pp. 322, 323. See Gloucester Ferry Co. v.
Pennsylvania, 114 U. S. 196, 215, 29 L. ed.
158, 166, 1 Inters. Com. Rep. 382, 5 Sup.
Ct. Rep. 826; Hipolite Egg Co. v. United
SUtes, 220 U. S. 45, 57, 55 L. ed. 364, 368,
31 Sup. Ct. Rep. 364; Lottery Case (Cham-
pion V. Ames) 188 U. S. 321, 47 L. ed.
492, 23 Sup. Ct. Rep. 321, 13 Am. Crim.
Rep. 561.
It is urged that the amendment of 1012
does not embrace circulars contained in the
package, but only applies to those state-
ments which appear on the package or on
the bottles themselves; that is, it is sa*
4
615-617
SUPKEME CJOURT OF THE UNITED STATES.
Oct. Tebm,
that the word "contain" in the amendment
must have the same meaning in the case of
'both "package" and "label." Reference is
made to the' original provision in the first
sentence of § 8 with respect to the state-
ments, etc., which the package or label
shall "bear." And it is insisted that if the
amendment of 1912 covers statements in
circulars which are contained in the pack-
age, it is unconstitutional. Such state-
ments, it is said, are not so related to the
commodity as to form part of the commerce
which is within the regulating power of
Congress.
But it appears from the legislative his-
tory of the act that the word "contain"
was inserted in the amendment to hit pre-
cisely the case of circulars or printed mat-
ter placed inside the package, and we think
that is the fair import of the provision.
Cong. Rec. 62d Cong. 2d Sess. vol. 48, part
11, page 11,322. And the power of Congress
manifestly does not depend upon the mere
location of the statement accompanying the
article, that is, upon the question whether
the statement is on or in the package which
is transported in interstate commerce. The
further contention that Congress may not
deal with the package thus transported in
the sense of the immediate container of the
article as it is intended for consumption
is met by McDermott v. Wisconsin, 228 U.
S. 115, 57 L. ed. 754, 47 L.RJL(N.8.) 084,
33 Sup. Ct. Rep. 431, Ann. Cas. 1915A, 39.
There the [516] court said: "That the word
'package' or its equivalent expression, as
used by Congress in §§ 7 and 8 in defining
what shall constitute adulteration and what
shall constitute misbranding within the
meaning of the act [food and drugs act] clear-
ly refers to the immediate container of the
article which is intended for consumption
by the public, there can be no question.
• • . Limiting the requirements of the
act as to adulteration and misbranding
simply to the outside wrapping or box con-
taining the packages intended to be pur-
chased by the consumer, so that the im-
porter, l^ removing and destroying such
covering, could prevent the operation of the
law on the imported article yet unsold,
would render the act nugatory and its pro-
visions wholly inadequate to accomplish the
purposes for which it was passed." And,
after stating that the requirements of the
act, thus construed, were clearly within
the power of Congress over the facilities of
interstate commerce, the court added that
the doctrine of original packages set forth
in repeated decisions, which protected the
importer in the right to sell the imported
goods, was not "intended to limit the right
of Congress, now asserted, to keep .the chan-
nels of interstate commerce free from the
41«
carriage of injurious or fraudulently brand-
ed articles, and to choose appropriate means
to that end." Id. pp. 130, 131, 137.
Referring to the nature of the state-
ments which are within the purview of the
amendment, it is said that a distinction
should be taken between articles that are
illicit, immoral, or harmful and those which
are legitimate, and that the amendment
goes beyond statements dealing with iden-
tity or ingredients. B*i^ the question re-
mains as to what may be regarded as
"illicit/' and we find no ground for saying
that Congress may not condemn the inter-
state transportation of swindling prepara-
tions designed to cheat credulous sufferers,
and make such preparations, accompanied
by false and fraudulent statements, [517]
illicit with respect to interstate commerce,
as well as, for example, lottery tickets. The
fact that the amendment is not limited, as
was the original statute, to statements re-
garding identity or composition (United
States V. Johnson, 221 U. S. 488, 55 L. ed.
823, 31 Sup. Ct. Rep. 627), does not mark a
constitutional distinction. The false and
fraudulent statement which the amendment
describes accompanies the article in the
package, and thus gives to the article its
character in interstate commerce.
Finally, the statute is attacked upon the
ground that it enters the domain of specula-
tion (American School v. McAnnulty, 187
U. S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep. 33),
and by virtue of consequent uncertainty
operates as a deprivation of liberty and
property without due process of law, in
violation of the 5th Amendment of the Con-
stitution, and does not permit of the lay-
ing of a definite charge as required by the
6th Amendment. We think that this ob-
jection proceeds upon a misconstruction of
the provision. Congress deliberately ex-
cluded the field where there are honest dif-
ferences of opinion between schools and
practitioners. Cong. Rec 62d (^ng. 2d
Sees. vol. 48, part 12, Appx. p. 675. It
was, plainly, to leave no doubt upon this
point that the words "false and fraudulent^
were used. This phrase must be taken with
its accepted legal meaning, and thus it most
be found that the statement contained in
the package was put there to accompany
the goods with actual intent to deceive, —
an intent which may be derived from the
facts and circumstances, but which must
be established. Id. 676. That false and
fraudulent representations may be made
with respect to the curative effect of sub-
stances is obvious. It is said that the owner
has the right to give his views regarding
the effeet of his drugs. But state of mind
is itself a fact, and may be a material fact,
and false and iraudulent representations
9S9 U. 8.
1915.
COMMERCIAL NAT. BANK y. CANAL-LOUISIANA B. k T. CO. 517-520
majr be made about it; and persons who
make or deal in substances or compositions
[518] alleged to be curative are in a posi-
tion to have superior knowledge, and may be
held to good faith in their stat^nents. Rus-
sell V. Clark, 7 Cranch, 60» 02, 3 L. ed. 271,
279; Durland v. United SUtes, 161 U. S.
306, 313, 40 L. ed. 709, 711, 16 Sup. Ct. Rep.
508; Stebbins v. Eddy, 4 Mason, 414, 423,
Fed. Cas. No. 13,342; Kohler Mfg. Co. v.
Beeshore, 50 Fed. 572, 574; Missouri Drug
Co. V. Wyman, 129 Fed. 623, 628; McDon-
ald V. Smith, 139 Mich. 211, 102 N. W.
668; Hedin T. Minneapolis Medical k 8.
Institute, C2 Minn. 146, 149, 35 L.R.A. 417,
54 Am. St. Rep. 628, 64 N. W. 158; Hickey
V. Morrell, 102 N. Y. 454, 463, 55 Am. Rep.
824, 7 N. E. 821; Reg. v. Giles, 10 Cox, C.
C. 44, Leigh & C. C. C. 502, 34 L. J. Mag.
Cas. 50, 11 Jut. N. S. 119, 11 L. T. N. S.
643, 13 Week. Rep. 327; Smith v. Land k
House Property Corp. L. R. 28 Ch. Div. 7,
15, 51 L. T. N. S. 718, 49 J. P. 182. It can-
not be said, for example, that one who
should put inert matter or a worthless com-
position in the channels of trade, labeled
or described in an accompanying circular as
a cure for disease, when he knows it is not,
is beyond the reach of the lawmaking power.
Congress recognized that there was a wide
field in which assertions as to curative effect
are in no sense honest expressions of opin-
ion, but constitute absolute falsehoods, and
in the nature of the case can be deemed to
have been made only with fraudulent pur-
pose. The amendment of 1912 applies to
this field and we have no doubt of its
validity.
With respect to the sufficiency of the
averments of the libels, it is enough to say
that these averments should receive a sen-
sible construction. There must be a definite
charge of the statutory offense, but we are
not at liberty to indulge in hypercriticism
m order to escapo the plain import of the
words used. There is no question as to the
adequacy of the description of the article,
or of the shipments, or of the packages. It
is said that there was no proper statement
of the contents of the circular. But the
libels give the words of the circular, and
we think that the allegations were sufficient
to show the manner in which they were
used. The objection that it was not al-
lied that the statements in question ap-
peared on the original packages or on
the bottles themselves, as already pointed
[510] out, is based on a misconstruction of
the statutory provision. The remaining
and most important criticism is that
the libels . did not sufficiently show that
the statements were false and fraudulent
But it was alleged that they were false and
fraudulent, and with respect to tuberculo-
«0 L. ed. 27
sis it was averred that the statement was
that the article "has cured" and "will cure,"
whereas "in truth and in fact" it would
"not cure," and that there was no "medic-
inal substance nor mixture of substances
known at present" which could be relied
upon to effect a cure. We think that this
was enough to apprise those interested in
the goods of the charge which they must
meet. It was, in substance, a charge that,
contrary to the statute, the article had been
made the subject of interstate transporta-
tion with a statement contained in the pack-
age that the article had cured and would
cure tuberculosis, and that this statement
was contrary to the fact, and was made
with actual intent to deceive.
Judgments affirmed.
Mr. Justice McReynolds took no part In
the consideration or decision of these cases.
[520] COMMERCIAL NATIONAL BANK
OF NEW ORLEANS, Appt.,
▼.
CANAL-LOUISIANA BANK & TRUST
COMPANY and Jonas Hiller, Trustee of
Estate of Dreuil -k Company, et al., Bank-
rupts.
(See S. C. Reporter's ed. 520-530.)
Warehouse receipts — pledge — bona
fide purchaser.
1. A pledgee of bills of lading for cotton,
who permits the pledgeor to withdraw such
bills of lading under an agreement to hold
for the pledgee's account, and thus enables
the pledgeors to obtain negotiable ware-
house receipts which they pledge to a bank
as security for their notes, cannot question
the title of the latter, having clothed the
pledgeor with the indicia of ownership,
within the meaning of the doctrine estab-
lished by the uniform warehouse receipts
act (La. Acts 1908, No. 221, §§ 40, 41, 47),
that if the owner of goods permits another
to have possession or custody of negotiable
wareliouse receipts running to the order
of the latter or to bearer, it is a represen-
tation of title upon which bona fide nego-
tiators for value are entitled to rely, de-
spite breaches of trust or violations of
agreement on the part of the apparent
owner.
[For other cases, see Warehoosemen, in Digest
Snp. Ct 1908.1
Note. — ^As to the effect of putting paper
or securities transferable by delivery,
or indorsed or assigned in blank, into an-
other's possession, to estop owner as against
purchaser in good faith — see note to Me-
Carthy y. Crawford, 29 L.R.A.(N.S.) 252.
On construction of statute according to
purpose for which it was passed — see note
to United States v. Saunders, 22 L. ed. U.
S. 736.
SUPREME COiniT OF THE UKITED STATES. Oct. Tbui,
Statntea •^ construction — uniform . ■greementa ateem»,Tj tor the CAirylng on ol
stnt« InwB. coinmercui] buaineM. By the tnut reoeipt
2. The rule of construction eatkbliahed no title i* given to the perton rcoeiving the
by the uniform wftrehouee receipt* act (La. g^n^^
AoU 1908, No. 221, | 67), vii., "thii Mt * „. V „.! ii„ im. * r<„ iar v^ «jb,
•hall be « interpreted „d eon.trued » to r/^^I^^^^'c C A 1^ 83 F^' ?m
eSeetutiU iU, general purpoie to make uni- 5= ^attu., IM C. C. A. 171, 183 Fed. 736i
form the law of those Btatea which enact R* D-'nUp Carpet Co. 208 Fed. 731; Buah
it," requires that the cardinal principle of t. Export Storage Co. 136 Fed. 836.
the act, which ia to gire effect to the mer- A pledge ia not deatrojed by the pledgee
eantile view of documenU of title, ahall intrusting the pledgeor with the title to the
have recognition to the exclusion of any _^g pledged (when the goods pledged can
^conaiatent doctrine which may have pre- .jm ^ ij^tifled in the pledgeor's hand.),
vioualy obtained m any of the itatea en- , .t , j i j *? _. .
jjjjjjj, '(J •' unless the pledgeor pledges the property to
[For other eises, see SUtutes, II., In Digert aomeone else acting in good faith.
8np. Ct. IWS.] New York Security t T. Co. ». Llpman,
WarehODse re««lpta — pledge — bona 157 jf. Y. 551, G2 N. E. 696i Blydenstein
lido purcliBser. ,. Kew York Security & T. Co. 15 C. C. A.
3. The rights of a pledgee of warehouse -. ,- ,, „ .^^ ,,' -- - . ,-„
rewipU undM the unfform warehouw re ^*' ^° "/■ ^PP" "t' V . ^i ^ u
ceipts act (La. Acts 1908, No. 221, ;g 40, " ">« depoHitor of the good^ though ha
41, 47), aa a bona flde purchaser, where the h'd do title, had ability or capacity to
pledgeors had been clothed with apparent transfer a title to a purchaser for value,
ownership by the real owner, are not lost either by virtue of actual authority or bo-
by permitting the pledgeors to withdraw f^^^ a,^ ^,^^„ had allowed a situation to
such receipt under an agreement to hold ^^jg^ ^^ich would estop him from asMTt-
for the pledgee's account, where this did . „ . . ,.,, . .. „^. ,1. „„. _„_„
not resuft in a subsequent negotiation of '"8 ^'* ""^ *» "•• ^*' ^* •*■"* "^'^
them to a purchaser in good faith for value. "houW protect a purchaser of the document
[For other caseg, see WarehoDKiuen, In Dinst of title that would protect a purchaser ot
Bnp. Ct. 1M8.1 U,, good^
fNo 1171 Williston, Sales, pp. 722, 723; Pollard *.
^ '-* ReardoD, 13 C. C. A. 171, 21 U. B. App. 630,
Argued December 8, 1816. Decided Jan- 85 Fed. 862; Roland M. Baker Co. v. Brown,
uary 10, 1016. •up'"'-
The Louisiana law, outside of the uniform
APPEAL from the United States Circuit laws, recognizes the absolute pledge of ware-
Court of Appeals for the Fifth Circuit house receipts by delivery only,
to rt-view a decree which affirmed a d^ree Mechanics' BIdg. Asso. v. Ferguson, 29
of the District Court for the Eastern Dis- La. Ann. 648; Lafayette Bank v. Bruif, S8
trict ot Louisiana, adverse to a petition La. Ann. 024 ; Chafle v. DuBose, 36 La, Ann,
for the recovery from a trustee in bank- 267 ; Fidelity & D. Co. v. Johnston, 117
niptcy of cotton alleged to have been held La. 889, 42 80. 367 ; Kyle v. Sigur, 121
by the bankrupts for the accountr of the La. 889, 46 So. 910; Honold v. Meyer, M
petitioner. Rercrsed and remanded with La. Ann. 685; Oiovanovich v. Citixena*
direction to enter a decree in favor of the Bank, 26 La. Ann. IT; Saloy v. Hibemia
appellant. Nat. Bank, 39 La. Ann. 90, 1 Bo. 667.
Bee same case below, 128 C. C. A. 16, The claim ot the Canal -Louisiana bank ia
211 Fed*. 337. not the prior equity.
The facts are stated in the opinion. 1 Pom. Eq. Jur. 3d ed. pp. 690, 601, 604,
Mr. Edivln T. Merrick argued the cause 805, §« 414. 417; 2 Pom. Eq. Jur. S 710, p.
Mm filed a brief tor appellant: 1243; Nesiin v. Wells, F. & Co. 104 U. 8.
When Dreuil & Company withdrew from "»■ 28 L. ed. 806; Bacon t. Harris. 62 Fed.
the Canal.Louisiana Bank the bills ot lad- "^i; Boone v. Chiles, 10 Pet. 210, 211, 9
ing for the cotton In question, which had L. ed. 400; Parshall v. Eggert, 64 N. Y.
been pledged to the bank for money loaned, ^^' , .
and, after sending it to a pickery, obtained Whe" there is equal equity the law muat
two negotiable warehouse receipts for it, P"™*"- „ „ _ . .
and pUdged these warehouse receipts for P^ilUps v. Phillips. 4 DeG. P k 3. 217.
the ii^ootton, this latter pledge wa. a 31 L. J. Ch. N. 8. 321, 8 Jur. N. 8 1«. 5
Talid and binding one, so long a. the pledge, ^ T. N. S. 655, 10 Week. Rep. 236, 10 Kng.
waa acting in good faith. R"'- ^a"- 638.
Roland M. Baker Co. r. Brown, 214 Mass. Mr. Henrr Hooney argued the e«iue mad
IBS, 100 N. E. 1026. flled a brief for appellees:
Trust receipts have been reec^Ixed By the very terms of the trust receipt, tba
throi^hont tlie nation as valid Mid naetnl ftrm of Dreuil ft Company waa conatitated
^XS It* V. s.
1915. COMMERCIAL NAT. BANK y. CANAL-LOUISIANA B. k T. CO. 622, 623
the special bailee of the Canal-Louisiana
Bank k Trust Company, and was specificallj
required to surrender to such bank either
the proceeds derived from the sale of the
said cotton, or the warehouse receipts or
bills of lading covering the same. Hence,
Dreuil k Company were without any right
or authority to execute the pledge to the
Commercial National Bank, and such pledge
was invalid and of no effect against the
bailor, without fault and in good faith.
Re Dreuil, 206 Fed. 668.
By the law of Louisiana, title to the cot-
ton passed by the delivery to the Canal-
Louisiana Bulk k Trust Ccmipany of the
bill of lading, and was thereafter vested in
said bank.
Fidelity k D. Ce. v. Johnston, 117 La.
880, 42 So. 867.
Inasmuch as both banks had surrendered
their respective muniments of title, — the
Canal-Louisiana Bank k Trust Company its
negotiable bill of lading, and the Commercial
National Bank its n^otiable warehouse re-
ceipt,— both banks stood upon their trust
receipts as evidence of the pledge. Under
such instruments their titles are equal, and
the more ancient prevails.
Stern Bros. v. Germania Nat. Bank, 34
La. Ann. 1110; Lallande v. His Creditors,
42 La. Ann. 705, 7 So. 806; Denis, Con-
tracts of Pledge^ p. 100.
The Canal-Louisiana Bank k Trust Com-
pany was without negligence in constituting
Dreuil k Company its special bailee for the
purposes designated in the trust receipt, and
the bank's action did not affect detrimen-
tally its rij^ts as pledgee.
Jacquet v. His Creditors, 38 La. Ann. 863;
Story, Bailm. | 200; Weems v. Delta Moss
Co. 33 La. Ann. 073; Troplong Nantisse-
ment, 311; Clark ▼. Iselin, 21 Wall. 360,
22 L. ed. 660; White ▼. Piatt, 6 Denio, 260;
Century Throwing Co. ▼. Muller, 116 C. C.
A. 614, 107 Fed. 262.
[522] Mr. Justice Huches delivered the
opinion of the court:
This is a controversy arising in a bank-
ruptcy proceeding. The Commercial Nation-
al Bank of New Orleans petitioned the
district court for the recovery from the trus-
tee in bankruptcy of certain bales of cotton
alleged to have been held by the bankrupts,
Dreuil k Company, for the account of the
petitioner under trust receipts. The Canal-
Louisiana Bank k Trust Company defended,
presenting its reconventional demand based
upon a claim of superior title. The district
ooort entered a decree in favor of the
Canal-Louisiana Bank k Trust Company
(206 Fed. 668), which was affirmed by the
dreuit court of appeals. 128 C. C. A. 16,
211 Fed. 337.
•0 Ii. ed.
The controversy arises from the following
transactions which were had prior to the
bankruptcy. On December 0, 1012, Dreuil k
Company, holding inland bills of lading for
two lots of cotton (40 bales and 60 bales
respectively), pledged the bills of lading
with the Canal-Louisiana Bank to secure
certain promissory notes for moneys ad-
vanced. On December 13, 1012, the bills of
lading were withdrawn from the Canal-
Louisiana Bank on trust receipts, as fol-
lows:
"Received of Canal Bank k Trust Com-
pany the bills of lading or other documents
or securities as enumerated below, held by
the said bank as collateral pledged to se-
cure advances made to the undersigned, and
in c<msideration thereof, the undersigned
hereby agrees to pay over to the said bank
or its assigns, and to specifically apply
against the very same advances tiie pro-
ceeds of the sale of the property mentioned
in the said documents; or to deliver to the
said bank or its assignees the shipping
documents or warehouse receipts represent-
ing the undermentioned goods within one
day from the receipt thereof, this delivery
being temporarily made the undersigned
for convenience only, without novation of
the original debt, or giving the under-
signed any title thereto, except as [528]
trustee for the said bank, and except to re-
ceive the avails thereof or the documents
therefor for account of the said bank."
Dreuil k Company, surrendering the bills
of lading to the railroad company, obtained
delivery of the cotton and sent It to a
''pickery," where the lot of 40 bales was
remade into 60, and the lot of 60 bales into
00. Dreuil k Company then stored the
cotton with a warehouseman, the Planters**
Press, receiving two negotiable wardiouse>
receipts which, on December 17, 1012, they
pledged to the Commercial Bank as se-
curity for their notes. On December 20^,.
1012, and December 28, 1012, these ware-
house receipts, respectively, were withdrawn
by Dreuil k Company from the Commercial
Bank on trust receipts similar in tenor to
those which had been given, as above stated,
to the Canal-Louisiana Bank. Dreuil k
Company then obtained a delivery of the
cotton from the Planters' Press; on De-
cember 31, 1012, they were adjudicated
bankrupts and temporary* receivers were
appointed. It appears that 60 of the bales
had been disposed of, but the remainder of
the cotton, which had been sent by Dreuil
k Company td a steamer for shipment, was
recovered by the receivers and placed by
them in the Planters' Press, warehouse re*
ceipts being issued therefor which passed
into the possession of the trustee. Despite
the changes mentioned, and re-markinga
41
623-^20
SUPREME COURT OF THE UNITED STATES.
Oct. Tbuc,
(which we need not consider), the district
court found the identity of the cotton to
•be established, and there is no further
controversy upon that point. Nor is it
controverted that the Commercial Bank
was a purchaser in good faith for value of
the warehouse receipts negotiated to it.
We assume that under the jurisprudence
of Louisiana the transaction between Dreuil
ft Company and the Canal-Louisiana Bank
(described by the bank as a pledge), created
rights in the bank in the nature of owner-
ship for the purpose of securing its ad-
vances (Rev. SUt. [La.] 2482; [524] Civil
Code, arts. 3167, 3158, 3170, 3173 ; Fidelity
k D. Co. y. Johnston, 117 La. 880, 889, 42 So.
357; act 94 of 1912 [uniform bills of lading
act], § 32) ; and that when the Canal-
Louisiana Bank intrusted the bills of lading
to Dreuil & Company for the purposes de-
scribed in the trust receipts, given to that
bank, it could still assert its title as against
Dreuil & Company and their trustees in
bankruptcy. See Clark v. Iselin, 21 Wall.
360, 3C8, 22 L. ed. 568, 571; Re E. Rebou-
lin Fils &, Co. 165 Fed. 245; Charavay v.
York Silk Mfg. Co. 170 Fed. 819; ReCattus,
106 C. C. A. 171, 183 Fed. 733; Century
Throwing Co. v. MuUer, 116 C. C. A. 614,
107 Fed. 252; Re Dunlap Carpet Ca 206
Fed. 726; Assets Realization Co. v. Sov-
ereign Bank, 126 C. C. A. 662, 210 Fed. 156;
Moors V. Kidder. 106 N. Y. 32, 12 N. E.
818; Drexel v. Pease, 133 N. Y. 129, 30 N.
E. 732; Moors v. Wyman, 146 Mass. 60, 15
N. E. 104; Moors v. Drury, 186 Mass. 424,
71 N. E. 810; Hamilton v. Billington, 163
Pa. 76, 43 Am. St. Rep. 780, 29 Atl. 904;
Willi ston. Sales, § 437. No question is pre-
sented as to the effect, in the light of the
uniform bills of lading act passed in Louisi-
ana in 1912 (act 94), of an attempted
negotiation by Dreuil k Company of the
bills of lading contrary to the terms of the
trust receipts. See Roland M. Baker Co.
V. Brown, 214 Mass. 196, 203, 100 N. E.
1025. The bills of lading were not negoti-
ated; they served their purpose, being sur-
rendered to the railroad company on the
delivery of the goods to Dreuil k Com-
pany. The transactions with the "pickery"
are not material to the question to be de-
cided. Dreuil k Company having obtained
possession of the cotton, as was contemplat-
ed, placed it in store and the question is as
to the effect of the negotiation of the ware-
house receipts to the Conmiercial Bank.
It is a familiar rule that one who has no
title to chattels cannot transfer title unless
he has the owner's authority or the owner
is estopped. See Civil Code (La.) 'arts.
2452, 3142, 3145, 3140. It follows that, in
tlie absence of circumstances creating an
estoppel, one without title cannot [585]
420
transfer it by the simple device of warehous-
ing the goods and indorsing the receipts.
But if the owner of the goods has permitted
another to be clothed with the apparent
ownership through the possession of ware-
house receipts, negotiable in form, there is
abundant ground for protecting a bona fide
purchaser for value to whom the receipts
have been negotiated. Pollard v. Reardon,
13 C. C. A. 171, 21 U. S. App. 639, 65 Fed.
848, 852; WilUston, Sales, § 421. The ^ect
of the negotiation of warehouse receipts is
defined in the uniform warehouse receipts
act, enacted in Louisiana by act 221 of 1008.
This act provides:
"Sec. 40. Who may negotiate a receipt. —
A negotiable' receipt may be negotiated —
"(a) By the owner thereof; or
"(b) By any person to whom the pos-
session or custody of the receipt has been
intrusted by the owner, if, by the terms of
the receipt, the warehouseman undertakes
to deliver the goods to the order of the
person to whom the possession or custody
of the receipt has been intrusted, or if at
the time of such intrusting the receipt is
in such form that it may be negotiated by
delivery."
"Sec. 41. Rights of person to whom a re-
ceipt has been negotiated. — ^A person to
whom a n^otiable receipt has been duly
negotiated acquires thereby —
"(a) Such title to the goods as the per-
son negotiating the receipt to him had or
had ability to convey to a purchaser in
good faith for value, and also such title to
the goods as the depositor or person to
whose order the goods were to be delivered
by the terms of the receipt bad or had
ability to convey to a purchaser in good
faith for value; and
"(b) The direct obligation of the ware-
houseman to hold possession of the goods
for him according to the terms of the re-
ceipt as fully as if the warehouseman had
contracted directly with him."
......
[526] "Sec 47. When negotiation not im-
paired by fraud, mistake, or duress. — The
validity of the negotiation of a receipt is not
impaired by the fact that such negotiation
was a breach of duty on the part of the
person making the negotiation, or by the
fact that the owner of the receipt was in-
duced by fraud, mistake, or duress to in-
trust the possession or custody of the re-
ceipt to such person, if the person to whom
the receipt was negotiated, or a perscm to
whom the receipt was subsequoitly negoti-
ated, paid value therefor, without notice
of the breacli of duty, or fraud, mistake, or
duress.'*
It will be observed that "one who takes
by trespass or a finder is not included with-
839 U. 8.
1015. COMMERCIAL NAT. BANK ▼. CANAL-LOUISIANA B. ft T. CO. 626-528
in the deecription of those who may nego-
tiate." (Report bf ConHuissionert on Uni-
form State Laws, January 1, 1910, p. 204.)
Aaide from this, the intention is plain to
facilitate the use of warehouse receipts as
documents of title. Under § 40, the person
who may n^otiate the receipt is either the
''owner thereof," or a "person to whom the
possession mr custody of the receipt ha^
been intrusted by the owner" if the receipt
is in the form described. The warehouse
receipt represents the goods, but the in-
trusting of the receipt, as stated, is more
than the mer^ delivery of the goods; it is
a representation that the one to whom the
possession of the receipt has been so intrust-
ed has the title to the goods. By § 47, the
negotiation of the receipt to a purchaser
for value without notice is not impaired
by the fact that it is a 'breach of duty, or
that the owner of the receipt was induced
"by fraud, mistake, or duress" to intrust
the receipt to the person who negotiated it..
And, under S 41» one to whom the negotia-
ble receipt has been duly negotiated acquires
such title to the goods as the person nego-
tiating the receipt to him, or the depositor
or person to whose order the goods were de-
liverable by the terms of the receipt, either
had or "had ability to convey to a pur-
chaser in good faith for value." The [527]
clear import of these provisions is that if the
owner of the goods permits another to have
the possession or custody of negotiable
wareliouse receipts running to tbe order of
the latter, or to bearer, it is a representa-
tion of title up<m which bona fide purchas-
ers for value are mtitled to rely, despite
breaches of trust or violations of agreement
on the part of the apparent owner.
It cannot be doubted that if Dreuil I
Company had pledged to the Commercial
Bank the bills of lading which they with-
drew from the Canal-Louisiana Bank under
the trust receipts, the former, paying value
in good faith, would have had the superior
right. This would have been directly with-
in the terms of the uniform bills of lading
act (La. act 04, 1912, §9 31, 32, 38, 39).
Roland M. Baker Co. v. Brown, supra; see
William T. Hardie k Co. v. Vicksburg, S.
k P. R. Co. 118 La. 254, 42 So. 793. It
seems to be contended ihat the case is dif-
ferent with the warehouse receipts. But
it cannot be said that it was not within the
contemplation of the parties that Dreuil ft
Company, on obtaining the goods from the
railroad company, should put them in ware-
house and take the usual receipts. As we
have stated, we are not concerned with
what happened at the ''pickery," as the case
is precisely the same, so far as the Com-
mercial Bank it concerned, as if the original
bales had been war^onsed (without remak-
ing) as soon as received. It was not the
placing of the cotton in warehouse in the
usual course of business, but tbe n^otia^
tion of the receipts, that constituted the
violation of Dreuil & Company's agreement
with the Canal-Louisiana Bank. By the
very terms of that agreement Dreuil &, Com-
pany were to take the position of "trustee"
for the bank, with authority to receive '*the
avails" of the goods or "the documents"*
therefor for account of the bank, and be-
ing bound to apply the proceeds of sale to
the bank's advances. And in taking docu-
ments of title, in ordinary course, pursuant
to the agreement, which was intended to
facilitate the [528] disposition of the cot-
ton through Dreuil k Company, the latter
were manifestly permitted to take such docu-
ments to their own order, as they took the
bills of lading with which they were in-
trusted. To repeat, it was the negotiaiion
of the receipts that constituted the breach
of trust. But after the Canal-Louisiana
Bank had allowed Dreuil k Company to be
clothed with apparent ownership through
possession of the receipts, it cannot bo
tieard to question the title of a bona fide
purchaser for value to whom they had been
negotiated. Re Richheimer, 130 C. C. A.
542, 221 Fed. 16.
It is said that under the law of Louisi-
ana, as it stood prior to the enactment of
the uniform warehouse receipts act, the
Commercial Bank would not have taken
title as against the Canal-Louisiana Bank
(Stern Bros. v. Germania Nat. Bank, 34
La. Ann. 1119; Lallande v. His Creditors,
42 La. Ann. 705, 7 So. 895; Holton v. Hub-
bard, 49 La. Ann. 715, 22 So. 338; Mechan-
ics' k T. Ins. Co. V. Kiger, 103 U. 8. 352,
20 L. ed. 433 ; but see WilUam T. Hardie k
Co. V. Vicksburg, S. & P. R. Co. supra) ;
and it is urged that the new statute is but
a step in the development of the law, and
that decisions under the former state stat-
utes are safe guides to its construction. We
do not find it necessary to review these de-
cisions. It is apparent - that if these uni-
form acts are construed in the several
states adopting them according to former
local views upon analogous subjects, we
shall miss the desired uniformity, and we
shall erect upon the foundation of uniform
language separate legal structures as dis-
tinct aa were the former varying laws. It
was to prevent this result that the uniform
warehouse receipts act expressly provides
(9 57) : "This act shall be so interpreted
snd construed as to effectuate Its general
purpose to make uniform the law of those
states which enact it." This rule of construc-
tion requires that in order to accomplish the
beneficent object of unifying, so far as this
is possible under our dual system, the com-
421
628-^1
SUPREME COURT OF THE UNITED STATES.
Oor. TwMM^
mercial law of the country, there should be
taken into consideration the fundamental
[520] purpose of the uniform act, and that
it should not be r^arded merely as an off-
shoot of local law. The cardinal principle
of the act — which has been adopted in many
states— is to give effect, within the limits
stated, to the mercantile view of documents
of title. There had been statutes in some
of the states dealing with such documents,
but there still remained diversity of legal
rights under similar commercial transac-
tions. We think that the principle of the
uniform act should have recognition to the
exclusion of any inconsistent doctrine which
may have previously obtained in any of the
states enacting it; and, in this view, we
deem it to be clear that, in the circumstan-
ces disclosed, the Commercial Bank took title
to the warehouse receipts and to the cotton
in question.
Finally, it is insisted that whatever right
the Commercial Bank might have had, if
it had retained the warehouse receipts^ it
lost as against the Canal-Louisiana Bank by
permitting Dreuil & .Company to withdraw
the documents under the trust receipts
which they gave to the Commercial Bank;
that is, that as the cotton came into the
possession of Dreuil & Company, the equi-
ties of the two banks are equal, and the
earlier equity should prevail. We think
that this contention begs the question. The
Commercial Bank did not lose its riglits by
permitting the withdrawal of its warehouse
receipts under the agreement to hold for its
account, any more than the CanaM^uisiana
Bank lost its rights merely by the with-
drawal of the bills of lading under its trust
receipts. It was because the Canal-Louisi-
ana Bank clothed Dreuil k Company with
the indicia of ownership that a bona fide
purchaser for value was enabled to take
title; and a similar result would have fol-
lowed if, after the withdrawal of tlie ware-
house receipts from the Commercial Bank,
there had been a like n^otiation by Dreuil
& Company. But there was no subsequent
negotiation, and the Commercial [530]
Bank, in the absence of the intervention of a
purchaser in good faith for value, did not
lose its rights by the agreement under which
the cotton which it had duly acquired was
to be held for its account. There is no
equality of equities, for it was through the
action of the Canal -Louisiana Bank and the
apparent ownership it created in Dreuil &
Company that the Commercial Bank was led
to advance its money upon the faith of the
documents of title.
The decree is reversed and the cause is
remanded, with direction to enter a decree
in favor of the appellant.
It is so orderei
499
I
UNITED STATES, Appt.
V.
CECIL D. ROSS.
(See S. C. Reporter's ed. 530-538.)
Army — pay of private — extra duty.
A private in the Hospital Corps of
the United States Army, whose duties, as
defined by the act of March 1, 1887 (24
Stat, at I^ 435, chap. 311, Comp. SUt 1913,
§ 1819), § 5, as amended by the act of
July 13, 1892 (27 Stat, at L 120, chap.
162, Comp. Stat. 1913, { 1824), include
those of ward masters, cooks, nurses, and
attendants in hospitals, and ''such other
duties as may by proper authority be re-
quired of them," cannot be said, contrary
to the practical judgment of the War De-
partment, to have beien on extra duty call-
ing for extra pay while he was, under verbal
order of the surgeon commanding, in charge
of the telegraph and telephone office in the
feneral hospital at the Presidio of San
•"rancisco, he not having been detailed on
extra duty, and there being no dear abuse
of the necessary official discretion shown.
[For other cases, see Army and Navy, X^ in
Digest Sup. Ct. 1908.1
[No. 131.]
Argued December 10, 1915. Decided Janu-
ary 10, 1010.
APPEAL from the Court of Claims to re-
view an award of extra pay of a pri-
vate in the Hospital Corps of the United
States Army. Reversed and remanded with
instructions to dismiss the petition.
See same case below, 49 Ct. CI. 55.
The facts are stated in the opinion.
Assistant Attorney General Thompson
argued the cause, and, with Mr. George M.
Anderson, filed a brief for appellant.
Mr. Charles F. Oonaaul argued the
cause, and, with Miss Ida M. Moyers, filed
a brief for appellee.
Mr. Justice Hu^lid* delivered the opin-
ion of the court:
Tlie United States brings this appeal from
a judgment of the court of claims award-
ing to Cecil D. Ross the sum of $303.45,
as extra pay while he was in charge of the
telegraph and telephone office at the general
hospital, Presidio of San Francisco. 49 Ct.
CI. 55.
The facts found by the court were in sub-
stance as follows: The claimant enlisted on
April 25, 1900, as an infantry private in
the United States Army; he was trans-
ferred to the Hospital Corps, and on No-
vember 8, 1900, to the general hospital at
the Presidio, where he was placed in charge
of the telegraph and telephone office by
verbal order of the surgeon commanding;
2Z9 U. 8.
1915.
UNITED STATES ▼. BOSS.
681-684
and he performed duties accordingly, save
for intervals of sickness, until he was dis-
charged from the service on April 24, 1903,
by reason of the expiration of his term of
enlistment. He was not under the super-
vision of anyone connected with the Signal
Corps, but remained under the orders of the
medical [532] officer in command at the
hospital. No pay was given to him on
account of his services as telegrapher
other than the usual pay and allow-
ances of a private in the Hospital Corps.
The muster rolls in the hospital show
that during the entire period, except when
sick, he was reported as "telegraph op-
erator." These muster rolls, "returns from
the Hospital Corps," passed under the
review of the detailing and command-
ing officers at the hospital, and in due
course reached the War Department. An
effort was made by the hospital authori-
ties to secure the detail of a man from
the Signal Corps in the place of the claim-
ant, but failed. During the time that the
claimant was on duty at the hospital, he
was excused from otlier duties, calls, de-
tails, and inspection. The fact that he was
performing duty in the telegraph and tele-
phone department throughout the entire
period, as stated, was personally known to
the major and surgeon commanding. The
findings also set forth the following exhibit:
U. S. A. General Hospital,
Presidio, San Francisco, Cal., November
23, 1903.
Respectfully returned to Cecil D. Ross,
late private, first class. Hospital Corps,
(J. S. A., Holly Springs, Miss., with the in-
formation that the following indorsement
was written in this office on a communica-
tion from the Chief, Record and Pension
Office, War Department, Washington, D.
C, requesting information regarding your
detail on extra duty In the telegraph office
at this hospital:
"U. S. A. General Hospital,
"Presidio of S. F., Cal., November 12,
1903.
"Respectfully returned to the Chief,
Record and Pension Office, War Depart-
ment, Washington, D. C, with the informa-
tion that Private Cecil D. Ross, Hospital
Corps, U. S. Army, joined at this hospital
for duty Nov. 8, 1900, and was discharged
April 24, 1903, by reason of expiration of
term of enlistment.
"He was on duty in the telephone and
telegraph office [533] at this hospital from
Nov. 9, 1900, until date of discharge, but no
printed order was ever issued detailing him
on extra duty, as at an institution of this
•0 L. ed.
kind there are many duties to be performed,
the general character of which are similar.
"W. P. Kendall,
"Major and Surgeon, U. S. A., Command-
ing."
Although no order was issued detailing
you on extra duty in the telephone and
telegraph office at this hospital, you, never-
theless, performed this duty from November
9, 1900, until the date of your discharge.
W. P. Kendall,
Major and Surgeon, U. S. Army, Command-
ing HospitaL
The government insists that there Is no
statutory authority for extra-duty pay to
enlisted men of the Medical Department of
the Army, that the right of recovery is
denied by the Army Regulations and by
statute, and that the claimant did not per-
form extra duty.
From an early date, provision has been
made for the payment of enlisted men on
extra duty at "constant labor of not less
than ten days." Acts of March 2, 1819,
chap. 45, 3 Stat, at L. 488; May 19,
1846, chap. 22, 9 Stat, at L. 14; July 13,
1866, chap. 176, 14 Stat at L. 93, Comp. SUt.
1913, 9 2168; Feb. 1, 1873, chap. 88, 17
Stat, at L. 422, Comp. SUt. 1913, 9 2158;
Rev. Stat. § 1287, Comp. Stat. 1U13, 9
2158; acts of July 5, 1884, chap. 217, 23
Stat, at L. 110, Comp. SUt. 1913, 9 0849;
March 3, 1885, chap. 339, 23 SUt. at L.
359, Comp. SUt. 1913, 9 2159. For the
present purpose, we may assume that the
court of claims correctly construed the pro-
visos of the appropriation acU of July 5,
1884, and March 3, 1885, as amendatory of
§ 3287 of the Revised SUtuUs (Comp.
SUt. 1913, 9 2158), and as thus having
the effect of providing a general rule. 49
Ct. CI. pp. 63*65. See Army Regulations
(1889) 163; (1895) 165; (190iy 183;
(1904) 168; (1908) 168; (1910) 169; (1913)
170; 14 Comp. Dec. p. 153; 15 Comp. Dec.
p. 375. The applicable clause, in this
view, of the act of 1885, provides that
"such extra-duty pay hereafter shall be
at the rate of fifty cehU per day for me-
chanics, artisans, school -Uachers, and clerks
at [534] Army, division, and department
headquarters, and thirty-five cenU per day
for other clerks, teamsters, laborers, and
other enlisted men on extra duty."
The regulation in force at the time in
question — to which the government refers
as denying the right of recovery — sUtes
that "enlisted men of the several sUff
departmenU will not be detailed on extra
duty without authority from the Secretary
of War. They are not entitled to extra-
duty pay for services rendered in their
respective departments." Army Regula-
SS4-«86
SUPREMB COURT OF THE UNITED STATES.
Oct. Tbmi
tions (1895J 167; (1901) 185. And the
statute which the governgnent cites (Rev.
Stat. 9 1235, Comp. Stat. 1913, §,2007)
provides that detail for employment in
"constant labor" shall be "only upon the
written order of a commanding officer, when
such detail is for ten or more days." We
agree with the contention of the claimant
that the regulation can have force only so
far as it may be deemed to be in accord
with the ' acts of Congress ; and we may
assume in deciding the present case, as was
held by the court below, that § 1235 of
the Revised Statutes was not intended to
preclude a recovery of extra-duty pay where
there had been a detail to extra duty by
competent authority, although not in
writing, and extra duty entitling the en-
listed man to extra pay under the statute
had actually been performed.
But the question remains whether 'the
claimant did perform "extra duty." The
term is obviously a relative one; and it
cannot be determined that the enlisted man
was performing extra duty without a com-
plete understanding of the scope of the
duties which he might properly be expect-
ed to perform in accordance with his en-
listment without receiving extra pay.
What might be extra duty in the case of
men of the line might not be extra duty in
the case of men in the staff departments.
The claimant had been transferred to the
Hospital Corps; by that transfer he be-
came a member of that Corps and bound to
perform, without extra pay, any of the
duties which perUined to that [535] ser-
vice. The act of March 1, 1887, chap. 311
(24 SUt. at L. 435, Comp. Stat. 1913, i
1819), organizing the Hospital Corps, defin-
ing its duty, and fixing the pay of its mem-
bers (as amended by the act of July 13,
1892, chap. 162, 27 Stat, at L. 120, Comp.
Stat. 1913, § 1824), provides: .
"That the Hospital Corps of the United
States Army shall consist of hospital stew-
ards, acting hospital stewards, and pri-
vates; and all necessary hospital services
in garrison, camp, or field (including ambu-
lance service) shall be performed by the
members thereof, who shall be regularly
enlisted in the military service; said
Corps shall be permanently attached to
the Medical Department, and shall not be
included in the effective strength of the
Army nor counted as a part of the enlist-
ed force provided by law.
"Sec. 2. That the Secretary of War is
empowered to appoint as many hospital
stewards as, in his judgment, the service
may require; but not more than one hos-
pital steward shall be stationed at any
post or place without special authority of
the Secretary of War.
"Sec. 5. That the SecreUry of War is
empowered to enlist, or cause to be en-
listed, as many privates of the Hospital
Corps as the service may require, and to
limit or fix the number, and make sueh
regulations for their government as may
be necessary; and any enlisted man In
the Army shall be eligible for transfer to
the Hospital Corps as a private. They
shall perform duty as ward masters, cooks,
nurses, and attendants in hospitals, and
as stretcher bearers, litter bearers, and am-
bulance attendants in the field, and such
other duties as may by proper authority
be required of them.
"Sec. 6. That the pay of privates of the
Hospital Corps shall be eighteen dollars
per month, with the increase on account
of length of service as is now or may
hereafter be allowed by law to other en-
listed men. They shall be entitled to the
same allowance as a corporal of the arm
of service with which they may be on duty."
[536] The Army Regulations of 1895
contained the following:
"1433. General hospitals will be under
the exclusive control of the Surgeon-Gen-
eral and will be governed by such reguli^
tions as the Secretary of War may pre-
scribe. . . .
"1435. The senior surgeon is charged
with the . management and is responsible
for the condition of the post hospital, which
will be at all times subject to inspection bj
the commanding officer. . . .
"1436. The surgeon of the post will
assign his assistants and the members of
the Hospital Corps to duty, and report
them on the muster rolls in the capacity
in which they are serving. . ."
See Army Regulations (1901) 1C21, 1628,
1629; (1913) 1439, 1447, 1448.
It cannot be doubted that it was the in-
tention that the members of the Hospital
Corps should perform, for the stated pay,
all the duties that are properly incident
to the conduct of hospitals as efficient in-
strumentalities. The act provides that the
privates "shall perform duty as ward mas-
ters, cooks, nurses, and attendants in hos-
pitals . . . and such other duties as
may by proper authority be required of
them." We know of no way of defining
these "other duties" except by reference
to what may be reasonably demanded in
the conduct of a fully equipped hospital,
considered as an administrative unit, in-
cluding all that is required in its varied
work. Telephone service may well be re-
garded as essential to the convenient eon-
duct of a properly managed institution of
2S9 U. S.
191&
MOSS V. RAMEY.
536-538
tliis sort. With a correct understanding
of its needs that facility may be deemed
to be BO less incidental to the hospital service
tiian attendance at the door, or in the re-
ception room, or in connection with the
offices of administration. And if, in the
practical judgment of the military author-
ities, the efficient management of a gen-
eral hospital requires the maintenance of
both a telephone [537] and telegraph office,
we know of no ground for saying that mem-
bers of the Corps who are assigned to this
duty as a part of the current work of the es-
tablishment are any more entitled to extra
pay than they would be in any other of
the numerous aetivities which the success-
ful administration of the hospital may de-
mand.
Certainly, the question was one calling
in the first instance for the practical judg-
ment of the Department. Numerous regu-
lations, for a very long period of years,
hare shown the desire to prevent abuses
in the service by unwarranted details to
''extra duty" as a basis for extra pay. The
regulation, above quoted, that enlisted
men of the several staff departments will
not be detailed on extra duty without au-
thority from the Secretary of War, is
significant in this aspect. In the conduct of
an institution like a general hospital, where
Congress has provided that all necessary
services shall be performed by the members
of the Hospital Corps, there is every reason
for caution, and for the exercise of careful
official judgment, in determining whether a
particular case justifies or requires a detail
on "extra duty." It is said that the au-
thorities in the present instance endeav-
ored to secure the detail of a member of the
Signal Corps for the duty in question, but
dearly we may not infer from the failure
to obtain such assistance from the outside
that the service was not regarded as with-
in the scope of the duties which members of
the Hospital Corps might properly be re-
quired to perform. The inference is to the
contrary.
The judgment of the Department was
that the claimant was not on extra duty.
He was not in fact assigned on extra duty;
there was no such detail in accordance with
the regulations or the statute as there
should have been if he was considered to
be on extra duty. And, in the only official
report relative to the matter, it appears
that "no printed order was ever issued de-
tailing him on extra duty, as at an insti-
tution of this kind there are many [538]
duties to be performed, the general charac-
ter of which are similar.**
We are asked to overrule this depart-
mental judgment, and to take this service
out of the broad description of the statute
•• L. ed.
relating to the duties of members of the
Hospital Corps. We find no basis for such
action. On the contrary, we cannot es-
cape the conclusion that, in view of the
provisions of the act of Congress and of
the authorized regulations with respect to
the conduct of military hospitals, we are
not at liberty to say that extra-duty pay
has been earned in connection with service
therein — where there was no detail on ex-
tra duty — unless there is a clear abuse of
the necessary official discretion. No such
abuse is shown here.
The judgment of the court below is re-
versed and the cause remanded, with direc-
tion to dismiss the claimant's petition.
It is so ordered.
ALBERT B. MOSS et al., Plffs. in Err.,
v.
ALFRED H. RAMET.
(See 8. C. Reporter's ed. 538-547.)
EMdence — presumption — omlssloii of
island from government survey.
1. There is no room for any iuference
that an island was not in existence at the
time of a government survey because the
field notes and plat make no mention of it,
or that, if there, it was a mere sand bar,
or of inconsiderable area and value, whore
such island contains about 120 acres, lias
banks rising abruptly above the water, is
of stable formation, has a natural growth
of grass and of trees suitable for firewood,
and has evidently been in its present condi-
tion since long before the survey.
(For other cases, wc Evidence, II. L 8. In
Dlf^est Sup. Ct 1908.]
Public lands — survey — errors.
2. The errors of the government sur-
veyor in failing to extend the survejr over
an island in a navigable stream did not
make it any the less a part of the public
domain.
(For other cases, see Public Lands, I. e, 4,
In Digest Sop. Ct. 1906.]
Waters — relative rights of state and
United States — Islands.
3. A large island on the Idaho side of
the Snake river, — a navigable stream, —
being In existence when Idaho became a
Noiv. — On error in surveys and descrip-
tions in patents — see note to Watts v. Lind-
sey, 6 L. ed. U. S. 423.
On government grant bounded by water
as carrying title to islands therein — see note
to United States v. Chandler-Dunbar Water
Power Co. 52 L. ed. U. S. 881.
On title to islands, generally — see notes
to Holman v. Hodges, 58 L.RJI. 673, and
Wilson V. Watson, 35 LJtJL(N.S.) 227.
On what questions the Federal Supreme
Court will consider in reviewing the judg-
ments of state courts — see note to Missouri
ex rel. Hill t. Dockery, 63 L.RJL 571.
42S
SUPREME COURT OF THE UNITED STATES.
Oct. TkBM,
state, did not pass to the state upon ad-
mission to statdiood, or come witnin tiie
disposing influence * of its laws, but re-
mained the property of the United States,
subject to disposal by it.
[For other cases, tee Waters, I. b, 8, la
Digest Sap. Ct 1908.]
Waters — title to Island — Federal
ffrant.
4. Patents for fractional lots on the
east bank of the Snake river — a navigable
stream forming the boundary between Idaho
and Oregon — do not embrace an island lying
between such lots and the thread of the
stream.
[For other cases, see Waters, I. d, 4: Bound-
aries, IV. b. in Digest Sup. Ct. 190S.]
Error to state court — scope of review
— local law.
6. Whether or not a state appellate
court may alter or correct its interlocutory
decision upon the first ap[>ea] when the
same case, with the same parties, comes
iKsfore it again, is a question of local law
upon which the decision of the highest court
of the state controls the Federal Supreme
Court.
[For other cases, see Appeal and Error, tMB-
«»«< in Digest Sop. (ft 1908.]
[No. 61.]
Argued December 9, 1915. Decided Jan-
uary 10, 1916.
IN ERROR to the Supreme Court of the
State of Idaho to review a decree which,
on a second appeal, reversed a decree of the
District Court of Canyon County, in that
state, in favor of plaintiffs in a suit to quiet
title, and remanded the cause with a direc-
tion to dismiss it. Affirmed.
See same case below on first appeal, 14
Idaho, 598, 95 Pae. 513; on second appeal,
25 Idaho, 1, 136 Pac. 608.
The facts are stated in the opinion.
Mr. Oliver O. Haga argued the cause,
and, with Messrs. James H. Richards and
McKeen F. Morrow, filed a brief for plain-
tiffs in error:
When land patented by the United States
government under the public laws is shown
hj the official plat of the survey as border-
ing on a fresh water river, the body of water
whose margin is meandered is the true
boundary, and not the meander line.
Hardin v. Jordan, 140 U. S. 371, 380,
35 L. ed. 428, 432, 11 Sup. Ct. Rep. 808,
838; St. Clair County v. Lovingston, 23
Wall. 46, 23 L. ed. 59; Mitchell v. Smale,
140 U. S. 406, 35 L. ed. 442, 11 Sup. Ct.
Rep. 810, 840; St. Paul & P. R. Co. v.
Schurmeir, 7 Wall. 272, 19 L. ed. 74;
Jefferis v. East Omaha Land Co. 134 U.
S. 178, 38 L. ed. 872, 10 Sup. Ct. Rep. 518;
Middleton v. Pritchard, 4 Dl. 514, 38 Am.
Dec. 112; Houck v. Yates, 82 111. 170;
Fuller y. Dauphin, 124 111. 542, 7 Am. St.
Rep. 388, 16 N. E. 917; Knudsen v. Oman-
son, 10 Utah, 124, 37 Pac. 250.
One of the important rights of a ripariaa
owner is access to the navigable part of a
river from the front of his land.
St Louis V. Ruts, 138 U. S. 226, 247, 34
L. ed. 941, 949, 11 Sup. Ct Rep. 337;
Dutton V. Strong, 1 Black, 23, 17 L. ed.
29; St Paul ft P. R. Co. v. Schurmeir,
7 WalL 272, 19 L. ed. 74; Yates v. Mil-
waukee, 10 Wall. 497, 503, 19 L. ed. 984,
986.
When land is bounded by a river, the
water is appurtenant to the land, and con-
stitutes one of the advantages of its situa-
tion, and a material part of its value, and
enters largely into the consideration for
acquiring it; and for the government to
later survey and dispose of the strips of
land that were left between the meander
line and the body of water purporting to
have been meandered is an injustice to the
original entryman or patentee who acquired
the meandered lots under the belief that
they extended to the river or other body of
water, and a resurvey and sale of such land
should not be permitted except in case of
fraud or palpable mistake in the original
survey.
Mitchell V. Smale, 140 U. S. 406, 35
L. ed. 442, 11 Sup. Ct. Rep. 819, 840;
Lamprey v. State, 52 Minn. 181, 18 L.RJL
670, 38 Am. St. Rep. 541, 53 N. W. 1139;
Hardin v. Jordan, 140 U. S. 371, 35 L.
ed. 428, 11 Sup. Ct Rep. 808, 838; Knud-
sen V. Omanson, 10 Utah, 124, 37 Pac. 250;
Grand Rapids & I. R. Co. v. Butler, 160
U. S. 87, 40 L. ed. 85, 15 Sup. Ct. Rep. 901;
Chandos v. Mack, 77 Wis. 573, 10 L.R.A.
207, 20 Am. St. Rep. 139, 46 N. W. 803.
Except in cases of omission by accident,
fraud, or palpable mistake, the United
States has no authority to make surveys,
subsequent to patent to the upland, of any
land between the meander line and the
body of water purporting to have been
meandered in the original survey.
St. Paul k P. R. Co. V. Schurmeir, 7
Wall. 272, 289, 19 L. ed. 74, 78; Hardin
V. Jordan, 140 U. S. 371, 383, 35 L. ed.
428, 433, 11 Sup. Ct. Rep. 808, 838; Mitchell
V. Smale, 140 U. S. 406, 412, 413, 35 L. ed.
442, 444, 445, 11 Sup. Ct. Rep. 819, 840;
Moore v. Robbins, 06 U. S. 530, 533, 24
L. ed. 848, 850; Franzini v. Layland, 120
Wis. 72, 97 N. W. 499; Davis v. Wiebold,
139 U. S. 507, 35 L. ed. 238, 11 Sup. Ct.
Rep. 628; Grand Rapids k I. R. Co. ▼.
Butler, 159 U. S. 87, 40 L. ed. 85, 15 Sup.
Ct. Rep. 991; St Louis Smelting k Ref.
Co. V. Kemp, 104 U. S. 636, 646, 26 L.«ed.
875, 878, 11 Mor. Min. Rep. 673; Lindsay
V. Hawes, 2 Black, 554, 560, 561, 17 L. ed.
2S9 V. 8.
]»15.
MOSS y. RAMEY.
265, 268; Cragin t. Powell, 128 U. 8. 691,
32 L. ecL 566, 9 Sup. Ct. Rep. 203; Webber
T. Pere Marquette Boom Co. 62 Mich. 635,
30 N. W. 469; Sliufeldt t. Spaulding, 37
Wis. 662 ; . SUte v. Lake St. Clair Fiahing
k Shooting Club, 127 Mich. 587, 87 N. W.
117.
Where the government haa never com-
plained of either fraud or mistake in the
original Bnrrey, a squatter on land between
the meander line and the water cannot be
heard to complain that the government has
parted with title to a larger acreage than
it received pay for, and, as between such
squatter and the riparian owner, the latter
has the better title.
WhiUker v. McBride, 197 U. 8. 510, 40
L. ed. 857, 25 Sup. Ct Rep. 530.
Where a survey and patent show a river
to be one of the boundaries of the tract,
it is a legal deduction that there is no
vacant land left for appropriation between
the river and the river boundary of such
tract.
St. Clair County v. Lovingston, 23 Wall.
46, 23 L. ed. 59; Churchill v. Grundy, 5
Dana, 100; Jeiferis v. East Omaha Land
Co. 134 U. S. 190, 33 L. ed. 876, 10 Sup.
Ct. Rep. 518; St Louis v. Rutz, 138 U.
S. 243, 34 L. ed. 048, 11 Sup. Ct. Rep.
337; Ross v. Faust, 54 Ind. 475, 23 Am.
Rep. 655; Turner v. Parker, 14 Or. 341, 12
Pac. 496.
Where surveys have been made and lands
entered in reliance upon the decisions of
this court that the riparian owner took to
the water purporting to have been mean-
dered, such decisions will be held to con-
stitute rules of property, and the riparian
owner will be protcKsted accordingly.
The claim that the land in controversy
was still part of the public domain was not
raised in the trial court on the second
trial, and the supreme court of Idaho had
no power to reverse that court and deter-
mine that it was public land, and that title
had not passed to plaintiffs in error.
Lamkin v. Sterling, 1 Idaho, 123; Miller
V. Donovan, 11 Idaho, 545, 83 Pac. 608;
Medbury v. Maloney, 12 Idaho, 634, 88
Pac 81; Marysville Mercantile Co. v. Home
F. Ins. Co. 21 Idaho, 377, 121 Pac. 1026;
Pomeroy v. Qordan, 25 Idaho, 279, 137 Pac.
888.
The action of the supreme court in going
entirely outside the record to determine that
the land in controversy was public land, and
that title had not passed to plaintiffs in
error, was a denial of the equal protection
of the laws and of due process of law.
5 Ene. U. S. Sup. Ct. Rep. 618.
Where a question necessary for the de-
termination of a case has been presented
•0 L. ed.
to and decided by an appellate court, such
decision becomes the law of the case in all
subsequent proceedings in the same action,
and is a final adjudication, from the con-
sequences of which the court cannot de-
part nor the parties relieve th^nselves.
Westerfield v. New York L. Ins. Co. 157
Cal. 339, 107 Pac 699; Lindsay v. Peo-
ple, 1 Idaho, 438; Hall v. Blackman, 9
Idaho, 555, 75 Pac. 608; Hunt^ v. Porter,
10 Idaho, 86, 77 Pac. 439; Steve v. Bon-
ners Ferry Lumber Co. 13 Idaho, 394, 92
Pac. 363; Gerber v. Nampa k M. Irrig.
Dist 19 Idaho, 765, 116 Pac 104; Nampa
V. Nampa k M. Irrig. Dist. 23 Idaho, 422,
131 Pac 8; Himely v. Rose^ 5 Cranch, 318,
3 L. ed. Ill; Skillem v. May, 6 Cranch,
267, 3 L. od. 220; Martin v. Hunter, 1
Wheat 304, 374, 4 L. ed. 97, 114; Browder
V. M'Arthur, 7 Wheat 58, 5 L. ed. 397;
The SanU Maria, 10 Wheat 431, 6 L. ed.
359 ; Sibbald v. United States, 12 Pet 488,
9 L. ed. 1167; Washington Brid;;e Co. v.
Stewart, 3 How. 413, 11 L. ed. 658; Siser v.
Many, 16 How. 98, 14 L. ed. 861; Roberts v.
Cooper, 20 How. 467, 15 L. ed. 969; Cook
V. Burnley (Cook v. Porter) 11 Wall. 672,
20 L. ed. 84; Tyler v. Maguire, 17 Wall.
253, 294, 21 L. ed. 576, 587 ; Wayne County
V. Kennicott, 94 U. S. 498, 24 L. ed. 260;
The Lady Pike (Pearce v. Germania Ins.
Co.) 96 U. S. 461, 24 L. ed. 672;' Ames v.
Quimby, 106 U. S. 342, 27 L. ed. 100, 1
Sup. Ct. Rep. 116; Clark v. Keith, 106 U.
S. 464, 27 L. ed. 302, 1 Sup. Ct. Rep. 568;
Chaffin V. Taylor, 116 U. S. 567, 29 L. ed.
727, 6 Sup. Ct. Rep. 518; Barney v. Winona
k St P. R. Co. 117 U. S. 231, 29 L. ed.
859, 6 Sup. Ct. Rep. 654; Gaines v. Rugg
(Gaines v. Caldwell) 148 U. S. 228, 37 L.
ed. 432, 13 Sup. Ct. Rep. 611; Re San-
ford Fork k Tool Co. 160 U. S. 247, 40
L. ed. 414, 16 Sup. Ct. Rep. 291; Great
Western Teleg. Co. v. Burnham, 162 U. S.
330, 40 L. ed. 991, 16 Sup. Ct. Rep. 850;
Thompson v. Maxwell Land Grant k R.
Co. 168 U. S. 451, 456, 42 L. ed. 539, 541,
18 Sup. Ct. Rep. 121; Illinois v. Illinois C.
R. Co. 184 U. S. 77, 46 L. ed. 440, 22 Sup.
Ct Rep. 300; United States v. Camou, 184
U. 8. 572, 46 L. ed. 694, 22 Sup. Ct. Rep.
505; Mutual L. Ins. Co. v. Hill, 193 U.
S. 551, 48 L. ed. 788, 24 Sup. Ct Rep. 538;
Richardson v. Ainsa, 218 U. S. 289, 54 L.
ed. 1044, 31 Sup. Ct. Rep. 23; Balch v.
Haas, 20 C. C. A. 151, 36 U. S. App. 693,
73 Fed. 974; Hal^ v. Kirkpatrick, 44 C.
C. A. 102, 104 Fed. 647; Montena Min.
Co. V. St. Louis Min. k Mill. Co. 78 C. C.
A. 33, 147 Fed. 897; Taenzer v. Chicago,
R. I. & P. R. Co. 112 C. C. A. 153, 191
Fed. 543.
This rule applies regardless of whether
49'
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tebm,
the previous decision is right or wrong, and
is a limitation on the court's power, and
not a mere rule of practice.
Washington Bridge Co. v. Stewart, 3 How.
413, 11 L. ed. 658; ChafiSn v. Taylor, 116 U.
S. 567, 29 L. ed. 727, 6 Sup. Gt. Rep. 518;
Sibbald ▼. United States, 12 Pet. 488, 493,
9 L. ed. 1167, 1169; Gaines v. Rugg (Gaines
V. Caldwell) 148 U. S. 228, 37 L. ed. 432,
13 Sup. Ct. Rep. 611; Tyler ▼. Maguire,
17 Wall. 253, 21 L. ed. 576; IllinoU v.
Illinois C. R. Co. 184 U. S. 77, 46 L. ed.
440, 22 Sup. Ct. Rep. 300; United States
V. Camou, 184 U. S. 572, 46 L. ed. 694,
22 Sup. Ct. Rep. 505; Hunter v. Porter,
10 Idaho, 86, 77 Pac. 439; Leese v. Clark,
20 Cal. 416.
The cases from this court, relied upon by
the supreme court of Idaho to justify its
departure from the rule of law of the case,
do not sustain its action.
United States v. Denver & R. G. R. Co.
191 U. S. 84, 48 L. ed. 106, 24 Sup. Ct.
Rep. 33; Zeckendorf v. Steinfeld, 225 U.
S. 445, 56 L. ed. 1156, 32 Sup. Ct. Rep.
728; Messenger v. Anderson, 225 U. S. 436,
56 L. ed. 1152, 32 Sup. Ct. Rep. 739; Chesa-
peake & O. R. Co. V. McCabe, 213 U. S.
207, 53 L. ed. 765, 29 Sup. Ct. Rep. 430;
Kiug V. West Virginia, 216 U. S. 92, 54
L. ed. 396, 30 Sup. Ct. Rep. 225; Reming-
ton V. Central P. R. Co. 198 U. S. 95, 49
L. ed. 959, 25 Sup. Ct. Rep. 577; Great
Western Teleg. Co. v. Bumham, 162 U. S.
339, 40 L. ed. 991, 16 Sup. Ct. Rep. 850;
Northern P. R. Co. v. Ellis, 144 U. S.
458, 36 L. ed. 504, 12 Sup. Ct. Rep. 724;
Tyler v. Magwire, 17 Wall. 253, 294, 21
L. ed. 576, 587.
The rule of law of the case applies to
intermediate appellate courts and to the
highest courts of a state where Federal
questions are involved, and if, pending a
second appeal, the rule of law on which such
a decision was based is changed by a higher
court, the lower court has no power to
reverse or modify its ori(?inal decree.
Silva V. Pickard, 14 Utah, 245, 47 Pac.
144; District of Columbia v. Brewer, 32
App. D. 0. 388; Ogle v. Turpin, 8 111. App.
453; Herr v. Graden, 22 Colo. App. 511,
127 Pac. 319; State y. Bank of Commerce,
96 Tenn. 591, 36 S. W. 719.
Under the laws of Idaho, the remittitur
from the supreme court went down twenty
days after the decision on the first ap-
peal, and as such decision construed a
Federal grant and determined the rights
of plaintiffs in error to the land in con-
troversy, the Judgment of that court be-
came final upon the expiration of the two
years allowed for issuance of writ of error
from this court, and the Idaho supreme
428
court was without power on a subsequent
appeal, &ye years later, to reverse such
judgment, and its action in doing so im-
pairs a vested right under such Federal
grant.
Moss V. Ramey, 14 Idaho, 598, 95 Pac.
513, 25 Idaho, 1, 136 Pac. 608.
llie findings of the trial court on the
issue of adverse possession were conclusive,
both on this court and the state supreme
court; and the Federal questions in this
case being decisive of the whole controversy,
this court, if it finds the decision of the
state court on such questions erroneous,
should order the afllrmance of the decision
of the trial court.
Waters-Pierce Oil Co. v. Texas, 212 U.
S. 86, 53 L. ed. 417, 29 Sup. Ct. Rep.
220; Robertson v. Moore, 10 Idaho, 115,
77 Pac. 218; Mellen v. Great Western Beet
Sugar Co. 21 Idaho, 353, 122 Pac. 30, Ann.
Cas. 1913D, 621; Weeter Lumber Co. v.
Fales, 20 Idaho, 255, 118 Pac. 289, Ann.
Cas. 1913A, 403; Miller v. Blunck, 24
Idaho, 234, 133 Pac. 383; Murdock v. Mem-
phis, 20 Wall. 590, 642, 22 L. ed. 429,
446; Fairfax v. Hunter, 7 Cranch, 603,
628, 3 L. ed. 453, 461; Martin v. Hunter,
1 Wheat. 304, 323, 362, 4 L. ed. 97, 102,
111; Tyler v. Magwire, 17 Wall. 253, 293,
21 L. ed. 576, 586; Stanley v. Schwalby,
162 U. S. 255, 283, 40 L. ed. 960, 970, 16
Sup. Ct. Rep. 754.
As between a riparian owner and a
squatter, the former has the better title
to land between the meander line and the
water's edge, where* the government sur-
vey shows the riparian land as bordering
on the water.
WhiUker v. McBride, 197 U. S. 610,
49 L. ed. 857, 25 Sup. Ct. Rep. 530.
Decisions on the binding effect of gov-
ernment surveys nnd rights of riparian
owners are rules of property.
St. Paul & P. R. Co. V. Schurmeir, 7
Wall. 272, 289, 19 L. ed. 74, 78; St. Clair
County V. Lovingston, 23 Wall. 46, 23
L. ed. 59; Cragin v. Powell, 128 U. S.
691, 32 L. ed. 566, 9 Sup. Ct. Rep. 203;
Jefferis v. East Omaha Land Co. 134 U. S.
178, 33 L. ed. 872, 10 Sup. Ct. Rep. 518;
St. Louis V. Rutz, 138 U. 8. 226, 34 L.
ed. 941, 11 Sup. Ct. Rep. 337; Hardin v.
Jordan, 140 U. S. 371, 35 L. ed. 428, 11
Sup. Ct. Rep. 808, 838; Mitchell v. 8male»
140 U. S. 406, 35 L. ed. 442, 11 Sup. Ct
Rep. 819, 840; Middleton v.- Pritchard, 4
ni. 610, 38 Am. Dec. 112; Houck v. Yates,
82 ni. 179; Fuller v. Dauphin, 124 Hi.
542, 7 Am. St. Rep. 388, 16 N. E. 917;
Boorman v. Sunnuchs, 42 Wis. 236; Pere
Marquette Boom Co. v. Adams, 44 Mich.
403, 6 N. W. 857; Ridgway v. Ludlow, 6a
2S9 U. fiL
1015.
MOSS V. RAMEY.
Ind. 249; Kraut y. Crawford, 18 Iowa, 549,
87 Am. Dec. 414; Morgan r. Reading, 3
Smedea k M. 366; Forsyth v. Smale, 7
Bias. 201, Fed. Caa. No. 4,950.
Where decisions hare been made in the
eonstruction of a statute or a constitutional
provision, and contracts entered into or
rights acquired subsequent to such construc-
tion, the construction of the statute is
deemed in effect to be a part of the stat-
ute, and subsequent decisions changing such
construction and orerruling the prior cases
have no greater effect than an amendment
of the statute would have; that is to say,
they operate prospectively, but not retro-
spectively, and only affect contracts en-
tered into and rights acquired subsequent
to the change in the decision.
11 Cyc 758; Louisiana v. Pilsbury, 105
U. S. 278, 26 L. ed. 1090; 7 R. C. L. 1010;
Ohio L. Ins. & T. Co. v. Debolt, 16 How.
416, 14 L. ed. 997; Kenosha v. Lamson, 9
Wall. 477, 19 L. ed. 725; Weightman v.
Clark, 103 U. S. 256, 26 L. ed. 392; Burgess
V. Seligman, 107 U. S. 20, 27 L. ed. 359, 2
Sup. Ct. Rep. 10; Anderson v. Santa Anna
Tyirp. 116 U. S. 356, 29 L. ed. 633, 6 Sup.
Ct. Rep. 413; German Sav. Bank v. Frank-
lin County, 128 U. S. 526, 32 L. ed. 519,
9 Sup. Ct. Rep. 159; Los Angeles v. Los
Angeles City Water Co. 177 U. S. 558, 44
L. ed. 886, 20 Sup. Ct. Rep. 736; Muhlker
V. New York k H. R. Co. 197 U. S. 544,
677, 49 L. ed. 872, 880, 25 Sup. Ct. Rep. 522;
Birrell v. New York A H. R. Co. 198 U.
S. 390, 49 L. ed. 1096, 25 Sup. Ct. Rep. 667 ;
Siegel V. New York k H. R. Co. 200 U. S.
615, 50 L. ed. 621, 26 Sup. Ct. Rep. 756;
Sauer v. New York, 206 U. S. 536, 51 L.
ed. 1176, 27 Sup. Ct. Rep. 086; Kenyon v.
Welty, 20 Cal. 637, 81 Am. Dec. 137 ; Jones
T. Williams, 155 N. C. 179, 36 L.R.A.(N.S.)
426, 71 S. E. 222; Hill v. Brown, 144 N. C.
117, 56 S. E. 693; Hill v. Atlantic k N.
C. R. Co. 143 N. C. 539, 9 L.R.A.(N.S.)
606, 55 S. E. 854 ; State v. O'Keil, 147 Iowa,
613, 33 L.R.A.(N.S.) 788, 126 N. W. 454,
Ann. Cas. 1912B, 691; Kelley v. Rhoads, 7
Wyo. 237, 39 L.R.A. 594, 75 Am. St. Rep.
904, 51 Pac. 593; Haskett v. Maxey, 134
Ind. 182, 19 L.R.A. 379, 33 X. E. 358;
Harris v. Jex, 55 N. Y. 421, 14 Am. Rep.
286.
Mr. Will R. Kinir argued the cause and
filed a brief for defendant in error :
The rule of ret judicata cannot apply un-
less the decision in question completely dis-
poses of the cause and puts an end to the
litigation between the parties on that sub-
jeet-mattcr. Unless a final judgment or
deeree is rendered in a suit, the proceedings
in the same are never regarded as a bar
to a subsequent action.
10 Enc. U. 8. Sup. Ct. Rep. 774.
•0 L. ed.
A judgment reversing the judgment of
an inferior court, and remanding the cause
for further proceedings, does not do this.
St. CUir County v. Lovingston, 18 Wall.
628, 21 L. ed. 813; Parcels v. Johnson, 20
WaU. 654, 22 L. ed. 410; McComb v. Knox
County, 91 U. S. 2, 28 L. ed. 186; Bostwick
V. Brinkerhoff, 106 U. S. 4, 27 L. ed. 74,
1 Sup. Ct Rep. 16; Great Western Telcg.
Co. V. Bumham, 162 U. S. 342, 40 L. ed.
992, 16 Sup. Ct. Rep. 850; United States v.
Beatty, 232 U. S. 463, 58 L. ed. 686, 34
Sup. Ct. Rep. 392; Atlantic Coast Line R. ^
Co. V. McElmurray Bros. 14 Ga. App. 196,
80 S. E. 680.
The case at bar was not finally decided by
the Idaho supreme court in 1908, on its
first hearing before that court. It was re-
versed and remanded for new trial because
the trial court's findings were supposedly
made on "a wrong theory of the law."
Moss T. Ramey, 14 Idkho, 598, 95 Pac.
513.
The Supreme Court of the United States
will not review on writ of error a case in
which a Federal question is involved unless
the decision of the state court is final.
Bostwick V. Brinkerhoff, 106 U. 8. 3, 27
L. ed. 73, 1 Sup. Ct. Rep. 15.
The Supreme Court of the United States
is not bound by a prior decision in a state
court involving a Federal question.
United States v. Denver A R. G. R. Co.
191 U. S. 84, 93, 48 L. ed. 106, 109, 24 Sup.
Ct. Rep. 33; Messenger v. Anderson, 225
U. S. 436, 66 L. ed. 1152, 82 Sup. Ct. Rep.
739; Zeokendorf v. Steinfeld, 225 U. S.
445, 66 L. ed. 1156, 32 Sup. Ct. Rep. 728;
Chesapeake k O. R. Co. v. McKell, 126 C.
C. A. 336, 209 Fed. 614.
An appellate court may, on a second ap-
peal, correct the entry of the former judg-
ment so as to make it express the true de-
cision of the case.
2 R. C. L. S 188.
Questions of practice, as interpreted by
the state court, as in this instance, are not
reviewable by this court on appeal.
Duncan v. United Sta^-s, 7 Pet. 435, 451,
8 L. ed. 739, 745; Johnson v. Drew, 171 U.
S. 93, 98, 43 L. ed. 88, 90, 18 Sup. Ct. Rep.
800.
Since plaintiffs have brought this action
tp quiet their title, their right to recover de-
pends upon the strength of their own title,
and not upon the weakness of the defendant's
title. Before the defendant is required to
defend his claim to the island, the plaintiffs
must establish their right thereto; and in
so doing must establish their title on the
ground that their predecessor in interest
acquired title to said land by reason of
the patent issued to him by the government
for the lots bordering on Snake river, oppo-
site said island.
42'
544-546
SUPREME CX)URT OF THE UNITED STATES.
Oci. Tbrm»
McNitt V. Turaer, 16 Wall. 362, 21 L. ed.
346; Watts v. Ldndsey, 7 Wheat. a61, 5 L.
ed. 424; Fussell v. Gregg, 113 U. Sr 550,
28 L. ed. 093, 5 Sup. Ct. Rep. 631.
The finding of facta made in the highest
court of a state is binding upon the Su-
preme Court of the United States, and will
be the basis of decision there.
Adams v. Church, 103 U. S. 510, 48 L.
ed. 769, 24 Sup. Ct. Rep. 512j Egan v. Hart,
165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct.
Rep. 500; Jenkins v. Neff, 186 U. S. 230,
235, 46 L. ed. 1140, 1142, 22 Sup. Ct. Rep.
906; 1 Enc. U. S. Sup. Ct. Rep. 1005; Cliff
V. United States, 195 U. S. 159, 49 L. ed.
139, 25 Sup. Ct. Rep. 1.
Not only the very nature of a writ of er-
ror, but also the rulings of this court from
the beginning, make it clear that on error to
a state court in a suit in equity, as in a
case at law, when the facts are found by
the court below, this court is concluded by
such finding.
1 Enc. U. S. Sup. Ct. Rep. 781; Egan v.
Hart, 165 U. S. 188, 189, 41 L. ed. 680, 681,
17 Sup. Ct. Rep. 300; E. Bement & Sons
T. National Harrow Co. 186 U. 8. 70, 83,
46 L. ed. 1058, 1064, 22 Sup. Ct. Rep. 747 ;
Dower v. Richards, 151 U. S. 658, 666, 38
L. ed. 305, 308, 14 Sup. Ct. Rep. 452, 17
Mor. Min. Rep. 704.
Mr. Justice Van DeTanter delivered the
opinion of the court:
This is a suit to quiet the title to an un-
suryeyed island in the Snake river, a navi-
gable stream, the thread of which at that
place is the dividing line between the states
of Oregon and Idaho. The island lies be-
tween the main channel and the bank on
the Idaho side, and is separated from the
latter by a lesser channel from 100 to 300
feet in width, which carries a considerable
part of the waters of the river, save when
it is at its lower stages. The plaintiffs
hold patents from the United States, issued
In 1890 and 1892, for certain lots on the
Idaho side, opposite the island, and claim
it under these patents, while the defendant
insists that it remains public land, and that
he has a possessory right to it, acquired
by settling thereon in 1894, and subsequent-
ly improving and cultivating it. [545] The
island contains about 120 acres, has banks
rising abruptly above the water, is of stable
formation, has a natural growth of grass
and of trees suitable for firewood, and evi-
dently has been in its present condition since
long before the adjacent lands on the Idaho
side were surveyed, which was in 1868. The
field notes and plat represented the survey
as extending to the river, but made no men-
tion of the island. They also represented
the lots or fractional tracts immediately op-
4S0
posite the island as containing 110.40 acres.
The patents under which the plaintiffs claim
described the lots by giving the nimibers
assigned and the acreage accredited to theiu
on the plat, and then saying, "according to
the official plat of the survey of the said
land returned to the General Land Oflice
by the Surveyor General." The trial court
concluded that the island remained unsur-
veyed public land, and that the plaintiffs'
lands extended only to the river, and ren-
dered judgment against the plaintiffs. They
appealed, and the supreme court of the
state held, one member dissenting, that
the patents passed the title not only to the
lots as shown on the plat, but also to all
islands lying between them and the thread
of the stream. The judgment was accord-
ingly reversed and a new trial ordered to
determine whether the plaintiffs had lost
title to the island through adverse posses-
sion. 14 Idaho, 598, 95 Pac. 513. Upon
the new trial judgment was given for the
plaintiffs and the defendant appealed. The
supreme court, in deference to our inter-
mediate decision in Scott v. Lattig, 227 U.
S. 229, 57 L. ed. 490, 44 L.R.A.(N.S.) 107.
33 Sup. Ct. Rep. 242, then recalled its deci-
sion upon the first appeal, reversed the
judgment rendered upon the second trial,
and remanded the cause with a direction
to dismiss it. 25 Idaho, 1, 136 Pac. 608.
The plaintiffs bring the case here.
While the inference naturally arising
from the silence of the field notes and plat
is that the island was not there at the time
of the survey, or, if there, was a mere sand
bar or of inconsiderable area and value, what
is shown and [546] conceded respecting its
stable formation, elevation, size, and ap-
pearance, completely refutes this inference,
and demonstrates that the island was in
its present condition at the time of the
survey and when Idaho became a state,
which was twenty-two years later.
Thus the facts bearing on the status of
the island and the operation of the patents
are essentially the same as in Scott v.
Lattig; and, in view of what was there
held, it suffices to say: The error of the
surveyor in failing to extend the survey
over the island did not make it any the
less a part of the public domain. It was
fast, dry land, and neither a part of the
bed of the river nor land under water, and
therefore did not pass to the state of Idaho
on her admission into the Union, but re-
mained public land as before. The descrip-
tive terms in the patents embraced the lots
abutting on the river, as shown on the plat,
but not this island lying between the lots
and the thread of the stream. Chapman ft
D. Lumber Co. v. St. Francis Levee Dist.
232 U. 8. 186, 58 L. ed. 664, 34 Sup. Ct
tt9 V. 8*
1915.
CHICAGO R. I. & P. R. CO. v. WRIGHT.
546-548
Rq>. 297; Gauthier v, Morrison, 232 U. S.
452, 58 L. ed. 680, 34 Sup. Ct Rep. 384;
Producers Oil Co. v. Hansen, 238 U. S. 325,
89 L. ed. 1330, 35 Sup. Ct. Rep. 755. The
claim that the island passed under the pat-
ents is therefore ill-founded. The case of
^liiUker v. McBride, 197 U. S. 510, 49 L.
ed. 857, 25 Sup. Ct. Rep. 530, upon which
the plaintiffs rely, is distinguishable in
that what was there claimed to be an is-
land contained only 22 acres and was not
•bown to be of stable formation, and the
Land Department had repeatedly refused to
treat it as public land.
It is contended that the decision upon tne
Arst appeal became the law of the case, and
that by recalling that decision when con-
sidering the second appeal the court in-
fringed upon the due process of law clause
of the 14th Amendment. The contention
smst faiL There is nothing in that or any
other clause of the i4th Amendment which
prevents a state from permitting an appel-
late court to alter or correct its interlocu-
tory decision upon a first appeal when the
nme case, with the same [547] parties,
comes before it again; and whether this is
permitted is a question of local law, upon
whidi the decision of the highest court of
the state is controlling here. King v. West
Virginia, 216 U. S. 92, 100, 54 L. ed. 396,
401, 30 Sup. Ct. Rep. 225; John y. PauUin,
231 U. S. 583, 58 L. ed. 381, 34 Sup. Ct.
Rep. 178.
It also 18 contended that, under the due
process of law clause of such Amendment,
the court was not at liberty, upon the sec-
ond appeal, to change its first decision, be-
cause, after the case was remanded for a
new trial, the defendant acquiesced in that
decision by an amendment to his answer
completely eliminating from the case all
controversy respecting the status of the
island and the operation of the patents.
This contention is without any real basis
in the record. The original answer is not
before us, but the amended one is, and it,
in addition to otherwise traversing the
plaintiffs' allegation of ownership, express-
ly denies that they or either of them "have
any right, title, or interest whatever in any
portion" of the island. And examining the
evidence taken on the second trial we find
that the defendant was then still insisting
that the island was public, and not private,
land. It is idle, therefore, to claim that
the point involved in the first decision was
completely eliminated from the case between
the two appeals. Whether, if the record
were otherwise, it could be said that there
was an abuse of due process, need not be
considered.
Judgment affirmed.
•• Ii. ed.
[548] CHICAGO, ROCK ISLAND, & PA-
CIFIC RAILWAY COMPANY, Plff. in
Err.,
V.
LIZZIE L. WRIGHT and Henry C. Berge,
Administrators, etc
(See S. C. Reporter's ed. 548-555.)
Master and servant ^ employers' lia-
bility ^ when employee is engaged In
interstate commerce.
1. An employee of an interstate carrier,
injured in a collision while taking a road
engine from a point in one state to a re-
pair shop in another state, was employed
at the time in interstate commerce, witnin
the meaning of the Federal employers' lia-
bility act of April 22, 1908 (35 SUt. at L.
65, chap. 149, Comp. SUt. 1913, § 8657),
although tlie train order under which he
was then proceeding directed that his en-
gine be run "extra" between two named
points, both of which are in the same state.
I For other cases, see Master and Servant. II.
a. In Digest 8up. Ct 1908.]
Appeal ^ harmless error ^ submitting
case under wrong statute.
2. Error in submitting a case to the
jury, as if the state employers' liability
act rather than the Federal employers' lia-
bility act of April 22, 1908 (35 Stat, at
L. 65, chap. 149, Comp. Stat. 1913, § 8657),
were controlling, does not require the re-
versal of a judgment in favor of plaintiff,
where, on the only material point on which
the two acts differ, the state act is more
favorable to the employer than is the act
of Congress. •
[For other cases, see Appeal and Error, VIII.
m, in Digest Sup. Ct. 1908.]
Master and servant ^ employers' lia-
bility — negligence ^ rules.
3. The running of a switching engine on
the main track through a deep and curved
cut within the yard limits at such a rate
of speed as to endanger the safety of an
"extra" which the switching crew knows
may be coming through the cut on the same
track is actionable negligence under the
Federal employers* liability act of April
22, 1908 (35 Stat, at L. 65, chap. 149, Comp.
Stat. 1913, § 8657), whether permitted by
the railway company's rules or not, and
renders the railway company responsible
for the killing of the engineer of the extra
in the resulting collision.
[For other cases, see Master and Servant, II.
a, in Digest Sup. Ct 1908.]
[No. 167.]
Argued November 30, 1915. Decided Jan-
uary 10, 1916.
Note. — On the constitutionality, applica-
tion, and effect of the Federal employers'
liability act — see notes to Lamphere v. Ore-
gon R. ft Nav. Co. 47 L.R^.(N.S.) 38, and
Seaboard Air Line R. Co. ▼. Horton, L.RJL
1915C, 47.
4^v
SUPREME COURT OF THE UNITED STATES.
Oct. Tnoi,
IN ERROR to the Supreme Court of the
State of Nebraska to review a judgment
which affirmed a judgment of the District
Court of Lancaster County, in that state,
in favor of plaintiffs in a personal-injury
action. Affirmed.
See same case below, 94 Neb. 317, 143
N. W. 220; on rehearing, 06 Neb. 87, Ht!
N. W. 1024.
The facts are stated in the opinion.
Mr. E. P. Holmes argued the cause, and,
with Mr. Paul E. Walker, filed a brief for
plaintiff in error:
Tlie administrators of an engineer in the
employ of a railroad company, operating a
lone engine being taken from Fairbury, Ne-
braska, to Council Bluffs, Iowa, killed while
on said trip, are entitled to maintain a suit
against the railway company under the
Federal employers' liability act.
North Carolina R. Co. v. Zachary, 232 U.
S. 248, 68 L. ed. 591, 34 Sup. Ct. Rep. 305,
9 N. C. C. A. 109, Ann. Cas. 191 4C, 159.
If the case is one where the employee is
employed by the interstate carrier in such
commerce, then the Federal employers' lia-
bility act is exclusive, and it is error to try
the case under a state employers' liability
act.
Toledo, St. L. A W. R. Co. r. Slavin, 236
U. S. 454, 59 L. ed. 671, 35 Sup. Ct. Rep.
306; St. Louis, S. F. & T. R. Co. v. Scale,
229 U. S. 156, 57 L. ed. 1129, 38 Sup. Ct.
Rep. 651, Ann. Cas. 1914C, 156; North Caro-
lina R. Co. v. Zachary, supr^i; Second Em-
ployers' Liability Cases (Mondou v. New
York, N. H. & H. R. Co.) 223 U. S. 1, 49,
56 L. ed. 327, 345, 38 L.R.A.(N.S.) 44, 32
Sup. Ct. Rep. 169, 1 N. C. C. A. 875.
In construing and applying the Federal
employers' liability act the decisions of
the national courts control over those of
the state courts, and in determining when a
carrier is guilty of negligence under the
Federal act the decisions of the Federal
courts control, and if the state court, apply-
ing the Federal act or in trying a case which
should have been tried under that act, erred
in the trial of the case in holding the car-
rier liable, it is such an error as this court
may review.
Roberts, Injuries to Interstate Employees,
§ 8, p. 15; St. Louis, I. M. k S. R. Co. v.
McWhirter, 229 U. S. 265, 56 L. ed. 1179,
33 Sup. Ct. Rep. 858; Michigan C. R. Co.
V. Vreeland, 227 U. S. 59, 57 L. ed. 417,
33 Sup. Ct. Rep. 192, Ann. Cas. 1914C. 176.
Rules that yard engines in yard limits
might occupy tracks, protecting themselves
against first-class and passenger trains, and
that extra trains must run through yards
under control, looking out for yard engines
and other engines, are reasonable and suffi-
cient.
4SS
Central R. Co. v. Young, L.RJ^. — , — , 118
C. C. A. 465, 200 Fed. 359; 1 Bailey, Per-
sonal Injuries, 2d ed. p. 797; 3 Labatt, Mast.
& S. p. 2948; Chicago, R. I. & P. R. Co. v.
Ship, 98 C. C. A. 257, 174 Fed. 353 ; ROsney
V. Erie R. Co. 68 C. C. A. 155, 135 Fed.
311; Great Northa-n R. Co. v* Hooker, 95
C. C. A. 410, 170 Fed. 154; Kansas & A.
Valley R. Co. v. Dye, 16 C. C. A. 604, 36
U. S. App. 23, 70 Fed. 24; Little Rock &
M. R. Co. V. Barry, 43 L.RJL 349, 28 C.
C. A. 644, 56 U. S. App. 37, 84 Fed. 944;
Scott V. Eastern R. Co. 90 Minn. 135, 95
N. W. 892, 14 Am. Neg. Rep. 373; Vedder
V. Fellows, 20 N. Y. 126; Enright v. Toledo,
A. A. A N. k. R. Co. 93 Mich. 409, 53 N.
W. 536; Berrigan v. New York, L. E. A W.
R. Co. 131 N. Y. 582, 30 N. E. 57; Whalen
V. Michigan C. R. Co. 114 Mich. 612, 72 N.
W. 323; Kenefick-Hammond Co. t. Rohr,
77 Ark. 290, 91 S. W. 179, 19 Am. Neg.
Rep. 69; Ward v. Manhattan R. Co. 95 App.
Div. 437, 88 N. Y. Supp. 758; Wolsey v.
Lake Shore & M. S. R. Co. 33 Ohio St.
227; Aerkfetz v. Humphrey!, 145 U. S. 418,
36 L. ed. 758, 12 Sup. Ct. Rep. 835; Larow
V. New York, L. E. A W. R. Co. 61 Hun, 11,
15 N. Y. Supp. 384; Shuster v. Philadelphia,
B. k W. R. Co. 6 Penn. (DeL) 4, 4 LJLA.
(N.S.) 407, 62 Atl. 689; Shannon ▼. New
York C. & H. R. R. Co. 88 App. Div. 349, 84
N. Y. Supp. 646; Smith t. New York C. &
H. R. R. Co. 88 Hun, 468, 84 N. Y. Supp.
881; Niles v. New York C. A H. R. R. Co.
14 App. Div. 58, 43 N. Y. Supp. 751, 1 Am.
Neg. Rep. 511; Corcoran v. New York, N.
H. & H. R. Co. 77 App. Div. 505, 78 N. Y.
Supp. 953.
When an empty car or a lone engine for
whatever purpose is going from a point in
one state to a point in another, within the
meaning of the Federal employers' liability
act, the crew moving it are engaged in in-
terstate commerce.
North Carolina R. Co. v. Zachary, 232 U.
S. 248, 58 L. ed. 591, 34 Sup. Ct. Rep. 305,
9 N. C. C. A. 109, Ann. Cas. 1914C, 159;
Roberts, Injuries to Interstate Employees, p.
113.
Mr. George W. Berge argued the cause,
and, with Mr. Halleck F. Rose, filed a brief
for defendants in error:
A necessary movement of a defective
empty car or engine alone, for the purpose
of repair only, and not in connection with
any cars commercially used, does not con-
stitute interstate conunerce ; and in such' a
case it matters not whether the defective
car or engine is being transported between
two points in a state, or whether it crosses
state lines.
Chicago A N. W. R. Co. v. United SUtes,
21 L.R.A.(N.S.) 690, 93 C. C. A. 450, 168
Fed. 236; United States t. Rio Grande
SS9 U. 8.
1915.
CHICAGO R. L ft P. R. CO. T. WRIQHT.
MO
Western R. Co. 98 C. C. A. 298, 174 Fed.
899; Siegel v. New York C. ft H. R. B. Co.
178 Fed. 878; Johnson v. Southern P. Co.
196 U. S. 1, 49 L. ed. 868, 25 Sup. Ct Rep.
158, 17 Am. Neg. Rep. 412; Tajlor v. Boston
ft M. R. Go. 188 Mass. 390, 74 N. E. 591;
fionthcrn R. Co. t. Snyder, 109 C. C. A.
344, 187 Fed. 492; St. Louis ft S. F. R. Co
T. Delk, 86 C. C. A. 95, 158 Fed. 931, 14
Ann. Gas. 288; United States t. Southern
P. Co. 04 C. C. A. 629, 169 Fed. 407 ; Chi-
cago Junction R. Co. v. King, 94 C. C. A.
652, 169 Fed. 872; Illinois C. R. Co. v.
Bowles, 71 Miss. 1003, 15 So. 138; Breske
T. Minneapolis ft St. L. R. Co. 115 Minn.
886, 132 N. W. 337; Dlinois C. R. Co. v.
Behrens, 233 U. S. 478, 58 L. ed. 1051, 84
Sup. Ct Rep. 646, Ann. Cas. 1914C, 163.
The Federal employer's liability act is in
pari materia with the Federal safety appli-
ance act, and what is interstate commerce
under one act must be so under the other.
At least, they must be construed together.
North Carolina R. Co. v. Zachary, 232
TJ. S. 248, 58 L. ed. 591, 34 Sup. Ct. Rep.
805, 9 N. C. C. A. 109, Ann. Cas. 1914C, 159.
The court's instructions assume, based
upon the undisputed evidence, that the de-
ceased, at the time he was Idlled, was en-
gaged outside of interstate commerce; and
the plaintiff in error, having requested such
instructions, is bound by them; and it must
Iw taken as settled that the state employers'
liability act is applicable to thb case, and
not the Federal act.
Wabash R. Co. ▼. Hayes, 234 U. S. 86,
58 L. ed. 1226, 84 Sup. Ct. Rep. 729, 6
N. C. C. A. 224.
The right to proceed in an action for per-
sonal injuries under the Federal employers'
liability act may be waived.
Graber v. Duluth, S. S. ft A. R. Co. 159
Wis. 414, 150 N. W. 489 ; Leora v. Minne-
apolia, St. P. ft S. Ste. M. R. Co. 156 Wis.
886, 146 N. W. 520, 8 N. C. C. A. 108;
Hanson v. Chicago, M. ft St. P. R. Co. 167
Wis. 455, 146 N. W. 524; Wabash R. Co.
▼. Hayes, supra; Chesapeake ft O. R. Co. v.
McDonald, 214 U. S. 191, 53 L. ed. 963,
29 Sup. Ct. Rep. 546; Harding v. Illinois,
106 U. S. 78, 49 L. ed. 394, 25 Sup. Ct.
R^. 176.
In the case at bar the evidence is all one
way, showing conclusively that the deceased
was engaged outside of interstate commerce.
•Suppose, however, as a matter of fact, he
had been engaged in interstate commerce,
but the evidence showing this fact had been
excluded by the trial court, — still this would
be error without prejudice where the rail-
way company's position was made no worse
beoinse the case was tried upon the hypoth*
«sis that the state law governed.
Chicago ft N. W. R. Co. v. Gray, 237 U.
«• L. ed.
S. 399, 59 L. ed. 1018, 35 Sup. Ct. Rep. 620,
9 N. C. C. A. 452.
Questions of fact which are merely pre-
liminary to or the possible basis of a Fed-
eral question are not in themselves Federal.
Telluride Power Transmission Co. v. Rio
Grande Western R. Co. 175 U. S. 639, 44
L. ed. 305, 20 Sup. Ct. Rep. 245; Telluride
Power Transmission Co. v. Rio Grande
Western R. Co. 187 U. S. 569, 47 L. ed. 307,
23 Sup. Ct. Rep. 178; Crary v. Devlin, 154
U. S. 619, and 23 L. ed. 510, 14 Sup. Ct.
Rep. 1199; Merced Min. Co. v. Boggs, 3
Wall. 304, 18 L. ed. 245; Dower v. Richards,
151 U. S. 659, 38 L. ed. 306, 14 Sup. Ct.
Rep. 452, 17 Mor. Min. Rep. 704; Speed v.
McCarthy, 181 U. S. 269, 45 L. ed. 855,
21 Sup. Ct Rep. 618.
Nor does this court sit to review the find-
ings of facts made in the state court, but
accepts the findings of the court of the
state upon matters of fact as conclusive,
and is confined to a review of questions of
Federal law within the jurisdiction con-
ferred upon this court.
Waters-Pierce Oil Co. v. Texas, 212 U. S.
97, 53 L. ed. 424, 29 Sup. Ct. Rep. 220;
Quimby v. Boyd, 128 U. S. 488, 32 L. ed.
502, 9 Sup. Ct. Rep. 147 ; Egan v. Hart, 165
U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep.
300; Dower v. Richards, 151 U. S. 658,
38 L. ed. 305, 14 Sup. Ct Rep. 452, 17 Mor.
Min. Rep. 704; Thayer v. Spratt, 189 U. S.
346, 47 L. ed. 845, 23 Sup. Ct. Rep. 576;
Missouri, K. ft T. R. Co. v. West, 232 U. S.
682, 58 L. ed. 795, 34 Sup. Ct Rep. 471.
[549] Mr. Justice Van Decanter deliv-
ered the opinion of the court:
This was an action against a railroad
company by personal rq>resentatives to re-
cover for the death of their intestate, an
employee of the company, resulting from
a collision of two locomotives on the com-
pany's railroad at Lincoln, Nebraska. One
of the locomotives was a switch engine re-
turning to the city from an adjacent trans-
fer track, and the other a road engine on
the way to a distant repair shop. The for-
mer was in charge of a switching erew,
and the latter of an engine crew in which
the intestate was the engineer. At the
place of the collision the track is in a deep
and curved cut which shi^rtens the view
along the track. The causal negligence set
up in the petition included allegations that
the defendant negligently failed to provide
a suitable rule regulating the speed and
movement of switch engines through the
cut; that the switch engine was being run
through the cut at a negligent, reckless, and
dangerous rate of speed, and without its
engineer having it under control, and that
when the employees in charge of it came
28 4S>
649-662
SUPREME COURT OF aiiE UNITED STATES.
OoT. TwaM.,
within view of the other engine thej negli-
gently jumped to the ground without re-
versing their engine or attempting to stop
it, notwithstanding it reasonably and safely
could have been stopped in time to prevent
the collision. The answer denied all that
was alleged in the petition, and charged the
intestate with gross contributory negli-
gence and an assumption of the risk. The
petition described the road engine as mov-
ing from one point to another in Nebraska,
and said nothing about interstate commerce,
but the answer alleged that this engine was
being taken to a point in another state, and
that the defendant was engaged and the
intestate was employed in interstate com-
merce. At the trial the evidence disclosed
that the defendant was operating a railroad
extending through Kansas, Nebraska, Iowa,
and other [550] states; that the road en-
gine was on the way from Phillipsburg,
Kansas, to Council Bluffs, Iowa; that the
train order under which the intestate was
proceeding at the time read, "Engine 1486
will run extra Fairbury to Albright," both
points being in Nebraska, and that when
Albright was reached another order was to
be given, covering the remainder of the
trip. Notwithstanding the allegation in
the answer and this evidence, the court sub-
mitted the case to the jury as if it were
controlled by the employers' liability act
of Nebraska, and not by the act of Con-
gress. The plaintiff had a verdict and
judgment, and the latter was affirmed by
the supreme court of the state. 04 Neb.
317, 143 N. W. 220, 06 Neb. 87, 146 N.
W. 1024. The defendant prosecutes this
writ of error.
It is entirely clear that taking the road
engine from Phillipsburg, Kansas, to Coun-
cil Bluffs, Iowa, was an act of interstate
commerce, and that the intestate, while par-
ticipating in that act, was employed in such
commerce. That the engine was not in
commercial use, but merely on the way to
a repair shop, is immaterial. It was being
taken from one state to another, and this
was the true test of whether it was moving
in interstate commerce. See North Cfirolina
R. Co. V. Zachary, 232 U. S. 248, 250, 58
L. ed. 501, 505, 34 Sup. Ct. Rep. 306, Ann.
Cas. 1014C, 150. The courU of the state
rested their decision to the contrary upon
the train order under which the intestate
was proceeding, and upon the decisions in
Chicago A N. W. R. Co. v. United States,
21 L.RJl.(N.S.) 600, 03 C. C. A. 450, 168
Fed. 236, and United States v. Rio Grande
Western R. Co. 08 C. C. A. 203, 174 Fed.
300. In this they misoonoeived the meaning
of the train ordir and the effect of the de-
cisions cited. The order was given by a
division train daspatcher, and meant that
between the points named therein the en-
Mne would have the status of an extra
4
train, and not that it was going merely
from one of those points to the other. The
cases cited arose under the safety appliance
acts of Congress, and what was decided was
that those acts were not intended [551] to
penalize a carrier for hauling to an adjacent
and convenient place of repair a car with
defective appliances, when the sole pur-
pose of the movement was to have the de-
feet corrected, and the car was hauled alone,
and not in connection with other cars in
commercial use. It was not held or sug-
gested that such a hauling from one state
to another was not a movement in inter-
state commerce, but only that it was not
penalized by those acts.
As the injuries resulting in the intes-
tate's death were sustained while the com-
pany was engaged, and while he was em-
ployed by it, in interstate commerce, the
company's responsibility was governed by
the employers' liability act of Congress,
chap. 140, 35 Stat, at L. 65, chap. 143, 36
Stat, at L. 201, Conip. Stat 1013, § 8662;
and as that act is exclusive and supersedes
state laws upon the subject, it was error
to submit the case to the jury as if the
state act were controlling. Wabash R. Co.
V. Hayes, 234 U. S. 86, 80, 68 L. ed. 1226,
1230, 34 Sup. Ct. Rep. 720, 6 N. C. C. A.
224, and cases cited.
But error affords no ground for reversal
where it is not prejudicial, and here it is
plain that the company was not prejudiced.
While there are several differences between
the state act and the act of Congress, the
only difference having a present bearing is
one relating to contributory negligence.
The state act declares that in cases where
the employee's negligence is slight and
that of the employer is 'gross in compari-
son, the former's negligence shall not bar
a recovery, but shall operate to diminish
the damages proportionally. In other cases
contributory negligence remains a bar as at
common law. Comp. Stat. 1007, § 2803b;
Cobbey's Anno. Stat. 1011, § 10,502. The
act ol Congress, on the other hand, declares
that the employee's negligence shall not bar
a recovery in any case, but shall operate
to diminish the damages proportionally in
all cases, save those of a designated class,
of which this is not one. Thus, it will bo
seen that the state act is more favorable to
the employer than is the act of Congress.
The instructions to the jury followed the
state [552] act, and consequently were
more favorable to the company than they
would have been had they followed the act
of Congress. To illustrate: under the in-
structions given, a finding that the in*
testate's injuries were caused by con-
curring negligence of the ccmipany and
himself, and that his negligence was
more than slight and the company's less
than gross, must have resulted in a ver-
289 U. 8.
1915.
CHICAGO R. I. ft P. R. CO. r. WRIGHT.
652-554
diet for the company, while, under instruo-
tkmB following tiie act of CongresB, such a
finding must have resulted in a verdict for
the plaintiffs, with the damages proportion-
ally diminished. Of course, no prejudice
could have resulted to the company from
the instructions being more favorable to it
than they should' have been under the con-
trolling law.
The company requested a directed verdict
in its favor on the ground that there was
no evidence of any negligence whereon it
could be held- responsible for the intestate's
death, but the request was denied, and the
supreme court of the state sustained the rul-
ing. In this it is contended that the
company was denied a Federal right; that
is, the right to be shielded from responsi-
bility under the act of Congress when an
essential element of such responsibility is
entirely wanting. See St. Louis, I. M. & S.
R. Co. V. McWhirter, 229 U. 8. 255, 275,
277, 57 L. ed. 1179, 1185, 1186, 83 Sup. Ct.
Rep. 8i)8; Seaboard Air Line R. Co. v.
Padgett, 236 U. S. 668, 673, 59 L. ed. 777,
781, 35 Sup. Ct Rep. 481. The collision
was on the main track and within the outer
portion of the yard limits at Lincoln. At
that point the track was in a deep and
curved cut which made the view along the
track from an engine passing in either di-
rection comparatively short. The intestate
was proceeding to a distant point under
an order which gave his engine the status
of an extra train, and the switching crew
were returning to the city with their engine
after completing some switching work at
an adjacent transfer track. The switching
crew knew the extra was in the yard and
that they might meet it while going through
the cut, for the engineer in that crew testi-
fied:
Q. What did he [the fireman] [553] say?
A. He says: **Here they are," or ''there
they are/' or something like that.
Q. You knew who "they" was, what
"they" referred to, you knew it was this
extra?
A. I thought it was.
Q. Yes, you was expecting it?
A. I was expecting it in a way. Yes,
I was told to look out for it, which we
were doing.
Q. You knew it was likely to come
around that curve?
A. Yes, sir.
i^nd yet the switching crew were proceed-
ing through the cut at so high a speed that
they were unable to stop their engine and
avoid a collision notwithstanding the extra
wu 420 feet away when it came within
▼iew and waa brought practically to a stop
•• Ii. ed.
within 50 feet. Among the company's rules
were the following: "All except first-class
trains will approach, enter, and pass
through the following named yards [among
them being the yard at Lincoln] under full
control, expecting to find the main track
occupied or obstructed." "Yard limits will
be indieated by yard-limit boards. Within
these yard limits engines may occupy main
tracks, protecting themselves against over-
due trains. Extra trains must protect
themselves within yard limits." The in-
testate's engine was neither a first-class nor
an overdue train, but, as before stated,
had the status of an extra train. The com-
pany took the position that the rules placed
upon the intestate the entire burden of
taking the requisite precautions to avoid
a collision with the switch engine at any
place within the yard limits, whether in
the cut or elsewhere, and therefore that no
negligence could be imputed to the company
or the switching crew in respect of the
speed or control of the switch engine. This
position was pointedly illustrated by the
foreman of the switching crew, who testi-
fied:
Q. But you went on the theory and as-
sumed that everything had to get out of
the way for you except this passenger [a
first-class train soon to pass through the
cut]?
A. Yes, sir.
Q. Although you knew the extra was in
the yards?
A. Yes, sir.
Q. And you claim it under that rule?
[554] A. Y^, sir. . . .
Q. You ought to run under control*
though, in the yard limits?
A. \NTiy, I don't see why?
Q. How?
A. Other trains are supposed to look out
for us. . . .
Q. What is the rule about switch en-
gines running under control in the yard
limiU?
A. There is not any.
Q. How?
A. There is no rule.
And that position was also illustrated by
the division train master, who stated that
"switch engines had the right over all ex-
cept first-class trains in the yards, and
other trains would have to look out for
them," and further testified:
Q. Whan you say you examine men for
switch engines do you use these rules?
A. Yes, and the time-tables.
Q. You tell switch engine men that they
have a right to run 25 miles an hour in the
yards?
A. Tts, sir.
654-666
SUPREliE CX)URT OF THE UNITED STATES.
Oct. Tebm»
Q. You tell them thatT
A. If they want to. I dont teU them any-
thing about running.
Q. How ia that?
A. I don't tell them anything about how
fatt they shall run or how slow.
Q. You understand, of course, that they
can at any time run their engines n^li-
gently?
A. I tmderstand that, yes.
Q. You don't tell them to be careful at
all when you instruct your switch engine
men?
A. I tell them to run their engines ac-
cording to the rules.
Q. But you hare no rules respecting
switch engines?
A. No, we have instructions sometimes.
Q. Have you any rules respecting switch
engines?
A. No, sir. . • •
Q. What do you tell your switch engine
men about your rules, about running under
control in yard limits?
A. Don't tell them anything, not in re-
gard to running under control in the yards.
The plaintiffs took the position that the
rules, if regarded as devolving upon one in
the intestate's situation the measure of re-
sponsibility indicated, and permitting the
switching crew to run their engine through
the cut, not imder control, but at high speed,
when they knew that they might meet the
other engine, were unreasonable in that re-
spect. Whether the rules were thus imrea-
sonable was submitted to the jury as a ques-
tion of [555] fact over the company's objec-
tion that the question was one of law for
the court. The jury found, as the record
plainly shows, that the rules were unreason-
able, and that the switch engine was negli-
gently run at greater speed than was rea-
sonable in the circumstances. Dealing with
these subjects, the supreme court of the
state said (96 Neb. 87, 146 N. W. 1024) :
"The decedent was running his engine un-
der full control, within the meaning of the
rule of the company. There was no express
rule as to the speed allowed to the switch
engine. Of course, the law requires that
such engine should not be run at an unrea-
sonable rate of speed under the circum-
stances. The engineer of the switch engine
must have had a clear view of the approach-
ing engine for at least 420 feet, and it was
run at least 370 feet of this distance before
the collision occurred. It could have been
stopped within a distance of 60 feet unless
running at a greater speed than 20 miles
an hour; and, knowing, as the crew of the
switch engine did, that No. 1486 [the extra]
was in the yards, to run at a greater speed
than 20 miles an hour in such a locality and
4se
under such circumstances was in itself neg-
ligence. In such a case the court might
properly have told the jury that any rule
of the company which permitted such action
was unreasonable, and the giving of an
erroneous instruction as to the reasonable-
ness of the rules would be without preju-
dice to the defendant." '
While doubting that the rules, rightly un-
derstood, permitted the switching crew to
proceed at a q>eed which obviously en-
dangered the safety of the extra, which they
knew might be coming through the cat on
the same track, we agree that if this was
permitted by the rules, they were in that
respect unreasonable and void. And in
either case, we think it is manifest that
there was ample evidence of n^ligenco
whereon the company could be held respon-
sible under the act of Congress.
Judgment affirmed.
[556] BRUCE SHANKS, Plff. in Err.,
V.
DELAWARE, LACKAWANNA, & WEST-
ERN RAILROAD COMPANY.
(See a C. Reporter's ed. 566-660.)
Master and servant — employers' 11m-
biUty — when servant is engaged In
Interstate commerce.
An employee in a machine shop oper-
ated by a railway company for repairing
parts of locomotives used by it both in
interstate and intrastate transportation ia
not employed in interstate commerce with-
in the meaning of the Federal employers'
liability act of April 22, 1908 (85 Stat, at
L. 65, chap. 140, Comp. SUt. 1013, % 8657),
while engaged in takmg down and putting
into a new location in such shop an over-
head countershaft through which power is
communicated to some of the machinery
used in repair work.
[For other cases, see Master and Servant, II«
a, in Digest Sup. Ct. 1908.}
[No. 477.]
Argued November 30, 1915. Hecided Jan-
uary 10, 1916.
IN ERROR to the Supreme Court of the
State of New York in and for the Coun-
ty of Kings in that state, to review a judg-
ment entered pursuant to the mandate of
the Court of Appeals, which affirmed a
judgment of the Appellate Division of the
NoiK. — On the constitutionality, applica-
tion, and effect of the Federal employers'
liability act — see notes to Lamphere v. Ore-
gon R. ft Nav. Co. 47 L.RA..(N.S.) 38, and
Seaboard Air line R. Co. v. Horton, L.RJL
191 5C, 47.
1916.
SHAKKS V. D£LAWAR£, L. 4 W. R. CO.
656, 567
Supreme Court, Second Department, revers-
ing, with A direction to dismiss Uie com-
plaint^ A judgment of the triAl term of the
Supreme Court in lAYor of plaintiff in an
action under the FedexAl employers' lia-
liiUty act. AfTirmed.
See same cAse below in Appellate Divi-
sion, 303 App. Div. 565, 148 N. Y. Snpp.
1034; in Court of Appeals, 214 N. Y. 413,
108 N. K. 644.
The facts are stated in the opinion.
Mr. Joseph A. Sliay argued the cause,
and, with Messrs. Nash Rockwood and L.
B. McKelvejr, filed a brief for plaintiff in
error:
As matter of fact and as matter of law
this plaintiff was employed in interstate
commerce at the time of his injury, within
the meaning of the Federal statute, as it
has been construed and applied in every
authoritative decision.
Pedersen v. Delaware, L. 4 W. R. Co. 229
U. 8. 146-161, 57 1m ed. 1125-1127, 33 Sup.
Ct. R^. 648, 3 N. C. C. A. 779, Ann. Oas.
1914C, 153; St. Louis, 8. F. 4 T. R. Co. v.
Scale, 229 U. S. 159, 57 L. ed. 1133, 33 Sup.
Ct. Rep. 651, Ann. Cas. 1914C, 156; North
Carolina R. Co. v. Zachary, 232 U. S. 248,
66 L. ed. 591, 34 Sup. Ct. Rep. 305, 9 N.
C. C. A. 109, Ann. Cas. 1914C, 159; Second
Employers' Liability Cases (Mondou v. New
York, N. H. k H. R. Co.) 223 U. S. 1,
56 L. ed. 327, 38 L.R.A.(N.S.) 44, 32 Sup.
Ct. Rep. 169, 1 N. C. C. A. 875; Lamphere
V. Oregon R. k Nav. Co. 47 L.R.A.(N.S.) 1,
116 a C. A. 156, 196 Fed. 336; Northern
P. R. Co. v. Maerkl, 117 C. C. A. 237, 198
Fed. 1; Central R. Co. v. Colasurdo, 113,
C. C. A. 370, 192 Fed. 901, 180 Fed. 832;
Horton t. Oregon-Washington R. & Nav. Co.
72 Wash. 503, 47 L.RJL(N.S.) 8, 130 Pac
897; Law v. Illinois C. R. Co. L.R.A.1915C,
17, 126 C. C. A. 27, 208 Fed. 869; Eng t.
Southern P. R. Co. 210 Fed. 92; Thomas v.
Boston 4 M. R. Co. 134 C. C. A. 554, 219
Fed. 180; Illinois C. R. Co. v. Nelson, 122
C. C. A. 258, 203 Fed. 956; Montgomery v.
Southern P. Co. 64 Or. 597, 47 L.R.A.(N.S.)
13, 131 Pac 507 ; LouUville 4 N. R. Co. t.
Melton, 218 U. S. 36-48, 54 L. ed. 921-926,
47 L.R.A.(N.S.) 84, 30 Sup. Ct Rep. 676;
Cousins T. Illinois C. R. Co. 126 Minn. 172,
L.R.A.— , — , 148 N. W. 58; Seaboard Air
Line R. Co. t. Ilorton, L.R.A.1915C, 60,
note; Darr ▼. Baltimore 4 0. R. Co. 197
Fed. 665; Thomson v: Columbia 4 P. S. R.
Co. 205 Fed. 203, 4 N. C. C. A. 925; John-
son v. Great Northern R. Co. 102 C. C. A.
89, 178 Fed. 643; Zikos v. Oregon R. 4 Nav.
Co. 179 Fed. 897; New York C. 4 H. R. R.
Co. T. Carr, 238 U. S. 260, 59 L. ed. 1298,
35 Sup. Ct. Rep. 780, 9 N. C. C. A. 1;
Thornton t. Kansas City, M. 4 O. R. Co.
n Kan. 684, 139 Pac. 410, Ann. Cat. 1915D,
•0 li. ed.
{314; Thompson v. Cincinnati, N. O. 4 T.
P. R. Co. 165 Ky. 256, 176 S. W. 1006.
Mr. Alexander Pope Humphrey argued
the cause, and, with Mr. William S. Jenney,
filed a brief for defendant in error:
At the time plaintiff sustained the in-
juries complained of he was not employed by
the defendant in interstate commerce.
Illinois C. R. Co. v. Behrens, 233 U. S.
473, 58 L. ed. 1051, 34 Sup. Ct. Rep. 646,
Ann. Cas. 1914C, 163; Delaware, L. 4 W.
R. Co. V. Yurkonis, 238 U. S. 439, 50 L.
ed. 1397, 35 Sup. Ct. Rep. 902.
Each case must be decided in the light
of the particular facts, with a view of deter-
mining whether, at the time of the injury,
the employee is engaged in interstate busi-
ness or in an act which is so directly and
immediately connected with sucli business as
substantially to form a part or a necessary
incident thereof.
New York C. 4 H. R. R. Co. ▼. Carr, 238
U. S. 200, 59 L. ed. 1298, 35 Sup. Ct. Rep.
780, 0 N. 0. C. A. !•
Mr. Justice Van Devanter delivered the
opinion of the court:
Shanks sued the railroad company for
damages resulting from personal injuries
suffered through its negligence while ho was
in its employ, and rested his right to
[557] recover upon the employers' liability
act of Congress. His injuries were received
in New Jersey, and his action was brought
in the supreme court of New York. He pre-
vailed at the trial, but in the appellate divi-
sion the judgment was reversed, with a di-
rection that his complaint be dismissed with-
out prejudice to any remedy he might have
under the law of New Jersey, and this
was affirmed by the court of appeals, the
ground of the appellate rulings being that
at the time of the injury he was not cm-
ployed in interstate commerce. 1G3 App.
Div. 565, 148 N. Y. Supp. 1034; 214 N. Y
413, 108 N. E.. 644. To obtain a review of
the judgment of the court of appeals he
sued out this writ ot error, which was
directed to the supreme court because the
record was then in its possession. See
Atherton v. Fowler, 91 U. S. 143, 23 L. ed.
265; Wurts v. Hoagland, 105 U. S. 701, 26
L. ed. 1109; Si6ux Remedy Co. t. Cope, 235
U. S. 197, 59 L. ed. 193, 35 Sup. Ct. Rep. 57.
In so far as its words are material here,
the employers' liability act declares that
"every common carrier by railroad while en-
gaging in commerce between any of the
several states • • • shall be liable in
damages to any person suffering injury
while he is employed by such carrier in such
commerce" [35 Stat, at L. 65, chap. 149,
Comp. Stot. 1918, % 8657], if the injury
resultt in whole or in part from the neirli-
4tf
667-660
SUPIEIEME COURT OF THE UNITED STATES.
Oct. Temm,
gence of the carrier or of anj of its officers,
agents, or employees. Thus it is essential
to a right of recovery under the act not
only that the carrier be engaged in inter-
state commerce at the time of the injury,
but also that the person suffering the in-
jury be then employed by the carrier in
such commerce. And so it results where
the carrier is also engaged in intrasti^te
commerce, or in what is not commerce at
all, that one who> while employed therein
by the carrier, suffers injury through its
negligence, or that of some of its officers,
agents, or employees, must look for redress
to the laws of the state wherein the injury
occurs, save where it results from the viola-
tion of some Federal statute, such as the
safety appliance acts.
[558] The facts in the present ease are
these: The railroad company was engaged
in both interstate and intrastate transporta-
tion, and was conducting an extensive ma-
chine shop for repairing parts of locomotives
used in such transportation. While em-
ployed in this shop. Shanks was injured
through the negligence of the company.
Usually his work consisted in repairing cer-
tain parts of locomotives, but on the day of
the injury he was engaged solely in taking
down and putting into a new location an
overhead countershaft — a heavy shop fix lure
— through which power was communicated
to some of the machinery used in the repair
work.
The question for decision is, Was Shanks
at the time of the injury employed in inter-
state commerce within the meaning 'of the
employers' liability act? What his em-
ployment was on other occasions is im-
material, for, as before indicated, the act
refers to the service being rendered when
the injury was suffered.
Having in mind the nature and usual
course of the business to which the act re-
lates and the evident purpose of Congress
in adopting the act, wc think it speaks of
interstate commerce, not in a technical
legal sense, but in a practical one better
suited to the occasion (see Swift & Co. v.
United SUtes, 196 U. S. 375, 398, 49 L. ed.
618, 525, 25 Sup. Ct. Hep. 276), and that
the true test of employment in such com-
merce in the sense intended is. Was the
employee, at the time of the injury, engaged
in interstate transportation, or in work so
closely related to it as to be practically a
part of it?
Applying this test, we have held that the
requisite employment in interstate com-
merce exists where a car repairer is re-
placing a drawbar in a car then in use in
■ach commerce (Second Employers' Lia-
biUty Cases [Walsh v. New York, N. H. k
H. R. Co.] 223 U. 8. 1, 60 L. ed. 327, 38
4SS
L.R.A.(NJ3.) 44, 82 Sup. Ct. Rep. 169, 1 N.
C. C. A. 875) ; where a fireman is walking
ahead of and piloting through several
switches a locomotive which is to be at-
tached to an interstate train and to assist
in moving the same up a grade (Norfolk k
W. R. Co. V. Earnest, 229 U. S. 114, 67 L.
ed. 1096, 38 Sup. Ct. Rep. 654, Ann. Caa.
1914C, 172), [559] where a workman about
to repair a bridge regularly used in inter-
state transportation is carrying from a
tool car to the bridge a sack of bolts needed
in his work (Pedersen v. Delaware, L. & W.
R. Co. 229 U. 8. 146, 57 L. ed. 1125, 33 Sup.
Ct. Rep. 648, Ann. Cas. 1914C, 153, 3 N. C.
C. A. 779) ; where a clerk is on his way
through a railroad yard to meet an in-
bound interstate freight train and to
mark the cars so the switching crew will
know what to do with them when break-
ing up the train (St. Louis, 8. F. k
T. R. Co. V. Scale, 220 U. 8. 156, 67
L. ed. 1129, 33 Sup. Ct. Rep. 651, Ann. Cas.
1914C, 156); where a fireman, having pre-
pared his engine for a trip in interstate
commerce, and being about to start on his
run, is walking across adjacent tracks on
an errand consistent with his duties
(North Carolina R. Co. v. Zachary, 232 U.
S. 248, 58 L. ed. 501, 34 Sup. Ct. Rep. 305,
Ann. Cas. 191 4C, 159) ; and where a brake-
man on a train carrying several cars of
interstate and two of intrastate freight is
assisting in securely placing the latter on
a side track at an intermediate station to
the end that they may not run back on the
main track, and that the train may proceed
on its journey with the interstate freight
(New York C. k H. R. R. Co. v. Carr, 238
U. S. 260, 59 L. ed. 1298, 35 Sup. Ct. Hep.
780).
Without departing from this test, we also
have held that the requisite employment in
interstate commerce does not exist where a
member of a switching crew, whose general
work extends to both interstate and intra-
state traffic, is engaged in hauling a train
or drag of cars, all loaded with intrastate
freight, from one part of a city to another
(Illinois C. R. Co. v. Behrens, 233 U. S.
473, 58 L. ed. 1051, 34 Sup. Ct. Rep. 646,
Ann. Cas. 1914C, 163), and where an em-
ployee in a colliery operated by a railroad
company is mining coal intended to be used
in the company's locomotives moving in
interstate commerce (Delaware, L. & W.
R. Co. T. Yurkonis, 238 U. S. 430, 59 L. ed.
1397, 35 Sup. Ct. Rep. 902). In neither
instance could the service indicated be said
to be interstate transportation, or so close-
ly related to it as to be practically a pari
of it.
Coming to apply the test to the case
in hand, it is plain that Shanks was
239 U. S.
1915.
INTER8TATB AMUSEMENT 00. ▼. ALBER'i.
660, 660
not employed in interstate tntniportation,
[560] or in repairing or keeping in usable
condition a roadbed, bridge, engine, car, or
other instrument then in use in such trans-
portation. What he was doing was altering
the location of a fixture in a machine shop.
The connection between the fixture and
interstate transportation was remote at
best, for the o|i]y function of the fixture
was to communicate power to machinery
used in repairing parts of engines some of
which were used in such transportation.
This, we think, demonstrates that the work
in which Shanks was engaged, like that of
the coal miner in the Yurkonis case, was
too remote from interstate transportation
to be practically a part of it, and therefore
that he was not employed in interstate com-
merce within the meaning of the employers'
liability act.
Judgment affirmed*
INTERSTATE AMUSEMENT COMPANY,
Plff. in Err.,
V.
W. S. ALBERT, Fletch Catron, and Ten-
nessee Realty k Leasing Company.
(See S. 0. Reporter's ed. 660-668.)
Error to state court » scope of review
— finding of fact.
1. ^1ie findings of fact are eonclusive
upon the Federal Supreme Court on writ
of error to a state court in ordinary cases
other than those arising under the contract
clause of the Federal Constitution, unless
there is fecund for the insistence that a
Federal right has been denied as the result
of a finding that is without support in the
evidence.
[For other cases, see Appeal and Error,
tl75-2108. in Digest Sup. Ct 1908.]
Error to state court — scope of roTiew
— finding of fact.
2. Evidence tending to show the trans-
action of business within the state by a for-
eign corporation, engaged in booking the-
atrical companies and vaudeville acts for
theater owners, in consideration of a week
ly 'booking fee" and a commission upon the
NoTK. — As to review of questions of fact
on writ of error to a state court — see note
to Smiley v. Kansas, 49 L. ed. U. S. 646.
On state regulation of interstate or for-
eign commerce — see notes to Norfolk k W.
R. Co. V. Com. 13 L.R.A. 107, and Glouces-
ter Ferry Co. v. Pennsylvania, 28 L. ed. U.
& ]5S.
As to constitutional equality of privi-
leges, immunities, and protection, generally
—see note to Louisville Safety Vault 4 T.
Co. V. Louisville k N. R. Co. 14 L.RA. 679.
On recognition or exclusion of foreign cor-
porations— see note to Cone Export k Com- ,
mission Co. ▼. Poole, 24 LJLA. 289.
•• I<. ed.
actors' salaries, under contracts which,
while binding It to "use every precaution
to see that artists fulfil their contracts,"
recite that it is acting solely in the capacity
of agent of the theater owner, and is not
responsible for failure of artists to fulfil
their contracts, nor for any accident or de-
lay preventing them from arriving when
scheauled, is sufiicicnt to support, on writ
of error to a state court, a finding that such
corporation was doing business within the
state other than interstate commerce.
[For other cases, see Appeal and Error,
2176-2208, in Digest Sup. iX 1908.]
Foreign corporatious — state regula-
tion — commerce — > due process of
law.
3. A foreign corporation doin^ local
business within the state may, consistently
with the commerce and due process of law
clauses of the Federal Constitution, be re-
quired to file a copy of its charter with the
secretary of state, conformably to Tenn.
Laws 1895, chap. 81, as a condition pre-
cedent to its right to sue in the state courts
upon a contract made in its conduct of such
business.
[For other cases, see Corporations, XII. h,
in Digest Sup. Ct. 1908.]
Constitutional law — equal protection
of tlie laws » state regulation of for-
eign corporation.
4. A forei|;n corporation engaged in
booking theatrical companies and vaude-
ville acts for theater owners in considers*
tion of a weekly booking fee and a commis-
sion on the actors' salaries may, consistent-
ly with the equal protection of the laws
clause of the Federal Constitution, be re-
quired to file a copy of its charter with the
secretary of state, conformably to a local
statute, as a condition precedent to its right
to sue upon a contract made in its conduct
of such business.
[For other cases, see CoDstitutlooal Law. lY.
a, S. in Digest Sup. Ct 1908.]
[No. 69.]
Argued November 10, 1915. Deculed Jan-
uary 10, 1916.
IN ERROR to the Supreme Court of the
State of Tennessee to review a judprraent
which, reversing a judgment of tlie Chan-
cery Court of Hamilton County, in that
state, directed the dismissal of a suit by
a foreign corporation which had not filed a
copy of its charter with the secretary of
state. Affirmed.
See same case below, 128 Tenn. 417, 161
S. W. 488.
The facte are stated in the opinion.
Mr. G. H.
with Messrs.
Miller, filed i
There is no
ment, and no
the company
contemplated
West argued the cause, and,
W. £. Dnunmond and W. B.
i brief for plaintiff in error:
evidence to support the judg-
basis for the conclusion. that
did business in Tennessee as
l^ the act. And to deny it
4SP
SUPREME COURT OF THE UNITED SlAliub
OCT. Tjcbm^
reooyery without any basis or evidence to
support the judgment of denial is to de-
prive it of property without due process of
law.
Kansas City Southern R. Co. v. C. H. Al-
bers Commission Co. 223 U. S. 673, 56 L.
ed. 556, 32 Sup. Ct. Rep. 316; Creswill y.
Grand Lodge K. P. 225 U. S. 246, 56 L.
ed. 1074, 32 Sup. Ct. Rep. 822; Wood t.
Chesborough, 228 U. S. 678, 57 L. ed. 1018,
33 Sup. Ct. Rep. 700; St. Louis, I. M. k S.
R Co. T. McWhirter, 229 U. S. 277, 57 L.
ed. 1186, 33 Sup. Ct. Rep. 858; Washington
ex rel. Oregon R. & Nav. Co. v. Fairchild,
224 U. S. 510, 56 L. ed. 803, '32 Sup. Ct.
Rep. 535.
On a writ of error to a state court in such
a case this court will review the findings
of fact by the state court and analyze the
facts when necessary to determine whether
or not a Federal right, seasonably claimed,
has been infringed.
Washington ex rel. Oregon R. k Nav. Co.
T. Fairchild, 224 U. S. 510, 56 L. ed. 863,
32 Sup. Ct. Rep. 535; Northern P. R. Co.
y. North Dakota, 236 U. S. 585, 59 L. ed.
735, L.R.A.— , — , P. U. R 1915C, 277, 35
Sup. Ct. Rep. 432, Ann. Cas. 1016A, 1;
Norfolk 4 W. R Co. v. Conley, 236 U. S.
. 605, 59 L. ed. 745, P. U. R. 1015C, 293, 35
Sup. Ct. Rep. 438.
And while generally, if a decision of the
state court can be upheld on an independ-
ent ground it will not be disturbed, yet,
if such ground or conclusion can only be
upheld by a denial of due process of law,
the state court will be reversed.
Stewart v. Michigan, 232 U. S. 665, 58
L. ed. 786, 34 Sup. Ct. Rep. 476.
Where a state statute creates a new of-
fense and prescribes the penalty, or gives a
new right and declares a remedy, the pun-
ishment or remedy can be only that which
the statute prescribes. D. R. Wilder Mfg.
Co. V. Com Products Ref. Co. 236 U. S. 165,
59 L. ed. 520, 35 Sup. Ct. Rep. 308, Ann.
Cas. 1916A, 118; David Lupton's Sons Co.
y. Automobile Club, 225 U. S. 489, 56 L.
ed. 1177, 32 Sup. Ct. Rep. 711, Ann. Cas.
1914A, 699. The Tennessee statute places
no ban on anything short of transacting
the usual and customary business within the
borders of the state.
Advance Lumber Co. y. Moore, 126 Tenn.
321, 148 S. W. 212.
The general right to contract relative to
business, and to purchase or sell labor, is
protected from prohibitive state legislation
by the 14th Amendment.
Adair v. United States, 208 U. S. 173, 62
L. ed. 442, 28 Sup. Ct Rep. 277, 13 Ann.
Gas. 764.
Thus, plaintiff in error had a right to
make the contract involved in this case and
44^
to engage actors in Chicago pursuant there-
to. A judgment based solely upon a stat-
ute against foreign corporations doing busi-
ness in a state is void when applied to su<^
business done beyond the state, being a dep-
rivation of property without due process of
law.
Old Wayne Mut. Life Aseo. v. McDonough,
204 U. S. 22, 51 L. ed. 361, 27 Sup. Ct.
Rep. 236; Simon v. Southern R. Co. 236 U.
S. 115, 59 L. ed. 402, 35 Sup. Ct. Rep. 255.
The rudiments of fair play required by
the 14th Amendment are wanting when a
corporation is deprived of its earned com-
pensation for services rendered in a foreign
state to a resident of another state simply
because the service rendered contemplate
and results in individuals going into the
domestic state for the transaction of their
own business, and in furtherance of that
of a resident of such domestic state.
Chicago, M. k St. P. K. Co. v. Polt, 232
U. S. 165, 58 L. ed. 554, 34 Sup. Ct. Rep.
301.
The highest court of a state is sn instru-
mentality of the state through which the
latter may deprive a citizen of his property
without due process of law.
Chicago, B. k Q. R. Co. v. Chicago, 166
U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep.
581; Abbott v. National Bank, 175 U. 8.
400, 44 L. ed. 217, 20 Sup. Ct. Rep. 153.
Any state statute, the effect of which is
to declare interstate commerce unlawful, is
itself invalid and unenforceable.
International Textbook Co. v. Pigg, 217
U. S. 91, 54 L. ed. 678, 27 L.R.A.(N.S.) 408,
30 Sup. Ct. Rep. 481, 18 Ann. Cas. 1103;
International Textbook Co. v. Lynch, 218
U. 8. 664, 54 L. ed. 1201, 31 Sup. Ct. Rep.
226; Buck Stove k Range Co. v. Vickers,
226 U. S. 205, 57 L. ed. 189, 33 Sup. Ct.
Rep. 41; Hey man v. Hays, 236 U. 8. 178,
59 L. ed. 527, 35 Sup. Ct. Rep. 403.
The contention tiiat a statute as con-
strued and applied by a state court is void,
as an attempted state regulation of inter-
state commerce, will, in event of a decision
against such contention, support a writ
of error from this court.
Adams Exp. Co. v. Kentucky, 214 U. 8.
218, 53 L. ed. 972, 29 Sup. Ct. Rep. 633.
Plaintiff in error did not solicit other ooa-
tracts in Tennessee at the time the one ia
question was made, or during its existenosl
But, if it had done so, as such contraeta
were to be executed by it in Chicago ia
ordinary course, the solicitation thereof Ib
Tennessee by traveling salesmen would hava
been protected as interstate commcroa
against the burdens imposed by tlie Tennaa-
see statutes.
Stewart v. Michigan, 232 U. 8. 666, 6S
L. ed. 786, 34 Sup. Ct. Rep. 476; Crenahair
330 U. &
1915.
INTBRSTATE AMUSEMENT 00. t. ALBERT.
▼. Arkmaiaa, 227 U. S. 389, 57 L. ed. 565, 33
Sup. Ct Eep. 294.
The transmission of a proposal for an in-
terstate transaction is a part of the inter-
state transaction (Dozier v, Alabama, 218
U. S. 124, 54 L. ed. 965, 28 LJtA.(N.S.)
264, CO Sup. Ct Hep. 649; Davis v. Virginia,
236 U. S. 697, 59 L. ed. 795, 35 Sup. Ct
Rep. 470), and a message of proposal, such
as that sent by plaintiff in error from Chi-
cago to Chattanooga, — and which the Ten-
nessee court held to preclude secovery be-
cause a doing of business in Tennessee, — is
but a species of interstate commerce not sub-
ject to state regulation.
Western U. Teleg. Co. v. Commercial Mill
Co. 218 U. S. 406, 54 L. ed. 1088, 36 L.RJL
(N.S.) 220, 31 Sup. Ct. Rep. 59, 21 Ann.
Cas. 815; Western U. Teleg. Co. v. Brown,
234 U. S. 542, 58 L. ed. 1457, 34 Sup. Ct.
Rep. 055, 5 N. C. C. A. 1004.
A state cannot tax a corporation for
doing such character of business, yet this
Tennessee statute lays a twofold annual tax
on corporations subject thereto.
Pullman Co. v. Kansas, 216 U. S. 62, 54
L. ed. 384, 30 Sup. Ct. Rep. 232; Western
U. Teleg. Co. v. Kansas, 216 U. S. 1, 54 L.
cd. 355, 30 Siq>. Ct. Rep. 190; Galveston,
H. & S. A. R. Co. V. Texas, 210 U. S. 217,
52 X'. ed. 1031, 28 Sup. Ct. Rep. 638; At-
chison, T. k S. F. R. Co. V. O'Connor, 223
U. S. 280, 56 L. ed. 436, 32 Sup. Ct. Rep.
216.
Neither can a state tax the property of a
foreign corporation located in another state,
or its capital stock represented by such
property, — but this is precisely what the
Tennessee statute does.
Ludwig V. Western V., Teleg. Co. 216 U.
S. 146, 54 L. ed. 423, 30 Sup. Ct. Rep. 280;
Pullman Co. v. Kansas, 216 U. 8. 62, 54 L.
ed. 384, 30 Sup. Ct. Rep. 232.
Interstate commerce includes the trans-
portation of persons and property. There
may be, therefore, a movement of persons
as well as of property. That is, a person
may move or be moved in interstate com-
merce. Hence^ if the Amusement Company
had been obligated to present the artists ha
Tennessee instead of merely contracting with
them to go there and then using every pre-
eaution to see that the artists fulfilled their
contracts, the business by it done would
have been interstate commerce.
Hoke V. United States, 227 U. 8. 320, 57
L. ed. 526, 43 L.RJL(N.S.) 906, 33 Sup. Ct
Rep. 281, Ann. Cas. 1913E, 906.
The decision complained of denies to
plaintiff in error the equal protection of the
laws of Tennessee, contrary to the .14th
Amendmen t.
Advance Lumber Ca t. Moor«» 126 Tenn.
m, 148 S. W. 212.
•0 Ii. ed.
liCr. Joe V. Willlaiiui argae4 the eaaeb
and, with Messrs. F. M. Thompson and Neal
L. Thompson, filed a brief for defendants in
error:
Was the contract between the plaintiff
and defendant one of the nature of commerce
between the states, or was it of an intra-
state nature?
Judson, Interstate Commerce, 2d ed. § 8,
p. 16; Paul V. Virginia, 8 Wall. 168-183, 19
L. ed. 357-361; International Textbook Co.
V. Pigg, 217 U. S. 91, 54 L. ed. 678, 27
L.R.A.(N.S.) 493, 30 Sup. Ct. Rep. 481, 18
Ann. Cas. 1103; Hooper v. California, 155
U. S. 648, 39 L. ed. 297, 5 Inters. Com. Rep.
610, 15 Sup. Ct. Rep. 207.
The facts in the instant case show, in ac-
cordance with the authorities, that the plain-
tiff was engaged in carrying on its usual and
ordinary business in Tennessee.
Diamond Glue Co. v. United States Glue
Co. 187 U. S. 611, 47 L. ed. 328, 23 Sup.
Ct. Rep. 206; Chattanooga Nat. Bldg. k
L. Asso. T. Denson, 189 U. S. 408, 47 L. ed.
870, 23 Sup. Ct. Rep. 630; Elliott v. Parlin
k 0. Co. 71 Kan. 665, 81 Pac 500; Farrior
V. New England Mortg. Secur. Co. 88 Ala.
275, 7 So. 200.
"Business*' is said to be a word of large
significance, and to denote the employment
or occupation in which a person is engaged
to procure a living. Goddard v. Chaffee, 2
Allen, 395, 79 Am. Dec. 706; Martin v.
State, 59 Ala. 36, 3 Am. Crim. Rep. 287.
Under a statute that any person who shall
do any manner of labor, business, etc., shall
be punished, etc., the loaning of money and
taking a note therefor was held to be busi-
ness within the meaning of such statute.
Troewert v. Decker, 51 Wis. 46, 37 Am.
Rep. 808, 8 N. W. 26. In Towle v. Larrabee,
26 Me. 466, it was held that a promissory
note made on Sunday for the price of a
horse bought on that day was void as being
in contravention of the statute prohibiting
trade and business. In Lovejoy v. Whipple,
18 Vt. 379, 46 Am. Dec 157, the taking of a
promissory note executed upon Sunday in
consummation of a contract previously made
was considered business. "It thus seems,*'
as said by Thurman, J., 'Ho be the common
expression of the courts that the making of
a contract is business within the meaning
of these acta." Bloom v. Richards, 2, Ohio
St. 388.
Counsel for plaintiff urges in his brief
that the statutes of Tennessee are in con-
flict with the rlfl^tt given by the Constltu-
tion, beeause of certain requirements in the
■tatates aa to fees which must be paid by
foreign corporations when th^ are domes*
tieated in Tennessee. No claim is made,
"however, that foreign corporations are die-
441
664» 565 SUPREME CX)URT OF THE UNITED STATES. Oct. Tkmm,
criminated against as compared with local process of law" and "equal protection"
corporations in Tennessee. clauses of the 14tb Amendment.
Baltic Min. Co. ▼. Massachusetts, 231 U. Excerpts from the statute are set forth
S. 68-88, 58 L. ed. 127-136, L.RJ1.— , — ^ in the margin. 1
84 Sup. Ct Rep. 15. [565] It is the insistence of plaintiflT in
A privilege tax on the business of a cor- error that it could not, consistently with the
poration done within the state is not a tax cited provisions of the Federal Constitution,
upon interstate commerce, although the com- be required to subject itself to the law of
pany is also engaged in business between the the state unless it was doing business with-
Btates. in the sUte; and that in fact it did no
Pacific Exp. Co. V. Seibert, 142 U. S. 339, .^ch business, or, if it did any, it waa in-
85 L. ed. 1036, 3 Inters. Com. Rep. 810, 12 terstate commerce, not subject to sUte regu-
Sup. Ct. Rep. 250; Osborne v. Florida, 164 lotion.
U. S. 650, 41 L. ed. 586, 17 Sup. Ct Rep. Respecting the effect of the written oon-
iL tract under which the cause of action arose.
The contention made and passed upon in the court held that it created merely the
the sUte court cannot be enlarged upon by relationship of principal and agent between
assignments of error made to brmg the case ^^e parties; that by it plaintiff in error
to ttiis court. , ««^ „ became the agent of Catron k Albert, bound
« 9.^''?*"^ *.^;3 ^' J- Cleveland, 235 U. to render them the personal services called
S. 50, 59 L. ed. 127, 35 Sup. Ct. Rep. 21. j^^ j,y the contract in consideration of the
It must be conceded that a sUte may re- specified sums to be paid by them to it, and
strict the right of foreign corporations, not ^hat this consideration was to be forward-
only to -ue in Its courts (Bank of AugusU ^ ^^^, ^ Matron & Albert from ChatU-
V. Earle, 18 Pet. 519, 589, 591, 10 U ed. „ Teimessee, to Chicago, Illinois,
274 308,309; Anglo-American Provision Co. ^^^^^ ^^, ^^^ ^^ ,^i„tiff f„ ,„^^ ^„
t' ^/''io«^o7a^''° ^' i^^ ^o\^Px^! located; that by the terms of the agreement
L. ed 225, 24 Sup. Ct. Rep. 92) but that ^^^^^ ,^ ^„^^ ^^ ^^^ ^ be reiponsible
in addition, a SUte may restrict the right of ^^ j^.j^^^ ^„ ^^ ^^^ ^^ ^j^^ ^^^^ ^
such corporations to engage in busmess j^j^j ^^j^ contracts, nor for any accident
7«« i« 1 "^VJ^V' V*^«^"^*' 8 Wf • or delay preventing their arrival in Chat-
]11't}\\I^\It'' J^Sr 7V 9*^^'^?^**' tanooga at the tim^ appointed; that under
pi.^in IK s, ^- p- Jht^ ^""^^ ^"- the contract and the evidence showing tha
Rep. 610, 15 Sup. a. Rep. 207). ^^^^^.^„ ^^ .^^ .^ ^^ „^^ contemplated
rmoMt ■»# T xi -.*-._ J 1. J Ai_ ^hat plaintiff in error should engage, nor
664] Mr Justice Pltne, dehrered the j;^ j^ ^ j„ „ j^, ,,^„,d .howl ew
opinion of the court: • xu • * * * * * *• « 7?^
ni • x*i» s J . J X >n the interstate transportation of the
Plamtin in error recovered a ludflrment . g j -n * j xu x u«i^
. - . , . - ., . ^ i * troupes of vaudeville actors, and that while
in one of the courts of the state of Tennes* .a*xx **• « u ^ —
. .. ^, ^ " interstate transportation of such actors
see upon a cause of action that arose out . .x • u* ^* u * - : .:^ «. -
- ^ ... . A J X J -»# ^^ ,/»«i^ might or might not become an incident or
of • written contract dated May 24 009. jj^^ ^^ the execution of the contract, such
whereby ,t agreed to "engap »nd book" for j^tereUte commerce wa. only incidental.
the firm of Catron & Albert, then operating ^
a theater in Chattanooga Tennessee a cer- ^ ^^^^ ^^
tain number of "vaudeville acts" each week ^^ j22; amended by Act; of 1895, chap,
for certain weeks in each year, during the gl, to read as follows:
continuance of the contract, in considera- ''Section 1. . . . That each and every
tion of the payment weekly of a "booking corporation created or organized under, or
fee" of $10 and a commission of 5 per cent by virtue of, any government other than
upon the salary of each performer. It ap- that of the state, for any purpose whatever,
peared that plaintiff in error was a cor- desiring to own property, or carry on buai-
poration of the state of Missouri, but had 'Vf**?/? this state of any kind or character,
r situs in Chicago. Illinois. Upon the ^L^ a^y o'f%?s"^?ha1^^^^
ground that it was guilty of noncompliance "Section 2. . . . That it shall be un-
with the statute of Tennessee relating to lawful for any foreign corporation to do
foreign corporations doing 'business in the business, or attempt to do business, in this
state, in that it had failed to file a copy of state without first having complied with
its charter in the office of the secretary of
state, the supreme court of Tennessee re-
versed the judgment and dismissed the suit
(128 Tenn. 417, 161 S. W. 488), and the
case comes here upon questions raised un-
der the "commerce clause" of the Consti- 1 gtate as fully as if it were created unto
tution of the United States and the "due the laws of the state of Tennessee ; . . J^
443 %Z% U. 8.
the provisions of this act,
"Section 3. . . . That when a oor*
poration complies with the pjpovisions of
this act, said corporation may then sue and
be sued in the courts of this state, and
shall be subject to the jurisdiction of ^is
]S15.
INTERSTATE AMUSEMENT 00. t. ALBERT.
56(Mm
and not a part of the agreement as made
between the parties. It was held that this
dreumstance did not exempt the' business
done under the contract from state r^^Ui-
tion or control. Williams v. Fears, 179 U.
8. 270, 274, 43 L. ed. 18G, 188, 21 Sup. Ot.
Bep. 128, and Hooper v. California, 165 U.
8. 648, G55, 30 L. cd. 297, 300, 6 Inters.
Com. Rep. 610, 15 Sup. Ct. Rep. 207, were
dted.
[666] The court further found as matter
of fact that it was the ordinary business
of plaintiff in error to send troupes of
actors from one theater to another in
the state of Tennessee for the purpose
of presenting plays to audiences assembled
fai each separate theater, and from the
revenues derived by means of such per-
formances it received an income, and its
eompensation arose from acts done in
Tennessee in the several theaters where
the troupes of actors appeared an4 per-
formed; that the account sued on showed
more than fifty different items, each
representing plaintiff in error's share of
the revenues received from as many sepa-
rate and distinct performances by troupes
of actora which it caused to appear in de-
fendants' theater alone; and that for the
purpose of enlarging and extending its busi-
seos in Tennessee plaintiff in error had
agents who entered that state and made
contracts wit]\ other theater owners than
Catron k Albert; that its articles of asso-
ciation stated its purpose to be to conduct
And operate a general theatrical and amuse-
ment business, and this purpose it carried
out by the establishment of "circuits" on
^liieh were located theaters convenient one
to another, and its scheme contemplated the
Bulking of contracts with each of these
theaters similar to that of Catron k Albert,
and the collection of its revenues arising
from booking fees and its percentages on
actors' salaries; that, in short, it was a
middleman, levying tribute from the owners
<tf the houses where amusement was afforded
and from the actors whose talents were em-
ployed; and that its claim in suit arose
out of business thus conducted.
It is settled that such findings of fact,
in ordinary cases other than those arising
under the "contract clause" of the Consti-
tution, are binding upon this court. Waters-
Pierce Oil Co. V. Texas, 212 U. S. 86, 97,
l» L. ed. 417, 424, 29 Sup. Ct. Rep. 220;
Rankin t. Emigh, 218 U. S. 27, 32, 64 L.
•1 915, 920, 80 Sup. Ct. Rep. 672; Mied-
reich v. Lauenstein, 232 U. S. 236, 243,
M L. ed. 584, 589, 34 Sup. €t. Rep. 309.
But the rule has its exceptions, as, for in-
stancy where there is ground for the insis-
tence that a Federal [567] right has been
denied as the result of a finding that is with-
•0 li. ed.
out support in the evidence. Southern P.
Co. V. Schuyler, 227 U. S. 601, 611, 57 L.
ed. 662, 669, 43 L.R.A.(N.S.) 901, 33 Sup.
Ct. Rep. 277; North Carolina R. Co. t.
Zachary, 232 U. S. 248, 269, 58 L. ed. 591,
505, 34 Sup. Ct. Rep. 305, Ann. Cas. 191 4C,
159; Carlson v. Washington, 234 U. S.
103, 106, 58 L. ed. 1237, 1238, 84 Sup. Ct.
Rep. 717.
Plaintiff in error makes the point that the
findings here are without support in
the evidence; but this is not well taken. The
evidence is meager, — ^none having been of-
fered by plaintiff in error, — ^but there is
evidence tending to show business trans-
acted in the state, and it does not clearly
appear to have been interstate business.
Referenoe is made to the form of the con-
tract, and especially its fifth paragraph,
which states that plaintiff in error is acting
solely in the capacity of agent of the theater
owner, and is not responsible for failure
of artists to fulfil their contracts, nor for
any accident or delay preventing them from
arriving in Chattanooga when scheduled;
but the same paragraph binds plaintiff in
error to "use every precaution to see that
artists fulfil their contracts." Moreover,
the proliibition of the statute, which, as con-
strued and applied by the courts of Ten-
nessee in a line of cases, renders illegal the
contracts of foreign corporations carrying
on business without complying with the
laws applicable thereto, and debars such
corporations from suing in the state courts
thereon ( Gary-Lombard Lumber Co. v. Thom-
as, 92 Tenn. 587, 593, 22 S. W. 743; New
Hampshire Ins. Co. v. Kennedy, 96 Tenn.
711, 714, 36 S. W. 709; Harris v. Water k
Light Co. 108 Tenn. 245, 67 S. W. 811;
Advance Lumber Co. v. Moore, 126 Tenn.
313, 148 S. W. 212), was evidently esUb-
lished as a matter of public policy, not so
much for the benefit of parties sued as in
the interest of the people at large; and the
question is not so much — What was agreed
to be done? as — What was done?
There being adequate support in the rec-
ord for the finding of the supreme court of
the state that plaintiff in error was doing
business in the state, other than interstate
[568] commerce, without complying with
the statute quoted, the contentions based up-
on the commerce clause and the due process
of law clause alike must fall. For the au-
thority of the state to restrict the right of a
foreign corporation to engage in business
within its limits or to sue in its courts, so
long as interstate commerce be not thereby
burdened, is perfectly well settled. Paul v.
Virginia, 8 Wall. 168, 181, 19 L. ed. 357,
360; Hooper v. California, :155 U. S. 648,«
655, 39 L. ed. 297, 300, 5 Inters. Com. Rep.
610, 15 Sup. Ct. Rep. 207; Bank of Augusta
668
SUPREME COURT OF THE UNITED STATES.
Oct. Teix,
▼. Earle, 13 Pet. 519, 580, 591, 10 L. ed.
274, 308, 300; Anglo-American Provision
Co. T. DavU Provision Co. 101 U. S. 373,
48 L. ed. 225, 24 Sup. Ct. Rep. 92; Sioux
Remedy Co. v. Cope, 235 U. S. 107, 203, 50
L. ed. 103, 107, 35 Sup. Ct. Rep. 57.
The insistence based upon the "equal pro-
tection" clause is unsubstantial, and calla
for no discussion.
Judgment affirmed.
HOME BOND COMPANY, Appt.,
V.
H. V. McCHESNEY, Trustee in Bankruptcy
of the Estates of the American Fibre Reed
Company, and the New England Chair
Company, Bankrupts.
(See S. C. Reporter's ed. 668-576.)
Pledge ~ of accounts recelTable ~ sale.
1. Accounts receivable were not seld,
but were merely transferred as collateral
security for loans by oontracte under wliich
the transferee was to make advances on ac-
ceptable accounts purporting to- be sold to
it, but which the transferrer was to and
did collect, bearing all the expense in con-
nection with such collection, the so-called
purchase price, viz., the difference between
the face of the accounts and the discount,
not being known until payment of the ac-
count, and then depending upon the time
that elapsed since the date of the advance,
and what is deemed to have been the de-
ferred payment of the purchase price being
simply a return of the excess of the col-
lection over and above the advance and the
discount, the contracts also providing that
in case of the nonpayment of any of the
accounts at maturity, or of the debtor be-
coming insolvent, the transferrer should
repurcnase the account and pay therefor
the advance made thereon, plus the dis-
count.
[For other cases, see Pledge, II., In Digest
Sup. Ct. 1908.]
Attorneys' fees ~ nnder pledge of ac-
counts receivable.
2. Counsel fees in bankruptcy proceed-
ings were not comprehended by a provision
in a contract by wnich the bankrupts trans-
ferred their accounts receivable as collateral
securitJ for loans, that they should reim-
burse the transferee in case the latter should
employ counsel or cause l^al action to be
instituted to enforce the payment of any
of said accounts or any part thereof, either
fo its own name, or in the name of the bank-
nipts.
[For other eases, see Attorneys' Fees, in
Digest Bnp. Ct 1906.]
[No. 90.]
Argued December 3, 1916. Deeided Jan-
nary 10» 1916.
APPEAL from the United SUtes Circuit
Court of Appeals for the Sixth Circuit
to review a decree which affirmed a decree
of the District Court for the Eastern Dis-
trict of Kentucky, disallowing certain
claims against bankrupt estates. Affirmed.
See same case below, 127 C. C. A. 668;
210 Fed. 893.
The facts are stated in the opinion.
Mr. Robert Kinkead argued the causey
and Messrs. S. M. Sapinsky, James B. Dnf-
fin, Owen D. Duffin, and S. M. Stockslagsr
filed a brief for appellant:
It is a rule of interpretation that where a
contract is fairly open to two constructional
by one of which it would be lawful, and bj
the other unlawful, the former must bt
adopted.
Hobbs V. McLean, 117 U. S. 576, 29 L. ed.
943, 6 Sup. Ct. Rep. 870; United States t.
Central P. R. Co. 118 U. S. 235, 30 L. ed.
173, 6* Sup. Ct. Rep. 1038; Red Rock t.
Henry, 106 U. S. 596, 27 L. ed. 251, 1 Sup.
Ct. Rep. 434 ; Lorillavd v. Clyde, 86 N. Y.
384 ; Curtis v. Gokey, 68 N. Y. 300 ; Mandal
V. Mandal, 28 La. Ann. 556; 39 Cyc. 017»
918; Jenkins' Succession, 5 La. Ann. 682;
Archibald v. Thomas, 3 Cow. 284; Re Can-
field, 113 C. C. A. 562, 193 Fed. 934; Hough-
ton V. Burden, 228 U. S. 161, 57 L. ed. 780,
38 Sup. Ct. Rep. 491.
Likewise, the courts will invariably con-
strue an agreement so as to give it a legal
effect rather than a usurious one.
39 Cyc. 917, 918.
To constitute the offense of usury, there
must be an intent to do something which is
in violation of the statute.
39 Cyc. 919; Bank of United SUtes t.
Waggener, 9 Pet. 378, 9 L. ed. 163.
Nothing in our contract contained, and
nothing in the conduct of the parties in the
transactions thereunder, is sufficient in any
degree to impute to either the bankrupt com-
panies or to our client "an intent" to vio-
late the statute against usury.
Lloyd V. Scott, 4 Pet. 205, 7 L. ed. 833;
McAleese v. Goodwin, 16 C. C. A. 387, 32
U. S. App. 650, 69 Fed. 759; Gunby t.
Armstrong, 66 C. C. A. 627, 133 Fed. 417.
Notwithstanding the fact that the vendor
indorses or guarantees the accounts sold,
such a transaction is regarded as a valid
sale of a chattel with a warranty of ita
soundness, and the purchaser is allowed to
enforce the obligation to its full extent
against his own indorser and aU prior par*
ties.
39 Cyc. 934; Oldham v. Turner, 8 B.
Mon. 67; Durant v. Banta, 27 N. J.* U
624; Cantrell v. Ford, — Tenn. — , 4%
S. W. 581; Leavitt v. Delauny, 4 N. Y.
364; Nichols v. Pearson, 7 Pet. 103, 8 U
ed. 623; I Page, Contr. p. 743, ( 477.
888 u. a.
1913.
HOM£ BOND CO. t. McCHESNEY.
66»-572
Even in Alabama the doctrine that the
mere guaranty bj the teller of an aooount
leoeivable transforma the transaction from
a sale into a loan hat been repudiated and
oTertumed.
Capital City Ins. Co. t. Quinn, 73 Ala.
€G8; Wildamith v. Tracy, 80 Ala. 261; Orr
T. Sparkman» 120 Ala. 9, 23 So. 829.
An account receiyable in the state of Ken-
tucky may be sold just exactly like any
other species of property.
Xewl^ T. HiU, 2 Met 530.
Where a promissory note has been fairly
mad^ 80 that the payee has acquired a legal
right to sue the maker thereon, he may then
dispose of it at any rate of discount from
its face.
Didcerman t. Day, 31 Iowa, 444, 7 Am.
Rep. 1§6. .
The burden of proof rests on the party
pleading usury.
1 Remington, Bankr. p. 697, % 1199; Re
Samuel Wilde's Sons, 133 Fed. 662.
Unless there was a loan there can be no
usury.
1 Page, Contr. p. 741, 9 466; Struthers ▼.
Drexel, 122 U. S. 487, 80 L. ed. 1216, 7
Sup. Ct. Rep. 1298.
A person owning accounts can well afford
to sell them at a discount in order to ob-
tain ready money, and such a Bale did not
infect the transaction with the vice of usury.
Salt Fork Coal Ca t. Eldridge Coal Co.
170 ni. App. 268.
Mr. Iiewia A. Nuokola argued the cause,
and, with Messrs. John Bryce Baskin and
Eli H. Brown, Jr., filed a brief for appellee:
The contract shows on its face that it
is one of lending, and not one of sale.
35 Cyc. 39, 40; Robinson v. Farrelly, 16
Ala, 472; Yankey v. Lockheart, 4 J. J.
Marsh. 276; Re Grand Union Co. 135 C. C.
A. 237, 219 Fed. 353; Ra Fishel, 117 C. C.
A. 224, 198 Fed. 464.
Wh^re there is a dispute or uncertainty
as to the facta, the courts will be slow to
hold that usury has been exacted, or was in
contemplation; but where there is no dis-
pute of fact, and it appears, or a clear pre-
ponderance of the evidence or the contract
itself shows, that the transaction is tainted
with usury, then it will be closely scruti-
nized, and no shift or device or scheme to
evade the statute will be tolerated.
Bright V. Wagle, 3 Dana, 254; Emig v.
Mutual Ben. L. Ins. Co. 127 Ky. 588, 23
L.R.A.(N.S.) 828, 106 6. W. 230; Ringer t.
Virgin Timber Co. 218 Fed. 1008; Edring-
ton V. Harper, 3 J. J. Marsh. 354, 20 Am.
Dec 145.
Mr. Justice Pitney delivered the opinion
of tiie court:
The New England Chair Company, and
•• Ii. ed.
its successor, the American Fibrd Reed
Company, are Kentucky corporations which
were engaged in business at Frankfort, in
tiiat state. On Fd>ruary 1, 1012, involun-
tary petitions in bankruptcy were filed
against both companies, and they were duly
adjudicated bankrupts. The two cases in
bankruptcy were consolidated and directed
to proceed as one cause, and the estates
are under administration as one estate. The
present appellant, the Home Bond Com-
pany, an Indiana corporation, filed inter-
vening petitions, claiming certain funds in
the hands of the trustee, obtained by him
through the collection of accounts receiv-
able of the bankrupt corporations, to which
the petitioner claimed title under two con-
tracts in writing made between it and the
respective corporations; one with the New
England Chair Company under date March
6, 1911, the other with the American Fibre
Reed Company under date November 9,
1911, after the latter had taken over the
assets and assumed the liabilities of the
Chair Company. These agreements are
identical in form, and a copy of one is set
forth in the margin, i
[670] Petitioner also set up a elaim
against the trustee for the sum of $800,
being $100 per month from March 16 to
October 12, 1912, inclusive, paid by it to
one Manning, [671] who, in the 6th clause
of the contract of November 0, 1911, was
by the Reed Company appointed attorney
in fact to receive remittances in payment of
the ac6ounts [672] receivable and transmit
iThis agreement, made this 6th day of
March, 1911, at Indianapolis, Indiana, by
and between New England Chair Company,
hereinafter called first party, and the Uome
Bond Company, hereinafter called second
party.
Witnesseth, that, for one dollar ($1) and
other good and valuable considerations, each
to the other paid, receipt whereof is hereby
acknowledged, the parties hereto have
agreed and do hereby agree as follows:
First. That said second partv shall buy
from said first party all acceptable accounte
tendered to it by said first party and pav
therefor the face value thereof less the fol-
lowing discounts:
1 per cent on accounts that are paid with-
in 15 days;
2 per cent on accounts that are paid with-
in 30 days;
3 per cent on accounts that are paid with-
in 60 days;
4 per cent on accounts that are paid with-
in 90 days;
5 per cent on accounts that are paid with-
in 120 days;
6 per cent on accounts that are paid with-
in 150 days;
7 per cent on accounts that are paid with-
in 180 days;
subject however, to the terms of this and
445
672-^74
SUPREME COURT OF THE UNITED STATES.
Oct. Tbk,
them to petitioner. It was averred that
$100 per month was a reasonable charge,
and that, under the provisions of the 6th
clause, the Reed Company was to pay Man-
ning, but failed to do so, and petitioner
was compelled to make such payment.
The trustee filed answers contesting
the principal claim on the ground that the
transactions between petitioner and the
bankrupt corporations did not amount to
a purchase of the accounts receivable, but
constituted mere loans of money (with the
accounts assigned as collateral [573] secu-
rity) at usurious rates of interest; and trav-
ersing the claim for moneys paid to Man-
ning upon grounds that will appear below.
The special master to whom the matter was
referred overruled the claim, sustaining the
trustee's contention, and holding, in view
of the agreed statement of facts submitted
to him by the parties in lieu of proof, that
the contracts were not sales of the accounts
by the respective bankrupt corporations to
petitioner, but were transfers of the ac-
counts as security for loans; and that these
loans were made at usurious rates of inter-
est, whether the contracts were made in
Indiana or Kentucky, since the amounts
retained as a "service charge" under the
contracts amounted to at least 24 per
centum per annum on the moneys paid by
the petitioner from the time of payment to
the time of reimbursement, while the stat-
utes of both states fixed G per centum per
annum as the legal rate of interest, provid-
ing that any excess might be relieved
against, and, if paid, recouped, and while
the Indiana statute permitted interest up
to 8 per cent to be contracted for in writ-
ing, it provided that if over 8 per cent were
contracted for or collected, all over 6 per
cent should be forfeited. The special mas-
ter therefore held that in the settlement
the transactions between the petitioner and
trustee should be purged of usury, and the
petitioner be treated as a creditor of the
bankrupt corporations with security for its
debt. As to the claim for the $800 paid by
petitioner to Manning, the special master
overruled this upon the ground that there
was nothing to show what services, if any,
were rendered by Manning as attorney in
fact during the time from March 16, 1912,
to November 12, 1912. It appeared that
during the continuance of the contracts be-
tween the petitioner and the Chair Com-
pany and the Reed Company respectively.
Manning was an officer and employee of the
respective companies; that for all services
rendered by him while so employed by these
companies, including such as he [674] ren-
dered as attorney in fact, he was to receive
any subsequent written agreements executed
by the parties hereto.
Second. That the second party shall pay:
78 per cent on 30 day accounts;
77 per cent on 60 day accounts;
76 per cent on 90 day accounts;
76 per cent on 120 day accounts;
74 per cent on 150 day accounts;
73 per cent on 180 day accounts;
upon delivery to and acceptance by second
party of such accounts duly assigned to the
party of the second part; and the remain-
der, less discount and deductions taken by
the debtor, shall be paid immediately after
the collection of the account by the second
party, provided, however, no payment of
the remainder shall be made while any of
said accounts are in default.
Third. The first party shall properly as-
sign and deliver to said second partv all
accounts purchased, including the right of
stoppage in transitu, either in the name of
the party of the first part or in the name
of the party of the second part (provided,
however, the party of the second part shall
not be charged with negligence in not mak-
ing stoppage in transitu in any event un-
less thereunto requested by the party of
the first part). It the merchandise named
in tiie accounts should be refused or re-
turned, for any cause, the title to such mer-
chandise shall be and remain in said second
party until such accounts are paid.
Fourth. Said first party hereby guaran-
tees the payment to the second party or its
assigns of all aocounta purchased hereun-
44«
der according to the terms thereof. In the
event of nonpayment at maturity to said
second party, of any accounts purchased
as aforesaid, or should the debtor become
insolvent, said first party hereby covenants
and agrees to repurchase said accounts
within five days after receipt of written
notice thereof, and to pay therefor the same
amount paid to the first party by said sec-
ond party, plus the discount provided for
in the first paragraph of this contract;
said second party is hereby given the right
without notice to said first party to credit
any moneys coming into its possession, be-
longing to said first party, on its accounts.
Fifth. Immediately after the purchase of
every account hereunder, said first party
shall make upon its book an entry showing
the absolute sale of said accounts to said
second party, and said second party is here-
by given the right and privilege of audit-
ing the books, accounts and records of said
first party, relating to said accounts, at
any time that it may see fit so to do.
Sixth. Whereas it is for Uie mutual bene-
fit of the parties hereto that the collection
of said accounts shall in the first instanoe
be remitted to the party of the first part
and in its name; the party of the first part
shall at all times appoint some person or
persons mutually acceptable to both of the
parties hereto, their attorney in fact to re-
ceive all such remittances in whatever form
thev may be made, and to transfer, assign
and transmit all such proceeds to said
party of the second part.
tt9 V. B.
1915.
HOME BOND CO. t. MoCHESNBY.
574, 575
a regular salary, which was paid to him by
the Chair Company until the business was
taken over by the Reed Company, and then
by it until April 9, 1912, wben the cus-
todian toolc charge of the bankrupts' es-
tates, with the exception of salary for tlie
two weeks ending April 9, which was owing
to him from the Heed Company; that from
April 9 to September 9, 1912, Manning was
in the employ of the custodian as clerk,
and thereafter in the employ of the trustee
in the same capacity, and his salary for
this emplo3mient had been paid him out of
the bankrupts' estates. The special master
also overruled a claim made by petitioner
for allowance of its counsel fee in the same
proceedings. The demand for such allow-
ance was based upon the 8th clause of the
agreement, which it was contended was
broad enough to embrace not only counsel
fees incurred in the collection of accounts
receivable from delinquent debtors or cus-
tomers of the Chair Company or the Reed
Company, but also counsel fees incurred by
petitioner in collecting directly from either
of those companies any accounts receivable
which had come into its hands and for
which it or its trustee in bankruptcy failed
to account.
1 hereupon the special master stated an
account between the petitioner and the
bankrupts' estates, making the proper al-
lowances for the usury, finding a balance
of t>nly $576.10 due from the trustee to the
petitioner, and recommending that this be
ordered paid over, but only upon condition
that the petitioner turn over or account
to the trustee for the contracts of March
6, 1911, and November 9, 1911, and any un-
collected accounts, or papers connected with
the uncollected accounts, delivered to it un-
der those contracts.
Petitioners' exceptions to this report were
overruled by the district court (206 Fed.
309) , and a decree <was entered in accordance
with the recommendations of [676] the
special master. The circuit court of appeals
affirmed the decree. 127 C. C. A. 552, 210
Fed. 893.
Upon the present appeal it is insisted
that there was error in holding that peti-
tioner and appellant, by virtue of the con-
tracts between it and the bankrupts and
the transactions and conduct of the parties,
did not become the purchaser or owner of
the accounts receivable in question, and
that the transactions were really loans,
with the accounts receivable transferred as
collateral security. But it seems to us so
entirely clear that the conclusions reached
by the special master and approved by both
courts were correct that we deem it un-
And said party of the first part shall im-
mediately, upon receipt of such remittances
in whatever form the same shall be made,
deliver the same to such attorney for trans-
mittal to the party of the second part;
and said attorney shall at all times have
access to all mail received by said party
of the first part and all books and records
of the party of the first part, to discover
what payments and remittances are made
upon such accounts.
And in consideration of the execution of
this agreement by the party of the second
part, said party of the first part under-
takes and tlgreea to guarantee the faithful
conduct of said attorney in fact in the re-
ceipt, assignment and transmittal of all
sudi payments or remittances. And upon
the like consideration said party of the
first part shall pay unto said attorney in
fact compensation for all such services so
rendered in that behalf; and that we will
furnish and provide for said attorney in
fact all necessary clerical or stenographic
assistance for making reports to party of
the first part, and all postage or express
charges for transmitting reports and re-
mittances; said attorney in fact shall also
have the right and power, and it shall be
his duty to indorse the name of the party
of the first part on any freight or express
bill or bill of lading relating to said ac-
counts; and ratifying and confirming all its
said attorney may do in the premises. And
said attorney in fact as to all such matters
sball receive such moneys or other remit-
•0 L. ed.
tanoe solely for the party of the second
part and shall at all times be subject to
its exclusive orders with relation thereto;
and it is now mutually agreed between the
parties hereto that K. Manning shall be
and continue such attorney in fact to per-
form such duties, until by mutual agree-
ment of the parties hereto, another person
shall be appointed in his stead.
Seventh. That said second party in mak-
ing purchase of accounts hereunder relies
upon the guaranties and covenants of said
first party herein contain. i and upon the
written representations made to it by said
first party as to the financial responsibility
of said first partv; that said written repre-
sentation heretofore made and that may
hereafter be made are for the purpose of
establishing the credit of said first party
with said second party so that sale of ac-
counts may be made hereunder.
Eighth. That said first party shall exe-
cute and deliver to said second party or
its assigns, any document necessary or prop-
er to carry into effect this contract and
should second party employ counsel or cause
legal action to be instituted to enforce the
payment of any of said accounts, or any
part thereof, either in its own name or of
the name of the party of the first part, then
and in either case said first party shall
immediately pay to said second party or
its assigns, all court costs, expenses, attor-
ney's and stenographer's fees which may be
by it expended In such proceedings.
In witness whereof, etc
447
675, 676
SUPREME OOURT OF THE UNITED STATES.
Oct Teix,
necessary to discuss the matter at any
length. To quote from the opinion of the
district court: "The considerations which
support this conclusion are that the bank-
rupts were to and did collect the accounts
and bear all expenses in connection with
their collection; what is claimed to have
been the purchase price for the accounts,
to wit, the difference between the face of
the accounts and the discount, was not
known until payment of the account and
receipt thereof by the company, and then
depended on the time that had elapsed since
the date of the advance of the 75 per cent;
what is claimed to have been deferred pay-
ment of the purchase price was simply a
return to the bankrupt of the excess of the
collection over and above the advance and
discount; and the provision that, in the
event of nonpayment of any of the ac-
counts at maturity, or the debtor becoming
insolvent, the bankrupt should repurchase
the account and pay therefor the advance
made thereupon, plus the discount. . . .
In so far as the contracts in question here
use words fit for a contract of purchase,
they are mere shams and devices to cover
loans of money at usurious rates of inter-
est. That the company was not adverse
to the use of shams is otherwise apparent
from the use by it of the word 'service,' in
ifts dealings with the bankrupts under the
^ntracts, [676] to characterize the dis-
counts. In any view of the contracts those
discounts were not charges for services ren-
dered the bankrupts. Loans are never re-
garded as services."
Houghton V. Burden, 228 U. S. 161, 57
L. ed. 780, 33 Sup. Ct. Rep. 491, affirming
Re Canfield, 113 C. C. A. 562, 193 Fed. 034,
is plainly distinguishable, for there the
contract contemplated actual services by
the lender, and this provision was found
not to have been a mere cover for usury.
The rulings adverse to the claim tor
moneys paid to Manning and for counsel
fees in the proceedings are so manifestly
correct as to require no discussion.
Decree affirmed.
KANAWHA ft MICHIGAN RAILWAY
COMPANY, Plff. in Err.,
V.
T. L. KERSE, Administrator of the Estate
of Thomas P. Barry, Deceased.
(See S. C. Reporter's ed. 676-^82.)
Master and servant ~ employers' Ila-
bllitj — negligence.
1. It is actionable negligence under the
employers' liability act of April 22, 1908
(35 Stat at L. 66, chap. 149, Comp. Stat.
44S
1913, § 8657), for a railway companv,
through its employees, to conduct its switch-
ing operations upon a private switch ob-
structed in such a manner as to endanger
the lives of brakemen upon its cars.
[For other cases, see Master and Servant,
II. a, in Digest Sup. Ct. 1908.]
Trial — qnesUon for jnr j ~ assumption
of risk.
2. The trial court cannot be charged
with error in refusins to take the question
of the assumption of risk from the jury
in an action under the Federal employers'
liability act of April 22, 1908 (35 Stat, at
L. 65, chap. 149, Comp. Stat. 1913, § 8657),
unless the evidence tending to diow sudi
assumption of risk was clear and from ua-
impeached witnesses and free from contra-
diction.
[For other cases, see Trial, VI. e. tL In
Digest Sup. Ct. 1908.]
Appeal — harmless error ^ refnsln^ re-
quested instruction.
3. Error in refusing a requested in-
struction does not require a reversal of the
jud^ent where the jury, by its q>eciflo
lindmffs of fact, distinctly n^Uved the
h^otnesis upon which alone ue instruc-
tion was based.
[For other cases, see Appeal and Error.
4737-4739. in Digest Sup. CCvM,^
[No. 129.]
Argued December 10, 1915. Decided Jan-
uary 10, 1916.
IN ERROR to the Circuit Court of Kana-
wha County, in the State of West Vir-
ginia, to review a judgment in favor of
plaintiff in an action under the Federal
employers' liability act. Affirmed.
The facts are stated in the opinion.
Messrs. Ijeroj Allebaeh and W. N. Kiny
argued the cause and filed a brief for plain-
tiff in error:
The evidence will be analyzed by the Fed-
eral Supreme Court on a writ of error to a
state court to the extent necossiiry to g^ve
the plaintiff in error the benefit of Its as-
serted Federal right.
North Carolina R. Co. v. Zachaiy, 232
U. S. 248, 58 L. ed. 591, 34 Sup. Ct Rep.
305, 9 N. C. C. A. 109, Ann. Cas. lOUC,
159.
The burden of proving n^ligence on the
part of the defendant rested upon the plain-
tiff.
Southern Railway-Carolina Div. t. Ben-
nett, 233 U. S. 80, 58 L. ed. 860, 34 Sup.
Ct. Rep. 566.
Note. — On the constitutionality, applica-
tion, and effect of the Federal employers'
liability actr— see notes to Lamphere t. Ore-
gon R. k Nav. Co. 47 L.R.A.(N.S.) 38, and
Seaboard Air line R. Co. t. Horton, L.RA.
19150,47.
%%% U. S.
1915.
KANAWHA & M. R. CO. t. KERSE.
678
The raUway company was not liable un-
less negligence was shown.
Ibid.; Seaboard Air Line B. Co. t. Hor-
ton, 233 U. S. 492, 58 L. ed. 1062, L.R.A.
1915C, 1, 34 Sup. Ct. Rep. 635, 8 N. C. C.
A. 834, Ann. Cas. 1915B, 475.
To hold that, under the statute, the rail-
road company is liable for the injury or
death of an employee resulting from any
defect or insufficiency In its cars, engines,
appliances, etc., however caused, is to take
from the act the words "due to its negli-
gence.''
The plain effect of these words is to con-
dition the liability upon negligence; and
had there been doubt before as to the com-
mon-law rule, certainly the act now limits
the responsibility of the company as indi-
eated.
Seaboard Air Line R. Co. t. Horton,
supra.
Assumption of risk and the negligence of
plaintiff were available as defenses.
Ibid.; Farley v. New York, N. H. ft H.
R. Co. 87 Conn. 328, 87 Atl. 990; Hogg, PL
ft Forms, § 228, pp. 184, 185; Ridgeley v.
West Fairmont, 46 W. Va. 445, 33 S. E.
236 ; Woodell v. West Virginia Improv. Co.
38 W. Va. 47, 17 S. E. 386; Williamson v.
Newport News ft M. Valley Co. 34 W. Va.
657, 12 L.R.A. 297, 26 Am. St. Rep. 927,
12 S. E. 824; Oliver v. Ohio River R. Co.
42 W. Va. 703, 26 S. E. 444; Sanderson v.
Panther Lumber Co. 50 W. Va. 42, 55 L.R.A.
008, 88 Am. St. Rep. 841, 40 S. E. 368 ; Pan-
key V. Atchison, T. ft S. F. R. Co. 180 Mo.
App. 185, 168 S. W. 274, 6 N. C. C. A. 74.
The refusal of the trial court to instruct
the jury to find in favor of the railway com-
pany denied to the railway company its
right to immunity from liability under the
Federal employers' liability act, and is,
therefore, error, calling for a reversal of the
judgment.
St. Louis, I. M. ft S. R. Co. v. McWhirter,
229 U. S. 265, 282, 67 L. ed. 1179, 1188,
33 Sup. Ct. Rep. 868; Hoylman v. Kanawha
ft M. R. Co. 65 W. Va. 270, 22 L.RJl.(N.S.)
741, 64 S. E. 536, 17 Ann. Cas. 1149.
The uncontradicted evidence clearly
ahowed actual knowledge on the^ part of
Barry of the presence of the obstruction over
the track and of the dangers surrounding it.
Melton V. Chesapeake ft 0. R. Co. 64 W.
Va. J 68, 61 8. E. 39.
Mr. George A. Berry argued the cause,
and, with Mr. R. F. Downing, filed a brief
lor defendant in error:
The facts, and the conclusions to be drawn
from them, are for the Jury, and cannot be
reviewed by the Federal Supreme Court up-
on writ of error.
Standard Oil Co. t. Brown, 218 U. & 78,
87, 54 L. ed. 039, 946, 30 Sup. Ct. Rep.
669; Herencia v. Guzman, 219 U. S. 44, 55
L. ed. 81, 81 Sup. Ct. Rep. 135; United
States Exp. Co. v. Ware, 20 WalL 543, 22
L. ed. 422; New York, L. E. ft W. R. Co. v.
Winter, 143 U. S. 60, 75, 86 L. ed. 71, 80,
12 Sup. Ct. Rep. 856, 8 Am. Neg. Cas. 690;
Lincohi t. Power, 151 U. S. 486, 438, 38
L. ed. 224, 225, 14 Sup. Ct. Rep. 887;
Humes v. United States, 170 U. S. 210, 42
L. ed. 1011, 18 Sup. Ct Rep. 602.
The danger from injury from coming in
contact with this piece of timber was not
one of the risks incident to Barry's em-
ployment as a brakeman in the employ of
the defendant.
Seaboard Air Line R. Co. t. Horton, 283
U. S. 601, 505, 58 L. ed. 1068, 1070, L.Rji.
1915C, 1, 34 Sup. Ct Rep. 635, 8 N. C. C. A.
834, Ann. Cas. 1915B, 475; Erslew t. New
Orleans ft N. E. R. Co. 49 La. Ann. 86, 21
So. 153; New York, N. H. ft H. R. Co. t.
CLeary, 35 C. C. A. 562, 93 Fed. 737;
Holden t. Fitchburg R. Co. 129 Mass. 268,
87 Am. Rep. 343; Gates t. Chicago, M. ft
St. P. R. Co. 2 S. D. 422, 50 N. W. 907;
Chesapeake ft O. R. Co. t. Cowley, 02 C. C.
A. 201, 166 Fed. 283; Norfolk ft W. R. Co.
V. Beckett, 00 C. C. A. 25, 163 Fed. 479;
Ohio, L ft W. R. Co. t. Johnson, 31 111.
App. 183; Lindsay v. Norfolk ft S. R. Co.
132 N. C. 59, 43 6. E. 511, 13 Am. Neg. Rep.
597; Greenleaf t. Dubuque ft S. C. R. Co.
33 Iowa, 52, 14 Am. N^. Cas. 607; Mc-
Duffee v. Boston ft M. R. Co. 81 Vt 62, 130
Am. St Rep. 1019, 69 Atl. 124; Coles v.
Union Terminal R. Co. 124 Iowa, 48, 99
N. W. 108; Nance t. Newport News ft M.
Valley R. Co. 13 Ky. L. Rep. 654, 17 S. W.
570; Pittsburgh, C. C. ft St L. R. Co. t.
Parish, 28 Ind. App. 189, 91 Am. St. Rep.
120, 62 N. E. 514; Wright v. Yazoo ft M.
Valley R. Co. 197 Fed. 94.
Mr. Justice Pitney delivered the opinion
of the court:
This was an action under the Federal
employers' liability act to recover damages
because of the death of one Barry, a brske-
man in the Railway Company's yard at
Charleston, West Virginia, on April 23,
1911. It was pleaded and was proved with-
out dispute that he received injuries re-
sulting in his death while employed in inter-
state commerce by the Railway Company,
admittedly a oonmion carrier. There was a
verdict in favor of the administrator, and
the supreme oourt of appeals of West Vir-'
ginia refused to allow a writ of error to
review the resulting judgment; hence our
writ was directed to the trial court.
The principal argument of plaintiff in
error is addressed to the refusal of the
court to direct a verdict in favor of de-
«0 L. ed.
29
44
678-^81
8UPREMB OOXJRT OF THE UNITBD STATES.
Oct. Tebm»
fendant upon the ground that there was no
proof of negligence on the part of the Rail-
way Company, and that there was clear and
undisputed proof that Barry assumed the
risk of such an injury as that which re-
sulted in his death.
It appears that Barry was an experienced
yard brakeman, and was employed in that
capacity by the Railway Company in its
Charleston yard. Among the industries
served by the yard was that of the Kana-
wha Brewing [670] Company, which had a
private switch running through its premises
and connecting with defendant's main line.
Some time prior to April 23, 1011, carpen-
ters in the employ of the Brewing Company
had placed one or two pieces of timber,
about 2 inches thick and 3 to 6 inches wide,
in a horizontal position across the switch
track, and at a height between 3 feet apd
4i feet above the top of an ordinary box
car. The timber was secured by nails to
two buildings on opposite sides of the track.
There was a conflict of testimony as to the
iMigth of time that the timber had been in
position prior to the accident, witnesses
fixing it at periods varying from two or
three days to a month. It was necessary
for members of defendant's yard crew to
pasr in and out of the switch and under the
obstruction frequently. The timber was in
plain view, but because of a sharp curve in
the switch track could be seen by those
upon the top of a car for only a short dis-
tance when approaching it. On the 23d
of April a switching crew, of which Barry
was that day a member, went upon the
switch to haul out upon the main line a car
destined for interstate commerce. The en-
gine, in charge of one Leonard, was backed
in upon the switch, and Barry coupled up
the car, which was an ordinary box car,
and then climbed to the top of it. Leonard
started to pull out of the switch, and as
the train proceeded Barry, who was stand-
ing near the rear end of the car, and not
looking forward, but sidewise (presumably
watching Wintz, the conductor, who was
standing upon the ground, in charge of the
train), came in contact with the timber
and was thrown to the ground, sustaining
a facture of the skull, from which he soon
died.
The action of the Railway Company,
through its employees, in conducting its
switching operations upon a switch obstruct-
ed, as this one was, in such manner as to
endanger the lives of brakemen upon its
cars, speaks so clearly of negligence that
no time need be spent upon it. [680] The
evidence that the timber had been in the po-
sition described for a considerable period of
time was presumptive evidence of notice to
the company; besides which, the switch en-
450
u
gineer and conductor both testified to ac-
tual knowledge on their part, prior to the
time of the accident to Barry. Under the
employers' liability act (35 SUt at L. 66,
chap. 149, § 1, Comp. Stat. 1913, § 8657) tb«
action lies for "injury or death resulting in
whole or in part from the negligence of any
of the officers, agents, or employees of such
carrier."
Upon the question of assumption of risk,
the case for the Railway Company was
stronger. One Forbes, a fellow brakeman,
testified that Barry had worked on the same
crew with witness during all the time he
was employed by the company, this being
something like a month;" that the ob-
struction across the Brewing Company's
track had been there "pretty near the whole
time Mr. Barry was working for the com-
pany,— ^must have been there something like
a month ;" that "I told Mr. Barry to be care-
ful and watch this piece of timber, myself,
and I and Mr. Barry had passed under it
ourselves, and we had to get down this way
(witness stoops quite low) to get under the
piece of timber on the box car, and I told
him several times about watching;" and
that he and Barry probably went in on the
switch together two or three times a day,
and he had often seen Barry go under the
obstruction. And Wints, the conductor, tea-
tified that Barry commenced work for the
company "about the first of the month, and
worked up until the 23d;" also that "I no-
tified him about the overhead pieces, to bt
careful and watch out for them." This
testimony, as seen in print, certainly seems
convincing, although Wints, upon crosB*«K-
amination, could not say but that he had
told Mr. Kerse, the administrator, that he
and Barry had "never had any conversatioB
at all about this overhead obstruction."
But there was substantial contradiction
of the testimony [681] of these witnesses.
Leonard, the engineer of the yard locomotive^
called as a witness for plaintiff, testified dis-
tinctly that the day on which Barry met his
death was the first that the witness had seen
him; that he did not know whether Barry
was employed by the Railway Company or
not. And one Greter, called by defendant^
testified that it was to him Barry had ap-
plied for employment as yard brakeman, and
he identified the written application signed
by Barry; he also testified that Barry en-
tered the service of the company "about
three or four days" after the application was
approved. The application itself was in-
troduced in evidence by defendant; it Is
dated March 31, 1911, and is indorsed "Ap-
proved, A. N. Lyon, Supt., 4/14/1911." Tk«
latter date, coupled with Greter's testimony,
would seem to fix April 17th or 18th (five or
six days before the accident) as the earliest
1915.
NEW YORK C. ft H. IL R. 00. T. GRAY.
581-im
date on which Barry wm employed by the
Railway Company. And this is so inconsist-
ent with a material part of the testimony
of Forbes and Wintz that the jury may rea-
sonably have concluded that their testimony
ihould be rejected in toto, — falsus in uno,
falsus in omnibus, — and that in truth, as
indicated by the testimony of Leonard, Bar-
ry had never worked upon the Brewing Com-
pany's switch previous to the time of the
disaster. The burden of proof of the as-
sumption of risk was upon defendant, and
unless the evidence tending to Ahow it was
clear and from unimpeached witnesses, and
free from contradiction, the trial court
could not be charged with error in refus-
ing to take the question from the jury.
Only one matter remains to be mentioned.
The court refused to instruct the jury, as
requested by defendant, '^at if they find
from the evidence that Thomas P. Barry
knew of the presence of the piece of timbcar
over the track of the Kanawha Brewing
Company, and knew that it would not dear
a man standing on the top of a bos car, and
with such knowledge continued in the serv-
ice of [582] the Kanawha ft Michigan Rail-
way Company, where his duties required him
to pass under said piece of timber, then said
Gliomas P. Barry must be held to have as-
sumed the risk of being injured by being
struck by said piece of timber and there can
be no recovery by the plaintiff herein.^
Since knowledge of a fixed obstruction
over the track in such a position as not to
clear a man standing upon the top of a box
ear would seem necessarily to import to an
experienced brakeman that there was a risk
of injury to him in that situation, and since
there was no evidence of objection by Barry
or promise of reparation by his employer to
rebut tiie presumptien that the risk was
assumed, the refusal of this request i^pears
plainly erroneous. But this does not result
in a reversal of the judgment under review,
because by specific findings of fact the jury
negatived the hypothesis upon which alone
the instruction was based. In response to
particular interrogatories submitted by the
court, they found that Barry did not know
that the piece of timber was stretched over
the track, and (of course) did not know that
the timber was so low that it would not
dear him standing upon the top of the box
ear.
A judgment is not to be reversed for an
error by which the plaintiff in error cannot
have been prejudiced. And the refusal of an
instruction as to the legal result that would
follow only upon the hypothesis that the de-
ceased knew of the presence of the timber,
and knew it would not clear a man stand-
ing upon the top of a box car, became legal-
ly insignificant when the jury had in its '
•0 Ii. ed.
findings distinctly negatived the faets that
made up the hypothesis. Thus the progress
of the trial rendered the error wholly im-
material to the merits. Greenleaf v. Birth,
5 Pet 182, 135, 8 L. ed. 72, 73; Fidelity ft
D. Co. V. Courtney, 186 U. S. 342, 351, 46
L. ed. 1108, 1198, 22. Sup. Ct Rep. 888.
Judgment affirmed.
[683] NEW YORK CENTRAL ft HUDSON
RIVER RAILROAD COMPANY, Plff. in
Err .9
V.
CHARLES P. GRAY.
(See S. C. Reporter's ed. 589-687.)
Carriers — Federal regulation ~ In-
Talldatinc contraot for free trans-
portation ~ recoverj of contract price.
There is nothing in the prohihitioB
of the Hephum act of June 20, 1906 (34
Stot. at t. 587, chap. 3501, Comp. Stat.
1913, § 8569), S 2, against charging, col-
lecting, or receiving a greater or less or dif-
ferent compensation for transportation than
that specified in the carrier's published
rates, which prevents or relieves a earrier
from making just compensation in money
for the unpaid balance of the purchase price
of a map made for it, because the deliverr
of the particular consideration stipulated
for in the contract, viz., free transportation,
became unlawful upon the passage of thai
statute.
[For other eases, set Carriers^ III., la Digest
Sup. Ct 1M6.]
[No. 147.]
Argued Debember 17, 1915. Decided Jan-
uary 10, 1916.
IN ERROR to the Supreme Court, Appel-
late Division, First Department of the
State of New York, to review a judgment
which alBrmed a judgment of the Appellate
Term of the Supreme 0>urt, affirming a
judgment of the City Ck>urt of the City of
New York, in favor of plaintiff in an action
on a contract. Affirmed.
See same case bdt>w, in Appellate Divi-
sion, 161 App. Div. 924, 145 N. Y. Supp.
1125.
The facts are stated in the opinion.
Mr. William Kann argued the caus^
and, with Mr. Charles C. Paulding, filed a
brief for plaintiff in error:
The transportation which plaintiff in er-
NoTK. — As to rights and remedies where
agreement by carriers to issue passes is im-
possible of performance because of subse-
mient legislation— eee note to Louisville ft
N. R. Co. V. Crowe, 49 L.R^(N3.) 848.
4S«
584, 586
SUPREME COURT OF THE UNITED STATES.
Oct. Tbk,
ror agreed to furnish defendant in error was
to be used on interstate journeys, and was,
therefore, subject to the provisions of the
act of February 4, 1887, and the amend-
ments thereof and supplements thereto,
known as the interstate commerce act.
Southern P. Terminal Co. t. Interstate
Commerce Commission, 219 U. S. 408, 55 L.
ed. 310, 31 Sup. Ct. Rep. 219; Texas & N.
O. R. Co. V. Sabine Tram Co. 227 U. S.
Ill, 57 L. ed. 442, 33 Sup. Ct. Rep. 229;
Railroad Commission t. Texas & P. R. Co.
229 U. S. 336, 57 L. ed. 1215, 33 Sup. Ct
Rep. 837.
On and after August 28, 1906, the date
upon which the amendment to the interstate
commerce act of June 29, 1906, became ef-
fective, it was unlawful for the plaintiff in
cfrror to furnish defendant in error trans-
portation for use on an interstate journey,
except upon receiving from him in money
the regular fare provided in its tariffs in
payment for such transportation.
Louisville k N. R. Co. v. Mottley, 219 U.
S. 467, 55 L. ed. 297, 34 L.R.A.(N.S.) 671,
31 Sup. Ct. Rep. 265; Chicago, I. & L. R.
Co. V. United States, 219 U. S. 486, 55 L.
ed. 305, 31 Sup. Ct. Rep. 272.
The refusal of plaintiff in error to furnish
defendant in error transportation in Sep-
tember, 1906, to apply in part payment of
the map in question, did not constitute a
l>reaeh of the agreement on its part, and no
cause of action arose in favor of defendant
in error because of such refusal.
People T. Globe Mut. L. Ins. Co. 91 N. Y.
174.
Mr. Arthnr W. Clement argued the
cause, and, with Mr. Wilson £. Tipple, filed
a brief for defendant in error:
Admitting for argument (1) that the
transportation which plaintiff in error
agreed to furnish was to be used on inter-
state journeys, (2) that after August 28,
1906, it was unlawful for the plaintiff in
error to furnish further transportation un-
der its agreement, and (3) that the refusal
of plaintiff in error to furnish defendant in
error transportation in September, 1906,
was, for that reason, right and proper,
nevertheless the defendant in error is en-
titled to recover the value of the map fur-
nished by him pursuant to the agreement,
less the various amounts received by him in
part payment. The action is not brought
to recover damages for breach of contract,
or to enforce specific performance of the con-
tract.
Louisville & K. R. Co. v. Crowe, 156 Ky.
27. 49 L.R.A.(N.S.) 848, 160 S. W. 759;
Jones V. Judd, 4 N. Y. 411; Day v. New
York C. R, Co. 61 N. Y. 583; Tracy v.
Talmage, 14 N. Y. 162, 67 Am. Dec. 132;
45S
Irwin V. Curie, 171 N. Y. 409, 68 L.K.A.
830, 64 N. E. 161 ; Akers v. Mutual L. Int.
Co. 59 Misc. 273, 112 N. Y. 254.
The legal residt of the failure of the
plaintiff in error to furnish the transporta-
tion when demanded was to convert the
claim from one for transportation into one
for money.
New York News Pub. Co. v. National S.
S. Co. 148 N. Y. 39, 42 N. E. 514.
Mr. Justice Pitney delivered the opinion
of the court:
In the month of November, 1900, Charles
P. Gray, the defendant in error, made an
agreement with the representatives of the
New York Central k Hudson River Railroad
Company, plaintiff in error, to make for the
company a large map of the Vanderbilt
Lines for the World's Fair, which was to
take place at Buffalo in the following year.
The price agreed to be paid him was $750,
of which $150 was to be paid in cash and
the balance in transportation to be used by
defendant in error in traveling between New
York city and his farm in Girard, Penn-
sylvania, following the lines of plaintiff in
error between New York and Buffalo, and
the line of another and independent rail-
road between that point and Girard. The
map was made, delivered, and accepted, and
the cash pajrment [685] of $150 was made.
At different times between the making of the
contract and the month of September, 1900,
defendant in error received from plaintiff
in error transportation to the value of $55.-
77, applicable to this contract. In Septem-
ber, 1006, he called upon the company for
transportation for himself and wife froin
New York city to Buffalo and return, in*
tending to use it for a visit to the farm at
Girard, Pennsylvania. The demand was re-
fused, upon the ground that, because of the
provisions of the interstate commerce law,
the company could furnish no additional
transportation on account of his services. A
second demand of the same kind having
been refused, defendant in error brought an
action against plaintiff in error in the city
court of the city of New York for the unpaid
balance of the agreed price of the map, to
which plaintiff in error set up the defense
that by the terms of the Hepburn act of
June 29, 1906 [34 Stat, at L. 584, chap.
3591, Comp. SUt. 1913, § 8563], it was un-
lawful to furnish transportation for any
part of an interstate journey In payment
for services or for any other oonsideration
exoept a regular fare paid in money. The
trial court, holding that this constituted
no defense to the action, directed a verdict
in favor of defendant in error for an amount
made up by taking the agreed price of the
map, deducting the cash payment and the
SS9 U. S.
191A.
GLEVBLAKD, a C. A ST. L. R. 00. t. DFITLBBACH.
685-.588
Ainoiint paid in transportation, and adding
intcrcft to the balance. IQo particular ques-
tion was or is made as to the quantum of
recoYerj. The resulting judgment was af-
firmed by the appellate term of the supreme
court, and its determination was affirmed
by the appellate division of the supreme
court for the first judicial department.
Leave to appeal to the court of appeals of
the state waa denied, and this writ of error
was sued out.
Among the prohibitions contained in the
act of June 29, 1000, is the following (34
Stat, at Jm, 687, chap. 8501, Comp. Stat.
1918, i 8669): '^or shall any carrier
charge or demand or collect or receive s
greater or less or different compensation
for such transportation [686} of passengers
or property,'or for any service in connection
therewith, between the points named in such
tariffs than the rates, fares, and charges
which are specified in the tariff filed and in
effect at the time; nor shall any carrier
refund or remit in any manner or by any
device any portion of the rates, fares, and
charges so specified, nor extend to any ship-
per or person any privileges or facilities in
the transportation of passengers or prop-
erty, except such as are specified in such
tariffs." The reference, of course, is to
common carriers by railroad in interstate
commerce; and it is not questioned that
plaintiff in error is within this category.
The act toolc effect August 28, 1906 (34
Stat, at L. 888, Res. 47).
In Louisville k N. R. Co. v. Mottley, 210
U. S. 467, 476, et seq., 55 L. ed. 297, 301,
84 L.Rji.(N.a) 671, 31 Sup. Ct. Rep. 265.
it was held tliat the prohibition we have
quoted prevented the exchange of transpor-
tation for services, advertising, releases,
property, or anything else than money, and
that this operated upon an agreement made
hmg before the passage of the act, where-
by the carrier, in consideration of a release
of damages for injuries sustained by Mottley
and his wife in consequence of a collision of
trains upon the railroad, agreed to issue
free passes to them, renewable annually dur-
ing their several lives, the result being that
after the taking effect of the Hepburn act
specific performance of this agreement could
no longer be required.
That the prohibition applies with respect
to transportation within the bounds of a
state as part of an interstate journey is
quite clear. Southern P. Terminal Co. v. In-
tergtate Commerce Commission, 219 U. S.
498, 627, 55 L. ed. 810, 320, 31 Sup. Ct. Rep.
279; Railroad Commission v. Worthington,
225 U. S. 101, 110, 56 L. ed. 1004, 1008, 32
Sup. Ct. Rep. 653; Railroad Commission v.
Texas & P. R. Co. 229 U. S. 336, 340, 57 L.
sd. 1215, 1218, 83 Sup. Ct. Rep. 837.
•OL. ed.
In the present case, therefore, the rail-
road company acted strictly in accordance
with the law when it refused any longer
to furnish transportation to defendant in
error in performance of the contract of
November, 1900. [587] But from this it hy
no means follows that it could refuse to
make just compensation in money for the
unpaid balance of the purchase price of the
map. The judgment of the state court pro-
ceeded upon the ground that since the con-
tract had been fully performed by Gray, so
that the railroad company had received the
entire benefit of it, and since the delivery of
the particular consideration stipulated for
had been prohibited by the act of Congressy
the company thereupon became bound upon
general principles of justice to pay him an
equivalent in money for the balance of the
consideration. In so holding the court waa
simply administering the applicable prin-
ciples of state law, and did not run counter
to the act of Congress. If the court had ac-
corded legal efficacy to an executory contract
made after the taking effect of the Ilepbum
act, and contrary to its provisions, a dif-
ferent question would be presented. But
there is nothing in the act to prevent or re-
lieve a carrier from paying in money for
something of value which it had long before
received under a contract valid when made,,
even though the contract provided for pay-
ment in transportation, which the passage
of the act rendered thereafter illegal. In.
the Mottley Case, while the right to fur-
thei specific performance of the contract
for free passage was denied, the court said
(219 U. S. 486) : "Whether, without en-
forcing the contract in suit, the defendants,
in error may, by some form of proceeding
against the railroad company, recover or-
restore the rights they had when the rail-
road collision occurred, is a question not be-
fore us, and we express no opinion on it.''
Judgment affirmed.
[588] CLEVELAND, CINCINNATI, CHI-
CAGO & ST. LOUIS RAILWAY COM-
PANY, Plff. in Err^
V.
EDWARD DETTLEBACH,
(See S. C. Reporter's ed. 588-595.)
Carriers ~ limiting liability — agreed
valne — terminal carrier ~ liability
as warehoaseman.
The liability of a terminal carrier in
an interstate shipment for a loss due to its
negligence while the goods were in its poa-
Non. — On the validity of agreement to
restrict carrier's liability, generally — see
45S
SUPREME COURT OF THE UNITED STATES.
Oct. TnM,
session as warehouseman at the place of
destination must be regarded as controlled
by a limitation to an agreed valuation made
to adjust the rate contained in the uniform
bill of lading issued l^ the initial carrier,
in view of the provisions of the Hepburn
act of June 20, 1006 (34 SUt. at L. 584,
chap. 3501, Comp. Stat. 1013, § 8563), en-
larging the definition of the term "trans-
portation" so as to include all services ren-
dered in connection therewith, and of a
provision of thA bill of lading that "every
service to be performed hereunder" is sub-
ject to all the conditions therein contained.
[For other cases, see Carriers, II. b, 7, b. In
Digest Sup. Ct 1908.1
[No. 220.]
Argued November 20, 1015. Decided Jan-
uary 10, 1016.
IN ERROR to the Court of Appeals for
the Eighth District of the State of Ohio
to review a judgment which affirmed a judg-
ment of the Court of Common Pleas of the
City of Cleveland, in that state, in favor of
a shipper for the market value of a ship-
ment destroyed while in the possession of
the terminal carrier, notwithstanding a limi-
tation of liability in the bill of lading to an
agreed value. Reversed and remanded for
further proceedings.
The facts are stated in the opinion.
Mr. Bdward A. Foote argued the cause,
and, with Mr. Frank L. Littleton, filed a
brief for plaintiff in error:
If a stipulation limiting the time for fil-
ing claims for loss or damage is applicable
to the warehouseman's service (Armstrong
V. Chicago, M. k St. P. R. Co. 53 Minn. 183,
54 N. W. 1050; Hutchinson, Carr. 3d ed.
§ 446), certainly a stipulation as to the
value of articles shipped under a bill of
lading which provides that every service
thereunder shall be performed subject' to its
conditions is applicable to the service of
warehouseman when the contract specifically
provides for that service.
Mr. O. O. Young argued the cause, and,
with Messrs. Jesse A. Fenner and Charles
L. Stocker, filed a brief for defendant in
error:
After freight has reached the destination,
and the consignee has had a reasonable op-
portunity to receive it, the railway company
no longer stands in the relation of carrier
to the goods. It becomes an ordinary bailee
for hire, with the right to charge storage
for whatever time the goods remain in its
possession. This is a distinct service from
the carriage of the goods. The basis of
liability of the company is different, and the
basis of compensation is also different from
that controlling during the transit.
2 Hutchin^n, Carr. § 714.
If provisions increasing the liability of
carriers while goods are in transit are not
to be applied after the transportation
(Welch V. Concord R. Co. 68 K. H. 206,
44 Atl. 304), neither should provisions limit-
ing liability during transit have such ap-
plication.
The rule is that all such limitations are
to be strictly construed agaixist the carriers.
4 Elliott, Contr. § 3221.
And such exemption will not extend be-
yond the express language of the contract.
Amory Mfg. Co. v. Gulf, C. ft S. F. R. Co.
80 Tex. 410, 50 Am. St. Rep. 65, 37 S. W.
856; Nicholas v. New York C. ft H. R. R.
Co. 80 N. Y. 370.
Under the general law, the owner in this
case was entitled to the value of his goods.
E. 0. Standard Mill. Co. v. White Line
Central Transit Co. 122 Mo. 258, 26 S. W.
704; Union P. R. Co. v. Moyer, 40 Kan.
184, 10 Am. St. Rep. 183, 10 Pac. 630 ; Rice
V. Hart, 118 Mass. 201, 10 Am. Rep. 433:
Gleadell v. Thomson, 56 N. Y. 104; Tar-
bell V. Royal Exch. Shipping Co. 110 N. Y.
170, 6 Am. St Rep. 350, 17 N. E. 721:
Wheeler v. Oceanic Steam Nav. Co. 125 N.
! Y. 161, 21 Am. St. Rep. 720, 26 N. E. 248 :
j Wiegand v. Central R. Co. 75 Fed. 370, af-
notes to Deming v. Merchants' Cotton-Press
ft Storage Co. 13 L.RJL. 518; Missouri P.
R Co. V. Ivey, 1 L.R.A. 500; Hartwell v.
Northern P. Exp. Co. 3 L.R.A. 342; Rich-
mond ft D. R. Go. V. Payne, 6 L.R.A. 840;
Adams Exp. Co. v. Harris, 7 L.R.A. 214;
Duntl^ V. Boston ft M. R. Co. 0 L.RJk..
452; Gulf, C. ft S. F. R. Co. v. Gatewood,
10 L.Rji. 410; Pacific Exp. Co. v. Foley,
12 L.R.A. 700; Ballou v. Earle, 14 L.R.A.
433; Little Rock ft Ft. 6. R. Co. v. Cravens,
18 L.RJL. 527; Everett v. Norfolk ft S. R.
Go. 1 L.Rji.(N.S.) 085; New Jersey Steam
Nav. Co. T. Merchants' Bank, 12 L. ed. U.
S. 465; and Chicago, M. ft St. P. R. Co.
T. Solan, 42 L. ed. U. S. 688.
At to validity of stipulation limiting car-
rier's liability to agreed valuation, as af-
fected by the Hepburn act — see note to Ber-
454
nard v. Adams Exp. Co. 28 L.R.A.(N.S.)
203.
On the construction of the Hepburn act,
generally — see note to Galveston, H. ft 8.
A. R. Co. V. Wallace, 56 L. ed. U. S. 516.
As to carrier's power to limit amount of
liability in case of negligence, generally
—see note to Ballou v. Earle, 14 L.&A. 433.
On the right of a carrier to terminate its
responsibili^ as warehouseman — see note
to Branson v. Atlantic Coast Line R. Co.
0 LJl.A.(N.S.) 577.
On the Carmack amendment as affectin|^
state regulations as to stipulations limiting
liability of common carrier for loss or dam-
age to goods — see notes to Adams Exp. Co.
V. Croninger, 44 L.Rji.(N.S.) 257, and
Louisville ft N. R. Co. v. Miller, 50 L.R.A.
(N.S.) 810.
SS9 U. S.
1U13.
CLEVELAND, C. C. ft ST. L. R. 00. t. DETTLBBACH.
680,690
finned in 25 C. C. A. 681, 89 U. 8. App.
763, 79 Fed. 991.
Congress* has not yet legislated upon the
flobject of the liability of a warehouseman in
inch a case as this; and until it does, state
kws will control.
Missouri, K. A T. R. Co. t. Harris, 234
U. S. 412, 58 L. ed. 1377, L.R.A.1916E, 942,
34 Sup. Ct. Rep. 790; Adams Exp. Co. t.
Croninger, 226 U. S. 491, 67 L. ed. 314,
44 L.RJi.(N.8.) 267, 33 Sup. Ct. Rep. 148.
Messrs. C. C. Young and Jesse A. Fenner
also filed a separate brief for defendant in
error:
Courts generally are reluctant to permit
common carriers to relieve themselves by
contract from the ordinary consequences of
their own negligence.
Bermel v. New York, N. H. A H. R. Co.
62 App. Div. 389, 70 N. Y. Supp. 804, af-
firmed in 172 N. Y. 639, 66 N. E. 1113;
1 Moore, Carr. p. 498; Rosenthal t. Weir,
170 N. Y. 148, 67 L.R.A. 527, 63 N. E. 65.
Gross negligence of the plaintifiT in error
as warehouseman afiTords another reason
why it should not avail itself of the stipula-
tion as to the value in order to reduce its
damages. It was not in the contemplation
of the shipper when this clause was inserted
that any representative of the carrier would
be guilty of such conduct. Failure to de-
liver property without lawful excuse is the
same as a conversion of it.
Vanderbilt v. Ocean S. S. Co. 132 C. C. A.
226, 215 Fed. 886.
And loss of goods hy a wrong delivery,
made negligently by the carrier, is a con-
version for which the carrier is liable to ac-
count for the full value of the goods, this
kind of loss not being within the terms of
the special contract fixing a conventional
value upon the goods at the time of ship-
ment, in consideration of the rate of freight
being reduced.
Savannah, F. & W. R. Co. v. Sloat, 93
Ga. 803, 20 S. £. 219.
And it is well established that, in a suit
for conversion, the wrongdoer cilnnot take
advantage of an agreed valuation of the
property in order to limit the amount of the
lUbility.
Georgia S. k F. R. Co. v. Johnson, 121
Ga. 231, 48 S. E. 807. See also Georgia,
F. & A. R. Co. V. Blish Mill^Co. 15 Ga.
App. 142, 82 S. E. 784; St. Louis, I. M. ft
8. R. Co. V. Wallace, — Tex. Civ. App. — ,
176 S. W. 764 ; Shelton v. Canadian North-
«m R. Co. 189 Fed. 163.
And where ths bill of lading provided that
the carrier should not be liable for loss by
fire, and there was unreasonable delay on
the part of the connecting carrier in for-
warding the goodSy and the same were de-
«• L. ed.
strc^yed by fire while in the transfer ware-
house, the carrier was held liable for the
loss.
Erie R. Co. v. Star ft C. MilL Co. 89
C. a A. 669, 162 Fed. 879.
[580] Mr. Justice Pitney delivered the
opinion of the court:
The court whose judgment we have here
under review sustained a judgment rendered
by an inferior state court in favor of Dettle-
bach and against the railway company for
the market value of certain goods which,
having been shipped in interstate commerce,
were lost through the negligence of the rail-
way eompany (the terminal carrier) while
in its possession as warehouseman at the
place of destination; overruling the conten-
tion that, because of a limitation of liability
agreed upon by plaintiflT's agent in consid-
eration of a reduced rate of freight, and con-
tained in the bill of lading that was issued
by the. initial carrier, and by force of the
provisions of the interstate commerce act
and its amendments, especially the Hepburn
act of 1906 [34 Stat at L. 584, chap. 3691,
Comp. Stat. 1913, § 8563], the recovery
ought to be limited in accordance with the
stipulation. This question, it may be ob-
served, as afiTecting the warehouseman's re-
sponsibility, was not passed upon in Bos-
ton ft M. R. Co. V. Hooker, 233 U. S. 97.
109, 58 L. ed. 868, 874, L.R.A.1915B, 450,
Ann. Cas. 1916D, 593.
llie facts are as follows: Dettlebach, the
plaintifiT, on September 18, 1911, shipped
certain packages of merchandise, described
as household goods, over the Chicago, Bur-
lington, ft Quincy Railway and connecting
lines from Denver, Colorado, consigned to
his wife at Cleveland, Ohio. They were re-
ceived for transportation under the terms
of a bill of lading, prepared in the form ap-
proved and recommended by the Interstate
Commerce Commission in its report of June
27, 1908 (14 Inters. Com. Rep. 346, 352:
22 Ann. Rep. I. C. C. 1908, p. 57), which
contained the following provision:
"It is mutually agreed, as to each car-
rier of all or any of said property over all
or any portion of said route to destination,
and as to each party at any time interested
in all or any of said property, that every
eervioe to he performed [600] hereunder
shall be subject to all the conditions, wheth-
er printed or written, herein contained (in-
cluding conditions on back hereof), and
which are agreed to by the shipper and ac-
cepted for himself and his assigns."
Among the oonditions printed upon the
back were the following:
"See. 3. . . . The amount of any loss
or damage for which any carrier is liable
shall be computed on the basis of the value
455
69(M(02
SUPBEMB OOURT OF THB UNITED 8XATBS.
Oct. Tbbm.
of the property ... at the place and
time of shipment under this bill of lading,
unless a lower value has been represented in
writing by the shipper or has been agreed
upon or is determined by the elassiftcation
or tariffs upon which the rate is based, in
any of which events such lower value shall
be the maximum amount to govern such
computation, whether or not such loss or
damage occurs from negligence. . . ."
"Sec 5. Property not removed by the par-
ty entitled to receive it within forty-eight
hours (exclusive of legal holidays) after no-
tice of its arrival has been duly sent or giv-
en may be kept in car, depol^ or place of
delivery of the carrier, or warehouse, sub-
ject to a reasonable charge for storage and
to carrier's responsibility as warehouseman
only. . . ."
Upon the face of the bill of lading was
the following declaration signed by plain-
tiff's agent: "I hereby declare the valuation
of the property shipped imder this bill of
lading does not exceed $10 per cwt."
The court found as a fact that the ship-
per, by consenting to the limitation, received
a consideration in the shape of a substantial
reduction in the freight rate, and that this
supported the agreement to limit the com-
pany's liability. No question was made
but that the agreement was in accordance
with the filed tariff.
The goods thus shipped were transported
by the initial carrier to the junction be-
tween its line and that of defendant, [601]
and transported by the latter company to
destination, where they arrived on Septem-
ber 27. They were not called for by the
consignee, and remained in defendant's pos-
session as warehouseman until November 1,
1011, when, through its negligence, certain
of the goods, of the market value of
$2,792, were lost.
This action having been brought to re-
cover the value of the goods lost, and the
claim of Federal right already mentioned
having been made and overruled, a verdict
and judgment went against defendant for
the market value of the goods, and this
was affirmed by the court of appeals, eighth
district, state of Ohio. The supreme court
of the state declined to review the judg-
ment. The case comes here under 9 237,
Judicial Code [36 Stat, at L. 1156, chap.
231, Comp. Stat. 1913, § 1214].
It is no longer open to question that if
the loss had occurred in the course of
transportation upon defendant's line, the
limitation of liability agreed upon with
the initial carrier, as this was, for the pur-
pose of securing the lower of two rates of
freight, would have been binding upon
plaintiff, in vlsiw of the Carmaek amend-
45t
ment. Adams Exp. Co. v. Croninger, 22t
V. S. 491, 509, 57 L. ed. 314, 321, 44 UR^
(N.S.) 257, 33 Sup. Ct. Rep. l^iS; Kansas
City Southern R. Co. v. Carl, 227 U. S. 639»
648, 654, 57 L. ed. 683, 686, 689, 33 Sup.
Ct. Rep. 391; Missouri, K. A T. R. Co. v.
Harriman, 227 U. S. 657, 668, 57 L. ed. 690^
696, 33 Sup. Ct. Rep. 397. The question i*
whether the limitation of liability may be
deemed to have spent its force upon the
completion of the carrier's service as such,
or must be held to control, also, during the
ensuing relation of warehouseman. The
court of appeals, recognizing the question
as one of difficulty, reasoned thus:
"To occupy this twofold relation is of ad-
vantage to the company. As soon as the
company can occupy it by replacing with it
its former relation as a common carrier, it
obtains the benefit of the rule of ordinary
care instead of the higher degree of vigi-
lance which the law charges upon carriers
for hire. And the company is further ad-
vantaged by an early shifting of its status
as carrier to that of Wrehouseman,
through its right in the latter capacity ta
[502] charge for the storage of consigned
goods, from the time when its relation to
them as carrier ceases."
The court considered that the declaration
of value stamped upon the bill of lading,
and signed by plaintiff's agent, carried no
suggestion that it should inure to the ad-
vantage of a warehouseman after becoming
inert for the relief of the carrier, and that
the custody and protection of the goods a*
warehouseman is a distinct service from
that of their transportation, and for it ad-
ditional compensation may be charged;
proceeding as follows: "The additional
compensation is not at all diminished in
this case because of the agreement of
limitation of liability. The reduction
in the rate of carriage which can be used
as a consideration to support that agree*
ment is no consideration for a like limita-
tion of the liability as warehouseman,
because there is no reduction in ware-
housing charges provided or stipulated for
in the transaction. It is not easy to sea
why the consideration — ^not a large one-^
which is permitted to support the agree-
ment to a limited liability on the part of
the carrier should do double duty by serv-
ing also to uphold a like limitation of th#
liability of a warehouseman, — the latter not
agreeing to abate any part of proper storage
charges. To so extend the contract of re-
lease would give an advantage to the ware-
houseman, but none to the owner. To allow
that consideration would be to permit the
carrier to cast off his obligation as car-
rier and take up a lighter burden, while he
denies to the shipper all right to share in
SS9 V. 8*
1915.
CLEVELAND, C. C. & ST. L. R. (X). ▼. DETTLEBAGH.
592-995
the benefit fd the changed relation. The
rate which the warehouseman may charge
for storage remains unaffected by the re-
lease of liability as a carrier. The ware-
houseman could collect the reasonable value
of his service whether the limitation of
the carrier's liability was or was not stipu-
lated. He could not be compelled to take
less because of the stipulation. He could
collect no more if the stipulation had not
been made."
We recognise the cogency of the reason-
ing from the [603] standpoint of the com-
mon-law responsibility of a railway company
as carrier and as warehouseman. But we
have to deal with the effect of an express
contract, made for the purpose of inter*
state transportation, and this must be de-
termined in the light of the act of Congress
regulating the matter. The question is
Federal in its nature. Missouri, K. ft T.
R. Co. V. Harriman, 227 U. S. 657, 672, 57
L. ed. 690, 698, 33 Sup. Ct. Rep. 397; Atchi-
son, T. ft S. F. R. Co. V. Robinson, 233 U.
8. 173, 180, 58 L. ed. 901, 905, 34 Sup. Ct.
Rep. 556.
The provision that we have quoted from
the contract is to the effect that "every
service to be performed thereunder" is
subject to the conditions contained in it.
One of these conditions is, in substance,
that where a valuation has been agreed
upon between the shipper and the carrier,
such 'value shall be the maximum amount
for which any carrier may be held liable,
whether or not the loss or damage occurs
from negligence. And that this, as a mere
matter of construction, applies to the re-
lation of warehouseman as well as to the
strict relation <^ carrier, is manifest from
the further provision that property not re-
moved within forty-eight hours after notice
of arrival may be Icept "subject to a reason-
able cuarge for storage and to carrier's re-
sponsibility as warehouseman only." Thus,
"any loss or damage for wliich any carrier
is liable" includes not merely the responsi-
bility of carrier, strictly so called, but
"carrier's responsibility as warehouseman"
also.
And this is quite in line with the letter
and policy of the commerce act, and espe-
cially of the amendment of June 29, 1906,
known as the Hepburn act (34 Stat, at L.
584, chap. 3591, Comp. Stat. 1913, § 8563),
which enlarged the definition of the tern
"transportation" (this, under the original
act, included merely "all instruments of
shipment or carriage") so as to include
"cars and other v^lcles and all instru-
mentalities and faoilitiea of shipment or
csrriage, irrespective of ownership or of
any contract^ express or implied, for the
M L. ed.
Qse thereof ofid ott 9mvioe9 im oonneciion
with the receipt, delivery, [604] elevation,
and transfer in transit, ventilation, refrig-
eration or icing, ttoroye, and handling op
property transported; and it shaU be the
duty of every carrier subject to the pro-
visions of this act to provide and furnish
9uch tro/neportation upon reasonable request
therefor, and to establish through routes
and just and reasonable rates applicable
thereto. All charges made for any eervice
rendered or to he rendered tn the trane-
portation of passengers or property ae
aforeeaid, or m oonfieo^um therewith, shall
be just and reasonable; and every unjust
and unreasonable charge for each eervioee or
any pari thereof is prohibited and declared
to be unlawful."
From this and other provisions of the
Hepburn act it is evident that Congress
recognized that the duty of carriers to the
public included the performance of a
variety of services that, according to the
theory of the common law, were separable
from the carrier's service as carrier, and, in
order to prevent overcharges and discrimi-
nations frcmi being made under the pretext
of performing such additional services, it
enacted that, so far as interstate carriers by
rail were concerned, the entire body of
such services should be included togetlier
under the single term "transportation,"
and subjected to the provisions of the act
respecting reas<mable rotes and the like.
The recommendation of the Interstate
Commerce Commission for the adoption of
the uniform bill of lading was of course
made in view of this legislation, and while
not intended to be and not in law binding
upon the carriers, it is entitled to somu
weight. It recognizes — whether correctly
or not is a question not now presented —
the ti^t of the carrier to make a charge,
the amount of which has not been definitely
fixed in advance, for storage as warehouse-
man in addition to the charge for trans-
portation; but at the same time it recog-
nizes that a valuation lower than the actual
value may be agreed upon between the ship-
per and the carrier, or determined by the
classification [606] or tariffs upon which
the rate is based; and ii is a necessary corol-
lary that what should be a reasonable charge
for storage would be determined in the light
of all the circumstances, including the
valuation placed upon the goods.
We conclude that, under the provisions of
the Hepburn act and the terms of the bill
of lading, the valuation placed upon the
property here in question must be held to
apply to defendant's responsibility as ware-
houseman.
Judgment reversed, and the eanse re-
457
696
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm»
manded for further proceedings not Incon-
sistent with this opinion.
Mr. Justice Holmes took no part in the
consideration or decision of this case.
SEABOARD AIR LINE RAILWAY, Plff. in
Err.,
V.
JAMES T. HORTON.
(See S. C. Reporter's ed. 696-602.)
Master and servant — assoniptlon of
risk ' promise to repair — inuninent
danger.
1. The danger of the explosion of the
tube in a water gauge on a locomotiTe boil-
er, which normally should withstand the
prtesure to which it is subjected, cannot be
said, as a matter of law, to be so imminent
as to import an assumption by an experi-
enced engineer of the risk of injury arising
from the absence of any guard glass after
he had reported the defect and was given
a promise to repair.
[For other cases, see Master and Senrant, II.
b. 4, In Digest Sup. Ct. 1908.]
Master and servant — oontribntory neg-
ligence ' eon tinning in employment
after promise to repair defect.
2. An experienced railway engineer in-
jured through the explosion of a tube in a
water gauge on a •locomotive boiler cannot
be said as a matter of law to be chargeable
with contributory negligence because he con-
tinued .to run his engine with knowledge
that there was no guard glass for such tube
after he had reported the defect and was
?iven a promise to repair.
For other cases, see Master and Servant, II.
c. S, In Digest Sup. Ct. 1908.]
Proximate cause — personal injury —
explosion of water gauge.
8. A railway engineer's conduct in us-
ing a water gauge without a guard glass
when he could have cut the gauge off and
used the gauge cocks instead cannot be said
to have l^en the proximate cause of an in-
jury resultinff from the bursting of the
water tube, where there is evidence to show
that the gauge cocks themselves are not a
safe instrumentality because of their lia-
bility to become clogged.
[For other cases, see Proximate Cause, in
Digest Sup. Ct 1906.]
[No. 541.]
Argued November 80 and December 1, 1915.
Decided January 10, 1916.
IN ERROR to the Supreme Court of the
State of North Carolina to review a
judgment which, on a third appeal, affirmed
a judgment of the Superior Court of Wake
County, in that state, in favor of plaintiif
in an action brought under the Federal em-
ployers' liability act. Affirmed.
See same case below on first appeal, 157
N. C. 146, 72 S. £. 958; on second appeal,
162 N. C. 424, 78 S. E. 494; on third ap-
peal, 169 N. C. 108, 85 S. E. 218.
The facts are stated in the opinion.
Mr. Murray Allen argued the cause and
filed a brief for plaintiff in error:
The sufficiency of evidence to establiah a
cause of action or a defense tjider the Fed-
eral employers', liability act is to be de-
termined according to the rule of the Fed-
eral courts, and not according to the practice
of the state courts.
St. Louis, 1. M. & S. R. Co. v. McWhirter,
220 U. S. 265, 57 L. ed. 1179, 38 Sup. Ct.
Rep. 858; Central Vermont R. Co. v. White,
238 U. S. 507, 59 L. ed. 1438, 35 Sup. Ct
Rep. 865, 9 N. C. C. A. 265.
It is the duty of the trial judge to with-
draw a case from the jury where the evi-
dence is undisputed, or is so conclusive that
the court, in the exercise of its discretion,
must set aside a verdict returned in oppo-
sition to it.
Randall v. Baltimore A O. R. Co. 109 U.
S. 478, 27 L. ed. 1003, 3 Sup. Ct Rep. 322;
Delaware, L. & W. R. Co. v. Converse, 139
U. S. 469, 35 L. ed. 213, 11 Sup. Ct. Rep.
569; Slocum v. New York L. Ins. Co. 228
U. S. 364, 57 L. ed. 879, 33 Sup. Ct. Rep.
523, Ann. Cas. 1914D, 1029.
This rul6 has been applied by this court
in an action involving the defense of as-
sumption of risk, where it appeared from
all of the evidence that plaintiff assumed
the risk.
Butler V. Frazee, 211 U. S. 459, 53 L. ed,
281, 29 Sup. Ct Rep. 136.
It would be an idle proceeding to submit
the evidence to the jury when they could
justly find only one way.
North Pennsylvania R. Co. v. Commercial
Nat. Bank, 123 U. S. 727, 733, 31 U ed.
287, 288, 8 Sup. Ct. Rep. 266.
NoTB. — On the rights of a servant who
continues work upon the faith of his mas-
ter's promise to remove a specific cause of
danger — see note to Illinois Steel Co. v.
Mann, 40 L.RJi. 781.
On the effect of promise to repair, where
danger is great and imminent — «ee note to
Comer v. Sfeyer, 20 L.R.A.(N.S.) 597.
On the constitutionalilT, application, and
effect of the Federal employers' liabili^ act
4i^3
— see notes to Lamphere v. Oregon R. h
Nav. Co. 47 L.RA..(N.S.) 38, and Seaboard
Air Line R. Co. v. Horton, L.R.A.1016O,
47.
As to master's duty to furnish suitable
and safe machinery and applianoee, and lia*
bility to servant for their being insufficient
or out of repair — see note to Kichmond h
D. R. Co. V. EUiott, 37 L. ed. U. S. 728.
%%% U. 8.
J915.
SEABOARD A. L. R. GO. t. HORTON.
Upon all the evidence in tbis caae, plain-
tiff assumed the risk of injury from the
defective water glass as matter of law.
Seaboard Air Line H. Co. t. Horton, 233
U. S. 492, 68 L, ed. 1062, LJUi.l916C, 1,
34 Sup. Ct. Rep. 635, 8 N. C. C. A. 834,
Ann. Gas. 1915B, 475; District of Ck>lumbia
V. McElligott, 117 U. S. 621, 29 L. ed. 946,
6 Sup. Ct. Rep. 884; Roccia v. Black Dia-
mond Coal Min. Co. 57 C. C. A. 567, 121
Fed. 451; Indianapolis ft St. L. R. Co. v.
Watson, 114 Ind. 20, 5 Am. St. Rep. 578,
14 N. B. 721, 15 K. £. 824; Attleton t.
Bibb Mfg. Co. 5 Ga. App. 779, 63 S. E. 918;
Alteriac t. West Pratt Coal Co. 161 Ala.
435, 49 So. 867; Erdman ▼. Illinois Steel
Co. 95 Wis. 6, 60 Am. St. Rep. 66, 69 K.
W. 993; McAndrews ▼. Montana Union R.
Co. 15 Mont. 290, 39 Pac. 85; Albrechi t.
Oiicago k N. W. R. Co. 108 Wis. 530, 53
L.RJL 653, 84 K. W. 882; St. Louis, A. k
T. R. Co. V. Kelton, 55 Ark. 483, 18 S. W.
933; Western Coal k Min. Co. v. Gamer, 87
Ark. 190, 22 LJtJL(N.S.) 1183, 112 S. W.
392; Levesque ▼. Janscm, 165 Mass. 16,
42 K. E. 335; Musser-Sauntry Land, Log-
ging A Mfg. Co. T. Brown, 61 C. G. A. 207,
126 Fed. 141; Holmes, Common Law, p.
124; Dowd T. Erie R. Co. 70 N. J. L. 451,
57 Atl. 248, 16 Am. Neg. Rep. 122; Hough
V. Texas ft P. R. Go. 100 U. S. 213, 25 L.
ed. 612.
When the undisputed evidence leads to
but one conclusion, assumption of risk is a
question of law.
26 Cyc. 1479; Southern P. Go. t. Seley,
152 U. S. 145, 38 L. ed. 391, 14 Sup. Ct.
Rep. 530; Butler v. Frames, 211 U. S. 469,
53 L. ed. 281, 29 Sup. Ct Rep. 136; Kyner
V. Portland Gold Min. Co. 106 G. G. A. 245,
184 Fed. 46; St. Louis ft S. F. R. Go. t.
&iowden, — Okla. — , 149 Pac. 1083.
Should it be conceded that the fireman
submitted to the same i-isk as the engineer,
Horton, this would neither show nor tend to
show that the danger was of such character
thai a man of ordinary prudence would con-
tinue to work in its presence in reliance on
the promise to repair.
Lindsay t. HoUerbaeh ft M. C<mtract Go.
29 Ky. L. Rep. 68, 4 L.RJ^.(N.S.) 830, 92
S. W. 294; Baltimore ft P. R. Co. t. Jones,
95 U. S. 439, 24 L. ed. 506, 7 Am. Neg. Gas.
840; Smith T. Beaudry, 175 Mass. 286, 50
N. E. 596.
The promise to repair must be the indu-
cing motive for remaining in the employ-
ment.
Lahatt, Mast ft S. p. 1184.
The burden of proof in actions under the
Federal employers' liability act is a matter
of substance in which the state courts can-
not follow their own practice and fix their
own rules.
Central Vermont R. Co. t. Whit^ 238 U.
•0 li. ed.
S. 507, 59 L. ed. 1433, 35 Sup. Ct Rep.
865, 9 N. G. G. A. 265.
The existence of the defect and the ap-
preciation of the danger incident thereto
being established by plaintiff's evidence, the
burden was on plaintiff to satisfy the jury
by a pr^Kmderance of evidence that he re-
ported the defect and was giyen a promise of
repair.
Malm T. Thelin, 47 K^. 686, 66 K. W.
650.
The court should haye instructed the jury
that plaintiff was guilty of contributory neg-
ligence as a matter of law.
Elliott T. Chicago, M. ft St P. R. Co.
150 U. S. 245, 37 L. ed. 1068, 14 Sup. Ct.
Rep. 85; Aerkfetz v. Humphreys* 145 U. S.
418, 36 L. ed. 758, 12 Sup. Ct. Rep. 835;
Schofield V. Chicago, M. ft St P. R. Co. 114
U. S. 615, 29 L. ed. 224, 5 Sup. Ct. Rep.
1125; Chicago, R. I. ft P; R. Co. t. Hous-
ton, 95 U. S. 697, 24 L. ed. 542, 7 Am. Neg.
Gas. 345; McCarthy t. Washburn, 42 App.
Div. 252, 58 N. Y. Supp. 1125; Hannigan v.
Smith, 28 App. Div. 176, 50 N. T. Supp.
845; 3 Labatt, Mast, ft S. p. 3275.
There has been no negligence on the part
of the defendant
Texas ft P. R. Go. t. Barrett, 166 U. S.
617, 41 L. ed. 1136, 17 Sup. Ct. Rep. 707,
1 Am. Keg. Rq>. 745; Patton t. Texas ft
P. R. Co. 179 U. S. 658, 45 L. ed. 361, 21
Sup. Ct. Rep. 275; Washington ft G. R. Go.
V. McDade, 135 U. S. 654, 570, 34 L. ed.
235, 241, 10 Sup. Ct. Rep. 1044.
Horton's injury resulted from his own dis-
obedience of the defendant's rules, and he
has failed to establish any negligent omis-
sion of duty on the part of the defendant.
Holland v. Seaboard Air Line R. Co. 143
N. G. 435, 55 a E. 835 ; Whitson t. Wrenn,
134 N. G. 86, 46 S. E. 17 ; Stewart t. Van
Deventer Carpet Co. 138 K. G. 60, 50 S. E.
562.
In an action for personal injuries, while
defendant has the burden of proof of con-
tributory n^ligence^ plaintiff must estab-
lish grounds of defendant's liability; and to
hold the master responsible, the servant
must show by substantial proof that appli-
ances furnished were defective, and must
show knowledge of the defect, or some omis-
sion in regard thereto.
Looney t. Metropolitan R. Go. 200 U. S.
480, 50 L. ed. 564, 26 Sup. Gt Rep. 803,
19 Am. N^. Rep. 627.
The master must be fixed with notice of
a defect in his appliances to create liability
in favor of an employee who, with knowl-
edge of the defect, has been injured thereby.
Hudson V. Charleston, G. ft G. R. Co. 104
K. G. 499, 10 S. E. 669; Blevins t. Erwin
Cotton Mills, 150 K. G. 493, 64 S. B. 428;
LabaU, Mast ft 8. §§ 119 et seq.
696,697
SUPREME COURT OF THE UNITED STATES.
Oct. Tebic,
Evidence which Bhows that the aorvant
had knowledge of the defect and appreciated
the risk, and that this appreciation was
attended hy circumstances which make a
proper case for the application of the max-
im, "Volenti non fit injuria/' establishes
that the master has been guilty of no breach
of duty in exposing the servant to the risk.
The application of the maxim, in a proper
case, makes necessary a negative response
to the issue of negligence.
Thomas ▼. Quartermaine, L. R. 18 Q. B.
Div. 695, 66 L. J. Q. B. N. S. 340, 67 L. T.
N. S. 637, 35 Wee^Rep. 655, 61 J. P. 616;
Smith ▼. Baker [1891] A. C. 326, 60 L. J.
Q. B. N. S. 683, 66 L. T. N. S. 467, 40 Week.
Rep. 392, 66 J. P. 660; Katalla Go. ▼.
Rones, 108 C. C. A. 132, 186 Fed. 30; Wor-
den T. Gore-Meenan Co. 88 Conn. 642, 78
Atl. 422; St. Louis Cordage Co. t. Miller,
63 L.RJ^. 661, 61 C. C. A. 477, 126 Fed.
496, 16 Am. N^. Rep. 476; Thomp. Keg.
§ 412; Membery ▼. Great Western R. Co.
L. R. 14 App. Cas. 187, 68 U J. Q. B. N. S.
663, 61 L. T. N. 6. 666, 38 Week. Rep. 145,
54 J. P. 244.
Plaintiff's use of a defective glass, when
there was available a safe way to operate
the engine, was the proximate cause of his
injury.
White, Personal Injuries on Railroads,
§ 685; Covington v. Smith Furniture Co.
138 N. C. 374, 60 S. E. 761; Dermid v.
Southern R. Co. 148 N. C. 183, 61 S. E.
667; H. D. Williams Cooperage Co. v.
Headrick, 86 C. C. A. 648, 169 Fed. 683.
The master discharges his duty by exer-
cising due care in respect to providing a
reasonably safe place to work.
Hough V. Texas k P. R. Co. 100 U. S.
218, 26 L. ed. 616; Washington k G. R.
Co. V. McDade, 136 U. S. 570, 34 L. ed.
241, 10 Sup. Ct. Rep. 1044; Choctaw, 0. k
G. R. Co. V. McDade, 191 U. S. 64, 48
L. ed. 96, 24 Sup. Ct. Rep. 24, 16 Am. Keg.
Rep. 230; Gardner v. Michigan C. R. Co.
160 U. a 369, 37 L. ed. 1110, 14 Sup. Ct.
Rep. 140; Baltimore k 0. R. Co. v. Baugh,
149 U. S. 368, 37 U ed. 772, 18 Sup. Ct.
Rep. 914; Powell v. American Sheet k Tin
Plate Co. 216 Pa. 618, 66 Atl. 1113; Kyner
V. Portland Gold Min. Co. 106 C. C. A. 246,
184 Fed. 43.
An erroneous instruction on the issue of
damages, in an action based upon the Fed-
eral employers' liability act, is sufficient to
sustain a reversal.
Korfolk k W. R. Co. v. Holbrook, 286 U.
8. 626, 69 L. ed. 392, 36 Sup. Ct. Rep. 143,
7 K. C. C. A. 814 ; Kansas City Southern R.
Co. V. Leslie, 238 U. 8. 699, 69 L. ed. 1478,
86 Sup. Ct Rep. 844.
A servant must either aver his want of
knowledge of the defect which caused the
4«0
injury, or that, having such knowledge, he
informed the master and continued in the
employment upon a promise, express or im-
plied, to remedy the defect.
Chicago k 0. Coal k Car Co. v. Korman,
49 Ohio St. 698, 32 K. E. 867; Griffiths v.
London ft St K. Docks Co. L. R. 13 Q. B.
Div. 269, 63 L. J. Q. B. K. S. 604, 61 L. T.
K. S. 633, 33 Week. Rep. 36, 49 J. P. 100.
Evidence tending to show that defective
machinery was used under a promise by the
master to remove the defect was inadmis-
sible where such promise had not been plead-
ed.
Malm T. Thelin, 47 Keb. 686, 66 K. W.
660.
Mr. Clyde A. Douglass argued the
cause, and, with Mr. William C. Douglass,
filed a brief for defendant in error.
Mr. Justice Pitney delivered the opinion
of the court :
This action, based upon the Federal em-
ployers' liability act (36 Stat at L. 65,
chap. 149, 36 Stat, at L. 291, chap. 143,
Comp. Stat 1913, S 8662), was under con-
sideration on a former occasion, when a
judgment in favor of defendant in error was
reversed and the cause remanded for further
proceedings. 233 U. S. 492, 68 L. ed. 1062,
L.R.A.1916C, 1, 34 Sup. Ct. Rep. 635, Ann.
Cas. 1915B, 476, 8 K. C. C. A. 834. There
was a new trial, end the resulting judg-
ment in favor [697] of Horton, the em-
ployee, having been affirmed by the supreme
court of Korth Carolina (169 K. C. 108, 86
S. E. 218), the case is brought here again,
with numerous assignments of error, of
which, however, only a few need be noticed.
Plaintiff was injured while in the employ
of defendant in interstate commerce. He
was an experienced locomotive engineer,
and was so employed when injured. His
engine was equipped with a Buckner water
gauge, a device attached to the boiler head
for the purpose of showing the level of the
water in the boiler, and consisting of a
brass frame inclosing a glass tube 12 or 14
inches long, and i inch in diameter, the
glass being about | inch thick. The tube
was placed vertically, and was connected
with the boiler above and below, so tiiat it
received water and steam direct from the
boiler and under a pressure of 200 pounds.
In order to protect the engineer and fireman
from injury in ease of the bursting of the
ttibe, a thick piece of plain glass, known
as a guard glass, should have been in posi-
tion in slotA arranged for the purpose in
front of the water tube. Plaintiff took
charge of the engine in question on July
27 or 28, 1910, and noticed at that time that
the guard glass was missing. He reported
SS9 U. 8.
1015.
SBABOARD A. L. R. CO. t. HORTON.
697-600
Uiii to a roundlunue f oreiiuuii« to whom luch
feport should properlj bt made, and asked
lor a now guard glass. The foreman replied
that ha had none in stock, but would send
for ono^ and that plaintiff in the meantime
should run the engine without one. He did
so for about a week, and until August 4tli,
when the water tubs exploded, and the fly-
ing glass struck him in the face, causing
the injuriea up<m which the action was
grounded.
The pi'iucipal insistence of defendant
(plaintiff in error) is that, upon all the
eridence, plaintiff, as a matter of law, as-
sumed the risk of injurj arising fr<«n the
absence of the guard glass. The rule
applicable to the situation was expressed
bj this court upon the former reriew of the
eas^ in the following terms (233 U. 8.
M4) : ''Whai the [698] employee does know
of the defect [arising from the employer's
negligence], and appreciates the risk that
ia attributable to it, then if he continues
in the employment, without objection, or
without obtaining from the employer or his
representative an assurance that the de-
feet will be remedied, the employee assumes
the risk, even though it arise out of the
master's breach of duty. If, however, there
be a promise of reparation, then during
such time as may be reasonably required
for its performance, or until the particular
time specified for its performance, the em-
ployee, relying upon the promise, does not
assume the risk unless at least the danger
be so imminent that no ordinarily prudent
man under the circumstances would rely
upon such promise."
By motions for nonsuit and for dismissal
of t^e action, and by various requests for
instructions to the jury, all of which were
refused, defendant raised tlie point that al-
though plaintiff reported the absence of the
guard glass to defendant's foreman and
received a promise of repair, yet the danger
waa so imminent that no ordinarily pru-
dent man under the circumstances would
have relied upon the promise, and hence
plaintiff, as matter of law, assumed the risk
•f injury.
But we do not think it can be said as mat-
ter of law that the danger was so im-
minent that no ordinarily prudent man
under the circumstances would continue in
the employment in reliance upon the
promise. It was not the function of
the guard glass to prevent the bursting of
the water tube, but obly to limit the effect
of such an explosion in case it happened to
•ecur. That there was a constant danger
that the tube might explode was abundant-
ly proved, and was admitted by plaintiff.
But the tube waa designed to withstand the
pressure of 200 pounds, and ordinarily did
•0 lu ed.
so. It was its proper function to do so.
One witness said: "They may last a day, a
week, a month, or a year, or it may last
an hour, or shorter." The jury [699]
might reasonably believe that such a water
glass would probably not explode in tiie or-
.dinary use of it unless it was imperfect or
defective in some respect other than the ab-
sence of the guard glass, and that, since
there was no evidence of this, Horton was
justified in assuming that the danger of an
explosion was not inunediately threatening.
There is a substantial difference in the
attitude of the employee towards the known
dangers arising out of defects attributable
to the employer's negligence, depending
upon whether there has or has not been a
promise of repair. It was clearly expressed
is a well-reasoned opinion by the supreme
court of New Jersey (Dowd v. Erie R. Co.
70 N. J. L. 451, 455, 57 AU. 248, 16 Am.
Keg. Rep. 122) thus: "To the rule that the
servant assumes the obvioiu risks of
tlie employment, an exception is made where
the master has promised to amend the defect
or to make the place safe, and the servant
continues the work in reliance upon the
promise. . • . The master is exempted
from liability in the case of obvious risks
for the reason that the servant, by con-
tinuing in the employment with knowledge
of the danger, evinces a willingness to in-
cur the risk, and up<m the principle
Volenti non fit injuria.' But when the
servant shows that he relied upon a promise
made to him to remedy the defect, he n^a-
tives the inference of willingness to incur
the risk."
To relieve the employer from responsi-
bility for injuries that may befall the em-
ployee while remaining at his work in re-
liance upon a promise of reparation, there
must be something more than knowledge by
the employee that danger confronts him, or
that it ia constant. The danger must be
imminent, — immediately threatening, — so as
to render it clearly imprudent for him
to confront it, even in the line of duty,
pending the promise. The danger of the
explosion of the water glass, which normal-
ly should withstand the pressure to which
it was subjected,. [600] but which might
probably explode at some time near or re-
mote, cannot be said, as matter of law, to
have been so imminent as to import an
assumption of the risk by Horton notwith-
standing the employer's promise to replace
the guard glass. It .would require a much
plainer case than this to justify taking the
question from the jury.
It is insisted that the trial court erred
in refusing to instruct the jury tliat plain-
tiff was guilty of contributory negligence
as a matter of law. This, also, ia based
4f-
600-6n 8UPKZMB COURT OF THE UNITED STATES. Oct. Tbbk,
upon th« gnnind of the obrioni mnd immi- placed upon the ground of •sanmption of
nent nature of the duiger to plaintiff ari*- risk or of contributory negligence. 8c«
ing out of the abience of the guard glau. Hough v. Texas k P. R. Co. 100 U. 8. SI3,
But the reasonable reliance of the employee 224, 22S, 25 L. ed. 612, 617, SIS ; Dowd t.
upon the employer's promise to repair the Erie R. Co. 70 N. J. L. 451, 456, 57 AtL
defect ia aa good an answer to the charge !48, IS Am. Neg. Rep. 122; Clarke t.
of contributoiy negligence as to the conten- Holmes, T Hurlit. t N. 037, 045, 31 L. J.
tlon that the risk was assumed. The cm- Eich. N. S. 358, S Jur. N. B. 092, 10 Week,
ployer's direction or request that the Rep, 406. The distinction, which was of
employee remain at work pending per- little consequence when asiumption of risk
lormanee of the promlie has a ma- and contributory negligence led to the sune
terial bearing upon the employee's duty result, becomes important in aotions found-
in the meantime, and therefore upon the ed upon the Federal employers' liability
question of bii negligence, which involves act, which in ordinary cases recognises as-
the notion of tome fauH or breach of iaty iumpticm of risk aa a complete bar to the
cm his part. Beaboard Air Line R. Co. v. action, while contributory negligence mere-
Horton, 233 U. 8. 402, S03, 58 L. ed. 1062, ly mitigates the damages, as was pointed
1060, L.R.A.1010C, 1, 3i Sup. Ct. Eep. 036, out when the case was here befors. 6e*-
Ann. Cas. 1015B, 476, 8 N. C. C. A. S34. board Atr Line B. Co. t. Horton, supra. The
Hence, the question of Horton's contribu- disputable point above referred to was not
tory negligence was at best a matter for then presented for decision. Nor ia it now
the jury to determine. presented, for upon the last trial the court.
All the disputable questions of fact were in the instruction given to the jury, put
submitted to the jury under instructions the plaintiff (upon the bypotheeis of his
that were suffleiently favorable to defend- persisting [BOS] in the face of an imminent
ant. The jury were told, in substance, that danger, where a man of ordinary prudence
if tli«7 found the absence of the guard glass would not} in the position of assuming the
was known to plsintiff, and be reported the risk — a position more favorable to defend-
defect and was given a promise to repair, snt (plaintiff in error] than that of con-
and if he knew and appreciated the danger tributary negligence.
incident thereto, and the danger wsa so It is further argued that Horton's own
obvious that a man of ordinary prudence conduct in using the Buckner gauge with-
would not have continued to use the water oiit the guard glass, when he could have
gauge without the guard glass, then the cut this off and used the gauge cocks, said
plaintiff assumed the risk. This was unduly to be an entirely safe instrumentality, was
favorable to defendant, in that it omitted to unquestionably the proximate cause of liis
state that In order to qualify plaintiff's injury. But there was evidence to show
right to rely upon the 1601] promise of that the gauge cocks themselves were not a
reparation the danger must be imnjlnent as safe instrumenUlity, because of their lU-
well as obvious. But, besides this, we deem bllity to become clogged. Hence, at the
it proper to say. In view of tiie fact that the utmost, there was here no more than a
instruction referred to seems to have been quesUon for the jury,
intended to conform to our opinion de- o^ter poinU are raised, but thoy ai«
Uvered upon the fon«r «r,t of error that .^ u^bstanUal, and require nonpar-
we did not then Intend to decide whether an J ^^^.^ ^ *"*
employee, remammg at work in reliance j^^ ^ ^^^^
upon the employer's promise to repair a de- **
fective appliance, but where the danger
known is so Imminent that no ordinarily .^— ^_
prudent man under the circumstances would
remain at work in reliance upon the NARCI80 BASSO, Appt,
promise, should be held to assume the risk, v.
or, rather, to be guilty of contributory UNITED STATES,
n^ligencs. What we said was that the em-
pIoye^ to ths ^tuation described "doe. not Reporter's ed. 60!t-e08.)
assume the risk uhIch, at leosl, the danger ' *^
be M imminent," etc. While most court*
agree that an employee cannot, without im- CInlma — against tbe Vnlied StatM —
pairing bis right to recover from the em: JnrladlcUon — torts.
li«.«. »».in .* -™i. It. th. »»«.« n* . ^^' cowt of claims has no inrlsdlctioa
ployer. remain at worlt in the presence of a ^^^^ ^^^ .j^^^^^^ ^^ ^, ^^^ J jgg^ („
known danger so imminent that no reason- g^^^ ^^ j^ j^g ^^^ jBjj^ ^, ^ cauM rf
ably prudent man would sonfront it, even action against the United States bnasl
whers the emplt^er has promised repara- i wholly upon the tortious acts of iU agents
tlon, th^ differ as to whether this ia to be ' by whieh the claimant allegaa he waa d^
««# »t u. s.
1015.
BASSO ▼. UNITED STATES.
694-606
nrived of righto under the Federal Contti-
tution.
[For other cases, see CUIns, 126-181, in Dl-
feti Sap. Ct. 1908.]
[No. 142.]
Argned January 6, 1016. Decided January
17, 1916.
APPEAL from the Court of Claims to
review a judgment dismissing, for want
of jurisdiction, a suit against the United
States, based upon the tortious aeto of ito
agents. Affirmed.
See same case below, 49 Ct. CI. 700.
The facto are stoted in the opinion.
Mr. Henry M. Ward argued Hie cause
and iUed a brief for appellant:
The jurisdiction of the court of claims
orer a claim ez delicto, founded upon the
Constitution of the United Stotes, is sup-
ported by the recent decisions of this court.
Dooley t. United Stotes, 182 U. S. 222,
45 L. ed. 1074, 21 Sup. Ct. Rep. 762;
Unitdi Stotes ▼. Lynah, 188 U. S. 445, 47 L.
ed. 539, 23 Sup. Ct. Bep. 849; United
Stotes T. Welch, 217 U. S. 338, 54 L. ed.
787, 28 L.RJ^.(N.S.) 385, 30 Sup. Ct. Rep.
527, 10 Ann. Cas. 680; United Stotes v.
Orixzard, 219 U. S. 180, 55 L. ed. 165, 31
L.RJk.(N.S.) 1135, 31 Sup. Ct Rep. 162;
United Stotes ▼. Emery,' B. T. Realty Co.
237 U. S. 28, 59 L. ed. 825, 35 Sup. Ct.
Rep. 499; Christie-Street Commission Co.
▼. United Stotes, 69 C. C. A. 464, 136 Fed.
826; United Stotes ▼. Finch, 119 C. C. A.
433, 201 Fed. 05, Ann. Cas. 1916A, 319;
United Stotes ▼. Hyams, 76 C. C. A. 523,
146 Fed. 15.
Aasistont Attorney General Thompson
argued the cause and filed a brief for ap-
pellee:
Appellant's allied claim Is predicated
upon an action sounding in tort, and the*
court of claims has, therefore, no juris-
diction of the same.
Schillinger t. United Stotes, 155 U. S.
163-168, 89 L. ed. 108-110, 15 Sup. Ct
Rep. 85.
Mr. Justice McKenna deliyered the opin-
ion of the court:
Appellant is a Spanish subject who re-
sided, at the time his alleged cause of ac-
tion aoemcd and at the time his petition
was filed in the court of claims, in the is-
land of Porto Rico.
Porto Rico was ceded to the United Stotes
by the Treaty of Paris* ratifications of
uti^ were exchanged April 11, 1809 [30
Stot at L. 1754]. The island was ooen-
pled by the miUtary forces of the United
States prior to January !» 1890, and Feb-
•0 li. ed.
ruary 1, 1899, the President of the United
Statesy by order, promulgated the "Amend-
ed Customs Tariff and Regulations for
Porto in Porto Rico," which fixed and pro-
vided for the collection of duties upon all
articles imported into [605] Porto Rico.
And duties were collected thereaf tor in ac-
cordance with such tariff and the amend-
mento thereto made from time to time until
May 1, 1900.
Certain officers of the Army were desig-
nated to act and did act as collectors of
customs under such tariff at the several
porto of entry in Porto Rico, and enforced
such tariff upon merchandise brought into
Porto Rico from the United Stotes and from
foreign countriea
Under authority of general order No. 88.
the general commanding in the island es-
toblished a provisional court of the United
Stotes for the department of Porto Rico.
On or about 'July 13, 1899, by informa-
tion filed by the prosecuting officer of the
provisional court, appellant was charged
before that court with the crime of having
imported from the United Stotes into Porto
Rico certoin merchandise without having
made entry of the same in the customhouse,
and without having paid duty thereon. He
was arraigned, pleaded not guilty, and the
case was set for trial.
At the trial he entored a plea that
§§ 2865 and 3082 of the Revised Stotutefi of
the United Stotos (Comp. Stot 1013,
§§ 5548, 5785) were without force or ef-
fect in Porto Rico, that the latter was part
of the United Stotes, and that there was
no warrant in law for imposing duties on
goods brought from the United Stotes into
the island.
The defenses were not allowed, he was
found guilty, sentenced to imprisonment,
and was imprisoned for twenty-seven days.
He alleged the foregoing facto in his peti-
tion, and that he suffered damages thereby
in the sum of $10,000, $7,500 general and
$2,500 special damages. That he is advised
by counsel that the act for which he was
aocused and condemned did not then con-
stituto a crime; that the said sections of
the Revised Stotutes of the United Stotes
under which the provisional court claimed
authority to act were not in force in Porto
Rico, and the court was [606] wholly with-
out jurisdiction in the premises, and ito sen-
tence was null and void, and that, by rea-
son of such accusation, trial, conviction,
sentence, and imprisonment, he was de-
prived of his liborty without due process
of law in violation of the Constitution of
the United States.
Judgment was prayed lor the sum of
$10,000.
The United Stotes filed a general traverse
606-e08
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbm,
of the petition, but subsequently moved to
dismiss upon the ground that the court had
no jurisdiction to consider it, it presenting
"an action for damages in a case sound-
ing in tort."
The motion was sustained and judgment
entered dismissing the petition for want of
jurisdiction, lliis appeal was then taken.
Appellant concedes that "the cause of
action not merely 'sounds in tort,' but is
based wholly upon the tortious actions of
the agents of thfe United States." He, how-
ever, contends that the court of claims has
jurisdiction under the Tucker act over
claims ex delicto founded upon the Con-
stitution of the United States. And this,
he further con tends, is supported by the
recent decisions of tliis court, and relies es-
pecially upon Dooley v. United States, 182
U. S. 222, 45 L. ed. 1074, 21 Sup. Ct. Rep.
762.
But that case did not overrule Schillinger
V. United States, 155 U. S. 163, 39 L. ed.
108, 15 Sup. Ct. Rep. 85, which, counsel
says, holds directly contrary to his con-
tention, and that he has not the ingeniiity
to suggest how the court can now decide the
case at bar in appellant's favor without at
least by implication overruling the Schil-
linger Case. We are not disposed to over-
rule the case, either directly or by implica-
tion. The court found nothing in it
antagonistic to the reasoning and conclu-
sion reached in the Dooley Case.
In United SUtes v. Lynah, 188 U. S.
445, 47 L. ed. 539, 23 Sup. Ct Rep. 349, the
Schillinger Case was treated as subsisting
authority, and Mr. Justice Brown, who
wrote the opinion in the Dooley Case, in
his concurring opinion in the Lynah Case,
considered it as correctly declaring the law.
[607] The Dooley Case and cases subse-
quent to it which are relied upon by appel-
lant concerned the exaction of duties or
* taxes by the United States or its officers, or
property taken by the government for pub-
lic purposes.^ In such cases jurisdiction in
the court of claims for the recovery of
the duties and taxes or for the value of the
property taken was declared.
In the case at bar (assuming as true all
that is charged) there was a wrong in-
flicted, if a wrong can be said to have been
inflicted by the sentence of a court legally
constituted, after judgment upon issues
openly framed by the opposing parties, both
^United States v. Welch, 217 U. S. 333,
54 L. ed. 787. 28 L.R.A.(N.S.) 385, 30 Sup.
Ct. Rep. 527, 19 Ann. Cas. 680; United
States V. Grizzard, 219 U. 8. 180, 55 L. ed.
165, 31 L.R.A.(N.S.) 1135, 31 Sup. Ct. Rep.
162; United SUtes v. Emery, B. T. Realty
Co. 237 U. S. 28, 59 L. od. 825, 36 Sup. Ct.
Rep. 409,
of fact and the applicable law, whether that
law was §§ 2865 and 8082 of the Revised
Statutes or the Constitution of the United
SUtes (Comp. Stat. 1913, §§ 5548, 5785).
But, conceding that a wrong was inflicted
through these judicial forms, the case never-
theless is of different character from the
Dooley Case, as was also the Schillinger
Case. The latter ease passed upon the
jurisdiction of the court of claims in ac-
tions founded on tort, and declared the gen-
eral principle to be, based on a policy im-
posed by necessity, that govemmenU are
not liable "for unauthorized wrongi inflicted
on the citizen by their officers, though oc-
curring while engaged in the discharge of
official duties." And it was further said:
"Congress has wisely reserved to itself th«
right to give or withhold relief where the
claim is founded on wrongful proceedings
of an officer of the government." Gibbons
V. United SUtes, 8 Wall. 269, 275, 19 L.
ed. 453, 454; Morgan v. United SUtss, 14
Wall. 531, 534, 20 L. ed. 738, 739.
The Schillinger Case was cited in the
New Orleans-Belize Royal Mail & C. A. 8. 8.
Co. V. United SUtes, 239 U. S. 202, ante, 227,
36 Sup. Ct. Rep. 76, in rejection of a con-
tention that the United SUtes was liable
for services imposed by their officers ouUide
of a contract [608] with the Ri^ Mail
Company, in the performance of which the
vessel owned by the company was damaged*
We repeat, therefore, that the Schillin*
ger Case being subsisting authority, and
appellant conceding that, if such be its
value, it is controlling, further discussion is
unnecessary.
Judgment affirmed.
Mr. Justice McReynolds took no part ia
the consideration and decision of this
WILLIAM W. WHITE, Appt,
V.
UNITED STATES. (No. 163.)
JOHN D. FORD, Appt,
V.
UNITED STATES. (No. 154.)
(See S. C. Reporter's ed. 608-614.)
Navy — pay of retired officer — nctlYie
service.
Officers in the Navy transferred to the
retired list with an increase In rank are
not entitled to pay and allowances of the
higher grade during active servioe after re*
tirement, by virtue of the provision of the
act of March 4, 1913 (37 SUt at L. 801,
chap. 148, Comp. SUt. 1913, § 2838), that
all naval officers who have be^ or duUl be
advanced since March 8, 1899, shall have
SS9 V. 8.
1916.
WUITK T. UNITED 8TATBS.
the pay and allowaneea of the higher grade
from the dates of their oommieiiion, einoe
each proYiBion muat be read at applying
only to advanced officers upon the active
list
(For other cases, see Army and Navy, YI. b,
in Digest Sop. Ct. 1908.1
[Nos. 163 and 164.]
Argued January 7, 1916. Decided January
17, 1916.
APPEALS from the Court of Claims to
review judgments sustaining demurrers
to petitions of retired naval officers for in-
creased pay while in active service. Af-
firmed. •
See same case below, 49 Ct. CI. 702.
The facts are stated in the opinion.
lir. Simon liyon argued the cause, and,
with Messrs. Edward S. McCalmont and
R. B. H. Lyon, filed a brief for appellant in
No. 153:
So long as the language used is unam-
biguous, a departure from the natural mean-
ing is not justified by any consideration
of its consequence or public policy; and it
is the plain duty of the court to give it
force and effect.
Lake County v. Rollins, ISO U. S. 662,
32 L. ed. 1060, 9 Sup. Ct Rep. 651 ; United
SUtes V. Goldenberg, 168 U. S. 05, 42
L. ed. 304, 18 Sup. Ct. Rep. 3; Johnson v.
Southern P. Co. 196 U. S. 15, 49 L. ed.
368, 25 Sup. Ct Rep. 158, 17 Am. Keg. Rep.
412.
It is fairly and justly presumable that
the legislature, which was unrestrained in its
authority over the subject, has so shaped
the law as, without ambiguity or doubt, to
bring within it everything that was meant
should be embraced.
Cooley, Tazn. 3d ed. p. 464.
The statute must be held to mean what
its language imports; when it is clear and
imperative, reasoning ab inconvenienti is of
no avail, and there is no room for construc-
tion.
Cherokee Tobacco (Boudinot t. United
States) 11 WalL 616, 20 L. ed. 227; Lewis
V. United States, 92 U. S. 621, 23 L. ed.
514; Lake County t. Rollins, 130 U. S.
602, 32 L. ed. 1060, 9 Sup. Ct Rep. 651.
Construction and interpretation have no
function where the terms of the statute are
plsin and certain, and its meaning clear.
Colorado A N. W. R. Co. v. United States,
209 U. S. 544, 52 L. ed. 91», 28 Sup. Ct.
Bep. 510.
The statute is a remedial one and should
he liberally interpreted.
Merchanto' Nat Bank t. United States,
42 Ct CI. 6; 1 Kent, Com. 465.
In expounding remedial laws, the courts
will extend the remedy as far as the words
will admit
H^den's Case, 8 Coke^ 7; Pierce v. Hop-
per, 1 Strange, 258.
A remedial statute ought not to be con-
strued so as to defeat in part the very
purpose of its enactment
Beley v. Naphtaly, 169 U. S. 853, 42
L. ed. 775, 18 Sup. Ct. Rep. 354; Jones ▼.
New York Guaranty & L Co. 101 U.
S. 626, 25 L. ed. 1034; Twenty Per Cent
Cases (United States ▼. Fit^trick) 13
WalL 575, 20 L. ed. 708; Ross v. Doe, 1
Pet 667, 7 L. ed. 307.
Although the pendency of one class of
claims may have induced the passage of
an act of Congress providing for their
adjustment, the act may embrace other
claims if its terms are sufficiently wide so
to do.
United SUtes t. Hvoslef, 237 U. S. 1,
59 L. ed. 813, 35 Sup. Ct. Rep. 459, Ann.
Cas. 1916A, 286; Thames ft M. M. Ins.
Co. T. United SUtes, 237 U. S. 19, 59
L. ed. 821, 35 Sup. Ct Rep. 496, Ann. Cas.
1015D, 1087.
Where a law is plain and unambiguous,
whether expressed in general or limited
terms, there is no room left for construc-
tion, and a resort to extrinsic facU is not
permitted to ascerUin iU meaning.
Bartlett v. Morris, 9 Port (Ala.) 266;
United SUtes v. Musgrave, 160 Fed. 700;
Lake County v. Rollins, 130 U. S. 671, 32
L. ed. 1060, 9 Sup. Ct Rep. 651.
Assistant Attorney General niompsoii
argued the cause, and, vrith Mr. Richard P.
Whiteley, filed a brief for the United SUtes
in Ko. 153.
Mr. Frederick A. Fenning argued the
cause, and, with Messrs. Lloyd Odendlial
and Spencer Gordon, filed a brief for ap-
pellant in Ko. KM t
The act of March 4, 1913, should be in-
terpreted licoording to the usual meaning
of iU words.
Maillard v. Lawrence, 16 How. 255, 261,
14 Lw ed. 927, 930; Cherokee Tobacco
(Boudinot T. United SUtes) 11 WalL 616,
620, 20 L. ed. 227, 229; United SUtes v.
Temple, 105 U. S. 97, 99, 26 L. ed. 967,
968; Knox County v. Morton, 15 C. C. A
673, 32 U. S. App. 513, 68 Fed. 787 ; Union
Cent L. Ins. Co. v. Champlin, 54 C. C.
A. 208, 116 Fed. 858.
A retired officer is certainly an officer
of the Navy.
Silver v. Ladd, 7 WaU. 219, 19 L. ed. i Franklin v. United SUtes, 29 Ct CL 6;
1)8; Johnson v. Southern P. Co. mqfira; ' T^ler v. United States 16 Ct CL 223, 10^
•• L. ed. 30 4
611-613
SUPREME COURT OF THE UNTTBD STATES.
Oor. ToMy
U. S. 244, 26 L. ed. 985 ; Fowler t. United
States, 31 Ct CL 35.
A grade is a step in a series, a rank
(Schuetze ▼. United States, 24 Ct. CI. 229),
such as from commander to captain, to
admiral It has nothing to do with the
question of active or retired service.
Assistant Attorney General Thompson
argued the cause and filed a brief for the
United SUtes in ^o. 154.
Mr. Justice Holmes delivered the opin-
ion of the court:
These claims raise the same question.
The claimant White was a lieutenant com-
mander in the Navy. On June 30, 1905, he
was transferred to the retired list, on his
own request, with the rank of commander
(act of March 3, 1890, chap. 413, §§ 8, 9,
30 SUt. at L. 1004, Comp. Stat. 1913,
§§ 2636, 2637), and on April 13, 1911,
was commissioned a commander on the re-
tired list from June 30, 1905. (Act of
March 4, 1911, chap. 266, 36 SUt. at L.
1354, Comp. Stat. 1913, § 2068.) He was
continued in active service from June 30,
1905, until October 31, 1911. (Act of June
7, 1900, chap. 859, 31 Stat, at L. 703.)
The claimant Ford was a captain, was re- [
tired on May 19, 1902, under Rev. Stat.
§ 1444, Comp. Stat. 1913, S 2622, with the
rank of rear admiral (act of March 3, 1899,
chap. 413, § 11, 30 SUt. at L. 1007, Comp.
SUt. 1913, § 2641), and was commissioned
rear admiral on the retired list from May
19, 1902. (Act of March 4, 1911, chap. 266,
36 SUt. at L. 1354, Comp. SUt. 1913,
§ 2068.) He was continued on active duty
from May 19, 1902, until December 25,
1907. (Act of June 7, 1900, chap. 859, 31
SUt at L. 703.) As provided by the last-
mentioned sUtuU, both of these officers re-
ceived the pay and allowances of the rank
they held before they were retired. By the
naval appropriation act of March 4, 1913,
chap. 148, 37 SUt. at L. 891, 892, Comp.
SUt. 1913, § 2838, it was enacted that "aU
officers of the Navy who, since the third day
of March, eighteen hundred and ninety-nine,
have been advanced or may hereafter be
advanced in grade or rank pursuant to law
shall be allowed the pay and allowances of
the higher [612] grade or rank from the
dates sUted in their commissions." The
claims are made under this act for the
difference between the pay and allowances
received during active service after retire-
ment and that of the higher grade to which
the claimanU respectively had been ad-
vanced. Demurrers to the petitions were
sustained by the court of claims.
The claimanU, although pressing the uni-
versal application of the sUtuU according
to tht literal meaning of iU words, still
Ucitly concede that we must go behind
the letter of the law. For while the stat-
uU says that all officers who have been ad-
vanced since the daU mentioned shall have
the pay of the higher grade, and says noth-
ing about active service, the claims are oon-
fined to the periods of active service named^
which implies a concession that the advance
in grade by itself was not enough. And
this concession was required by the fact
that the sUtuU granU allowances as well
as pay, and that allowances are an inci-
dent of active duty alone.
As it stands admitted that the sUtuto
is of more limited scope than is apparent on
iU face, to an untrained reader, at least, the
question is whether it is to be read as ap-
plying to all advanced officers who have
been on active service, or only to all such
officers upon the active list. We are of
opinion that the latUr is the true meaning,
and that the decision of the court of claims
was right. The general rule of the sUt-
utes is found in Rev. SUt. § 1462, Comp.
SUt. 1913, § 2652. <^o officer on the re-
tired list of the Navy shall be employed oo
active duty except in time of war." An
exception, limited to twelve years from ito
passage, was made by the act of June 7,
1900, allowing officers on the retired list,
in the discretion of the SecreUry of the
Navy, to be ordered to such duty as they
might be able to perform, and giving them
while so employed the pay and allowances
of the grade on the active list from which
they were retired. When the act of 1918,
under which these claims are made, [613]
was passed, this exception had expired, — all
services under it had been rendered and
paid for, and, with other exceptions not af-
fecting this case, the general rule was in
force. It is more rational to suppose that
Congress was dealing with present affairs
than that it was reopening transactions
that might be Un years old, and that must
have been finished, at the latest, nearly a
year before. And this construction is con-
firmed when we notice that the increased
pay and allowances are given from the date
of the conmiission; that is, if the claimante
are right, from the daU of their retire-
ment, without regard to tiie time when
their active duty began. In these eases it
was continuous with their service before
retirement. But it might have begun years
afterwards, and yet, by the sUtuU, the
daU of the increase in pay and the allow-
ances would have been the same.
The conclusion to which the sUtutes di*
rectly concerned would lead us is confirmed
still further by consideration of the act of
August 22, 1912, chap. 335, 37 SUt. at L.
328, 329. This act provided that thereafter
any naval officer on the retired list roighti
1916.
NORTHERN P. R. CO. v. MSB8B.
618, 614, 617
with his consent, in the discretion of the
Secretary of the Navy, be ordered to such
duties as he might be able to perform, and
while so employed in time of peace should
receiYe the pay and allowances of an officer
on the aetire list of the same rank, pro*
Tided that he was not to receive more than
the pay and allowances of a lieutenant,
senior grade, on the active list of like
lengtii of service, snd, if his retired pay
exceeded that, then he was to receive his
retired pay only. The clash that there
would be between the policy of this act and
that of 1013, if construed as the claimants
would have it construed, is plain.
Finally, it may be worth noticing that
the reports that introduced the enactment
pointed out as the evil to be remedied that,
under the act of June 22, 1874, chap. 302,
18 Stat, at L. 191, Comp. SUt. 1013, §
2837, the only officers who did not receive
the pay of [614] their grade from the time
they took rank as stated in their commis-
sions were the youngest officers, who were
appointed to the lowest grade, and therefore
not promoted to fill a vacancy, as contem-
plated in the act of 1874. House Rep. No.
1080. 62d Cong. 2d Sees. Senate Rep. No.
1217. 62d Cong. 3d Sess.
Judgments affirmed.
Mr. Justice McReynoIds took no part in
the consideration and decision of these
NORTHERN PACIFIC RAILWAY COM-
PANY, Petitioner,
V.
HARY A. MEESE et sL
(See a C. Reporter's ed. 614-620.)
Federal courts — following state deci-
sions — construction of workmen's
compensation act.
1. The Federal courts must accept the
conclusion of the highest state court that
the Washington workmen's compensation
act (Wash. Laws 1011, chap. 74) took swav
any ezistins riglit imder Rem. k BaL
Code, §§ 183, 104, to maintain an action
for the wrongful death of an employee, not
only as against the employer, but as against
any third person by whose negligence the
death may have been caused, where the em-
ployee sustained the fatal injury while en-
gaged about his ordinary duties at his em-
ployer's plant.
[For other cases, see Courts, VII. c, 8. In
Digest Sup. Ct. 1008.1
Constitutional law — equal protection
of the laws — workmen's compensa-
tiou act — taking away remedy
against third person.
2. The equal protection of the laws is
not denied by construing the Washington
workmen's compensation act (Wash. Laws
1011, chap. 74), as takine away any exist-
ing right, under Rem. & Bal. Ck>de, §§ 183,
104, to maintain an action for the wrong-
ful death of an employes, not only as against
the employer, but as against any third per-
son by whose negligence the deaui may have
been caused, where the employee sustained
the fatal injury while engaged about his
ordinary duties at his employer's plant.
[For other cases, see Constitutional Law, lY.
a, 6, in Digest Sup. Ct. 1008.]
[No. 133.]
Argued and submitted December 13, 1015.
Decided January 17, 1016.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for the
Ninth Circuit to review a judgment which
reversed, with directi(ms to overrule a de-
murrer to the complaint, a judgment of the
District Court for the Western District of
Washington, dismissing a complaint in an
action for death. Judgment of the Circuit
Court of Appeals reversed, and that of the
District Court afiSrmed.
Sec same case below, 127 C. C. A. 622,
211 Fed. 264, 4 N. C. C. A. 810.
The facts are stated in the opinion.
Mr. Charles W. Bunn argued the cause
and filed a brief for petitioner.
Mr. Govnor Teats submitted the cause
for respondents. Messrs. Leo Teats and
Ralph Teats were on the brief.
Mr. Justice McReynoIds delivered the
opinion of the court:
Benjamin Meese, an employee of the Seat-
tle Brewing & Malting Company, was fatal-
ly injured on April 12, 1013, while engaged
about his ordinary duties at its plant in
Seattle. Alleging that his death resulted
from the negligence of the petitioner rail-
way company, his wife and children brought
this action for damages in the district court
NoTB. — ^As to state decisions and laws as
rules of decision in Federal courts-'See
notes to C!lark v. Graham, 5 L. ed. U. S.
334; Elmendorf v. Taylor, 6 L. ed. U. S.
200; Jackson ex dem. St. John v. Chew, 6
L. ed. U. S. 583; Mitchell v. Burlington, 18
L. ed. U. S. 351 ; United SUtes ex rel. Butz
v. Muscatine, 10 L. ed. U. S. 400; Fore-
paugh V. Delaware, L. ft W. R. Co. 5 L.RJ^.
•0 Ii. ed.
508; and Snare & T. 0>. ▼. Friedman, 40
L.R.A.(N.S.) 380.
On workmen's compensation acts, gen-
eraUy — see note to Milwaukee v. Miller,
L.ILA.1016A, 23.
As to constitutional equality of privileges,
immunities, and protection, generally — see
note to Louisville Safety Vaiut k T. Co. v.
Louisville ft N. R. 0>. 14 L.R.A. 570.
4«^
617-619
SUPREME COURT OF THE UNITED STATES.
Oor. TEBii,
of the United States. They relied upon the
following aections, Remington k Balllnger's
Annotated Codea and Statutes of Washing-
ton:
"Section 183. .. . When the death of
a person is caused by the wrongful act or
neglect of another, his heirs or personal
representatives may maintain an action for
damages against the person causing the
death."
"Section 194. No action for a personal
injury to any person occasioning his death
shall abate, nor shall such right of action
determine, by reason of such death, if he
have a wife or child living, . . .; but
inch action may be prosecuted, or com-
menced and prosecuted, in favor of such
wife or in favor of the wife and children.
»
The railway company demurred, specify-
ing as one of the groimds therefor: 'That
there is no authority in law under which
the plaintiffs' action can be maintained as
against this answering defendant, it ap-
pearing from the complaint that Benjamin
Meese, on account of whose wrongful death
this action was brought, sustained the in-
juries [618] of which complaint is made, at
the place of work and plant of his employer,
and that plaintiffs' claim comes within the
terms of chapter 74 of the Session Laws of
the state of Washington for 1911, being an
act relating to compensation of injured
workmen," approved March 14, 1911.
By the act referred to the legislature of
Washington specifically repealed certain sec-
tions of Remington k Ballinger's Code, not
including $§^83 And 194 ; established a com-
prehensive plan for the relief of workmen
injured in extrahazardous work, ahd their
families and dependents, regardless of the
questipn of fault; and likewise made pro-
vision for raising the necessary funds by
enforced contributions from specified em-
ployers, both breweries and railroads being
included.
The trial court (206 Fed. 222) held that
the purpose of the act of March 14, 1911,
was not merely to end controversies between
employers and employees in respect of in-
juries to the latter, but to end all suits at
law for the injury or death of employees
while engaged in certain occupations, no
matter Vy whom injured or killed, with cer-
tain exceptions not here important. And
bj a judgment dated July 11, 1913, the
demurrer was accordingly sustained and
the complaint dismissed.
This action of the trial court was re-
Teraed by the circuit court of appeals (127
C. C. A. 622, 211 Fed. 254, 4 N. C. C. A.
819), the latter being of opinion that the
act in question did not, and was not intend-
ed to, deprive complainanta of their right to
proceed under §§ 183 and 194 of the Code,
since deceased was not its employee when
the accident occurred. Counsel for the
railway called especial attention to Peet y.
Mills, 76 Wash. 437, L.RJL1916A, 358, 136
Pac. 685, Ann. Cas. 1915D, 154, 4 N. C. C.
A. 786, decided November 28, 1913, and in-
sisted that the conclusions there announced
were in accord with the opinion and judg-
ment of the district court then under re-
view; but the circuit court of appeals re-
jected this view, saying: "We are unable
to agree [619] with counsel that the su-
preme court of the state of Washington in
that case reached a conclusion different
from that reached by ua in the present
M
case.
The error now assigned and relied on is:
"That the circuit court of appeaU phould
have followed Peet v. Mills, and have af-
firmed the judgment of the district court."
It is settled doctrine that Federal courts
must accept the construction of a state
statute deliberately adopted by ita highest
court. Old Colony Trust Co. t. Omaha, 230
U. S. 100, 116, 57 L. ed. 1410, 1416, 33 Sup.
Ct. Rep. 967; Fairfield v. Qallatin County,
100 U. S. 47, 52, 25 L. ed. 544, 546. The
supreme court of Washington in Peet ▼.
Mills construed the statute in question, and
we think its opinion plainly supports the
holding of the district court and is in di-
rect opposition to the conclusion reached
by the circuit court of appeals. The follow-
ing excerpts from the opinion will suflloe
to indicate its import:
''By this appeal, we are again called upon
to review the workmen's compensation act
of 1911 (Laws 1911, chap. 74, p. 345, 8
Rem. k Bal. Code, §§ 6604-1 et seq.), un-
der appellant's contention that the act is
applicable only where recovery is sought
upon the groimd of negligenoe of the em-
ployer. . . .
". . . The conclusion is evident that,
in the enactment of this new law, the
legislature declared it to be tiie policy of
this state that every hazardous industry
within the purview of the act should bear
the burden arising out of injuries to its
employees; and that it was the further
policy of the state to do away with the
recognized evils attaching to the remedies
under existing forms of law and to sub-
stitute a new remedy that should be ample,
full, and complete, reaching every injury
sustained by any workman while employed
in any such industry, regardless of the
cause of the injury or the negligenoe to
which it might be attributed. We can con-
ceive of no language the legislature might
have employed that would make its purpose
and intent more ascertainable than that
made use of in the 1st section of the act.
SS9 U. 8.
1916.
ROGERS T. HENliEPIN.
610-621
To atj with [620] appellftnt that the intent
of the act is limited to the abolishment of
Begligenoe as a ground of action against an
employer only is to overlook and read out of
the act and its declaration of principles
the economic thought sought to be crystal-
lized into law, — that the industry itself was
the primal cause of the injury, and, as
such, riiould be made to bear its burdens.
• . . Thai in so doing the legislative
mind was intent upon the abolishment of
all causes of action that may have thereto-
fore existed, irrespective of the persons in
favor of whom or against whom such right
might have existed, is equally clear from
the language of t 5 of the act, containing
m schedule of awards, and providing that
each workman injured in the course of his
employment should receive certain compen-
sation, and 'such payment shall be in lieu
of any and all rights of action whatsoever
against any person whomsoever.' . . .
For these reasons we are of the opinion
that the compensation provided by the act
in case of injury to any workman in any
hazardous occupation was intended to be
exclusive of every other remedy, and that
all causes of action theretofore existing,
except as they are saved by the provisos of
the act, are done away with."
Respondents' suggestion that the con-
struction of the act adopted by the trial
court would cause it to conflict with the
equal protection clause of the 14th Amend-
ment is without merit. They have raised
no other question involving applicitlou of
the Federal Constitution.
The judgment of the Circuit Court of
Appeals must be reversed and the action
of the District Court affirmed.
And it is so ordered.
«
Mr. Justice McKenna is of opinion that
the statute was properly construed by the
circuit court of appeals, and that its con-
clusions do not conflict with the opinion of
the state supreme court. He therefore dis-
sents.
[621] GEORGE D. ROGERS, Frank E.
Crandall, et al., Appts.,
V.
COUNTY OF HENNEPIN, Henry 0.
Hanke, as Its County Treasurer and In-
dividually, and Al P. Brickson, as Coun-
ty Auditor and Individually.
(See a C. Rq»orter's ed. 621, 622.)
€k>nrta — amoant in <x>ntroTersy —
uniting claims.
Members of a chamber of commerce
eannot unite the amounts for whieh th^
•6 Ii. ed.
are individually assessed on account of such
membership in order to make up the amount
necessary to sustain the jurisdiction of a
Federal district court of a suit to prevent
the collection of such taxes as illegal.
[For other cases, see Courts, 008-911, In Di*
gest Sup. Ct 1908.]
[No. 411.]
Argued December 6, 1916. Decided Jan-
uary 17, 1916.
APPEAL from the District Court of ths
United States for the District of Min-
nesota to review a decree which dismissed
the bill in a suit to enjoin the colleetion of
taxes. Affirmed.
The facts are stated in the opinion.
Mr. H. V. Mercer argued the cause and
filed a brief for appellants:
The district court improperly decided the
question of the amount in controversy.
Ex parte Baltimore k 0. R. Co. 106 U.
S. '5, 27 L. ed. 78, 1 Sup. Ct. Rep. 36;
Troy Bank v. G. A. Whitehead k Co. 222
U. S. 30, 66 L. ed. 81, 32 Sup. Ct Rep. 9;
Washington Market Co. v. Hoffman, 101
U. S. 112, 26 L. ed. 782; Davies v. Corbin,
112 U. S. 86, 28 L. ed. 627, 5 Sup. Ct. Rep.
4; McDaniel v. Traylor, 106 U. S. 416,
49 L. ed. 633, 25 Sup. Ct. Rep. 360;
Smithers v. Smith, 204 U. S. 633, 51 L. ed.
656, 27 Sup. Ct. Rep. 207 ; Central of Geor-
gia R. Co. V. Wright, 207 U. S. 134, 62
L. ed. 139, 28 Sup. Ct. Rep. 47, 12 Ann.
Cas. 463.
Dismissal should not be made for want of
jurisdiction except in case of legal cer-
tainty.
Ralston Steel Car Co. v. National Dump-
Car Co. 222 Fed. 500; Boyd v. New York
k H. R. Co. 220 Fed. 174; Schunk v. Mo-
line, M. k S. Co. 147 U. S. 500, 37 L. ed.
255, 13 Sup. Ct. Rep. 416; Barry T. Ed-
munds, 116 U. S. 680, 20 L. ed. 729, 6
Sup. Ct. Rep. 501; Put*in-Bay Waterworks,
Light & R. Co. T. Ryan, 181 U. S. 400,
45 L. ed. 927, 21 Sup. Ct. Rep. 709;
Kearny Cmmty v. Vandriss, 53 C. C. A.
102, 115 Fed. 866.
The general allegation of amount is suffi-
cient.
ChocUw, 0. k G. R. Co. t. Harrison, 235
U. S. 292, 59 L. ed. 234, 35 Sup. Ct. Rep.
27; Galveston, H. & S. A. R. Co. v. Texas^
210 U. S. 217-227, 52 L. ed. 1031-1037, 28
Sup. Ct. Rep. 638; St. Louis Southwestern
R. Co. V. Arkansas, 235 U. S. 350-362, 59
L. ed. 265-271, 35 Sup. Ct Rep. 99; Wet-
more T. Rymer, 169 U. S. 115, 42 L. ed.
682, 18 Sup. Ct Rep. 293.
The plaintiffs are not bound to sit idle
year after year, because the damage, taken
separately each year, is not up to the jnris-
SUPREME COURT OF THE UNITED STATES. Oct. T^bm,
dictional amount. Federal courts do not 1 546, 162 Fad. 856; Cooper ▼. Reynolda,
allow wrongful confiscation by degrees. 10 Wall. 308, 315, 19 L. ed. 931, 932; Wis-
Hutchinson ▼. Beckham, 55 C. C. A. 333, consin ▼. Torinus, 28 Minn. 175, 9 N. W.
118 Fed. 399; Board of Trade t. Cella Com- 725; 30 Cyc. 115; Minnesota Y. Northern
mission Co. 70 C. C. A. 28. 145 Fed. 28; Securities Co. 184 U. S. 199, 46 L. ed. 499,
Hunt ▼. New York Cotton Exch. 205 U. 22 Sup. Ct. Rep. 308; 1 Street, Fed. Eq. Pr.
S. 322, 51 L. ed. 821, 27 Sup. Ct. Rep. §§ 426, 507, pp. 260, 311; Smyth v. Ames,
529; Scott T. Donald, 165 U. S. 107, 41 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct.
L. ed. 648, 17 Sup. Ct. Rep. 262; Ex parte Rep. 418; Hale ▼. Allinson, 188 U. S. 56, 47
Young, 209 U. S. 146, 52 L. ad. 723, 13 L. ed. 380, 23 Sup. Ct. Rep. 244.
L.R.A. (N.S.)* 932, 28 Sup. Ct. Rep. 441, It was good practice to sue in the name
14 Ann. Cas. 764; Berryman t. Whitman of three members, representing themselves
College, 222 U. S. 334, 56 L. ed. 225, 32 and others similarly situated.
Sup. Ct. Rep. 147; McNeill ▼. Southern R. PUtt v. Lecocq, 15 L.R.A.(N.S.) 558, 85
Co. 202 U. S. 543, 50 L. ed. 1142, 26 Sup. C. C. A. 621; 158 Fed. 723; Penny v. Cen-
Ct. Rep. 722. tral Coal k Coke Co. 71 C. C. A. 135, 138
Regardless of whether one or many of Fed. 769; Smyth t. Ames, 169 U. S. 466,
the members are plaintiffs, the decision 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Bedford
would dispose of the whole question at to v. Ellis [1901] A. C. 8, 70 L. J. Ch. N. S.
all and make it res judicata. 102, 83 L. T. N. S. 686, 17 Times L. R. 139;
Mcintosh T. Pittsburg, 112 Fed. 705; Smith ▼. Swormstedt, 16 How. 288, 14 L.
Smith ▼. Swormstedt, 16 How. 302, 14 L. ed. 942; Wallace v. Adams, 204 U. S. 415»
ed. 942 ; Illinois C. R. Co. ▼. Caffrey, 128 51 L. ed. 547, 27 Sup. Ct. Rep. 363 ; Watson
Fed. 770; Lyman ▼. Paris, 53 Iowa, 408, ▼. National Life k T. Co. 88 C. C. A. 880»
5 N. W. 621; Sauls ▼. Freeman, 24 Fla. 162 Fed. 7; Evans v. Chamber of Commerce^
222, 12 Am. St. Rep. 190, 4 So. 525; 86 Minn. 453, 91 N. W. 8.
Ashton V. Rochester, 133 N. Y. 193, 28 A contention, here made in good faith.
Am. St. Rep. 619, 30 N. E. 965, 31 N. E. is that the rights of these parties are joint
334; Cromwell v. Sac County, 94 U. S. 351, and inseparable for the purposes of this
24 L. ed. 195; Fayerweather v. Ritch, case; this contention alone involves more
195 U. S. 276, 49 L. ed. 193, 25 Sup. Ct. than the jurisdictional amount; it must
Rep. 58; Fitch v. Stanton Twp. Ill C. C. be decided, — that alone is sufficient.
A. 210, 190 Fed. 310; Hickman v. Fletcher, Smithers v. Smith, 204 U. S. 633, 51 L.
115 C. C. A. 595, 195 Fed. 907. ed. 656, 27 Sup. Ct. Rep. 297; City R. Co.
Where the controlling object of the suit v. Citizens' Street R. Co. 166 U. S. 557,
is, as here, something common to all, and 561, 41 L. ed. 1114, 1115, 17 Sup. Ct. Rep.
indivisible, the amounts may be aggregated, 653 ; Southern P. R. Co. v. California, 118
although each interest, in so far as divisible, U. S. 109, 30 L. ed. 103, 6 Sup. Ct. Rep.
is insufficient in amount and divisible as 993; St. Paul, M. k M. R. Co. v. St. Paul
to all others. & N. P. R. Co. 15 C. C. A. 167, 32 U. 8.
Troy Bank v. 0. A. Whitehead k Co. 222 App. 372, 68 Fed. 2; Green County v.
U. S. 39, 56 L. ed. 81, 32 Sup. Ct. Rep. 9; Thomas, 211 U. S. 598, 53 L. ed. 343, 29
Shields v. Thomas, 17 How. 3, 15 L. ed. Sup. Ct. Rep. 168.
93; Wariiington Market Co v. Hoffman, ^ ^ ^^^ ^ g^j^ Attorney General
nK^' L^T^'^^L\:^r ^T'J.^Tl ^' of Mimiiota, and Mr. WiUiam jf Steven-
Corbm, 112 U. S. 36 28 IL ed. 627 5 gup. ^^ ^ ;^^ ^„^ ^^ ^^ j^^„
?h^'S- T*' ^'^^o^'L/'c^^^n/' ^^^ ^«n®- M. Reef, filed a brief for appellees:
SJ^'if ^r^' ^^^.V"''•o^^.^P^,^S^ Each member in the chamber of com-
fields V. Thonjas, 17 How. 8, 15 L. ed 03; ^^^^^ .^ ^^^^^ individually for his per-
?^^"^/ l^.^^'l^V^'o^^^^' ®^^^i' ^^W' »o"*l P^ope^y ^^^^' The assessment i.
L™1 ; hitman (5;ile?e Si* U S -^^^^^^ ^^ ?-'-»' ^^^ -* ^^^^^ ^-
^J^^ li ^ ?o o ^% \}i' property. The person is taxed on account
334^ 56 U ed 226, 32 Sup a. Rep. 147 ^^ J. ^ ^wnershirof the property, and the
Members of this sort of association have ^^^^^ ^^ ^^^ determines the amount
interwoven and common mterests unknown . ., . u,,^. 4i./i«-k:i:<.- ;. *.i«*<>i«r ~»»
to ordinary stockholders. Even ordinary «« *^« ^ ^^* ^* liability is purety p«.
stockholders would be indispensable in such -onal; consequently the proceedings for the
case, and the members here are clearly in- collection of delmquent personal prop«^
dispensable. Even though omitted in name, ta^^s are m personam,
their rights are indispensably controlled. CUrke v. Steams County, 47 Minn. 652,
Williams v. Bankhead, 19 Wall. 563, 22 50 N. W. 615; SUte v. Red River Vall^
L. ed. 184; Rogers v. Penobscot Min. Co. Elevator Co. 69 Minn. 131, 72 N. W. 60;
83 C. C. A. 380, 154 Fed. 610; McAndrews Laird, N. Co. v. Pine County, 72 Minn. 409,
V. Chicago, L. S. & E. R. Co. 89 C. C. A. 75 N. W. 723; State ex rel. Vossen v. Eber-
uu.
BOOEBS T. HKNNEPIN.
621, 622
liard. 90 Ifinn. 120, Off N. W. 1116; Du
Pttge County ▼. Jenks, 65 111. 281.
The claims of plaintiffa cannot be aggre-
gated to make up the jurisdictional amount.
Sioux Falls Nat. Bank v. Swenson, 48 Fed.
621; Smithson v. Hubbell, 81 Fed. 594;
Whelas t. St Louis, 180 U. S. 379, 45 L.
ed. 583, 21 Sup. Ct. Rep. 402, aflSrming 96
Fed. 865; Bussell t. Stansell, 105 U. S.
303, 26 L. ed. 989; Walter ▼. Northeastern
R. Co. 147 U. S. 370, 37 L. ed. 206, 13 Sup.
Ct. Bep. 348; Henderson ▼. Wadsworth, 115
U. S. 264, 29 L. ed. 377, 6 Sup. Ct. Bep.
140; Fanners' Loan A. T. Co. ▼. Waterman,
106 U. a 265, 27 L. ed. 115, 1 Sup. Ct.
Bep. 181; Adams ▼. Crittenden, 106 U. S.
576, 27 L. ed. 99, 1 Sup. Ct Bep. 92; Clay
▼. Field, 1S8 U. S. 479, 34 L. ed. 1049, 11
Sup. Ct Bep. 419; Gibson T. Shufeldt, 122
U. S. 27, 80 L. ed. 1083, 7 Sup. Ct. Bep.
1066; DaTis t. Schwarts, 155 U. S. 647,
39 L. ed. 296, 15 Sup. Ct. Bep. 237 ; Hagge
▼. Kansas City Southern B. Co. 104 Fed.
898.
The effect on future taxation of a deci-
sion that tiie particular taxation is invalid
cannot be availed of to add to the sum or
value of the matter in dispute.
Holt V. Indiana Mfg. Co. 176 U. S. 68-
72, 44 L. ed. 874-376, 20 Sup. Ct. Bep. 272;
New England Mortg. Secur. Co. v. Gay, 145
•0 li. ed.
U. S. 123, 36 U ed. 646, 12 Sup. Ct. Bep.
815; Clay Center v. Farmers' Loan k T. Co.
145 U. S. 224, 36 L. ed. 685, 12 Sup. Ct.
Bep. 817; Citizens* Bank v. Cannon, 164
U. S. 310, 41 L. ed. 451, 17 Sup. Ct Bep.
89.
Mr. Justice McReynolda delivered the
opinion of the court:
Three complainants, claiming to repre-
sent themselves and others like situated
(numbering altogether 550), instituted this
proceeding in equity against Hennepin
county, Minnesota, and certain of its of-
ficers, in the district court of the United
States, seeking an injunction to prevent
collection of a tax under $40 assessed
against each of them, for the year 1913, on
account of his membership in the Minneapo-
lis Chamber of Commerce. [622] Defend-
ants challenged the court's power to enter-
tain the cause upon the ^ound that the
amount in controversy as to each complain-
ant is the sum charged against him, and
demands against all cannot be aggregated
in order to confer jurisdiction. The district
court sustained this objection upon author-
ity of Wheless v. St Louis, 180 U. S. 379,
45 L. ed. 583, 21 Sup. Ct Bep. 402, and dis-
missed the bill. It committed no error in
so doing, and ita judgment is affirmed.
471
MEMOH-A^NDj^
OF
Oammb DiiPOiBD OF Without Opihiohi.
[626] Qbobob D. LiLNOAsm et al., Plain-
tifls in error, ▼. Jamks W. TBACKm et al.
[No. 530.]
Error to state court — ^frivolout Federal
question-— validity of state local option
law.
In Error to the Court of Appeals of the
State of Kentucky to review a judgment
which affirmed a judgment of the Circuit
Court of Scott County, in that state, ad-
judging valid a local option election.
See same case below, 164 Ky. 177, 175
S. W. 366.
Messrs. Bynum E. Hinton and J. H.
Hazelrigg for plaintiffs in error.
Mr. T. L. Edelen for defendants in error.
October 26, 1915. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of (1) Consolidated Tump. Co.
V. Norfolk A 0. V. R. Co. 228 U. S. 596,
600, 57 L. ed. 982, 983, 33 Sup. Ct Rep.
609; Manhattan L. Ins. Co. v. Cohen, 234
U. S. 123, 137, 58 L. ed. 1245, 1254, 34 Sup.
Ct. Rep. 874; Easterling Lumber Co. v.
Pierce, 235 U. 8. 380, 59 L. ed. 279, 35 Sup.
Ct. Rep. 133; (2) Mugler v. Kansas, 123
U. 8. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273;
Rippey v. Texas, 193 U. S. 504, 48 L. ed.
767, 24 Sup. Ct Rep. 516; Eberle v. Michi-
gan, 232 U. S. 700, 58 L. ed. 803, 34 Sup.
Ct. Rep. 464.
WnuAic Wallbbboht, Sb., et al.. Plaintiffs
in Error, v. E. K. IirosAic et al. [No.
549.]
Error to state court — ^frivolous Federal
question — ^validity of state prohibitory
law.
In Error to the Court of Appeals of the
State of Kentucky to review a judgment
which affirmed a judgment of the Circuit
Court of Bell Coimty, in that state, ad-
judging valid a local option election.
See same case below, 164 Ky. 463, 175 8.
W. 1022.
Messrs. James H. Hazelrigg and Lawrence
Maxwell for plaintiffs in error.
•0 Ii. ed.
Mr. T. L. Edelen for defendants in error.
October 25, 1915. Per Curiam: Dis-
missed for want of jurisdiction upon the au-
thority of Waters-Pierce Oil Co. v. Texas,
212 U. 8. 112, 118, 53 L. ed. 431, 434, 29
Sup. Ct. Rep. 227 ; Deming v. Carlisle Pack-
ing Co. 226 U. 8. 102, 57 L. ed. 140, 33
Sup. Ct. Rep. 80; Overton v. Oklahoma,
235 U. 8. 31, 59 L. ed. 112, 35 Sup. Ct. Rep.
14.
Long Bkll Luhbei Co., Appellant, v. Wal-
TKB Moses. [No. 18.]
Appeal — final judgment.
Appeal from the United States Circuit
[626] Court of Appeals for the Fifth Cir-
cuit to review a decree which reversed, with
instructions to sustain the demurrer to the
biU, a decree of the Circuit Court of the
United States for the Western District of
Louisiana in favor of complainant in a
suit to establish title to timber, and enjoin
interference with the cutting of such timber.
See same case below, 124 C. C. A. 185, 206
Fed. 51.
Mr. William R. Thurmond for appellant.
Mr. Elijah Robinson for appellee.
October 25, 1915. Per Curiam: Dis-
missed for want of jurisdiction upon the
authonty of United States v. Krall, 174
U. 8. 385, 43 U ed. 1017, 19 Sup. Ct. Rep.
712; Macfarland v. Brown, 187 U. 8. 239,
47 L. ed. 159, 23 Sup. Ct. Rep. 105; Mis-
souri & K. I. R. Co. V. Olathe, 222 U. 8.
185, 56 L. ed. 155, 32 Sup. Ct Rep. 46;
United States v. Beatty, 232 U. 8. 463, 58
L. ed. 686, 34 Sup. Ct Rep. 392.
FtBST- National Baitk of Bell Foubohe,
8. Dak., Plaintiff in Error, v. Aoolph O.
Ebebhabt et al [No. 155.]
Error to district court — ^jurisdiction — ^prior
appeal to district court of appeals.
In Error to the District Court of the
United States for the District of Minnesota
to review a judgment entered pursuant to
the mandate of the Circuit Court of Ap-
peals for the Eighth Circuit, which, revers-
47S
626-628
SUPREME OOURT OF THE UNITED STATES.
Oor. Tbkic,
ing the judgment below, remanded the same
for a new trial.
Messrs. Norman T. Mason and James A.
George for plaintiffs in error.
Mr. Harrison L. Schmitt for defendants
in error.
October 25, 1916. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of Aspen Min. & Smelting Ck>. v.
Billings, 150 U. S. 31, 37 L. ed. 986, 14 Sup.
Ct. Rep. 4; Brown y. Alton Water Co. 222
U. S. 325, 56 L. ed. 221, 82 Sup. Ct. Rep.
156 ; Union Trust Co. v. Westhus, 228 U. S.
519, 57 L. ed. 947, 33 Sup. Ct. Rep. 593;
Shapiro y. United States, 235 U. S. 412, 59
L. ed. 291, 35 Sup. Ct. Rep. 122.
JAHSS DuYAL et al.. Plaintiff in Error, v.
State or Louisiana. [No. 223.]
Error to state court — frivoloua Federal
question.
In Error to the Supreme Court of the
State of Louisiana to review a judgment
which affirmed a conviction of murder in
the District Court for the Parish of
Acadia, in that state.
See same case below, 135 La. 710, L.R.A.
— , — , 65 So. 904.
Messrs Edward N. Pugh and [627] Philip
8. Pugh, for plaintiffs in error.
Messrs. R. G. Pleasant and Daniel Wend-
ling for defendant in error.*
October 25, 1915. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of (1) Waters-Pierce Oil Co. v.
Texas, 212 U. S. 112, 118, 53 L. ed. 431, 434,
29 Sup. Ct. Rep. 227; Deming v. Carlisle
Packing Co. 226 U. S. 102, 57 L. ed. 140,
33 Sup. Ct. Rep. 80; Overton v. Oklahoma,
235 U. S. 31, 59 L. ed. 112, 35 Sup. Ct. Rep.
14; (2) Northern P. R. Co. v. Herbert, 116
U. S. 642, 29 L. ed. 755, 6 Sup. Ct. Rep.
590; Hayes v. Missouri, 120 U. S. 68, 30 L.
ed. 578, 7 Sup. Ct. Rep. 350; Howard v.
Kentucky, 200 U. S. 164, 50 L. ed. 421, 26
Sup. Ct. Rep. 189.
John R. Gbebnlebs, Plaintiff in Error, v.
Fro) L. Mobbis. [No. 36.]
Indian allotments — restriction on aliena-
tion.
In Error to the Supreme Court of the
State of Kansas to review a judgment which
affirmed a judgment of the District Court
of Douglas County, in that state, in favor
of plaintiff upon a breach of warranty as
to title to an Indian allotment.
See same case below, 90 Kan. 472, 135
Pac 569.
Mr. C. A. Magaw for plaintiff in error.
Mr. Charles Blood Smith for defendant in
error.
474
November 1, 1915. Per Cvriam: Judg-
ment reversed with costs, and cause re-
manded for further proceedings upon the
authority of Mullen v. United States, 224
U. S. 448, 56 L. ed. 834, 32 Sup. Ct. Rep.
494; Adkins v. Arnold, 235 U. S. 417, 59 L.
ed. 294, 35 Sup. Ct Rep. 118; Skelton v.
Dill, 235 U. S. 206, 59 L. ed. 198, 35 Sup.
Ct. Rep. 60.
Petebbobough Railboad, Appellant, v.
Boston & BCaine Railboad et al [No.
29.]
Appeal — from district court — Federal
question.
Appeal from the District Court of the
United States for the District of New
Hampshire to review a decree which refused
to enforce provisions for free transporta-
tion, contained in a railway lease.
Mr. Henry A. Cutter for appellant.
Messrs. Edgar J. Rich and Archibald R
Tisdale for appellees.
November 1, 1915. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of Carey ▼. Houston & T. C. R.
Co. 150 U. S. 170, 87 L. ed. 1041, 14 Sap.
Ct. Rep. 63; Cornell v. Green, 163 U. 8.
75, 41 L. ed. 76, 16 Sup. Ct. Rep. 969; Bm*
pire State-Idaho Min. A, Developing Co. y.
Hanley, 205 U. S. 225, 51 L. ed. 779, 27
Sup. Ct. Rep. 476; Childers v. McClaughry,
210 U. S. 139, 54 L. ed. 420, 80 Sup. Ct
Rep. 370.
Chables p. BowDrrcH et al.. Plaintiffs in
Error, v. Jaokson Compact et al. [No.
20.]
Error to state court — ^Federal question.
In Error to the Superior Court of the
State of New Hampshire to review a decree
dismissing the bill in a suit to enjoin a
sale of the assets of a corporation, entered
pursuant to the opinion of the New Hamp-
shire Supreme Court on a case reserved.
See same case below, in New Hampshire
Supreme Court, 76 N. H. 361, L.R.A. — ,
— , 82 Atl. 1014, Ann. Cas. 1913A, 366.
Mr. Burton E. Eames for plaintiffs in
error.
Mr. Frank S. Streeter for defendants in
error.
November 1, 1915. [688] Per Curiam:
Dismissed for want of jurisdiction upon the
authority of F. G. Ozley Stave Co. v.
Butler County, 166 U. S. 648, 41 L. ed.
1149,. 17 Sup. Ct. Rep. 709; Mailers v. Com-
mercial Loan & T. Co. 216 U. S. 613, 64 L.
ed. 638, 30 Sup. Ct. Rep. 438; Applebv v.
Buffalo, 221 U. S. 524, 55 L. ed. 888, 31 Sup.
Ct. Rep. 699; Cleveland & P. R. Co. v. Cleve-
land, 235 U. S. 50, 59 L. ed. 127, 35 Sap.
Ct. Rep. 21.
%t9 u. a.
1915.
MEMORANDA CASES.
628, 620
GASDnnEB Invistmext Compaitt et aL^ Ap-
pellanta, v. Jackson Compaut et al. [No.
455.]
Appeal — ^from circuit court of appeals — Fed-
eral question.
Appeal from the United States Circuit
Court of Appeals for the First Circuit to
review a decree which, reversing a decree
of the District Court of the United States
for the District of New Hampshire, directed
the dismissal upon specified ternu of the
bill in a suit to enjoin the sale of the as-
sets of a corporation.
See same case below, 138 C. C. A. 266, 217
Fed. 860.
Mr. Burton E. E&mes for appellanta.
Mr. Frank S. Streeter for appellees.
November 1, 1015. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of Bagley v. General Fire Ex-
tinguisher Co. 212 U. 8. 477, 58 L. ed. 605,
20 Sup. Ct. Rep. 341; Weir v. Rountree,
216 U. S. 607, 54 L. ed. 635, 30 Sup. Ct.
Rep. 418; Shulthis v. McDougal, 225 U. S.
561, 56 L. ed. 1205, 32 Sup. Ct. Rep. 704;
St. Anthony's Church v. Pennsylvania R.
Co. 237 U. S. 575, 50 L. ed. 1110, 35 Sup.
Ct. Rep. 720.
H. J. Bbat, Trustee, etc., et aL, Appellants,
Y. United Statbb Fidelitt & Guakaxtt
CoMPAirr. [No. 854]
Appeal — from circuit court of appeals —
bankruptcy case.
Appeal from the United States Circuit
Court of Appeals for the Fourth Circuit to
review a decree which dismissed a petition
to superintend and revise proceedings in
bankruptcy in the District Court for the
Northern District of West Virginia, and
affirmed a decree of that court, confirming
the report of a referee.
See same case below, 138 C. C A. 660, 218
Fed. 087.
Mr. Philip W. Frey for appellants.
Mr. B. M. Ambler for appellee.
November 8, 1015. Pw Curiam: Dis-
missed for want of jurisdiction upon the
authority of Chapman t. Bowen, 207 U. S.
80, 01, 52 L. ed. 116, 117, 28 Sup. Ct Rep.
32; J. W. Calnan Co. t. Doherty, 224 U. S.
145, 56 L. ed. 702, 32 Sup. Ct Rep. 460;
Synnott y. Tombstone ConsoL Mines Co. 234
U. S. 740, 58 L. ed. 1575, 84 Sup. Ct. Rep.
674. See United States Fidelity ft G. Co. y.
Bray, 225 U. 8. 205, 56 K ed. 1055, 82 Sup.
Ct. Rep. 620.
•0 Ii. ed.
[689] Laxtha Eiohkl et aL, Appellant^ y.
UlflRD StaTCS FIDOJTT k GUABAHTT
PplCPANT [No. 307.]
Appeal — final judgment
Appeal from the United States Circuit
Court of Appeals for the Third Circuit to
review a decree which, reversing a decree
of the District Court for the Western Dis-
trict of Pennsylvania, directed the entry
of a decree in acoorduice with its opinion.
See same case below, 185 C. C. A. 478,
210 Fed. 803.
Mr. William M. Hall for appellants.
Mr. B. M. Ambler for appellee.
November 8, 1015. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of United States v. Krall, 174
U. S. 385, 43 L. ed. 1017, 10 Sup. Ct Rep.
712; German Nat. Bank v. Speckert, 181
U. 8. 405, 45 L. ed. 026, 21 Sup. Ct Rep.
688 ; United States v. Beatty, 232 U. 8. 463,
58 L. ed. 686, 84 Sup. Ct. Rep. 802.
David C. Andbbwe et al.. Copartners, etc.
Appellants, y. Habst V. Osbobh, Trustee,
etc [Na 57.]
Appeal — ^review of faet#— concurrent find-
ings.
Appeal from the United States Circuit
Court of Appeals for the Third Circuit to
review a decree which afllrmed an order of
the District Court for the District of New
Jersey, reversing an order of a referee in
bankruptcy.
See same case below, 126 C. C. A. 06, 200
Fed. 148.
Mr. David C. Myers for appellants.
Mr. Nathan Bilder for appellee.
November 8, 1015. Per Curiam: Judg-
ment afllrmed with costs upon the authority
of First Nat Bank v. Littlefield, 226
U. 8. 110, 112, 57 L. ed. 145, 146, 83 Sup.
Ct Rep. 60; Texas & P. R. Co. v. Railroad
Commission, 232 U. 8. 338, 58 L. ed. 630,
34 Sup. Ct. Rep. 438; Greey y. Docken-
doHT, 231 U. 8. 518, 58 L. ed. 880, 84 Sup.
Ct. Rep. 166.
Fbank Zodbow, Plaintiff in Error, v. Szatv
or WisooNsnr. [No. 43.]
Error to state court — frivolous Federal
question — state limitation of number of
sialoons.
In Error to the Supreme Court of the
State of Wisconsin to review a judgment
which aflirmed a conviction in the Munic-
ipal Court of Milwaukee County, in that
state, for selling intoxicating liquors with-
out a license.
See same case below, 164 Wis. 661, 148
K. W. 608.
475
029-^1
SUPREME COURT OF THE UNITED STATEa
Oor.
Mr. David S. Rote for plaintiff in error.
Messra. Walter C. Owen and J. E. Meeser-
■chmidt for defendant in error.
November 8, 1015. Per Ouriam: Dis-
missed for want of jurisdiction upon the
authority of Deming v. Carlisle Packing
Co. 228 U. 8. 102, 105, 57 L. ed. 140, 143,
33 Sup. Ct. Rep. 80; Consolidated Tump.
Co. V. Norfolk & O. V. R. Co. 228 U. S. 606,
600, 57 L. ed. 082, 983, S3 Sup. Ct. Rep.
609; Parker v. McLain, 237 U. S. 460, 471,
472, 50 L. ed. 1051, 1053, 1054, 35 Sup. Ct.
Rep. 632.
[630] Job Maboun, Plaintiff in Error, v.
State or Louisiana. [No. 45.]
Error to state court — ^Federal question —
how raised and decided— due process of
law.
In Error to the Supreme Court of the
State of Louisiana to review a judgment
which affirmed a conviction In the City
Court of the City of Shreveport, in that
state, for selling liquors without a license.
See same case below, 133 La. 1083, 63
So. 508.
Messrs. A. L. Alexander and Taliaferro
Alexander for plaintiff in error.
Mr. Ruffin G. Pleasant for defendant in
error.
November 8, 1015. Per Ouriam: Dis-
missed for want of jurisdiction upon the
authority of (1) Phoenix R. Co. v. Landis,
231 U. S. 578, 582, 58 L. ed. 377, 381, 34
Sup. Ct. Rep. 179; John v. Paullin, 231 U.
*S. 583, 58 L. ed. 381, 34 Sup. Ct. Rep. 178;
(2) Hallinger v. Davis, 146 U. S. 314, 36
L. ed. 986, 13 Sup. Ct. Rep. 105; Maxwell
V. Dow, 176 U. S. 581, 44 L. ed. 597, 20
Sup. Ct. Rep. 448, 404; Jordan v. Massa-
ehusetU, 225 U. S. 167, 176, 56 L. ed. 1038,
1041, 32 Sup. Ct. Rep. 651; Frank v. Man-
gum, 287 U. S. 300, 340, 50 L. ed. 069, 985,
86 Sup. Ct. Rep. 582.
Ex PABn: Iir the Mattd or Clotd H.
DuNCAif, Petitioner. [No. .]
Motion for Leave to File Petition for
Writ of Mandamus.
Mr. Cloyd H. Duncan, petitioner, pro se.
November 15, 1915. Denied.
W. N. Skewalteb, Administrator of Robert
Shewalter, Deceased, Plaintiff in Error,
T. CaBOLINA, CXJITOHIIBLD, & OhIO RAIL-
WAY. [No. 60.]
Death — action under employers' liability
act — survival — action by father — ^pecuni-
ary loss.
In Error to the Supreme Court of the
^70
State of Tennessee to review a judgment
which reversed a judgment of the Circuit
Court of Sullivan County, in that state, in
favor of plaintiff in an action under the
Federal employers' liability act for dam-
ages for the death of plaintiff's son.
See same case below, 128 Tenn. 363»
L.R.A.1916C, 064, 161 S. W. 1136, Ann.
Cas. 1015C, 605.
Mr. Robert [631] Burrow for plaintiff in
error.
Mr. J. Norment Powell for defendant in
error.
November 15, 1015. Per Ouriam: Judg-
ment affirmed, with costs, upon the authori-
ty of (1) Michigan C. R. Co. v. Vreeland,
2C7 U. S. 50, 57 L. ed. 417, 33 Sup. Ct. Rep.
102, Ann. Cas. 1014C, 176; American R.
Co. V. Didricksen, 227 U. S. 145, 57 L. ed.
456, 33 Sup. Ct. Rep. 224; Gulf, C. & S. F.
R. Co. V. McGinnis, 228 U. S. 173, 57 L. ed.
785, 33 Sup. Ct. Rep. 426, 3 N. C. C. A.
806; Garrett v. Louisville & N. R. Co. 236
U. S. 308, 50 L. ed. 242, 35 Sup. Ct. Rep.
32; St. Louis, I. M. & 8. R. Co v. Craft,
237 U. S. 648, 50 L. ed. 1160, 35 Sup. Ci.
Rep. 704; Kansas City Southern R. Co.
V. Leslie, 238 U. S. 500, 50 L. ed. 1478, 36
Sup. Ct. Rep. 844; (2) Barron v. Baltimore,
7 Pet. 243, 8 L. ed. 672; Jack v. Elansas*
100 U. S. 372, 370, 380, 50 L. ed. 234, 236,
26 Sup. Ct. Rep. 73, 4 Ann. Cas. 630; Brown
V. New Jersey, 175 U. S. 172, 44 L. ed. 119,
20 Sup. Ct. Rep. 77 ; Twining v. New Jersey,
211 U. S. 78, 03, 53 L. ed. 07, 103, 20 Sup.
Ct Rep. 14.
PENNSTLYAinA RAILBOAD COMPAlfT Y. W.
F. Jaoobt k Company. [No. 130.]
Carriers— duty to furnish cars— damages.
On a Certificate from and Writ of Certio-
rari to the United States Circuit Court of
Appeals for the Third Circuit, bringing up
for review a cause pending in that court
on writ of error to a judgment of the Dis:*
trict Court for the Eastern District of Penn-
sylvania, enforcing an award of damages
made by the Interstate Commerce Commis-
sion because of discrimination in distribu-
tion of coal cars.
Messrs. Francis I. Qowen and John G.
Johnson for petitioner.
Mr. William A. Qla^gow, Junior, for re-
spondent.
November 15, 1015. Judgment alBrmed*
with costs, by a divided court, and eause re-
manded to the District Court of the United
States for the Eastern District of Pennirfl*
vania.
ISO U. 8.
1919.
MEMORANDA CASKa
631-633
ToBK ft Whitkct Compaht, plaintiff in
Error, v. Nbw Yobk, Nkw Haven, k
Habttosd Railboad CoMPAirr. [No. 62.]
Error to state court — ^Federal qnestion— de-
cision on non-Federal ground.
In Error to the Superior Court of Maeta-
chueetts to review a judgment entered pur-
•oaat to the mandate of the Maesachueetts
Supreme Judicial Court for the recovery
of an unpaid balance of freight charges
which, through the carrier's mistake, had
not been claimed or collected at the time
of the delivery of the shipment.
See same case below, in Supreme Judicial
Court of Massachusetts, 216 Mass. 36, 102
N. E. 366.
Mr. Amos L. Taylor for plaintiff in error.
Mr. J6hn L. Hall for defendant in error.
November 20, 1016. Per Curiam: Dis-
missed for the want of jurisdiction upon
the authority of (1) Lesthe v. Thomas,
207 U. S. 93, 62 L. ed. 118, 28 Sup. Ct. Rep.
30; Tazoo ft M. Valley R Co. v. Brewer,
231 U. S. 246, 249, 68 L. ed. 204, 206, 34
Sup. Ct. Rep. 90; Mellon Co. v. McCafferty,
this day decided, 239 U. & 134, ante, 181,
36 Sup. Ct Rep. 94; (2) Equitable Life
Assur. Soc V. Brown, 187 U. S. 308, 314, 47
L. ed. 100, 193, 23 Sup. Ct Rep. 123; Con-
solidated Turnp. Co. v. Norfollc ft 0. V.
R. Co. 228 U. S. 690, 600, 67 L. ed. 982,
983, 33 Sup. Ct Rep. 609; Easterling Lum-
ber Co. V. Pierce, 236 U. S. 380, 69 L. ed.
270, 36 Sup. Ct. Rep, 133. See Louisville ft
N. R. Co. V. Maxwell, 237 U. S. 94, 97, 98,
69 L. ed. 853, 866, L.R.A.1915E, 666, P. U.
R.1916C, 300, 36 Sup. Ct Rep. 494, and
cited.
(682] Obobgs M. Dienkb et al., Plaintiffb
in Error, v. I. M. LA2fi et al. [No. 689.]
Error to state court — frivolous Federal
question— validity of state local option
law.
In Error to the Court of Appeals of the
State of Kentucky to review a judgment
which affirmed a judgment of the Circuit
Court of Mason County, in that state, sus-
taining the validity of a local cation elec-
tion.
See same case below, 165 Ky. 396, 176
8. W. 1167.
Messrs. J. M. Collins and J. H. Hazelrigg
for plaintiffs in error.
Mr. £. L. Worthington for defendants in
error.
December (8, 1915. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of: (1) Consolidated Tump. Co.
V. Norfolk ft 0. V. R. Co. 228 U. S. 696,
600, 67 L. ed. 982, 983, 33 Sup. Ct Rep.
600; Manhattan L. Ins. Co. v. Cohen, 234
U. S. 123, 137, 68 L. ed. 1246, 1254, 34 Sup.
•0 14. ed.
Ct Rep. 874; Easterling Lumber Co. v.
Pierce, 236 U. S. 380, 59 L. ed. 279, 35 Sup.
Ct Rep. 133; (2) Lancaster v. Thacker,
239 U. S. 625, ante, 473, 36 Sup. Ct. Rep.
162; Wallbrecht v. Ingram, 239 U. S. 625,
ante, 473, 36 Sup. Ct. Rep. 162; (3) Waters-
Pierce Oil Co. V. Texas, 212 U. S. 112,
118, 53 L. ed. 431, 434, 29 Sup. Ct Rep.
227; Deming v. Carlisle Packing Co. 220
U. S. 102, 57 L. ed. 140, 33 Sup. Ct. Rep.
80; Overton v. Oklahoma, 235 U. S. 31, 69
L. ed. 112, 36 Sup. Ct Rep. 14.
Halitaz Tonopah Miimro Compaiit, Plain-
tiff in Error, v. John W. Lawbon. [No.
113.]
Constitutional law — ^freedom to contract-—
employers' liability — release as defense.
In Error to the Supreme Court of the
State of Nevada to review a judgment of
the District Court of Nye County, in that
state, in favor of plaintiff in a personal-
injury action.
See same case below, 39 Nev. 591, 135
Pac. 611, 138 Pac 261.
Mr. Henry M. Hoyt, 2d, for plaintiff in
error. *
Mr. E. C. Brandenburg for defendant in
error.
December 13, 1915. Per Curiam: Judg-
ment affirmed with costs upon the authority
of Chicago, B. ft Q. R. Co. v. McGuire, 219
U. S. 549, 55 L. ed. 328, 31 Sup. Ct. Rep.
269; Philadelphia, B. ft W. R Co. v. Schu-
bert, 224 U. S. 603, 66 L. ed. Oil, 32 Sup.
Ct Rep. 689, 1 N. G. C. A. 892.
Washington Dbedoino ft Impbovement
Company, Plaintiff in Error, v. Qbobob
KiNNEAB and Angle Kinnear, His Wife;
John R. Kinnear and Leta Kinnear, His
Wife, et al. [No. 115.]
Error to state court — Federal question.
In Error to the Supreme Court of the
State of Washington to review a judgment
which affirmed a judgment of the Superior
Court of Thurston County, in that state,
dismissing the amended complaint in a suit
to vacate certain judgments affecting the
title to tide lands.
See same case below, 63 Wash. 696, 115
Pac. 1135.
Mr. W. F. Hays for plaintiff in error.
Messrs. W. V. Tanner, G. E. De Steiguer,
and George B. Cole for defendants in error.
[633] December 13, 1915. Per Curiam:
Dismissed for want of jurisdiction upon the
authority of Washington Dredging ft Im-
prov. Co. V. Washington, 231 U. S. 742, 58
L. ed. 463, 34 Sup. Ct Rep. 318; Washing-
ton Dredging ft Improv. Co. v. Washington,
235 U. S. 688, 59 L. ed. 426, 36 Sup. Ct
Rep. 204*
477
SUPREME COURT OF THE UNITED STATES.
Oct. '.
Nkw Yobk Ckittbal ft Huosoir Biyo Rail-
road CoMFAKT, FUintiff in Error, *.
Saudel p. McCdrnell. [No. 119.]
Error to atate cour^-decUion on ooo-Fed-
•ral ground.
In Error to the Supreme Court of the
State of North Carolina to review a judg-
ment whlcb affirmed a judgment of tite
Superior Court of Moore Counfy, in tliat
atate, in faTor of plaintiff in a auit to re-
cover damages from the initial carrier of
an Interatata ahipment
See aame eaoe below, 163 N. C. 504, TS
S. B. 974.
Mr. Walter H. Neal for plaintiff In error.
Mr. S. S. Oregor; (or defendant in error.
December IS, 1015. Per Curiam; Die-
miued for want of juriBdiction upon tlie
authority of Euatie y. Bollea, 160 U. S.
361, 37 L. ed. 1111, 14 Sup. a. Rep. 131;
Wood ¥. ChBiborough, 228 U, 8. 872, 677,
07 L. ed. 1018, 1020, S3 Sup. Ct. Rep. 706;
New Orleans & N. E. R. Co. t. National
Bice Mill. Co. 234 U. S. 80, B6, 68 L. ed.
1223, 1226, 34 Sup. Ct. Rep. 726; Mellon
Co. V. McCaffertj, 239 U. B. 134, auto, 181,
36 Sup. Ct. Rep. 34.
Chaileb R. Eoctb, Plaintiff in Error, v.
BALTDf(»B k Ohio Raii.boai) Compakt.
INo. 307.1
Error to atate eonrt — frivolous Federal
question.
In Error to tbe Supreme Court of the
State of Ohio to review a judgment which,
reversing a judgment of the Circuit Court
of MVhoDlng County, in that state, ordered
Judgment for defendant in a persooal-ln-
jury action.
See same ease below, 88 Ohio St. 306,
104 N. E. M4, Ann. Cas. 1916A, 12S6.
Mr. David F. Anderson tor plaintiff in
error.
Messrs. George F. Arrel, James P. Wil-
son, and Union C. De Ford for defendant
in error.
December 13, 1016. Per Owiam: Die-
miised for want of jurisdiction upon the
authority of Wabash R. Co. v. Hayee, 234
U. 8. 86, 58 L. ed. 1226, 34 Sup. Ct. Rep.
729, B N. C. C. A. 224.
Dnnmtt or Pbisomb, nalntifl In Error
and Appellant, t. Codbt or Fibot Ik-
STAHOi [634] <sw THB PBOViNOi or Ca-
nrx, Tkhth Judicial Dibtbict. [No.
4S8.]
Appeal — moot ease.
In Error to, and Appeal from, the Su-
preme Court of the Philippine Islands, to
review a judgment sustaining the Jurisdio-
tlon of the Court of Firat Instanee of tbe
Province of Cavite to grant a atay of «m-
cation to convicts under sentence of death
which has since t>een executed.
Mesera. S. T. Ansel] and C. J. Gerkin for
plaintiff in error and appellant.
Hr. C. W. O'Brien for defendant in error
and appellee.
December 13, 1015. Per Curiam: Dia-
missed for want of jurisdiction upon th*
authority of Jones v. Montague, 104 U. 8.
147, 48 L. ed. 013, 24 Sup. Ct. Rep. 011;
UwU V. United SUteg, 216 U. S. 611, M
L. ed. 637, 30 Sup. Ct. Rep. 438; Biehard-
aon V. UeChesney, 218 U. 8. 487, H L. ed.
1121, 31 Sup. Ct. Bep. 43; Stearns v. Wood.
236 U. S. 7S, 50 L. ed. 475, S6 Sup. Ct. Rep.
Sadie A. Stead, Executrix, etc, et al.. Ap-
pellants, V. Isabella M. CuBnas et aL
[No. 132.] T
Appeal — from circuit court of appeals-
jurisdiction.
Appeal from the United State* Circuit
Court of Appeals for the Ninth Circuit to
review a decree which affirmed a decree of
the Circuit Court for the Northern District
of California, sustaining demurrers to and
dismissing the bill in a suit to cancel cer-
tain deeds and vacate the probate ot a wilL
See same case below, 112 C. C. A. 463,
101 Fed. 529, on rehearing, 123 C. C. A. 507,
205 Fed. 430.
Mr. Horace W. Philbrooli for appellanta.
Mr. Garret W. McEnerney for appellees.
December 20, 1015. . P«r Curiam: Dia-
missed for want of jurisdiction upon tb*
authority of: (1) Cosmopolitan Min. Co.
V. Walsh, 193 U. S. 460, 48 L. ed. 749, 24
Sup. Ct. Rep. 48S; Fsrrell v. O'Brien
(O'Callaghan v. O'Brien) 100 U. 8. 80, SO
L. ed. 101, 25 Gup. Ct. Rep. 727; Empire
State-Idaho Mln. t Developing Co. v. Han-
iey, 205 U. 8. 226, 235, 236, 61 L. ed. 779,
783, 784, 27 Sup. Ct. Rep. 476i (2) Ar-
buclile V. Blackburn, 101 U. S. 405, 48 L. ed.
239, 24 Sup. Ct. Rep. 148; Hull v. Burr,
234 U. 8. 712, 720, 68 L. ed. 1657, ISSl, 34
Sup. Ct. Rep. 802; 0. & C Merriam Co.
V. Syndicate Pub. Co. 237 U. S. 618,
621, 50 L. ed. 1148, 1140, 35 Sup. Ct. Bep.
708.
MoKTiMEB M. Elkah, Plaintiff in Error, t.
State or Mabtlahd. [No 144.)
Constitutional law — equal protection of th*
laws — state regulation of pay and boon
of labor on public works.
In Error to the Court of Appeala ot tha
State of Maryland to review a jndgmant
which affirmed a eonviction in tbe. Criminal
s» n. R.
1U15.
MEMORANDA CASES.
634-636
Court of Baltimore City, of violating the
law regulating the pay and hours of labor
on public works.
See same ease below, 122 Md. 642, 90 Atl.
183.
Mr. Joseph S. Goldsnnth for plaintiff in
trror.
Mr. Edgar Allan Poe for defendant in er-
ror.
December 20, 1016. Pw Curiam: Judg-
ment affirmed with costs upon the authority
of Atkin T. Kansas, 101 U. 8. 207, 48 L.
ed. 148, 24 Sup. Ct. Rep. 124; Heim t. Mc-
Call, 230 [635] U. S. 176, ante, 206, 36
Sup. Ct. R^.'78; Crane y. New York, 230
U. 8. 106, ante, 218, 36 Sup. Ct. Rep. 86.
MiNinBAPOLis, St. Paul, ft Sault Sn.
Marie Railsoad Cohpant, Plaintiff in
Error, t. Louisk Alexander, Adminis-
tratrix, etc. [No. 148.] " ^
Error to state court — ^frivolous Federal
question — requiring railway companies to
fence roads.
In Error to the Supreme Court of the
State of Wisconsin to review a judgment
which affirmed a judgment of the Circuit
Court of Marquette County, in that state,
in favor of plaintiff in an action of death
founded upon a violation of a state statute
requiring railway companies to fence their
roads.
See same ease below, 166 Wis. 477, 146 N.
W. 610.
Mr. William A. Hayes for plaintiff in
err<»>.
Mr. D. W. McNamara and Miss Anna B.
Hull for defendant in error.
January 10, 1016. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of (1) Consolidated Tump. Co.
V. Norfolk ft 0, V. R. Co. 228 U. S. 606,
600, 67 L. ed. 082, 083, 33 Sup. Ct. Rep.
600; Manhattan L. Ins. Co. v. Cohen, 234
U. S. 123, 137, 68 L. ed. 1245, 1254, 34 Sup.
Ct. Rep. 874; Easterling Lumber Co. v.
Pierce, 235 U. S. 380, 68 L. ed. 270, 35 Sup.
Ct. Rep. 133; (2) Missouri P. R. Co. v.
Humes, 115 U. S. 612, 20 L. ed. 463, 6 Sup.
Ct. Rep. 110; Minneapolis ft St. L. R. Co.
T. Beckwith, 120 U. S. 26, 32 L. ed. 685, 0
Sup. Ct. Rep. 207 ; Minneapolis ft St. L. R.
Co. T. Emmons, 140 U. S. 364, 37 L. ed.
760, 13 Sup. Ct. Rep. 870; (3) Waters-
Pierce Oil Co. y. Texas, 212 U. S. 112, 118,
63 L. ed. 431, 434, 20 Sup. Ct. Rep. 227;
Deming v. Carlisle Packing Co. 226 U. S.
102, 67 L. ed. 140, 33 Sup. Ct Rep. 80;
Ororton t. Oklahoma, 236 U. 8. 31, 60 L.
ed. 112, 35 Sup. Ct. Rep. 14.
•0 Ii. ed.
Robert M. Pdrcell et al.. Plaintiffs in Er-
ror, Y. Quaker Realty Cohpant, Luc-
XTED. [No. 152.]
Error to state court — frivolous Federal
question.
In Error to the Supreme Court of the
State of Louisiana to review a judgment
which affirmed a judgment of the Civil Dis-
trict Court for the Parish of Orleans, in
that state, in favor of plaintiff in an ac-
tion to oonfirm title to land sold to the
state for delinquent taxes.
See same case below, 134 La. 1022, 64 So.
804.
Mr. E. Howard McCaleb for plaintiffs in
error.
Mr. William Winans Wall for defendants
in error.
January 10, 1016. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of (1) Castillo v. McConnico,
168 U. S. 674, 42 L. ed. 622, 18 Sup. Ct.
Rep. 220; De Beam y. Safe Deposit ft T.
Co. 233 U. S. 24, 34, 58 L. ed. 833, 837, 34
Sup. Ct. Rep. 684; McDonald v. Oregon
R. ft Nav. Co. 233 U. S. 665, 660, 670, 68
L. ed. 1145, 1148, 1140, 34 Sup. Ct. Rep.
772; (2) Ross v. Oregon, 227 U. S. 150,
161, 67 L. ed. 458, 463, 33 Sup. Ct. Rep.
220, Ann. Cas. 101 4C, 224; Moore-Mans-
field Constr. Co. v. Electrical Installation
Co. 234 U. S. 610, 624, 58 L. ed. 1503, 1505,
34 Sup. Ct. Rep. 041 ; Willoughby v. [636]
Chicago, 235 U. S. 45, 50 L. ed. 123, 35 Sup.
Ct. Rep. 23; Cleveland ft P. R. Co. v. Cleve-
land, 236 U. S. 60, 60 L. ed. 127, 35 Sup.
Ct. Rep. 21.
Ex Paris: Iv the Matter of Robert B.
Whttt, Petitioner. [No. — , Orig.]
Motion for leave to file petition for Writ
of Mandamus.
Messrs. Frank W. Clancy, A. C. Voorhees,
and H. L. Bickley for petitioner.
No appearance for respondent.
January 10, 1016. Denied.
Lbonabd R. Coates, Plaintiff in Error, t.
District or Colxticbia. [No. 156.]
Appeal — ^from District of Columbia courts
—construction of Federal law.
In Error to the Court of Appeals of the
District of Columbia to review a judgment
which afilrmed a judgment of the Supreme
Court of the District, dismissing an action
to recover damages for the negligence of
the defendant's health department.
See same case below, 42 App. D. C. 104.
Mr. F. P. B. Sands for plaintiff in error.
Messrs. Conrad H. Syme and Robert L.
Williams for defendant in error.
I January 17, 1016. Per Curiam: Dis-
' missed for want of jurisdiction upon the
479
636-688
SUPKEMB COURT OF THE UNITED STATES.
Oct. Tk/m,
authority of American Security ft T. Co. t.
District of Columbia, 224 U. S. 491, 56 L.
ed. 856, 32 Sup. Ct. Rep. 553; District of
Columbia t. Philadelphia, B. ft W. R. Co.
232 U. S. 716, 58 L. ed. 812, 34 Sup. Ct.
Rep. 331; Washington, A. ft Mt. V. R. Co.
v. Downey, 236 U. S. 100, 59 L. ed. 533, 35
Sup. Ct. Rep. 406.
William B. THOicpsoir, Plaintiff in Error,
V. City of St. Louis. [No, 157.]
Appeal — final judgment.
In Error to the Supreme Court of the
State of Missouri to review a judgment
which reversed a judgment of the Circuit
Court of the City of St. Louis, dismissing
the petition in condemnation proceedings,
and remanding the cause for further pro-
ceedings.
See same case below, 257 Mo. 541, 165 S.
W. 1057.
Mr. William B. Thompson for plaintiff in
error.
Mr. Truman P. Toung for defendant in
error.
January 17, 1916. Per Cfwriam: Dis-
missed for want of jurisdiction upon the
authority of Louisiana Nav. Co. v. Oyster
Commission, 226 U. S. 99, 57 L. ed. 138, 33
Sup. Ct. Rep. 78; United States v. Beatty,
232 U. S. 463, 58 L. ed. 686, 34 Sup. Ct.
Rep. 392; Pons v. Yazoo ft M. Valley R. Co.
232 U. S. 720, 58 L. ed. 814, 34 Sup. Ct.
Rep. 602.
[637] HiLMA Nelson, Plaintiff in Error, v.
RiCHABD G. Wood. [No. 158.]
Error to circuit court of appeals — finality
of decision — diverse citizenship.
In Error to the United States Circuit
Court of Appeals for the Third Circuit to
review a judgment dismissing a writ of er-
ror to the District Court for the Eastern
District of Pennsylvania in a personal-in-
jury action.
See same case helow, 126 C. C. A. 598,
210 Fed. 18.
Mr. A. J; H. Frank for plaintiff in error.
Messrs. C. E. Morgan, 3d, and R. Stuart
Smith for 'defendant in error.
January 17, 1916. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of Bagley v. General Fire Ex-
tinguisher Co. 212 U. S. 477, 53 L. ed. 605,
29 Sup. Ct Rep. 341; McCormick t. Okla-
homa City, 236 U. S. 657, 59 L. ed. 771,
35 Sup. Ct. Rep. 455; St. Anthony Church j
v. Pennsylvania R. Co. 237 U. S. 575, 59 i
L. ed. 1119, 85 Sup. Ct. Rep. 729; G. ft C. I
Merriam Co. y. Syndicate Pub. Co. 237 U. I
8. 618, 59 L. ed. ;1148, 35 Sup. Ct Rep. 708. '
4S0
Vandalia RAn.BOAD Company, Plaintiff in
Error, v. Chablss STiL¥rKLL. [No. 172.]
Constitutional law — equal protection of the
laws — due process of law — ^workmen's
compensation act.
In Error to the Supreme Court of the
State of Indiana to review a judgment
which affirmed a judgment of the Circuit
Court of Morgan County, in that state, in
favor of plaintiff in a personal-injury ac-
tion.
See same case below, 181 Ind. 267, 104
N. £. 289, 5 N. C. C. A. 483.
Mr. Samuel 0. Pickens for plaintiff In
error.
' Mr. Wymond J. Beckett for defendant in
error.
January 17, 1916. Per Curiam: Judg-
ment affirmed with costs upon the authority
of Jeffrey Mfg. Co. v. Blagg, 235 U. S. 57]»
59 L. ed. 364, 35 Sup. Ct Rep. 167, 7 N. a
C. A. 570.
RobiAt Kitchens, Appellant, t. J. C. Ham-
ilton, Sheriff, etc. [No. 672.]
Habeas corpus — Federal interference with
state administration of criminal law.
Appeal from the District Court of the
United States for the Southern District of
Qeorgia to review a decree denying a peti-
tion for a writ of habeas corpus on bdudf
of a person in custody under a conviction of
crime in a court of that state.
Mr. John R. Cooper for appellant
Mr. Clifford Walker for appellee.
January 17, 1916. Per Curiam: Judg-
ment affirmed with costs upon the authoritj
of Andrews v. Swartz, 156 U. S. 272, 39 L.
ed. 422, 15 Sup. Ct. Rep. 389; Frank y.
Mangum, 237 U. S. 309, 59 L. ed. 969, 35
Sup. Ct. Rep. 582.
Frank R. Shattuok, Trustee, ete., et aL,
Appellants, v. Titlk Quaeantt k Sitbbtt
COHPANT. [No. 729.]
Appeal — ^from circuit court of appeal*-*
bankruptcy case.
[638] Appeal from the United States
Circuit Court of Appeals for the Third Cir-
cuit to review a decree which reversed a de-
cree of the District Court for the Eastern
District of Pennsylvania, allowing or dis-
allowing certain claims against a bankrupt
estate, and ordered the reinstatement of the
orders of the referee.
See same case below, 140 0. 0. A. 87, 224
Fed. 401.
Mr. Walter Lee Sheppard for i^pellants.
Mr. Frank Rogers Donahue for appsUee.
January 17,' 1916. Per Curiam: Dis-
missed for want of Jurisdiction upon the au-
thority of act of Congress of January 28,
1915. See Central Trust Co. t. Lneders,
239 U. a 11, ante, 119, 36 Sup. Ct Rep. 1.
%t9 V. B.
1916.
MEMORANDA CASES.
688-640
L. Sninm and B. Frank, Individually,
etc,, et al., Petitioners, v. T. 8. Faulk k
CoHPANT. [Nob. 658 and 550.]
Petition for Writs of Certiorari to the
Cnited States Circuit Court of Appeals for
the Fifth Circuit.
See same case below, 137 C. C. A. 699,
222 Fed. 01.
Messrs. Leon Weil and Horace String-
fellow for petitioners.
Messrs. W. A. Blount, A. C. Blount, and
F. B. Carter for respondent.
October 18, 1015. Denied.
Trinftt Gold Dredgino & Htdraulio Com-
pany, Petitioner, t. Angele Beauoby, as
Executrix, etc. [No: 582.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ninth Circuit.
See same case below, 139 C. C. A. 269,
223 Fed. 739.
Messrs. Edward J. McCutchen, A. Craw-
ford Greene, Alex. Britton, Evans Browne,
and F. W. Clements for petitioner.
Messrs. Thomas B. Dozier and F. S.
Brittain for respondent.
October 18, 1015. Denied.
RoBEBT H. MoNTGOMEBY, ss Trustee, etc..
Petitioner, v. Bottlebs Seal Company.
[No. 594.]
[639] Petition for a Writ of Certiorari
to the United States Circuit Court of Ap-
peals for the Second Circuit.
See same case below, 140 C. C. A. 200,
224 Fed. 492.
Mr. Scldcn Bacon for petitioner.
Mr. Alfred D. Lind for respondent.
October 18, 1015. Denied.
City of New Obt.eans et al.. Petitioners, T.
PENif Bbidoe Company. [No. 626.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
See same case below, 138 C. C. A. 101,
222 Fed. 737.
Messrs. I. D. Moore and Percy S. Bene-
dict for petitioners.
Messrs. R. E. Milling and William Grant
for respondent.
October 18, 1015. Denied.
«0 Ij. ed.
Ida R. Rqbebts et aL, Petitioners, y. Myba
J. ROBBBTS. [No. 686.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 138 C. C. A. 102,
223 Fed. 775.
Messrs. M. F. Watts and William R.
Gentry for petitioners.
No counsel appeared for respondent.
October 18, 1015. Denied.
JoHir A. Lewis, as Executor, etc., et al.,
Petitioners, v. William B. Holmes et al.
[Nos. 636 and 637,]
Petition for WriU of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
See same case below, 140 C. C A. 8, 224
Fed. 410.
Messrs. Jackson H. Ralston and Morton
S. Cressy for petitioners.
Messrs. John P. Wilson, Eli B. Felsen-
thal, Nathan G. Moore, William B. Mc-
ilvaine for respondents.
October 18, 1015. Denied.
Miens Wilokbns, Petitioner, r. Alwinb
S. Wilckens. [No. 640.]
Petition for a Writ of [640] Certiorari
to the United States Circuit Court of Ap-
peals for the Eighth Circuit.
See same case below, 133 C. C. A. 202,
217 Fed. 208.
Mr. William J. Courtright for petitioner.
Mr. C. S. Montgomery for respondent.
October 18, 1015. Draied.
LiLUB W. Reed, Petitioner, t. Baltimobb
6l Ohio Railboad Company. [No. 642.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
See same case below, 139 C. C. A. 192,
223 Fed. 689, 10 N. C. C. A. 107.
Mr. Charles W. Baker for petitioner.
Messrs. Judson Harmon, Edward Colston,
George Hoadly, and A. W. Goldsmith for
respondent.
October 18, 1915. Denied.
Chables G. Gitth, Petitioner, y. Guth
Chocolate Company. [No. 647.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fourth Circuit.
See same case below, 140 C. C. A. 410,
224 Fed. 032.
Messrs. Charles F. Harl^ and George
W. Lindsay for petitioner.
Mr. Fredericlc L. Emery for respondent.
October 18, 1915. Denied.
81 4f-
640-648
SUPREME COURT OF THE UNITED STATES.
Oct. Iknc,
CHABLB8 S. HnrcHMAN, Petitioner, v. Coir-
BOLIDATED ABIZONA SMXLTINO COMPANY.
(No. 652.]
Petition for & Writ of Certiorari to the
United States Circuit Court of Appeals for
the First Circuit
See same case below, 129 0. 0. A. 267,
212 Fed. 81S.
Mr. Charles H. Burr for petitioner.
Mr. J. Markbsm Marshall for respondent.
October 18, 1915. Denied.
EoBKBT Whititet, Petitioner, v. New Yobk
SOArFOLOING COMPAKT. [No. 661.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 140 C. C. A. 138,
224 Fed. 452. .
Messrs. James A. [641] Carr, Wallace R.
Lane, Edwin S. Clarkson, and Walter A.
Johnston for petitioner.
Mr. Paul Bakewell for respondent.
October 18, 1915. Denied.
American Rotabt Valve Company, Peti-
tioner, V. ALBEBT £. MOOBHEAD. [No.
662.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
See same case below, 139 C. C. A. 662,
224 Fed. 1019.
Messrs. W. Clyde Jones and John Ridout
for petitioner.
Mr. James W. Noel for respondent.
October 18, 1915. Denied.
Hamilton Tbust Company et al., Peti-
tioners, V. John L. Bisheb, Jb., etc. [No.
621.]
Petition for Writs of Mandsmus and
Certiorari to the United States Circuit
Court of Appeals for the Ninth Circuit.
See same case below, 139 C. C. A. 42, 223
Fed. 494.
Mr. Emmett Callahan for petitioners.
Messrs. William P. Richardson and Will
R. King for respondent.
October 18, 1915. Denied.
United States ex bel. State of Louisi-
ana, Petitioner, v. Hon. Aleck Boabman,
Judge, etc. [No. 667.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Messrs. Ruffin G. Pleasant and Daniel
Wendling for petitioner.
i Messrs. Edgar H. Farrar, Henry Bern-
stein, and Willard F. Keeney for respond-
ent.
' October 25, 1915. Granted.
W. F. JncHSBSON, as Assessor, etc^ et aU
Petitioner, v. United States kz wmu
Fall City CoNBTBucnoN Co. [No. 612.]
Petition for a Writ of Certiorari to tlio
United SUtes Circuit Court [64S] of Ap-
peals for the Eighth Circuit.
See same case below, 138 C. C. A. 85, 222
Fed. 489.
Mr. C. F. Greenlee for petitioner.
No counsel appeared for respondent.
October 25, 1015. Denied.
Vandaua Raiuboad Company, Petitioner,.
V. United States. [No. 641.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
See same case below, 141 C. C. A. 469»
226 Fed. 713.
Messrs. John G. Williams, Thomas W.
White, Lindorf 0. Wliitnel, and Samuel W.
Fordyce, Jr., for petitioner.
Mr. G. Carroll Todd, Assistant to the
Attorney General, for respondent.
October 25, 1915. Denied.
National Bank or Commebce or St. Louis,,
Petitioner, v. £. B. Allcn, United States
Collector, etc. [No. 003.]
Petition for a Writ of (. ertiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 139 C. C. A. 20,
223 Fed. 472.
Messrs. A. C. Stewart, T. Taylor Bryan,
and George II. Williams for petitioner.
No counsel appeared for respondent.
October 25, 1915. Denied.
Edmund W. Mudgb et al.. Petitioners, t.
Black, Suebidan, & Wilson et al. [No.
605.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 140 C. C. A. 397,
224 Fed. 919.
Messrs. Frank T. Gladney and Frank J.
Hogan for petitioners.
No counsel appeared for respondents.
October 25, 1915. Denied.
MoRBis L. Bettman, Petitioner, v. United
States. [No. 009.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
See same case below, 140 C. C. A. 265»
224 Fed. 810.
Mr. Frank F. Dinsmore for [643] peti-
tioner.
Mr. Solicitor General Davis for respond-
ent.
October 25, 1915. Denied.
SS9 U. 8.
1015.
MEMORANDA CASES.
•43-64ft
GcoBQB L. CoLBUSN et al., Petitioners, ▼.
UiriTED States. [No. 671.]
Petition for a Writ of Certiorari to tbe
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 139 C. C. A. 186,
223 Fed. 600.
Mr. Chester H. Krum for petitioners.
Mr. Solicitor General Davis and Mr.
Assistant Attorney General Wallace for
respondent.
October 25, 1915. Denied.
I Mabt M. Hnx, Executrix, etc., et al., Psti*^
tioners, v. Jambs H. Lovkwbll, etc., et
al. [No. 668.1
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
See same case below, 133 C. C. A. 449,.
217 Fed. 689.
Mr. Caruthers Ewing for petitioners.
Messrs. W. J. Lamb, W. M. Randolph, and
Wassell Randolph for respondents.
November 8, 1915. Denied.
AaniuB C. Brady, Petitioner, v. Mabtin
E. Kerx. [No. 545.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Third Circuit.
See same case below, 138 C. C. A. 299,
222 Fed. 873.
Mr. E. Spencer Miller for petitioner.
Mr. Owen J. Roberts for respondent.
November 1, 1915. Denied.
Lbonabd Cboil Pabkeb et al., Petitioners,
▼. Barbara Parker. [No. 675.]
Petition for & Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit
See same case below,. 137 C. C. A. 626,
222 Fed. 186.
Messrs. Theodore Mack and Gaines B.
Turner for petitioners.
Messrs. F. M. Etheridge and J. M.
McCormick for respondent.
November 1, 1915. Denied.
Gerard B. Townsbnd et al., Petitioners, t.
Geobgia Southbbn ft Florida Railway
Company et aL [No. 678.]
Petition for & Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
See same case below, 133 C. C. C 657,
218 Fed. 55.
Messrs. Lctuis Marshall, 3larion [644]
Erwin, and Joseph Fried for petitioners.
Messrs. J. Ellsworth Hall and Alexander
C. King for respondents.
November 1, 1915. Denied.
Caicbbia Ibon Company, Petitioner, T.
Cabnbgie Steel Company (Ltd.). [No.
561.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Third Circuit.
See same case below, 140 C. C. A. 437,
224 Fed. 947.
Messrs. Francis T. Chambers and James
I. Kay for petitioner.
Messrs. Charles C. Linthicum and David
A. Reed for respondent.
November 8, 1915. Denied**
•6 li. ed.
LnxY BuscH et al., etc. Petitioners, t.
Stbombebg-Cablsoit Telephonb Maitu-
FAOTUBINO COMFANT. [No. 686.]
Petition for a Writ of Certiorari to ths
United States Circuit Court of AppeiJs for
the Eighth Circuit.
See same case below, 141 C. C. A. 180»
226 Fed. 200.
Joseph H. Zumbalen for petitioners.
Messrs. Warwick M. Hough and Walter
H. Saunders for respondent.
November 15, 1915. Denied.
Babbeb Asphalt Pavtno Company, Peti-
tioner, V. City of St. Paul. [No. 691.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 138 C. C. A. 558»
224 Fed. 842.
Mr. [645] Morris M. Townlej for peti-
tioner.
Mr. Thomas D. O'Brien for respondent.
November 15, 1915. Denied.
Atchison, Topbka, & Santa Fb Railway
Company, Petitioner, v. Unitd Statbs.
[No. 674.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ninth Circuit.
Messrs. Robert Dunlap, E. W. Camp»
Paul Burks, Alexander Britton, and Eviina
Browne for petitioner.
No counsel appeared for respondent.
November 29, 1915. Granted.
Fbbd yon Battmbaoh, Collector, etc. Pe-
titioner, V. Sabgent Land Company [No.
707]; Feed yon Battmbach, Collector^
etc.. Petitioner, y. StnroN Land Com-
pany [No. 708]; and Fbed yon Baum-
baoh. Collector, etc.. Petitioner, v. Keab-
SABQB Land Company [No. 709].
Petition for Writs of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
The Attorney General and the Solicitor
General for petitioner.
No counsel appeared for respondents.
November 29, 1915. Granted.
4$'
646-048
SUPREME COURT OF THE UNITED STATES.
Oct. Tbik,
Otoman Zab Adusst Hanish, Petitioner,
Y. UNiraD Statbb. [No. 677.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Serenth Circuit.
See Mune case below» 227 Fed. 584.
Mr. James R. Ward for petitioner.
No counsel appeared for respondent.
November 29, 1015. Denied.
Don a. Moun Day and L. D. Moun Day,
Petitioners, v. United States. [No.
602.]
[646] Petition for a Writ of Certiorari
to the United States Circuit Court of Ap-
peals for the Eighth Circuit.
See same case below, 140 C. C. A. 03, 225
Fed. 065.
Mr. Charles Blood Smith and Mr. Chapin
Brown for petitioners.
The Solicitor General and Mr. Assistant
Attorney General Wallace for respondent.
November 29, 1915. Denied.
Wbbsteb Balunqeb, Petitioner, v. West
Pdbubhino Company. [No. 704.]
Petition for a Writ of Certiorari to the
Court of Appeals of the District ef Colum-
bia.
See same case below, 44 App. D. C. 49.
Mr. Webster Ballinger for petitioner.
Mr. H. Winship Wheatley for respondent.
November 29, 1915. Denied*
E. I. Da Pont db Nkicoubs Powdeb Com-
pany et al., Petitioners, v. Waltib E.
Mabland et al. [No. 581.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the. Third Circuit.
Messrs. Edwin J. Prindle and Warren H.
Small for petitioners.
No appearance for respondents.
December 6, 1915. Granted.
S. S. White Dental Manufactttbino Com-
pany, Petitioner, v. Oscab H. Pikpeb, et
al. [No. 718.]
Petition for a 'Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
See same case below, 228 Fed. 30.
Messrs. Henry N. Paul, Jr., Jos. C.
Fraley, and Edward Rector for petitioner.
Mr. Charles A. Brown for respondents.
December 6, 1915. Granted.
4S4
Thompson & Ford Lumbeb Company, Peti-
tioner, V. Charles Dillingham, Receiver,
etc., et al. [No. 684.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the [647] Fifth Circuit.
See same case below, 139 C. C. A. 376,
223 Fed. 1000.
Messrs. H. M. Garwood and William A.
Vinson for petitioner.
Mr. Thomas M. Kennerly for respond-
ents.
December 6, 1915. Denied*
Marion W. Rose, Petitioner, y. United
States. [No. 723.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 227 Fed. 357.
Messrs. George X. McLanahan and James
T. Neville for petitioner.
Mr. Solicitor General Davis and Mr. As-
sistant Attorney General Wallace for re-
spondent.
December 6, 1915. Denied.
Charles Edward Grelle et al.. Petition-
ers, V. City of Eugene, Oregon, et aL
[No. 724.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ninth Circuit.
See same case below, 137 C. C. A. 18, 221
Fed. 68.
Mr. T. J. Geisler for petitioners.
Mr. Martin L. Pipes for respondents.
December 6, 1915. Denied.
Hugh McCurdt Eaton, Administrator, etc.,
Petitioner, v. County or Shiawassee.
[No. 784.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
See same case below, 134 C. C. A. 316,
218 Fed. 588.
Mr. Bernard B. Selling for petitioner.
Mr. Harrison Geer for respondent.
December 13, 1915. Denied.
Rook Spring Distilling Company et aL,
•Petitioners, v. W. A. Gaines & Company.
[No. 747.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
Messrs. William T. Ellis and [648] Luth-
er Ely Smith for petitioners.
Messrs. James L. Hopkins, Daniel W.
Lindsey, and Edmund F. Trabue for re*
spondent.
December 20, 1915. Granted.
289 U. 8.
1915.
MEMORANDA CASES.
e4&-«50
St. Louis Union Tbust Compant, Petition-
er, v. Mabt E. Mellon et al. [No. 735.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 140 C. C. A. 567,
225 Fed. 698.
Mr. W. F. Wilson for petitioner.
No counsel appeared for respondents.
December 20, 1915. Denied.
Dan a. Wabd et aL, Petitioners, v. Thomas
W. Mobqan, Warden, etc. [No. 744.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit. ^
See same case below, 140 C. C. A. 238,
224 Fed. 698.
Mr. Edwin A. Krauthoff for petitioners.
Mr. Solicitor General Davis and Mr. As-
sistant Attorney General Wallace for re-
spondent.
December 20, 1915. Denied*
National Bank or Commcbcb in St. Louis,
Petitioner, t. Equitable Tbust Compant
OF Nkw Yomk. [No. 751.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 227 Fed. 526.
Mr. George L. Edwards for petitioner.
Messrs. Charles S. Rowland, Frederick
N. Judson, and John F. Green for respond-
ent.
December 20, 1915.
Wesisbn Glass Company, Petitioner, v.
ScHMEBTZ Wns Glass Compant et al.
[No. 752.]
Petition for & Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
See same case below, 141 C. C. A. 486,
226 Fed. 730.
Messrs. Albert H. Graves and Louis
[640] Quarles for petitioner.
Messrs. Thomas B. Kerr, Drurj W. Coop-
er, and Arthur J. Baldwin for respondents.
December 20, 1915. Denied.
Abdciombib k FiTCH Company et al.. Pe-
titioners, V. Fbedebick E. Baldwin et aL
[No. 767.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Messrs. James R. OfBeld and Charles K.
Offield for petitioners.
Ko appearance for respondents.
January 10, 1916. Granted.
•0 L. ed.
Chot Gum, etc., Petitioner, v. Samuel W.
Backus, Conmiissioner, etc. [No. 749.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ninth Circuit.
See same case below, 139 C. C. A. 35, 223
Fed. 487.
Mr. Corry M. Stadden for petitioner.
The Solicitor G^eral and Assistant At-
torney General Wallace for respondent.
January 10, 1916. Denied.
John M. Bubsouqhs et aL, Petitioners, t.
Flobsncs L. Chambebs. [No. 755.]
Petition for a Writ of Certiorari to the
Court of Appeals of the District of Co-
lumbia.
See same case below, 44 App. D. C. 169.
Messrs. B. F. Leightou and Wharton £.
Lester for petitioners.
Messrs. George E. Sullivan and Walter C.
English for respondent.
January 10, 1916. Denied.
Sangamon Loan ft Tbust Compant, Trus-
tee, etc.. Petitioner, v. United Shoe Ma-
CHINEBT Compant. [No. 765.]
Petition for & Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
See same case below, 227 Fed. 401.
Messrs. Henry Lyman Child and Otis
[650] Scott Humphrey for petitioner.
No counsel appeared for respondent.
January 10, 1916. Denied.
San Antonio ft Aiansas Pass Railwat
Compant, Petitioner, v. Streets West-
EUf Stable Cas Compant. [No. 770.}
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Messrs. George Thompson and J. H. Bar*
wise, Jr. for petitioner.
Messrs. Levy Mayer and Carl Meyer for
respondent.
January 10, 1916. Denied.
Wells Fabqo ft Compant, Petiticmer, v.
Matob and Aldebmen or Jebset Citt.
[No. 792.]
Petition for & Writ of Certiorari to the
United States Circuit Court of Appeals for
the Third Circuit.
See same case below, 135 C. C. A. 371»
219 Fed. 699.
Mr. Chas. W. Stockton for petitioner.
Mr. John Bentley for respondents.
January 17, 1916. Denied.
4S5
«50-662
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Thomas W. McComb, Plaintiff in Error, t.
CkXMMONWEALTH OF PENNBTLVAITTA. [No.
2.1
In Error to the Supreme Court of the
State of Pennsylvania.
See same case below, in Superior Court
of Pennsylvania, 30 Pa. Super. Ct. 411, in
Supreme Court of Pennsylvania, 227 Pa.
877, 76 Atl. 100.
Mr. John G. Johnson for plaintiff in error.
Messrs. William M. Hargest and Lyman
D. Gilbert for defendant in error.
October 12, 1916. Dismissed, with costs,
on motion of co\msel for the plaintiff in
error.
UNioif Pacoio Railboad Company, Plain-
tiff in Error, v. Babboba Zitnik, Ad-
ministratrix, etc. [No. 151.]
[651] in Error to the Supreme Court of
the State of Nebraska.
See same case below, 95 Neb. 152, 145
N. W. 344.
Mr. N. H. Loomis for plaintiff in error.
Messrs. Constantine J. Smyth and Ed-
ward J. Smith for defendant in error.
October 12, 1915. Dismissed, with costs,
on motion of counsel for the plaintiff in er-
ror.
iLLiNoia Centbal Railboad Compant,
Plaintiff in Error, v. Abthub Slaughteb.
[No. 195.]
In Error to the Supreme Court of the
State of Minnesota.
See same case below, first appeal, 125
Minn. 96, 145 N. W. 790, second appeal,
125 Minn. 532, 147 N. W. 284.
Messrs. Pierce Butler, Blewett Lee, and
W. S. Horton for plaintiff in error.
Mr. Samuel A. Anderson for defendant in
error.
October 12, 1915. Dismissed per stipu-
lation.
Railway Tbansfo CoMPAmr of the Citt
OF Minneapolis, Plaintiff in Error; v.
Joseph La Mebe. [No. 202.]
In Error to the Supreme Court of the
State of Minnesota.
Messrs. William H. Bremner and F. M.
Miner for plaintiff in error.
Mr. Samuel A. Anderson for defendant in
error.
October 12, 1915. Dismissed per stipu-
lation.
48«
SoTTTHEBN Railwat Compant, Plaintiff in
Error, t. A. B. Bbamlett. [No. 255.]
In Error to the Supreme Court of the
State of South Carolina.
Mr. L. E. Jeffries for plaintiff in «rror.
No counsel appeared for defendant in
error.
October 12, 1915. Dismissed, with costs,
on motion of counsel for the plaintiff in
error.
MoAlesteb Eowabds Coal Company et al.,
Plaintiffs in Error, v. M. E. Tbapp, State
Auditor, etc. [No. 256.]
In Error to the Supreme Court of the
State [652] of Oklahoma.
Messrs. Charles B. Stuart and James H.
Gordon for plaintiffs in error.
Mr. Robert E. Wood for defendant in
error.
October 12, 1915. Judgment reversed at
the costs of the plaintiffs in error, and
cause remanded for further proceedings per
stipulation of counseL
W. S. Allen, Secretary of State, et al.. Ap-
pellants, v. WiLUAM* R. COMPTON COM-
PANY et al. [No. 305.]
Appeal from the District Court of the
United States for the Southern District of
Iowa.
Mr. George Cosson for appellants.
No appearance for appellees.
October 12, 1915. Dismissed with costs,
on motion of counsel for the appellants.
QuiNCY, Omaha, & Kansas City Railboad
Company, Plaintiff in Error, v. Shelby P.
Noel. [No. 378.]
In Error to the Kansas City Court of
Appeals, State of Missouri.
Mr. Willard P. Hall for plaintiff in
error.
No appearance for defendant in error.
October 12, 1915. Dismissed with costs,
on motion of counsel for the plaintiff in
error.
Delawabe, Lackawanna, & Westebn Rail-
boad Company, Petitioner, v. Matt
YCTBKONIS. [No. 548.]
On Petition for a Writ of Certiorari to
the United States Circuit Court of Appeals
for the Second Circuit.
See same case below, 137 C. C. A. 23, 220
Fed. 429.
Mr. William S. Jenney for petitioner.
No appearance for respondent.
October 12, 1915. Dismissed on motion
of counsel for the petitioner.
SS9 V. S.
1915.
MEMORANDA CASES.
662-655
JoHX Deebe Plow Cokpant, Petitioner, t.
LEOif D. MowRT, Trustee, etc. TNo. 588.]
On Petition for a Writ [653] of Certior-
ari to the United States Circuit Court of
Appeals for the SL\th Circuit.
Mr. Duane E. Fox for petitioner.
No appearance for respondent.
October 12, 1915. Dismissed on motion
of counsel for the petitioner.
OoiiMOirwBAi.TH or ViBGiiTiA, Complain-
ant, ▼. John PisBBonT Moboan. [No
11, Orig.]
Original bill in equity filed by the Com
nonwealth of Virginia.
Mr. John Garland Pollard for complain-
ant.
No counsel appeared for respondent.
October 18, 1915. Dismissed with costs,
on motion of counsel ior the complainant.
MoTLOW, PUintiff in Error, ▼. State
OF Tennessee. [No. 7.]
In Error to the Supreme Court of the
€tate of Tennessee.
See same case below, 126 Tenn. 647,
L.H.A.— , — , 145 S. W. 177.
Mr. John J. Vertrees for plaintiff in er-
ror.
^lessrs. Frank M. Thompson and William
li. Granbery for defendant in error.
October 18, 1015. Dismissed with costs
on motion of counsel for the plaintiff in
«rror.
J. M. KiLLinai et aL, Plaintiffs in Error,
▼. Samuel Stewabt, as Treasurer of
Wyandotte County, Kans., et aL [No.
416.]
In 'Error to the Supreme Court of the
State of Kansas.
Mr. L. W. Keplinger for plaintiffs in
«rror.
No counsel appeared for def^idants in
error.
October 18, 1916. Dismissed with costs,
on motion of counsel for the plaintiffs in
error.
Nick Abbioo, Plaintiff in Error, y. Qus A.
Htebs, Sheriff, etc. [No. 690.]
In Error to the Supreme Court of [654]
the State of Nebraska.
Messrs. Marquis Eaton and Thomas S.
Allen for plaintiff in error.
Mr. Willis E. Reed for defendant in error.
October 21, 1916. Dismissed with costs,
per stipulation.
<6 L. cd.
MiKX iNDoyiNA, Plaintiff in Error, v. Gus
A. Htebs, Sheriff, etc. [No. 691.]
In Error to the Supreme Court of the
State of Nebraska.
Messrs. Marquis Eaton and Thomas 8.
Allen for plaintiff in error.
Mr. Willis E. Reed for defendant In error.
October 21, 1915. Dismissed with oosto,
per stipulation.
MM
R08A Gu2n>ALL, Individually, etc., et aL,
Appellants, v. Maithattan Railway
Company et al. [No. 19.]
Appeal from the District Court of the
United States for the Southern District of
New York.
See same case below, 206 Fed. 410.
Messrs. Edward S. Hatch and Vincent P.
Donihee for appellants.
Mr. James L. Quackenbnsh for appellees.
October 21, 1916. Dismissed, per stipu-
lation.
AuQvar Boulanoeb, Plaintiff in Error, t.
State or Louisiana. [No. 46.]
In Error to the Supreme Court of the
State of Louisiana.
Mr. Taliaferro Alexander for plaintiff in
error.
No counsel appeared for defendant in
error.
October 28, 1916. Dismissed with eosts,
pursuant to the Tenth Rule.
Standabd Fashion Coiipany, Plaintiff in
Error, v. J. L. Gbant. [No. 469.]
In Error to the Supreme Court of [655]
the State of North Carolina.
See same case below, 165 N. C. 453, 81
S. E. 606.
Messrs. J. S. Manning and Francis
Rooney for plaintiff in error.
Mr. James I(. Price for defendant in
error.
November 1, 1916. Dismissed ^ith costs,
on motion of counsel for the plaintiff in
error.
OzABK Oil Company, Appellant, v. Wil-
liam Bebbyhill. [No. 76.]
In Error to the District Court of the
United States for the Eastern District of
Oklahoma.
Mr. Haskell B. Talley for appellant.
No counsel appeared for appellee.
Norember 10, 1916. Dismissed with costs,
pursuant to the Tenth Rule.
48
W^-t69
SUPREME OOURT OF TfiE UNITED STATES.
Oct. Te/m,
Illinois Cbntbal Railboad Company,
Plaintiff in Error, v. W. L. Pelton.
[No. 569.]
In Error to the Supreme Court of the
State of Iowa.
Messrs. Walter S. Horton and Blewett
Lee for plaintiff in error.
Messrs. William Squire Kenyon and Den-
nis M. Kelleher for defendant in error.
November 15, 1915. Dismissed, per stipu-
lation.
St. Louis & San Fbancisoo Railroad Com-
pany, Appellant, v. PuBUc Sebvicb Com-
mission or Missouri et al. [No. 92];
Atchison, Tofeka, ft Santa Fe Railway
Company, Appellant, v. Public Sebvicb
Commission of Missoubi et al. [No.
93]; St. Louis Southwestebn Railway
Company, Appellant, v. Public Sebvicb
Commission op Missoubi et al. [No.
94]; Chicago, Rock Island, ft Pacific
Railway Company, Appellant, v. Public
Sebvicb Commission of Missoubi et al
[No. 96] ; [656] St. Louis, Kansas City
ft Colorado RailboadCompany, Appellant
V. Pxtrlio Sebvicb Commission of Mis
souRi et al.[No. 96] ; Kansas City South
KBN Railway Company, Appellant, v. Pub
Lie Sebvicb Commission of Missoubi et
al. [No. 97] ; Missoubi Pacific Railway
Company, Appellant, v. Public Sebvice
Commission of Missoubi et al. [No.
98]; St. Louis, Ibon Mountain, ft
Southern Railway Company, Appellant,
Y. PuBUO SisvicE Commission of Mis-
soubi et al. [No. 99] ; Missoubi, Kan-
SAS, ft Texas Railway Company, Appel-
lant, V. Public Sebvice Commission of
Missoubi et al. [No. 100]; Chicago,
BUBUNOTON, ft QUINCY RAILROAD COM-
PANY, Appellant, v. Pubuo Sebvice Com-
mission OF Missoubi et al. [No. 101];
Chicago, Milwaukee, ft St. Paul Rail-
way Company, Appellant, v. Pubuo Sebv-
icb Commission of Missoubi et al. [No.
102]; And Chicago ft Alton Railboad
Company, Appellant, v. Public Sebvice
Commission of Missoubi et al. [No.
103].
Appeals from the District Court of the
United States for the Weistem District of
Missouri.
See same case below, 210 Fed. 902.
Messrs. Frank Hagerman and Edward J.
White for appellants.
Messrs. John T. Barker and William G.
Busby for appellees.
November 29, 1915. Dismissed with costs,
on motion of counsel for the appellant.
4SS
Whjuam J. Deupbeb, Trustee, etc. Ap-
pellant, V. Alice P. Watson. [No. 215.)
Appeal from the United States Circuit
Court of Appeals for the Sixth Circuit.
Mr. Frederick W. Schmitz for appellant.
No counsel appeared for appellee.
December 2, 1915. Dismissed with costs,
on motion of [657] counsel for the appel-
lant.
Missoubi Pacific Railway Company^
Plaintiff in Error, v. State of Missoubi
AT the Relation of the City of St.
Louis. [No. 349.]
In Error to the Supreme Court of the
State' of BfissourL
Messrs. Ernest A Green and James F.
Green for plaintiff in error.
No counsel appeared for defendant in
error.
December 2, 1915. Dismissed with costs,
per stipulation.
Ralsa F. Mobley et al., Plaintiffs in Error,
V. William M. Fewel. [No. 105.]
In Error to the Supreme Court of the
State of Oklahoma.
Mr. A. J. Biddison for plaintiffs in error.
Mr. Henry B. Martin for defendant in
error.
December 2, 1915. Dismissed with costs,
j^ursuant to the Tenth Rule.
Mabiano Riesa Palmeb, on Behalf of Him-
self and other Notaries, Appellant, v.
Samuel D. Gbomeb, Treasurer, A. R.
Sawyer, Auditor, and Foster V. Brown,
Attorney General of Porto Rico. [No.
741.]
Appeal from the Supreme Court of Porto
Rico.
Mr. Samuel T. Ansell for appellees.
December 6, 1915. Docketed and dis-
missed with costs, on motion of counsel for
the appellees.
Clabbnob H. Venneb, Plaintiff in Error,
V. Chicago City Railway Company ot
aL [No. 125.]
In Error to the Supreme Court of the
State of Illinois.
Mr. Elijah N. Zoline for plaintiff in error.
No counsel appeared for defendants in er*
ror.
December 8, 1915. Dismissed with costs,
pursuant to the [658] Tenth Rule.
SS9 U. 8.
1915.
MEMORANDA CASES.
968, t59
Mabia L. Ovebton et al., Appellanta, t.
Unitkd States. [No. 130.]
Appeal from the Court of Claims.
See same case below, 49 Ct. CI. 700.
Mr. W. H. Conaway for appellants.
The Attorney General and Mr. Solicitor
General Davis for appellee.
December 9, 1916. Judgment reversed
snd cause remanded for further proceed-
ings, upon confession of error and motion
of Mr. Solicitor General Davis for the ap-
pelh
Abthub Rtle et al., as Trustees, etc., Ap-
pellants, v. UNrrED Statss. [No. 150.]
Appeal from the Court of Claims.
See same case below, 49 Ct. CI. 699.
Messrs. H. T. Newcomb and Morris F.
Frey for appellants.
The Attorney General and Mr. Solicitor
General Davis for appellee.
December 17, 1915. Judgment reversed
and cause remanded for further proceedings
upon confession of error and motion of Mr.
Solicitor General Davis for the appellee.
UifiTKD Statbs, Appellant, t. Jxransoii
F. MOSEB. [No. 159.]
Appeal from the Court of Claims.
See same case liclow, 49 Ct. CI. 285.
The Attorney General for appellant.
Messrs. George A. King and William B.
King for appellee.
December 17, 1915. Dismissed, on motion
of counsel for the appellant.
Obbook-Washinoton Railboad k Nayiqa-
TiON CoiiPANT, Plaintiff in Error, t.
Henbt M. Pfeifpeb. [No. 407.]
In Error to the Supreme Court of the
SUte of [650] Oregon.
Messrs. W. W. Cotton and Henry W.
Gark for plaintiff in error.
•0 li. ed.
Mr. H. M. Pfeiffer defendant in error,
pro se.
December 20, 1915. Dismissed with costs
on motion of counsel for the plaintiff in
error.
Nnm L. Soorr, Appellant, t. Mrs. E. N.
Phiufo et al. [No. 334.]
Appeal from the Supreme Court of the
Territory of Hawaii
See same case below, 22 Haw. 412.
Mr. John W. Cathcart for appellant.
No appearance for appellees.
January 6, 1916. Dismissed with costs
on motion of counsel for the appellant.
Coon Rapids National Bank et al.. Plain-
tiffs in Error, v. Maggie I. Leb,! Execu-
trix, etc [No. 796.]
In Error to the Supreme Court of the
State of Iowa.
No appearance for plaintiffs in error.
Mr. A. B. Cummins in behalf of Mr. O.
M. Brodcett for defendant in error.
January 10, 1916. Dodceted and dis-
missed with costs, pursuant to the Ninth
Rule.
Statb of Washinoton EC BSi^ Augustus
S. Pbabodt, Plaintiff in Error, Trustee,
T. City of Seattlb et aL [No. 191.]
In Error to the Supreme Court of the
State of Washington.
Messrs. George Donworth and Elmer E.
Todd for plaintiff in error.
Mr. Howard A. Hanson for defendants in
error.
September 7, 1915. Dismissed pursuant
to the Twenty-eighth Rule, per stipulation
of counsel.
1 Death of Anderville Lee suggested, snd
M»pearance of Maggie I. Lee, as party de-
fendant in error herein, filed ana entered
on January 10, 1916.
48»
CASES
ABGUSD AND DECIDED
SUPREME COURT
OF nn
UISriTED STATES
A*
OCTOBER TEUM, 1915.
Vol 240.
••!.•«. „,
ItEFESSNCE TABLE
or BUOH ams
DsoisED nr TJ. a sttfbxmx ooxtbi;
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841
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604
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8M
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608
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876
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780
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791
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681
Central Trust Co. t. Oki-
406^406
761
cago Auditorium Asso.
OU
407
Johnson t. Riddle
762
686-680
m u
012
400-470
M M
764
680-689
m m
014
470-479
W «
766
680-691
m M
810
470-476
M «
760
601-694
« m
810
470^79
•f m
767
694
M M
OIT
470-400
m m
768
694
Pinel T. Plnel
oir
im^ 1^
M «
760
606-697
M m
811
498
M M
700
697-699
m «.
810
HI ijc
Barlow t. Northern P. R.
609
Uterhart t. United States
810
Go.
700
601
m M
020
409-499
m m
701
601-004
m M
821
400-480
m «
702
604-006
•f m
922
400
Seaboard Air Line R. Co. ▼.
606
United States T. Union Mfg.
Ksnnej
702
Oft.
922
401r-492
« m
704
600—008
« «
822
On-404
m m
706
00^-010
• m
924
00 Ih •«.
mv^ **•*
fr
2^
lltte.
fsr
Ho-aii
United BtelM T. UbWa 11%.
641
Boolliam R. Oo. t. PftnaH
2tt
Co.
826
642
lUrbanka Steam Shofal Cb.
611
Southerm Bxp. Co. t. Bjm
226
T. WUk
241
612-619
M U
226
6if 216
M m
244
6U-416
M M
227
64^-442
M m
2tf
616
M M
222
f f§ f If
m m
•a
617-610
▼amer ▼. New Hanpihlrt
662
Georgia t. Tenneisea Ow-
Sav. Bank
226
perOo.
24i
6MK-4E8
Baltimore & 0. R. Go. ▼.
222-221
m m
24T
Hostetter
222
222
North Carolina t. Tnaea-
62S-626
«< M
22Q
eee
24T
626
Bullen ▼. Wiacontin
22Q
ffli m
M M
2tt
626
« M
284
224-667
M a
242
620-682
« W
226
667-660
w «
262
682
a M
2M
662^661
M a
2il
682
Southern R. Oo. t. Preaaott
226
661-262
w a
22i
688-684
«< M
227
622-466
a a
222
684-686
M «
2M
221^-227
a a
264
686-680
M M
22Q
667-268
a «
222
68^-641
« •
640
•M «.ai
THE DECISIONS
or TRB
Supreme Court of the United States
lY
OCTOBER TERM, 1915.
^RANK R. BRUSHABER, Appt.,
V.
^lON PACIFIC RAIUIOAD COMPANY.
(See S. C. Reporter's ed. 1-26.)
''^Junction — against Illegal Ux —
^tockliolc1er*8 suit.
1. The maintenance by a stockholder of
* •Uit to restrain a corporation from volim-
. ''Uy complying with the income tax provi-
i*^»i8 of the tariff act of October 3, 1913 (38
Y*^- at L. 166, chap. 16), upon the ffrounds
^^ the repugnancy of the statute to tne Fed-
^^al Constitution, of the peculiar relation
^£ the corporation to the stockholders, and
r^eir particular interests resulting from
fT^^ny of the administrative provisions of
^^ assailed act, of the confusion, wrong, and
^^Itiplicity of suits, and the absence of
^^1 means of redress, which will result if the
^^I'poration pays the tax and complies with
I f^^^ act in other respects without protest, as
^^ la alleged it is its intention to do, is not
.^^bidden by the prohibition of U. S. Rev.
^^t. § 3224, Comp. Stat. 1913, § 6947,
1^ ^^inst enjoining the enforcement of taxes.
*'^'>r other caftes, «ee Injunction, I. k. In Dl-
^ ^^«t Sup. Ct. 1908.1
^^^«rnal revenue — power of Congress
"***» 1n€*OTne tax.
;^_ 2. The whole purpose of U. S. Const.,
^^^t.1^ Amend., giving Congress the power "to
^^^ and collect taxes on incomes, from what-
^^.^^i" source derived, without apportionment
^^^^OTE. — On injunction to restrain the col-
"^^^^ion of illegal taxes — see notes to Odlin v.
^X^^odruff, 22 L.R.A. 699; Dows v. Chicago,
^^ X-. ed. U. S. 65; and Ogden City v. Arm-
r?*^' 42 L. ed. U. S. 445.
^^^^J^H the constitutionality of income taxes
^"rj^« notes to Alderman v. Wells, 27 L.R.A.
-teT^-S.) 864, and State ex rel. Bolens v.
' ^f^r, L.RA. 1916B, 669.
^^ X. ed.
among the several states, and without re<
gard to any census or enumeration," was
to exclude the source from which a taxed
income was derived as the criterion by which
to determine the applicability of the con-
stitutional requirement as to apportionment
of direct taxes.
[For other cases, see Internal Bevenne, I. b,
in Digest Sup. Ct 1908.]
Constitutional law — due process of law
— Income tax — retroactive effect.
3. The retroactive effect of the income
tax provisions of the tariff act of October
3, 1913 (38 Stat, at L. 166, chap. 16),
which fix the preceding March 1st as the
time from which the taxed income for the
first ten months is to be computed, does
not render the tax repugnant to the due
process of law clause of U. S. Const., 5tli
Amend., nor inconsistent with the 16th
Amendment itself, since the date of retro-
activity did not extend beyond the time when
the latter Amendment became operative.
[For other cases, see Constitutional IjSw, IV.
b, 6; IV. f, 2, in Digest Sup. Ct. 1908.]
Internal revenue — income tax — ex*
emptions.
4. Power to exclude from taxation some
income of designated persons and classes,
and to exempt entirely certain enumerated
organizations or corporations, such as labor,
agricultural, or horticultural organizational
mutual savings banks, etc., was not by im-
plication forbidden to Congress by the pro-
visions of U. S. Ck)nst., 16th Amend., that
Congress may lay and collect taxes on in-
comes "from whatever source derived."
[For other cases, see Internal Bevenne, I. b.
In Digest Sup. Ct. 1908.]
Internal revenue — income tax — ex^
emptions.
6. Labor, agricultural, or horticultural
organizations, mutual savings banks, etc.,
could be excepted from the operation of the
income tax provisions of the tariff act of
October 3, 1913 (38 SUi. at L. 166, ehat^.
SUPRBMB COUET OF THE UNITED STATBa
Oor. Tkm.
1i), withont rtndering the tax repngnant to
the-Federal GoDititution.
[For oUier <■•«■, aea iDtenwl BvTenue, I. b;
III. b, In DItMt Suii. Ct. 1908.1
Internal revenoe — Income tax — anl-
tarmlijr.
S. A geographical uniformity Klon« ia
what is exacted bj the provitiona of U. S.
Conrt,, art. 1, | 8, that "all dntiea, Im-
poeta, and exciees ahall be nnilonn through-
out the United SUtei."
IFoT otber cawi, *ee iDterual BaTennc, I. b,
Id Dlveat 8a p. Ct. IVOS.I
ConatltuUonal law — dae proceaa of
Ian — Income tu.
7. The due proceaa of law claaBe of U.
B. CoDtt., Sth Amend., la not a limitatioD
under a eeeming exerciie of the taxing pow-
er, Uie taxing statute U so arbitrary aa
to compel the cooclugion that it was not
the exertion of taxation, but the conflica-
tion of property, or iB so wanting in basia
for clauification aa to produce auch a groee
and patent inequality as ineritably to lead
to the aame coseluaion.
IFor otber caeea, lee ComtltntlDnal Law, IV.
b, 0, In Difeii Sop. Ct. Ift08.1
Conatltntlonal law — dne proceM of
law — Inoome tax.
8. The progreuive rate feature o( the
inrome tax impoaed bj the act of October
3, 1013 (38 Stat, at h. 166, chap. 16), doee
not eauae such tax to tranacend the concep-
tion of all taxation, and to be a mere arbi-
trary abuaa of power which must be treated
aa wanting in due proceaa of law.
(For other eaaei, ice ConiitlliitlaDal Law, JV.
b. 0, In DIgeit Sup. Ct 1908.]
Conatltntlonal law — due process ot
law — Income tax — discrimination.
0. The methoda ot collection at the
eonrce, prescribed by the income tax pro-
visions of the tariff'act of October 3, 1013
(38 but. at L. lee, chap. 16), are not
wanting in due proceaa of law because of
the coat to which corporations are subjected
by the duty ot eollwtiou east upon them,
nor because of the resulting discrimination
between corporations indebted upon coupon
and registered bonds and those not so in-
debted, nor because of the discrimination
against corporations which have assumed
the payment ot taxes on their bonds which
results from the fact that some or all of
their bondholders may be exempt from the
income tax, nor because of the discrimina-
tion against ownera ot corporate bonds in
favor ot individaala none of whose income
is derived from such property, nor because
the law does not release corporate bond-
holders from the payment ol a tax on their
bonds, even after auch taxes have been de-
ducted by the corporation, if, after the de-
duction, the coryraration should fall, nor
Irrcauae the payment of the tax by the cor-
poration does not relieve the owners ol
bonds, the taxes on which have been assumed
by the corporation, from their duty to in-
clude the income from such bends in making
a return ot all income.
(For other caseR, pee Connlitatlonsl Law, IT.
fc A la DlSMt 8ap. Ct. IMS.]
Conatltntlonal law — dne prooM* tit
law — Income tax — dlacrUntiwtlon.
10. Limiting the amount of Interart
which may be deducted from groaa incoma
at a corporation for the purpose of Axfaw
the taxable income to interest on indebtef
nesa not exceeding one half the som of
bonded indebtednesa and paid-up eapltkl
ttock, aa is done by the income tax proirt-
liona of the tariff act ot October 3, IDIS
(38 Stat, at L. 166, chap. 10), is not want-
ing In due proceu of law because discrim-
inating between different classes of oor-
porations and individuals.
[For otber cases, see Constltntianal lisw, IT.
b. 6, In DlKCSt Sup. Ct 180S.]
Constitutional law — due process ot
law — income tax — discrimination.
11. Allowing individuals to deduct fron
their gross income dividends paid them by
corporations whose incomes are taxed, and
not giving such right of deduction to cor-
porations, as is done by the income tax
provisions of the tariff act of October S,
1D13 (3R SUt. at L. 166, chap. 1«), doea
not render the tax wanting in due process
of law.
IFor other cnsea, see CoDatltational Law. IT.
b, fl, in Divest Bap. Ct 190H.]
Constitutional law — due process ot
law — Income tax — discrimination.
J'l. The allowance of a deduction of
(3,000 or (4,000 to those who pay the nor-
mal tax, as ia done by the income tax provi-
sions of the Urilf act of October 3, 1013
(38 SUt. at L. 166, chap. 16), is not want-
ing in due process ot law because those
whose incomes are greater than (20,000 are
not allowed, for the purpoae of the addition-
al or progressive Ux, a second right to da-
duct the (3,000 or (4,000 which they have
already enjoyed, nor because, for the pur-
pose of the additional tax, no second right
to deduct dividends received from corpora*
tions is permitted.
[ITor otber cskk, see Conitltn Clonal Law, IV.
b. fl, in DIxest 8np. Ct 1808.]
Constitutional law — dae procttas itf
law — Income Ux — discrimination.
13. The allowance ot a deduction of eUt-
ed amounU for the purpoae ot ascerUining
the Uxable income, as is done by the in-
come Ux provisions of the taritf act of
October 3, 1013 {38 SUt, at U 16U, chap.
16), doea not render the Ux wanting in
due process ot law because ot the discrim-
ination between married and single peopla,
and between husbands and wives who ar«
living together and those who are not.
[For otber ntn, we ConiCIIntlonal Law. IT.
b, a. Id Dlaest Sup. Ct 1B08.)
Constitutional law — doe proccsa of
law — Income Ux — disc:rlnilnatloB,
14. No unconstitutional discriminatitm
and want al due process of law resnlU bn-
cause the owners of houses in which tbaj
live arc not compelled by the income tu
provisions of the Uriff act of October t,
1S13 (38 SUt. at h. 166, chap. 16), to Mti-
mato the renUI value in making up their
incomes, while thoae who live in rented
houses nre not allowed, in making up tbair
Uxable income, to deduct the rent whhk
140 V. S.
1915.
BRU8HABER t. UNION P. R. 00.
they haTe paid* nor iNlbauie of the fact that
although family enenaes are not, as a rple,
permitted to be deducted from gross income,
farmers are permitted to omit from their
income return certain products of the farm
which are susceptible of use by them for
sustaining their families during the year.
[For otber cases, see Constitutional Lew, IV.
b, 6, In Digest Sup. Ct. 1»08.]
ConstltQtioiUil law — delegation of
power — Administration of Income
tax.
15. An unwarrantable delegation of legis-
lative authority was not made by the in-
come tax provisions of the tariff act of
October 3, 1013 (88 SUt. at L. 166, ehi^.
16), because certain administrative powers
to raf orce the act were conferred by it upon
the Secretary of the Treasury.
(For other cases, see Conttltntlonsl Lew, III.
b. In Digest Sup. Ct. 1008.]
[No. 140.]
Argued October 14 and 15, 1015. Decided
January 24, 1016.
APPEAL from the District Court of the
Uniced States for the Southern District
of New York to review a decree dismissing
the bill in* a suit by a stockholder to re-
strain the corporation from voluntarily com-
plying M-ith the Fjederal income tax. Af-
firmed.
The facts are stated in the opinion.
Mr. Jnllen T. Davles argued the cause,
and, with Messrs. Brainard Tolles, Qarrard
Glenn, and Martin A. Schenck, filed a brief
for i^pellant:
Arbitrary selection under the guise of
classification is uniformly condemned.
SanU Clara County t. Southern P. R. Co.
18 Fed. 385, affirmed in 118 U. S. 804, 80
L. ed. 118, 6 Sup. Ct. Rep. 1182; San Ber-
nardino County T. Southern P. R. Co. 118
U. S. 417, 30 L. ed. 125, 6 Sup. Ct. Rep. 1144 ;
San Mateo County v. Southern P. R. Co. 18
Fed. 145; 1 Cooley, Taxn. 3d ed. 1, 4; Gray,
limitations of Taxing Power, p. 353;
Cooley, Const. Lim. pp. 607, 615; Citizens'
Sav. k L. Asso. v. Topeka, 20 WalL 655, 22
L. ed. 455; United States v. Singer, 15 WaU.
Ill, 21 L. ed. 40; M'CuUoch v. Maryland,
4 Wheat. 316, 4 L. ed. 570; Ward v. Mary-
land, 12 Wall. 418, 20 L. ed. 440| PoUock
T. Farmers' Loan k T. Co. 167 U. S. 420,
30 L. ed. 750, 15 Sup. Ct. Rep. 678; South-
ern R. Co. V. Greene, 216 U. S. 400, 54 L. ed.
636, 80 Sup. Ct. Rep. 287, 17 Ann. Caa.
1247.
Unapportioned compulsory serviee it not
a tax.
United SUtes t. Baltimore ^b 0. R. Co.
17 WalL 822, 326, 21 L. ed. 507, 50tf; Re
Vkrrell, 211 Fed. 213, 6 N. a a A. 858;
Savannah v. Cooper, 131 Ga. 674» 68 a B. '
•0 I«. ed.
188; Bouvier's Law Diet; Toone t. State,
178 Ala. 70, 42 LJLA.(N.a) 1045, 50 So.
665; New Jersey v. Anderson, 203 U. S.
483, 51 L. ed. 284, 27 Sup. Ct Rep. 137.
Enforced labor by legislative enactment
without compensation is an unconstitu-
tional taking of property.
Louisville & N. R. Co. v. Central Stock-
yards Co. 212 U. S. 132, 53 L. ed. 441, 20
Sup. Ct. Rep. 246; United States y. Welch,
217 U. S. 333, 330, 54 L. ed. 787, 780, 28
L.RJ1.(N.S.) 385, 80 Sup. Ct Rep. 527, 10
Ann. Cas. 680; United States v. Buffalo
PitU Co. ^34 U. S. 228, 58 L. ed. 1200, 34
Sup. Ct. Rep. 840; Richards v. Washington
Terminal Co. 233 U. S. 546, 58 L. ed. 1088,
LJLAa015A, 887, 34 Sup. Ct. Rep. 654;
James v. Campbell, 104 U. S. 356, 26 L. ed.
786; Chicago, B. ^b Q. R. Co. v. Chicago, 16d
U; S. 226, 41 L. ed. 070, 17 Sup. Ct. Rep.
581; Lake Shore & M. S. R. Co. t. Smith,
173 U. S. 684, 43 L. ed. 858; 10 Sup. Ct. Rep.
565; McCully v. Chicago, B. k Q. R. Co. 212
Mo. 1, 110 S. W. 711; Atty. Gen. v. Old
Colony R. Co. 160 Mass. 62, 22 L.R.A. 112,
35 N. E. 252; Chicago, M. & St. P. R. Co.
V. Wisconsin, 238 U. S. 401, 50 L. ed. 1423,
L.RA.1016A, 1133, P.U.R.1015D, 706, 35
Sup. Ct Rep. 860; United SUtes v. Mitch-
ell, 58 Fed. 003.
Congress, in the exercise of its taxing
power, is nevertheless bound by the express
and implied provisions of the Constitution.
Connolly v. Union Sewer Pipe Co. 184
U. S. 540, 46 L. ed. 670, 22 Sup. Ct. Rep.
431.
The grant of power to Congress by the
Constitution does not become effective until
Congress exercises the power by legislation.
Sturges V. Crowninshield, 4 Wheat. 122, 4
L. ed. 520; Missouri P. R. Co. v. Larabee
Flour Mills Co. 211 U. S. 612-623, 53 L. ed.
352-361, 20 Sup. Ct. Rep. 214; Minnesota
Rate Cases (Simpson v. Shepard) 230 U. S.
352-308, 57 L. ed. 1511-1540, 48 LJIA.
(NJ3.) 1151, 33 Sup. a. Rep. 720, Ann. Cas.
1016A, 18.
No legislative fiat of October 8, 1013,
could change what already existed. Such
amounts as had been received by the tax-
payer prior to that date were no longer
income, but had become capital, and merged
in the general corpus of his estate.
Merchants' Ins. Co. v. McCartney, 1 Lowf
Dec. 447, Fed. Cas. No. 0,443; People ex
reL Cornell University v. Davenport, 30
Hun, 177; Sun Mut Ins. Co. v. New York,
8 N. Y. 241; Gray v. Darlington, 16 WalL
63, 21 L. ed. 45; Riddle's Appeal, 00 Pa.
270; Goodwin v. McGaughey, 108 Minn. 248,
122 N. W. 6; Kalbach v. Clark, 183 Iowa,
215, 12 LJLA.(NJ3.) 801, 110 N. W. 500, 12
Ann. Caa. 647.
Where an assessment rests in part upon
SUFEEHB OOUET OF THE VHITKD STATES.
Oct. Tuk,
m. lubject ov«r which the KBaeuing BUthoritf
baa no juriadiction, or wher« the tax ii
levied In part for aa Illegal pnrpoae, and
no method appears wherebf tiw legal ele-
ment can be wparated from that which i<
Illegal, the whole tax, or the whole aueaa-
ment, aa the ease may be, ia void.
Stetaon v. Kempton, 13 Maaa. 272, 7 Am.
Dec. 145; Libb^ r. Bunibam, 16 Mau. 144;
Joyner v. School Diet. 3 Cuah. 607; Free-
land y. HastingB, 10 Allen, 670; Johnson t.
Colbum, 36 Vt. BS3( I^cej -r. Darii, 4
Mich. 140, 06 Am. Dee. 624; CUrhe v.
Strickland, 2 Curt. C. C. 43D, Fed. Cas. Mo.
2,864; Union Nat. Bank v. Chicago, 3 Bias.
82, Fed. Cas. No. 14,374; Worthen t. Bad-
gett, 32 Ark. 496; Santa Gara County v.
Southern P. R. Co. 116 U. S. 3B4, SO L. ed.
lie, 6 Sup. Ct. Rep. 1132; Alexandria
Canal, R. k. Bridge Co. v. District of Colom-
bia, 6 Mackey, 376; Alexandria Canal, R.
A Bridge Co. v.' District of Columbia, 1
Hackey, 817.
Solicitor General Davis and Assistant
Attorney Oeneril Wallace argued the cause,
and, with Attorney General Gregory, filed a
brief for the United SUtes:
The court below waa without jurisdic-
tion.
Snyder v. Harks, 100 U. S. 189, 27 L. ed.
001, 3 Sup. Ct. Rep. 167; Shelton r. Piatt,
130 U. S. 691, 36 L. ed. 273, 11 Snp. Ct. Rep.
646; Allen v. Pullman's Palace Car Co. 130
U. S. 668, 36 L. ed. 303, 11 Sup. Ct. Rep.
682; Straus v. Abraat Realty Co. 200 Fed.
327; Hawes r. Oakland (Hawes v. Contra
Costa Water Co.) 104 U. S. 460, 26 L. ed.
827.
No facta are alleged indicating any
greater danger of multiplicity of euita, or
clouds on titles, in connection with the en-
forcement of these taxes, than in the case
of any other tax.
Daws T. Chicago, 11 WaU. 108, 20 L. ed.
«6; Southern R. Co. t. King, 217 U. S. 624,
6S4, 630, 64 L. ed. 868, 8T1, 872, 30 Sup. a.
Rep. 694.
The uniformity requirement of clause 1
of g 8 of article I. of the Constitution is
limited to duties, imposts, and excises, and
does not apply to direct taxes.
Pollock V. Farmers' Loan t T. Co. 167 U.
C. 657, 30 L. ed. 810, IS Sup. Ct Rep. 673;
Spreckels Sugar Ref. Co. t. HeClain, 192
U. S. 307, 413, 46 L. ed. 496, 601, 24 Sup. Ct.
376; License Tax Cases, 6 WaU. 402, 471, 18
L. ed. 407, 600.
Apportionment being restricted to direct
taxes only (Flint v. Stone Tracy Co. 220
U. S. 107, 162, 177, 66 L. ed. 380, 413, 423,
« Sup. Ct. Bep. 342, Ann. Cas. 10126,
1312), the 16th Amendment, in removing
a*t rMtiiotion, reoognii«d any tax upon
I income "from whatevu- source derived" aa
' a direct tax, and, as such, subject to Hm
apportionment rules unless specially oz-
The Constitution imposee on the taxing
power no rule of implied or inherent nid*
formity.
PoIk>ck v. Farmers' Loan ft T. Co. 167 XJ.
S. 657, 30 L. ed. 810, 16 Sup. Ct. Rep. 673;
License Tax Oases, 6 Wall. 462, 471, 18 L.
ed. 407, 500; Patton v. Brady, 1S4 U. S.
608, 46 L. ed. 713, 22 Sup. Ct. Rep. 403;
McCray v. United States, 105 U. S. 27, ««
L, ed. 76, 24 Sup. Ct. Rep.'76D, 1 Ann. Oa«.
561 ; Flint v. Stone Tracy Co. 220 U'. S. 107,
66 L. ed. 389, 31 Sup. Ct. Rep. 342, Ann.
Cas. 1012B, 1312.
The rule of uniformity, where applicable,'
is not violated by either exemption, claaai-
Scation, or discrimination unless these be ao
arbitrary and outrageous as to indicate
favoritism or prejudice.
Knowlton v. Moore, 178 U. S. 41, 44 L.
ed. 06B, 20 Sup. Ct. Rep. 747; Flint v.
Stone-Tracy Co. 220 U. S. 107, 66 L. ed.
380, 31 Sup. Ct. Rep. 342, Ann. Cas. 1012B,
1312; Cook r. Marshall County, 196 U. S.
261, 49 L. ed. 471, 26 Sup. Ct. Rep. 233;
Nicol V. Ames, 173 U. S. S0», 43 L. ed. 786,
10 Sup. Ct. Rep. 622.
The express uniformity clause of the
Constitution requires only geographical, and.
not intrinsic, uniformity.
Knowlton v. Moore, 178 U. S. 41, 44 L.
ed. 069, 20 Sup. Ct Rep. 747; Billings ▼.
United SUtes, 232 U. S. 261, 68 L. ed- 6M,
34 Sup. Ct. Rep. 421.
Assuming also that the Bth Amendment
controls the taxing power, — as it doea
not, — and even that the "equal protection"
requirement of the 14th Amendment may
be either read into or spelled out of the lan-
guage of the 6th Amendment, — as It may
not, — neither would operate to forbid rea-
sonable exemption, claseiBcation, or dis-
crimination.
District of Columbia v. Brooke, 214 U. S.
138, 63 L. ed. 041, 20 Sup. Ct. Rep. 660;
Second Employers' Liability Cases (Mon-
dou V. New York, N. H. & H. R. Co.) 223
U. S. 1, 66 L. ed. 327, 38 L.R.A.(N.S.) 44,
32 Sup. Ct. Rep. 160, 1 N. C. C. A. 876;
Barrett v. IndUna, 229 U. S. 26, 29, 67 L.
ed. 1060, 1052, 33 Sup. Ct. Rep. 6B2; Inter-
national Harvester Co. v. Missouri, 234 U.
S. 100, 214, 216, 68 L. sd. 1276, 1283, 1284,
62 LJLA.(N.S.) 626, 34 Sup. Ct. Rep. 859;
Metropolis Theater Co. v. Chicago, 228 U.
S. 61, 60, 67 L. ed. 730, 733, S3 Sup. Ct
Rep. 441 ; Lindsley v. National Carbonio
Gas Co. 220 U. -S. 61, 78, 65 L. ed. 800, 377,
81 Slip. Ct. Rep. 337, Ann. Cas. 1&12C, 160;
Gibbons v. District of Columbia, 116 U. &
404, 20 L. ad. 680, 6 Sap. Ct Rep. 427;
14* u. a.
1916.
BRUSHABER v. UNION P. R. 00.
Bcera ▼. Glynn, 211 U. S. 477, 53 L. ed.
290, 29 Sup. Ct. Rep. 190; Magoun v. Illi-
nob Trust A Say. Bank, 170 U. S. 299, 42
L. ed. 1044, 18 Sup. Ct. Rep. 594; Welch
T. Cook, 97 U. S. 641, 24 L. ed. 1112; Home
<of the Friendless v. Rouse, 8 Wall. 430, 19
L. ed. 496; East Saginaw Salt Mfg. Co. v.
East Saginaw, 13 Wall. 373, 20 L. ed. 611.
Selection and classification is an exdu-
aive function of Congress until its exercise
becomes plainly the result of prejudice or
fsToritism.
Coolej, Const. Lim. 3d ed. p. 739; Pacific
Ins. Co. V. Soule, 7 Wall. 433, 19 L. ed. 95;
McCray v. United States, 195 U. S. 27, 49
1m ed. 78, 24 Sup. Ct Rep. 769, 1 Ann. Cas.
561; Veazie Baiflc v. Fenno, 8 Wall. 548, 19
L. ed. 487; Treat v. White, 181 U. S. 264,
45 L. ed. 853, 21 Sup. Ct. Rep. 611; Flint v.
Stone Tracy Co. 220 U. S. 107, 55 L. ed.
389, 31 Sup. Ct. Rep. 342, Ann. Cas. 1912B,
1312; Patton v. Brady, 184 U. S. 608, 46
L. ed. 713, 22 Sup. Ct. Rep. 493; Lindsley
T. Natural Carbonic Gas Co. 220 U. S. 61,
55 L. ed. 369, 31 Sup. Ct. Rep. 337, Ann.
Cas. 1912C, 160; Metropolis Theater Co. ▼
Chicago, 228 U. S. 61, 57 L. ed. 730, 33
Sup. Ct. Rep. 441; International Harvester
Co. V. Missouri, 234 U. S. 199, 58 L. ed.
1270, 52 L.RA..(N.S.) 525, 34 Sup. Ct. Rep.
859; Nicol v. Ames, 173 U. S. 509, 43 L. ed.
786. 19 Sup. Ct. Rep. 522; Barrett v. In-
diana, 220 U. S. 26, 57 L. ed. 1050, 33 Sup.
Ct. Rep. 692.
None of the exemptions or discrimina-
"tions here complained of produce lack of
uniformity.
Nicol y. Ames, 173 U. S. 509, 43 L. ed
786, 19 Sup. Ct. Rep. 522; Lindsley v.
Ifatural Carbonic Gas Co. 220 U. S. 61, 55
!#. ed. 369, 31 Sup. Ct. Rep. 387, Ann. Cas.
1912C, 160; Flint v. Stone Tracy Co. 220
U. S. 107, 55 L. ed. 380, 31 Sup. Ct. Rep.
M2, Ann. Gas. 1912B, 1312; Home of the
Friendless v. Rouse, 8 WalL 430, 19 L. ed.
495; East Saginaw Salt Mfg. Co. v. East
Saginaw, 13 WalL 373, 20 L. ed. 611; Gib-
lK>ns T. District of Columbia, 116 U. S. 404,
29 L. ed. 680, 6 Sup. Ct. Rep. 427; Peacock
T. Prait, 58 C. C. A. 48, 121 Fed. 777 ; Black,
bieome Taxes, p. 28; Kentucky R. Tax
Cases, 115 U. S. 321, 337, 29 L. ed. 414, 419,
S Sup. Ct. Rep. 57; Pacific Exp. Co. v. Sei-
bcrt, 142 U. S. 339, 354, 35 L. ed. 1035,
1040, 3 Inters. Com. Rep. 810, 12 Sup. Ct.
Rep. £50; Income Tax Cases, 148 Wis. 456,
LJI.A.1915B, 569, 134 N. W. 673, 135 N.
W. 164, Ann. Cas. 1913A, 1147; Tennes-
aee v. Wliitworth, 117 U. S. 129, 29 U
•ed 830, 6 Sup. Ct Rep. 645; New Or-
leans v. Citizens' Bank, 167 U. S. 371, 42
L. ed. 202; 17 Sup. Ct. Rep. 905; Powers
T. Detroit, G. H. A M. R. Co. 201 U. S. 548,
M L. ed. 860, 26 Sup. Ct. Rep. 556; South-
«• Ii. ed.
em R. Co. y. King, 217 U. S. 534, 54 L. ed.
871, 30 Sup. Ct. Rep. 594; New York ex
rel. Hatch v. Reardon, 204 U. S. 160, 51 L.
ed. 422, 27 Sup. Ct. Rep. 188; Stratton's
Independence v. Howbert, 231 U. S. 399, 58
L. ed. 285, 34 Sup. Ct. Rep. 136; Coltness
Iron Co. y. Black, L. R. 6 App. Cas. 315, 51
L. J. Q. B. N. S. 626, 45 L. T. N. S. 145,
20 Week. Rep. 717, 46 J. P. 20; Alianza Co.
y. BeU [1904] 2 K. B. 666, [1905] 1 K. B.
184, 74 L. J. K. B. N. S. 219, 53 Week. Rep.
257, 92 L. T. N. S. 184, 21 Times L. R. 134,
[1906] A. C. 18, 75 L. J. K. B. N. S. 44, 54
Week. Rep. 413, 93 L. T. N. S. 705, 22 Times
L. R. 94; Com. y. Ocean Oil Co. 59 Pa. 61,
14 Mor. Min. Rep. 126; Com. t. Penn Gas
Coal Co. 62 Pa. 241, 14 Mor. Min. Rep. 163;
Ohio Tax Cases, 232 U. S. 576, 590, 591, 58
L. ed. 738, 744, 745, 34 Sup. Ct. Rep. 372;
Southwestern Oil Co. y. Texas, 217 U. S.
114, 126, 127, 54 L. ed. 688, 604, 30 Sup.
Ct. Rep. 496; Magoun y. Hlinois Trust &
Say. Bank, 170 U. S. 292, 293, 296, 42 L. ed.
1042, 1043, 18 Sup. Ct. Rep. 504; Knowlton
y. Moore, 178 U. S. 109, 44 L. ed. 996, 20
Sup. Ct. Rep. 747.
The tax is not an infraction of the gen-
eral power of the states to authorize the
formation of corporations and joint stock
companies.
Flint y.* Stone Tracy Co. 220 U. S. 107,
158, 55 L. ed. 389, 416, 31 Sup. Ct. Rep. 342,
Ann. QuB. 1912B, 1812.
The burden of "source collection," placed
upon certain corporations, does not violate
the Constitution.
First Nat. Bank y. Kentucky, 9 WalL
353, 363, 19 L. ed. 701, 704; Home Say.
Bank y. Des Moines, 205 U. S. 503, 51 L.
ed. 901, 27 Sup. Ct. Rep. 571; Cooley, Taxn.
3d ed. p. 832; Patton y. Brady, 184 U. S.
608, 620, 621, 46 L. ed. 713, 719, 720, 22
Sup. Ct. Rep. 493; Bell's Gap R. Co. y.
Pennsylvania, 134 U. S. 232, 239, 33 L. ed.
892, 895, 10 Sup. Ct. Rep. 533; Cummings
y. Merchants' Nat. Bank, 101 U. S. 153, 156,
25 L. ed. 903, 904; National Safe Deposit
Co. y. Stead, 232 U. S. 58, 70, 58 L. ed.
504, 510, 34 Sup. Ct. Rep. 209; Gray, Limi-
tations of Taxing Power, § 1195; First
Nat. Bank y. Chehalis County, 166 U. S.
440, 444, 41 L. ed. 1069, 1072, 17 Sup. Ct.
Rep. 629; Merchants' & M. Nat. Bank y.
Pennsylvania, 167 U. S. 461, 464, 42 L. ed.
236, 237, 17 Sup. Ct. Rep. 829; Carstairs y.
Cochran, 193 U. S. 10, 48 L. ed. 696, 24 Sup.
Ct. Rep. 318; Union Bank y. Richmond, 94
Va. 316, 26 S. E. 821 ; Com. y. Citizens' Nat.
Bank, 117 Ky. 946, 80 S. W. 158.
The taxation of income accrued prior to
the passage of the act violates no constitu-
tional nor equitable principle.
Drexel v. Com. 46 Pa. 31; Stockdale y.
Atlantic Ins. Co. 20 Wall. 323, 22 L. ed.
32 497
9, 10
SUPREME COURT OF THE UNITED STATES.
Oct.
S48; Income Tax Gases, 148 Wis. 456,
LJLA.1016B, 660, 134 N. W. 673, 136 N. W.
164, Ann. Gas. 1013A, 1147; Coolej, Tazn.
3d ed. pp. 492-494. See also Locke t. New
Orleans, 4 Wall. 172, 18 L. ed. 334; Graj
T. Darlington, 16 WalL 63, 66, 21 L. ed. 46,
46; Maine v. Grand Trunk R. Go. 142 U. S.
217, 36 L. ed. 994, 3 Inters. Gom. Rep. 807,
12 Sup. Ct. Rep. 121, 163; Patton v. Brady,
184 U. S. 608, 46 L. ed. 713, 22 Sup. Gt Rep.
493; Flint v. Stone Tracy Go. 220 U. S.
108, 66 L. ed. 389, 31 Sup. Gt. Rep. 342,
Ann. Gas. 1912B, 1312.
There is no invalid delegation of judicial
authority to the Secretary of the Treasury.
Den ex dem. Murray v. Hoboken Land
k ImproT. Go. 18 How. 272, 15 L. ed. 372;
Fong Yeu Ting v. United States, 149 U. S.
698, 714, 37 L. ed. 906, 913, 13 Sup. Gt. Rep.
1016; Lem Moon Sing v. United States, 158
U. S. 638, 644, 39 L. ed. 1082, 1084, 16 Sup.
Gt. Rep. 967; Nishimura Ekiu v. United
SUtes, 142 U. S. 651, 660, 35 L. ed. 1146,
1149, 12 Sup. Gt. Rep. 336; United SUtes
y. Duell, 172 U. S. 676, 586, 43 L. ed. 669,
563, 19 Sup. Gt. Rep. 286; Butterworth v.
United SUtes, 112 U. S. 60, 67, 18 L. ed.
656, 661, 6 Sup. Gt. Rep. 25; Runkle ▼.
United SUtes, 122 U. S. 643, 657, 30 L. ed.
1167, 1171, 7 Sup. a. Rep. 1141; United
SUtes V. Ju Toy, 198 U. S. 253, 49 L. ed.
1040, 26 Sup. Gt. Rep. 644; Tang Tun ▼.
Edsell, 223 U. S. 673, 56 L. ed. 606, 32 Sup.
Gt. Rep. 359; United SUtes ▼. Sing Tuck,
194 U. S. 161, 170, 48 L. ed. 917, 921, 24
Sup. Gt. Rep. 621; Japanese Immigrant
Gase (YamaUya v. Fisher) 189 U. S. 86, 98,
47 L. ed. 721, 724, 23 Sup. Gt. Rep. 611;
United SUtes ex rel. Turner v. Williams,
194 U. S. 279, 48 L. ed. 979, 24 Sup. Gt.
Rep. 719; Ghin Bak Kan v. United SUtes,
186 U. S. 193, 46 L. ed. 1121, 22 Sup.
Gt. Rep. 891; Fok Yung Yo v. United
SUtes, 186 U. S. 296, 46 L. ed. 917, 22
Sup. Gt. Rep. 686; Union Bridge Go. ▼.
United SUtes, 204 U. S. 364, 386, 61 L. ed.
623, 533, 27 Sup. Gt. Rep. 367 ; Buttfield v.
Stranahan, 192 U. S. 470, 48 L. ed. 625, 24
Sup. Gt. Rep. 349; Oceanic Steam Nav. Go.
y. Stranahan, 214 U. S. 320, 63 L. ed. 1013,
29 Sup. Gt. Rep. 671.
There is ample provision for hearing and
appeal upon the matter of assessment.
Kentucky R. Tax Gases, 116 U. S. 321,
831, 29 L. ed. 414, 416, 6 Sup. Gt. Rep. 67 ;
People's Nat. Bank t. Marye, 107 Fed. 670;
Hagar ▼. Reclamation Dist. Ill U. S. 701,
709, 28 L. ed. 669, 672, 4 Sup. Gt. Rep. 663;
PitUburgh, G. G. k St. L. R. Go. v. Board
of Public Works, 172 U. S. 32, 45, 43 L. ed.
354, 358, 19 Sup. Gt. Rep. 90; Turpin v.
Lemon, 187 U. S. 51, 68, 47 L. ed. 70, 74,
23 Sup. Gt. Rep. 20; Glidden v. Harrington,
189 U. 8. 255, 268, 47 L. ed. 798, 801, 23
498
Sup. Gt. Rep. 674; Hodge v. Muscatine
Gounty, 196 U. S. 276, 281, 49 L. ed. 477,
478, 26 Sup. Gt Rep. 237.
The invalidity of a part of the act would
not invalidate the whole.
Gooley, Gonst. Lim. 7th ed. pp. 246, 247,
260; Marshall Field & Go. v. GUrk, 143 U.
S. 649, 36 L. ed. 294, 12 Sup. Gt. Rep. 495;
Huntington v. Wortfaen, 120 U. S. 97, 30
L. ed. 688, 7 Sup. Gt. Rep. 469.
Mr. Henry W. Glark filed a memorandum
for appellee.
Mr. Ghief Justice White delivered the
opinion of the court:
As a stockholder of the Union Pacific
Railroad Gompany, the appellant filed his
bill to enjoin the corporation from comply-
ing with the income Ux provisions of the
Uriff act of October 3, 1913 (§ II., chap. 16,
38 SUt. at L. 166). Because of constitu-
tional questions duly arising the case is here
on direct appeal from a decree susUining a
motion to dismiss because no ground for re-
lief was sUted.
The right to prevent the corporation from
returning and paying the tax was based up-
on many averments as to the repugnancy .of
the sUtute to the Constitution of the United
SUtes, of the peculiar relation of the cor-
poration to the stockholders, and their par-
ticular interests resulting from many of tlie
administrative provisions of the assailed act,
of the confusion, wrong, and multiplicity
[lO] of suits and the absence of all means of
redress which would result if the corporation
paid the tax and complied with the act in
other respecU without protest, as it was al-
leged it was its intention to do. To put out
of the way a question of jurisdiction we at
once say that in view of these avermenU
and the ruling in PoUock v. Farmers' Loan
ft T. Co. 167 U. S. 429, 39 L. ed. 7r>9, 15
Sup. Gt. Rep. 673, susUining the right of
a stockholder to sue to restrain a corpora-
tion under proper averments from volun-
Urily paying a Ux charged to be unconsti-
tutional on the ground that to permit ^ucll
a suit did not violate the prohibitions of
§ 3224, Revised SUtutes (Corop. SUt. 1913,
§ 5947), against enjoining the enforcement
of taxes, \te are of opinion that the con-
tention here made that there was no juris-
diction of the cause, since to enterUin it
would violate the provisions of the Revised
SUtutes referred to, is without merit. Be-
fore coming to dispose of the case on the
merits, however, we observe that the de-
fendant corporation having called the at-
tention of the government to the pendency
of the cause and the nature of the contro*
versy and its unwillingness to volunUrily
refuse to comply with the act assailed, the
United SUtes, as amicus curie, has at bar
240 U. 8.
1915.
BRUSHABER ▼. UNJON P. R. 00.
10-13
been heard both orally and by brief for
the purpose of siutaining the decree.
Aside from averments as to citizenship
and residence, recitals as to the provisions
of the statute, and statements as to the
business of the corporation, contained in
the first ten paragraphs of the bill, ad-
vanced to sustain jurisdiction, the bill al-
leged twenty-one constitutional objections
specified in that number of paragraphs or
subdivisions. As all the grounds assert a
violation of the Constitution, it follows that,
in a wide sense, they all charge a repug-
nancy of the statute to the 16th Amend-
ment, under the more immediate sanction
of which the statute was adopted.
The various propositions are so inter-
mingled as to cause it to be difficult to
classify them. We are of opinion, however,
[11] that the confusion is not inherent, but
rather arises from the conclusion that the
16th Amendment provides for a hitherto
unknown power of taxation; that is, a
power to levy an income tax which, al-
though direct, should not be subject to the
regulation of apportionment applicable to
all other direct taxes. And the far-reach-
ing effect of this erroneous assumption will
be made clear by generalizing the many
contentions advanced in argument to sup-
port it, as follows: (a) The Amendment
authorizes only a particular character of
direct tax without apportionment, and there-
fore if a tax is levied under its assumed
authority which docs not partake of the
characteristics exacted by the Amendment,
it is outside of the Amendment, and is void
as a direct tax in the general constitutional
sense because not apportioned, (b) As the
Amendment authorizes a tax only upon in-
comes "from whatever source derived," the
exclusion from taxation of some income of
designated persons and classes is not au-
thorized, and hence the constitutionality of
the law must be tested by the general pro-
visions of the Constitution as to taxation,
and tiius again the tax is void for want of
apportionment, (c) As the right to tax
"incomes from whatever source derived"
for which Uie Amendment provides must
be considered as exacting intrinsic uniform-
ity, therefore no tax comes under the au-
thority of the Amendment not conforming
to such standard, and hence all the provi-
sions of the assailed statute must once
more be tested solely under the general
and pre-existing provisions of the Consti-
tution, causing the statute again to be void
in the absence of apportionment, (d) As
tl>e power conferred by the Amendment is
new ami prospective, the attempt in the
statute to make its provisions retroactively
apply is void because, so far as the retroac-
tive period is concerned, it is governed by
•0 L. ed.
the pre-existing constitutional requirement
as to apportionment.
But it clearly results that the proposi-
tion and the contentions [12] under it, if
acceded to, would cause one provision of the
Constitution to destroy another; that is,
they would result in bringing the provisions
of the Amendment exempting a direct tax
from apportionment into irreconcilable con-
flict with the general requirement that all
direct taxes be apportioned. Moreover, the
tax authorized by the Amendment, beinn
direct, would not come under the rule of
uniformity applicable under the Constitu-
tion to other than direct taxes, and thus it
would come to pass that the result of the
Amendment would be to authorize a partic-
ular direct tax not subject either to ap*
portionment or to the rule of geographical
uniformity, thus giving power to impose
.a different tax in one state or states than
was levied in another state or states. This
result, instead of simplifying the situation
and making clear the limitations on the
taxing power, which obviously the Amend-
ment must have been intended to accom-
plish, would create radical and destructive
changes ifi our constitutional system and
multiply confusion.
But let us by a demonstration of the
error of the fundamental proposition as to
the significance of the Amendment dispel
the confusion necessarily arising from the
arguments deduced from it. Before coming,
however, to the text of the Amendment, to
the end that its significance may be de-
termined in the light of the previous legis-
lative and judicial history of the subject
with which the Amendment is concerned,
and with a knowledge of the conditions
which presumptively led up to its adoption,
and hence of the purpose it was intended
to accomplish, we make a brief statement
on those subjects.
That the authority conferred upon Con-
gress by § 8 of article 1 "to lay and col-
lect taxes, duties, imposts and excises*' is
exhaustive and embraces every conceivable
power of taxation has never been questioned,
or, if it has, has been so often authoritative-
ly declared as to render it necessary only
to state the doctrine. And it has also never
[13] been questioned from the foundation,
without stopping presently to determine
under which of the separate headings the
power was properly to be classed, that there
was authority given, as the part was includ-
ed in the whole, to lay and collect income
taxes. Again, it has never moreover been
questioned that the conceded complete and
all-embracing taxing power was subject, so
far as they were respectively applicable, to
limitations resulting from the requirements
of art. 1, § 8, cl. 1, that "all duties, «»-
15-16
SUPREME COURT OF THE UNITED STATES.
Oct. Tebic,
posts and excises shall be uniform through-
out the United States," and to the limita-
tions of art I., § 2, cl. 3, that "direct taxes
shall be apportioned among the several
states," and of art 1, § 9, cl. 4, that "no
capitation, or other direct, tax shall be laid,
unless in proportion to the census or enu-
meration hereinbefore directed to be taken."
In fact, the two great subdivisions embra-
cing the complete and perfect delegation of
the power to tax and the two correlated
limitations as to such power were thus
aptly stated by Mr. Cliief Justice Fuller
in Pollock V. Farmers' Loan k T. Co.
157 U. S. supra, at page 557: "In the
matter of taxation, the Constitution recog-
nizes the two great claiBses of direct and
indirect taxes, and lays down two rules by
which their imposition must be governed,
namely: The rule of apportionment as to
direct taxes, and the rule of uniformity as
to duties, imposts, and excises." It is to
be observed, however, as long ago pointed
out in Veazie Bank v. Fenno, 8 Wall. 533,
541, 19 L. ed. 482, 485, that the require-
ments of apportionment as to one of the
great classes and of uniformity as to the
other class were not so much a limitation
upon the complete and all-embracing au-
thority to tax, but in their essence were
simply regulations concerning the mode in
which the plenary power was to be exerted.
In the whole history of the government
down to the time of the adoption of the
16th Amendment, leaving aside some con-
jectures expressed of the possibility of a
tax lying intermediate between the two
great classes and embraced [14] by neither,
no question has been anywhere made as to
the correctness of these propositions. At
the very beginning, however, there arose
differences of opinion concerning the criteria
to be applied in determining in which of
the two great subdivisions a tax would
fall. Without pausing to state at length
the basis of these differences and the con-
sequences which arose from them, as the
whole subject was elaborately reviewed in
Pollock v. Farmers' Loan & T. Co. 157 U.
S. 429, 39 L. ed. 759, 15 Sup. Ct. Rep. 673,
158 U. S. 601, 39 L. ed. 1108, 15 Sup. Ct.
Rep. 912, we make a condensed statement
which is in substance taken from what was
said, in that case. Early the differences
were manifested in pressing on the one hand
and opposing on the other, the passage of
an act levying a tax without apportion-
ment on carriages "for the conveyance of
persons," and when such a tax was enacted
the question of its repugnancy to the Con-
stitution soon came to this court for de-
termination. Hylton T. United States, 8
Dall. 171, 1 L. ed. 656. It was held that
the tax came within the class of excises,
ftOO
duties, and imposts, and therefore did not
require apportionment, and while this ccm-
clusion was agreed to by all the members of
the court who took part in the decision of
the case, there was not an exact coincidence
in the reasoning by which the conclusion
was sustained. Without stating the minor
differences, it may be said with substan-
tial accuracy that the divergent reasoning
was this: On the one hand, that the tax
was not in the class of direct taxes requir-
ing apportionment, because it was not levied
directly on property because of its owner-
ship, but rather on its use, and was there-
fore an excise, duty, or impost; and on the
other, that in any event the class of direct ^
taxes included only taxes directly levied on
real estate because of its ownership. Put-
ting out of view the difference of reasoning
which led to the concurrent conclusion in the
Hylton Case, it is undoubted that it came to
pass in legislative practice that the line of
demarcation between the two great classes
of direct taxes on the one hand and excises,
duties, and [15] imposts on the other,
which was exemplified by the ruling in that
case, was accepted and acted upon. In the
first place this' is Shown by the fact that
wherever (and there were a number of cases
of that kind) a tax was levied directly on
real estate or slaves because of ownership,
it was treated as coming within the direct
class and apportionment was provided for,
while no instance of apportionment as to
any other kind of tax is afforded. Again
the situation is aptly illustrated by the
various acts taxing incomes derived from
property of every kind and nature which
were enacted beginning in 1861, and last-
ing during what may be termed the Civil
War period. It is not disputable that these
latter taxing laws were classed under the
head of excises, duties, and imposts because
it was assumed that they were of that char*
acter inasmuch as, although putting a
tax burden on income of every kind, includ-
ing that derived from property real or per-
sonal, they were not taxes directly on prop*
erty because of its ownership. And thia
practical construction came in theory to
be the accepted one, since it was adopted
without dissent by the most eminent of the
text writers. 1 Kent, Com. 254, 256; 1
Story, Const. § 955; Cooley, Const. Lim.
5th ed. ♦480 ; Miller, Constitution, 237 ; Pom.
Const. Law, § 281 ; 1 Hare, Const. Law, 249,
250; Burroughs, Taxn. 502; Ordronaux,
Constitutional Legislation, 225.
Upon the lapsing of a considerable period
after the repeal of the income tax laws re-
ferred to, in 1894 [28 Stat, at L. 509, chap.
349], an act was passed laying a tax on
incomes from all classes of property and
other sources of revenue which was not ap*
240 U. 8«
1915.
BRUSHABER t. UNION P. R. 00.
15-18
portioned, and which therefore was of course t
assumed to come within the classification
of excises, duties, and imposts which were
subject to the rule of uniformity, but not
to the rule of apportionment. The oonsti-
tntional validity of this law was challenged
on the ground that it did not fall within the
class of excises, duties, and imposts, [16j
but was direct in the constitutional sense,
and was therefore void for want of appor-
tionment, and that question came to this
court and was passed upon in Pollock v.
Farmers' Loan k T. Co. 157 U. S. 429. 30 L.
ed. 750, 15 Sup. Ct. Rep. 673, 158 U. S. 601,
39 L. ed. 1108, 15 Sup. Ct. Rep. 912. The
court, fully recognizing in the passage
which we have previously quoted the all-
embracing character of the two great clas-
sifications, including, on the one hand, di-
rect taxes subject to apportionment, and on
the other, excises, duties, and imposts sub-
ject to uniformity, held the law to be un-
constitutional in substance for these rea-
sons: Concluding that the classification of
direct was adopted for the purpose of ren-
dering it impossible to burden by taxation
acccumulations of property, real or per-
sonal, except subject to tho regulation of
apportionment, it was held that the duty
existed to fix what was a direct tax in the
constitutional sense so as to accomplish
this purpose contemplated by the Consti-
tution. (157 U. S. 581.) Coming to consider
the validity of the tax from this point of
view, while not questioning at all that in
common understanding it was direct merely
on income and only indirect on property,
it was held that, considering the substance
of things, it was direct on property in a
constitutional sense, since to burden an in-
come by a tax was, from the point of sub-
stance, to burden the property from which
the income was derived, and thus accom-
plish the very tiling which the provision as
to apportionment of direct taxes was adopt-
ed to prevent. As this conclusion but en-
forced a regulation as to the mode of
exercising power under particular circum-
stances, it did not in any way dispute the
all-embracing taxing authority possessed by
Congress, including necessarily therein the
power to impose income taxes if only they
conformed to the constitutional regulations
which were applicable to them. Moreover, in
addition, the conclusion reached in the Pol-
lock Case did not in any degree involve hold-
ing that income taxes generically and neces-
sarily came within the class [17] of direct
taxes on property, but, on the contrary,
recognized the fact that taxation on income
was in its nature an excise entitled to be
enforced as such unless and until it was
concluded that to enforce it would amount
to accomplishing the result which the re-
•0 li. ed.
quirement as to apportionment of direct
taxation was adopted to prevent, in which
case the duty would arise to disregard form
and consider substance alone, and hence
subject the tax to the regulation as to ap-
portionment which otherwise as an excise
would not Bippij to it. Nothing could serve
to make this clearer than to recall that in
the Pollock Case, in so far as the law taxed
incomes from other classes of property than
real estate and invested personal property,
that is, income from "professions, ^ades,
employments, or vocations" (158 U. S.
637), its validity was recognized; indeed,
it was expressly declared that no dispute
was made upon that subject, and attention
was called to the fact that taxes on such
income had been sustained as excise taxes
in the past. Id. p. 635. The whole law was,
however, declared unconstitutional on the
ground that to permit it to thus operate
would relieve real estate and invested per-
sonal property from taxation and "would
leave the burden of the tax to be borne by
professions, trades, employments, or voca-
tions; and in that way what was intended
as a tax on capital would remain, in sub-
stance, a tax on occupations and labor"
(id. p. 637), — ^a result which, it was held,
could not have been contemplated by Con-
gress.
This is the text of the Amendment:
"The Congress shall have power to lay
and collect taxes on incomes, from what-
ever source derived, without apportionment
among the several states, and without re-
gard to any census or enumeration/'
It is clear on the face of this text that
it does not purport to confer power to levy
income taxes in a general sense, — an author-
ity already possessed and never questioned,
— [18] or to limit and distinguish between
one kind of income taxes and another, but
that the .whole purpose of the Amendment
was to relieve all income taxes when im-
posed from apportionment from a consid-
eration of the source whence the income
was derived. Indeed, in the light of tho
history which we have given and of the deci-
sion in the Pollock Case, and the ground
upon which the ruling in that case was
based, there is no «scape from the conclu-
sion that the Amendment was drawn for
the purpose of doing away for the future
with the principle upon which the Pollock
Case was decided; that is, of determining
whether a tax on income was direct not by
a consideration of the burden placed on the
taxed income upon which it directly oper-
ated, but by taking into view the burden
which resulted on the property from which
the income was derived, since in express
terms the Amendment provides that income
taxeSi from whatever source the inccmne may
1&-81
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tknc,
be derired, ihall not be subject to the regu-
lation of apportionment. From this in sub-
stance it indisputably arises, first, that all
the contentions whidi we have previously
noticed concerning the assumed limitations
to be implied from the language of the
Amendment as to the nature and character
of the income taxes which it authorizes find
no support in the text and are in irrecon-
cilable conflict with the very purpose which
the Amendment was adopted to accomplish.
Second, that the contention that the Amend-
ment treats a tax on income as a direct
tax although it is relieved from apportion-
ment and is necessarily therefore not sub-
ject to the rule of uniformity as such rule
only applies to taxes which are not direct,
thus destroying the two great classifications
which have been recognized and enforced
from the beginning, is also wholly without
foundation since the command of the
Amendment that all income taxes shall not
be subject to apportionment by a considera-
tion of the' sources from which the taxed in-
come may be derived [ 19] forbids the appli-
cation to such taxes of the rule appliei^ in
the Pollock Case by which alone such taxes
were removed from the great class of ex-
cises, duties, and imposts subject to the
rule of uniformity, and were placed under
the other or direct class. This must be
unless it can be said that although the Con-
stitution, as a result of the Amendment, in
express terms excludes the criterion of
source of income, that criterion yet remains
for the purpose of destroying the classifica-
tions of the Constitution by taking an ex-
cise out of the class to whidi it belongs and
transferring it to a class in which it cannot
be placed consistently with the require-
ments of the Constitution. Indeed, from
another point of view, the Amendment
demonstrates that no such purpose was in-
tended, and on the contrary shows that it
was drawn with the object of maintaining
the limitations of the Constitution and har-
monizing their operation. We say this be-
cailse it is to be observed that although
from the date of the Hyltbn Case, because
of statements made in the opinions in that
case, it had come to be accepted that direct
taxes in the constitutional sense were con-
fined to taxes levied directly on real estate
because of its ownership, the Amendment
contains nothing repudiating or challeng-
ing the ruling in the Pollock Case that the
word "direct" had a broader significance,
since it embraced also taxes levied directly
on personal property because of its owner-
•ship, and. therefore the Amendment at least
impliedly makes such wider significance a
part of the Constitution, — a condition which
clearly demonstrates that the purpose was
not to change the existing interpretation
1(02
except to the extent necessary to accom-
plish the result intended; that is, the pre-
vention of the resort to the sources from
which a taxed income was derived in order
to cause a direct tax on the income to be a
direct tax on the source itself, and thereby
to take an income tax out of the class of
excises, duties, and imposts, and place it
in the class of direct taxes.
[SO] We come, then, to ascertain the
merits of the many contentions made in the
light of the Constitution as it now stands;
that is to say, including within its terms the
provisions of the 16th Amendment as cor-
rectly interpreted. We first dispose of two
propositions assailing the validity of the
statute on the one hand because of its re-
pugnancy to the Constitution in other re-
spects, and especially because its enactment
was not authorized by the 16th Amendment.
The statute was enacted October 3, 1013,
and provided for a general yearly income
tax from December to December of each
year. Exceptionally, however, it fixed a
first period embracing only the time from
March 1, to December 31, 1913, and this
limited retroactivity is assailed as repug-
nant to the due process clause of the 5th
Amendment, and as inconsistent with the
16th Amendment itself. But the date of
the retroactivity did not extend beyond the
time when the Amendment was operative,
and there can be no dispute that there was
power by virtue of the Amendment during
that period to levy the tax, without appor-
tionment, and so far as the limitations of
the Constitution in other respects are con-
cerned, the contention is not open, since
in Stockdale v. Atlantic Ins. Co. 20 Wall.
323, 331, 22 L. ed. 348, 351, in susUining
a provision in a prior income tax law which
was assailed because of its retroactive char-
acter, it was said:
"The right of Congress to have imposed
this tax by a new statute, although the
measure of it was governed by the income
of the past year, cannot be doubted; much
less can it be doubted that it could impose
such a tax on the income of the current
year, though part of that year had elapsed
when the statute was passed. The joint
resolution of July 4th, 1864 [13 Stat, at L.
417], imposed a tax of 5 per cent upon all
income of the previous year, although one
tax on it had already been paid, and no one
doubted the validity of the tax or attempt-
ed to resist it."
[SI] The statute provides that the tax
should not apply to enumerated organiza-
tions or corporations, such as labor, agricul-
tural or horticultural organizations, mutunl
savings banks, etc., and the argument is
that as the Amendment authorized a tax on
incomes "from whatever source derived," by
240 U. S.
1015.
BRUSHABER t. UNION P. R. 00.
21-23
implication it excluded the power to make
these exemptions. 'But this is only a fonn
of expressing the erroneous contention as to
the meaning of the Amendment, which we
haye already disposed of. And so far as
this alleged illegality is based on other pro-
visions of the Constitution, the contention
is also not open, since it was expressly con-
sidered and disposed of in Flint t. Stone
Tracy Co. 220 U. S. 108, 173, 65 L. ed. 389,
422, 31 Sup. Ct Rep. 342, Ann. Cas. 1912B,
1312.
Without expressly stating all the other
contentions, we summarize them to a de-
gree adequate to enable us to typify and
dispose of all of them.
1. The statute levies one tax called a
normal tax on all incomes of individuals
up to $20,000, and from that amount up, by
gradations, a progressively increasing tax,
called an additional tax, is imposed. No
tax, however, is levied upon incomes of un-
married individuals amounting to $3,000
or less, nor upon incomes of married per-
aons amounting to $4,000 or less. The
progressive tax and the exempted amounts,
it is said, are based on wealth alone, and
the tax is therefore repugnant to the due
process clause of the 5th Amendment.
2. Tlie act provides for collecting the tax
at the source; that is, makes it the duty of
corporations, etc., to retain and pay the
sum of the tax on interest due on bonds
and mortgages, unless the owner to whom
the interest is payable gives a notice that
he claims an exemption. This duty cast
upon corporations, because of the cost to
which they are subjected, is asserted to be
repugnant to due process of law as a taking
of their property without compensation,
and we recapitulate various contentions as
to discrimination against corporations and
against individuals, [22] predicated on pro-
visions of the act dealing with the subject.
(a) Corporations indebted upon coupon
and registered bonds are discriminated
against, since corporations not so indebted
are relieved of any labor or expense in-
volved in deducting and paying the taxes
of individuals on the income derived from
bonds.
(b) Of the class of corporations indebted
as above stated, the law further discrimi-
nates against those which have assumed the
payment of taxes on their bonds, since al-
though some or all of their bondholders may
he exempt from taxation, the corporations
have no means of ascertaining such fact,
and it would therefore result that taxes
would often be paid by such corporations
when no taxes were owing by the individ-
vals to the government.
(c) The law discriminates against own-
ers of corporate bonds in favor of individ- '
4% L. ed.
ualt none of whose income fa derived from
such property, since bondholders are, dur-
ing the interval between the deducting and
the paying of the tax on their bonds, de-
prived of the use of the money so withheld.
(d) Again, corporate bondholders are dis-
criminated against because the law does not
release them from payment of taxes on their
bonds even after the taxes have been de-
ducted by the corporation, and therefore if,
after deduction, the corporation should fail,
the bondholders would be compelled to pay
the tax a second time.
(e) Owners of bonds the taxes on which
have been assumed by the corporation are
discriminated against because the payment
of the taxes by the corporation does not
relieve the bondholders of their duty to in-
clude the income from such bonds in making
a return of all income, the result being a
double payment of the taxes, labor and
expense in applying for a refund, and a
deprivation of the use of the sum of the
taxes during the interval which elapses b^
fore they are ref imded.
[S3] 3. The provision limiting the
amount of interest paid which may be de-
ducted from gross income of corporations
for the purpose of fixing the taxable income
to interest on indebtedness not exceeding
one half the sum of bonded indebtedness
and paid-up capital stock is also charged to
be wanting in due process because discrim-
inating between different classes ol corpo-
rations and individuals.
4. It is urged that want of due process
results from the provision allowing indi-
viduals to deduct from their gross income
dividends paid them by corporations whose
incomes are taxed, and not giving such
right of deduction to corporations.
5. Want of due process is also asserted
to result from the fact that the act allows
a deduction of $3,000 or $4,000 to those who
pay the normal tax, that is, whose incomes
are $20,000 or less, and does not allow the
deduction to those whose incomes are great-
er t)ian $20,000; that is, such persons are
not allowed, for the purpose of the addi-
tional or progressive tax, a second right to
deduct the $3,000 or $4,000 which they have
already enjoyed. And a further violation
of due process is based on the fact that for
the purpose of the additional tax no sec-
ond right to deduct dividends received from
corporations is permitted.
6. In various forms of statement, want
of due process, it is moreover insiated, arises
from the provisions of the act allowing a
deduction for the purpose of ascertaining
the taxable income of stated amounts, on
the ground that the provisions discriminate
between married and single people, and
discriminate between husbands and wives
BOS
23-20
SUPREME COURT OF THE UNITED STATES.
Oct. Tkkm»
who are living together and those who are
not.
7. Discrimination and want of due proc-
ess result, it is said, from the fact that
the owners of houses in which they live are
not compelled to estimate the rental value
in making up their incomes, while those
who are living in rented houses and pay
rent are not allowed, in making up their
taxable income, to deduct rent which they
have [S4] paid, and that want of due proc-
ess also results from the fact that although
family expenses are not, as a rule, per-
mitted to be deducted from gross, to arrive
at taxable, income, farmers are permitted
to omit from their income return certain
products of the farm which are susceptible
of use by them for sustaining their fami-
lies during the year.
So far as these numerous and minute, not
to say in many respects hypercritical, con-
tentions are based upon an assumed viola-
tion of the uniformity clause, their want of
legal merit is at once apparent, since it is
settled that that clause exacts only a geo-
graphical uniformity, and there is not a
semblance of ground in any of the proposi-
tions for assuming that a violation of such
uniformity is complained of. Knowlton v.
Moore, 178 U. S. 41, 44 L. ed. 969, 20 Sup.
Ct. Rep. 747; Patton v. Brady, 184 U. S.
008, 022, 40 L. ed. 713, ^20, 22 Sup. Ct.
Rep. 493; Flint v. Stone Tracy Co. 220 U.
S. 107, 158, 55 L. ed. 380, 430, 31 Sup. Ct.
Rep. 342, Ann. Cas. 1912B, 1312; Billings
V. United States, 232 U. S. 201, 282, 58 L.
ed. 590, 005, 34 Sup. Ct. Rep. 421.
So far as the due process clause of the
6th Amendment is relied upon, it suffices to
say that there is no basis for such reliance,
since it is equally well settled that such
clause is not a limitation upon the taxing
power conferred upon Congress by the Con-
stitution; in other words, that the Consti-
tution does not conflict with itself by con-
ferring, upon the one hand, a taxing power,
and taking the same power away, on the
other, by the limitations of the due process
clause. Treat V. White, 181 U. S. 204^ 45
L. ed. 863, 21 Sup. Ct. Rep. Oil; Patton v.
Brady, 384 U. S. 008, 40 L. ed. 713, 22
Sup. Ct. Rep. 493 ; McCray v. United States,
395 U. S. 27, 01, 49 L. ed. 78, 97, 24 Sup.
Ct. Rep. 709, 1 Ann. Cas. 501; Flint v.
Stone Tracy Co. 220 U. S. 307, 158, 55 L.
ed. 389, 410, 31 Sup. Ct. Rep. 342, Ann.
Cas. 1912B, 3312; Billings v. United States.
232 U. S. 201, 282, 58 L. ed. 590, 005, 34
Sup. Ct. Rep. 423. And no change in the
situation here would arise even if it be con-
ceded, as we think it must be, that this doc-
trine would have no application in a case
where, although there was a seeming exer-
cise of the taxing power, the act complained
ft04
of waa 80 arbitrary as to constrain to the
conclusion that it was not the exertion of
taxation, but a confiscation of property;
that is, a takiiig [25] of the same in viola-
tion of the 5th Amendment; or, what ia
equivalent thereto, was so wanting in basis
for classification as to produce such a gross
and patent inequality as to inevitably lead
to the same conclusion. We say this be-
cause none of the propositions relied upon
in the remotest degree present such ques-
tions. It is true that it ia elaborately in-
sisted that although there be no express
constitutional provision prohibiting it, the
progressive feature of the tax causes it to
transcend the conception of all taxation
and to be a mere arbitrary abuse of power
which must be treated as wanting in due
process. But the proposition disregards the
fact that in the very early history of the
government a progressive tax was imposed
by Congress, and that such authority was
exerted in some, if not all, of the various
income taxes enacted prior to 1894 to which
we have previously adverted. And over and
above all this the contention but disre-
gards the further fact that its absolute
want of foundation in reason was plainly
pointed out in Knowlton v. Moore, 178 U.
S. 41, 44 L. ed. 909, 20 Sup. Ct. Rep. 747,
and the right to urge it was necessarily
foreclosed by the ruling in that case made.
In this situation it is, of course, super-
fluous to say tlint arguments as to the ex-
pediency of levying such taxes, or of the
economic mistake or wrong involved in their
imposition, are beyond judicial cognizance.
Besides this demonstration of the want of
merit in the contention based upon the pro-
gressive feature of the tax, the error in
the others is equally well established cither
by prior decisions or by the adequate bases
for classification which are apparent on the
face of the assailed provisions; that is*
the distinction between individuals and cor-
porations, the difTerencc between various
kinds of corporations, etc., etc. Ibid.;
Flint V. Stone Tracy Co. 220 U. S. 107,
158, 55 L. ed. 389, 410, 31 Sup. Ct Rep.
342, Ann. Cas. 3932B, 3312; Billings t.
United States, 232 U. S. 201, 282, 58 L.
ed. 590, 005, 34 Sup. Ct. Rep. 421; First
Nat. Bank v. Kentucky, 9 Wall. 353, 19 L.
ed. 701: Nntionnl Safe Deposit Co. v. Stead,
232 U. S. 68, 70. 58 L. ed. 504. 510. 34 Sup.
Ct. Rep. 209. In fact, comprehensively sur-
veying all the contentions [26] relied upon,
aside from the erroneous construction of
the Amendment which we have previously
disposed of. we cannot escape the conclu-
sion tliat they all rest upon the mistaken
theory that although there be difl'erences
between the subjects taxed, to difl'erently tar
them transcends the limit of taxation and
240 V. S.
mtt.
FLEITMANN v. WELSBACU STREET LIGHTINQ CX).
26,27
•momnto to a want of due process, and tliat
where a tax levied is believed by one who
resists its enforcement to be wanting in
wisdom and to operate injustice, from that
fact in the nature of things there arises a
want of due process of law and a resulting
authority in the judiciary to exceed its
powers and correct what is assumed to be
mistaken or unwise exertions by the legis-
lative authority of its lawful powers, even
although there be no semblance of warrant
in the Constitution for so doing.
We have not referred to a contention
tliat because certain administrative powers
to enforce the act were conferred by the
statute upon the Secretary of the Treasury,
therefore it was void as unwarrantedly dele-
gating legislative authority, because we
think to state the proposition is to answer
it. Marshall Field & Co. t. Clark, 143 U.
S. «49, 36 L. ed. 294, 12 Sup. Ct Rep. 495;
Buttfield V. Stranahan, 192 U. S. 470, 490,
48 L. ed. 525, 535, 24 Sup. Ct. Rep. 349;
Oceanic Steam Nav. Co. v. Stranahan, 214
U. S. 320, 53 L. ed. 1D13, 29 Sup. Ct. Rep.
671.
Affirmed.
Mr. Justice »fcReynol«ls took no part in
the consideration and decision of this case.
[Z7] WILLIAM M. FLEITMANN, Suing
on Behalf of Himself and All Other Stock-
holders of the Consolidated Street light-
ing Company, Who Shall El^t to Come
in and Contribute to the Expense of the
Action, Appt.,
T.
WELSBACH STREET LIGHTING COM-
PANY OF AMERICA. (No. 146.)
WILLIAM M. FLEITMANN, Suing at
Above, Appt.,
T.
ARTHUR E. SHAW. (No. 146.)
(See S. C. Reporter's ed. 27-29.)
Corporations — stockbolcler's suit —
recoTcrlnf: penalty under anti*trast
act — right to Jury trial.
A stockliolder may not maintain a suit
In equity to recover for the corporation,
upon the latter's refusal to sue, the penalty
of threefold damages under the Sherman
anti-trust act of July 2, 1890 (20 Stat at
L. 209, chap. 047, Comp. Stat. 1913, § 8820),
from persons and corporations whom he
charges with the ruin of his corporation
in pursuance of a monopolistic combination,
since the right of defendants to a jury trial
cannot thus be taken away.
(For otber cases, see Corporations. IX. d, 2:
Jnry, I. h, in Digest Sop. Ct. 1908.]
•• L. ed.
[Nos. 145 and 146.]
Argued December 17, 1915. Decided Jan-
uary 24, 1910.
TWO APPEALS from the United States
Circuit Court of Appeals for the Second
Circuit to review decrees which affirmed de-
crees of the District Court for the Southern
District of New York, dismissing the bills
in suits in equity brought by a stockholder
to recover for the corporation the penalty
of threefold damages under the anti-trust
act from persons and corporations whom he
charges with the ruin of his corporation
in pursuance of a monopolistic combination.
Affirmed.
See same case below, 128 C. C. A. 81, 211
Fed. 103.
The facts are stated in the opinion.
Mr. Henry It, Scheuerman argued the
cause, and, with Messrs. Henry A. Wise and
Harry F. Mela, filed a brief for appellant:
Whenever a right of action exists in
favor of a corporation, and the latter, by
reason of its being under the control of the
very parties against whom the right of
action exists, fails and refuses to enforce
it, any stockholder, upon the failure of his
bona fide attempts to procure corporate
action, or upon his showing that corporate
action, if taken, would not be prosecuted in
good faith, may maintain a suit in equity
to secure re(fress to the corporation.
Dodge V. Woolsey, 18 How. 331, 15 L. ed.
401; Hawes v. Oakland (Hawes v. Contra
Costa Water Co.) 104 U. S. 450, 26 L. ed.
827; Delaware & H. Co. v. Albany ft S. R.
Co. 213 U. S. 435, 63 L. ed. 862, 29 Sup. Ct.
Rep. 540.
Is there any valid reason for denying the
application of that rule to a case where the
cause of action in favor of the corporation
arises under the Sherman anti-trust law,
and thus making such a case an exception
to the general rule?
(1) Is there any reason based on the let*
ter of the statute?
(2) Is there any reason based on prece-
dent?
(3) Is there any reason based upon the
general principles underlying stockholders*
suits?
Alexander v. Central R. Co. 3 Dill. 487,
Fed. Cos. No. 166; Morgan v. Kansas P. R.
Co. 21 Blatchf. 134, 15 Fed. 55; Ervin v.
Oregon R. & Nav. Co. 23 Blatchf. 517, 27
Fed. 625; Backus v. Brooks, 115 C. C. A.
364, 195 Fed. 452; Farmers* Loan & T. Co.
V. New York & N. R. Co. 150 N. Y. 410, 34
L.RA. 76, 55 Am. St. Rep. 689, 44 N. E.
1043; Dodge t. Woolsey, 18 How. 331, 15
L. ed. 401; Kavanaugh ▼. Commonwealth
Trust Co. 181 N. Y. 121, 73 N. E. 662.
(4) Is there any reason based on the
50ft
27, S8 SUPREME COURT OF THE UNITED STATES. Ocr. Tw,
aireanuUnM that the right of setion in ' 110 U. a 347-362, 30 L. ed. 451-4fiS, 7 Sapu
favor of the corporatioD is one at common Ct. Rep. 24D; WUtabead v. Shattuck, 188
law for money damagesT U. S. 147-151, 34 L. ed. ST3, 874, 11 Snp.
.£tna Ina. Co. v. Albany &. S. R. Co. 160 Ct. Rep. 270; Scott v. Neely, 140 U. S. 10«-
Fed. 132, affirmed on opinion below in OS 113, 35 L. ed. 358, II Sup. Ct. Rep. 712;
C. C. A. 303. 170 Fed. 1019; Delaware &, H. Ciuriden v. Middleton, 232 U. S. 633, 636, 08
Oo. Y. Albany &. S. R. Co. 215 U. S. SOI, 54 L. ed. 765, 767, 34 Sup. Ct. Rep. 4G8; Scott
L. ed. 344, 30 Sup. a. Rep. 401. v. Armstrong, 146 U. S. 40B, 512, 36 L. «d.
(5) la there any reason based on the 1050, 1063, 13 Sup. a. Rep. 148; Lindsay
circumstance that the right of the corpo- v. Firat Nat. BanV, 166 U. S. 486, 493, 39
ration ia a statutory cause of action T L. ed. 506, 508, 16 Sup. Ct. Rep. 472; Gray
Dodge T. Woolaey, 18 How. 331, 15 L. ed. v. Grand Trunk Western R. Co. B4 G. C. A.
401. 392, 166 Fed. 741.
(6) la there any reasoo based on ex-
pediency T Mr. Justice Holmes delivered the opinion
Minnesota t. Northern Securities Co. 194 of the court:
U. S. 48, 70, 71, 48 L. ed. S70, 880, 881, 24 This ia a bill by a stoclcholder of tha
Sup. Ct. Rep. 6B8. Consolidated Street Lighting Company,
The object of the statute was to provide against that company and a number [28]
a right of action for such injuries, which of other corporations and individuah, to
did not eiist at common Uw (Addyston ^ ^ ^[,6 defendants other than his own
Hpe & Steel Co. y. United States. 46 L.R.A. ^,„p^„y to pay to the latter threefold dam-
122 29 C. C. A 141, 64 US App. 723, 85 ^^Jj^,, the Sherman act. July 2, 18TO.
l""^ ^V"o«; \!^'' **, ''■ "t, !''■ '" ^^"P- «T- 8 7, 26 Sut. at L. 200, 210.
Sup. Ct. Rep. n«). It was designed to pro- ^^ ^^^ g^^g According
mote commerce, and to protect those who __ ^; „ .. ' " .u , , j . *
may have invested their capital Jn commer- *^*''! all^gat.ons the other defendants eoii-
cial enterpriaea from being oppressed and "P'^"" ^ '""^'"^ ''"' hr,>„i,e«, of municipal
despoiled by unlawful combinations in vio- ''ehlmg, etc., throughout the Lnited SUtes,
lation of the act. The appellees seek such ""d in pursuance of their conspiracy pro-
a eonstruetion of the act as would defeat """e^ their agent to purchase from the for-
the intent of Congress and the object of ™e'' "w"*" » majority of the stock m the
the legialatioD. plaintiff's company, and then proceeded to
ruin it and drive it out of business by mis-
Mr. Edward W. Hatch argued the cause, conducting its affaire. The plaintiff has de-
and, with Mr. WillUm F. Sheehan, filed a ^gnded of his company and its officers to
brief for appelleea: institute proceedings, but they have refused
The courta below did not err in holding ^he bill waa dismissed by the district court
that the bill of complaint does not set (,n motion of the appellees in the two ap-
forth a good cause of action in equity. „,|g before this court, and the decree was
Blindell V. Hagan, 54 Fed. 40; Pidcock v. ^f^^^^ by the circuit court of appeals.
Harrington, 64 Fed. 821; Metcalf v. Amer- j^g c C A 31 211 Fed 103
ican School.Furniture Co. 108 Fed. 009, The biil allegU in terms that it is brought
affirmed without opinion m 51 C. C. A. 500, ^^ ^„^„ threefold the damages alleged;
IK Fed 1020, Southern Indiana Ex(). Co. „ ^^^^ ^^ ,„,h damages waT the d^.;
T. United States Exp. Co. 98 Fed^ B59, af- ^ ^_ „,, „„, ?„„ „„, „„; ^
Srv''/^or"r>''''''«'' f i;^ ^.V^ »« «PP"^' *» the cirLit court of appeala
82 Fed 1022; Irving v Neal, 209 Fed. 477; ^„ holding that such a suit in equity Lid
Pollard V. Bailey, 20 WaU 520. 627, 22 L. ^^, be maintained by a single stockholder;
ed. 376, 378; Greer, M. ft Cd v. Stoller 77 ^^at was the only question dealt with by
«*^-,«i iTol. T"^" Z F ■ * J*l^f ""> district court, and that was the ground
Co. 166 Fed. 820; Loeb v. Eastman Kodak
of decision in the circuit court of appeals.
Co. 106 a C. A. 142, 183 Fed. 704; Corey ^ ,,,„ j, j,,^ ^nly questior.
T. Independent Ice Co. 207 F«l. 469; United qj ^/„„^ ^be claim set up is tbat of the
Copper Securities Co. v. Amalgamated Cop- („ tion alone, and if the corporation
per Co. L.RA. -, -, 139 C. C. A. 13. 223 „„^ proceeding directly under the aUtuta
Fed. 421; HUnois C. R. Co. v. Adams, 180 „„ ^^^ ^an doubt that its onlv remedy
U. S. 28, 34, 36, 46 L. ed. 410, 412, 413, 21 ^^uij be at law. Therefore the inquiry at
Sup. Ot. Rep. 251; Hawea r. Oakland once arises why the defendants' right to a
(Hawea t. Contra CosU Water Co.) 104 jury trial should he Ukeo away because
U. S. 450-460, 26 L. ed. 827-«32; Dodge v. the present plaintiff cannot persuade the
Woolaey, 18 How. 331. 341, 16 L. ed. 401, only party having a cause of action to sue,
404; Dowell v. Mitchell. 106 U. S. 430-432, —how the liability which ia the principal
20 L. ad. 1142, 1143; Buzard t. Houston, matter can be converted into an incident
sam a40 V. s.
191S. MT. VERNONWOODBERRY COTTON DUCK CO. t. ATJ^BAMA L P. CO. 2S-30
of tlie plaintififs domestic difficulties with
the eompany that has been wronged.
No doabt there are cases in which the na-
ture of the [29] right asserted for the com-
pany, or the failure of the defendants con-
cerned to insist upon their rights, or a
different state system, has led to the whole
matter being disposed of in equity; but we
agree with the courts below that when a
penalty of triple damages is sought to be
inflicted, the statute should not be read as
attempting to authorize liability to be en-
forced otherwise than through the verdict
of a jury in a court of common law. On
the contrary, it, plainly provides the latter
remedy, and it provides no other. Pollard
▼. Bailey, 20 Wall. 620, 22 L. ed. 376. Even
the act of October 15, 1014, chap. 323, § 16,
38 8Ut. at L. 730, 737, passed since this
euit was begun, does not go farther in terms
than to give an injunction to private per-
sons aofRinst threatened loss.
It now is suggested, evidently as an after-
thought since the decision in the district
<^urt, that there might be a decree directing
the corporation to sue, or, if it fails to do
^o« permitting the plaintiff to sue in its
lanie and on its behalf. But the bill is not
'earned for that purpose, as the court below
I^ccree alTirmed.
^Ir. Justice McKenna and Mr. Justice
^**iiey dissent.
)] MT. VERNON-WOODBERRY COT-
TON DUCK COMPANY et al., Plffs. in
Krr.,
T.
AI-^BAMA INTERSTATE POWER COM
PANY.
(See S. C. Reporter's ed. 30-33.)
^■*»'or to stnte court — final Judsrment.
1. A judgment of the highest court of
*. •tate, finally disposing of a writ of pro-
»!^>ition sued out under Ala. Code 3907, §§
48e4-4867, 4872, to prevent an inferior
^^rt from taking jurisdiction of an ac-
•*^H, is a final judgment, within the mean-
^"^^ of the Judicial Code, § 237, governing
writs of error to state courts, although such
judgment does not determine the m^ts of
the principal suit.
[For other cases, see Appeal and Error, I. d,
in Digest Sup. Ct. 1008.]
Error to atate court — following deoi-
ttion below.
2. The Federal Supreme Court on writ
of error to a state court to review a judg-
ment dismissing a writ of prohibition to
prevent a probate court from taking juris-
diction of condemnation proceedings will
follow the rulings of the state court upon
such objections urged in support of the writ
of prohibition as the asserted invalidity of
the state condemnation laws under the state
Constitution, and the irregularity of the
proceedings under those laws, and the in-
sufliciency of the condemnation petition.
[For other cases, see Appeal and Error, 21.*i4-
2163, 2209-2226. in Digest Sup. Ct. 1008.]
Eminent domain — public use — dis-
tribution of power produced by water
as motive force.
3. The manufacture, supply, and sale
to the public of power produced by water
as a motive force is a public use for which
land, water, and water rights may, con-
sistently with U. S. Const., 14th Amend.,
be condemned.
[For other cases, see Eminent Domain, I. d,
In Digest Sup. Ct. 1908.1
Eminent domain — Jurisdiction — va-
lidity of state statute.
4. Neither the jurisdiction of a state
probate court over condemnation proceed-
ings instituted by a corporation organized
to manufacture, supply, and sell to the
public power produced by water as a motive
force, nor the constitutionality of the state
laws authorizing the proceedings, are af-
fected because the rights sought to be con-
demned are below instead of above the con-
templated dam, nor because the corpora-
tion, before condemning rights, must have
obtained, by other means, at least an acre
on either side of the stream for a dam site,
nor because the proceedings may be begun
before^the dam is built.
[For other cases, see Eminent Domain, L a,
in Dlflrest Sup. Ct. 1908. J
Constitutional law — equal protection
of the laws — exceptions in condem-
nation statute.
5. Excepting from the eminent domain
powers conferred by state law upon corpora-
tions organized to manufacture, supply, and
sell to the public power produced by water
as a motive force, private residences, lands
of other corporations having similar powers,
^OTE. — On the general subject of writs of
♦y^nr from United States Supreme Court to
•^le courts — sec notes to Martin v. Hunter,
* t^ ed. U. S. 97; Hamblin v. Western I^nd
^. 37 L. cd. U. S. 267; Re Bucharan, 39
Y ^' ^'- ^. 884; and Kipley v. Illinois, 42
^ ed. U. S. n08.
On what questions the Federal Supreme
^Urt will consider when reviewing the
r^dgments of state courts — see note to
Miasouri ex rel. Hill v, Dockery, 63 L.R.A.
671.
•• li. ed.
As to what judgments or decrees are final
for purposes of review — see notes to Gibbons
V. Ogden, 6 L. ed. U. S. 302, and Schlosser
V. Hemphill, 49 L. ed. U. S. 1001.
As to what is a public purpose which will
justify the power of eminent domain — see
notes to Pittsburg W. & K. R. Co. v. Ben-
wood Iron Works, 2 L.R^. 680; Barre
R. Co. V. Montpelier & W. Riyer R. Go. 4
L.R.A. 785; and Sweet v. Rechd, 40 L. ed.
U. S. 188.
Generally, as to judicial powec q^«c t!^^
SUPREME COURT OF THE UNITED STATES.
Oct. Temup
and cotton factories, subject to the taking
of the ^excess of water over that in actual
use> or* capable of use, at normal stages of
the stream, is too plainly reasonable to
come within the condemnation of the 14th
Amendment to the Federal Constitution.
[For other cases, see Constitutional Law, lY.
a, 1, in Diirest Sup. Ct 1008.1
[No. 200.]
Submitted January 10, 1016. Decided Jan-
uary 24, 1916.
IN ERROR to the Supreme Court of the
State of Alabama to review a judgment
which, on an appeal from the Circuit Court
of Tallapoosa County, in that state, dis-
missed a writ of prohibition to prevent the
Probate Court of that county from taking
jurisdiction of condemnation proceedings.
Affirmed.
See same case below, 186 Ala. 622, 65
So. 287.
The facts are stated in the opinion.
Messrs. H. N. Randolph and Edwin 6.
Bactjer submitted the cause for plaintiffs
in error:
Eminent domain statutes are strictly
construed.
Lewis, Em. Dom. 3d ed. If 388; New York
& H. R. Co. V. Kip, 46 N. Y. 546, 7 Am. Rep.
385; Re Poughkcepsic Bridge Co. 108 N. Y.
491, 15 N. E. 601; 15 Enc. Law & Proc. 567;
United SUtes v. Raucrs, 70 Fed. 748;
Cooley, Const. Lim. p. 61; Mills, Em. Dom.
•f 48; McElroy v. Kansas City, 21 Fed. 260;
Binney's Case, 2 Bland, Ch. 09; Ex parte
Smith, 23 Ala. 94; Sadler v. Langham, 34
Ala. 311; Ex parte Hill, 38 Ala. 429; Ex
parte Stickney, 40 Ala. 160; Bottoms v.
Brewer, 64 Ala. 288; Ex parte Lyon, 60
Ala. 650; Nashville, C. & St. L. R. Co. v.
Hobbs, 120 Ala. 600, 24 So. 933; Biking-
ham R. & Electric Co. v. Birmingham Trac-
tion Co. 121 AU. 479, 25 So. 777; Hobbs v.
Nashville, C. & St. L. R. Co. 122 AU. 602, 82
Am. St. Rep. 103, 26 So. 139; Ex parte
State, 150 Ala. 489, 10 L.RA.(N.S.) 1129,
124 Am. St. Rep. 79, 43 So. 490; Moore v.
Wright, 34 Ala. 311;-McCulley v. Cunning-
ham, 96 Ala. 583, 11 So. 694.
The authority must be strictly pursued.
Lewis, Em. Dom. f 387; DarrOw v. Chi-
cago, L. S. & S. a R. Co. 169 Ind. 99, 81
N. E. 1081; State, Vreeland, Prosecutor, v.
Jersey Qty, 54 N. J. L. 49, 22 Atl. 1052.
The due and orderly enactment of law
is intimately and directly related to due
process.
Cooley, Const. Lim. 7th ed. pp. 186, 259^
506; Lewis, Era. Dom. 3d ed. § 409, p. 738.
It follows that the power conferred upon
the legislature to make laws cannot be dde-
gated by that department to any other
body or authority.
Cooley, Const. Lim. 7th fd, p. 163.
Applying this principle, the supreme
court of Oregon, in a case similar in some
respects to the one at bar, held that the
legislature cannot delegate to code commis-
sioners the power to amend the laws of the
state.
State V. Gaunt, 13 Or. 115, 9 Pac 55.
Whether or not the use for which prop-
erty is sought to be condemned is a public
use is a question of law, and not of fact.
1 Lewis, Em. Dom. dd ed. § 251, p. 497»
and cases cited in note 8; London v. Sample
Lumber Co. 91 Ala. 606, 8 So. 281; Sadler
V. Langham, 34 Ala. 326.
A legislature has no power, in any case,
to take the property of one individual and
pass it over to another, without reference
to some use to which it is to be applied
for the public benefit.
Cooley, Const. Lim. 6th ed. p. 651, 7th
ed. p. 764. See also Lewis, Em. Dom. § 250 ;
New York, N. H. & H. R. Co. v. Offield, 77
Conn. 417, 59 Atl. 510; Arnsperger v. Craw-
ford, 101 Md. 247, 70 L.RA. 497, 61 AtL
413; Re Eureka Basin Warehouse & Mfsr.
Co. 96 N. Y. 44 ; Re Niagara Falls & W. R.
Co. 108 N. Y. 375, 15 N. E. 420; Re Split
Rock Cable Road Co. 128 N. Y. 408, 28
N. E. 506; Healy Lumber Co. v. Morris, 33
Wash. 490, 63 L.RA. 820, 99 Am. St. Rep.
964, 74 Pac. 681 ; Re Tuthill, 163 N. Y. 133,
49 LJIJL 781, 79 Am. St. Rep. 574, 57 N. E.
303.
This statute restricts to an exceedingly
limited class the corporations (i. e., cotton
right of eminent domain — see note to Graf-
ton V. St Paul, M. & M. R. Co. 22 L.R.A.
(N.S.) 1.
As to whether generation of electrical
power by private corporation is a public
use — see notes to State ex rel. Tacoma In-
dustrial Co. V. White River Power Co. 2
L.R.A.(N.8.) 842, and Walker t. Shasta
Power Co. 19 L.R.A.(N.S.) 726.
On effect of offer to serve public on right
to resort to eminent domain in aid of at-
tempt to transmute water power into elec-
tricity for sale — see note to Jones t. North
Georgia Electric Co. 6 LJEtJL(NJ3.) 122.
508
On the duty to serve public as affecting
liability of public utility for temporary in-
terference with water rights — see note to
Taylor v. Indiana & M. Electric Co. L.R.A.
1915E, 294.
On who may raise objection tliat state
statute contains an unconstitutional dis-
crimination— see note to Pugh v. Pugh, 38
L.R.A.(N.S.) 954.
On constitutional equality of privileges,
immunities, and protection, generalljp — see
note to Louisville Safety Vault & T. Co. ▼•
Louisville & N. R. Co. 14 L.RA.. 579.
2 JO U. 8.
ltl». MT. VERNONWOODBERRY COTTOX DUCK CO. v. ALABAMA I. P. CO.
factories owned by corporations possessing
lands, hydraulic structures, water or water
riglita in excess of what is actually in use
or may be used at normal stages of the
atream) whose property can be condemned.
Tliia is a purely arbitrary classification of
the kind of cotton mill corporations whose
property rights may be condemned, and
denies to such corporations the equal pro-
tection of the law guaranteed by the 14th
Amendment.
Duncan y. Missouri, 152 U. S. 377, 382, 38
L. ed. 485, 487, 14 Sup. Ct. Rep. 570; Gulf.
C A S. F. R. Co. T. Ellis, 166 U. S. 150, 156,
159» 160, 166, 41 L. ed. 666, 668-671, 17 Sup.
Ct. Rep. 265; Cooley, Const. Lim. 7th ed.
561 et seq.; Cotting v. Kansas City Stock
Yards Co. (Cotting v. Godard) 183 U. S. 79,
46 L. ed. 92, 22 Sup. Ct! Rep. 30; Connolly
▼. Union Sewer Pipe Co. 184 U. S. 540, 660,
661, 46 L. ed. 679, 690, 22 Sup. Ct. Rep.
431.
It is a denial of due process to tmdertake
to condemn property in a court wholly
without jurisdiction of such proceedings.
Cooley, Const. Lim. 7th ed. p. 760; 2
Lewis, Em. Dom. 3d ed. § 865; Richland
School Twp. V. Overmyer, 164 Ind. 382, 73
N. E. 811; Re Poughkeepsie Bridge Co. 108
N. Y. 490, 15 N. E. 601.
A judgment of the highest court of a
state jn a proceeding for a prohibition is a
••final" judgment in a "suit," from which a
writ of error will lie to this court.
Weston V. Charleston, 2 Pet. 449, 7 L. ed.
481; Colorado Eastern R. Co. v. Union P. R.
Co. 36 C. C. A. 263, 94 Fed. 312; Tippe-
canoe County V. Lucas, 93 U. S. 108, 23
^ ed. 822; Bostwick v. Brinkerhoff, 106
^. 8. 3, 27 L. ed. 73; Haseltine v. Central
^»t. Bank, 183 U. S. 130, 46 L. ed. 117, 22
Sup. Ct. Rep. 49; Missouri ft K. I. R. Co. v.
^iathe, 222 U. S. 185, 66 L. ed. 155, 32 Sup.
^- Rep. 46; Louisiana Nav. Co. v. Oyster
^tximission, 226 U. S. 99, 67 L. ed. 138, 33
^'Jp. a. Rep. 78; Cook v. Cook, 18 FU. 636;
-^tlanta v. First Methodist Church, 83 Ga.
*^0, 10 S. E. 231.
^essrs. Tliomas W. Martin and Ray
'^^tshton submitted the cause for defend-
•*^^ in error. Mr. Lawrence Macfarlane
^^ on the brief:
Many of the questions which are sug-
f^%ted by the assignments of error, as well
*• by the brief for the plaintiffs in error,
•r* not open here.
Rasmussen v. Idaho, 181 U. S. 198, 46 L. ed.
820, 21 Sup. Ct. Rep. 594 ; United States v.
Jones, 109 U. S. 513, 27 L. ed. 1015, 3 Sup.
Ct. Rep. 346; Strickley v. Highland Boy
Gold Min. Co. 200 U. S. 627, 60 L. ed. 681,
26 Sup. Ct. Rep. 301, 4 Ann. Cas. 1174;
Leeper v. Texas, 139 U. S. 462, 36 L. ed.
•0 li. ed.
225, 11 Sup. Ct. Rep. 677; Re Duncan, 130
U. S. 449, 35 L. ed. 219, 11 Sup. a. Rep.
673; Long Island Water Supply Co. t.
Brooklyn, 166 U. S. 685, 41 L. ed. 1165, 17
Sup. Ct. Rep. 718; Smith y. Jennings, 206
U. S. 276, 51 L. ed. 1061, 27 Sup. Ct. Rep.
610.
The right of eminent domain antedates
constitutiops, and is an incident of sover-
eignty inherent in and belonging to every
sovereign state.
United States v. Jones, 109 U. S. 613, 27
L. ed. 1016, 3 Sup. Ct. Rep. 346; Searl v.
School Dist. 133 U. S. 653, 83 L. ed. 740, 10
Sup. Ct. Rep. 374.
All of the elements which enter into the
value of the property to be taken are em-
braced within the term ''just compensa-
tion."
Searl v. School Dist. supra; United States
V. Chandler-Dunbar Water Power Co. 229
U. S. 53, 57 L. ed. 1063, 33 Sup. Ct. Rep.
667 ; New York v. Sage, 239 U. S. 57, ante,
143, 36 Sup. Ct. Rep. 25; Alabama C. R. Co.
V. Muagrove, 169 Ala. 424, 53 So. 1009;
United States v. Gettysburg Electric R. Co.
160 U. S. 668, 40 L. ed. 576, 16 Sup. Ct.
Rep. 427; Alabama Power Co. v. Garden,
189 Ala. 384, 66 So. 596; McEachin v. Tus-
caloosa, 164 Ala. 263, 51 So. 153.
The legislature may classify subjects of
condemnation.
Magoun v. Illinois Trust & Sav. Bank,
170 U. S. 283, 42 L. ed. 1037, 18 Sup. a.
Rep. 594; Missouri, K. & T. R. Co. v. May,
194 U. S. 267, 48 L. ed. 971, 24 Sup. Ct.
Rep. 638.
The state may authorize in condemna-
tion cases the taking possession prior to
the final determination of the amount of
compensation, and payment thereof.
Cherokee Nation v. Southern Kansas R.
Co. 135 U. S. 641, 34 L. ed. 295, 10 Sup. Ct.
Rep. 965; Sweet v. Rechel, 159 U. S. 380,
40 L. ed. 188, 16 Sup. Ct. Rep. 43; A.
Backus Jr. <& Sons v. Fort Street Union
Depot Co. 169 U. S. 657, 42 L. ed. 853, 18
Sup. Ct. Rep. 445; Williams v. Parker, 188
U. S. 491, 47 L. ed. 659, 23 Sup. Ct. Rep.
440.
In the light of the holding by the su-
preme court of Alabama in the present and
other cases, that the mapufacture, supply,
and sale to the public of electric power
generated by water as a motive force is a
public use or purpose for which property
may be taken under the power of eminent
domain, there is no question which can
arise in this court.
Union Lime Co. v. Chicago & N. W. R.
Co. 233 U. S. 211, 68 L. ed. 924, 34 Sup. a.
Rep. 622; Fallbrook Irrig. Dist. v. Bradley.
164 U. S. 112, 41 L. ed. 369, 17 Sup. a.
Rep. 56; Clark t. Kaah, 198 U. S. 361, 49
30, 31
SUPREME COURT OF THE UNITED STATES.
Oct. TkBM,
L. ed. 1085, 25 Sup. Ct. Rep. 676, 4 Ann.
Gas. 1171; Strickley v. Highland Boy Gold
Min. Ck>. 200 U. S. 527, 50 L. ed. 581, 26
Sup. Ct. Rep. 301, 4 Ann. Gas. 1174; Offield
V. New York, N. H. & H. R. Co. 203 U. S.
372, 51 L. ed. 231, 27 Sup. Ct. Rep. 72;
Hairston v. Danville & W. R. Co. 208 U. S.
598, 52 L. ed. 637, 28 Sup. Ct. Rep. 331, 13
Ann. Cas. 1008; Head v. Amo^eag Mfg.
Co. 113 U. S. 9, 28 L. ed. 889, 5 Sup. a.
Rep. 441.
The supreme court of Alabama referred
to a number of cases which have sustained
the principle that the furnishing of elec-
tricity to the public in such manner is a
public use; and, in addition to the cases
cited in the opinion, and in the note to
§ 268 of Lewis on Eminent Domain, 3d ed.
the following recent cases sustain the same
principle:
Lucas V. Ashland Light, Mill k P. Co. 02
Neb. 550, 138 N. W. 761; Tuttle v. Jeffer-
son Power & Improv. Co. 31 Okla. 710, 122
Pac 1102; Wisconsin River Improv. Co. v.
Pier, 137 Wis. 325, 21 L.RA.(N.S.) 538, 118
N. W. 857 ; Great FalU Power Co. v. Webb,
123 Tenn. 584, 133 S. W. 1105; Hagerla v.
Mississippi River Power Co. 202 Fed. 776;
State ex reL Dominick v. Superior Ct. 52
Wash. 196, 21 LJIA.(NJS.) 448, 100 Pac
317; Deerfield River Co. v. Wilmington
Power ft Paper Co. 83 Vt. 548, 77 Atl. 862;
Nolan V. Central Georgia Power Co. 134 Ga.
201, 67 S. E. 656; Otter Tail Power Co. v.
Brastad, 128 Minn. 415, 151 N. W. 198;
Pittsburg Hydro-Electric Co. v. Liston, 70
W. Va. 83, 40 L.RA..(N.S.) 602, 73 S. E.
86.
Messrs. Thomas W. Martin and Ray
Rushton filed a separate brief for defend-
ant in error:
The effect of the judgment of the su-
preme court of Alabama is to leave the
trial of the case to proceed in the court of
first instance as if there had been no pro-
ceeding instituted to delay or prohibit the
trial. The merits are yet to be determined.
There is no exact judgment to be entered,
granting or refusing to grant, or condemn-
ing or refusing to condemn, the property
described in the petition, so that the case
falls within the rule laid down in the fol-
lowing cases:
Benjamin t. Dubois, 118 U. S. 46, 30
L. ed. 62, 6 Sup. Ct. Rep. 925; Dainese v.
KendaU, 119 U. S. 53, 80 L. ed. 305, 7 Sup.
Ct. Rep. 65; Keystone Manganese ft Iron
Co. T. Martin, 132 U. S. 01, 33 L. ed. 275,
10 Sup. Ct. Rep. 32; Meagher t. Minnesotn
Thresher Mfg. Oo. 145 U. S. 608, 36 L. ed.
834, 12 Sup. Ct. Rep. 876; Union Mut L.
Ins. Co. y. Kirchoff, 160 U. S. 374, 40 L. ed.
461, 16 Sup. Ct. Rep. 318; Great Western
510
Teleg. Oo. v.* Bumham, 162 U. S. 339, 40
L. ed. 991, 16 Sup. Ct. Rep. 850; Clark t.
Kansas City, 172 U. S. 334, 43 L. ed. 467, 10
Sup. Ct. Rep. 207; Grant v. Phoenix Mut. L.
Ins. Co. 106 U. S. 429, 27 L. ed. 237, 1 Sup.
Ct. Rep. 414; Moses v. Mobile, 15 Wall. 387,
21 L. ed. 176; Loeber v. Shroeder, 140 U. S.
680, 37 L. ed. 856, 13 Sup. Ct. Rep. 934;
Schlosser v. Hemphill, 198 U. S. 173, 40
L. ed. 1001, 25 Sup. Ct. Rep. 654 ; Haseltine
V. Central Nat. Bank, 183 U. 8. 130, 40
L. ed. 117, 22 Sup. Ct. Rep. 49; Missouri ft
K. I. R. Co. V. OUthe, 222 U. S. 185, 50
L. ed. 155, 32 Sup. Ct. Rep. 46; Louisiana
Nav. Co. V. Oyster Commission, 226 U. S.
90, 57 L. ed. 138, 33 Sup. Ct. Rep. 78; Lodge
V. Twell, 135 U. S. 232, 34 L. ed. 153, 10
Sup. Ct. Rep. 745; Bostwick v. Brinkeroff,
106 U. S. 3, 27 L. ed. 73, 1 Sup. Ct. Rep. 15.
Mr. Justice Holmes delivered the opiniou
of the court:
This is a petition for a writ of prohibition
to prevent the probate court of Tallapoosa
county from taking [31] jurisdiction of
condemnation proceedings instituted by the
Alabama Interstate Power Company to take
land, water, and water rights belonging to
the petitioner. An alternative writ was
issued, but the supreme court of the state
ordered it to be quashed and the writ to be
dismissed. 186 Ala. 622, 65 So. 287. The
grounds of the petition are that the statutes
of Alabama do not authorize the proceed-
ings, and that if they do they contravene
the 14th Amendment of the Constitution of
the United States. The supreme court up-
held the statutes and the jurisdiction of
the probate court, but left the sufficiency of
the petition for condenmation, whether
every subject of which condemnation was
sought could be condemned, and the ability
of the Power Company to prove its case, to
be determined in the condemnation case.
There is a motion to dismiss the writ of
error on the ground that the present deci-
sion is not final because it does not deter-
mine the merits; but this motion must be
denied. Prohibition is a distinct suit and
the judgment finally disposing of it is a
final judgment within the meaning of the
Judicial Code, act of March 3, 1011, chap.
231, § 237, 36 SUt. at L. 1087, 1156, Comp.
Stat. 1013, 9§ 968, 1214, under the sUtutes
of Alabama and by the common law. Code
of 1907, If 4864-4867, 4872; Weston t.
Charleston, 2 Pet. 449, 464, 465, 7 Lw ed.
481, 486, 487. The fact that it does not
decide the merits of the principal suit is
immaterial. It is not devoted to that point,
but only to the preliminary question of the
jurisdiction of the court in whicli that suit
is brought.
The argument in favor of granting the
240 U. S*
1915.
NEW YORK, P. ft K. R. 00. t. PENINSULA PRODUCE EXGH. 81-34
writ, presented by the plaintiffs in error, is
addressed in great part to matters with
which this court has no concern. It is
argued that the prol>ate court could not be
giyen jurisdiction of the condemnation pro-
eeedings consistently with the Constitu-
tion of the state; that \mder the same in-
strument the state legislature had no power
to pass the condemnation acts; that the
petition ^as insufficient to found jurisdic-
tion of the case and was defective in various
[3S] ways; that a part of the condemna-
tion sought was bad under the statutes in
any event; and that certain words in the
Alabama Code under which it is sought to
condemn rights below the contemplated dam
of the Power Company never were properly
enacted by the legislature of the state.
All these points must be taken to have been
decided adversely to the plaintiff in error
by the supreme court of Alabama so far as
they might furnish grounds for prohibition,
and they all are matters on which this court
follows the supreme court of the state.
The principal argument presented that is
open here, is that the purpose of the con-
demnation is not a public one. The purpose
of the Power Company's incorporation, and
that for which it seeks to condemn property
of the plaintiff in error, is to manufacture,
supply, and sell to the public, power pro-
duced by water as a motive force. In the
organic relations of modem society it may
sometimes be hard to draw the line that is
supposed to limit the authority of the legis-
lature to exercise or delegate the power of
eminent domain. But to gather the streams
from waste and to draw from them energy,
labor without brains, and so to save man-
kind from toil that it can be spared, is to
supply what, next to intellect, is the very
foundation of all our achievements and all
our welfare. If that purpose is not public,
we should be at a loss to say what is. The
inadequacy of use by the general public as
a universal test is established. Clark v.
Nash, 198 U. S. 361, 40 L. ed. 1085, 25 Sup.
Ct Rep. 670, 4 Ann. Cas. 1171; Strickley v.
Highland Boy Gold Min. Co. 200 U. S.
627, 531, 50 L. ed. 581, 583, 26 Sup. Ct
Rq>. 301, 4 Ann. Cas. 1174. The respect duo
to che judgment of the state would have
great weight if there were a doubt. Hair-
ston V. Danville k W. R. Co. 208 U. 8. 608,
607, 52 L. ed. 637, 641, 28 Sup. Ct. Rep.
331, 13 Ann. Cas. 1008; O'Neill v. Leamer,
239 U. S. 244, 253, ante, 249, 265, 36 Sup. Ct.
Bep. 54. But there is none. See Otis Co.
V. Ludlow Mfg. Co. 201 U. S. 140, 151, 50
L. ed. 696, 705, 26 Sup. Ct. Rep. 353. We
perceive no ground for the distinction at-
tempted between the taking of rights below
the contemplated dam, such as these are, I
•ad those above. Compensation is provided
•• L. ed.
for aooording to rules [83] that the eovrt
below declares to be well settled and that
appear to be adequate. The details as to
what may be taken and what not under the
statutes and petition are not open here. Be-
fore a corporation can condemn rights it is
required to have obtained, by other means,
at least an acre on each idde of the stream
for a dam site, and this is supposed to show
that the use is not public. It is only a
reasonable precaution to insure good^ faith.
A hardly consistent argument is that the
dam should be built before the necessity of
taking waters below can be shown. But a
plan may show the necessity beforehand.
All that we decide is that no general objec-
tion based on these grounds affects the juris-
diction of the probate court or the con-
stitutionality of the act.
Certain exceptions from the powers con-
ferred, such as private residences, lands of
other corporations having similar powers,
and cotton factories, subject to the taking
of the excess of water over that in actual
use or capable of use at normal stages of
the stream, are too plainly reasonable so far
as they come in question here to need
justification. Discrimination is alleged, but
not argued. We see nothing that runs
against the 14th Amendment. The right
given to take possession before the compen-
sation is finally determined also is not
argued. Williams v. Parker, 188 U. S. 491,
502, 47 L. ed. 559, 562, 23 Sup. Ct. Rep.
440. Without further discussion of the
minutis, we are of opinion that the deci-
sion of tiie Supreme Court of Alabama upon
the questions arising under the Constitution
of the United States was correct.
Judgment affirmed.
[84] NEW YORK, PHILADBLPHIA, &
NORFOLK RAILROAD COMPANY, Plff.
in Err.,
T.
PENINSULA PRODUCE EXCHANGE OF
MARYLAND.
(See S. C. Reporter's ed. 34-42.)
Connecting carriers — delay beyond
own line — Carmack amendment.
1. Damages for the loss of the market
because of unreasonable delay in transpor-
taticm occurring anywhere en route are com-
prehended by the provision of the Carmack
amendment of June 29, 1906 (34 Stat, at
L. 593, chap. 3591), § 7, to the act of
February 4, 1887 (24 Stat, at L. 379, chap.
104, Comp. Stat. 1913, { 8592), f 20, which
Note. — ^As to the rights and liabilities of
connecting carriers — see notes to Fox v.
Boston & M. R. Co. 1 L.RJL 703; Crossan v.
New York 4 N. S. R. Co. 8 L.R.A. 766;
511
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
makes the initial carrier of an interstate
shipment liable to the holder of the bill of
lading for "any loss, damage, or injury to
such property" caused by it or by any car-
rier in the cnain of transportation, despite
any agreement or stipulation to the con-
trary, with the right of recovery over
against the carrier at fault in the amount
of such "loss, damage, or injury" as the
former carrier may have been required to
pay to the owners of the property.
[ For other rases, see Carriers, II. c, in Digest
Sup. Ct. 1913 Supp.]
Error to state court — harmless error
— instructions — evidence.
2. A judgment of the highest state
court which affirms a judgment against a
carrier for the damages sustained by a
shipper through a decline in market value,
due to an unreasonable delay in the trans-
portation of an interstate shipment, will
not be reversed because the trial court, by
its instructions, erroneously permitted the
jury to award as damaf^ the amount of
such decline in value without reference to
a limitation in the bill of lading and in the
carrier's published tariff that the carrier's
liability for loss or damage is to be comput-
ed on the basis of the value of the ship-
ment plus the freight at the time and place
of shipment, unless a lower value is agreed
upon, or because the trial court erroneously
excluded such tariff with its conditions
when offered in evidence, where, upon the
facts as the highest court finds them to be,
the agreed maximum of liability as stipulat-
ed is not exceeded by the judgment.
[For other caf^es. see Appeal and Error, n051-
6065, C071-5126, in Digest Sup. Ct. 1908.]
[No. 337.]
Argued December 35 and 16, 1915. Decided
January 24, 1916.
IN ERROR to the Court of Appeals of
the State of Maryland to review a judg-
ment which affirmed a judgment of the
Circuit Court for Somerset County, in that
state, in favor of a shipper in an action
against an initial carrier for the loss of
the market, due to imreasonable delay in
the transportation of an interstate ship-
ment. Affirmed.
See same case below, 122 Md. 215, 89 Atl.
433.
The facts are stated in the opinion.
Messrs. Henry Wolf Bikl6 and Frederic
D. McKenney argued the cause and filed
a brief for plaintiff in error:
While it is well settled in this court that
a carrier accepting property consigned to
a point beyond its own line is not liable
for the transportation of the property after
it leaves its rails, in the absence of express
agreement to assume such • responsibility
(Michigan C. R. Co. v. Mineral Springs
Mfg. Co. 16 WaU. 318, 21 L. ed. 297; Og-
densburg & L. C. R. Co. v. Pratt, 22 Wall.
123, 22 L. ed. 827), in the present proceed-
ing there is an express stipulation against
the assumption of such liability, except as
it has been imposed by law. It follows,
therefore, that the plaintiff in error is
under no liability to the shipper unless the
I Carmack amendment is sufficiently broad
in its scope to include liability for delay
occurring on the line of a connection.
Myrick v. Michigan C. R. Co. 107 U. S.
102, 27 L. ed. 325, 1 Sup. Ct. Rep. 425;
Wabash R. Co. v. Pearce, 192 U. S. 179, 48
L. ed. 397, 24 Sup. Ct. Rep. 231.
The Carmack amendment carefully con-
fines the liability imposed on the initial
carrier to loss, damage, or injury caused by
it or by any common carrier, railroad, or
transportation company, to which such
property may be delivered, or over whose
line or lines such property may pass; and
this liability is not coextensive with the
common-law liability of the individual car-
riers.
Galveston, ,K. ft S. A. R. Co. v. Wallace,
223 U. S. 481, 491, 56 L. ed. 516, 523, 32
Sup. Ct. Rep. 205; Kansas City Southern R.
Co. V. Carl, 227 U. S. 639, 649, 57 L. ed.
683, 687, 33 Sup. Ct. Rep. 391.
From the earliest times the liability 'for
delay has been an entirely different ami
distinct liability from that for loss, dam-
age, or injury to the property. The latter
liability has been the unique liability
shared by the carrier and the iniikee})cr.
(See Holmes, Common Law, chap. 5, and
Professor Beale's article, 11 Harvard L.
Rev. 158.) This liability required tlie car-
rier to answer at all events for the safety
of the property except in those situations
for which the law itself created excuses,
vix., the act of God, the act of the public
enemy, the act of the law, the act of the
shipper, and the nature of the goods. But
delay in itself is not a cause of action; it
must be negligent delay.
Story, Baihn. 9th ed. § 545A; Scbouler,
Bailm. ft Carr. 3d ed. § 488; Hutchinson,
Carr. 3d ed. § 653; Pennsylvania R. Oo. ▼.
Clark, 118 Md. 514, 85 Atl. 613.
Furthermore, where property having
moved over the lines of several railroads*
is delivered at destination damaged, there
Hill V. Denver ft R. G. R. Co. 4 L.RJL 376;
International ft G. N. R. Co. v. Tisdale, 4
LwRJ^. 545; Browning v. Goodrich Transp.
Co. 10 L.RJL 415; Richmond ft D. R. Co.
V. Pa3me, 6 L.R.A. 849; Adams Exp. Co. v.
Harris, 7 LJtJL 214; Miller v. South Caro-
ftl2
lina R. Co. 9 L.R.A. 833; and Roy v. Chesa-
peake ft O. R. Co. 31 L.RJl.(N.S.) 1.
Effect of Carmack amendment on liability
of connecting carrier for loss beyond its
own line — see note to Galveston, H. ft S. A.
R. Co. V. Wallaos, 56 L. ed. U. S. 516.
240 V. 8.
19U. VKW YOBK. P. 4 N. R. CO. ▼. PENINSULA PBODUGB EXGH.
iB a prcftumptioii, when it is shown that Supp. 225; Kramer t. Chicago, M. & St. P.
each property was delivered to the initial R. Go. 101 Iowa, 178, 70 N. W. 119, 1 Am.
earner in good condition, that the damage Neg. Rep. 220.
occunred on the line of the final carrier. The Peninsula Produce Exchange seeks in
This presumption results from the appli- this case to recover upon a liability which
cation of another presumption, that a con- not only is not offered in the tariffs of the
ditioB found to exist is presumed to con- carrier, but is specifically contrary to the
tfame until the contrary appears. In cases contract of transportation into which the
of delay resulting in no physical damage, carrier, through the medium of its tariffs,
BO similar application of the more com- offers to enter.
prehensive presumption is possible, and it Chicago & A. R. Co. v. Kirby, 226 U. S.
is settled in cases of delay that there is no 165, 56 L. ed. 1033, 32 Sup. Ct. Rep. 648,
presumption as to the line on which the Ann. Cas. 1014A, 501; Atchison, T. ft S. F.
delay occurred, but that the plaintiff must R. Co. v. Robinson, 233 U. S. 173, 58 L. ed.
localize the delay on the line of the carrier 001, 34 Sup. Ct. Rep. 656; Boston ft M. R.
selected by him for suit. Co. v. Hooker, 233 U. S. 97, 58 L. ed. 868,
East Tennessee, V. ft O. R. Co. t. John- L.RA. 1915B, 460, 34 Sup. Ct. Rep. 526,
SOB, 86 6a. 497, 11 S. E. 809; Almand v. Ann. Cas. 1916B, 593; Adams Exp. Co. t. '
Georgia R. ft Bkg. Co. 05 Ga. 775, 22 S. E. Croninger, 226 U. S. 491, 57 L. ed. 314, 44
674; Hutchinson, Carr. 3d ed. 1690; 6 Cyc. L.RA.(N.S.) 257, 33 Sup. Ct. Rep. 148;
400, note 40, p. 491 ; Detroit ft B. C. R. Co. Kansas City Southern R. Co. v. Carl, 227
T. McKenzie, 43 Mich. 609, 5 N. W. 1031. U. S. 639, 57 L. ed. 683, 33 Sup. Ct. Rep.
It seems improbable that Congress could 391.
have intended to include liability for delay The reasonableness of the limitation was
by tiie use of the words, "loss, damage, or not open for discussion in the state court,
, Injury to the property," which have a mean- since the shipment was an interstate ship-
ing that excludes delay. Moreover, in mcnt, and no complaint had been made to
Adams Exp. Co. v. Croninger, 226 U. S. 491, the Interstate Commerce Commission of the
67 Lw ed. 314, 44 LJRA.(N.S.) 257, 33 Sup. unreasonableness of the regulation in ques-
Ct. Rep. 148, this court apparently recog- tion. If any complaint could justly be
nixes delay as a distinct and separate cause lodged against the stipulation, clearly the
of action from loss, injury, or damage to Interstate Commerce Commission would be
property. the tribimal primarily trusted with the
But, if an initial carrier may be held for jurisdiction to dispose of the controversy,
the delay of the connecting carrier if such Texas ft P. R. Co. v. Abilene Cotton Oil
delay causes damage or injury to the prop- Co. 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct.
erty, it would still remain to determine Rep. 350, 9 Ann. Cas. 1076; Baltimore ft O.
whether the initial carrier could be held R. Co. v. United States, 216 U. S. 481, 54
ifhere such delay caused no loss, damage, L. ed. 292, 30 Sup. Ct. Rep. 164; Robinson
or injury to the property, but only loss, v. Baltimore ft O. R. Co. 222 U. S. 506, 56
damage, or injury to the shipper consequent L. ed. 288, 32 Sup. Ct. Rep. 114; Morris-
upon conditions having no reference to the dale Coal Co. v. Pennsylvania R. Co. 230
actual transportation of the goods. To bus- U. S. 304, 57 L. ed. 1494, 33 Sup. Ct. Rep.
tain such liability would involve the car- 938; Boston ft M. R. Co. v. Hooker, 233
rier in a liability uncertain in extent and U. S. 97, 58 L. ed. 868, L.RA. 1915B, 450,
speculative in character,— a liability which 34 Sup. Ct. Rep. 526, Ann. Cas. 1915D, 593.
would eantimvene the public interest. ^^ j^^^ ^ Ellegood argued the
^^'^^.^ *n^- ^;^^^»**' R. I. & P. cause and filed a brief for defendant in er-
A* vx>. 81 Inters. iJom. Kep. 8. ror*
ProTbion. of bills of la<ling requiring ^j^^ ^^^^ ^f ^^ ^^^„ ^^ respecting
«*t notices of clauns for loss or damage ^^^^, jj^^y.^ ^^^ p^,^ sUtute itself.
to shipments shall be filed withm a sp«a- .^^ ^ J' .„^ ^^, p„,i,io„,
ned time are not sufficient to justify a de- Ji ™^^:i„ —U.^^^ -«« .^kio^.u-f «#
m.«^ #^ . -;«.;! *;... ^i,-,-. *ii -u;«_ ™^<^ speedily remove any ambiguity, if
^istinct^ States v. Lexington Mill ft Elevator Co. 232
Johnson v. Missouri, K. ft T. R. Co. 107 ^' ^- ^^^* ^^ ^- ^' ^^^» L.RA. 1915B, 774,
App. Div. 374, 95 N. Y. Supp. 182; D. Klass 34 Sup. a. Rep. 337.
<^mmiMion Co. v. Wabash R. Co. 80 Mo. The statute, original and amendments, is
^PP. 164; Leonard v. Chicago ft A. R. Co. remedial, and, by the universal rule, must
54 Mo. App. 293; Frey v. New York C. ft receive a liberal construction to effectuate
^* R. R. Co. 114 App. Div. 747, 100 N. Y. iU intent as an entirety; but that which
♦<> L. ed. 33 .^Y'^
3e» 87
SUPREME COURT OF THE UNITED STATES.
Oct. Tknc^.
k oontended for would defeat its purpoee in
part; that ie, aa a remedy for relief for
"aaj lossy" except for lose or damaged
gooda. Thia ia not to be tolerated unlese
the words of the statute compel it.
Washington Market Go. t. Hoffnuu, 101
U. S. 112, 116, 25 L. ed. 782, 784.
Its operation may be restrained or en-
larged beyond the ordinary import of the
words when the purpose of the statute and
public policy require it.
United States v. Trans-Missouri Freight
Asso. 166 U. S. 290, 41 L. ed. 1007, 17 Sup.
Ct. Rep. 640.
It is with the right of the person sus-
taining the loss, and not with any specific
cause of injury to the property, that the
statute is concerned.
New York, P. ft N. R. Co. t. Peninsula
Produce Exch. 122 Md. 216, 89 Atl. 433.
The liability imposed by the statute is
the liability imposed by the common law.
Adams Exp. Co. y. Oroninger, 226 U. S.
491, 492, 57 L. ed. 314, 315, 44 LJELA.(N.S.)
257, 38 Sup. Ct. Rep. 148; Galveston, H. &
S. A. R. Co. T. Wallace, 56 L. ed. 517, and
note, 223 U. S. 481, 32 Sup. Ct. Rep. 205;
Missouri, K. ft T. R. Co. v. Harriman, 227
U. S. 657, 671, 57 L. ed. 690, 698, 33 Sup.
Ct. Rep. 397.
The common-law duty required the car-
rier to transport and deliyer within a rea-
sonable time; and any failure of this duty
within a reasonable time renders the car-
rier liable for all the consequences.
Philadeli^ia, W. ft B. R. Co. v. Lehman,
56 Md. 233, 40 Am. Rep. 415.
The duty to deliver safely, and the duty
to deliver in due time, are distinct obli-
gations.
Baltimore ft 0. R. Go. t. Whitehill, 104
Md. 310, 64 Atl. 1033; PhiUdelphia, B. ft W.
R. Co. T. Diffendal, 109 Md. 509, 72 Atl. 193,
458; Baltimore, C. ft A. R. Co. v. William
Sp^-ber ft Co. 117 Md. 602, 84 Atl. 72;
Philadelphia, W. ft B. R. Co. v. Lehman,
supra.
Mr. Justice Hughes delivered the opinion
of the court:
On May 26, 1910, the Peninsula Produce
Exchange of Maryland delivered to the New
York, Phihidelphia, ft Norfolk Railroad
Company at Marion, Maryland, a carload
of strawberries for tranq>ortation to New
York dty. The conditions of the transpor-
tation were set forth in the bill of lading
issued by the railroad company. The prop-
erty was delivered at destination lome hours
later than the customary time of arrival,
and thia action was brought to recover dam-
ages for the failure to transport and de-
liver with reasonable despatch. Judgment
in favor of the shipper was affirmed l^ the
ftl4
court of appeals of Maryland. 122 Md. 215^
89 AtL 433.
The plaintiff in error, in its brief, states-
that "Uie questions involved are two—"
"1: Does the Carmack amendment [84
Stat, at L. 593, chap. 8591, Comp. Stat.
1918, S 8592] impose on the 'initial car-
rier* liabili^ for delay occurring on the
line of its connection without physical dam-
age to the property?
"2. Was the plaintiff entitled to recover
because its shipment failed to arrive in
time for the market of May 28th, when the
regulations under which the shipment moved
were published in tariffs duly on file with
the Interstate Commerce Commission, and
specifically provided: 'No carrier is bound
to transport said property by any particular
train or vessel, or in time for any particular
market, or otherwise than with reasonable
despatch, unless by specific agreement in-
dorsed hereon*?"
The first question, arising from the fact
that it did not appear that the delay oc-
curred on the line of the initial [37] carrier
(the defendant) was raised by an unsuc-
cessful demurrer to the declaration, and
both questions were presented by prayers
for instructions which were denied.
The amendment of § 20 of the interstate
commerce act, known as the Carmack
amendment (act of June 29, 1906, chap.
3591, § 7, 34 Stat, at L. 584, 505, Comp.
Stat. 1913, 9 8592), provides "that any
common carrier . . . receiving property
for transportation from a point in one
state to a point in another state shall issue
a receipt or bill of lading therefor and
shall be liable to the lawful holder thereof
for any loss, damage, or injury to sucb
property caused by it or by any common
carrier ... to which such property
may be delivered or over whose line or linea
such property may pass, and no contract^,
receipt, rule, or regulation shall exempt
such common carrier . . . from the lia-
bility hereby imposed."
We need not review at length the con-
siderations which led to the adoption of thia
amendment. These were stated in Atlantie
Coast Line R. Co. v. Riverside Mills, 21&
U. S. 186, 199-203, 55 L. ed. 167, 179-181,.
31 L.RA.(N.S.) 7, 31 Sup. Ct. Rep. 164.
It was there pointed out that along with
singleness of rate and continuity of car-
riage in through shipments there had grown
up the practice of requiring specific stipu-
lations limiting the liability of each sepa-
rate company to its own part of the through
route, and, as a result, the shipper could
look to the initial carrier for recompense
only "for loss, damage, or delay" occurring
on its own line. This ''burdensome situa-
tion" was "the matter which Congress un-
240 U. S»
1915.
NEW YOBK, F. k K. R. CO. y. PENINSULA PRODUCE EXCH. S7-40
dertook to regulata.*' And it wu conduded
ttat the requirement that interstate car-
riers holding themselves out as receiving
packages for destinations beyond their own
terminal should be compelled "as a condi-
tion of continuing in that traffic to obligate
themselves to carry to the point of destina-
tion, using the lines of connecting carriers
as their own agencies," was within the
power of Congress. The rule, said the court
in defining the purpose of the Carmack
amendment, "is adapted to [88] secure the
rights of the shipper by securing unity of
transportation with imity of responsibility."
And, again, we said in Adams Exp. Co. v.
Croninger, 226 U. S. 491, 57 L. ed. 314, 44
L.R.A.(N.S.) 257, 33 Sup. Ct. Rep. 148,
that this legislation embraces "the subject
of the liability of the carrier under a bill
of ladiDg which he must issue." "The duty
to issue a bill of lading and the liability
thereby assumed are covered in full, and
though there is no reference to the effect
upon state regulation, it is evident that
Congress intended to adopt a uniform rule
and relieve such c<mtracts from the diverse
regulation to which they had been there-
tofore subject." Id. p. 506.
It is now insisted that Congress failed to
accomplish this paramount object; that
while unity of responsibility was secured if
the goods were injured in the course of
transportation or were not delivered, the
statute did not reach the case of a failure to
transport with reasonable despatch. In
such case it is said that, although there is
a through shipment, the shipper must still
look to the particular carrier whose neglect
caused the delay. We do not think that the
language of the amendment has the inade-
quacy attributed to it. The words "any
loss, damage, or injury to such property,"
caused by the initial carrier or by any con-
necting carrier, are comprehensive enough
to embrace all damages resulting from any
failure to discharge a carrier's duty with
respect to any part of the transportation
to the agreed destination. It is not neces-
sary, nor is it natural, in view of the gen-
eral purpose of the statute, to take the
words "to the property" as limiting the
word "damage" as well as the word "in-
jury," and thus as rendering the former
wholly superfluous. It is said that there is
a different responsibility on the part of the
carrier with respect to delay from that
which exists where there is a failure to
carry safely. But the difference is with
respect to the measure of the carrier's
obligation; the duty to transport with rea-
sonable despatch is none the less an inte-
gral part of the normal undertaking of
[89] the carrier. And we can gather no in-
tent to unify only a portion of the carrier's
•t L. ed.
I responsibility. Further, it is urged that
the amendment provides that the initial
carrier may recover from the -connecting
carrier "on whose line the loss, damage^ or
injury shall have been sustained the amount
of such loss, damage, or injury as it may be
required to pay to the owners of such prop-
erty;" and this, it is said, shows that the
"loss, damage, or injury" desoribed is that
which may be localized as having occurred
on the line of one of the carriers, and there-
fore should be limited to physical loss or
injury. But we find no difficulty in this^
as the damages required to be paid by the
initial carrier are manifestly r^arded as
resulting from some breach of duty, and the
purpose is simply to provide for a recovery
against the connecting carrier if the latter,
as to its part of tiie transportation, is
found to be guilty of that breach. The
view we have expressed finds support in
the explicit terms of the act of January 20,
1914, chap. 11, 38 Stat at L. 278, which
provides "that no suit brought in any state
court of competent jurisdiction against a
railroad company ... to recover dam-
ages for delay, loss of, or injury to prop-
erty received for transportation by such
common carrier under section twenty of the
act to regulate conunerce . . . shall be
removed to any court of the United States
where the matter in controversy does not
exceed, exclusive of interest and costs, the
sum or value of $3,000." If the language
of § 20 can be regarded as ambiguous, this
legislative interpretation of it as conferring
a right of action for delay, as well as for
loss or injury to the property in the course
of transportation, is entitled to great
weigh t.l Alexander v. Alexandria, 5 [40}
Cranch, 1, 7, 8, 3 L. ed. 10-21 ; United SUtea
V. Freeman, 3 How. 556, 564, 565, 11 L. ed.
724, 727, 728; Cope v. Cope, 137 U. & 682,
688, 34 L. ed. 832, 834, 11 Sup. Ct Rep.
222.
The second question, as stated, is sought
to be raised under the stipulation of the bill
of lading (being one of the conditions filed
with the tariffs under the interstate com-
merce act) that the carrier is not bound
to transport "by any particular train or
vessel, or in time for any particular mar-
ket, or otherwise than with reasonable des-
iThe language of the Carmack amend-
ment has been construed in various decisions
by state courts as embracins damages for
delay. Ft. Smith 4( W. R. Co. v. Awbrey,
39 Okla. 270, 134 Pao. 1117; Southern P.
Co. T. L^on, — Hiss. — , 66 So. 209; Peooa
ft N. T. R. Co. V. Cox, — Tex. Civ. App. — ,
150 S. W. 265; Norfolk Truckers Exch. v.
Norfolk Southern R. Co. 116 Va. 466, 82
S. E. 02. Contra, Byers v. Southern Exp.
Co. 165 N. C. 542, 81 S. E. 741.
4<M2
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tnat,
pateh." See Chicago k A. R. Go. ▼. Kirby,
225 U. S. 155, 56 L. ed. 1033, 32 Sup. Ct.
Rep. 648, Ann. Cas. 1914A, 501; Atchison,
T. & S. F. R. Co. y. Robinson, 233 U. S. 173,
58 Lb ed. 901, 34 Sup. Ct. Rep. 556. But
the argument upon this point is not ad-
dressed to the issue, as recovery was not
sought or permitted, except for a failure
to transport with reasonable despatch. The
declaration alleged that the berries "were
to be transported with safety, and with rea-
sonable despatch, and delivered ... in
safe condition and with reasonable dili-
gence;" that the defendant, or its connect-
ing lines, did not "transport or deliver the
same with reasonable despatch;'' and that
the damage was due to their failure to use
"due and reasonable diligence." The court
instructed the jury that it became the duty
of the defendant and all connecting lines "to
use reasonable care, diligence, and exertion
in forwarding and transporting and deliver-
ing" the berries, and that if the jury should
believe that the defendant and the connect-
ing lines, or any of them, "did not use such
care, diligence, and exertion," and that by
reason of the failure so to do the berries
arrived "too late for the market of the day
on which they would have arrived if they
had been forwarded and transported with
such care, diligence, and exertion, and that
the plaintiff thereby sustained loss, then
their verdict should be for the plaintiff." As
the court of appeals of Maryland said, the
ground of the [41] action was "the failure
to carry with reasonable despatch, and the
loss of marketability is mentioned as the
element of damage." That is, the reference
to the market said to have been lost was
merely for the purpose of calculating dam-
ages which were sought solely because of
lack of reasonable diligence, and not upon
the allegation of any added duty with re-
spect to a particular train or market. The
stipulation invoked does not attempt to
limit the duty of the carrier to transport
with reasonable despatch, and we are not
called upon to consider its effect in any
other aspect.
The instructions, however, permitted the
jury to award as damages the amount of
the decline in value, due to the delay, at
the place of destination, without stating the
limitation set forth in the tariff of the
plaintiff in error as filed; and this tariff,
with the accompanying conditions, duly of-
fered in evidence, was excluded. It was con-
ceded by the court of appeals that these
rulings were erroneous, but the court foimd
that they worked no harm to the plaintiff
in error. The condition in the bill of lad-
ing and in the filed tariff provided that "the
amount of any loss or damage for which
any carrier is liable shall be computed on '
SJ0
the basis of the value of the property (being
the bona fide invoice price, if any, to tht
consignee, including the freight ehargea, if
prepaid) at the place and time of shipment
under this bill of lading, unleaa a lower
value has been represented in writing by
the shipper or has been agreed upon or U
determined by the classification or tariffs
upon which the rate is based, in any of
which events such lower value shall be the
maximum amount to govern such computa-
tion, whether or not such loss or damage
occurs from negligence." Treating the rate
charged for the transportation as based
upon assent to this provision, the court of
appeals construed the stipulation not as
changing the basis of liability, but aa limit-
ing the amount of the recovery in any event
to the value of the property [42] at the
time and place of shipment, no other value
having been agreed upon. Adams Exp. Co. ▼.
Croninger, 226 U. S. 491, 57 L. ed. 314, 44
L.RJl.(N.S.) 257, 33 Sup. Ct. Rep. 148;
Wells, F. k Co. V. Neiman-Marcus Co. 227
U. S. 469, 57 L. ed. 600, 33 Sup. Ct. Rep.
267; Boston k M. R. Co. v. Hooker, 233 U.
S. 97, 58 L. ed. 868, L.R.A.1915B, 450, Ann.
Caa 1915D, 593; George N. Pierce Co. ▼.
Wells, F. k Co. 236 U. S. 278, 59 L. ed. 576,
35 Sup. Ct. Rep. 351. It appeared from the
evidence that the berries were sold in New
York city at an average price of 6} cents a
quart. It was also proved that the decline
in value due to the delay was from 2 to 3
cents a quart. The jury gave a verdict for
$180.48, which included $153.60, principal,
and $26.88 interest. That Is, the jury gave
damages at the rate of 2 cents a quart for
the 240 crates (7,680 quarts) shipped. The
court held that it could not be said, aa the
defendant contended, that there was no
proof of actual damage from the delay;
and that, so far as the maximum liability
fixed by the filed tariff was concerned, the
court was justified in taking the value of
the berries at the time and place of ship-
ment as being at least equal to the 2 centa
a quart allowed. Upon this point the court
of appeals said: "It may be judicially as-
sumed that their value at the time and
place of shipment was at least equal to the
2 cents per quart which the Jury allowed
as damages, and in the view we have taken
of the case no just purpose would be aerved
in reversing the judgment and subjecting
the parties to the expense of a new trial."
That is to say, upon the facta as the state
court found them to be, the agreed maxi-
mum of liability as stipulated was not ex-
ceeded.
We cannot say, in the light of the evi-
dence, that the state court denied to the
plaintiff in error any Federal right in hold-
ing aa it did with respect to the amount
S40 U. S.
ms.
LOOMIS Y. LEHIGH VALLEY K. CX).
42,48
€f the ndne of the berries at the time and
pliee of ehipment, and in thia view we are
viable to eonelude that, in disposing of the
Federal questi<ms, there was anj error
wbieh would require, or justify, a reversal.
Jud^ent affirmed.
[43] LESLIE G. LOOMIS and Leslie G.
Loomis, Jr., Plffs. in Err.,
V.
LEHIGH VALLEY RAILROAD COM-
PANY.
(See 8. C. Reporter's ed. 49-61.)
State Cioorts — JorlsdlcUon ^ salt
against interstatft carrier — > necessity
of acUon by Interstate Conuneroe
Commission.
Without preliminary action by the In-
terstate Commerce Commission a state court
his no jurisdiction of an action by shippers
to recover from an interstate carrier sums
expended .by them in constructing grain
doors or bullcheads in cars furnished by the
Ctfrier for interstate carload shipments of
fam products in bulk, the applicable duly
filed interstate rate schedules making no
nferenoe to allowances for grain doors or
bulkheads.
[for other cases, see Courts. VI. a; Carriers,
UI. c in Digest Sup. Ct. 1008.1
[No. 106.]
Aigued December 6, 1015. Decided January
24, 1016.
IK ERROR to the Supreme Court of the
State of New York in and for the County
<rf Ontario to review a judgment entered
pursuant to the mandate of the Court of
Appeals of that state, which modified, and
affirmed as modified, a judgment of the Ap-
P^ate Division of the Supreme Court,
Fourth Department, directing a judgment
for the plaintiffs upon a verdict in their
^vor at a trial term of the Supreme Court
|a an action by shippers to recover from an
iitterstate carrier sums expended by them
^ constructing grain doors or bulkheads in
^*n furnished by the carrier. Affirmed.
See same case below, in appellate division,
U7 App. Div. 105, 132 N. Y. Supp. 138;
hi court of appeals, 208 N. Y. 312, 101 N.
B.007.
Xhe faets are stated in the opinion.
Mr. Edward P. White argued the cause,
And, with Mr. John Colmey, filed a brief for
Plahitiffs in error:
It was the common-law duty of the de-
fendant to furnish the lumber in suit.
Hutchinson, Oarr. § 407 ; Cincinnati, N. O.
•OL. ed.
. ft T. P. R. Co. V. N. K. Fairbanks ft Co. 3S
I C. C. A. 611, 62 U. S. App. 231, 00 Fed.
467; Hilton Lumber Co. v. Atlantic Coast
Ldne R. Co. 141 N. C. 171, 6 L.RJL(NJ3.)
225, 53 S. E. 823; 'Chicago ft A. R. Co. v.
Davis, 150 lU. 58, 50 Am. St. Rep. 143, 48
N. E. 382; New York SUte Shippers' Pro-
tective Asso. V. New York C. ft H. R. R. Co.
2 P. S. C. R. (2d DUt. N. Y.) 251.
An action will lie at common law in
favor of the plaintiffs against the defend-
ant for the moneys so paid, laid out, and
expended by the plaintiffs for the defend-
ant.
Goodale v. Lawrence, 88 N. T. 513, 42 Am.
Rep. 250; Farron v. Sherwood, 17 N. T.
227.
While the suction is one at law, yet the
essence of it is in equity. It Is in its nature
equitable, and is founded upon the principle
of fair play,~that is, no man should be
compelled to pay another man's debts.
Commercial Nat. Bank v. Sloman, 12i
App. Div. 874, 106 N. Y. Supp. 508; Rob-
erto V. Ely, 113 N. Y. 131, 20 N. E. 606;
Xeass V. Mercer, 15 Barb. 321; Norton v.
Coons, 6 N. T. 40.
The common -law duty asserted by the
plaintiffs is reaflirmed by § 1 of the inter-
stote commerce act, the liability of the de-
fendant is necessarily implied by § 15, and
the common-law remedy is expressly saved
by S 22.
Pennsylvania R. Co. v. Puritan Coal Min.
Co. 237 U. S. 121, 50 L. ed. 867, 35 Sup. Ct.
Rep. 484; Eastern R. Co. v. Littlefield, 237
U. 8. 140, 50 L. ed. 878, 35 Sup. Ct Rep.
480; Illinois C. R. Co. v. Mulberry HiU
Coal Co. 238 U. 8. 275, 50 L. ed. 1306, 35
Sup. Ct. Rep. 760.
The common-law duty asserted in this
action was enforceable at the place of ship-
ment by the courts of the state of New
York, whatever the destination of the
freight.
Chicago, M. ft St. P. R. Co. v. Solan, 169
U. S. 133, 42 L. ed. 688, 18 Sup. Ct. Rep.
280; Atlantic Coast Line R. Co. v. Mazur-
sky, 216 U. S. 122, 54 L. ed. 411, 30 Sup.
Ct. Rep. 378; People ex rel. Pennsylvania
R. Co. V. Knight, 171 N. Y. 354, 08 Am. St.
Rep. 610, 64 N. E. 162, 102 U. S. 21, 48 L.
ed. 325, 24 Sup. Ct. Rep. 202; New York,
N. H. ft H. R. Co. V. New York, 165 U. S.
628, 41 L. ed. 853, 17 Sup. Ct. Rep. 418;
Missouri P. R. Co. v. Larabee Flour Mills
Co. 211 U. S. 612, 53 L. ed. 352, 20 Sup.
Ct. Rep. 215; Louisville ft N. R. Co. v. F. W.
dook Brewing Co. 223 U. S. 70, 56 L. ed.
355, 32 Sup. Ct. Rep. 180; Missouri P. R.
Co. V. Castle. 224 U. S. 541, 66 L. ed. 876,
32 Sup. Ct. Rep. 606.
fbVl
SUPRSME OOUBT OF THE UNITED STATES.
Oct. Temm,
Mr. Iijnuui M. Bam argued the oauw,
and, with Messrs. Daniel J. Kenefick and
niomas R. Wheeler, filed a brief for de-
fendant in error:
The courts of the state of New Toxk had
no jurisdiction over the interstate ship-
ments involved, since Congress had legis-
lated upon the field covering such inter-
state "transportation,'' and had assumed
exclusive jurisdiction thereof.
Boston ft M. R. Go. v. Hooker, 233 U. S.
97, 68 I4. ed. 868, L.RJI. 1915B, 460, 34 Sup.
Ct. Rep. 626, Ann. Cas. 1916D, 693; Victor
Fuel Co. V. Atchison, T. ft S. F. R. Co. 14
Inters. Com. Rep. 119; George N. Pierce Co.
V. Wells, F. ft Co. 236 U. S. 278, 69 L. ed.
676, 36 Sup. Ct. Rep. 361; Chicago ft A. R.
Go. V. Kirby, 226 U. S. 166, 66 L. ed. 1033,
82 Sup. Ct. Rep. 648, Ann. Cas. 1914A, 601 ;
Kansas City Southern R. Co. v. C. H. Albers
Commission Co. 223 U. S. 673, 66 L. ed.
666, 82 Sup. Ct. Rep. 316; Armour Packing
Co. V. United States, 209 U. S. 66, 72, 62
L. ed. 681, 691, 28 Sup. Ct. Rep. 428; New
Toric, N. H. ft H. R. Co. V. Interstate Com-
merce Commission, 200 U. S. 361, 391, 60
L. ed. 616, 621, 26 Sup. Ct. Rep. 272; Texas
ft P. R. Co. V. Abilene Cotton Oil Co. 204
U. 8. 426, 61 L. ed. 663, 27 Sup. Ct. Rep.
860, 0 Ann. Cas. 1075; LouisviUe ft N. R.
Co. V. MoHley, 219 U. S. 467, 66 L. ed. 297,
34 LJLA.(NJ3.) 671, 31 Sup. Ct. Rep. 266;
Pennsylvania R. Co. v. Puritan Coal Min.
Co. 237 U. S. 121, 69 L. ed. 867, 36 Sup.
Ct. Rep. 484; Pennsylvania R. Co. v. Clark
Bros. Coal Min. Co. 238 U. S. 466, 69 L. ed.
1406, 36 Sup. Ct. Rep. 896; Chicago, R. L
ft P. R. Co. V. Hardwick Farmers' Elevator
Co. 226 U. S. 426, 67 L. ed. 284, 46 L.RA.
(NJ3.) 203, 33 Sup. a. Rep. 174; Southern
R. Co. V. Reid, 222 U. S. 424, 66 L. ed. 267,
32 Sup. Ct. Rep. 140; Robinson v. Balti-
more ft 0. R. Co. 222 U. S. 606, 66 L. ed.
288, 32 Sup. Ct Rep. 114; Texas ft P. R.
Co. V. Abilene Cotton Oil Co. 204 U. S. 426,
446, 61 L. ed. 663, 661, 27 Sup. a. Rep.
860, 9 Ann. Gas. 1076; McNeill v. Southern
R. O). 202 U. S. 643, 60 L. ed. 1142, 26 Sup.
Ot Rep. 722; Baltimore ft 0. R. Co. v.
United Slates, 216 U. S. 481, 64 L. ed. 292,'
SO Sup. Ct. Rep. 164; Atlantic Coast Line
R. Co. V. Macon Grocery Co. 02 C. C. A. 114,
166 Fed. 206, affirmed in 216 U. S. 50 i . 54
L. ed. 300, 30 Sup. Ct. Rep. 184; AtchiBon,
T. ft S. F. R. Go. T. United SUtes, 232 U. S.
199, 68 L. ed. 668, 34 Sup. Ct Hep. 291;
Mitchell Goal ft Ooke Co. v. Pennsylvania
R. Co. 230 U. S. 247, 258, 269, 67 L. ed.
1472, 1476, 1477, 83 Sup. Ct. Rep. 916;
Morrisdale Coal Co. t. Pennsylvania R. Ca.
280 U. S. 304, 67 L. ed. 1494, 38 Sup. Ct
Bsp. 938; Pennsylvania R. Go. T. Interna-
tional Coal Min. Go. 230 U. S. 184, 67 L. ed.
1446, 33 Sup. Ct. Rep. 893, Ann. Gas. 1916A«
518
316; Atchison, T. ft S. F. E. Go. t. United
SUtes, 232 U. S. 199, 68 L. ed. 668, 34 Sup.
Ct Rep. 291; National Wholesale Lumber
Dealers' Asso. v. Atlantic Coast Line R. Go.
14 Inters. Com. Rep. 164.
*Mr. Justice McReynoIds delivered th«
opinion of the court:
Plaintiffs in error have long been ship-
pers of grain and produce over the line of
defendant carrier from Victor and other sta-
tionif in Western New York. From time to
time during a period beginning in August,
1906, and ending [47] May 6, 1908, they
requested it to furnish at such places for
their use one or more cars — about two hun-
dred altogether — suitable for transporting
in bulk, wheat, oats, rye, apples, cabbages,
and potatoes. In response, it sent ordinary
box and refrigerator cars inadequate for the
required service untU fitted with inside
doors or transverse bulkheads. Prior to
1906, in like circumstances, the custom was
for the railroad to supply lumber without
charge and shippers constructed these tem-
porary fittings. This practice was discon-
tinued at the stations mentioned, and, dur-
ing the period specified, it refused either to
supply such material or cars completely
prepared for carrying in bulk the enumer-
ated articles. Plaintiffs were therefore com-
pelled to construct inside doors or bulk-
heads in the cars which they loaded and
delivered to defendant for transportation to
points both within and beyond the stnte.
The total cost of material used was $322.07,
— it varied from 40 cents to $3.60 per car.
Payment of the amount so expended was
demanded by plaintiffs and refused. With-
out preliminary resort to the Interstate
Commerce Commission, they then brought
this action in a state court upon the theory
that the carrier having failed to perform
its common-law duty to furnish s^dequate
cars, they were entitled to recover as dam-
ages their consequent outlay. Defendant
denied liability, and further challenged the
court's jurisdiction over claims incident to
interstate shipments because: It was and
remains an interstate carrier subject to the
act to regulate commerce as amended and
supplemented as well as the act of Congress
passed February 19, 1908 [82 Stat at L.
847, chap. 708, Comp. Stat 1918, f 8697],
known as the Elkins act, etc; it had filed
with the Interstate Commerce Commission
the tariffs under which such shipments were
made; these tariffs fixed rates for trana-
portation only, and did not provide for pay-
ments or allowances for grain doors, bulk-
heads, or lumber for [48] constructing the
same; the rates were reasonable and Just
and had not been held otherwise by the
Interstate Ccmimerce Commission.
240 V. 8.
ins.
LOOMIS T. LEHIQH VALLSY R. CO.
48^60
The eonrt of appeals held that the com-
mon law impoted upon the railroads the
duty of furnishing cars equipped with in-
side doors or bulkheads for transporting
grain or provisions in bulk, and unless local
or Federal statutes had established difTerent
rules, plaintiffs were entitled to recorer.
Having considered the statutes, it concluded
the local act created no bar to recovery on
account of the intrastate shipments, but that
Congress had* assumed such control over in-
terstate shipments as to deprive the state
courts of power to consider claims arising
out of them. 208 N. Y. 312, 101 N. E. 907.
The judgment of the appellate division in
favor of plaintiffs for total cost of material
supplied bj them was modified accordingly
and the record and proceedings remitted to
the supreme court, Ontario county. This
irrit of error was then sued out to obtain a
review of the judgment of the court of ap-
peals, being addressed to the supreme eourt
because the record was in its possession.
Shanks v. Delaware, L. & W. R. Co. 239 U.
6. 556, ante, 436, 36 8up. Ct. Rep. 188.
Ko Krious dispute exists ooncerning the
facts. Tlie applicable duly-filed interstate
rate schedules made no reference to allow-
ances for grain doors or bulkheads, and the
circumstances under which these were in-
•tmlled, together with their cost, are not
'Controverted. Whether there was jurisdic-
tion in the state court to pass upon the car-
rier'! liability incident to the interstate
^rmffie is the sole point demanding c<msid-
oration.
The effect of the act to regulate commerce,
-^H lupplemented and amended, upon the
jurisdiction of courts, has been expounded
in many cases heretofore decided. Texas &
P. R. Co. V. Abilene Cotton Oil Co. 204 U.
'S- 426. 61 L. ed. 553. 27 Sup. Ct. Rep. 350,
'^ Ann. Cas. 1075; Baltimore & 0. R. Co.
''' United States, 215 U. S. 481, 54 L. ed.
^» 30 Sup. Ct. Rep. 164; Robinson v.
^itimore & 0. R. Co. 222 U. S. 506, 56 L.
^<^- 288, 32 Sup. a. Rep. 114; Mitchell [49]
^1 A Coke Co. V. Pennsylvania R. Co. 230
^ S. 247, 57 L. ed. 1472, 33 Sup. a. Rep.
^^^5 ^Bforrisdale Coal Co. v. Pennsylvania R.
y^ 5^30 U. S. 304, 57 L. ed. 1494, 33 Sup.
^ ^ep. 938 : Minnesota Rate Cases ( Simp-
^^ ^. Shepard) 230 U. S. 352, 57 L. ed.
^^^» 48 L.R.A.(N.S.) 1151, 33 Sup. Ct.
jJfP- 729; Texas k P. R. Co. v. American
Tie
Timber Co. 234 U. S. 138, 58 L. ed.
^^^» 34 Sup. Ct Rep. 885, Pennsylvania R.
■^®- ^- Puritan Coal Min. Co. 237 U. S. 121,
*^ ^- ed. 867, 36 Sup. Ct. Rep. 484 ; Penn-
"^^^^nia R. Co. V. Clark Bros. Coal Min.
^- 238 U. S. 456, 59 L. ed. 1406, 36 Sup.
^- "Hep. 896.
speaking through Mr. Justice Lamar In
*0 ti. ed.
Mitchell Coal & Coke C6. T. Pennsylvania
R. Co. 230 U. S. supra, we said (p. 266) t
"The courts have not been given Jurisdiction
to fix rates or practices in direct proceed-
ings, nor can they do so collaterally during
the progress of a lawsuit when the action is
based on the claim that unreasonable allow-
ances have been paid. If the decision of
such questions was conmiitted to different
courts with different juries the results
would not only vary in degree, but might
often be opposite in character — ^to the ds-
struction of the uniformity In rate and prac-
tice which was the cardinal object of the
sUtute."
In the liinnesota Rate Cases, 230 U. 8.
supra, we further said (p. 419) : 'TIm
dominating purpose of the statute was to
secure conformity to the prescribed stand-
ards through the exs^ination and appre-
ciation of the complex facts of transporta-
tion by the body created for that purpose;
and, as this court has repeatedly held, it
would be destructive of the system of regu-
lation defined by the statute if the court,
without the preliminary action of the Com-
mission, were to undertake to pass upon the
administrative questions which the statute
has priniarily confided to it."
And in Texas & P. R. Co. v. American
Tie & Timber Co. 234 U. S. supra, the rule
was thus stated (p. 146) : "It is equally
clear that the controversy as to whether
the lumber tariff included cross-ties was one
primarily to be determined by the Commis-
sion in the exercise of its power concern-
ing tariffs and the authority to regulate
conferred upon it by the statute. Indeed,
we think it is indisputable that that sub-
ject is directly controlled by the authori-
ties which establish that, for the preserva-
tion of the uniformity which [50] it was
the purpose of the act to regulate com-
merce to secure, the courts may not as an
original question exert authority over sub-
jects which primarily come within the juris-
diction of the Commission."
An adequate coneideration of the present
controversy would require acquaintance with
many intricate facts of transportation and
a consequent appreciation of the practical
effect of any attempt to define services cov-
ered by a carrier's published tariffs, or char-
acter of equipment which it must provide, or
allowances which it may make to shippers
for instrumentalities supplied and services
rendered. In the last analysis the instant
cause presents a problem which directly
concerns rate-making and is peculiarly ad-
ministrative. Atchison, T. k S. F. R. Co.
V. United SUtes, 232 U. 8. 199, 220, 58 L.
ed. 199, 576, 34 Sup. Ct. Rep. 291. And
the preservation of uniformity and pre-
50, 61
SUPREME COURT OF THE UNITED STATES.
Oct. TEBMt
▼ention of diBcrimination render essen-
tial some appropriate ruling by the Inter-
state Commerce Commission before it may
be submitted to a court. See Pennsyl-
vania R. Co. ▼. Puritan Coal Min. Co.
237 U. S. pp. 128, 129, 50 L. ed. 871, 872,
35 Sup. Ct. Rep. 484; Pennsylvania R. Co.
V. Clark Bros. Coal Min. Co. 238 U. S. pp.
469, 470, 59 L. ed. 1412, 85 Sup. Ct. Rep.
896.
If, in respect to interstate business, the
courts of New York may determine, as origi-
nal matters, rate-making problems, those in
other states have like jurisdiction. The un-
certainty and confusion which would neces-
sarily result is manifest. Ample authority
has been given the Commission, in cir-
cumstances like those here shown, to ad-
minister proper relief, and in connection
therewith to approve some general rule of
action. In so doing it would effectuate the
great purpose for which the statute was
enacted.
On June 1, 1908, before this proceeding
was begun, the Interstate Commerce Com-
mission ruled: "A carrier may not lawfully
reimburse shippers for the expense incurred
in attaching grain doors to box cars unless
expressly so provided in its tariff." (Con-
ference Ruling No. 78.) In National Whole-
sale Lumber Dealers' Asso. v. Atlantic Coast
Line R. Co. 14 Inters. Com. Rep. 154, [61]
June 23, 1908, after much consideration, the
Commission refused to order carriers either
to furnish flat cars equipped in all respects
for transporting lumber or grant allowances
for cost incurred by shippers in connection
therewith. In New York State Shippers'
Protective Asso. v. New York C. & H. R.
R. Co. 30 Inters. Com. Rep. 437 (1914),
the regulations and practices of railroads
in Western New York with respect to car
fittings used in bulk transportation of grain
and produce were challenged. The shippers
claimed: "It is the carrier'* duty to supply
cars at all seasons of the year, fully
equipped for the safe transportation of
grain, potatoes, and other produce in bulk
without further fitting; or, that if a car
be tendered the shipper which cannot safely
be used for such commodities, in view of
their nature or of the condition of the
weather, it is the carrier's duty to furnish,
or to pay for, all materials and labor neces-
sary to render the car reasonably safe."
This was denied. The opinions in these
causes strikingly indicate the complicated
administrative problem involved.
We find no error in the judgment below
and it it affirmed.
ftao
KANSAS CITY WESTERN RAILWAY
CX)MPANY, Plff. in Err.,
V.
GEORGE B. McADOW.
(See S. 0. Reporter's ed. 51-55.)
error to state court — scope of reriew
— > non-Federal question.
1. No question under the laws of the
United States which may be reviewed by
writ of error to a state court may be based
upon the fact that the M>plicabiuty of the
Federal employers' liability act of April
22, 1908 (35 Stat, at L. 65, chap. 149,
Comp. Stat. 1913, § 8657), first appeared
from an amendment to the declaration
which alleged the same facts except that
it did not allege, as did the amendment,
that plaintiff was injured on an interstate
trip.
(For other cases, see Appeal and Error,
2072-2226, In Digest Sup. Ct. 1908.]
Pleading — amendment — bringing case
under Federal employers' liability
act.
2. The allowance of an amendment to
the declaration expressly bringing the ac-
tion within the Federal employer's liability
act of April 22, 1908 (35 Stat, at L. 65,
chap. 149, Comp. Stat. 1913, § 8657), in-
fringes no Federal right where it alleges the
same facts as the original declaration, with
the exception of an additional allegation
that plaintiff was injured on an interstate
trip.
[Amendment of pleadings, generally, see
Pleading, I. n. In Digest Sup. Ct. 1908.]
Pleading « necessity of invoking stat-
ute — employers' liability — Judicial
notice.
3. The declaration need not invoke the
Federal employers' liability act of April
22, 1908 (35 SUt. at L. 65, chap. 149,
Comp. Stat. 1913, § 8657), in terms, if the
facts stated bring the action under that stat-
ute, since the law governing the situation
is equally the law of the state, whether de-
rived from Congress or the state legislature,
and must be noticed by the courts.
[For other cases, see Pleading, II; Bvidence,
I. b. in Digest Sup. Ct. 1908.]
Error to state court — scope of review.
4. Whether state or congressional legis-
lation governs a personal-injury action
brought by an employee against an electric
Note. — On the general subject of writs
of error from United States Supreme Court
to state courts — see notes to Martin v.
Hunter, 4 L. ed. U. S. 97 ; Hamblin v. West-
em Land Co. 37 L. ed. U. S. 267 ; Re Buch-
anan, 39 L. cd. U. S. 884; and Kipley v.
Illinois, 42 L. cd. U. S. 998.
On what questions the Federal Supreme
Court will consider when reviewing the
judgments of state court — see note to State
ex rel. Hill v. Dockery, 63 L.R.A. 571.
On the constitutionality, application, and
effect of the Federal employers* liability act
— see notes to Lamphere v. Oregon K. ft
Nav. Co. 47 L.R.A.(N.S.) 38; and Seaboard
Air Line R. Co. v. Horton, L.R.A.1915C, 47.
240 U. S.
1915.
KANSAS CITY W. R. 00. ▼. McADOW.
railway company need not be determined
by tbe Federal Supreme Court on writ of
error to a state court to review a judgment
in favor of the employee, wbere the state
and Federal statutes are so similar that the
railway company's liability does not appear
to be affected by the question which of tnem
foverned the case.
For other cases, see Appeal and BIrror,
2070-2226. in Digest Sup. Ct. 1008.]
(No, 127.]
Submitted January 18, 1916. Decided Jan-
uary 31, 1916.
IN ERROR to the Kansas City Court of
Appeals of the State of Missouri to r*>
view a judgment ifHiich affirmed a judgment
of the Circuit Court of Jackson County, in
that state, in favor of plaintiff in a per-
sonal-injury action. Affirmed.
See same case below, — Mo. App. — , 164
S. W. 188.
The facta are stated In the opinion.
Messrs. Charles F. Hntchlngs and Mc-
Oabe Moore submitted the cause for plain-
tiff in error:
The questions of fact inherently involve
the operation and effect of the Federal law
and are therefore reviewable.
St. Louis, I. M. k S. R. .Co. v. McWhirter,
229 U. a 265, 57 L. ed. 1179, 33 Sup. Ct.
Rep. 862; St. Louis, I. M. ft S. R. Co. v.
Taylor, 210 U. S. 281, 52 L. ed. 1061, 28
Sup. Ct. Rep. 620, 21 Am. Neg. Rep. 464;
Kansas City Southern R. Co. v. C. H. Al-
bers Commission Co. 223 U. S. 673, 56 L. ed.
556, 32 Sup. Ct. Rep. 316; Norfolk & W. R.
Co. V. Conley, 236 U. S. 605, 59 L. ed. 745,
P. U. R. 1915C, 293, 86 Sup. Ct. Rep. 437.
Plaintiff in error was not a common car-
rier of interstate commerce by railroad
within the purview and contemplation of
the Federal statute on which the alleged
cause of action was based.
Omaha ft C. B. Street R. Co. v. Interstate
Commerce Commission, 230 U. S. 324, 57 L.
ed. 1501, 46 L.RA..(N.S.) 385, 33 Sup. a.
Rep. 890; Kansas City, 0. B. ft Electric R.
Co. V. Railroad Comrs. 73 Kan. 168, 84 Pac.
755; Sams v. St Louis ft M. River R. Co.
174 Mo. 53, 61 LJRA.. 475, 73 S. W. 686.
The law denies the right to plaintiff to
amend his declaration asserting a right of
recovery at common law, so that a right
to recover under a statute may be availed
of.
Union P. R. Co. v. Wyler, 158 U. S. 285,
39 L. ed. 983, 15 Sup. Ct. Rep. 877.
If it be a departure to file an amended
petition in which the cause of action is
based on a state statute, it certainly is
more of a departure to base the cause of
action in an amended petition on the Fed-
60 L. ed.
I eral employers' liability act, which excludes
; the concurrent existence of any common-
law action for negligence arising out of the
facts necessary to maintain an action under
its provisions, and which supersedes and
makes inoperative all laws of the states by
virtue of which a right of action heretofore
existed to enable an interstate employee to
recover damages for personal injuries
against an interstate carrier.
Cound V. Atchison, T. ft S. F. R. Co. 173
Fed. 531; Doherty, Liability of Railroads
to Interstate Employees, p. 65; Second Em-
ployers' Liability Cases (Mondou v. New
York, N. H. ft H. R. Co.) 223 U. S. 1, 56
L. ed. 327, 38 L.RA.(N.S.) 44, 32 Sup. a.
Rep. 178, 1 N. C. C. A. 875.
A substantive right or defense arising
under the Federal employers' liability act
cannot be lessened or destroyed by a local
rule of practice.
Norfolk Southern R. Co. v. Ferebee, 238
U. S. 269, 59 L. ed. 1303, 35 Sup. Ct. Rep.
781; Atlantic Coast Line R. Co. v. Bumctte,
239 U. S. 199, ante, 226, 36 Sup. Ct. Rep. 76.
Messrs. John H. Atwood and Oscar 8.
Hill submitted the cause for defendant in
error:
There was in fact no departure.
Missouri, K. ft T. R. Co. v. Wulf, 226 U.
S. 570, 57 L. ed. 355, 33 Sup. Ct. Rep. 135,
Ann. Cas. 1914B, 134; Midland Valley R.
Co. V. Ellis, 109 Ark. 206, 159 S. W. 214;
De Valle Da Costa v. Southern P. Co. 100
a C. A. 313, 176 Fed. 843; Hudson v. South-
west Missouri R. Co. 173 Mo. App. 611, 150
S. W. 9; Wabash R. Co. v. Hayes, 234 U. S.
86, 58 L. ed. 1226, 34 Sup. Ct. Rep. 729, 6
N. C. C. A. 224; Illinois C. R. Co. v. Nelson,
128 C. C. A. 525, 212 Fed. 69.
This court will not review questions of
state procedure.
Central Vermont R. Co. v. White, 238
U. S. 507, 59 L. ed. 1433, 35 Sup. Ct Ri';».
865, 9 N. C. C. A. 265; Brinkmeier v. Mis-
souri P. R. Co. 224 U. S. 268, 56 L. ed. 758,
32 Sup. Ct. Rep. 412; Texas ft N. 0. R. Co.
V. Miller, 221 U. S. 408, 416, 55 L. ed. 789,
796, 81 Sup. Ct. Rep. 534.
Under the evidence in this case there can
be no doubt but that the federal employers'
liability act applies.
Second Employers' liability Cases (Mon-
dou V. New York, N. H. ft H. R. R. Co.)
223 U. S. 1, 56 L. ed. 327, 38 L.RA.(N.S.)
44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875;
Pedersen v. Delaware, L. ft W. R. Co. 229
U. S. 146, 57 L. ed. 1125, 83 Sup. a. Rep.
648, Ann. Oas. I914C, 153, 3 N. C. 0. A. 779;
St. Louis, S. P. ft T. R. Co. v. Scale, 229
U. S. 156, 57 L. ed. 1129, 33 Sup. Ct. Rep.
651, Ann. Cas. 19140, 156; North Carolina
R. Co. V. Zachary, 232 U. S. 248, 58 L. ed.
ftai
52-64
SUPREBIB COURT OF THB UNITED STATES.
Oct. Tkbic,
691, 84 Sup. Ct. Rep. 305» Ann. Gas. 1014C»
169, 9 K. G. 0. A. 109; United States r.
Colorado & K. W. R. Go. 15 LJELA.(N.S.)
167, 86 C. a A. 27, 157 Fed. 342, 13 Ann.
Cas. 893; Central R. Go. t. Colasurdo, 113
G. G. A. 379, 192 Fed. 901; Northern P. R.
Co. T. Maerkl, 117 C a A. 237, 198 Fed. 1;
Bennett v. United States, 114 C. G. A. 403,
194 Fed. 630; Gloucester Ferry Go. r. Penn-
sylvania, 114 U. S. 196-203, 29 L. ed. 158-
161, 1 Inters. Com. Rep. 382, 6 Sup. Gt. Rep.
826; Covington & C. Bridge Go. v. Ken-
tucky, 154 U. 8. 204, 217, 38 L. ed. 962, 968,
4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep.
1087 ; The Passaic, 100 Fed. 644.
And interurban railroads are clearly em-
braced within the act.
Omaha ft C. B. Street R. Co. v. Interstate
Commerce Commission, 230 U. S. 324, 57
L. ed. 1501, 46 L.RA.(NJS.) 385, 33 Sup. Ct.
Rep. 890; Spokane ft I. E. R. Go. t. Camp-
beU, 133 C. C. A. 370, 217 Fed. 518; Wash-
ington, A. ft Mt. U. R. Co. V. Downey, 40
App. D. G. 147.
The law of the state of Kansas appli-
cable to railroad employees, pleaded by
plaintiff in error in its answer, being iden-
tical in effect with the Federal employers'
liability act, the question of whether the
defendant in error was engaged in intra-
state or interstate commerce is immateriaL
Chicago ft N. W. R. Co. v. Gray, 237 U.
S. 399, 59 L. ed. 1018, 35 Sup. Gt. Rep. 620,
9 N. C. G. A. 452; Illinois C. R. Co. t. Nel-
son, 128 C. C. A. 525, 212 Fed. 72.
This court accepts the findings of the
Kansas City court of appeals upon the
question of fact as final, and imder those
findings there is no escape for plaintiff in
error from liability in this case.
Waters-Pierce Oil Co. v. Texas, 212 U. S.
97, 53 L. ed. 424, 29 Sup. Ct. Rep. 220; King
T. West Virginia, 216 U. S. 100, 54 L. ed
401, 30 Sup. Ct. Rep. 225; Chrisman v. Mil-
ler, 197 U. S. 319, 49 L. ed. 772, 25 Sup. Ct
Rep. 468.
Mr. Justice Holmes delivered the opinion
of the court:
This is an action for personal injuries,
brought by the defendant in error against
the plaintiff in error, in whose employ he
was. The original petition alleged that the
defendant operated a line of electric rail-
way extending from Leavenworth, Kansas,
through Wolcott and Kansas City, in the
same state, into Kansas City, Missouri;
that the plaintiff was a. motorman up<m a
car on the line and was injured in Kansas
by a collision due to the defendant's negli-
genesv An amendment was allowed alleging
that the [68] plaintiff was injured on a
trip from Kansas C^ty, Missouri, to Leaven-
worth, with further details, and that the
6as
defendant's negligent acts were in violation
of the act of Congress controlling such mat-
ters when the parties were engaged in com-
merce among the states. The defendant was
a Kansas corporation having an electric
railway from Leavenworth into Kansas City,
Kansas. It had a traffic agreement with the
Metropolitan Street Railway Company oper-
ating street railways in Kansas City, Mis-
souri, by which the latter was to receive
the cars of the former, carrying passengers
and freight, and move them through desig-
nated streets in Missouri and back to Kan-
sas; each party to be liable for damage due
to its negligence during this part of the
transit, and the fares and freight money to
he divided in certain proportions. By a
later agreement the route was modified and
it was provided that the defendant should
pay the trainmen's wages during the move-
ment in Missouri, but that they should be
under the exclusive control of the Metro-
politan Company, and, as between said com-
panies, should in all respects be regarded
for the time being as its employees. There
was evidence that in fact, at the time of the
accident, the only control exercised by the
Missouri Company was to put a conductor
upon the car to receive the fares; that while
in Missouri it received its orders from the
Kansas side; and that the company was
in the hands of receivers, who seem not to
have recognized the contract. The plaintiff
got a verdict, which was sustained. The er-
rors assigned are, in substance, that the
amendment expressly bringing the case un-
der the act of Congress ought not to have
been allowed; that the act does not apply to
electric roads, and that, if it does, the de-
fendant was not engaged in commerce among
the states, or at least was not if the con-
tract between the companies governed the
movement of the car.
As to the first, it would be enough to say
that if the [64] declaration on which the
case was tried brought it under the act, the
fact that it appeared as an amendment to
one that alleged the same facts with the ex-
ception of the plaintiff's coming from be-
yond the state raises no question under the
laws of the United States. Central Vermont
R. Co. V. White, 238 U. S. 507, 513, 59 L. ed.
1433, 1437, 35 Sup. Ct. Rep. 865, 9 N. G. C.
A. 265; Brinkmeier v. Missouri P. R. Co.
224 U. S. 268, 270, 56 L. ed. 758, 760, 32
Sup. Ct. Rep. 412. The state court sus-
tained the amendment on the ground of
waiver, but if it had held It allowable as a
matter of course, no Federal right would
have been infringed. Wabash R. Co. ▼.
Hayes, 234 U. S. 86, 90, 58 L. ed. 1226,
1230, 34 Sup Ct. Rep. 729, 6 K. C. G. A.
224. It is said that by the amendment It
gave a jurisdiction to the Missouri court
140 U. 8.
1915.
GA8T REALTY & L 00. t. SCHNEIDER GRAKITE 00.
64» 65
that otherwise it would not have had under
ihe act of April 6, 1910, chap. 143, 36
8Ut. at L. 291, Comp. SUt. 1918, | 1010.
Bnt actions of tort are transitory, and the
argument based on the act of 1910 would
have no application unless the defendant
was engaged in business governed by that
Act. The argument would be that if so
engaged, then, under the statute, the inter-
state road could not be sued in a state court
onless it was doing business in that state.
We express no assent to it, but if sound
it would afford no ground for objecting to
the amendment; and no question of juris-
diction was raised. The amendment intro-
duced no fact inconsistent with those first
alleged, and it was unnecessary lli^en the
facts were stated to invoke the act of Con-
fess in terms. The law governing the sit-
uation is equally the law of tlie state,
whether derived from Congress or the state
legislature, and must be noticed by the
•courts. Grand Trunk Western R. Co. v.
Lindsay, 238 U. S. 42, 48, 58 L. ed. 838,
S42, 34 Sup. Ct. Rep. 581, Ann. Cas. 1914C,
168; Second Employers' Liability Cases
(Mondott T. New York, N. H. k H. R. Co.)
223 U. S. 1, 57, 56 L. ed. 327, 349, 38 L.R.A.
(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. 0.
€. A. 875.
The defendant's road appears to be of the
«lasa of the traction company that was be-
fore the court in United States v. Baltimore
A O. S. W. R. Co. 226 U. S." 14, 57 L. ed.
104, 33 Sup. Ct. Rep. 5, and that was ex-
cepted from the decision in Omaha & C. B.
Street R. Co. v. Interstate Commerce Com-
mission, 230 U. S. 324, 337, 57 L. ed. 1501,
1506, 46 L.R.A.(N.S.) 385, 33 Sup. a. Rep.
890. Such roads have been held [55] to be
within the act of Congress. Spokane ft I. E.
R. Co. V. Campbell, 133 C. C. A. 370, 217
Fed. 518. See act of June 18, 1910, chap. 300,
i 12, 36 Stat, at L. 539, 552, Comp. SUt.
1913, f 8583. So, again, many cases have
intimated that the technical considerations
by which the defendant seeks to establish
that it was not engaged in commerce among
the states are not final. Pennsylvania R.
Co. T. Clark Bros. Coal Min. Co. 238 U. S.
456, 467, 59 L. ed. 1406, 1411, 35 Sup. Ct
Rep. 896; Savage v. Jones, 225 U. S. 501,
520, 56 L. ed. 1182, 1189, 32 Sup. Ct. Rep.
715; Swift & Co. v. United bUtes, 196 U.
S. 375, 398, 49 L. ed. 518, 523, 25 Sup. Ct.
Rep. 276. But these questions really are
immaterial here since the Kansas statute
is so similar to that of the United States
that the liability of the defendant does not
appear to be affected by the question which
of them governed the case. In such circum-
stances it is unnecessary to decide which law
ai^lied. Chicago ft N. W. R. Co. ▼. Gray,
«t Ii. ed.
237 U. S. 899, 59 L. ed. 1018, 86 Sup. Ct
Rep. 620, 9 N. C. 0. A. 452.
Judgment affirmed.
GAST REALTY ft INVESTBfENT COM-
PANY and Emily Gast, Plffs. in Err.,
V.
SCHNEIDER GRANITE COMPANY.
(See S. C. Reporter's ed. 55-^.)
Oonstitutlonal law ^ due process of
law — eqnal prelection of the laws -•
public improvements — > assessment.
A municipal ordinance that, in creat-
ing the taxing district upon which, under
the city charter, three fourths of the cost
of paving a street is to be assessed accord-
ing to area, established a boundary line that,
after nmning for some distance on a line
not 100 feet back from the street, jumped
to nearly 500 feet, when it encountered an
undivided tract, and that on the opposite
side of the street was 150 feet and 240 feet
away, violates U. S. Const., 14th Amend.,
where such differences were not based upon
any consideration of difference in benefits
conferred, but were established mechanical-
ly, in obedience to the criteria that the
charter directed to be applied.
[For other cases, see Constitutional Law,
202-836, 550-581, in Diffest Sup. Ct. 1008.]
[No. 211.]
Argued January 21, 1010. Decided January
31, 1016.
IN ERROR to the Supreme Court of the
State of Missouri to review a judgment
which affirmed a judgment of the St. Louis
City Circuit Court in favor of plaintiff in
a suit to collect a paving tax. Reversed.!
See same case below, 250 Mo. 153, 168 8.
W. 687.
The facts are stated in the opinion.
Messrs. Thomas G. Rntledge and David
Goldsmith argued the cause, and, with
Messrs. Jacob M. Lashly and Robert A.
Holland, Jr., filed a brief for plaintiffs in
error:
A single legislative rule for fixing benefit
districts in a city for special assessments
for street improvements alike for platted
and unplatted districts by providing that
the district line be drawn half way between
the improved streets and the next parallel
street, no matter how far distant that
street may be, and although property may
1 Motion for leave to file petition for re-
hearing denied March 20, 1016. See post,
1230.
Note. — On the right to subdivide private
owner's land for the purpose of assessment
for public improvement---see note to Chi-
cago T. Wells, 23 LJLA.(NJ3.) 405.
MS
SUPREME CX)URT OF THE UNITED STATES.
Oct. Temu,
be subdivided and platted on one side of
the improvement so that the next parallel
street is far distant, is repugnant to the
14th Amendment to the Constitution of
United States.
Louisville v. American Standard Asphalt
Co. 125 Ky. 497, 102 S. W. 806; Cooper v.
Xevin, 90 Ky. 86, 13 S. W. 841; McGrew v.
Kansas City, 64 Kan. 61, 67 Pac. 438; Gil-
sonite RooAng k Paving Co. v. St. Louis
Fair Asso. 231 Mo. 589, 132 S. W. 657;
Granite Bituminoiis Paving Co. v. Fleming,
251 Mo. 210, 158 S. W. 4; Loth v. St. Louis,
257 Mo. 399, 165 S. W. 1023; Schneider
Granite Co. v. Gast Realty & Invest. Co.
259 Mo. 164, 168 S. W. 692.
The etFect of this charter provision of
the city of St. Louis is clearly shown in
numerous reported decisions of the supreme
court of Missouri, in which it was passed
upon and applied to platted and unplatted
tracts, regardless of the resulting injustice
and inequality.
Gilsonite Roofing & Paving Co. v. St.
Louis Fair Asso. 231 Mo. 594, 132 S. W.
657; Granite Bitiuninoiis Paving Co. v.
Fleming, 251 Mo. 216, 158 S. W. 4; Loth
V. St. Louis, 257 Mo. 406, 165 S. W. 1023;
William R. Bush Constr., Co. ▼. Withnell,
185 Mo. App. 408, 170 S. W. 361.
This coiu*t can take judicial notice of the
streets of the city of St. Louis, their rela-
tion to and distance from each other, and
of the fact that there are in such a city,
whose bounds are established by public
law, and therefore judicially known, large
unplatted tracts of land lying in close prox-
imity to land which is subdivided.
Redell v. Moores, 63 Neb. 219, 55 L.R.A.
740. 93 Am. St. Rep. 431, 88 N. W. 243;
Williams v. State, 64 Ind. 555, 31 Am. Rep.
135 : Stout V. Grant County, 107 Ind. 348, 8 N.
E. 222; Endlich, Interpretation of Statutes,
§ 29; 1 Greenl. Ev. Lewis's ed. § 6; Pacific
Paving Co. v. Verso, 12 Cal. App. 362, 107
Pac. 590; Brady v. Page, 59 Cal. 52; Stealey
V. Kansas City, 179 Mo. 407, 78 S. W. 599;
Skelly V. New York Elev. R. Co. 7 Misc. 88,
27 N. Y. Supp. 304; McMastcr v. Morse, 18
Utah, 27, 55 Pac. 70; State ex rel. Mason
V. Consumers' Power Co. 119 Minn. 225, 41
L.RA.(N.S.) 1181, 137 N. W. 1104, Ann.
Cas. 1914B, 19; Gardner v. Eberhart, 82 111.
316; 6 Wigmore, Ev. 2d ed. § 2571, pp. 673,
674; Jones v. United States, 137 U. S. 202,
216, 34 L. ed. 691, 697, 11 Sup. Ct. Rep. 80;
State ex rel. Keck v. Seibert, 130 Mo. 202,
32 S. W. 670; Haaren v. Mould, 144 Iowa,
296, 24 L.RA.(N.S.) 404, 122 N. W. 921.
The power of the legislature in providing
for the assessment of special taxes for local
improvements is not unlimited. Any rule
or proceeding which arbitrarily charges land
with an assessment greater than the bene-
524
fits is, to the extent of the excess, a taking
of private property for public use without
compensation.
People ex rel. Detroit & H. R. Co. t»
Salem, 20 Mich. 452, 4 Am. Rep. 400; Diets
v. Neenah, 91 Wis. 422, 64 N. W. 299; Nor-
wood V. Baker, 172 U. S. 269, 278, 43 L. ed,
443, 447, 19 Sup. Ct. Rep. 137 ; 4 Dill. Mun.
Corp. 5th ed. § 1443, p. 2567; Cooley, Taxn.
2d ed. 661; State, Agens, Prosecutor, v.
Newark, 37 N. J. L. 421, 18 Am. Rep. 729;.
Stuart V. Palmer, 74 N. Y. 189, 30 Am. Rep.
289; King v. Portland, 38 Or. 414, 55 L.RJ^
812, 63 Pac. 2; Preston v. Roberts, 12 Bush^
570; Fulkerson v. Bristol, 105 Va. 555, 54
S. E. 468; Hyattsville v. Smith, 105 Md.
318, 66 Atl. 44; Martin v. District of Co-
lumbia, 205 U. S. 135, 139, 51 L. ed. 743,.
744, 27 Sup. Ct. Rep. 440; Davidson v. New
Orleans, 96 U. S. 97, 104, 108, 24 L. ed. 616,
619, 621; 2 Page & J.. Taxation by Assess-
ment, § 665, p. 1141; White v. Gove, 18a
Mass. 336, 67 N. E. 359; Getting v. Kansas
City Stock Yards Co. (Cotting v. Godard)
183 U. S. 79, 110, 46 L. ed. 92, 100, 22 Sup.
Ct. Rep. 30; Gilsonite Roofing & Paving
Co. V. St. Louis Fair Asso. 231 Mo. 589, 132
S. W. 657; Hagar v. Reclamation Dist. Ill
U. S. 701, 708, 28 L. ed. 569, 572, 4 Sup.
Ct. Rep. 663; Louisville & N. R. Co. v. Bar-
ber Asphalt Paving Co. 197 U. S. 430, 49
L. ed. 819, 25 Sup. Ct. Rep. 466.
A general, prospective law, providing for
the apportionment of the cost of an im-
provement, must, in order to be valid, pro-
vide for the apportionment by some rule
capable of producing reasonable equality
between the parties assessed, and a fair
distribution of the tax proportionately to
the benefits.
Ibid.
The charter provision in this case is in-
valid because the rule provided by it for
the apportionment of the cost of the im-
provement is not capable of producing rea-
sonable equality between the parties as-
sessed, is not based upon the idea of
benefits, and makes equality and justice
and apportionment according to benefits
legally impossible. It is a vicious, arbi-
trary, and capricious rule which cannot be
justly applied to unplatted tracts of land,
and its application results in gross inequal-
ity and injustice and practical confiscation.
Ibid.
Mr. Hickman P. Rodgers argued the
cause, and, with Mr. William K. Koerner,
filed a brief for defendant in error:
The charter provisions under which this
assessment was made are not repugnant to
the 14th Amendment of the Constitution of
the United States.
Shumate v. Heman» 181 U. S. 402, 45 L.
240 U. 8.
a9i5.
GAST REALTY k h 00. y. SCHNEIDER GRANITE CX).
67-69
€d. 922, 26 Sup. Ct. Rep. 645; French ▼.
Barber Asphalt Paving Co. 181 U. S. 324,
46 L. ed. 879, 21 Sup. Ct. Rep. 626; Schulte
▼. Heman, 189 U. S. 607, 47 L. ed. 922, 23
Sup. Ct Rep. 862.
An Assessment against all the ground
within an improvement district will not be
overthrown merelj because one part of
ground within the district may have re-
ceived greater benefit from the improve-
ment than another part; nor for the reason
that the improvement does not adjoin or
abut a particular piece of groimd within
such district.
Davidson v. New Orleans, 96 U. S. 97, 24
L. ed. 616; KeUy v. Pittsburgh, 104 U. S.
78, 26 L. ed. 658; Hagar v. Reclamation
Dist. Ill U. S. 701, 28 L. ed. 569, 4 Sup. a.
Rep. 663; Spencer v. Merchant, 126 U. S.
345, 31 L. ed. 763, 8 Sup. Ct Rep. 921 ; FaU-
brook Irrig. Dist v. Bradley, 164 U. S. 112,
41 L. ed. 369, 17 Sup. Ct. Rep. 66; Cleve-
land, C. C. & St. L. R. Co. V. Porter, 210
U. S. 177, 184, 62 L. ed. 1012, 1015, 28 Sup
Ct. Rep. 647.
The question as to whether a particular
piece of property is benefited by a local
improvement, and to what extent, is legis-
lative, and not subject to Judicial review.
Spencer v. Merchant, 126 U. S. 345, 31
L. ed. 763, 8 Sup. Ct. Rep. 921; Webster
V. Fargo, 181 U. S. 394, 46 L. ed. 912, 21
Sup. Ct. Rep. 623; French t. Barber Asphalt
Paving Co. 181 U. S. 324, 46 L. ed. 879, 21
Sup. Ct. Rep. 625; Chadwick t. Kelley, 187
U. S. 540, 545, 47 L. ed. 293, 295, 23 Sup.
Ct Rep. 176; Schaefer v. Werling, 188 U. S
516, 47 L. ed. 670, 23 Sup. Ct. Rep. 449.
Mr. Justice Holmes delivered the opinion
of the court:
This is a suit to collect a tax for paving
Broadway, a street in St. Louis, levied upon
land of the defendants fronting upon that
street The plaintiff, defendant in error,
did the work, received an assignment of the
tax, and got a judgment for the amount.
The only question here is whether the ordi-
nance levying the tax under the charter of
the city is consistent with the 14th Amend-
ment of the Constitution of the United
States. The charter provides that one
fourth of the total cost shall be levied
upon all the property fronting upon or Ad-
joining the improvement according to front-
age and three fourths according to area
upon all the property in the district, ascer-
tained as follows: "A line shall be drawn
midway between the street to be improved
and the next parallel or converging street
00 each side of the street to be improved,
which line shall be the boundary of the dis-
trict, except as hereinafter provided, name-
ly: If the property adjoining the street to
69 li. ed.
be improved is divided into lots, the dis-
trict line shall be so drawn as to include
the entire depth of all lota fronting on the
street to be improved. ... If there it
no parallel or converging street on either
side of the street improved, the district
lines shall be drawn 300 feet from and
parallel to the street to be improved; but
if there be a parallel or converging street
on one side of the street to be improved to
fix and locate the district line, then the dis-
trict line on the other side shall be drawn
parallel to the street to be [58] improved
and at the average distance of the opposite
district line so fixed and located." The de-
fendants' land has a frontage on the west
side of Broadway of 1,083.88 feet out of a
total in the district constituted said to be
4,372 feet. It is an undivided tract extend-
ing back nearly a thousand feet to Church
road. On the south the adjoining property
was divided into lots of small depth, and on
the opposite side of Broadway the next
parallel street was about 300 feet from
Broadway. The ordinance establishing the
taxing district treated Church road as the
next parallel street within the meaning of
the charter, and included the defendants'
tract to a depth of between 400 and 600 feet,
while the small lots next to it were included
to only about 100 feet, the opposite lots to
about 160 feet, and another undivided tract
on the east of Broadway was included by
average distance to a depth of 240 feet.
The ordinance establishing these lines was
held to follow the charter and to be con-
sistent with the 14th Amendment by the
(Supreme court of the state. 269 Mo. 163,
168 S. W. 687.
The legislature may create taxing dis-
tricts to meet the expense of local improve-
ments, and may fix the basis of taxation
without encountering the 14th Amendment
unless its action is palpably arbitrary or
a plain abuse. Houck v. Little River Drain-
age Dist. 239 U. S. 254, 262, ante, 266, 273,
36 Sup. Ct Rep. 68. The front-foot rule has
been sanctioned for the cost of paving a
street. In such a case it is not likely that
the cost will exceed the benefit, and the
law does not attempt an imaginary exact-
ness, or go beyond the reasonable probabili-
ties. French v. Barber Asphalt Paving Co.
181 U. S. 324, 46 L. ed. 879, 21 Sup. Ct. Rep.
626; Cass Farm Co. v. Detroit, 181 U. S.
396, 397, 46 L. ed. 914, 916, 21 Sup. Ct.
Rep. 644. So in the case of a square bound-
ed by principal streets, the land might be
assessed half way back from the improve-
ment to the next street. Louisville k N.
R. Co. V. Barber Asphalt Paving Co. 197 U.
8. 430, 49 L. ed. 819, 25 Sup. Ct. Rep. 466.
But, as is implied by Houck v. Little River
Drainage Dist., if the [69] law is of such a
616
60, 00
SUPREME COURT OF THE UNITED STATES.
Oct.
character that there U no reasonable pre-
sumption that substantial justice generally
will be done, but the probability is that the
parties will be taxed disproportionately to
each other and to the benefit conferred, the
law cannot stand against the complaint of
one so taxed in fact. Martin ▼. District of
Columbia, 205 U. S. 135, 139, 51 L. ed. 743,
744, 27 Sup. Ct. Rep. 440.
The city of St. Louis is shown by this
case and by others in the Missouri reports
to contain tracts not yet cut into city lots,
extending back from streets without en-
countering a parallel street much farther
than the distance within which paving could
be supposed to be a benefit. See, for in-
stance, Gilsonite Roofing k Paving Co. v
St. Louis Fair Aaao. 231 Mo. 589, 132 S. W
657; Granite Bituminous Paving Co. v.
Fleming, 251 Mo. 210, 158 S. W. 4; Loth
▼. St. Louis, 257 Mo. 399, 165 S. W. 1023;
William R. Bush Constr. Co. v. Withnell,
185 Mo. App. 408, 170 S. W. 361. The
ordinance, following the charter as con-
strued, established a line determining tho
proportions in which the tax was to be borne
that, after nmning not a hundred feet from
the street, leaped to near 500 feet when it
encountered such a tract, end on the op-
posite side of the street was 150 and 240
feet away. The differences were not based
upon any consideration of difference in the
benefits conferred, but were established me-
chanically in obedience to the criteria that
the charter directed to be applied. The
defendants' case is not an incidental result
of a rule that, as a whole and on the aver-
age, may be expected to work well, but of
an ordinance that is a farrago of irrational
irregularities throughout. It is enough to
say that the ordinance following the orders
of the charter is bad upon its face as dis-
tributing a local tax in grossly unequal
proportions, not because of special consid-
erations applicable to the parcels taxed,
but in blind obedience to a rule that re-
quires the result. And it cannot be said
that the ordinance as a whole may be re-
garded as an individual [60] exception un-
der a rule that promises justice in all ordi-
nary cases. The charter provisions as ap-
plied to a city like St. Louis must be taken
to contemplate such ordinances imder the
construction given to it by the state courts.
Judgment reversed.
By stipulation of counsel the same judg-
ment will be entered in case No. 210 [Gast
RBALTT k IirVESTMENT COMPAIIT V. SOHNSI-
DEB Geanits Company].
DAVID LAMAR, Plff. in Err.,
v.
UNITED STATES.
(See S. C. Reporter's ed. 60-4M.)
Federal courts — > Jurlsdlotlon — > crimes*
1. A Federal district court which haa
jurisdiction under the Judicial Code, f 24,
of all crimes cognizable under the authority
of the United States, acts equally within its
jurisdiction, whether it decides a man to ba
guilty or innocent under the criminal law,
and whether its decision is right or wrong.
[For other cases, see Courts, Y. c, 5, in Digest
Sup. Ct. 1008.1
Federal courts — > Jurisdiction « crimes.
2. The jurisdiction of a Federal district
court over a prosecution under the Federal
Criminal Code, § 32, for falsely pretending,
with intent to defraud, to be a Federal of-
ficer, is not defeated because the indict-
ment may not charge a crime against the
United States, since such obje&on goes
only to the merits.
[For other caseM, see Courts, Y. c, 6, in
Digest Sup. Ct. 1908.]
Error to district court — > Federal ques*
tlon.
3. The Federal Supreme Court cannot
take jurisdiction of a writ of error to a
district court on the theory that the con-
struction of the Federal Constitution was
involved in the decision that a Congress-
man is an officer of the United States within
the meanine of the Criminal Code, § 32,
under which a person may be criminally
punished for falsely pretending, with in-
tent to defraud, to be an officer of the
United SUtes.
[For other cases, see Appeal and Brror*
038-989. in Digest Sup. Ct. 1908.]
Indictment — sufficiency — false per-
sonation of a Federal officer.
4. An indictment charging tho false
personation, with intent to defraud, of an
officer of the United States, contrary to the
Criminal Code, § 32, is not so insufficient
as to infringe the accused's constitutional
rights because the nature of the fraud in-
tended was not set forth.
[For other cases, see Indictment, II., In
Digest Sup. Ct. 1908.]
Courts — venne of crime « false per-
sonation.
5. The constitutional rights of a per-
son accused of falsely pretending, with in-
tent to defraud, contrarr to the Criminal
Code, S 32, to be an officer of the United
States, are not infringed by his trial In the
Federal district court for the southern dis*
trict of New York, where the personation
was by telephone to a person in that dis-
trict
[For other cases, see Courts, Y. c, 7, b, la
Digest Sup. Ct. 1008.]
[No. 434.]
NOTB. — On direct review in Federal Su-
preme Court of judgments of district or cir-
cuit courts— see notes to Qwln v. United
SUtes, 46 L. ed. U. S. 741; B. Altman 4t
Co. V. United SUtes, 56 L. ed, U. S. 894.
240 U. $•
J015.
LAMAR Y. UNITED STATES.
64
Submitted January 17, 1916. Decided Jan-
uary 31, 1916.
IK ERROR to the District Court of the
United States for the Southern District
of New York to review a eonyiotion for
false personation of a Federal officer. Dis-
missed for want of jurisdiction.
The facta are stated in the opinion.
Messrs. Carl E. Whitney and A. lico
Everett submitted the cause for plaintiff in
error:
When the district court assumes to enter-
tain a controversy not among those enu-
merated by the Constitution or statutes, it is
without jurisdiction, and the Supreme Court
of the United States may, and always does,
review, under § 238 of the Judicial Code,
the jurisdictional question thus raised.
Frederic L. Grant Shoe Co. v. W. M. Laird
Co. 212 U. S. 446, 53 L. ed. 591, 29 Sup.
Ct Rep. 32; Globe Newspaper Co. v.
Walker, 210 U. S. 356, 52 L. ed. 1096, 28
Sup. Ct. Rep. 726; The Jefferson, 215 U. S.
130, 54 L. ed. 125, 30 Sup. Ct. Rep. 54, 17
Ann. Cis. 907; American Surety Co. t.
Shultz, 237 U. S. 159, 59 L. ed. 892, 85 Sup.
Ct. Rep. 525; The Fair v. Kohler Die &
Specialty Co. 228 U. S. 22, 57 L. ed. 716, 33
Sup. Ct. Rep. 410; Healy ▼. Sea Gull
Specialty Co. 237 U. S. 479, 59 L. ed. 1056,
35 Sup. Ct. Rep. 658; United States use of
Alexander Bryant Co. t. New York Steam
Fitting Co. 235 U. S. 327, 59 L. ed. 253, 35
Sup. Ct. Rep. 108.
A Congressman is not an officer of the
United SUtes.
Whart. St. Tr. 200, 817, note; Story,
Const. 1st ed. § 791; Tucker, Const. § 199;
Burton t. United SUtes, 202 U. S. 344, 50
L. ed. 1057, 26 Sup. Ct. Rep. 688, 6 Ann.
Cas. 362; United SUtes v. Mouat, 124 U.
S. 303, 31 L. ed. 463, 8 Sup. Ct. Rep. 505;
United SUtes t. Smith, 124 U. S. 525, 31
L. ed. 534, 8 Sup. Ct. Rep. 505.
The proceedings below are faUlly defec-
tive, in that it does not appear in what
sUte or district the crime was committed.
Hyde v. United SUtes, 225 U. S. 347, 56
L. ed. 1114, 82 Sup. Ct. Rep. 793, Ann. Cas.
1914A, 614.
The failure of the indictment to describe
the eircnmstancet of the offense was a de-
nial of defendant's constitutional rig^t to
be informed of the nature and cause of the
•ecosatioB.
United SUtes ▼. Cruikshank, 92 U. S.
542, 28 L. ed. 588; United SUtes r. Mills,
7 Pet 142, 8 L. ed. 637; United SUtes v.
Cbok, 17 WalL 174, 21 L. ed. 539; United
SUtes T. Hess, 124 U. S. 483, 31 L. ed. 516,
8 Sup. Ot Rep. 671.
The construction of the Constitution was
•t L. ed.
necessarily involved in deciding that a Con-
gressman was an officer, and in defining hie
duties.
Pettit T. Wahihe, 194 U. S. 205, 48 L. ed.
938, 24 Sup. Ct. Rep. 657; Mackenzie v.
Hare, 239 U. S. 299, ante, 297, 36 Sup. CL
Rep. 106.
Soliciter General Davis submitted the
cause for defendant in error:
The court below had jurisdiction te con-
strue the sUtute in question. lU error, if
any, in so doing, is one over which the cir-
cuit court of ypeals has exclusive appellate
jurisdiction.
Fore River Shipbuilding Co. t. Hagg, 219
U. S. 175, 179, 55 L. ed. 163, 164, 31 Sup.
Ct. Rep. 185; Smith v. McKay, 161 U. S.
355, 359, 40 L. ed. 731, 732, 16 Sup. Ct. Rep.
490; R. J. Darnell v. Dlinois C. R. Co. 225
U. S. 243, 245, 56 L. ed. 1072, 1073, 32 Sup.
Ct. Rep. 760; Dlinois C. R. Co. v. Adams,
180 U. S. 28, 34, 45 L. ed. 410, 412, 21 Sup.
Ct. Rep. 251.
It was the statute, and not the Consti-
tution, which the court below was called
upon te construe. No constitutional ques-
tion, therefore, is involved.
Empire SUte-Idaho Min. & Developing
Co. V. Hanley, 205 U. S. 225, 232, 51 L. ed.
779, 782, 27 Sup. Ct. Rep. 476.
Members of Congress hold "office," and a
member of Congress is an "officer."
2 Bouvier's Law Diet. 1897 ed. p. 540;
Swafford v. Templeten, 185 U. S. 487, 492,
46 L. ed. 1005, 1007, 22 Sup. a. Rep. 783;
The Floyd Acceptances, 7 WalL 666, 676, 19
L. ed. 169, 173; United SUtes v. Maurice,
2 Brock. 102, Fed. Cas. No. 15,747.
Decisions of sUte courte and state sUt-
utes recognize members of the sUte legis-
latures as "sUte officers." The analogy is
complete.
Morril v. Haines, 2 N. H.« 251 ; Shelby v.
Alcorn, 36 Miss. 291, 72 Am. Dec. 169; SUte
ex reL Holmes v. Dillon, 90 Mo. 233, 2 S. W.
417.
A member of Congress is a Federal, and
not a sUte. officer.
Eversole v. Brown, 21 Ky. L. Rep. 027,
53 S. W. 527 ; SUte ex reL Spofford v. Gif •
ford, 22 Idaho, 632, 126 Pao. 1060; SUte v.
Russell, 10 Ohio S. & a P. Dec 264.
Mr. Justice Hoimes delivered the opinion
of the court:
The plaintiff in error was tried and con-
victed upon an indictment charging him
with liaving falsely pretended te be an of-
ficer of the government of the United SUtea,
te wit, a member of the House of Represen-
Utives, that is te say, A. Mitchell Palmer,
a member of Congress, with intent te de-
fraud J. P. Morgan k Company and the
517
64-66
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbm,
United States Steel Corporation. The case
is brought here directly on the ground that
the court had no jurisdiction becaiise the
indictment does not charge a crime against
the United States, and that the interpreta-
tion of the Constitution was involved in the
decisi<m that a Congressman is an officer
of the United States. There are subsidiary
objections stated as constitutional that the
indictment is insufficient, and that it does
not appear in what district the crime was
committed.
On the matter of jurisdiction it is said
that when the controversy concerns a sub-
ject limited by Federal law, such as bank-
ruptcy (Frederic L. Grant Shoe Co. v. W.
M. Laird Co. 212 U. S. 446, 53 L. ed. 691,
29 Sup. Ct. Rep. 332), copyright (Globe
Newspaper Co. v. Walker, 210 U. S. 356, 62
L. ed. 1096, 28 Sup. Ct. Rep. 726), patents
(Healy v. Sea Gull Specialty Co. 237 U. S.
470, 59 L. ed. 1056, 35 Sup. Ct. Rep. 658),
or admiralty (The Jefferson, 215 U. S. 130,
54 L. ed. 125, 30 Sup. Ct. Rep. 54, 17 Ann.
Cas. 907), the jurisdiction so far coalesces
with the merits that a case not within the
law is not within the jurisdiction of the
court (The Ira M. Hedges [Lehigh Valley
R. Co. v. Cornell S. B. Co.] 218 U. S. 264,
270, 54 L. ed. 1039, 1040, 31 Sup. Ct. Rep.
17, 20 Ann. Cas. 1235; Haddock v. Haddock,
201 U. S. 662, 50 L. ed. 867, 26 Sup. Ct.
Rep. 625, 5 Ann. Cas. 1). Jurisdiction is
a matter of power, and covers wrong as well
as right decisions. Fauntleroy v. Lum, 210
U. S. 230, 234, 235, 52 L. ed. 1039, 1041, 28
Sup. Ct. Rep. 641; Burnet v. Desmomes
y Alvarez, 226 U. S. 145, 147, 57 L. ed.
159, 160, 33 Sup. Ct. Rep. 63. There may be
instances in which it is [65] hard to say
whether a law goes to the power or only to
the duty of the court; but the argument is
pressed too far. A decision that a patent is
bad, either on ^he facts or on the law, is as
binding as one that it is good. The Fair v.
Kohler Die & Specialty Co. 228 U. S. 22,
25, 57 L. ed. 716, 717, 33 Sup. Ct. Rep. 410.
And nothing can be clearer than that the
district court, which has jurisdiction of all
crimes cognizable under the authority of
the United States (Judicial Code of March
3, 1911, chap. 231, § 24, second [36 Stat, at
L. 1091, Comp. Stet. 1913, § 991 (2)]),
acts equally within its jurisdiction whether
it decides a man to be guilty or innocent
under the criminal law, and whether its
decision is right or wrong. The objection
that the indictment does not charge a crime
against the United States goes only to the
merits of the case.
As to the construction of the Constitu-
tion being involved, it obvioiuly is not.
The question is in what sense the word "of-
fler^ is used in the Criminal Code of March
528
4, 1909, chap. 321, | 32 [35 SUt. at L.
1095, Comp. Stat. 1913, § 10,196]. The
same words may have different meanings in
different parts, of the same act, and of course
words may be used in a statute in a differ-
ent sense from that in which they are used
in the Constitution. American Security k
T. Co. T. District of Columbia, 224 U. S.
491, 494, 56 L. ed. 856, 857, 32 Sup. Ct.
Rep. 553.
There were fainter suggestions that the
defendant's constitutional rights were in-
fringed because the nature of the fraud in-
tended was not set forth, and because the
state and district wherein the crime was
committed were not proved. The indictment
is not for defrauding, but for personation
with intent to defraud; the nature of the
fraud intended is not material and even
might not yet have been determined. It is
not an indictment for a conspiracy to com-
mit an offense against the United States,
where the offense intended must be shown to
be a substantive crime. It reasonably may
be inferred from the evidence that the de-
fendant was tried in the right state and dis-
trict in fact. If so, his constitutional rights
were preserved. The personation was by tel-
ephone to a person [66] in New York
(southern district), and it might be found
that the speaker also was in the southern
district; but if not, at all events the per-
sonation took effect there. Burton v. United
SUtes, 202 U. S. 344, 389, 50 L. ed. 1067,
1074, 26 Sup. Ct. Rep. 688, 6 Ann. Cas. 362.
These objections are frivolous and the oth-
ers have been shown to be unfounded. It
follows that the writ of error must be dis-
missed.
Writ of error dismissed.
Mr. Justice McReynolds took no part in
the consideration or decision of this case.
ILLINOIS CENTRAL RAILROAD COM-
PANY, Plff. in JDrr.,
V.
FULTON M. SKAGGS.
(See S. C. Reporter's ed. 66-74.)
Evidence — sulHclency « employers*
lUbility.
1. A recovery under the Federal em-
ployers' liability act of April 22, 1908 (36
Stat, at L. 65, chap. 149, Comp. Stat. 101d»
§ 8657), is supported by evidence upon
Note. — On the constitutionality, applica-
tion, and effect of the Federal employers'
liability act— see notes to Lamphere v. Ore-
gon R. k Nav. Co. 47 L.RJl.(N.S.) 38, and
Seaboard Air Line R. Co. ▼. Horton, L.RJL
1915C, 47.
S40 U. S.
IfU.
ILUK0I8 C. H. 00. Y. 8KAGGS.
irliieli it eoald be found that a fellow eery-
aat wma Diligent, and that tliereby the
injury complained of resulted, although the
injured employee may himself have partici-
jM&ed in the act which caueed the injury.
[For other cases, see Evidence, XII. d, in
Digest Sup. Ct. 1908.]
Appeal — reversible error — instruc-
tions.
2. The failure of the trial court partic-
ularly to specify in its charge in an ac-
tion under the j^ederal employers' liability
act of April 22, 1908 (35 SUt. at L. 65,
«hap. 149, Comp. Stat. 1913, § 8657), some
matters to which its attention was not
suitably called, is not ground for reversal.
IFor other cases, see Appeal and Error,
6127--B141. in Digest Sap. Ct. 1908.]
Jippeftl ^ reYerslble error — instroc-
ttons.
8. The rule that a party is not entitled
te sit silent until after the verdict, and
tlien insist that it shall be set aside because
of the failure on the part of the trial
court particularly to specify in its charge
*om€ matter to which its attention had not
l^een suitably called, was not altered by
'tbe provisions of Minn. Gen. Stat. § 7830,
binder which a party may (without taking
"^Kccrptions at the trial) specify upon a
motion for a new trial alleged errors in
^o ruling or instructions of the trial
"Oourt.
C£*or other cases, see Appeal and Error,
^127-5141. in Digest Sup. Ct. 1908.]
^l*l>cal — reversible error ^ instruc-
^Aona.
4. Error in instructing the jury in an
"Action under the Federal employers' lia-
^ilit^y act of April 22, 1908 (35 Stat, at L.
chap. 149, Comp. SUt. 1913, § 8657),
if the injured employee was negli-
"a comparative amount, depending up-
^^ ^he ratio of his negligence to the negu-
?^^c« of defendant," should be considered
?y ^be jury, and that the jury should "take
*^''<> consideration his negligence in com-
*^*'*'i5!on with the negligence of the defend-
^**^»" does not call for the reversal of a
^y*^STnent in favor of plaintiff, where the
^^^»"t also read the applicable provisions
^^ tlie statute to the jury and said: "The
?^^lgn of this statute seems to be to place
-^^ responsibility for negligence in all cases
iJJ?^ where it belongs, and to make every-
^^^^y who is responsible for negligence which
^^oduces injury or an accident responsible
^^J that part of it and to the extent to
^^<iich iliey contributed to it, and so the
^^w provides that contributory negligence
^^>C8 not bar a recovery, but thst the dam-
^^^es to which one is entitled are to be re-
^^ced in proportion as his own negligence
^TMtributed to bring about the injury. That
?|^%, in a case like this, if it should be found
^^at both parties were to blame, that both
^ere negligent, both the defendant and the
l^laintiff, then the defendant company is
^ be responsible to the extent to which it
"^as to blame and the plaintiff would be
Responsible himself to the extent to which
He was tn blame," and no request was made
«A It. #WI
for a correction of the first-mentioned parts
of the charge.
[For other cases, see Appeal and Error,
6071-5126, in Diffest Sup. Ct. 1908.]
[Xo. 194.]
Argued January 19 and 20, 1916. Decided
January 31, 1016.
TN ERROR to the Supreme Court of the
State of Minnesota to review a judg-
ment which, on a second appeal, affirmed
a judgment of the District Court for Ram-
sey County, in that state, in favor of plain-
tiff in an action under the Federal em-
ployers' liability act. Affirmed.
See same case below, on first appeal, 124
Minn. 503, 145 N. W. 381; on second ap-
peal, 125 Minn. 532, 147 N. W. 1135.
The facts are stated in the opinion.
Mr. W. S. Horton argued the cause, and,
with Mr. Blewett Lee, filed a brief for plain-
tiff in error:
The state court erroneously applied the
Federal employers' liability act to the
facts.
29 Cyc. 419, 420; 1 Thomp. Neg. p. 4;
Ellis V. Louisville, H. & St. L. R. Co. 155
Ky. 745, 160 S. W. 512.
The state court erroneously construed the
part of the Federal employers' liability act
regulating the damages as applied to the
facts shown in this record.
Seaboard Air Line R. Co. v. Tilghman, 237
U. S. 499, 501, 69 L. ed. 1069, 1070, 35 Sup.
Ct. Rep. 653; Norfolk & W. R. Co. v. Earn-
est, 229 U. S. 114, 57 L. ed. 1096, 33 Sup.
Ct. Rep. 654, Ann. Cas. 1914C, 172.
Inasmuch as Skaggs directly participated
in uncoupling the engine from the cars and
leaving them at the place, the company was
not negligent as to him, because it did not
owe him the duty to see that he did his
work properly, or to furnish another em-
ployee to advise whether his work was
properly done; even though another em-
ployee jointly participated with Skaggs,
yet, as between him and the company, it
was none the less his act, for which there
can be no liability.
Ellis V. Louisville, H. & St. L. R. Co.
supra; Thomp. Neg. § 3879; Perigo v. In-
dianapolis Brewing Co. 21 Ind. App. 338, 52
N. E. 462; McKay v. Hand, 168 Mass. 270,
47 N. E. 104, 2 Am. Neg. Rep. 714; Calla-
way V. Allen, 12 C. C. A. 114, 24 U. S. App.
388, 64 Fed. 297; Davis v. Chicago Edison
Co. 195 111. 31, 62 N. E. 829.
It is essential to liability that there shall
exist a duty on the part of the company to
protect plaintiff from the particular cause
of injury.
29 Cyc. 419, 420; 1 Thomp. Neg. p. 4.
84 V%%%
S7, W SUPREME COiniT OF THE UNITED STATES. Ooi. TtMM,
The trUI court imtnicted that the pkin- 114, 67 L. ed. 1096, 33 Sup. CL Bep. 8M.
tUT below wu entitled to recoTer if BucfaU, Aim. Cu. 1914C, 172.
the other brAkeman, wu negligenti omit-
ting in ereiT reipect from their eoiiiider>- Mr. Juttice Hncbea delivered the opinltm
tion Sluggs'B partidpatioii in the act and gf the court:
opportunity to luiow the condition. Id thus This it a writ of error to reriew a judg-
liating a complete right to recover, it waa ment recovered under the Federal employera*
eaaential that all the conditions shown \>j liabilitf act. There la no quettion but that
the undisputed testimony be Included. the defendant in error, Fulton M. Bkagga,
Pennoclc v. Dialogue, 2 Pet. 1, IG, 7 L. ed. <raa injured while be waa engaged in intar-
38T, 332; Clarke v. Courtnej, G Pet. 319, lUU commerce in the couraa of hia amploy-
3fi4, S L. ed. 140, 152; Greenleaf v. Birth, nent by the plaintilT in error. It ia cor.
» Pet. £92, 299, 9 L. ed. 132, 135. tended that the iUte Murt erred in iU ap-
Exceptiona were taken and errors as- plication of the statute to the facta, both
signed in the state court in accordance with with reapeet t« the conditions of liabUitj'
the method prescribed by the statutes of uid the meaeure ol damages,
the state as conetrued by the courts. It is Skaggi had been employed by the companjr
not required that for such an error an ex. for about four yeari, first in connection
eeption be taken at the time the instruc- with the building and repair of bridges, and
tion ie given. It is sufficient to raise it in then, for about two years, as a locomotive
the motion for new trial. fireman. ^ '«w days before the accident
Sasaen v. Haegle, I2S Minn. 441, 62 L.R.A. he l>^an work as a brakeman on a freight
(N.S.) 1176, 147 N. W. 445. train, hia Drat run being from Freeport to
Mr. H«n.ph«,BMton argued the cause, Clinton, Illinois, on J«,«r7 10 1913 It
«.d, with Mr. John H. Kay, Sled a brief *« on the return tr.p to Freeport, on Janu-
lor defendant in error: "7 W. 3?". t''"*^''* *" '"J""^- ^
The court cannot review the evidence "*' consisted of the conductor, the eng^
merely for the purpose of determining on neer the fireman, the rear brakeman, named
whi/side of t^e c^ the greater weight ^^f^^^'J^^, trf .fm'r ' xtr. ' « '::f
''lS:;rt^R"hards, 161 V. S. 658, 38 I. "«•««"» 'r.^ '".T'^^'m s^^t
^ ins ^A a.,« /v »»_ jeo it«. Mi- tion of rear brakeman because Of Ins greater
•d. SOS, 14 Sup. Ct. Rep. 4S2, 17 Mor. Mm. _, . „.,i,^ *™t3iw ■•>.
n Til. n -ii .. I 1— J tan Tt □ experience. The train reached Amboy, aa
Rep. 704; Bartlett v. Lockwood, 160 U. 8. . f ., . ... ^ . o > 1.^1, V u
MB *n r ^ .nn i« b,.„ n* d. iii intermediate sUtion, about 2 0 clock A. U.
3S8, 40 L. ea. 460, 16 oup. Ut. Kep. 334; ,. ^ 1 u ._ui ti —^ a<
Bgi:n T. Hart, 165 U. S. 188. 41 L. rf. 880 " -" * d-rlj co id P'^''*^ ^here were M-
17 Sup. Ct. Rep. 300; Thayer y. Spratt, 180 'TV,'?, 'f . J ^1 .Jn «. ™t !«
U. S. 346, 354, 47 L ed. 845, MO, 23 Sup. ^^ ' ' '' w* i^^ ^ . tL^^
a. Rep. 5T6; Minneapolis, St. P. 4 S. SU. mediately behind these f"" "T' = *^" ^^
M. R. Co. ». Popplar. 237 U. S. 369, 59 L. '"^,"%'"''\t '* "! l^k to'^a^Sl
ed. 1000, 35 Sup d. Rep. 809; Seaboard ^'^^T "', I ti„„ with a naLiw
Air Line R. Co. V. Padgett, 236 U. B. 668, b"^?""-! "«'^1> """"''2?/.''^ L«^.^
To be effective, the proper tune to have /^ .^i,^ . „itb j^^ remaining
had the court consider the question o( re- ^^ returned to the main track and
duction of damage, was when the court ^ ^^^^ ^^ ^j,, ji^^ti„„ „f the car*
was charging the jury; and either by a re- ^,_,^j^ ,^,j ^^ j^f^ ,t^„ji „„ t^at trmck.
quest to charge or by an exception te the ^^^^^ ^,^^J.i„^ , ^^^ disUnce, the engine
charge aa given. ^.^^ stopped, was uncoupled, and was moved
Waligor. V. St. Paul Foundry Co. 107 f^^^^^^ ,|o„e across the switch leading to-
Minn. 550, 119 N. W. 395; SUte v. Zempel, ^ ^ ^^^^ the purpose being to re-
103 Minn. 429, 116 N. W. 275; Smith v. ^.^'^i^ the paseiog track and from thence t«^
Great Northern R. Co. — Minn. — , 153 N. ^^^^^^ to a further track to the west. In
W. 618. „jjjj to pick up certein other cars which
No instructions of any kind were re- ^^^^ ^^ ^^ j in^^ the train. There had not
quested by defendant, and no exceptions j^^^^ ^^^^^ however, a safe clearance for the
were taken at the time of the trial, and engin^^ ,nd, wlien the engine backed to the
the trial court's attention was not, in any p^gtng track, Skaggs, who was ridbg on
manner, at the time of the trial, called to the right side at the rear of the tender, waa
the matters now complained of. Under hit by the end of the foremost car left on
thcaa drcumstauces the plaintiff In error the main track, waa knocked to the ground,
should not now be heard to complain of and was run over, this being the Injury of
the court's charge. which he complains.
Norfolk * W. R. Oo. t. Eamart, «9 U. S WhUe tiiere la little or no dilute aa t*
mil.
ILUNOIS C. R. CX). y. SKAGG8.
08-71
thcM facts, there it a conflict of testimony
as to the relation of Buchta, the other bralce-
man, to the occurrence. Omitting various
details ol the movements which, for the
present purpose, need not be considered,
and taking the testimony of Skaggs, which
the jury waa at liberty to believe, these
faets appear: When, after leaving the two
cars on the passing track, the engine, with
the remaining string of cars, returned to the
main track and backed down, Skaggs gave
the signal to stop, repeating a signal which
was received, as he [69] supposed, from the
«ODdiictor. At that time Buchta was some-
where in the yard (he had been lining up
flwitehes for the intended movements), but
Sksggs did not see him when the cars were
stopped. Skaggs then went to the depot to
siacertain the meaning of the signal, and
told by the conductor that it was neces-
ry to pick up certain other cars. Return-
g to the engine, he attempted to uncouple
:St from the right-hand side, but found this
■ lifllcult, and Buchta, who was then on the
^cspposite side, effected the uncoupling and
id, "Go ahead." On Skaggs's signal, the
igine started forward; but Skaggs did not
ow whether the cars were left so as to
ive sufficient clearance for an engine going
to the passing track, and asked Buchta as
this. He did not receive a satisfactory
swer; he stopped the engine, got off, and
in asked Buchta, who replied: "They
clear a mile, go ahead, and if we don't
out of bcre the sixtcen-hour law will
tch us before we get into Freeport."
kaggs at that time was on the track at
e rear of the tender and not more than
ear's length from the standing car. He
^en got on the engine, rode up to the
"Witch, through the switch, gave the back-up
~3gnal, stepped on the comer of the tender
d waa looking back for any signal that
ight be given by the other brakeman when
e was caught between the rear right-hand
^de of the tender and the end of the stand-
g car, as already stated.
It is contended that the state court erred
permitting a recovery under the Federal
'Astute for the reason that the injury re-
^^Ited from Skaggs's own act, or from an
<t in which he participated. The company,
k is said, "cannot be negligent to an em-
^oyee whose failure of duty and neglect pro-
need the dangerous condition." It may
taken for granted that the statute does
ot contemplate a recovery by an employee
^vr the consequences of action exclusively
^is own; that is, where his injury does not
^"esult in whole or in part from the negli-
gence of any of the officers, agents, or em-
ployees of the employing carrier, or [70 J
^y reason of any defect or insufficiency, due
to its negligence, in its property or equip-
%0 li. ed.
ment. 35 Stat, at L. 65, chap. 149, Comp.
Stat. 1913, § 8657. But, on the other hand,
it cannot be said that there can be no recov-
ery simply because the injured employee
participated in the act which caused the in-
jury. The inquiry must be whether there is
neglect on the part of the employing carrier,
and, if the injury to one employee resulted
**in whole or in part" from the negligence of
any of its other employees, it is liable under
the express terms of the act. That is, the
statute abolished the fellow-servant rule. If
the injury was due to the neglect of a co-
employee in the performance of his duty,
that neglect must be attributed to the em-
ployer; and if the injured employee was
himself guilty of negligence contributing to
the injury, the statute expressly provides
that it "shall not bar a recovery, but the
damages shall be diminished by the jury in
proportion to the amount of negligence at*>
tributable to such employee." See Second
Employers' Liability Cases (Mondou v. New
York, N. H. k H. R. Co.) 223 U. 8. 1, 49,
50, 56 L. ed. 327, 345, 346, 38 L.R.A.(NJ3.)
44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 876;
Seaboard Air Line R. Co. v. Tilghman, 2S7
U. S. 499, 501, 59 L. ed. 1069, 1070, 35 Sup.
Ct. Rep. 653. We think that the argument
for the plaintiff in error overlooks the infer-
ences of fact which the jury was entitled to
draw. Thus, the jury could properly regard
the two brakemen as assisting each other in
the movement in question. Such assistanoe
was certainly appropriate, if not absolutely-
necessary. The very purpose of having two-
brakemen was not to put upon either the
entire responsibility. Working together un-
der the exigencies of such operations, par-
ticularly when conducted in the nighttime^
it was manifestly contemplated that the one*
brakeman would supplement the other, and
not be compelled, at the peril of his rights^
personally to examine what the other did,
or the basis of the reports the other gave.
Each had a reasonable latitude in relying
upon the statements of the other, made in
the course of the operation and as a part of
it. The supreme court of the state said: "It
was [71] a very dark night, and evidently
there was necessity for haste. If plaintiff's
story is true, Buchta was in a position to
know about clearance, while plaintiff was
not; and we are unable to say plaintiff had
not the right to rely upon his statement
in regard thereto." [124 Minn. 506, 145 N.
W. 381.] In this we find no error. When
the engine was uncoupled, Sk|igg8 was on
the right-hand side, while Buchta was on
the other side, — the side of the passing
track, — ^a better place to judge the clear-
ance. The fact that Skaggs asked his ques-
tions is itself not without significance.
These questions indicated doubt on Skaggs's
^
71-73
SUPREME COURT OF THE UNITED STATES.
Cot. Tebic,
part, while Buchta's reply showed certain-
ty on his. It was plainly permissible to in-
fer from the testimony that the two men
were not in positions of equal advantage,
and Skaggs was entitled to the exercise of
reasonable care on the part of Buchta in
observing and reporting the position of the
cars. As there was evidence upon which it
could be found that Buchta was negligent,
and that thereby injury resulted to Skaggs,
it cannot be said that the recovery in this
aspect of the case was contrary to the stat-
ute.
But it is urged that the trial court erred
in its instructions to the jury. After stat-
ing that if any employee "was, at the time
of this accident, n^ligent in the perform-
ance of his duty, which negligence was the
direct cause of the injury sustained by the
plaintiff, then the defendant . . . would
be liable for that negligence," and after re-
ferring to the "direct conflict of testimony"
with respect to what was said and done by
Buchta, the trial court charged as follows:
*'Did the employee Buchta fail to exercise
that ordinary and reasonable care which a
prudent person would have exercised under
the circumstances existing at that time?
If he did fail to exercise such ordinary and
reasonable care, then he would be guilty of
negligence, and that negligence in this case
would be the negligence of the defendant
railway company. You must determine this
question of fact from all of [72] the testi-
mony in the case." It was added, in sub-
stance, that if Buchta did not fail to exer-
cise reasonable care, the plaintiff was not
entitled to recover. It is contended that the
trial court erred in failing to qualify the in-
struction quoted, and other statements to
the same eflfect, by reference to what Skaggs
himself did, knew, or was in a position to
know. But in view of the state of the tes-
timony, and the point to which the court's
instruction was addressed, we cannot say
that it was in itself erroneous. If the plain-
tiff in error desired any addition, amplifica-
tion, or qualification in order to present its
point of view to the jury, it should have
made appropriate request therefor. The
record does not show that the plaintiff in
error either objected at the time to any
statement made by the court to the jury,
or that it made any request whatever for
instructions. While under the local stat-
ute (Qen. Stat. [Minn.] § 7830) the plain-
tiff in error was permitted (without taking
exceptions at the trial) to specify upon a
motion for a new trial alleged errors in
the rulings or instructions of the trial court,
we do not find that this statute alters the
salutary rule that a party is not entitled to
sit silent until after the verdict and then
insist that it shall be set aside because of
582
a failure on the part of the trial court par-
ticularly to specify in its charge some mat-
ter to which its attention had not been
suitably called. State v. Zempel, 103 Minn.
428, 429, 116 N. W. 276; Waligora ▼. St.
Paul Foundry Co. 107 Minn. 564, 669, 119
N. W. 395; Sassen v. Haegle, 126 Minn.
441, 52 L.R.A.(N.S.) 1176, 147 N. W. 446;
State y. Sailor, 130 Minn. 84, 163 N. W.
271; Smith v. Great Northern R. Co. —
Minn. — , 153 N. W. 613. This, also, is a
sufficient answer to the complaint of the
failure of the trial court to charge the jury
with respect to assumption of risk. There
was no request for any instruction upon this
point. So far as these criticisms are con-
cerned, we are unable to say that any as-
serted Federal right was denied by the state
court.
[73] The remaining question is with re-
spect to the instructions of the trial court
on the subject of contributory negligence.
In the course of these the court fell into the
error of saying that, if Skaggs was negli-
gent, "a comparative amount, depending
upon the ratio of his n^ligence to the negli-
gence of the defendant, would be considered
by you (the jury) ; and, again, that the jury
should "take into consideration hit negli-
gence in comparison with the negligence of
the defendant." But the court read the ap-
plicable provision of the statute to the jury
and also said: "The design of this statute
seems to be to place the responsibility for
negligence in all cases just where it be-
longs, and to make everybody who is re-
sponsible for negligence which produces in-
jury or an accident responsible for that part
of it and to the extent to which they con-
tributed to it, and so the law provides
that contributory negligence does not bar
a recovery, but that the damages to
which one is entitled are to be reduced
in proportion as his own negligence con-
tributed to bring about the injury. That
is, in a case like this, if it should be found
that both parties were to blame, that both
were negligent, both the defendant and the
plaintiff, then the defendant company it to
be responsible to the extent to which it was
to blame, and the plaintiff would be respon-
sible himself to the extent to which he was
to blame." And no request wu made for a
correction of the first-mentioned parts of the
charge. It was recognized by the supreme
court of the state that those parts failed to
conform to the correct interpretation of the
statutory rule as defined in Norfolk & W.
R. Co. V. Earnest, 229 U. S. 114, 122, 57
L. ed. 1096, 1101, S3 Sup. Ct. Rep. 664, Ann.
Gas. 1914C, 172, and the court quoted what
we there said, aa follows: "But for the use
in the second instance of the additional
words 'as compared with the negligence of
240 V. 8.
19i;
CROCKER T. UNITED STATES.
78,74
the defendant' there would be no room lor
eritieiem. Those words were not happily
chosen, for to have reflected what the stat-
ute contemplates they should have read 'as
compared [74] with the combined negli-
gence of himself and the defendant/ We Ba>
this because the statutory direction that the
diminution shall be 'in proportion to the
amount of negligence attribut«ble to such
employee' means, and can only mean, that,
where the causal negligence is partly at-
tributable to him and partly to the car-
rier, he shall not recover full damages, but
only a proportional amount bearing the
same relation to the full amount as the
negligence attributable to the carrier bears
to the entire negligence attributable to both.
. . . Not improbably the mistake in the
instruction was purely verbal and would
have been promptly corrected had attention
been specially called to it, and possibly it
was not prejudicial to the defendant."
The state court concluded that "upon the
whole instruction no prejudice to defendant
resulted." And in this Tiew we concur.
Judgment affirmed.
FRANK CROCKER, Trustee in Bankruptcy,
etc, Appt.,
T.
UNITED STATES.
(See S. C. Reporter's ed. 74-82.)
Appeal — from court of claims — find-
Inga of fact.
1. Findings of the court of claims In an
action at law determine all matters of fact
precisely as the verdict of a jury, and the
Federal Supreme Court is not at liberty to
refer to the opinion of the court of claims
for the purpose of eking out, controlling,
or modifying the scope of the findings.
[For other caies, eee Appeal find Error.
4892-4902, in Digest Sop. Ct. 1008.]
Contracts « public policy « affectini^
olllclal action.
2. The employment of a person by a cor-
poration upon a compensation contingent
upon success to secure a contract from the
Postmaster General for furnishing letter car-
riers' satchels is invalid as against public
policy.
[For other eases, aee Contracts, IV. d, 8, In
Digest Sup. Ct. 1908.]
Contracts « public policy — affectini^
olllclal action.
3. Public policy forbids any secret ar-
rangement between the agents of a corpora-
tion and the superintendent of the free
delivery mail service, who is charged with
important duties relating to the purchase of
letter carriers' satchels for such service,
whereby, in case the corporation shall
secure the contract for furnishing such
satchels, the superintendent is to receive a
share of the profits.
[For other cases, aee Contracts, IV. d, 8,
in Digest Sup. Ct 1908.]
United States — contract — rescission
for fraud.
4. The Postmaster General was justi-
fied in rescinding, because tainted with
fraud, a contract with a corporation for
furnishing letter carriers' satchels for the
free delivery service upon his discovery of
the existence of a secret arrangement
whereby the superintendent of such service,
in case the corporation secured the con-
tract, wsa to receive a share of the profits,
although the corporation may have been
without actual knowledge of the corrupt
Note. — ^Validity of agreement by which
compensation is contingent upon success in
procuring contract with, or allowanoe of
claim against, the United States.
Very like Ciockkb t. UifnvD States is
the case of Providence Tool Co. v. Norris, 2
Wall. 45, 17 L. ed. 868, where it wis held
that an agreement, for compensation contin-
gent upon success, to procure contracts from
the government to furnish it with supplies,
was against public policy and void. The
court said: ^All agreements for pecuniary
considerations to control the business opera-
tions of ^e government, or the r^ular ad-
ministration of justice, or the appointments
to public offices, or the ordinary course of
legislation, are void as against public pol-
icy, without reference to the question wheth-
er improper means are contemplated or used
in their execution. The law looks to the
general tendency of such agreements; and
it doses the door to temptation, by refus-
ing them recognition in any of the courts
of the country."
So, in Hovey t. Storer, 68 Me. 486, where
the owners of a vessel authorised their agent
to dmrter her to the government for $100
66 U ed.
per day, and relinquish all over that amount
to the agent, it was heid that a contract
made by the agent with the government,
through the intervention of another, by
which the government was to pay $150 per
day, was invalid as against public policy;
but the court refused to disturb it in so far
as it had been executed.
The New York courts view these oontraeta
with less disfavor.
Thus, an agreement to procure orders from
the United States government for supplies
to be furnished for use upon vessels in the
public service, in consideration of one half
the net profits, is valid where it does not
contemplate resort to any but legitimate
methoda in procuring the orders. Swift
V. Aspell, 40 Misc. 453, 82 N. Y. Supp.
669.
And an agreement to pay a commission
of 5 per cent on the amount of the charter
for obtaining a charter from the United
States for a steamship does not contravene
public policy. Howland ▼. CoiBn, 47 Barb.
653.
Nor does a contract by which one under-
takes to pay a commission for chartering
5Sft
SUPREME COURT OF THE UNITED STATES.
Oor. Tbuc*
arrangement, where it waa made by the cor-
poration's agents while endeavorinff to se-
cure the contract for the corporation, and
was a means to that end, and the fruits of
their efforts were accepted by the corpora^
tion.
[For other cases, see United States, VI., in
Dtffeat Sup. Ct. 1008.]
United Slates « contracts — quantum
▼alebat.
6. The fact that no recovery can be
had upon a contract with the Postmaster
Oeneral for furnishing letter carriers' satch-
els, where such contract was tainted with
fraud and has been rescinded by him upon
that ground, is not an obstacle to a re-
covery upon a quantum valebat.
[For other cases, see United States, VI., in
Digest Sup. Ct 1908.]
Evidence « contract price as admission
of value.
6. The contract price for letter car-
riers' satchels to be furnished under a con-
tract with the Postmaster General cannot
be treated as an admission by the govern-
ment of the value of the satchels, for the
purpose of sustaining a recovery upon a
quantum valebat, where the contract had
been rescinded because of a secret arrange-
ment witli a government official whereby he
was to share in the contractor's profits.
[l<'or other cases, see Bvidence, XI. f, lu
Digest Sup. Ct. Rep. 1908.]
[No. 77.]
Argued December 1 and 2, 1915. Decided
January 31, 1916.
APPEAL from the Court of CUdint to re-
view a judgment rejecting all but a
small part of a olaim for furnishing letter
carriers' satchels under contract with the
Postmaster General. Affirmed.
See same case below, 49 Ct. CI. 85.
The facts are stated in the opinion.
Mr. James H. Hayden argued the cause,
and, with Mr. Robert C. Hayden, filed a
brief for appellant:
The fraudulent practices mentioned by
the court of claims did not affect the rights
or obligations that the parties acquired or
assumed by the contract in suit.
If the fiction about the omission of
straps, mentioned by the court of claims,
had been the fact, and if it had been true
that the company delivered only the body
portions of satchels of classes A and C, the
rates named in the contract would have
furnished evidence by means of which the
value of the incomplete satchels should
have been ascertained.
Salomon v. United States, 19 WalL 17,
19, 22 L. ed. 46, 47.
Assistant Attorney General Thompson
argued the cause and filed a brief for ap«
pellee:
This was one indivisible transaction per-
meated with fraud, of which appellant com-
pany was chargeable with constructive
knowledge.
his vessel to the government, to persons who
are related to the government's agents in
charge of selecting vessels for charter, where
the agents so employed did not agree to use
any corrupt means to procure the charter.
Southard v. Bovd, 51 N. Y. 177.
And in Lyon v. Mitchell, 36 N. Y. 235.
93 Am. Dec. 502, a contract by which a
broker undertook to dispose of certain
steamers to the government for a commis-
sion of 10 per cent of the total amount re-
ceived for them was held valid, and a re-
covery was allowed thereon.
In Cummins v. Barkalow, 1 Abb. App.
Dec 479, a contract by a dealer in arms
to pay an agent a share of the profits for
obtaining from the government an order for
the purchase of arms was held valid, there
being nothing to show that it called for any
illegal or improper action on the part of
the agent.
In Winpenny v. French, 18 Ohio St 470,
it was held that a contract with a broker
employed to negotiate contracts with the
government for the sale of baskets to the
Army for a certain commission was not
illegal, the court elaborately distinguishing
Providence Tool Co. v. Norris, supra.
Contracts to procure the allowance of a
claim against the United States have also
been condemned where compensation is made
contingent upon success.
Thus, in Jones v. Blacklidge, 9 Kan. 562,
12 Am. Rep. 506, which was a case of the
5S4
collection of a claim against the govern-
ment, the court says that all contracts for
the collection of claims, whether they are
to be performed before the courts, before
Congress or the legislature, or before any
of the executive departments, for a compen-
sation contingent upon success, are clearly
against public policy; for compensation in
such cases, being contingent, is often very
large in amount, and holds out great in-
ducements and temptations to the use of
undue and even corrupt means for its col-
lection.
A contract to give a percentage of a claim
against the government for services in col-
lecting it is void as against public policv,
where the services in fact consisted largely
in procuring legislation from Congress by
which the Postoffice Department should be
required to pay the claim. Spalding v.
Ewing, 149 Pa. 375, 15 L.RJL 727, 34 Am.
St Rep. 608, 24 Atl. 219, affirming 9 Pa.
Co. Ct. 471.
An agreement by an attorney to obtain
the allowance of a claim against the govern-
ment, the services contemplated to be rem*
dered consisting mainly in the procurement
of legislation by Congress, and in personal
solicitation of members for that puxpoee»
will not be enforced by the courts, although
no improper or unlawful means were used
or intended to be used. Owens v. Wilkin-
son, 20 App. D. C. 51.
But a contract for the proeecution of a
240 U. 8.
1915.
CROCKER T. UNITED STATES.
76,76
Crawford ▼. United Stat«f , 212 U. S. 188,
i>8 L. ed. 466, 28 Sup. Ct. Rep. 260, 15 Ann.
Cm. 392; Providence Tool Co. ▼. Norris, 2
Wan. 45, 66, 17 L. ed. 868, 871; Kmmm ▼.
Beadi, 96 N. Y. 404; Den ex dem. Stewart
▼. Johnson, 18 N. J. L. 87; Fairohild ▼.
HcMahon, 139 N. Y. 290, 36 Am. St. Rep.
701. 34 N. E. 779.
In addition to appellant company't con-
etnictive knowledge, the contract wat in-
herently unlawful and therefore unenforce-
able.
2 Dill. Mun. Corp. 5th ed. p. 1146; San
Diego ▼. San Diego & L. A. R. Co. 44 Cal.
106; Drake ▼. Elizabeth, 69 N. J. L. 190,
54 AtL 248; Foster ▼. Cape May, 60 N. J.
L. 78, 36 AtL 1089; Heughes ▼. Board of
Education, 37 App. Div. 180, 56 N. Y. Supp.
799; Jacques ▼. Louisville, 32 Ky. L. Rep.
574, 106 S. W. 308; 2 Century Dig. Contr.
% 462; Woodward, Quasi Contr. 1913, chap.
8, p. 210; Hentig ▼. Staniforth, 5 Maule &
S. 122, 17 Revised Rep. 203; Oom v. Bruce,
12 East, 225, 11 Revised Rep. 367; McGour-
key V. Toledo & 0. a R. Co. 146 U. S. 536,
36 L. ed. 1079, 13 Sup. Ct. Rep. 170;
Thomas v. Brownville, Ft. K. & P. R. Co.
100 U. S. 522, 27 L. ed. 1018, 3 Sup. Ct.
Rep, 315; United States v. Carter, 217 U.
S. 286, 54 L. ed. 769, 30 Sup. Ct. Rep. 515,
10 Ann. Cas. 594; Wardell v. Union P. R.
Co. 103 U. S. 651, 26 L. ed. 509, 7 Mor. I
Ifin. Rep. 144; West ▼. Camden, 135 U. 8.
507, 34 L. ed. 264, 10 Sap. Ct. Rep. 888.
Mr. Justioe Van Deranter dellTered the
opinion of the court:
This is a claim for furnishing letter car-
riers^ satchels under a contract with the
Postmaster QeneraL The contractor wat a
New Jersey corporation and its trustee in
bankruptqr is the present claimant. In the
court of claims a small part of the daim
was sustained and the balance rejected.
49 Ct CI. 85. Only the claimant appeals,
so the part sustained is not here in con-
troversy.
[76] As shown by the findings the facts
are these: By public advertisement in May,
1902, the. Postmaster General solicited bids
for furnishing letter carriers' satchels for
the free delivery service for a period of
four years. Shortly after the advertisement
the New Jersey company and one Lorena
entered into a written agreement whereby
the company employed him to assist In se-
curing for it the contract for furnishing
the satchels, it being particularly stipulated
that he and the company's vice president,
one Crawford, should determine the bid to
be made, and should present it in the com-
pany's name; that, if the company got the
contract, Loreni ihould receive i^l profits
arising out of the same in excess of 25 cents
on each satchel, and that, if the company
claim against the Federal government, which
provides for the presentation of the claims
by the agent, and for "any diplomatic nego-
tiations as may be deemed by him best for
the interest of the party of the second part,"
is not void on its face, and where there is
no improper personal solicitation of the
members of Congress, tiie party perform-
ing the services is entitled to his compensa-
tion. Knut V. Nutt, 83 Miss. 365, 102 Am.
St. Rep. 452, 35 So. 686, affirmed in 200
U. 8. 13, 50 L. ed. 350, 26 Sup. Ct. Rep.
216.
A contract of employment of attorneys
to obtain the allowance of a claim by the
Federal fl;ovemment for property destroyed
during the Civil War, where the chief ob-
stacle to the allowance of the claim was a
strong belief on the part of certain mem-
bers of the Senate that the claimant had not
been a loyal citizen, was sustained in Pen-
n^Miker v. Williams, 136 Ky. 120, 120 8.
W. 321. The trial court answered the ob-
jection in a manner which was approved by
the court of appeals, by stating that there
was no proof in the record to show that
any lobbying was done by the attorneys, but
there was proof that such services were
rendered as any reputable lawyer might
Tender under the circumstances. A petition
for modification and extension of this opin-
ion was overruled in 136 Ky. 143, 123 S.
W. 672.
Contracts to pay attorneys a contingent
40 li. ed.
fee for purely professional services in prose-
cuting a claim against the United States
are legitimate (Stanton v. Embrey, 93 U.
8. 557, 23 L. ed. 985; Bemiss v. Taylor,
110 U. S. 42, 28 L. ed. 64, 3 Sup. Ct. Rep.
441; Trist v. Child (Burke v. Child) 21
Wall. 441, 22 L. ed. 623; Wright v. Tebbitts,
91 U. S. 252, 23 L. ed. 320; Bergen v.
Frisbie, 125 Cal. 168, 57 Pac. 784), except
where such agreements are denounced by
statute. For examples of such statutes, see
Wailee v. Smith, 157 U. S. 271, 39 L. ed.
698, 15 Sup. Ct. Rep. 624; Ball v. Halsell,
161 U. S. 72, 40 L. ed. 622, 16 Sup. Ct.
Rep. 554; Bachman v. Larson, 109 U. S.
659, 27 L. ed. 1067, 3 Sup. Ct. Rep. 479;
Tanner v. United States, 32 CL Cl. 192;
Lynch v. Pollard, 26 Tex. Civ. App. 103,
62 S. W. 945 ; Ralston v. Dunaway, — Ark.
•— , 184 S. W. 425.
As to the validity of contracts to procure
legislative action, generally — see. notes to
Houlton V. Dunn, 30 L.RJk. 737, and Stroem-
er V. Van Orsdel, 4 L.RJL(N.S.) 213.
And as to the validity of a contract as
affected by the fact that its performance
may involve the necessity of procuring s<une
action ^ public officials-— see note to Cole v.
Brown-Hurl^ Hardware Co. 18 LJRJi.
(NJ3.) 1161.
On the validity of a contract as to loca-
tion of a public buildim^— see note to Ed-
wards T. Qoldsboro, 4 LJLA.(KJ3.) 689.
5S5
7^78
SUPREME COURT OF THE UNITED 8TATE&
Ooi. Xbm^
did not get the contract, he was to accept
$1 aa full payment for his services. Lorenz
and Crawford then entered into a secret
arrangement with one Machen, who was
superintendent of the free delivery service
and charged with important duties relating
to the purchase of the satchels, whereby, in
the event the company got the contract,
Lorens's share of the profits was to be
divided among them on the basis of one
half to Machen and one fourth to each of
the others. After this arrangement was
made a bid for the satchels was prepared
and submitted in the company's name, and
was accepted by the Postmaster General.
The contract sued upon followed in r^ular
course, the company agreeing therein to fur-
nish the satchels in such quantities and at
such times as the postoffice authorities
might direct. The satchels were to be of
three classes, those of classes A and C to
have shoulder straps and those of class B
to be without straps. The prices to be paid
by the government were $2.10 for each
satchel of class A; $3.16 for each of class
B., and $3.15 for each of class C. This in-
cluded the shoulder straps on those of
classes A and C. The company was not a
manufacturer of satchels or of the materials
used in making them, and to enable it to
comply with [77] the contract it arranged,
through Crawford, to have the satchels
made by a manufacturer at Hartford, Con-
necticut. But, as the manufacturer could
not supply shoulder straps of the type re-
quired, the company and Lorenz entered
into a further agreement to the effect that
Lorenz should supply the shoulder straps,
that out of what was paid by the govern-
ment for the satchels the company should
pay him 45 cents on each satchel of class
A, $1.19 on each of class B, and 84 cents on
each of class C, as his share of the profits j
and to reimburse him for supplying the
straps. Crawford and Machen had con-
ferred about the straps, and Machen had
said that the 'government would get the
straps, pay for them, send them to the com-
pany's manufacturer, and adjust any dif-
ference afterwards.
Thereafter and prior to March 17, 1903,
the company furnished over 10,000 satchels
pursuant to the terms of the contract, save
that the shoulder straps on those of classes
A and C, which were in excess of $5,000,
were provided and paid for by the govern-
ment, through Machen, at a cost of 39^
cents each. These satchels were all paid
for by the government, through Machen, at
the contract rates without any deduction
for the straps. Out of the moneys so re-
ceived the company paid Lorenz 45 cents
on each satchel of class A, $1.19 on each
of clasa By and 84 cents on each of class C,
^S0
and he in turn divided what he received
with Machen and Crawford.
Between March 17 and April 80, 1903^
the company furnished 6,201 more satchels,
pursuant to the terms of the contract, save
that the shoulder straps on those of elassea
A and C, of which there were 4,912, wera
provided and paid for by the government^
through Machen, at a cost of 39^ oenta
each. These satchels were accepted and
retained by the postoffice authorities. But
when payment for them under the contract
was requested, it was refused. This waa
because the Postmaster General had then
learned of the corrupt arrangement giving
[78] Machen an interest in the profits, and
had rescinded the contract and stopped fur-
ther payments under it.
No shoulder straps were furnished by the
company, through Lorenz or otherwise, and
both he and Crawford knew that the strapa
were purchased and supplied by the gov-
ernment. Before the rescission by the
Postmaster General the company did not
know that Machen was to share or waa
sharing in the profits, or that the govern-
ment was supplying the shoulder straps,
save as the company may have been charge-
able with the knowledge of Lorenz and
Crawford, who represented it in securing
and executing the contract.
It was for furnishing the 6,201 satchela
after March 17, 1903, that a recovery waa
sought in the court of claims, and the part
of the claim rejected was for the 4,912
satchela of classes A and C, the rejection
being put on the grounds (a) that no re-
covery could be had upon the contract, be-
cause it called for satchels with shoulder
straps and the company did not furnish the
straps, and (b) that no recovery could bo
had upon a quantum valebat, because the
value of the satchels as furnished was not
shown.
In the briefs reference is made to portiona
of the opinion delivered in the court of
claims sa if they were not in accord with
the findings. We do not so read the opin-
ion, but deem it well to observe, aa waa
done in Stone v. United States, 164 U. 8.
380, 382, 383, 41 L. ed. 477, 478, 17 Sup.
Ct. Rep. 71, that "the findings of the court
of claims in an action at law determine
all matters of fact precisely as the verdict
of a jury," and that "we are not at liberty
to refer to the opinion for the purpose of
eking out, controlling, or modifying the
scope of the findings." See also Collier t.
United States, 173 U. S. 79, 80, 43 L. ed.
621, 622, 19 Sup. Ct. Rep. 330; United
States V. New York Indians, 173 U. 8. 46i»
470, 43 L. ed. 769, 771, 19 Sup. Ct Rep. 487.
We are of opinion that in the transactions
out of which the claim arose there waa aa
S40 U. 8.
1915.
CROCK£R ▼. UNITED STATES.
78-81
obTiooi departure from recognized Ic^l and
moral standards. It began when the corn-
pan j employed Lorenz, upon a compensa-
tion contingent [79] upon success, to secure
the contract for furnishing the satchels, and
it persisted until its discovery by the Post-
master General led to the rescission of the
contract. Because of their baneful tend-
ency as here illustrated, agreements like
that under which Lorenz was employed are
deemed inconsistent with sound morals and
publie policy, and therefore invalid. Deal-
ing with su<^ an agreement this court said
in Providence Tool Co. v. Norris, 2 Wall.
45, 54, 55, 17 L. ed. 868, 870, 871: ''AU
ocmtracts for supplies should be made with
those, and with those only, who will execute
them most faithfully, and at the least ex-
pense to the government. Considerations
as to the most efficient and economical mode
of meeting the public wants should alone
control, in this respect, the action of every
department of the government. No other
consideration can lawfully enter into the
transaction, so far sa the government is
concerned. Such is the rule of publie pol-
icy; and whatever tends to introduce any
other elements into the transaction is
against public policy. That agreements like
the one under consideration have this tend-
ency is manifest They tend to introduce
persona] solicitation and personal influence
sa elements in the procurement of contracts;
and thus directly lead to inefficiency in the
public service, and to unnecessary expendi-
tures of the public funds. . . • Agree-
ments for compensation contingent upon
success suggest the use of sinister and cor-
rupt means for the accomplishment of the
end desired. The law meets the suggestion
of evil, and strikes down the contract from
its inception. There is no real difference in
principle between agreements to procure
favors from legislative bodies, and agree-
ments to procure favors in the shape of con-
tracts from the heads of departments. The
introduction of improper elements to con-
trol the action of both is the direct and
inevitable result of all such arrangements."
Further recognition of this rule is found in
Marshall v. Baltimore & 0. R. Co. 16 How.
314, 334, 335, 14 L. ed. 953, 961, 962; [80]
Trist V. Oiild (Busker ▼. Child) 21 WaU.
441, 22 L. ed. 623; Meguire v. Corwine, 101
U. S. 108, 25 L. ed. 899; Oscanyan v. Win-
chester Repeating Arms Co. 108 U. S. 261,
273, 26 L. ed. 539, 544; Sage v. Hampe, 235
U. 8. 99, 105, 59 L. ed. 147, 150, 85 Sup. a.
Hep. 94.
The secret arrangement whereby Maehen
was to share in the profits wsa most repre-
hensible. Its natural effect, as also its
purpose, was to secure for the company an
inadmissible advantage. The satchels were
•0 Jj. ed.
wanted for the free delivery service, and
Machen's relation to that service made it
probable, if not certain, that his advice
respecting the reasonableness of the bid,
the number of satchels required from time
to time, and the company's performance of
the contract, would be sought and given
consideration by his superiors in the Post-
office Department. The advertisement for
bids, the postal regulations (1002 ed. §§ 17
and 70), and the findings leave no doubt
that he was charged with important duties
of that character. Public policy and sound
morals forbade that he should have any per-
sonal interest in the bid or contract lest
he might be tempted to advance that in-
terest at the expense of the government.
Under the secret arrangement, which was
made before the bid was submitted, he had
such an interest and therefore was in a
position where the hope of personal gain
was likely to exercise a predominant in-
fluence and prevent a faithful discharge of
his public duties, as in fact it did. Re-
ferring to this arrangement, this court said
in Crawford v. United States, 212 U. S. 183,
192, 53 L. ed. 465, 469, 29 Sup. Ct. Rep.
260, 15 Ann. Cas. 392: "Its almost neces-
sary result, if carried out, would be to de-
fraud the United States. The fraud might
be perpetrated by getting the contract at a
higher price than otherwise would have
been obtained, or, if already obtained, then
the United States might be defrauded by
the general superintendent [Maehen] ac-
cepting improper satchels, not made of the
materials or in the manner specified in the
contract, or by his requiring the delivery
of more satchels than were sufficient for the
wants of the Department. • • • Such a
corrupt agreement, if [81] carried out,
would naturally, if not necessarily, result in
defrauding the United States by causing it
to pay more for satchels than was neces-
sary, or for more satchels, or possibly in-
ferior ones, than it otherwise would, but for
the corrupt agreement set forth."
Of course, the secret arrangement with
Maehen operated to vitiate the company's
contract, and justified the Postmaster Gen-
eral in rescinding it on discovering the
fraud. Warden ▼. Union P. R. Co. 103 U.
8. 651, 658, 26 L. ed. 509, 511, 7 Mor. Min.
Rep. 144; Thomas v. Brown ville. Ft. K. ft
P. R. Co. 109 U. S. 522, 524, 27 L. ed. 1018,
1019, S Sup. Ct Rep. 815; McGourkey v.
Toledo ft O. C. R. Co. 146 U. S. 536, 552,
566, 86 L. ed. 1079, 1085, 1090, 13 Sup. a.
Rep. 170; Smith ▼. Sorby, L. R. 8 Q. B. Div.
552, note; Harrington t. Victoria Graving
Dock Co. L. R. 8 <i. B. Div. 549, 47 L. J.
Q. B. N. S. 594, 89 L. T. N. S. 120, 26
Week. Rep. 740; 2 Dill. Mun. Ck>rp. 5th ed.
§ 778. And this is so, even though the com-
ftS7
81-88
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm»
pany was without actual knowledge of the
corrupt arrangement. It was made by
Lorenz and Crawford while endeavoring to
secure the contract for the company and
was a means to that end. They were the
company's agents and were securing the
contract at its request. It accepted the
fruits of their efforts and thereby sanc-
tioned what they did, and made their knowl-
edge its own. Krumm v. Beach, 96 N. Y.
308, 404; Fairchild v. McMahon, 139 N.
Y. 290, 36 Am. St. Rep. 701, 34 N. E. 779;
White V. Sawyer, 16 Gray, 686, 689; First
Nat. Bank v. New Milford, 36 Conn. 93,
101; Barwick ▼. English Joint Stock Bank,
L. R. 2 Exch. 269, 265, 36- L. J. Exch. N.
S. 147, 16 L. T. N. S. 461, 16 Week. Rep.
877, 12 Eng. Rul. Cas. 298; Mackay v.
Commercial Bank, L. R. 6 P. C. 394, 410, et
seq. 43 L. J. P. C. N. S. 31, 30 L. T. N. S.
180, 22 Week. Rep. 473; Leake, Contr. 6th
ed. 265. 335, 336; Wald's Pollock, Contr.
3d ed. 392.
It results that no recovery could be had
upon the contract with the Postmaster Gen-
eral, because it was tainted with fraud and
rescinded by him on that ground. But this
was not an obstacle to a recovery upon a
quantum valebat. Clarke v. United States,
95 U. S. 539, 643, 24 L. ed. 618, 519; War-
dell V. Union P. R. Co. 103 U. S. 659, 26
L. ed. 612, 7 Mor. Min. Rep. 144; Thomas
V. Brownville, Ft. K. & P. R. Co. 109 U. S.
525, 27 L. ed. 1010, 3 Sup. Ct. Rep. 315.
Whether requisite proof was made of the
value of the satchels as furnished is another
[82] question. The court of claims made
no finding of their value, and, in explana-
tion of this, said that there was "a com-
plete absence" of evidence upon the sub-
ject. The burden of proof was with the
claimant, and, if he failed to carry it, he
is not in a position to complain, — especially
as it appears that the government season-
ably objected that he had not proved the
value. He insists, however, that the find-
ings show the price at which the govern
ment contracted to take the satchels with
the shoulder straps, and also what it cost
the government to supply the straps, and
that the difference should be regarded, in
the absence of other evidence, as represent-
ing the value of the satchels as furnished.
— ^tliat is, without the straps. The insist-
ence proceeds upon the theory that the con-
tract price was in the nature of an admis-
sion by the government of the value of the
satchels with the straps. However this
might be in other circumstances, it is whol-
ly inadmissible here, for the fraud with
which the contract was tainted completely
discredited the contract price, and pre-
vented it from being treated as an admis-
sion of the value by the government. It
588
therefore was incumbent upon the claimant
to show the value by other evidence, and,
as this was not done, no recovery could be
had upon a quantum valebat.
Judgment affirmed.
Mr. Justice McKenna and Mr. Justice
Holmes dissent, being of opinion that the
case should be remanded for findings on the
question of value.
Mr. Justice McHeynolds took no part in
the consideration or decision of this case.
[83] JUAN SURIS CARDONA, Appt,
V.
FRANCISCO P. QUliTONES and £1 Banco
de Puerto Rico.
(See S. C. Reporter's ed. 83-90.)
Appeal « time for taking — when
deemed begun.
1. An appeal to the Federal Supreme
Court from the supreme court of Porto Rico,
which was prayed within the statutory time,
will not be dismissed because it was not
allowed by the court within that time.
[For other cases, see Appeal and Error, 2591-
2603, in Digest Sup. Ct. 1V08.J
Appeal ^ from Porto Kloo supreme
court ^ review of facts.
2. The facts cannot be reviewed by the
Federal Supreme Court on an appeal from
the Porto Rico supreme court where the
record does not contain the oral and docu-
mentary evidence upon which the court
acted except so far as the same may be
shown by the opinion of the court below,
or may be contained in a statement of facts
prepared by that court for the purposes of
the appeal.
[For other cases, see Appeal and Error, VIII.
1, 8, in Digest Sap. Ct. 1908.]
Appeal « from Porto Rico supreme
court « following decision below «
local law.
3. The action of the supreme court of
Porto Rico as to matters concerning purely
local law, such as the form of the pleadings,
the allowance of a default judgment as to
issues presented by certain amendments of
the pleadings, the admissibility of docu-
mentary evidence, etc., will not be dis-
turbed by the Federal Supreme Court on
appeal unless the latter court is convinced
that such action was clearly erroneous.
[For other cases, see Appeal and Error, VIII.
m, in Digest Sap. Ct. 1908.]
Note.— On appellate jurisdiction of Fed-
eral Supreme Court over Porto Rican courts
— see note to Garrozi v. Dastas, 51 L. ed.
U. S. 369,
On the practice and procedure governing
the transfer of causes to the Federal Su-
preme Court on writ of error or appeal —
see note to Wedding v. Meyler, 66 L.RJL
833.
S40 V. 8.
iyio.
GARDOIJA ▼. QUiSiONES.
83-86
Appeal — scope of rerlew — eonten-
tions which dispute findings of fact.
4. Legal propositions which ignore or
dispnte the findings of fact on which the
eonclnsion of the court below was based
cannot be successfully urffed in the Federal
Supreme Court as grounds for the reversal
on appeal of a decree of the Porto Rico su-
Sreme court in a case in which the record
I not in such shape as to permit a review
of the facts.
(For other cases, see Appeal and Error, VIII.
e. in Digest Sup. Ct. 1908.]
[No. 185.]
Submitted January 18, 1916. Decided Feb-
ruary 21, 1918.
APPEAL from the Supreme Court of
Porto Rico to review a decree which
affirmed a decree of the District Court of
Mayaguez in favor of defendant in an ac-
tion in the nature of ejectment. Affirmed.
See same case below, 17 P. R. R. 614.
The facts are stated in the opinion.
Mr. Jos6 R. F. Savage submitted the
cause for appellant. Mr. Fernando Vftzquez
was on the brief.
Mr. Francis H. Dexter submitted the
eause for appellees.
Mr. Chief Justice White delivered the
opinion of the court:
Both courts below rejected the claim of
title made by the appellant to a tract of
land of 40 cuerdas. As the [84] appeal
was prayed within the statutory time, the
mere date of its allowance by the court is
not controlling, and the motion to dismiss
which proceeds upon a contrary assumption
is therefore without foundation and is over-
ruled. United SUtes v. Vigil, 10 Wall. 423,
427, 19 L. ed. 954, 055.
Obviously, upon the theory that our
power to review was controlled by the rule
obtaining as to territorial courts of the
United States, this record, as was the case
in Elzaburu v. Chaves, 239 U. S. 283, ante,
290, 36 Sup. Ct. Rep. 47, contains a state-
ment of facts prepared by the lower court
for the purposes of this appeal. As there
is an entire absence from the record of the
oral and documentary evidence upon which
the court below acted, except so far as the
same may be shown by the opinion of the
oourt, or may be contained in the state-
ment of facts, it follows that the record
does not enable us to review the facts, and
we proceed to dispose of the legal proposi-
tions urged for reversal in the light of the
facts as stated and as elucidated in the
opinion of the court. Abbreviating and some
what changing the order in which they are
stated below, we recapitulate the essential
facts as follows:
40 li. ed.
Two brothers, Jos4 Salvador Suris and
Ram5n Maria Suris, having acquired by
various acts of purchase 70 cuerdas of land
in the ward of Sabana Eneas of San Ger-
man, in November, 1870, executed a mort-
gage on 40 cuerdas of the land thus ac-
quired, being the 40 cuerdas here in contro-
versy, in favor of the Charity Hospital at
San GermAn. In 1879 the Charity Hospital
conunenced proceedings to foreclose this
mortgage, but such proceedings were stayed
imtil 1882 in consequence of an appeal
taken to the Territorial Audiencia. After
the cessation of the stay, in that year an
attachment against 100 cuerdas of land be-
longing to the two brothers was levied and
the property thus attached was placed (se-
questered) in the hands of one Pablo Maria
StefanL On the same day, [85] February 9,
1882, by a contract under private signature
the two Suris brothers sold to Stefani the
40 cuerdas here in controversy which had
been mortgaged to the hospital, the pur-
chaser obligating himself to pay the hospi-
tal debt, and, if a surplus remained, to
pay certain attorney's fees which had been
incurred. The agreement also contained a
conveyance to Stefani of another and dis-
tinct tract of land for anothec and distinct
price. This agreement under private signa-
ture was never inscribed upon the public
records. A few days after . it was made,
and presumably before the contract of sale
had been carried out, the Suris brothers
executed before a notary an act of consoli-
dation of the various properties which they
had acquired, which they described as "Per-
seguida," and this act was put upon the
public records. Under the private agree-
ment Stefani, the purchaser, went into pos-
session and discharged the obligations of
the private contract of sale.
In 1888 a commercial firm, Schulze &
Company, as creditors of the Succession of
Stefani, who had in the meanwhile died«
brought suit against his Succession to en-
force its debt, and for the purpose of get-
ting upon the records the possessory title
of Stefani to enable an attachment to be
levied, instituted and carried out the neces-
sary proceedings. When the order for
record was obtained, the property was levied
upon and sold at a judicial sale and was
bought in by Schulze & Company. After
thus becoming the purchasers of the land
in controversy, the firm in 1899 executed
before a notary and put of record a deed
consolidating into a plantation called
'Imisa" various tracts of land containing
102.30 cuerdas, the deed reciting that one
of the parcels of land included in the plan-
tation was a tract of 40 cuerdas called
I "Hospital" or 'Terseguida." Ram6n- Maria
* Suris, one of the original vendors, died in
5S9
8&-88
SUPREME COURT OF THB UNITED STATES.
Oct. Tkbic,
the meanwhile, and in 1900 hie heirs put
upon record a declaratory deed asserting
their undivided ownership [86] as the suc-
cessors of their father to a tract of 40
cuerdaa, known as "Perseguida."
The Bank of Porto Rico, as the holder
of a mortgage put upon the Imisa planta-
tion by Schulze & Company, foreclosed the
same and bought in the property in August,
1005, and in November of the following year
(1906) the bank sold the plantation thus
acquired to Francisco P. Quifiones, the de-
fendant, his title as purchaser having been
inscribed upon the public records.
In 1907 Jos6 Salvador Suris, one of the
original vendors under the act of private
sale, as well as the widow and heirs of
his deceased brother, Ram6n Maria Suris,
the other original vendor, each executed
deeds of sale of an undivided half interest
in the property called "Perseguida" to Juan
Suris Oardona, a son of Jos6, and these acts
of sale were put upon the public registry.
A few days later the parties vendor to
the acts above stated executed another no-
tarial act in which they declared that the
property had not been in their possession,
but in the possession of the defendant
Quifiones and the Bank of Porto Rico, and
therefore they had not collected revenues,
and they ceded to the purchaser the right
to collect such revenues. Under the owner-
ship alleged to result from these acts this
suit was commenced by Cardona to recover
the property.
The findings in express terms establish
that ''from 1882 the property sued for
ceased to belong to the brothers Jos^ Sal-
vador and Ram6n Marfa Suris by Reason
of the sale set out in the private contract,
and since then it has been in the quiet,
peaceful, and public possession, as owners,
in good faith and by title of purchase of
Stefani, later of Schulze & Company, then
of the Banco de Puerto Rico, and finally
of QuiSlones, residents of Porto Rico/' As
to the purchase by Cardona, the plaintifT,
from his father and the representatives of
hit deceased uncle, the findings expressly
state: "When the plaintiff purchased the
property sought to be recovered he knew
the [87] history of it as here related and
knew that his father and cousins had not
possessed the same since the year 1882.'
And the conclusion reached as to the ulti-
mate facta on this subject is thus expressed
in the opinion of the court below : "In view
of the manner in which the facts have oc-
curred, we have no doubt whatever that the
deeds of sale of the property in question
executed in favor of Juan Suris Cardona
have had no other purpose than that he
should institute this suit to avail himself
of and assert his rights aa a third party
540
and thus save his father and the heirs of
his uncle from the consequences of the pri-
vate document executed in favor of Stefani;
and we are likewise convinced that the
plaintiff knew the history of the said prop-
erty before he made his purchase, and that
his father and his cousins had not pos-
sessed the same since 1882, as stated in th*
complaint."
Applying the law to the facts stated,
the court concluded: (a) "Under such con-
ditions the plaintiff cannot claim the bene-
fits which the law grants to third parties,
because nobody can be a third party who,
although he had not intervened in the first
contract of sale, purchased, however, know-
ing that his vendors were not the owners
and had no possession of the property sold.
The same doctrine has already been estab-
lished by this court in the ease of Voight
V. Ribas, 1 Decisiones de Puerto Rico, 60,
decided May 10, 1900." [17 P. R. R. 642.]
(b) From the possession which, as we have
seen, the court found to have existed from
1882 in Stefani and his successors, Schulze
& Company, the Bank of Porto Rico and
Quifiones, and the various titles which were
put upon the record in the transfers aa
made, especially the inclusion of the prop-
erty in the plantation "Imisa," it was held
that between the parties there was a
sufficient basis laid for a just title and pos-
session as owner in good faith, adequate
to sustain a prescription of ten yeara,
which was upheld.
The contentions for reversal are numer-
ous and are [88] greatly multiplied by
their reiteration in somewhat changed form
of statement under the very many proposi-
tions and subdivisions of propositions em*
braced in the elaborate printed argument,
but we dispose of them as follows:
First. Giving effect to the settled doc-
trine by which we do not disturb, but, on
the contrary, uphold, the action of the
court below as to matters concerning pure-
ly local law except upon conviction on our
part of ' clear error committed (Nadal v.
May, 233 U. S. 447, 464, 68 L. ed. 1040,
1041, 34 Sup. Ct. Rep. 611; Villanueva ▼.
Villanueva, 239 U. S. 293, 299, ante, 293, 296,
36 Sup. Ct. Rep. 109), we at once dismiss
from view the various contentions concern-
ing the form of the pleadings, the question
whether a default should not have been
allowed as to the issues presented by cer-
tain amendments of the pleadings, the ad-
missibility as between the parties or their
successors or assigns of the act under
private signature, either because of the
asserted ambiguity of its terms or the in-
adequacy of the number of witnesses to its
execution, and many other subjects of a
S40 U. S*
1915.
UNITED STATES ▼. ANDREWS.
88-90
kindred nature too numerout to be reeapttu-
lated.
Seeond. We aleo at once put out of Tiew
the yariouB contentiont iterated and re-
iterated under every proposition which,
while a^arently accepting the findings,
virtually dispute them, such as the con-
tentions that the private instrument did
not amount to a sale to Stefani because
certain alleged bankruptcy proceedings re*
fsnred to in the opinion of the court ex-
cluded the right of the Suris brothers at
that time to sell the property, that no
possession followed in Stefani from the
making of the private sale because that in-
strument waa one not importing possession
in and of itself, without proof of manual
tradition, and also numerous other conten-
tions of a kindred character concerning the
judicial proceedings taken by Schulze &
Company to acquire title and the deed of
consolidation by them recorded which we
further do not stop to specifically point out.
[80] With these things disposed of, the
remaining contentions come to this: That
the decision of the court below was plainly
violative of the local law known as the
mortgage law, and the general provisions
of the Code concerning the necessity of the
public record of title to real estate and the
protection afforded by the same, and that,
moreover, an obvious disregard of the mort-
gage law and the provisions of the Code
resulted from giving to the sale under
private signature and the proceedings and
subsequent transmutations of title based
upon it the character of a just title
suiBcient on its face to be the basis of the
ten years' prescription under the Code,
which the court below upheld. But, when
stripped of the confusion in the mode in
which they are stated, and reduced to their
ultimate significance, all the contentions on
these subjects are exclusively based upon
the assumption that the plaintiff below
was entitled to the protection afforded by
the mortgage law to third persons and to
the assumed inadequacy of the title relied
upon by the defendant to sustain the ten
years' prescription as against a third per-
son. The propositions, therefore, in their
essence, when correctly understood, but
ignore or dispute the findings of the court
below upon which its conclusion was ex-
pressly based, that the plaintiff was not a
third person, either because he was merely
a person interposed as a means of enabling
him apparently to assert in his own name,
for the benefit of his authors in title, rights
which they were incapable themselves of
asserting, indeed, could not, without fraud
OB their part, enjoy, or because, if not in
a strict sense a person interposed, he was
Bevertheless not a third person within the
•9 li. ed.
intendment of the local law, because he
acquired with full knowledge of the want
of title in his vendors and of the absence
of possession on their part, and also with
knowledge not only of an outstanding title,
but of possession aa owner which was then
and had been enjoyed by the defendant and
his predecessors in right. Thus to [OO]
bring the propositions to the true basis
upon which they rest serves at once, with-
out more, to establish their absolute want
of foundation, and to demonstrate the cor-
rectness of the judgment below and the
duty to affirm it.
Affirmed.
UNITED STATES, Appt.,
V.
LINCOLN C. ANDREWS.
(See S. C. Reporter's ed. 90-96.)
Army — |^y of oflloer — absence on
leave.
1. The right of an Army offioer to half
pay while on leave of absence, which is ex-
pressly conferred by U. S. Rev. Stat, f 1265,
Comp. Stat. 1913, f 2104, cannot be defeated
by the action of the military authorities in
affixing a condition to the grant of a leave
of absence, that the leave shall be without
pay.
[For other cases, see Arroj and Navy, VI.
b, m Digest Sup. Ct. 1908.]
Army — pay of officer — absence on
leave — estoppel.
2. An Army officer is not bound by his
acceptance of leave of absence without pro-
test against the affixing of the condition
that the leave shall be without pay, since
such condition contravenes the express
terms of U. S. Rev. Stat, f 1265, Comp.
SUt. 1913, § 2104, by which he is entitled
to half pay during the leave.
[For otber cases, see Armj and Navy, TI.
b; Estoppel, III. b, 7, in Digest Sup. Ct.
1908.)
Army « pay of officer — absence on
leave.
8. The absence of an Armv officer based
on leave to which was affixed a condition,
contrary to U. S. Rev. Stat. § 1265, Comp.
Stat. 1913, § 2104, that the leave shall be
without pay, cannot be treated, because of
the illegality of such condition, as an ab<*
sence without leave, for which, under the
statute, no pay could be allowed.
[For other cases, see Army snd Navy, VI.
b, la Digest Sup. Ct 1908.]
[No. 193.]
Argued January 21 and 24, 1916. Decided
February 21, 1916.
APPEAL from the Court of Claims to re-
view an award of half pay to an Army
offioer while absent on leave. Affirmed.
541
92
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tebic»
See Mme caie below, 49 Ct. CI. 801.
The facta are stated in the opinion.
Assistant Attorney General Tkompaon
argued the cause and filed a brief for ap-
pellant:
In respect to administrative matters in
the Army, where it is necessary to exercise
judgment or discretion, unless there is a
clear abuse and a patent contravention of
a statute, this court will not interfere.
Reaves v. Ainsworth, 219 U. S. 296, 304,
55 L. ed. 225, 228, 31 Sup. Ct. Rep. 230;
United States v. Ross, 230 U. S. 530, ante,
422, 86 Sup. Ct. Rep. 198.
Moreover, the President's power to put
appellee on leave without pay can hardly
be questioned; for, although U. S. Rev.
SUt. I 1265, Comp. SUt 1913, § 1856, does
not specifically grant him this power, it
does not deny him such power.
Shurtleff v. United States, 189 U. S. 311-
317, 47 L. ed. 828-832, 23 Sup. Ct Rep.
535.
The President certainly haa the right to
suspend an officer temporarily where the
exigencies or good of the service demand
it, or to furlough him for a definite period
for the same reason, or to remove him
entirely from office.
Ex parte Hennen, 18 Pet. 259, 10 L. ed
162; Blake ▼. United States, 103 U. S. 227,
286, 26 L. ed. 462, 465; Mullan v. United
States, 140 U. 8. 240, 35 L. ed. 489, 11 Sup
Ct. Rep. 788; Parson v. United SUtcs, 167
U. S. 324, 42 L. ed. 185, 17 Sup. Ot. Rep.
880; Shurtleff v. United States, 189 U. S.
317, 47 L. ed. 832, 23 Sup. Ct. Rep. 535;
Hartigan v. United SUtes, 196 U. S. 169,
49 L. ed. 434, 25 Sup. Ct. Rep. 204 ; United
States V. Murray, 100 U. S. 536, 537, 25 L.
ed. 756.
Mr. Oeorire A. King argued the cause,
and, with Messrs. William B. King and
William E. Harvey, filed a brief for ap-
pellee:
Tlie judgment in the claimant's favor was
clearly the only one possible under the
provisions of the Revised Statutes.
United States v. Williamson, 28 Wall.
411, 23 L. ed. 89; United States v. Temple,
105 U. S. 97, 26 L. ed. 967 ; United States
T. Graham, 110 U. S. 219, 28 L. ed. 126,
8 Sup. Ct. Rep. 682; United States v. Wil-
son, 144 U. S. 24, 36 L. ed. 832, 12 Sup. Ct.
Rep. 539; United States t. Shields, 153 U.
S. 88, 91, 38 L. ed. 645, 646, 14 Sup. Ct
Rep. 785; Glavey v. United States, 182 U.
S. 595, 45 L. ed. 1247, 21 Sup. Ct. Rep. 891 ;
Goldsborough ▼. United States, Taney, 80,
Fed. Caa. No. 6519; Adams ▼. United States,
20 Ct CL 117; 15 Ops. Atty. Gen. 442, 443;
Rush V. United States, 85 Ct OL 233;
54S
Ohio Nat. Bank t. Hopkins, 8 App. D. C*
146; Willey's Case, 11 Comp. Dec 570.
The compensation of a government official
is by law attached to the offiee, and cannot
be changed by executive officera.
C'nverae v. United Statea, 21 How. 463,
16 L. ed. 192; Dyer t. United Statea, 20
Ct a. 166; Geddea t. United SUtes, 88
Ct. CI. 428; Miller v. United SUtea, lOS
Fed. 413; Sherlock t. United SUtea, 48 Ct
a. 161.
An officer la entitled to hia aalary, not
upon any theory of contract or quaai con-
tract, not because he performs certain work
or ataya at a certain place, but becauae he
holda the office.
United Statea T. Williamaon, 28 Wall.
411, 28 L. ed. 89; United Statea v. Wicker-
sham, 201 U. S. 390, 50 L. ed. 798, 26 Sup.
Ct. Rep. 469; Allstaedt v. United States, 3
Ct. a. 284; Ware v. United SUtes. 7 Ct
CI. 565; Sleigh V. United States, 9 Ct. CI.
369; Reinhard v. United States, 10 Ct
CI. 282; Fraser v. United SUtcs, 16 Ct
CI. 507; Palmer v. United SUtes, 17 Ct
CI. 230; Lellmann v. United SUtes. 37 Ct. CI.
128; Corcoran v. United SUtes. 38 Ct. CI.
341; Steele v. United States. 40 Ct CI. 403;
Stilling T. United SUtes, 41 Ot. CI. 61;
Collins V. United SUtes. 45 Ct. CI. 63;
Beuhring v. United SUtes. 45 Ct. CI. 404;
People ex rel. Satterlee v. Board of Police,
75 N. Y. 38; Kehn v. SUte. 93 N. Y. 291;
Fitzsimmons v. Brooklyn. 102 N. Y. 536, 65
Am. Rep. 835. 7 N. E. 787; 13 Ops. Atty.
Gen. 103; 15 Ops. Atty. Gen. 175; Willey's
Case, 11 Comp. Dec. 570; Clancy's Case. 20
Comp. Dec. 741.
There can be no valid waiver of official
compensation fixed by sUtute.
Montague v. Massey. 76 Va. 813; Purdy
V. Independence, 75 Iowa, 356. 39 N. W.
641; Gallaher v. Lincoln. 63 Neb. 339. 88
N. W. 505; Galpin ▼. Chicago, 269 111. 27,
109 N. E. 713.
Mr. Chief Justice White delivered the
opinion of the court:
The United SUtes appeals from a judg-
ment awarding the appellee $325. found to
be due him under Revised SUtutes. f 1265,
Comp. SUt 1918. § 2104, for half pay as a
capUin of cavalry of fifteen years' service
for a period of three months from August
1 to October 81, 1907, during which time it
was found he was abaent on leave. The
court aUted the facte aa followa:
The claimant, having accepted employ-
ment with a commercial company, was
granted aix montha* leave of abeence, to
Uke effect January 1, 1007, by f 2, Special
Ordera, No. 805, War Department, dated
December 28, 1906, which leave waa extend-
ed for four montha, to Uke effect July 1»
S40 U. 8.
10 J 5.
UNITED STATES v. ANDREWS.
92-06
1007, and to expire October 31, 1007, by f
20, Special Orders, War Department, dated
June 17, 1007.
'^hile the claimant waa enjoying the ex-
tension of hia leave of abaence, the Adju-
tant General of the United [M] SUtea
Army, on July 31, 1007, aent him the fol-
lowing telegram:
" 'By direction of the President, although
your leave ia not revoked, your abaence
from this date will be without pay.'
'Oils leave without pay from August 1,
1007, to October 31, 1007, was not request-
ed by the claimant, but he did not file a
protest against such action nor relinquish
his leave and return to duty.
'^he claimant was absent from duty from
January 1, 1007, to October 31, 1907. From
August 1, 1007, to October 31, 1007, he re-
ceived no pay. His half pay for said period
was $325." [40 Ct. CI. 301.]
It is apparent from the authorltiea oited
in the per curiam opinion of the court be-
low (Glavey v. United States, 182 U. S. 505,
45 L. ed. 1247, 21 Sup. a. Rep. 801; Whit-
ing V. United States, 35 Ct. CI. 201, 301;
Dyer v. United States, 20 a. Q. 166) that
the allowed recovery waa based upon the
conclusion that the half pay during the
leave of absence was expressly sanctioned
by law (Rev. Stat. § 1265), and hence any
condition conflicting with such statutory
right was void, and that the officer being
entitled to rely upon the statute, no estop-
pel against him could be implied because of
his having acted upon the leave, albeit it
contained a condition in conflict with the
rights conferred by the statute. To test
the merits of these conclusions will dispose
of the entire case, since all the contentions
of the government are embraced in three
propositions: 1, the aaserted existence of
authority to grant the leave, conditioned on
its being without pay, notwithstanding the
statute; 2, even if such power did not exist,
the binding effect of the condition upon the
officer who accepted the leave which was
subject to it; and 3, in any event, the im-
possibility of separating the grant of leave
from the condition upon which the leave
was based, thus, under the hypothesis of il-
legality, rendering the grant void, and caus-
ing the absence [94] from duty which was
enjoyed under the apparent sanction of the
grant to be an absence without leave, for
which, under the statute, no right to -pay
exiated. It is manifest that these conten-
tions assume, aa did the conclusions of the
court below, that the telegram stated in the
findings operated to grant a new leave for
the three months therein specified, subject
to the condition that it should be without
pay, and in separately testing the proposi-
60 h, ed.
tiona we shall treat the telegraphic order
aa having that significance.
1. Aa in view of the plain text of Revised
Statutea, f 1265, there is no room for dis-
puting that the right to half pay during the
period of the leave in question waa conferred
by the statute, there is and can be no dispute
that, tested by the statute alone, the court
below did not err in allowing the claim for
auch half pay. But the contention is that
error was committed because the conferring
of the right to pay by the statute was not
exclusive, and therefore did not deprive of
the authority aa an incident to the power
to grant the leave to affix the condition that
the leave should be without pay notwith-
standing the statute. It is unnecessary,
however, to stop to point out the unsound-
ness of this proposition, since the error upon
which it rests is authoritatively demonstrat-
ed by previoua decisions which substantially
leave the proposition not open for discus*
sion. United States v. Williamson, 23 Wall
411, 416, 23 L. ed. 80, 00; United SUtes v.
Wilson, 144 U. S. 24, 36 L. ed. 332, 12 Sup.
Ct. Rep. 530; United States v. Shields, 153
U. S. 88, 01, 38 L. ed. 645, 646, 14 Sup.
Ct. Rep. 735; Glavey v. United States, 182
U. S. 505, 45 L. ed. 1247, 21 Sup. Ct Rep.
801. Nor, in contemplation of the caaea
which we have just cited, and additionally,
in view of the provision of Revised Stat-
utes, i 1220, Comp. Stat. 1013, § 2001, that
"no officer in the military or naval service
shall in time of peace be dismissed from
service except upon and in pursuance of the
sentence of a court-martial to that effect, or
in commutation thereof," is there any neces-
sity to point out the want of application of
the authorities dealing with the power to
dismiss civil [95] officers which are cited as
a basis for the proposition that a like power
applies to Army officers, and therefore, aa
there waa authority to dismiss, the lesser
right of granting the leave without pay
necessarily obtained. So, also, it is un-
neceesary to enter into any detailed analysis
of the decision in Hartigan v. United States,
106 U. S. 160, 49 L. ed. 434, 25 Sup. Ct.
Rep. 204, since that case concerned the
power to remove a cadet at the Military
Academy, and the recognition of the right
to exercise that authority was in express
terms baaed upon the view that although
in a sense a part of the Army, cadets at
the Military Academy were not officers
within the intendment of Revised Statutes,
S 1220, and indeed the opinion in the Harti-
gan Caae in aubstance refutes the extreme
contention as to power which ia now sought
to be sustained. -
2. The contention as to the estoppel re-
sulting from the failure to protest against
the condition affixed to the leave, and the
54S
96-97
SUPREME CX)URT OF THE UNITED STATES
Ooi. IkBM,
binding force of such condition, even if il-
legal, resulting from an acceptance of the
leave containing it, it by necessary implica-
tion foreclosed by all the cases previously
cited, and in fact was in express terms con-
sidered and held to be without merit in
Glavey v. United States, 182 U. S. 595, 45
L. ed. 1247, 21 Sup. Ct. Rep. 891. Because
that case concerned an illegal condition at-
tached to the performance of the duties of
an office, and this involves an illegal con-
dition attached to a grant of leave, affords
no ground for distinction between that case
and this. The basis of the ruling in the
Glavey Case was the right of the official to
rely upon the provisions of the statute, and
the resulting want of power to apply a
principle of estoppel. And as here there
was express statutory authority for the half
pay during the leave, the reason in the Gla-
vey Case is controlling, and the distinction
relied upon involves no difference justifying
taking this case out of the principle settled
in the Glavey case. As the statute con-
ferred the right to the half pay during the
leave, it necessarily follows that the ex-
clusion of executive authority over that sub-
ject which resulted extended to [06] and
was coterminous with the power which the
statute exerted.
3. The contention that even if the con-
dition which was attached to the leave be
treated .is illegal, and the acceptance of the
leave containing it be decided not to have
operated an estoppel, nevertheleas, under
such circumstances, the leave mudt be treat-
ed as void, and the absence based on it be
held to have been one without leave, for
which no pay could be allowed under the
statute, is self -contradictory, and besides, in
its essence, must rest upon the assumption
that there was power to affix the condition,
the terms of the statute to the contrary
notwithstanding. The contention, therefore,
is in substance foreclosed by Glavey v.
United States, supra, and the decided cases
to which we have previously referred. How
completely this is the case will be demon-
strated by observing that the decision in
the Glavey Case wu expressly based on the
ground that public policy 'forbade giving
^ny effect whatever to an attempt to de-
prive by unauthorized agreement made with
an official, express or implied, under the
guise of a condition or otherwise, of the
right to the payigiven by the statute. And,
of course, the contention now made that
the absence with leave, which carried pay
under the statute, was converted into an
absence without leave, carrying no pay, in
consequence of an unauthorized attempt to
subject the granted leave to an illegal pro-
vision that it should be without pay, is ab- ,
solutely in conflict with the previous cases
544
and the rule of public policy upon which
they were based. In fact, the contention
but in a changed form asserta the applica-
tion of estoppel, which, at we have seen,
was expressly adversely disposed of in the
previous cases.
Affirmed*
Mr. Justice McReynoldt took no part in
the consideration and dedtion of this
[07] FRAKOIS SHERWOOD MALE, at
Trustee for Gilbert W. Ohapin, A[^it.,
V.
ATCHISON, TOPEKA, ft SANTA FE
RAILWAY COMPANY.
(See S. C. Reporter's ed. 97-102.)
Appeal « from district oourt — moot
controversy.
1. An appeal from a Federal district
court to the Supreme Court, presenting tti%
sole question of the jurisdiction below, wiU
not be dismissed on the ground tiiat since
the dismissal of the bill by the court be-
low for want of jurisdiction the controversy
between the parties has become a moot one
by reason of a judgment of a state court
dismissing, upon the merits, a suit between
the same parties upon the tame alleged
cause of action.
[For other cases, see Appeal and Error, VII.
1, 8m. in Diffest Sup. Ct. 1908.]
Appeal « from district court « juris-
diction below.
2. Questions of lurisdiction of the Fed-
eral district court depending upon contro-
versies as to the district of residence, where
the statutory rights in that regard have not
been waived, are, when decided below, ques-
tions of Federal jurisdiction susceptible of
being brought to the Supreme Court under
the provisions of the Judicial Code, § 238,
by direct appeal.
[For other cases, see Appeal and Error, 895-
914, in Dlffest Sap. Ct. 1008.]
Federal courts « proper district for
suit « action under Federal law.
3. A suit to enforce the alleged liabil-
ity in equity of a Kansas corporation up-
on the bonds of a railway company, created
by an act of Conn-ess, involves a question
inherently Federiu in its nature, so that,
under the Judicial Code, § 51, it may not,
without the consent of the Kansas corpora-
tion, be brought in any other Federal dis-
trict than that of its residence.
[For otber cases, see Courts. 028-078, In Di-
gest Sup. Ct. 1008.]
Note. — On direct review in Federal Su-
preme Court of judgments of district or
circuit oourta— see notes to Qwin t. United
States, 46 L. ed. U. S. 741; and B. Altman
k Co. V. United SUtet, 56 L. ed. U. S. 804.
At to proper Federal district for suit— see
note to Roberta ▼. Lewis, 86 h> ed. U. S. 579.
S40 U. S.
1915.
MALE y. ATCHISON, T. ft S. F. R. Ca
Oa-101
[No. 220.]
Argued January 24, 1916. Decided Febru-
ary 21, 1916.
APPEAL from the District Court of the
United SUtes for the Southern Dis-
trict of New York to review a decree which
dismissed, for want of jurisdiction, the bill
in a suit to enforce the liability in equity
of a Kansas corporation upon the bonds of
a railway company incorporated luder an
act of Congress. Affirmed.
The facts are stated in the opinion.
Mr. Wllliain G. Cooke argued the cause
and filed a brief for appellant.
Mr. Walker D. Hines argued the cause
and filed a brief for appellee.
Mr. Chief Justice White delivered the
opinion of the court:
On this direct appeal a reversal is sought
of a decree below which dismissed the bill
for want of jurisdiction. There is a mo-
tion to dismiss on the ground that "the
questions involved upon this appeal are
moot questions . . . [00] for the rea-
son that, subsequent to the dismissal of the
bill herein by the lower court, the appellant,
as plaintiff, instituted in the supreme court
of the state of New York, county of New
York, an action upon the same alleged
cause of action against the same defendants,
and that such action in the supreme court
of the state of New York was heard and
determined, and that a final judgment upon
the merits therein was rendered, dismissing
the complaint filed in said action as against
this appellee." But as our power to review
is limited to the question of jurisdiction
alone, and as the ground of the motion ob-
viously involves the defense of "the thing
adjudged," going to the merits, the motion
to dismiss is overruled, and we come to con-
sider the question of the jurisdiction of the
court below; that is, whether, as a Federal
court, it had power to entertain the cause.
Louisville Trust Co. v. Knott, 191 U. S. 233,
48 L. ed. 161, 24 Sup. Ct. Rep. 110; Fore
River Shipbuilding Co. v. Hagg, 219 U. S.
175, 55 L ed. 163, 31 Sup. Ct. Rep. 185;
Famigia v. Philadelphia & R. R. Co. 233 U.
8. 352, 58 L. ed. 906, 34 Sup. Ct. Rep. 501.
The bill alleged that the complainant,
Male, who sued as the trustee of Gilbert W.
Chapin, was a citizen of the state of New
York and an inhabitant and resident of the
southern district thereof. The defendants
were the Atlantic & Pacific Railroad Com-
pany, a corporation created by an act of
Congress, the Atchison, Topeka, k Santa Fe
Railroad Company^ a corporation organised
60 L. ed.
imder an act of the legislature of the terri-
tory of Kansas, the Atchison, Topeka, &
Santa Fe Railway Company, a corporation
organized under the laws of the state of
Kansas, and the Boston Safe Deposit &
Trust Company, a corporation organized
under the laws of the state of Massachu-
setts. We do not stop to summarize the
averments of the bill in order to make
clear the nature of the relief sought because
we accept as adequate for the purpose of
the question before us the statement made
on that subject in the printed argument filed
on behalf of [100] the appellant as follows:
''The relief prayed for is judgment for
$120,000 and interest upon certain income
bonds issued by the Atlantic & Pacific Rail-
road Company on the 1st day of October,
1880, and maturing October 1st, 1910, and
for an adjudication that the Atchison, To-
peka, k Santa Fe Railway Company (the
present appellee) is liable in equity for
the amount of such judgment by reason of the
matters set forth in the bill of complaint."
As further stated in the argument for the
appellant, the bill alleged that the Atlan-
tic & Pacific Railroad Company "is practi-
cally out of existence, and has not been nor
can it be, served with process," and that
the Atchison, Topeka, ft Santa Fe Railroad
Company and the Boston Safe Deposit &
Trust Company were not served with proc-
ess, and are not deemed to be necessary
parties to the cause, and may be put out
of view. The Atchison, Topeka, & Santa
Fe Railway Company, the only other de-
fendant (the appellee) was served through
one of its officers in the city of New York.
It thereupon appeared specially and "for the
single and sole purpose of making a motion
to set aside the service of the subpoena and
dismiss the bill of complaint as to it for
want of jurisdiction over the person of said
defendant." And subsequently it moved to
dismiss on two grounds: 1. That as its
residence was in Kansas, it could not be
sued outside of the district of which it was
a resident without its consent; and that as
Male, the complainant, was only colorably
joined as a complainant, the real party be-
ing Chapin, for whom Male assumed to act
as trustee, and who was a citizen and resi-
dent of Connecticut, there was no jurisdic-
tion over the cause, as the suit was brouf^ht
in the district of the residence of neither
of the real parties; and, 2, tjiat as the com-
plainant sought to enforce a liability on the
bonds of the Atlantic & Pacific Railroad
Company, a corporation created by an act
of Congress, involving an inherently Federal
question, there was no jurisdiction in the
court over the [101] defendant, because,
Under such circumstances, it was entitled to
be sued in the court of the district of its
35 545
101-103
SUPREMB CX)URT OF THE UNITED STATES.
Oct. Tebm^
residence, and could not without its consent
be impleaded in the district of the residence
of the plaintiff, even if Male was treated
as the real plaintiff, and entitled otherwise
to sue in the southern district of New York.
As stated in the certificate of the court be-
low, the judgment of dismissal for want of
Jurisdiction was based upon both of the
grounds; that is, the want of authority to
sue in the southern district of New York
because that was the district of the resi-
dence of neither of the parties, and because,
owing to the Federal question, the defendant
was entitled to be sued in the district of
its residence.
It is not disputable that, in so far as the
contentions as to jurisdiction depended alone
upon the right to sue because of the dis-
trict in which the parties resided, they did
not present questions of inherent Federal
jurisdiction. We say this because contro-
versies as to such subjects concern a per-
sonal privilege susceptible of being waived,
which would not be the case if they involved
contentions which were intrinsically and
necessarily Federal. St. Louis ft S. F. R.
Co. V. McBride, 141 U. S. 127, 35 L. ed. 659,
11 Sup. Ct. Rep. 982; Ex parte Wisner, 203
U. S. 449, 51 L. ed. 264, 27 Sup. Ct. Rep.
150: Re Moore, 209 U. S. 490, 52 L. ed. 904,
28 Sup. Ct. Rep. 585, 706, 14 Ann. Cas.
1164; Western Loan & Sav. Co. v. Butte &
B. Min. Co. 210 U. S. 368, 62 L. ed. 1101,
28 Sup. Ct. Rep. 720. But while this is the
case, it is yet also true that questions of
jurisdiction depending upon controversies as
to the district of residence, where the statu-
tory rights in that regard have not been
waived, when decided below, are questions
of Federal jurisdiction, susceptible of being
brought here by direct appeal under the
provisions of § 238 of the Judicial Code [36
SUt. at L. 1157, chap. 231, Comp. Stat.
1913, § 1215]. Davidson Bros. Marble Co.
V. United SUter , 213 U. S. 10, 53 L. ed. 675,
29 Sup. Ct Rep. 324; United States v. Con-
gress Constr. Co. 222 U. S. 199, 56 L. ed.
163, 3*2 Sup. Ct. Rep. 44.
Our power to review thus being settled,
the only question is, Did the court err in
holding that, as a Federal court, within the
meaning of the statute, it had no authority
under the circumstances to entertain the
cause T In [102] solving this issue, without
expressing any opinion as to the want of
jurisdiction based upon the contention that
Male, the complainant, had no real, but only
a colorable and fictitious^ interest, and hence
that* the suit was brought neither in the
district of the residence of the complainant,
nor that of the defendant, and confining our
attention to the ruling that there was a
want of power to entertain the cause in
•46
any other than the district of the residenca-
of the defendant, because of the inherently
Federal question presented, we think that
the refusal to take jurisdiction was clearly-
right and should be afi&rmed. Undoubtedly
the asserted right to a judgment on the-
bonds of the Atlantic A Pacific Railroad
Company, a corporation created by an act
of Congress, involved an inherently Federal
question. Osbom v. Bank of United States^
9 Wheat. 738, 6 L. ed. 204; Washington &
I. R. Co. V. C<£ur d'Alene R. A Nav. Co. 160^
U. S. 77, 40 L. ed. 346, 10 Sup. Ct. Rep. 231;
Re Dunn,. 212 U. S. 374, 53 L. ed. 558, 2»
Sup. Ct. Rep. 299; Texas & P. R. Co. v.
Hill, 237 U. S. 208, 59 L. ed. 918, 35 Sup.
Ct. Rep. 575: This being true, it is also in-
disputable that the defendant was entitled
to be sued in the district of its residence^
and was not, without its consent, liable ta
be sued within the district of the residence
of the complainant. Macon Grocery Co. v.
Atlantic Coast Line R. Co. 215 U. S. 501,
54 L. ed. 300, 30 Sup. Ct. Rep. 184; § 51^
Judicial Code [36 SUt. at L. 1101, chap.
231, Comp. Stat. 1913, § 1033].
As it follows that no error was committed
by the court below in holding that it waa
without power to exercise jurisdiction of
the cause, its decree must be and it is af-
firmed.
[108] JOHN R. STANTON, Appt,
V.
BALTIC MINING COMPANY et aL
(See S. C. Reporter's ed. 103-114.)
Injunction — against illegal tax ^
8tockiiolder*8 suit.
1. The maintenance by a stockholder of
NOTB.— On injunction to restrain the col-
lection of illegal taxes — see notes to Odlin
V. Woodruff, 22 L.RJI. 699; Dows v. Chi-
cago, 20 L. ed. U. S. 65; and Ogden City
V. Armstrong, 42 L. ed. U. S. 445.
On the constitutionality of income taxea
— see notes to Alderman v. Wells, 27 L.ILA.
(N.S.) 864; State ex reL Bolens v. Frear^
L.RJL.1915B, 569.
As to what constitutes due process of law^
generally — see notes to People v. O'Brien,
2 L.RJI. 255; Kuntz v. Sumption, 2 L.RJL
655; Re Gannon, 5 L.RA.. 859; Ulman v.
Baltimore, 11 L.ILA. 224; Oilman v. Tucker,
13 h.RJL, 304; Pearson v. Yewdall, 24 L.
ed. U. S. 436; Wilson v. North Carolina,
42 L. ed. U. S. 865.
As to the validity of class l^dslation,
generally — see notes to State v. Goodwill,
6 L.RjiL. 621; and State T. Loomis, 21
L.R.A. 789.
As to constitutional equality of privi-
leges, immunities, and protection, generally
—see note to Louisville Safety Vault ft T.
Co. T. Louisvilla 4 N. R. Co. 14 L.ILA. 579.
140 U. 8»
1915.
STANTON ▼. BALTIC MIN. CO.
a Bait to restrain a corporation from volun-
tarily complying with the income tax pro-
visions of the tariff act of October 3, 1913
(38 Stat, at L. 166, chap. 16, Comp. Stat.
1913, §§ 6319-6336), upon the grounds
of the repugnancy of the statute to the
FlBderal Constitution, of the peeuliar rela-
tion of the corporation to the stockhold-
ers, and their particular interests result-
ing from many of the administrative
provisions of the assailed act, of the con-
fusion, wrong, and multiplicity of suits, and
the absence of all means of redress which
will result if the corporation pays the tax
and complies with the act in other respects
without protest, as it is all^^ it is its
intention to do, is not forbidden by the pro-
hibition of U. S. Rev. SUt. S 3224, Comp.
Stat. 1913, § 5947, against enjoining the en-
forcement of taxes.
I For other cartes, nee Injunction, I. k. In
Dl^Ht Sup. Ct. 1908.]
Constitutional law — due process of
law — discrimination — Income tax
on mining companies.
2. Mining companies and their stock-
holders are not denied the equal protection
of the laws nor deprived of their property
without due process of law, contrary to U.
S. Const., 5th Amend., by the income tax
provisions of the tariff act of October 3,
1913 (38 Stat, at L. 166, chap. 16), under
which the deduction permitted for depre-
ciation arising from depletion of ore de-
posits is limited to 5 per cent of the gross
value at the mine of the output during the
year, while other individuals and corpora-
lions have the right to deduct a fair and
reasonable percentage for losses and depre-
ciation.
(For other eases, see Constitutional Law,
IV. b, 6; IV. a, 4, in Digest Sap. Ct. 1908.]
Constitutional law — due process of
law — income tax — discrimination.
3. Allowing individuals to deduct from
their gross income dividends paid them by
corporations whose incomes are taxed, and
not giving such right of deduction to cor-
porations, as is done by the income tax pro-
visions of the tariff act of October 8, 1913
(38 Stat, at L. 166, chap. 16), does not
render the tax wanting in due process of
law.
[For other ca%s, see Constitutional Law,
IV. b. 6. in Difirest Sup. Ct. 1908.]
Constitutional law — discrimination —
due process of law — income tax.
4. No unconstitutional discrimination
results from the progressive rate feature
of the income tax imposed by the act of
October 3, 1913 (38 SUt. at L 166, chap.
16), because the surtax applies to individ-
ual incomes only, not to corporate ones.
[For other cases, see Con»tftntional Law,
IV. b, 6; IV. b, 4, in Digest Sup. Ct 1908.]
Constitutional law — discrimination^—
due process of law — Income tax*—
exemptions.
5. Corporations are not unconstitution-
ally discriminated against because of the
at L. 166, chap. 16), make of individual
incomes below $4,000.
[For otiier cases, see Constitutional Law,
IV. b, 6; IV. b, 4, In Digest Sup. Ct. 1908. J
Internal revenue — income tax — ex-
emptions.
6. Labor, agricultural, or horticultural
organizations, mutual savings banks, etc.»
could be excepted from the operation of the
income tax provisions of the tariff act of
October 8, 1918 (38 Stat, at L. 166, chap.
16), without rendering the tax repugnant
to the Federal Constitution.
[For other cases, see Internal Revenue, I.
b; III. b, in Digest Sup. Ct. 1908.]
Internal revenue — power of Congress
— Income tax.
7. The whole purpose of U. 8. Const.,
16th Amend., giving Congress the power **to
lay and collect taxes on incomes, from what-
ever source derived, without apportionment
among the several states, and without re-
gard to any census or enumeration," was
to exclude the source from which a taxed
income was derived as the criterion by
which to determine the applicability of the
constitutional requirement as to apportion-
ment of direct taxes.
[For other cases, see Internal Revenue, L
b, in Digest Sup. Ct. 1908.]
Internal revenue — income tax — min-
ing corporations — direct tax.
8. The taxation of mining companies
cannot be taken out of the rule established
by U. S. Const., 16th Amend., excluding the
source from which a taxed income is derived
as the criterion by which to determine the
applicability of the constitutional require*
ment as to apportionment of direct taxes,
because an inadequate allowance by way
of deduction is made by the income tax pro-
visions of the tariff act of October 3, 1913
(38 Stat, at L. 166, chap. 16), for the ex-
haustion of the ore body.
[For other cases, see Internal Revenue. L
b. in Digest Sup. Ct. 1908.]
Internal revenue — income tax — min-
ing corporations — direct tax.
9. Independently of the operation of U.
8. Const., 16th Amend., the tax imposed
by the income tax section of the tariff act
of October 8, 1913 (38 SUt. at L. 166, chap.
16), upon the product of the working of a
corporate mine, is not a direct tax on prop-
erty by reason of its ownership because ade-
quate allowance may not 1^ made for the
exhaustion of the ore body to result from
working the mine.
(For other cases, see Internal Revenue, I.
b, in Digest Sup. Ct. 1908.]
[No. 359.]
Argued October 14 and 16, 1916.
February 21, 1916.
Decided
APPEAL from the District Court of the
United States for the District of
Massachusetts to review a decree dismiss-
exwnption which the Income tax provisions I "ig the bill in a suit by a stockholder to
of the tariff act of October 8, 1913 (88 Stat, restrain the corporation from voluntarily
•0 L. ed. 547
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
complying with the Federal income tax.
AflSrmed.
The facte are stated in the opinion.
Mr. Charles A. Snow argued the cauae
and filed a brief for appellant:
Nothing can be income lulese it repre-
sents a gain or profit. If it represents a
loss of capital assets, that must first be
restored or allowed for, before any income
can result.
Stratton's Independence y. Howbert, 231
U. S. 399, 415, 58 L. ed. 285, 292, 34 Sup.
Ct. Rep. 136; Seligman, Income Tax, § 5;
Black, Income Tax, §§ 32, 34; Spooner ▼.
Phillips, 62 Conn. 62, 16 L.R.A. 461, 24
Atl. 524; bnited States ▼. Nipissing Mines
Co. 202 Fed. 803; Sargent Land Co. v. Von
Baumbach, 207 Fed. 423, L.R.A. — , — ,
134 C. C. A. 649, 219 Fed. 31; Stevens v.
Hudson's Bay Co. 101 L. T. N. S. 96, 25
Times L. R. 709; Secretary of State v.
Scoble [1903] A. C. 299, 72 L. J. K. B. N. S.
617, 51 Week. Rep. 675, 19 Times L. R.
550, 89 L. T. N. S. 1 ; Foley v. Fletcher, 3
Hurlst. ft N. 769, 28 L. J. Exch. N. S. 100,
5 Jur. N. S. 342, 7 Week. Rep. 141, 4 Mor.
Min. Rep. 130; Merchants' Ins. Go. v. Mc-
Cartney, 1 Low. Dec. 447, Fed. Cas. No.
9,443; Com v. Central Transp. Co. 145 Pa.
89, 22 Atl. 209; Gibson v. Cooke, 1 Met.
75.
Classification, for purposes of taxation,
must rest on some reasonable and sufficient
basis of distinction.
Ohio Tax Cases, 232 U. S. 576, 590, 58
L. ed. 737, 744, 34 Sup. Ct. Rep. 372;
Brown-Forman Co. v. Kentucky, 217 U. S.
563, 572, 54 L. ed. 883, 886, 30 Sup. Ct.
Rep. 578 ; Lindsley v. Natural Carbonic Gas
Co. 220 U. S. 61, 79, 55 L. ed. 369, 377, 31
Sup. Ct. Rep. 337, Ann. Cas. 1912C, 160;
Toyota v. Hawaii, 226 U. S. 184, 187, 57
U ed. 180, 33 Sup. Ct. Rep. 47; Magoun
▼. Illinois Trust ft Sav. Bank, 170 U. S.
283, 293, 42 L. ed. 1037, 1042, 18 Sup. Ct.
Rep. 594; Bradley v. Richmond, 227 U. S.
477, 484, 57 L. ed. 603, 606, 33 Sup. Ct.
Rep. 318; Southwestern Oil Co. ▼. Texas,
217 U. S. 114, 121, 54 L. ed. 688, 692, 30
Sup. Ct. Rep. 496; Schmidinger v. Chicago,
226 U. S. 578, 57 L. ed. 364, 33 Sup. Ct.
Rep. 182, Ann. Oas. 1914B, 284; Southern
R Co. V. Greene, 216 U. S. 400, 417, 54 L.
ed. 536, 541, 30 Sup. Ct. Rep. 287, 17 Ann.
Cas. 1247; German Alliance Ins. Co. v.
Hale, 219 U. S. 307, 318, 55 L. ed. 229, 236,
31 Sup. Ct Rep. 246; Kidd, D. ft P. Co. v.
Musselman Grocer Co. 217 U. S. 461, 473,
M L. ed. 839, 845, 30 Sup. Ct. Rep. 606;
Quong Wing ▼. Kirkendall, 223 U. S. 59,
64, 65, 56 L. ed. 350, 352, 353, 32 Sup. Ct.
Rep. 192; Connolly v. Union Sewer Pipe
Co. 184 U. S. 540, 559, 46 L. ed. 679, 689, '
A48
22 Sup. Ot. Rep. 431; Gulf, C. ft 8. F. R.
Co. ▼. ElUs, 165 U. S. 150, 157, 41 L. ad.
666, 669, 17 Sup. Ct Rep. 255.
Subject to these qualifications, undoubt-
edly the legislature has a wide discretion,
especially in taxation, which should not be
abridged by the courts.
Flint ▼. Stone Tracy Co. 220 U. 8. 107,
158, 159, 55 L. ed. 389, 416, 31 Sup. Ct
Rep. 342, Ann. Cas. 1912B, 1312; Bell's
Gap R. Co. V. Pennsylvania, 134 U. S. 232,
237, 33 L. ed. 892, 895, 10 Sup. Ct. Rep.
533; Southwestern Oil Co. t. Texas, 217
U. S. 114, 121, 127, 54 L. ed. 688, 692, 694,
30 Sup. Ct. Rep. 496; Beers v. Glynn, 211
U. S. 477, 53 L. ed. 290, 29 Sup. Ct. Rep.
186; New York ex rel. Hatch ▼. Reardon,
204 U. S. 152, 51 L. ed. 415, 27 Sup. Ot
Rep. 188, 9 Ann. Cas. 736; Armour Pack-
ing Co. ▼. Lacy, 200 U. S. 226, 50 L. ed.
451, 26 Sup. Ct. Rep. 282; Savannah, T. ft I.
of H. R. Co. V. Savannah, 198 U. S. 392, 49
L. ed. 1097, 25 Sup. Ct. Rep. 690; Co<^ v.
MarshaU County, 196 U. S. 261, 49 L. ed.
471, 25 Sup. Ct Rep. 233; Home Ins. Co. v.
New York, 134 U. S. 594, 33 L. ed. 1025,
10 Sup. Ct. Rep. 593; American Sugar Rcf.
Co. V. Louisiana, 179 U. S. 89, 45 L. ed.
102, 21 Sup. Ct. Rep. 43.
A classification is unconstitutional if
there is no fair reason for the law that
would not require, with equal force, its ex-
tension to others whom it leaves untouched.
Barrett v. Indiana, 229 U. S. 26, 29, 30,
57 L. ed. 1050, 1052, 1053, 33 Sup. Ct Rep.
692; Watson ▼. Maryland, 218 U. S. 173,
179, 54 L. ed. 987, 990, 30 Sup. Ct. Rep.
644; Williams v. Arkansas, 217 U. S. 79,
90, 54 L. ed. 673, 677, 30 Sup. Ct. Rep. 493,
18 Ann. Cas. 865 ; Missouri, K. ft T. R. Co.
V. May, 194 U. S. 267, 269, 48 L. ed. 971,
972, 24 Sup. Ct. Rep. 638; International
Harvester Co. ▼. Missouri, 234 U. S. 199,
213, 58 L. ed. 1276, 1283, 34 Sup. Ct. Rep.
859.
A classification does not offend because
not made with mathematical nicety, or be-
cause, in practice, it results in some in-
equality.
Lindsley v. Natural Oarbonic Gas Co. 220
U. S. 61, 78, 55 L. ed. 369, 377, 31 Sup. Ct
Rep. 337, Ann. Cas. 1912C, 160.
Graduated inheritance taxes are based
on reasonable classification.
Keeney v. New York, 222 U. S. 625, 66 L.
ed. 299, 38 LJR.A.(N.S.) 1139, 32 Sup. Ct.
Rep. 105; Magoun v. Illinois Trust ft Sav.
Bank, 170 U. S. 283, 293, 42 L. ed. 1037,
1042, 18 Sup. Ct. Rep. 594.
It is competent for a legislature to de-
termine upon what differences a distinction
may be made, for the purpose of statutory
classification, between objects otherwise
840 U. 8.
1915.
STANTON ▼. BALTIC MIN. CO.
lutTing rcflemblances. Such power, of
oourse, cannot be arbitrarily exercised. The
distinction must bave a reasonable basis.
International Hanrester Co. ▼. Missouri,
284 U. 8. 199, 214, 216, 68 L. ed. 1276, 1283,
1284, 62 L.RJL(N.8.) 626, 34 Sup. Ct Rep.
869; CUrk ▼. Kansas Ci^, 176 U. S. 114,
44 L. ed. 392, 20 Sup. Ct. Rep. 284; Qund-
ling ▼. Chicago, 177 U. S. 188, 44 L. ed.
726, 20 Sup. Ct. Rep. 633; Petit ▼. Minne-
sota, 177 U. S. 164, 44 L. ed. 716, 20 Sup.
Ct Rep. 666; WillUms v. Fears, 179 U. S.
270, 46 L. ed. 186, 21 Sup. Ct. Rep. 128;
Grimth ▼. Connecticut, 218 U. S. 563, 54
L. ed. 1161, 81 Sup. Ct. Rep. 132; Chicago,
R. I. ft P. R. Co. ▼. Arkansas, 219 U. S.
453, 460, 66 L. ed. 290, 296, 31 Sup. Ct
Rep. 276 ; 6th Ave. Coach Co. t. New York,
221 U. S. 467, 55 L. ed. 816, 81 Sup. Ct.
Rep. 709; Murphy ▼. California, 225 U. S.
623, 66 L. ed. 1229, 41 LJtA.(N.S.) 153,
32 Sup. Ot. Rep. 697; Rosenthal t. New
York, 226 U. S. 260, 269, 270, 67 L. ed.
212, 216, 217, 33 Sup. Ct. Rep. 27, Ann.
Cas. 1914B, 71 ; Denver v. New York Trust
Co. 229 U. S. 123, 143, 57 L. ed. 1101, 1124,
33 Sup. Ct. Rep. 657; Patsone v. Pennsyl-
vania, 232 U. S. 138, 144, 58 L. ed. 539,
543, 34 Sup. Ct. Rep. 281; Missouri, K. A
T. R. Co. V. Cade, 233 U. S. 642, 58 L. ed.
1135, 34 Sup. Ct. Rep. 678; Keokee Consol.
Coke Co. V. Taylor, 234 U. S. 224, 58 L. ed.
1288, 34 Sup. Ot. Rep. 856.
Assuming, however, the adoption of a
proper classification, upon a reasonable
basis, all within the class selected, and sub-
ject to like conditions, must be treated
alike.
Chicago Dock ft Canal Co. v. Fraley, 228
U. S. 680, 681, 57 L. ed. 1022, 33 Sup. Ct.
Rep. 715; Southwestern Oil Co. v. Texas,
217 U. 8. 114, 121, 127, 54 L. ed. 688, 692,
694, 30 Sup. Ct. Rep. 496; Selover, B. ft
Co. V. Walsh, 226 U. S. 112, 57 L. ed. 146,
33 Sup. Ct Rep. 69; Kentucky R. Tax
Cases, 115 U. S. 321, 337, 29 L. ed. 414, 419,
6 Sup. Ct. Rep. 57; Home Ins. Co. v. New
York, 134 U. S. 594, 606, 33 L. ed. 1025,
1031, 10 Sup. Ot. Rep. 593.
The equal protection of the laws is a
pledge of the protection of equal laws to
all under like circumstances.
German Alliance Ins. Co. t. Hale, 219
U. S, 307, 818, 55 L. ed. 229, 236, 31 Sup.
Ct Rep. 246; Yick Wo v. Hopkins, 118 U.
8. 356, 367, 30 L. ed. 220, 225, 6 Sup. Ct
Rep. 1064; Barbier v. Connolly, 113 U. S.
27, 28 L. ed. 928, 6 Sup. Ct. Rep. 357;
Soon Hing v. Crowley, 113 U. 8. 703, 28
L. ed. 1145, 5 Sup. Ct Rep. 730.
Classifications have been held to be un-
constitutional, which were no more arbi-
69 li. ed.
trary and unequal than the present classi-
fication.
Gulf, C. ft S. F. R. Co. V. Ellis, 165 U. 8.
150, 41 L. ed. 666, 17 Sup. Ct Rep. 255;
Missouri, K. ft T. R. Oo. v. Cade, 233 U. 8.
642, 58 L. ed. 1135, 34 Sup. Ct Rep. 678;
Cotting T. Kansas City Stockyards Co.
(Cotting T. Godard) 183 U. 8. 79, 46 L.
ed. 92, 22 Sup. Ct. Rep. 30; Connolly v.
Union Sewer Pipe Co. 184 U. 8. 540, 46
U ed. 679, 22 Sup. Ct. Rep. 431; Southern
R. Co. V. Greene, 216 U. 8. 400, 54 L. ed.
536, 30 Sup. Ct. Rep. 287, 17 Ann. Cas.
1247; Smith v. Texas, 233 U. S. 630, 58 L.
ed. 1129, L.RJ1.1915D, 677, 34 Sup. Ct
Rep. 681, Ann. Cas. 1915D, 420; San Fran-
cisco Nat Bank v. Dodge, 197 U. 8. 70, 49
L. ed. 669, 25 Sup. Ct Rep. 384; Covington
V. First Nat Bank, 198 U. S. 100, 49 L. ed.
963, 25 Sup. Ct. Rep. 562.
The attempted classification must rest
on some reasonable basis for distinction.
It must also rest upon some difference in-
dicating a reasonable and just relation to
the act in respect of which the classification
is proposed.
German Alliance Ins. Co. v. Hale, 219 U.
8. 307, 318, 55 L. ed. 229, 236, 31 Sup. Ct.
Rep. 246; Kidd, D. ft P. Co. v. Musselman
Grocer Co. 217 U. S. 461, 472, 54 L. ed.
839, 845, 30 Sup. Ct Rep. 606; Gulf, C. ft
8. F. R. Co. V. Ellis, 165 U. 8. 150, 165, 41
L. ed. 666, 671, 17 Sup. Ct Rep. 255;
American Sugar Ref. Co. v. Louisiana, 179
U. 8. 89, 92, 45 L. ed. 102, 103, 21 Sup.
Ct Rep. 43; Magoun v. Illinois Trust ft
Sav. Bank, 170 U. S. 283, 293, 294, 42 L.
ed. 1037, 1042, 1043, 18 Sup. a. Rep. 594.
Conceding that the legislative body may
arbitrarily impose varying excises upon
different kinds of corporations, it by no
means follows that direct taxes may be
thus exacted.
Magoun v. Illinois Trust ft Sav. Banic,
170 U. 8. 283, 302, 42 L. ed. 1037, 1045, 18
Sup. Ct. Rep. 594.
When the ore has been detached from
the soil in which it is imbedded, it becomes
personal property.
Forbes v. Gracey, 94 U. 8. 762, 765, 766,
24 L. ed. 313, 314, 14 Mor. Min. Rep. 183;
Buford V. Houtz, 133 U. 8. 320, 332, 33 L.
ed.> 618, 622, 10 Sup. Ct. Rep. 305.
The fruits and products of land, whether
vegetable or mineral, until severed, are as
much realty as the land itself, or the rent-
als thereof.
Caldwell v. Fulton, 31 Pa. 483, 72 Am.
Dec. 760, 3 Mor. Min. Rep. 238; Pollock v.
Farmers' Loan ft T. Co. 158 U. 8. 601, 692,^
89 L. ed. 1108, 1144, 15 Sup. Ct. Rep. 912;.
Oo. Litt. 4 (a) (b) ; 2 Bl. Com. 18.
Ore, in place, is capital, and is part of
SUPRBMS COURT OF THE UNITED STATES.
Oct. Term.
the real estate. It is just as mudi a part
of the real estate as trees standing on the
land.
Sargent Land Go. t. Von Baumbach, 207
Fed. 423.
The timber, when cut, is still part of the
principal, and the produce of it is invested,
and the interest only is paid to the 'tenant
for life.
Daly ▼. Beckett, 24 Beav. 114, 8 Jur. N.
S. 754, 5 Week. Rep. 514.
There is no fair reason for the law that
would not require, with equal force, its ex-
tension to others whom it leaves untouched.
Barrett t. Indiana, 229 U. S. 26, 30, 57
L. ed. 1050, 1052, 33 Sup. Ct. Rep. 692; In-
ternational Harvester Co. v. Missouri, 234
U. S. 199, 214, 58 L. ed. 1276, 1283, 52
LJtJL.(N.S.) 525, 34 Sup. Ct. Rep. 859;
Watson V. Maryland, 218 U. S. 173, 179, 54
L. ed. 987, 990, 30 Sup. Ct. Rep. 644.
The discrimination against mines is of
an ''unusual character," wholly "unknown
to the practice of our governments," and is
pure favoritism, class legislation, and pal-
pably arbitrary classification, resting upon
no reasonable basis for distinction.
Bell's Gap R. Co. v. Pennsylvania, 134
U. S. 232, 237, 33 L. ed. 892, 895, 10 Sup.
Ct. Rep. 533.
Justice requires that the burdens of gov-
ernment shall, as far as is practicable, be
laid equally on all; and, if property is
taxed once in one way, it would ordinarily
be wrong to tax it again in another way,
when the burden of both taxes falls on the
same person.
Tennessee v. Whitworth, 117 U. S. 129,
136, 29 L. ed. 830, 832, 6 Sup. Ct. Rep.
649.
Even the taxing power of Congress is
subject to some limitations, under the 5th
Amendment, and legislation is condemned
thereby which selects objects and rules
of valuation arbitrarily and without any
reasonable basis.
Second Enq>loyers' Liability Cases (Mon-
dou V. New York, N. H. ft H. R. Co.) 223
U. S. 1, 52, 53, 56 L. ed. 327, 347, 38
L.R.A.(N.S.) 44, 82 Sup. Ct. Rep. 169, 1
N. 0. C. A. 875; United States v. Heinse,
218 U. S. 532, 54 L. ed. 1139, 31 Sup. Ct.
Rep. 98, 21 Ann. Gas. 884; District of
Columbia v. Brooke, 214 U. S. 138, 53 L.
ed. 941, 29 Sup. Ct. Rep. 560.
Both the 5th and tha 14th Amendments
presuppose equality before the law, which
is a fimdamental necessity, inhering in our
form of government, and not requiring ex-
press statonent in the Constitution.
Yick Wo V. Hopkins, 118 U. S. 356, 369,
370, 80 L. ed. 220, 226, 6 Sup. Ct. Rep.
1064; Qulf, C. ft S. F. R. Go. y. EUis, 165
A50
I U. S. 150, 159, 160, 41 L. ed. 666, 669, 670,
17 Sup. Ct. Rep. 255; Vanzant v. Waddel, 2
Yerg. 270; State v. Loomis, 115 Mo. 307,
I 314, 21 L.RJ^. 789, 22 8. W. 350.
Palpably arbitrary classification, for pur-
poses of taxation, without any reasonable
basis, violates due proceds of law, as guar-
anteed by the 5th Amendment.
Bank of Columbia v. Okely, 4 Wheat.
235, 244, 4 L. ed. 559, 561; Re Kemmler»
136 U. S. 436, 448, 34 L. ed. 519, 524, 10
Sup. Ct. Rep. 930; Holden v. Hardy, 169
U. 8. 366, 389, 42 L. ed. 780, 790, 18 Sup.
Ct. Rep. 383; Scott v. McNeal, 154 U. S.
34, 45, 38 L. ed. 896, 901, 14 6up. Ct. Rep.
1108.
The phrase cannot be so construed as
to leave Congress free to make any process
"due process of law" by its mere will.
Den ex dem. Murray v. Hoboken Land
ft Improv. Co. 18 How. 272, 276, 15 L. ed.
372, 374.
Due process is secured by laws operating
on all alike, and not subjecting the indi-
vidual to the arbitrary exercise of the pow-
ers of government, unrestrained by the
established principles of private right and
distributive justice.
Leeper v. Texas, 139 U. S. 462, 468, 35 L.
ed. 225, 227, 11 Sup. Ct. Rep. 577; HurUdo
V. California, 110 U. S. 516, 535, 28 L. ed.
232, 238, 4 Sup. Ct. Rep. Ill, 202; Duncan
V. Missouri, 152 U. S. 377, 38 L. ed. 485,
14 Sup. Ct. Rep. 570; Twining v. New Jer-
sey, 211 U. S. 78, 101, 102, 53 L. ed. 97,
107, 29 Sup. Ct. R^. 14.
The principle of classification is not dif-
ferent in tax laws than in other lawa
Connolly v. Union Sewer Pipe Co. 184 U.
S. 540, 570, 46 L. ed. 679, 694, 22 Sup. Ct.
Rep. 431 ; Cox v. Texas, 202 U. S. 446, 450,
451, 50 L. ed. 1099, 1101, 26 Sup. Ct. Rep.
671.
There is no such thing as unlimited
power of taxation in Congress. Equality
and unformity are an inherent necessity
in all taxation.
Pollock V. Farmers' Loan ft T. Co. 157
U. S. 429, 599, 39 L. ed. 759, 825, 15 Sup.
Ot Rep. 673; Citizens' Sav. ft L. Asso. v.
Topeka, 20 Wall. 655, 22 L. ed. 455; Par-
kersburg v. Brown, 106 U. S. 487, 27 L. ed.
238, 1 Sup. Ct. Rep. 442.
Gross discriminations in former income
tax would probably have rendered it un-
constitutional, if it had not been held so on
other grounds.
Pollock V. Farmers' Loan ft T. Go. 157
U. 8. 429, 599, 600, 89 L. ed. 759, 825, 826,
15 Sup. Ct. Rep. 673; Ballard ▼. Hunter,
204 U. S. 241, 255, 256, 51 L. ed. 461, 471,
472, 27 Sup. Ct. Rep. 261; Magoun v.
Illinois Trust ft Sav. Bank, 170 U. S. 283,
840 U. 8.
1&15.
STANTON T. BALTIC MIN. CO.
±b4, 42 L. ed. 1037, 1043, 18 Sup. Ct. R«p.
^IKM ; Bell's Gap R. Co. v. PennBylvania, 134
U. S. 232, 237, 33 L. ed. 892, 896, 10 Sup.
•Ct. Rep. 533.
Mr. John R. Van Derlip filed a brief a«
amicus euriof for appellant:
No tax can be imposed without express
legislation authorizing it; and, luiless the
intention of the legislature to lay the tax
be explicitly and distinctly shown by um-
ambiguous words, the public cannot be
charged with its burden; for, if there
be reasonable doubt of the intent, it will be
•denied.
Cooley, Taxn. 267, 268; Eidman v. Mar-
tinez, 184 U. S. 678, 583, 46 L. ed. 697, 701,
«2 Sup. Ct. Rep. 615.
A legislative body cannot, by giving a
tax a certain name, change its nature or
-effect.
Pollock V. Farmers' Loan ft T. Co. 167
U. S. 680-683, 39 L. ed. 818-820, 16 Sup.
Ot. Rep. 673; Galveston, H. & S. A. R. Go.
-V. Texas, 210 U. S. 217, 227, 62 L. ed 1031,
1037, 28 Sup. Ct. Rep. 638; Choctaw, 0. &
•G. R. Co. V. Harrison, 235 U. S. 292, 298,
69 L. ed. 234, 237, 35 Sup. Ct. Rep. 27.
In determining the character of an al-
leged tax, its actual and practical result
will be considered, rather than the cor-
rectness of the theoretical or abstract ideas
upon which it purports to be based.
Nicol V. Ames, 173 U. S. 609, 515, 43 L.
ed. 786, 791, 19 Sup. Ct. Rep. 622.
Things which are not in fact income can-
not be made such by mere legislative fiat;
it is beyond the power of a legislature,
state or national, to include in income the
capital, or principal, from which the income
is derived.
State ex rel. Bolens v. Frear, 148 Wis. 612,
LR.A.1915B, 569, 134 N. W. 673, 135 N.
W. 164, Ann. Cas. 1913A, 1147; Stevens ▼.
Hudson's Bay Co. 101 L. T. N. S. 96, 26
Times L. R. 709; Secretary of State v. Sco
ble [1903] A. C. 299, 72 L. J. K. B. N. S.
-617, 61 Week. Rep. 676, 19 Times L. R.
550, 89 L T. N. S. 3.
As respects pecuniary returns from in-
vestments in any kind of property, it may
be accurately asserted that income is that
part of the net receipts of a taxpayer
which represents gains or profits after re-
turning to him the full value of his princi-
pal investment from the use, disposition,
or transmutation of which the gain or
profit results.
Black, Income Tax, §§ 32, 34; Waring v.
Savannah, 60 Ga. 93; Mundy v. Van Hoose,
104 Ga. 292, 30 S. S. 783; Seligman, In-
•come Tax, § 6 ; Wilcox v. Middlesex County,
103 Mass. 644; Sargent Land Co. v. Von I
Baumbach, 207 Fed. 423; Mitchell Broa. '
«• li. ed.
Co. v. Doyle, 226 Fed. 487; Stratton's In-
dependence V. Howbert, 231 U. S. 416, 58
L. ed. 292, 34 Sup. Ct. Rep. 136; Stevens
V. Hudson's Bay Co. 101. L. T. N. S. 96,
25 Times L R. 709; Secretary of State v.
Scoble, [1903] A. C. 299, 72 L. J. K. B. N.
8. 617, 61 Week. Rep. 675, 19 Times L. R.
550, 89 L. T. N. S. 1; Com. v. Central
Transp. Co. 146 Pa. 89, 22 Atl. 209.
Only so much of the receipts or royalties
(as the case may be) as are in excess of
the capital investment included in them is
income which can be considered in assessing
an income tax.
Stratton's Independence v. Howbert, 23
U. S. 399, 68 L ed. 285, 34 Sup. Ct. Rep.
136; Foley v. Fletcher, 3 Hurlst. & N. 769,
28 L. J. Ex3h. N. S. 100, 6 Jur. N. S. 342,
7 Week. Rep. 141, 4 Mor. Min. Rep. 130;
Von Baumbach v. Sargent Land Co. L.R.A.
— , -—, 134 C. C. A. 649, 219 Fed. 31;
United States v. Nipissing Mines Co. 202
Fed. 803.
It is incompetent for Congress, in evalu-
ating the net income of a taxpayer for the
purpose of taxation, to include therein
property which is not income, and which is
exempt by constitutional provision from
such taxation.
Gordon v. Oornes, 47 N. Y. 612 ; Delaware,
L & W. R. Co. V. Pennsylvania, 198 U. S.
341, 40 L. ed. 1077, 26 Sup. Ct. Rep. 669;
Louisville & J. Ferry Co. v. Kentucky, 188
U. S. 385, 47 L. ed. 613, 23 Sup. Ct. Rep.
463.
The allowance for depreciation must be
based upon the value, and not the cost, of
the property.
Von Baumbach v. Sargent Land Co. L.R.A.
— , — , 134 C. C. A. 649, 219 Fed. 37;
Mitchell Bros. Co. v. Doyle, 226 Fad. 437.
The 16th Amendment is prospective only
in its operation (Shreveport v. Cole, 129 U.
S. 36, 32 L. ed. 689, 9 Sup. Ct. Rep. 210),
and Congress acquired no power thereunder
to tax income previously accrued Its
authority affected only incomes derived in
the future.
Mercur Gold Min. ft Mill. Co. v. Spry, 16
Utah, 222, 52 Pac. 382; Centennial Eureka
Min. Co. V. Juab County, 22 Utah, 395, 62
Pac. 1024; Mitchell Bros. Co. v. Doyle,
supra.
Those properietors of mining properties
who, prior to March 1, 1913, had already
disposed of their ores, to be mined by their
vendees, are manifestly exempt from the pay-
ment of any income tax upon the moneys
received by them for such ores, because the
fact of the disposition at a specified price
of itself demonstrates the value attaching
to the ore at the time of its disposal. All
possible gains over original cost had then
551
107-100
SUPREME COURT OF THE UNITED STATES.
Oct, Term,
been realized and had become capitalized.
The owners had sold their property for so
much.
Mitchell Bros. Co. y. Doyle and Von
Baumbach v. Sargent Land Co., supra.
The sale outright of a mining property
may be fairly described as a mere conver-
sion of the capital from land into money;
a sale which gives the vendee the absolute
right of possession and removal of ore is
''outright/' regardless of the time of pay-
ment.
Von Baumbach t. Sargent Land Co.
L.R.A.— , — , 134 C. C. A. 649, 219 Fed.
39; Stevens v. Hudson's Bay Co. 101 L. T.
N. S. 96, 25 Times L. R. 709; Secretary of
State ▼. Scoble [1903] A. C. 299, 72 L. J.
K. B. N. S. 617, 61 Week. Rep. 675, 19
Times L. R. 560, 89 L. T. N. S. 1 ; Foley v.
Fletcher, 3 Hurlst. & N. 769, 28 L. J. Exch.
N. S. 100, 6 Jur. N. S. 342, 7 Wedc. Rep.
141, 4 Mor. Min. Rep. 130.
No brief was filed for appellees.
Mr. Chief Justice White delivered the
opinion of the court:
As in Brushaber v. Union P. R. Co. 240
U. S. 1, ante, 236, 36 Sup. Ct. Rep. 236, this
case was commenced by the appellant as a
stockholder of the Baltic Mining Company,
the appellee, to enjoin the voluntary pay-
ment by the corporation and its officers of
the tax assessed against it under the in-
come tax section of the tariff act of Octo-
ber 3, 1918 (38 Stat, at L. 166, 181, chap.
16). As the grounds for the equitable
relief [108] sought in this case so far as
the question of jurisdiction is concerned are
substantially the same as those which were
relied upon in the Brushaber Case, it
follows that the ruling in that case uphold-
ing the power to dispose of that controversy
is controlling here, and we put that subject
out of view.
Further, also, like the Brushaber Case,
this is before us on a direct appeal prose-
cuted for the purpose of reviewing the ac-
tion of the court below in dismissing on
motion the bill for want of equity.
The bill averred: "That, under and by
virtue of the alleged authority contained
in said income tax law, if valid and con-
stitutional, the respondent company is tax-
able at the rate of 1 per cent upon its gross
receipts from all sources, during the calen-
dar year ending December 31, 1914, after
deducting (1) its ordinary and necessary
expenses paid within the year in the main-
tenance and operation of its business and
properties, and (2) all losses actually sus-
tained within the year, and not compen-
sated by insurance or otherwise, including
depreciation arising from depletion of its
ore deposits to ths limited extent of 6 per
353
cent of the 'gross value at the mine of the
output' during said year." It was fur-
ther alleged that the company would, if
not restrained, make a return for taxation
conformably to the statute, and would pay
the tax upon the basis stated without pro-
test, and that to do so would result in de-
priving- the complainant as a stockholder
of rights secured by the Constitution of
the United States, as the tax which it waa
proposed to pay without protest was void
for repugnancy to that Constitution. The
bill contained many averments on the fol-
lowing subjects, which may be divided into
two generic classes: (A) Those concern-
ing the operation of the law in question
upon individuals generally and upon other
than mining corporations, and the discrimi-
nation against mining corporations whidi
arose in favor of such other corporation*
and individuals [109] by the legislation, a»
well as discrimination which the provisions
of the act operated against mining corpora-
tions because of the separate and more un-
favorable burden cast upon them by the
statute than was placed upon other cor-
porations and individuals, — averments aU
of which were obviously made to support
the subsequent charges which the bill con-
tained as to the repugnancy of the law im-
posing the tax to the equal protection, due
process, and uniformity clauses of the Con-
stitution. And (B) those dealing with the
practical results on the company of the
operation of the tax in question, evidently
alleged for the purpose of sustaining the
charge which the bill made that the tax
levied was not what was deemed to be the
peculiar direct tax which the 16th Amend-
ment exceptionally authorized to be levied
without apportionment, and of the result-
ing repugnancy of the tax to the Consti-
tution as a direct tax on property because
of its ovniership, levied without conforming
to the regulation of apportionment generally
required by the Constitution as to such
taxation.
We need not more particularly state the
averments as to the various contentions in
class (A), as their character will neces-
sarily be made manifest by the statement
of the legal propositions based on them
which we shall hereafter have occasion to
make. As Ut the averments concerning class
(B), it suffices to say that it resulted
from copious allegations in the bill as to
the value of the ore body contained in the
mine which the company worked, and the
total output for the year of the product of
the mine after deducting the expenses as
previously stated; that the 5 per cent
deduction permitted by the statute was in-
adequate to allow for the depletion of tiie
ors body, and therefore the law to a Inrge
840 V. 8*
1915.
STANTON V. BALTIC MIN. CO.
109-112
flKteat taxed not the mere profit arising
from the operation of the mine, but taxed
as income the yearly product which repre-
sented to a large extent the yearly deple
tioD or exhaustion of [110] the ore body
from which, during the year, ore was taken.
Indeed, the following alleged facts concern-
ing the relation which the annual produc-
tion bore to the exhaustion or diminution
of the property in the ore bed must be taken
as true for the purpose of reviewing the
judgment sustaining the motion to dismiss
the bill:
That the real or actual yearly income
deriTed by the respondent company from
its business or property does not exceed
$550,000. That, under the income-tax, the
said company is held taxable, in an aver-
age year, to the amount of approximately
$1,150,000, the same being ascertained by
deducting from its net receipts of $1,400,000
only a depreciation of $100,000 on its plant
and a depletion of its ore supply limited by
law to 5 per cent of the value of its annual
gross receipts, and amounting to $150,000;
whereas, in order properly to ascertain its
actual income, $750,000 per annum should
be allowed to be deducted for such deple-
tion, or Ave times the amount actually al-
lowed."
Without attempting minutely to state
every possible ground of attack which
might be deduced from the averments of
the bill, but in substance embracing every
material grievance therein asserted and
pressed in argument upon our attention in
^e elaborate briefs which have been sub-
mitted, we come to separately dispose of
the legal propositions advanced in the bill
and arguments concerning the two classes.
Class A. Under this the bill charged that
the provisions of the statute "are uncon-
stitutional and void under the 5th Amend-
ment, in that they deny to mining compa-
nies and their stockholders equal protection
of the laws and deprive them of their prop-
erty without due process of law/' for the
following reasons:
(1) Because all other individuals or cor-
porations were given a right to deduct a
fair and reasonable percentage for losses
and depreciation of their capital, and they
were [111] therefore not confined to the
arbitrary 6 per cent fixed as the basis for
deductions by mining corporations.
(2) Because by reason of the differences
in the allowances which the statute per-
mitted, the tax levied was virtually a net
income tax on other corporations and in-
dividuals, and a gross income tax on min-
ing corporations.
(3) Because the statute established a
discriminating rule as to individuals and
other corporations as against mining cor-
60 Ii. ed.
porations on the subject of the method of
the allowance for depreciations.
(4) Because the law permitted all in-
dividuals to deduct from their net income
dividends received from corporations which
had paid the tax on their incomes, and did
not give the right to corporations to make
such deductions from their income of divi-
dends received from other corporations
which had paid their income tax. This was
illustrated by the averment that 09 per
cent of the stock of the defendant company
was owned by a holding company, and that
under the statute not only was the cor-
poration obliged to pay the tax on its in-
come, but so also was the holding company
obliged to pay on the dividends paid it by
the defendant company.
(5) Because of the discrimination result-
ing from the provision of the statute pro-
viding for a progressive increase of taxa-
tion or surtax as to individuals, and not
as to corporations.
(6) Because of the exemptions which the
statute made of individual incomes below
$4,000, and of incomes of labor organiza-
tions and various other exemptions which
were set forth.
But it is apparent from the mere state-
ment of these contentions that each and
all of them were adversely disposed of by
the decision in the Brushaber Case, and they
all therefore may be put out of view.
Class B. Under this class these proposi-
tions are relied upon:
[112] (1) That as the 16th Amendment
authorizes only an exceptional direct income
tax without apportionment, to which the
tax in question does not conform, it is there-
fore not within the authority of that
Amendment.
(2) Not being within the authority of
the 16th Amendment, the tax is therefore,
within the ruling of Pollock t. Farmers'
Loan & T. Co. 157 U. S. 429, 39 L. ed. 759,
15 Sup. Ct Bep. 673; 158 U. S. 601, 39
L. ed. 1108, 15 Sup. Ct. Rep. 912, a direct
tax and void for want of compliance with
the regulation of apportionment.
As the first proposition is plainly in con-
flict with the meaning of the 16th Amend-
ment as interpreted in the Brushaber Case,
it may also be put out of view. As to the
second, while indeed it is distinct from the
subjects considered in the Brushaber Case
to the extent that the particular tax which
the statute levies on mining corporations
here under consideration is distinct from
•the tax on corporations other than mining
and on individuals, which was disposed of
in the Brushaber Case, a brief analysis will
serve to demonstrate that the distinction
is one without a difference, and therefore
that the proposition is also foreclosed by
55S
112-115
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
the preyiouB ruling. The contention is that
as the tax here imposed is not on the net
product, but in a sense somewhat equivalent
to a tax on the gross product of the work-
ing of the mine by the corporation, there-
fore the tax is not within the purview of
the 16th Amendment, and consequently it
must be treated as a direct tax on property
because of its ownership, and as such void
for want of apportionment. But, aside
from the obvious error of the proposition,
intrinsically considered, it manifestly dis-
regards the fact that by the previous ruling
it was settled that the provisions of the
16th Amendment conferred no new power
of taxation, but simply prohibited the pre-
vious complete and plenary power of in-
come taxation possessed by Congress from
the beginning from being taken out of the
category of indirect taxation to which it
inherently belonged, and being placed [113]
in the category of direct taxation subject to
apportionment by a consideration of the
sources from which the income was derived,
— that is, by testing the tax not by what
it was, a tax on income, but by a mistaken
theory deduced from the origin or source
of the income taxed. Mark, of course, in
saying this we are not here considering a tax
not within the provisions of the 16th
Amendment, that is, one in which the regu-
lation of apportionment or the rule of uni-
formity is wholly negligible because the
tax is one entirely beyond the scope of the
taxing power of Congress, and where con-
sequently no authority to impose a burden,
either direct or indirect, exists. In other
words, we are here dealing solely with the
restriction imposed by the 16th Amend-
ment on the right to resort to the source
whence an income is derived in a case where
there is power to tax for the purpose of
taking the income tax out of the class of
indirect, to which it generically belongs,
and putting it in the class of direct, to
which it would not otherwise belong, in or-
der to subject it to the regulation of ap-
portionment. But it is said that although
this be ur.doubtedly true as a general rule,
the peculiarity of mining property and the
exhaustion of the ore body which must re-
sult from working the mine cause the tax
in a case like this, where an inadequate
allowance by way of deduction is made for
the exhaustion of the ore body, to be in
the nature of things a tax on property be-
cause of its ownership, and therefore sub-
ject to apportionment. Not to so hoUi* it
is urged, is as to mining property but to
say that mere form controls, thus render-
ing in substance the command of the Con-
stitution that taxation directly on property
because of its ownership be apportioned,
wholly illusory or futile. But this merely
354
asserts a right to take the taxation of min-
ing corporations out of the rule established
by the 16th Amendment when there is no
authority for so doing. It moreover rests
upon the wholly fallacious [114] assump-
tion that, looked at from the point of view
of substance, a tax on the product of a mine
is necessarily in its essence and nature in
every case a direct tax on property because
of its ownership, unless adequate allowance
be mad^ for the exhaustion of the ore body
to result from working the mine. We say
wholly fallacious assumption because, in-
dependently of the effect of the operation
of the 16th Amendment, it was settled in
Stratton's Independence v. Howbert, 231 U.
8. 309, 58 L. ed. 285, 34 Sup.. Ct. Rep. 136,
that such tax is not a tax upon property
as such because of its ownership, but a true
excise levied on the results of' the business
of carrying on mining operations, (pp. 413
et seq.)
As it follows from what we have said
that the contentions are in substance and
effect controlled by the Brushaber Case,
and, in so far as this may not be the case,
are without merit, it results that, for the
reasons stated in the opinion in that case
and those expressed in this, the judgment
must be and it is affirmed.
Mr. Justice McReynolds took no part in
the consideration and decision of this case.
[116] TYEE REALIT COMPANY, Plff. in
Err.,
V.
CHARLES W. ANDERSON, Collector of In-
ternal Revenue.
EDWIN THORNE, Plff. in Err.,
V.
CHARLES W. ANDERSON, Collector of In-
ternal Revenue.
(See S. C. Reporter's ed. 116-118.)
Internal revenue — power of Conirreaa
— income tax.
1. The whole purpose of U. S. Const^
16th Amend., giving Congress the power
"to lay and collect texes on incomes, from
whatever source derived, without apportion-
ment among the several states, and with-
out regard to any census or enumeration,"
was to exclude the source from which a
taxed income was derived as the criterion
by which to determine the applicability of
Note. — On the constitutionality of income
taxes — see notes to Alderman v. Wells, 27
L.R.A.(N.S.) 864; and State ex reL Bolens
V. Frear, L.R.A.1915B, 569.
As to what constitutes due process of law,
* generally — see notes to People v. O'Brien,
840 U. 8.
1916.
TYEE REALTY CO. ▼. ANDERSON.
tlie constitutional requirement as to ap- Mr. Julieii T. Davtes argued the cause,
Dortionment of direct taxes. and, with Messrs. Brainard Tolles, Garrard
^'"b.' In^DieSt lup.'ct. mSj'* Re^en'i*. I- Glenn, and Martin A. Schenck, filed a brief
Consatuaonal law — due process of ^^\ plaintiffs in error:
law — Income tax — retroactive effect. ^^7 «tatute providing for an income
2. The retroactive effect of the income tax, of necessity means a tax upon net in-
tax provisions of the tariff act of October comes.
3. 1913 (38 SUt. at L. 166, chap. 16, Comp. Thompson v. ReddiAg [1897] 1 Ch. 879,
Stat. 1913, § 6319), which fix the preceding 66 L. J. Ch. N. S. 460, 76 L. T. N. S. 839,
March Iflt as the tinae from which the taxed 45 ^eek. Rep. 457; Peck v. Kinney, 74 C.
S^^. w r?nH^^^ C. A. 270, 143 Fed. 76; Opinions of Justices,
pated, does not render the tax repugnant to -, ' _, j ▼ mi tt n »
the due process of Uw clause of U S. Const., 5, ^^^' ^^^> ^""^"^^ ^- Lamoille Valley R.
5th Amend., nor inconsistent with the 16th ^o- 52 Vt. 177; Andrews v. Boyd, 6 Me.
Amendment itself, since the date of retro- 1»9; Lawless v. Sullivan, L. R. 6 App. Cas.
-activity did not extend beyond the time 373, 60 L. J. P. C. N. S. 38, 44 L. T. N. 8.
when the latter Amendment became opera- 897, 29 Week. Rep. 917; Kingston ▼. Oui-
*»v«- ada Life Asaur. Co. 19 Ont. Rep. 453 ; Taxa-
iPpr other cases, see Constitutional Law, fj^n Pomra v Antill riOO^I A C. 192 71
IV. b. C; IV. f. 2, in Dlgeat 8up. Ct. 1908./ "®'* ^ i v. Ant ill liyOJSJ A. U 4ZZ, 71
Consatutional law — due process of J': '^' *; ^- ^- ^- ®i' ?^ ^ '^' ^* ^' ^^^' ^®
Jaw — income tax. Times L. R. 644; Colquhoun v. Brooks, L.
3. The progressive rate feature of the R. 14 App. Cas. 493, 69 L. J. Q. B. N. 8.
income tax imposed bj the act of October 53, 61 L. T. N. S. 518, 38 Week. Rep. 289,
^, J 913 (38 SUt. at L. 166, cliap. 16, Comp. 54 J. P. 277.
Stm,t. 1913, § 6319), does not cause such tax Instances of taxes on gross receipts are
i^^?"?'^"** ^^^ conception of all taxation, common, but they are not and never have
'^ViJ^^utt'^'lr^:^/^^ ^;; -"-^, in<^e Uxes. Examples of
pi'<:>ces8 of law. ®"*^" taxes have been before this court many
[B*or other cases, see Constitutional Law, ^i^^s in cases ranging from State Tax on
X^, b. 6. in Digest Sup. Ct. 1UU8.J R. Gross Receipts, 16 Wall. 284, 21 L. ed.
Cc>s^satutional 'law — due process of 164, through Philadelphia ft S. Mail S. 8.
m^w — income tax — discrimination. Co v. Pennsylvania, 122 U. S. 326, 30 L.
. i' Limiting the amount of interest ^^ jgOO, 1 Inters. Com. Rep. 308, 7 Sup.
wJ^ ^h may be deducted from gross income ^ ^ ^j^g ^ ^^ ^^ ^ ^ ^ £
01 «a corporation for the purpose of fixing ^ i^ott ooit oct T n.^^ « t 7
th« taxable income to interest on indebted- Co. 142 U. S 217, 35 L. ed. 994, 3 Inters.
ne^^ not exceeding one half the sum of Com. Rep. 121, 163, 12 Sup. Ct Rep. 807.
boxiac^ed indebtedness and paid-up capital But such a tax as that is not an income
sto<:!^i(^ as is done by the income tax provi- tax, and belongs in quite a different cate-
***^*^8 of tiie tariff act of October 3, 1913 gory. The so-called income tax laws im-
(3S Stat, at L. 166, chap. 16, Comp. Stet. posed by Congress during the Civil War, it
1»X 3. §0319), is not wanting in due process j, i ^,1^^^ ^„I ^^^ain deductions,
« i«w because discriminating between dif- _„ , . .,^ «.«««<./ ^# 4.u^ «,«--»«* -♦IT
fer^^t classes of corporation; and Individ- "i**^^ ^, ^^? "'^^"^J ^^ *^^ P^\««°* f**^
^ '^ ute. But these statutes are not instruc-
other cases, see Constitutional Law, <^i^« ^^o™ the present viewpoint. This
. b, 6, in Digest Sup. Ct. 1908.]
[Nos. 393 and 394.]
ual
court solemnly determined that they did
not impose an income tax on a holder of
stocks or bonds of the corporation upon
which the tax was laid, "but on th* eam-
'^Sxied October 14 and 15, 1915. Decided ings of the corporations which pay the
February 21, 1916. interest" (Michigan C. R. Co. v. Collector,
(Michigan C. R. Co. v. Slack) 100 U. 8.
TWO WRITS of Error to the District 595, 25 L. ed. 647). In Little Miami ft
Court of the United SUtes for the C. ft X. R. Co. v. United States, 108 U. 8.
Southern District of New York to review 277, 27 L. ed. 724, 2 Sup. Ct. Rep. 627, this
i^^^mcnts sustaining demurrers to the com- court determined that the tax was imposed
P^^Qts in actions to recover back income upon the profits of companies, and that
^^^ paid under protest. Affirmed. these profits meant profits .of the company
"^e facts are stated in the opinion. .in its business as a whole; that is to say.
* ^.HA. 255 ; Kuntz v. Sumption, 2 L.R Jl.
^; Re Gannon, 5 L.R.A. 359; Ulman v.
Baltimore, 11 L.R.A. 224; Oilman v. Tucker,
18 LR.A. 304; Pearson v. Yewdall, 24 L.
«d. U. S. 436; and Wilson v. North Caro-
lini, 42 L. ed. U. S. 865.
As to ths validity of class legislation,
10 L. ed.
generally — see notes to State v. Goodwill,
6 L.R.A. 621 ; and State v. Loomis, 21 L.RJL
789.
As to constitutional equality of privileges,
immunities, and protection, generally — see
note to Louisville Safety Vault ft T. Co. v.
LouisvUle ft N. R. Co. 14 L«RJu ^1<^.
1k^^
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
the excess of the aggregate of gains from
all sources, over the aggregate of losses.
Later this court held that the tax thus
laid was an excise tax upon the business
conducted by the corporation, and not a
tax upon the bondholder or stockholder.
United States v. Erie R. Co. 106 U. S.
327, 27 L. ed. 161, 1 Sup. Ct. Rep. 223.
The classification is arbitrary and un-
reasonable.
1 Cooley, Taxn. 3d ed. p. 1; Gray, Limi-
tations of Taxing Fewer, p. 353; Cooley,
Const. Lim. pp. 607, 615; M'Culloch v.
Maryland, 4 Wheat. 316, 4 L. ed. 579; Citi-
zens' Sav. k L. Asso. ▼. Topeka, 20 Wall.
655, 663, 22 L. ed. 455, 461 ; United States
V. Singer. 15 Wall. Ill, 121, 21 L. ed. 49,
51; Scholey ▼. Rew, 23 Wall. 331, 348, 23
L. ed. 99, 102; Ward v. Maryland, 12 Wall.
418, 431, 20 L. ed. 449, 453; Loughborough
V. Blake, 5 Wheat 317, 5 L. ed. 98; Pollock
V. Farmers* Loan & T. Co. 157 U. S. 429,
39 L. ed. 759, 15 Sup. Gt. Rep. 673; South-
ern R. Co. ▼. Greene, 216 U. S. 400, 54 L.
ed. 536, 30 Sup. Ct Rep. 287; Pembina
Consol. Silver Min. Co. v. Pennsylvania, 125
U. S. 181, 188, 31 L. ed. 650, 653, 2 Inters.
Com. Rep. 24, 8 Sup. Ct. Rep. 737; Santa
Clara County v. Southern P. R. Co. 9 Sawy.
165, 18 Fed. 385, affirmed in 118 U. S. 394,
30 L. ed. 118, 6 Sup. Ct Rep. 1132; San
Bernardino County v. Southern P. R. Co.
118 U. S. 417, 30 L. ed. 125, 6 Sup. Ct Rep.
1144; San Mateo County v. Southern P. R.
Co. 7 Sawy. 517, 13 Fed. 145; Northern P.
R. Co. V. Walker, 47 Fed. 685.
A constitutional provision, like a statute,
must be interpreted in the light of his-
tory.
Briscoe v. Bank of Kentucky, 11 Pet 332,
9 L. ed. 738; Legal Tender Cases, 12 Wall.
457, 20 L. ed. 287.
The discrimination effected by the pres-
ent statute violates the express provisions
of the Constitution.
Pollock V. Farmers' Loan & T. Co. 157
U. S. 429, 659, 39 L. ed. 759, 811, 15 Sup.
Ct Rep. 673; Railroad Tax Case, 8 Sawy.
238, 13 Fed. 722; Santa Clara County t.
Southern P. R. Co. 9 Sawy. 165, 18 Fed.
386, affirmed in 118 U. 8. 394, 30 L. ed.
118, 6 Sup. Ct. Rep. 1132; Gulf, C. ft S. F.
R. Co. V. Ellis, 166 U. S. 150, 165, 41 L.
ed. 666, 668, 17 Sup. Ct. Rep. 255; SUte
ex rel. White House School Dist. v. Read-
ington, 36 N. J* L. 70; Lexington v. Mc-
Quillan, 9 Dana, 516, 36 Am. Dec. 159;
Cope's Estate, 191 Pa. 22, 45 L.R.A. 616,
71 Am. St Rep. 749, 43 Atl. 79; Gray,
Limitations of Taxing Power, p. 353;
Cooley, Const Lim. pp. 607, 616; Citizens'
Sav. ft L. Asso. v. Topeka, 20 Wall. 655,
22 L. ed. 456; United SUtes v. Singer, 15
556
WaU. Ill, 121, 21 L. ed. 51; Scholey ▼.
Rew, 23 WalL 331, 23 L. ed. 99 ; M'Oulloch
V. Maryland, 4 Wheat 316, 435, 4 L. ed.
579, 608; Loughborough v. Blake, 5 Wheat.
317, 326, 6 L. ed. 98, 100; Ward v. Mary-
land, 12 Wall. 418, 431, 20 L. ed. 449, 453;
Southern R. Co. v. Greene, 216 U. S. 400,
54 L. ed. 536, 30 Sup. Ct Rep. 287, 17
Ann. Cas. 1247; Pembina Consol. Silver
Min. Co. V. Pennsylvania, 125 U. S. 181,
188, 81 L. ed. 650, 653, 2 Inters. Com. Rep.
24, 8 Sup. Ct Rep. 737. .
Progressive taxation on inheritances does
not constitute a precedent for the case at
bar, for such taxation is not upon property,
but upon the right to succession, and the
property taxed is not held by the owner as
a matter of right but goes to the recipient
as a matter of privilege fr<Hn the state.
Magoun v. Illinois Trust ft Sav. Bank,
170 U. S. 283, 288, 42 L. ed. 1037, 1040, 18
Sup. Ct. Rep. 594; Knowlton v. Moore, 178
U. S. 41, 47, 44 L. ed. 969, 972, 20 Sup. Ot.
Rep. 747 ; Scholey v. Rew, 23 WalL 831, 23
L. ed. 99.
There are limitations upon the powers
of all governments, without any express
designation of them in their organic law,
— limitations which inhere in their very
nature and structure.
United SUtes v. Erie R. Co. 106 U. 8.
327, 834, 27 L. ed. 151, 156, 1 Sup. Ct. Rep.
223.
Such limitations bind Congress in the
exercise of its taxing power.
Citizens' Sav. ft L. Asso. v. Topeka, 20
Wall. 655, 662, 22 L. ed. 455, 461.
The 5th Amendment imposes a curb on
the Federal government (French v. Bar-
ber Asphalt Paving Co. 181 U. S. 324, 329,
45 L. ed. 879, 884, 21 Sup. Ct. Rep. 625).
The very words used in the amendment, "by
due process of law," have their equivalent,
as expressed by Lord Coke, in the words,
"law of the land," and prohibi"^, among
other things, taking private property for
public use without just compensation (Dav-
idson V. New Orleans, 96 U. S. 97, 101, 24
L. ed. 616, 618). This limiUtion is as
old as the principle of civilized govern-
ment, and was by the 5th Amendment in-
troduced into the Constitution of the United
States as a limitation upon the powers of
the national government (Munn v. Illinois,
94 U. S. 113, 123, 24 L. ed. 77, 83). The
due process of law, as thus described, pro-
tects the citizen against the arbitrary ex-
ercise of the powers of government, tmre-
strained by the .established principle of
private right and distributive justice.
Bank of Columbia v. Okely, 4 Wheat
237, 244, 4 Ix ed. 659, 661; OaldweU ▼.
840 U. 8.
1916.
DODGB T. OSBORK.
11(^118
Tezfts, 187 U. 8. 692, 697, 84 L. ed« 816,
818, 11 Sup. Ct. Rep. 224.
Solicitor General DaTla and AMiatant
Attorney General Wallace argued the
eauM, and, with Attorney General Gr^^ry,
filed a brief for defendant in error.
For their contentions, see their brief as
reported in Bruahaber v. Union P. B. Oo.
ante, 493.
Mr. Chief Justice White delivered the
opinion of the court:
Both the plaintiffs in error, the one in
393 a corporation and the other in 394 an
individual, paid under protest [117] to the
collector of internal revenue, taxes assessed
under the income tax section of the tariff
act of October 8, 1913 (sec. II., chap. 16, 38
Stat, at li 166, Comp. Stat. 1913, § 6319).
After an adverse ruling by the Commission-
er of Internal Revenue on appeals which
were prosecuted conformably to the statute
( Rev. Stat. §S 3220, 3226, Comp. Stot. 1913,
§§ 5944, 6949) by both the parties for a
refunding to them of the taxes paid, these
suits were commenced to recover the
amounts paid on the ground of the repug-
nancy to the Constitution of the section of
the statute under which the taxes had been
collected, and the cases are here on direct
writs of error to the judgments of the
court below, sustaining demurrers to both
complaints on the ground that they stated
no cause of action.
Every contention relied upon for reversal
In the two cases is embraced within the fol-
lowing propositions: (a) that the tax im-
posed by the statute was not sanctioned by
the 16th Amendment because the statute ex-
ceedcd the exceptional and limited power of
direct income taxation for the first time
conferred upon Congress by that Amend-
ment, and, being outside of the Amendment,
and governed solely, therefore, by the gen-
eral taxing authority conferred upon Con-
gress by the Constitution, the tax was void
as an attempt to levy a direct tax without
apportionment under the rule established
by Pollock V. Farmers' Loan & T. Co. 157
U. S. 429, 39 L. ed. 759, 15 Sup. Ct. Rep.
673; 158 U. S. 601, 39 L. ed. 1108, 15 Sup.
Ct Rep. 912; (b) that the statute is,
moreover, repugnant to the Constitution be-
cause of the provision therein contained for
its retroactive operation for a designated
time, and because of the illegal discrimina-
tions and inequalities which it creates, in-
cluding the provision for a progressive tax
en the income of individuals and the method
provided in the statute for computing the
taxable income of corporations.
But we need not now enter into an origi-
nal consideration of the merits of these con-
66 li. ed.
I tentions because each and all of them were
eonsidered and adversely disposed of in
Brushaber v. Union P. R. Co. 240 U. S. 1,
ante, 493, 36 Sup. Ct. Rep. 236. That case
[118] therefore, is here absolutely con-
trolling and decisive. It follows that for
the reasons stated in the opinion in the
Brushaber Case, the judgments in these
cases must be and they are affirmed.
Mr. Justice McReynolds took no part in
the consideration and decision of these cases.
JOHN F. DODGE and Horace E. Dodge,
Appts.,
V.
WILLIAM H. OSBORN, Commissioner of
Internal Revenue.
(See 8. 0. Reporter's ed. 118-122.)
Injunction — against Income tax — re-
covery Iwck of taxes paid.
1. The inhibition of U. S. Rev. Stat.
§ 3224 (Comp. SUt. 1913, § 5947), against
suits to restrain the assessment or collec-
tion of a tax, and the provisions of §§ 3220,
3226, 3227 (Comp. Stat. 1013, §§ 5944,
5949, 5950), making an appeal to the Ck)m-
miesioner of Internal Revenue after pay-
ment and his refusal to refund prerequisites
to a suit to recover taxes erroneously or il-
legally assessed and collected, are made ap-
plicable to taxes imposed under the income
tax section of the tariff act of October 3,
1913 (38 SUt. at L. 166, chap. 16), by H L
of that act, which provides that all admin-
istrative, special, and general provisions of
layr, including the laws in relatipn to the
assessment, remission, collection, and re-
fund of internal revenue taxes not hereto-
fore specifically repealed, and not inconsist-
ent with the provisions of this section, are
hereby extended and made applicable to all
the provisions of this section and to the tax
herein imposed.
[For other cases, see Injunction. I. k ; Taxes,
III. g. 2, in Digest Sop. Ct. 1908.)
Injunction — against tax — Income
taxes.
2. The courts are precluded, by the in-
hibition of U. S. Rev. Stat. § 3224, Comp.
Stat. 1913, S 5947, against suits to restrain
the assessment or collection of any tax,
from taking jurisdiction of a bill filed
Note. — On injimction to restrain the col-
lection of illegal taxes — see notes to Odlin v.
Woodruff, 22 L.RJL. 699; Dows v. Chicago,
20 L. ed. U. S. 65; and Ogden City v. Arm-
strong, 42 Lw ed. U. S. 445.
As to what constitutes due process of law,
generally — see notes to People v. O'Brien,
2 L.R»A.. 255; Kunts v. Sumption, 2 L.RJL
655; Re Gannon, 5 L.RJL 359; Ulman v.
Baltimore, 11 L.RJL 224; Oilman v. Tuck-
er, 13 L.R.A. 304; Pearson v. Yewdall, 24
L. ed. U. S. 436; and Wilson v. North Caro-
lina, 42 L. ed. U. S. 865.
SUPREME COURT OF THE UNITED STATES.
Oct. Tknc^
against the CommiRsioner of Internal Reve-
nue to enjoin the assessment and collection
of the taxes imposed bv the income tax sec-
tion of the tariff act of October 3, 1013 (38
Stat, at L. 166, chap. 16), on the ground
that that statute is void for repugnancy to
the Constitution of the United States.
[For other cases, see Injunction, I. k, in
Digest Sup. Ct. 1908.]
Injanction — against tax — income
taxes.
8. Allegations in a bill filed against the
Commissioner of Internal Revenue to enjoin
the assessment and collection of the taxes
imposed by the income tax section of the
tariff act of October 8, 1913 (38 SUt. at
L. 166, chap. 16), that unless the taxes are
enjoined many suits by other persons will
be brought for the recovery of the taxes
paid by them, and that by reason of U. S.
Rev. Stat. § 3187, Comp. Stot. 1913, § 5900,
making the tax a lien on plaintiff's prop-
erty, the assessment of the taxes would con-
stitute a cloud on plaintiff's title, do not
take the case out of the rule that under
S 3224, Comp. Stat. 1913, § 5947, a suit
may not be brought to enjoin the assess-
ment or collection of a tax because of the
alleged unconstitutionality of the statute
imposing it, even assuming that this doc-
trine has no application to a case where,
whoUv independent of any claim of the un-
constitutionality of the tax sought to be
enjoined, additional equities sufficient to
sustain jurisdiction are alleged.
[For other cases, see Injunction, I. k, in
Digest Sup. Ct. 1908.1
Constitntional law — due process of law
— relief against illee:al tax.
4. There is no want of due process of
law in the provisions of U. S. Rev. Stat.
§§ 3220, 3226, 3227, Comp. SUt. 1913,
§§ 5944, .5949, 5950, 'makinc an appeal to
the Commissioner of Internal Revenue after
payment and his refusal to refund prere-
quisites to a suit to recover taxes erroneous-
ly or illegally assessed and collected.
[For other cases, see Constitutional Law,
629-678. in Digest Sup. Ct. 1908.]
[No. 396.]
Submitted October 12, 1915. Decided Feb-
ruary 21, 1916.
APPEAL from the Court of Appeals of
the District of Columbia to review a
decree which affirmed a decree of the Su-
preme Court of the District, dismissing, for
want of jurisdiction, the bill in a suit to
enjoin the assessment and collection of in-
come taxes. Affirmed.
See same case below, 43 App. D. C. 144.
The facts are stated in the opinion. .
Hr. Fred A. Baker submitted the cause
for appellants:
A distinction exists between official
action which is an unlawful assumption of
authority that has not been conferred, and
a mistaken, erroneous, or irregular exer-
cise of authority.
De Lima v. Bidwell, 182 U. S. 1, 46 L*
ed. 1041, 21 Sup. a. Rep. 743; Ogden City
V. Armstrong, 168 U. S. 224, 240, 42 L. ed»
444, 452, 18 Sup. Ct. Rep. 98; 2 Gneist^
History of Eng. Const., p. 369; Colonial
Bank v. Willan, L. R. 5 P. C. 417, 43 L.
J. P. C. N. S. 39, 30 L. T. N. S. 237, 22
Week. Rep. 516; Reg. v. Cheltenham, 1 Q.
B. 474, 1. Gale & D. 167, 10 L. J. Mag. Gas.
N. S. 99..
An unconstitutional act of Congress or
of a state l^islature confers no jurisdiction
or authority.
Osborn v. Bank of United States, 9
Wheat. 738, 868, 6 L. ed. 204, 235; Piper
V. Pearson, 2 Gray, 120, 61 Am. Dec. 438;
Kelly V. Bemis, 4 Gray, 83, 64' Am. Dec.
50; Lynn v. Polk, 8 Lea, 129.
The right to an injunction in cases with-
in the jurisdiction of a court of equity is
a constitutional rights which cannot be
destroyed or seriously impaired by any act
of Congress.
Hepburn v. Griswold, 8 Wall. 603, 19 L.
ed. 513; Green v. Biddle, 8 Wheat. 1, 6
L. ed. 547; Park v. Detroit Free Press Oo.
72 Mich. 566, 1 L.R.A. 599, 16 Am. St.
Rep. 544, 40 N. W. 731.
The case of the plaintiffs is within recog-
nised grounds of equitable jurisdiction.
Ogden City v. Armstrong, 168 U. S. 224,
42 L. ed. 444, 18 Sup. Ct. Rep. 98; Wilson
V. Lambert, 168 U. S. 611, 42 L. ed. 590,
18 Sup. Ct. Rep. 217; Cummings v. Mer-
chants' Nat. Bank, 101 U. S. 153. 25 L. ed.
903; Hills v. National Albany Exch. Bank,.
105 U. S. 319, 26 L. ed. 1052; SUnl^y v.
Albany County, 121 U. S. 535, 30 L. ed.
1000, 7 Sup. Ct. Rep. 1234; Fargo v. Hart»
193 U. S. 490, 48 L. ed. 761, 24 Sup. Ct.
Rep. 498; Raymond v. Chicago Union Trac-
tion Co. 207 U. S. 20, 52 L. ed. 78, 28 Sup.
Ct. Rep. 7, 12 Ann. Cas. 757; Western U.
Teleg. Co. v. Andrews, 216 U. S. 165, 54
L. ed. 430, 30 Sup. Ct. Rep. 286; Journal
of Commerce k C. Bulletin v. Burleson,
220 U. S. 600, 57 L. ed. 1347, 33 Sup. Ct.
Rep. 464; Vesta Mills v. Charleston, 60 S.
C. 1, 38 S. E. 226; Dows v. Chicago, 11
Wall. 108, 20 L, ed. 65; Union P. R. Co. ▼.
Cheyenne (Union P. R. Co. v. Ryan) lia
U. S. 516, 28 L. ed. 1098, 5 Sup. Ct. Rep.
601; Shelton v. Piatt, 139 U. S. 591, 35 L.
ed. 273, 11 Sup. Ot. Rep. 646; Ohio Tax
Cases, 232 U. S. 576, 587, 58 L. ed. 737^
743, 34 Sup. Ct. Rep. 372; Rogers v. Nich-
ols, 186 Mass. 440, 71 N. £. 950 ; Stevens y.
Mulligan, • 167 Mass. 84, 44 N. E. 1086;
Loring v. Hildreth, 170 Mass. 328, 40
LwR.A. 127, 64 Am. St. Rep. 301, 49 N. E.
240 U. 8»
1015.
DODGE V. OSBORN.
119-121
C52; White ▼. Gore, 183 Man. 333, 07
N. E. 359.
The revenue oiBcers of the United States
are personally liable in common -law and
equitable actions for acts not within their
authority or jurisdiction.
2 Anson, Law ft Custom of the Const, pp.
231, 477 ; Dicey, Law of the Const, pp. 320,
321; Leach t. Money, 19 How. St. Tt. 1001;
Wilkes V. Wood, 19 How. St. Tr. 1163;
Wilkes V. Lord Halifax, 19 How. St. Tr.
1406; 2 Stephen, History of Grim. Law, 61;
1 Bryoe, Am. Com. p. 239; United States
T. Peters, 5 Cranch, 115, 3 L. ed. 53; Meigs
T. M'Clung, 9 Cranch, 11, 3 L. ed. 639; Oa-
bom T. Bank of United States, 9 Wheat.
738, 868, 6 L. ed. 204, 235; United States
T. Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup.
Ct Rep. 240.
Solicitor General DaTin and Assistant At-
torney General Wallace submitted the
cause for appellee. Attorney General Greg-
ory was on the brief.
For their contentions, see their brief as
reported in Brushaber ▼. Union P. R. Oo.
ante, 493.
Mr. Chief Justice White delivered the
opinion of the court:
The appellants filed their bill in the su-
preme court of the District of Columbia
against the Commissioner of Internal Reve-
nue to enjoin the assessment and collection
of the taxes imposed by the income tax sec-
tion of the tariff act of October 3, 1913 ( 38
Stat, at L. 166, 181, chap. 16), and especial-
ly the surtaxes therein provided for, on the
ground that the statute was void for repug-
nancy to the Constitution of the United
States. The case is here on appeal from the
judgment of the court below, affirming the
action of the trial court in sustaining a
motion to dismiss the complaint for want
of jurisdiction because the complainants
had an adequate remedy at law, and because
of the provision of S 3224, Revised Statutes
(Comp. Stat. 1913, g 5947), that ''no suit
for the purpose of restraining the assess-
ment or collection of any tax shall be main-
tained in any couri."
We at once put out of view a contention
that § 3224 is not applicable to taxes im-
posed by the income tax law since we are
clearly of the opinion that [120] it is
within the contemplation of paragraph L of
the act which provides:
That all administrative, special, and
general provisions of law, inehidiiig the
laws in relation to the asseasment, remis-
sion, collection, and refund of internal-
revenue taxes not heretofore specifieally re-
pealed and not inconsistent with the pro-
60 li. ed.
I visions of this section, are hereby extended
and made applicable to all the provisions of
this section and to the tax herein imposed."
And for the same reason we do not further
notice a contention as to the inapplicability
of §S 3220, 3226, and 3227 (Comp. Stat.
1913, SS 5944, 5949, 5950), to which effect
was given by the court below, requiring an
appeal to the Commissioner of Internal
Revenue after payment of a tax claimed to
have been erroneously or illegally assessed
and collected, and, upon his refusal to re-
turn the sum paid, giving a right to sue for
its recovery.
The question for decision, therefore, is
whether the sections of the Revised Statutes
referred to are controlling as to the case in
hand. The plain purpose and scope of the
sections are thus stated in Snyder v. Marks,
109 U. 8. 189, 193, 194, 27 L. ed. 901, 903, 3
Sup. Ct. Rep. 157, a suit brought to enjoin
the collection of a revenue tax on tobacco:
'<The inhibition of S 3224 (Comp. Stati
1913, § 5947), applies to all assessments of
taxes, made under color of their offices, by
internal revenue officers charged with gen-
eral jurisdiction of the subject of assessing
taxes against tobacco manufacturers. The
remedy of a suit to recover back the tax
after it is paid is provided by statute, and
a suit to restrain its collection is forbidden.
The remedy so given is exclusive, and no
other remedy can be substituted for it.
. . . Clieatham v. United States (Cheat-
ham V. Norvekl) 92 U. S. 85, 88, 23 L. ed.
561, 562, and again in State R. Tax Cases,
92 U. S. 575, 613, 23 L. ed. 663, 673, it was
said by this court, ^at the system pre-
scribed by the United States in regard to
both customs duties and internal revenue
taxes, of stringent measures, [121] not
judicial, to collect them, with appeals to
specified tribunals, and suits to recover
back moneys illegally exacted, was a sys-
tem of corrective justice intended to be
complete^ and enacted under the right be-
longing to the government to prescribe the
conditions on which it would subject itself
to the judgment of the courts in the col-
lection of its revenues. In the exercise of
that rif^t, it declares, by | 3224, that iU
officers shall not be enjoined from collect-
ing a tax claimed to have been unjustly as-
sessed, when those officers, in the course of
general jurisdiction over the subject-matter
in question, have made the assignment [as-
sessment] and claim that it is valid.*'
And this doctrine has been repeatedly ap-
plied until it is no longer open to quMtion
that a suit may not be brought to enjoin the
assessment or collection of a tax because of
the alleged unconstitutionality of the stat-
121, 122
SUPREME COURT OF THE UNITED STATES.
Oct. Teim,
ute imposing it. Shelton v. Piatt, 139 U. S.
591, 35 L. ed. 273, 11 Sup. Ct. Rep. 646;
Pittsburgh, C. C. & St. L. R. Go. v. Board of
Public Works, 172 U. S. 32, 43 L. ed. 354,
19 Sup. Ct. Rep. 90; Pacific Steam Whaling
Go. V. United SUt«s, 187 U. S. 447, 451, 452,
47 L. ed. 253, 255, 256, 23 Sup. Ct. Rep. 154.
But it is contended that this doctrine has
no application to a case where, whollj inde-
pendent of anj claim of the unconstitu-
tionality of the tax sought to be enjoined,
additional equities sufficient to sustain
jurisdiction are alleged, and this, it is as-
serted, being such a case, falls within the ex-
ception to the general rule. But, conceding
for argument's sake only the legal premise
upon which the contention rests, we think
the conclusion that this case falls within
such exception is wholly without merit,
since, after an examination of the com-
plaint, we are of the opinion that no ground
.for equitable jurisdiction is alleged. It is
true the complaint contains averments that
unless the taxes are enjoined many suits by
other persons will be brought for the re-
covery of the taxes paid by them, and also
that by reason of § 3187, Rev. Stat. (Comp.
Stat. 1913, § 5909), making the Ux a lien
on plaintiffs' property, the assessment of the
taxes would constitute a cloud on plaintiffs'
[122] title. But these allegations are
wholly inadequate under the hypothesis
which we have assumed solely for the sake
of the argument, to sustain jurisdiction,
since it is apparent on their face they al-
lege no ground for equitable relief inde-
pendent of the mere complaint that the tax
is illegal and unconstitutional and should
not be enforced, — allegations which, if rec-
ognized as a basis for equitable jurisdiction,
would take every case where a tax was as-
sailed because of its unconstitutionality out
of the provisions of the statute, and thus
render it nugatory, while it is obvious that
the statute plainly forbids the enjoining of
a tax unless by some extraordinary and en-
tirely exceptional circumstance its pro-
visions are not applicable.
There is a contention that the provisions
requiring an appeal to the Commissioner of
Internal Revenue after payment of the
taxes, and giving a right to sue in case of
his refusal to refund, are wanting in due
process, and therefore there is jurisdiction.
But we think it suffices to state that con-
tention to demonstrate its entire want of
merit.
Affirmed*
Mr. Justice McReynolda took no part in
the consideration and decision of this case.
JOHN F. DODOE and Horace E. Dodge,
Appts.,
V.
JAMES J. BRADY, Collector of Internal
Revenue.
(See 8. C. Reporter's ed. 122-126.)
ApiMal — reversible error — lack of
jurladlction » suit to recorer taxes
wrongfully collected.
A Federal district court cannot be
said to have committed reversible error in
assuming to pass upon the merits of a con-
troversy presented by a supplemental bill
alleging that, since the filing of the original
bill to enjoin the collector of internal reve-
nue from collecting the surtaxes assessed
under the income tax section of the tariff
act of October 3, 1913 (38 SUt. at L. 166,
chap. 16, Comp. SUt. 1913, §§ 6319-
6336), on the ground of its unconstitu-
tionality, the Commissioner of Internal
Revenue had ruled adverselv upon plaintiffs'
protest, and that they had thereupon paid
the taxes under protest, and prayins a re-
covery of the amount paid to the ccMleotoTy
and the other relief asked in the original
bill, notwithstanding the failure of such
supplemental bill to allege a compliance
with the conditions imposed by U. S. Rev.
Stat. §§ 3220, 3226, Comp. Stat. 1913,
§§ 5944, 5949, as prerequisites to a suit to
recover taxes wrongfully collected, vim,, an
appeal to the Commissioner of Internal
Revenue after payment, and his refusal to
refund.
[For other cases, see Appeal and Brror.
5189-5196. in Direst Sup. Ct. 1908.]
[No. 213.]
Argued October 14 and 15, 1915.
February 21, 1916.
APPEAL from the District Court of the
United States for the Eastern District
of Michigan to review a decree dismissing
a suit to enjoin the collection of an income
tax, and to recover the amount of the tax
paid imder protest. Affirmed.
The facts are stated in the opinion.
Mr. William D. Guthrie argued the
cause, and, with Mr. Fred A. Baker, filed a
brief for appellants :
Even if it could be shown affirmatively
that the abuse of the taxing power was not
in the minds of the people of the United
States at the time the 5th Amendment waa
adopted, and that the framers apprehended
no danger from abuse and discriminations
in the exercise of that power, this would
not limit the scope of the Amendment if
the case now presented came fairly within
its general spirit and letter.
Dartmouth College v. Woodward, 4*
Wheat. 518, 644, 4 L. ed. 629, 661.
Had the first Congresa deliberated at
S40 U. 8.
1916.
DODGE V. BRADT.
124, 126
kngth upon the dioioe of a proritioii which
ifwdd be more effective than any other to
prerent an abuse of the taxing power, it
^aold not have selected one more appro-
priate than "due process of law." The
phrase "due process of law/' or its equiva-
lent, "the law of the land/' long antedated
the establishment of our political institu-
tions. It embodied then, as now, the most
fundamental and far-reaching maxim of
•constitutional law and political justice, and
it represented the broadest and most com-
prehensive guaranty of personal and prop-
erty rights. In fact, there are no words
in our Ir nguage which signify or mean more
ia respect of the rights and liberties of the
individual.
Monongahela Nav. Co. v. United States,
148 U. S. 312, 324, 336, 37 L. ed. 463, 467,
471, 13 Sup. Ot Rep. 622.
The prohibition against the deprivation
<i property without due process of law
cannot mean one thing under the 5th
Amendment and another thing under the
14th Amendment.
Wij^t V. Davidson, 181 U. 8. 371, 377,
45 L. ed. 000, 903, 21 Sup. Ot. Rep. 616;
Twining ▼. New Jersey, 211 U. 8. 78, 101,
63 L. ed. 97, 107, 29 Sup. Ct. Rep. 14;
French ▼. Barber Asphalt Paving Co. 181
U. 8. 324, 329, 45 L. ed. 879, 884, 21 Sup.
Ct Rep. 625.
Any provision of an act of Congress im-
posing an unequal and discriminatory tax
hy means of unreasonable and arbitrary
selection among those of the class taxed
Would conflict with the provisions of U. S.
Const. 5th Amendment, by depriving the
individual of property without due process
of law, or taking private property for pub-
lic use without just compensation.
Southwestern Oil Co. v. Texas, 217 U. S.
114, 119, 64 L. ed. 688, 691, 30 Sup. a.
Rep. 496; Santa Clara County v. Southern
P. R Co. 9 Sawy. ] 65, 18 Fed. 399, affirmed
hi 118 U. S. 394, 30 L. ed. 118, 6 Sup. Ct.
Rep. 1132.
The grant of power to tax in and of
itself implies the limitation that a tax
Dmst necessarily be a common burden,
-equally imposed upon all of the same class,
-owning the same kinds of property, having
the same kind of income, doing the same
•iets, or exercising the same privileges.
Pollock V. Farmers' Loan k T. Co. 157 U.
5. 429, 5&9, 39 L. ed. 759, 825, 15 Sup. Ct.
Rep. 673; State v. United States k C. Exp.
Co. 60 N. H. 236; SUte ex rel. White House
tSchool Dist. V. ReadinFt/»n Twp. 36 N.
/. L. 70; Cooley, Taxn. 3d ed. pp. 4, 260;
Cooley, Ccmst. Law, 3d ed. p. 356.
40 li. ed.
Mr. Fred A. Baker filed a separate brief
for appellants:
The Secretary of the Treasury cannot be
authorized to determine without notice or
a hearing whether a corporation has accu-
mulated a surplus in excess of the needs and
purposes of the business.
Coe V. Armour Fertilizer Works, 237 U.
S. 413, 59 L. ed. 1027, 35 Sup. Ct. Rq>.
625; Stuart v. Palmer, 74 N. Y. 188, 30
Am. Rep. 289; Security Trust k S. V. Co.
V. Lexington, 203 U. S. 323, 333, 51 L. ed.
204, 208, 27 Sup. Ct. Rep. 87; Central of
Georgia R. Co. v. Wright, 207 U. S. 127,
52 L. ed. 134, 28 Sup. Ct. Rep. 47, 12 Ann.
Cas. 463; Roller v. Holly, 176 U. 8. 398,
409, 44 L. ed. 520, 624, *20 Sup. Ct. Rep.
410; Louisville k N. R. Co. v. Central
Stock Yards Co. 212 U. 8. 132, 144, 63
L. ed. 441, 446, 29 Sup. Ot. Rep. 246.
There are some limitations on the power
to tax which are inherent in the forms of
constitutional government which prevail in
the United States, and in the nature of our
institutions.
Miller, Const, p. 241 ; Citizens' Sav. k L.
Asso. V. Topeka, 20 Wall. 655, 22 L. ed.
455.
Some rule of uniformity and equality is
absolutely essential to any valid taxation.
Sutton V. Louisville, 5 Dana, 31; Lex-
ington V. McQuillan, 9 Dana, 513, 35 Am.
Dec. 159; Howell v. Bristol, 8 Bush, 493;
State ex rel. White House School Dist. v.
Readington Twp. 36 N. J. L. 66 ; People ex
rel. Griffin v. Brooklyn, 4 N. Y. 420, 55
Am. Dec. 266; State v. Travelers' Ins. C^.
73 Conn. 255, 57 L.R.A. 481, 47 Atl. 299.
Taxes cannot be levied, or money in the
treasury be appropriated, for the relief of
taxpayers.
Cooley V. Granville, 10 Cush. 56; Hooper
V. Emery, 14 Me. 375; Weeks v. Milwaukee,
10 Wis. 243; Brewer Brick Co. v. Brewer,
62 Me. 62, 16 Am. Rep. 395.
Solicitor General Davis and Assistant
Attorney General Wallace argued the
cause, and, with Attorney General Gregory,
filed a brief for appellee.
For their contentions, see their brief as
reported in Brushaber v. Union P. R. Co.
ante, 493.
Mr. Chief Justice White delivered the
opinion of the court:
The appellants are the same persons who
sued in Dodge v. Osbom, just decided [240
U. 8. 118, ante, 557, 36 Sup. Ct. Rep. 276].
After the dismissal of that suit by the su-
preme court of the District of Columbia for
want of jurisdiction, the parMes, on June
10, 1914, filed their bill in the court below
against the collector [125] of internal rev-
36 t^%^.
125-127
SUPREME COURT OF THE UNITED STATES.
Oct. Tkem^
enue, to enjoin the collection of the surtaxes
asBessed against them, which were disputed
in the previous case on substantially the
same grounds alleged in the complaint in
that case. The bill alleged, however, that
plaintiffs had filed with the collector "an
appeal or claim for the remission and
abatement of the surtaxes" because of the
unconstitutionality of the statute imposing
them, and that the Commissioner of Inter-
nal Revenue to whom the claim had been
forwarded by the collector had such protest
under advisement. Upon the filing of the
bill the plaintiffs moved for a preliminary
injunction which was denied July 29, 1914.
On the same day, by leave of court, a sup-
plemental bill was filed which alleged that
since the filing of the original bill the Com-
missioner of Internal Revenue had ruled
adversely upon plaintiffs' protest, and that
thereupon they had paid the surtaxes to the
collector under protest, and they prayed a
recovery of the amount paid to tiie collector
and for the other relief asked in the orig-
inal bill. The defendant moved to dismiss
the bill for want of jurisdiction because the
suit was brought to enjoin the collection of
a tax, contrary to the provisions of § 3224,
Revised Statutes (Comp. Stat. 1913, §
5947), and for want of equity because the
income tax law was constitutional and
valid. The court sustained the motion on
the latter ground and dismissed the bill on
the merits, and the case is here on direct
appeal because of the constitutional ques-
tions.
The government insists that the court be-
low was without jurisdiction to decide the
merits, and we come first to that question.
It is apparent if the original bill alone is
taken into view that the suit was brought
to enjoin the collection of a tax, and the
court was without jurisdiction for the rea-
sons stated in the previous case. And it is
argued by the government that there was no
jurisdiction under the supplemental bill,
since it fails to allege that an appeal was
taken to the Commissioner of Internal Rev-
enue after the payment of the taxes, and
that he refused [126] to refund them, and
therefore fails to allege a compliance with
the conditions imposed by §§ 3220 and 3226
of the Revised Statutes (Comp. SUt. 1913,
§§ 5944, 5949 ) , as prerequisites to a suit to
recover taxes wrongfully collected. But,
broadly considering the whole situation,
and taking into view the peculiar facts of
the case, the protest to the Commissioner,
and his exertion of authority over it, and
his adverse ruling upon the merits of the
tax, thereby passing upon every question
which he would be called upon to decide on
an appeal for a refunding of the taxes paid,
we think that this case ii lo exceptional in
503
character as not to justify us in holding-
that reversible error was committed by the-
court below in passing upon the case upon
I its merits, thus putting an end to further
I absolutely useless and unnecessary contro-
versy. We say useless and unnecessary be-
cause on the merits all the contentiona
urged by the appellants concerning the un-
constitutionality of the law and of the sur-
taxes which it imposes have been considered
and adversely disposed of in Brushaber v.
Union P. R. Co. 240 U. S. 1, ante, 493, 36-
Sup. Ct. Rep. 236.
Judgment affirmed.
Mr. Justice McReynoIds took no part In.
the consideration and decision of this ease..
[127] IDA MAY INNES, Plff. in Err.,
V.
JOHN W. TOBIN, Sheriff of Bexar Goun*
ty, Texas.
(See S. C. Reporter's ed. 127-135.)
Interstato extradition » fugitive fronts
jastice.
1. The surrender of a person in one
state for removal to another as a fugitive-
is expressly or by necessary implicyatioi^
prohibited bv U. S. Rev. Stat. § 5278, Comp.
Stat. 1913, *§ 10,126, where it clearly ap-
pears that the person was not and could not
have been a fugitive from the justice of the-
demanding state.
[For other cases, see Extradition, I., In Digest
Sup. Ct 1908.]
Api>cal » presamptions — extradition*
» fugitive from jastice.
2. The Federal Supreme Court, when
reviewing the refusal of a state court to-
discharge on habeas corpus a person whose
extradition is sought by another state, will
assume that the accused was a fugitive f romi
the justice of the demanding state, where
there was no question of such fact made in
the application for habeas corpus, the relief
relied upon being solely that there was and
could have been no night into the state,.
since the coming therein was involuntary,
and resulted solely from other extradition
proceedings, and that view of the subject
was assumed by the court below to be un-
que^ioned, and neither in the assignments
of error in the Federal Supreme Court nor
in the arguments is the contrary view in-
sisted upon or even suggested.
[For other cases, see Appeal and Brror, VIII..
d. In Digest Sup. Ct. 1908.] ■
NOTE; — As to who are fugitives from jus-
tice for purposes of extradition — see notes
to Cook V. Hart, 36 L. ed. U. S. 934; and
Bassing ▼. Cady, 52 L. ed. U. S. 540.
As to whether a state which has extradit-
ed a person from another state or country
may surrender him to a third state or coun-
try— see note to this case in the state oourt-
as reported in LJUL1916C, 1251?.
240 U. 8-
1915.
IKN£S V. TOBIN.
Interstate extradition — proceedings
after surrender » release or return.
3. Nothing in the interstate extradition
proriaions of U. 8. Rar. Stat. I 5278, Comp.
Stat 1913, S 10,126, givea the extradited
person any immmnity after trial and ac*
quittal in the demanding state from her
subsequent surrender to another state upon
an extradition warrant instead of releasing
her from Custody or returning her to the
state whence she was originally brought.
[For otber cases, see Extradition, V., In Di-
gest Sup. Ct. 1908.]
Interstate extradition » exclusiyeness
of Federal power » congressional
inaction — Inyolnntary presence of
a<»nscd.
4. The failure of Congress when enact-
ing the interstate extradition provisions of
U. S. Rev. SUt § 5278, Comp. 8Ut.
1913, S 10,126, to provide for the case of
a fugitive from justice who has not fled into
the state where ne is found, but was brought
into it involuntarily by a requisition from
another state, does not take the matters^
within the unprovided area out of possible*
state action, out leaves the state free to
deliver the accused to any state from whose
justice he has fled.
[For otber cases, see Bxtradltioa, II., In Digest
Sup. Ct. 1908.]
[No. 532.]
Argued January 6, 1916. Decided February
21, 1916.
IN ERROR to the Court of Criminal Ap-
peals of the State of Texas to review a
Judgment which affirmed a judgment of the
District Court of Bexar County, in that
state, refusing to discharge on habeas cor-
pus a person whose extradition is sought
by another state. Affirmed.
See same case below, — Tex. Crlm. Rep.
— . L.RJk.l916C, 1251, 173 S. VV. 291.
The facts are stated in the opinion.
Mr. Joseph W. Bailey argued the cause,
and, with Mr. R. H. Ward, filed a brief for
plaintiff in error:
The extradition clause of the Constitu-
tion is not self-executing.
Hyatt ▼. New York, 188 U. S. 691, 708..
47 L. ed. 657, 660, 23 Sup. Ct Rep. 456, 12
Am. Crim. Rep. 311; Kentucky v. Denni-
son, 24 How. 66, 16 L. ed. 717; Roberts v.
Reilly, 116 U. S. 80, 29 L. ed. 544, 6 Sup.
Ct Rep. 291.
This clause not being self-executing. Con-
gress passed a law putting it into force,
which law clearly contemplates that, in
order to be a fugitive from justice, there
must have been a voluntary flight, because
the statute speaks of a demand of the
executive authority of a state for the sur-
render of a person as a fugitive from jus-
tice by the executive authority of the state
to which such person has fled, and it pro-
•d li. ed.
vides that the indictment or affidavit must
be certifled as authentic by the governor of
the state from whence the person, so
charged, has fled, etc., and it makes it the
duty of the executive authority of the state
to which such person has fled, to cause him
to be arrested and secured.
Hyatt V. New York, 188 U. 8. 691, 715,
47 L. ed. 657, 662, 23 Sup. Ct Rep. 456, 12
Am. Crim. Rep. 311; 2 Moore, Extradition,
p. 900, § 569; Rorer, Interstate Law, p.
308; State v. Hall, 115 N. C. 811, 28 L. R.
A. 292, 44 Am. St Rep. 501, 20 S. E. 729,
10 Am. Crim. Rep. 297; Tennessee v. Jack-
son, 1 hJSLA. 370, 36 Fed. 258; Ex parte
Thaw, 214 Fed. 423; Spear, Extradition, pp.
558-^71; Re Robinson, 29 Neb. 135, 8
L.R.A. 398, 26 Am. St Rep. 378, 45 N. W.
267; State v. Simmons, 39 Kan. 262, 18
Pac. 177; SUte v. Hall, 40 Kan. 338, 10
Am. St Rep. 200, 19 Pac. 918; Re Cannon,
47 Mich. 481, 11 N. W. 280; Ex parte Mc-
Knight, 48 Ohio St 588, 14 L.RJ^. 128, 28
N. E. 1034; Re Tod, 12 S. D. 386, 47 UTLA.
566, 76 Am. St. Rep. 616, 81 N. W. 637, 12
Am. CriuL Rep. 303.
Mr. Hugh M^ Dorsey argued the cause,
and, with Mr. C. C. McDonald flled a brief
for defendant in error:
Plaintiff in error was a fugitive from
justice.
Roberts T. Reilly, 116 U. 8. 80, 29 L. ed.
544, 6 Sup. Ct. Rep. 291; Applcyard v.
Massachusetts, 203 U. S. 222, 51 L. ed. 161,.
27 Sup. Ct Rep. 122, 7 Ann. Cas. 1073 ^
Hibler v. State, 43 Tex. 197; Ex parte
Brown, 28 Fed. 653; Rfe White, 5 O. C. A.
29, 14 U. S. App. 87, 55 Fed. 54; Re Bloch,.
87 Fed. 981; State ex rel. Burner v. Rich-
ter, 37 Minn. 436, 35 N. W. 9; Tavlor v.
Wise, — Iowa, — , 126 N. W. 1126; Ex
parte Dickson, 4 Ind. Terr. 481, 69 S. W.
943; Coleman v. State, 53 Tex. Crim. Rep.
93, 113 S. W. 17; Com. v. Hare, 36 Pa.
Super. Ct 125; People ex rel. American
Surety Co. v. Benbam, 71 Misc. 345, 128
N. Y. Supp. 610; Ex parte Williams, 10
Okla. Crim. Rep. 344, 51 L.R.A.(N.S.) 668,
186 Pac. 597 ; Re Galbreath, 24 N. D. 582,
139 N. W. 1050; People ex rel. Suydam v.
Sennott, 20 Alb. L. J. 230.
No irregularity in the extradition of a
fugitive criminal, when brought within the
jurisdiction of the court having cognisance
of his crime, can be available to him as a
means of escaping trial and punishment.
Mahon v. Justice, 127 U. S. 700, 32 L. ed.
283, 8 Sup. Ct Rep. 1204.
The Constitution of the United States
and the act of Congress apply only to fugi-
tives from justice; but a state may, never-
theless, in the exercise of its reserved sov-
ereign power« provide for the surrender of
fttt
120-131
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbm,
persons indicted for crime in another state,
but who have never fled from it.
State V. HaU, 115 N. O. 811, 28 L.R.A.
289, 44 Am. St. Rep. 501, 20 S. E. 729, 10
Am. Crim. Rep. 297; Re Roberts, 24 Fed.
]32; Kurtz V. State, 22 Fla. 36, 1 Am. St.
Rep. 173; Com. v. Hall, 9 Gray, 262, 69
Am. Dec. 285; Ex parte Ammons, 34 Ohio
St. 518; Hartman v. Aveline, 63 Ind. 344,
30 Am. Rep. 217.
Mr. Chief Justice l¥hlte delivered the
opinion of the court:
The governor of Oregon honored a requisi-
tion made by the governor of Texas for the
delivery of the plaintiff in error for removal
to Texas aa a fugitive from the justice of
that state. The accused was taken to
Texas, tried for murder and a conspiracy to
commit murder, and acquitted. She was,
however, not released from custody because
she was ordered by the governor of Texas,
under a requisition of the governor of
Georgia, to be held for delivery to an agent
of the state of Georgia for removal to that
state as a fugitive from justice.
Alleging these facts, an application for
release by habeas corpus was then presented
to a state court upon the charge that the
extradition proceedings and the warrant of
removal thereunder were "wholly null and
void" because ''your petitioner waa never
a fugitive from justice from the state of
Georgia to the state of Texas within the
meaning and intent of the laws of the Unit-
ed States regulating extradition proceed-
ings." On the return to the writ, the court,
finding the facts to be as above stated, re-
fused to discharge the petitioner, and the
case is [130] before us to review a judg-
ment of the court of criminal appeals,
which adopted the findings of the trial
court and affirmed its action. — Tex. Crim.
Rep. — , L.R.A.1910C, 1251, 173 S. W. 291.
All the Federal questions involve the
meaning of § 2 of article 4 of the Constitu-
tion, which is as follows: "A person
charged in any state with treason, felony,
or other crime, who shall flee from justice
and be found in another state, shall, on de-
mand of the executive authority of the state
from which he fled, be delivered up, to be
removed to the state having jurisdiction of
the crime." Tliey also depend on § 5278 of
the Revised Statutes, which is but a re-
production of § 1 of the act of February 12,
1793 (chap. 7, 1 Stat, at L. 302, Comp. Stat
1913, § 10,126), giving effect to and estab-
lishing the methods of procedure to be re-
sorted to for the purpose of enforcing the
provisions of the Constitution on the sub-
ject to the extent that their execution was
by the statute provided for.
Broadly, there is but a single question for
6«4
consideration: Was the order for ren-
dition repugnant to the Constitution and
the provisions of the statute? But two in-
quiries are involved in its solution: First,
waa the rendition order void because,
under the facta, there was no power to
award it except by disregarding express
prohibitions or requirements of the Con-
stitution or statute, or by necessary im-
plication adversely affecting rights there-
by created? and second, even although thia
was not the case, was the order neverthe-
less void because, under the circumstances,
it dealt with a situation which, by the ef-
fect of the statute, was taken out of the
reach of state authority, even although no
express provision was made in the statute
for dealing with such condition by any au-
thority, state or Federal? We consider the
two inquiries under separate headings. .
First. For the purpose of the solution of
the inquiry under this heading we treat the
following propositions aa beyond question:
(a) That prior to the adoption of the
[131] Constitution fugitives from justice
were surrendered between the states con-
formably to what were deemed to be the
controlling principles of comity. Kentucky
V. Dennison, 24 How. 66, 101, 102, 16 L. ed.
717, 727; 2 Moore, Extradition k Inter-
state Rendition, pp. 820 et seq. (b) ThAt it
was intended by the provision of the Con-
stitution to fully embrace or rather to con-
fer authority upon Congress to deal with
such subject. Prigg v. Pennsylvania, 16
Pet. 539, 10 L. ed. 1060; Kentucky ▼. Den-
nison, supra; Tayl(^ v. Taintor, 16 Wall.
366, 21 L. ed. 287; Appleyard v. Massachu-
setts, 203 U. S. 222, 51 L. ed. 161, 27 Sup.
Ct. Rep. 122, 7 Ann. Cas. 1073; (c) That
the act of 1793 (now Revised Statutes, §
5278, Comp. Stat. 1913, § 10,126) waa en-
acted for the purpose of controlling the
subject in so far aa it waa deemed wise to
do so, and that its provisions were intended
to be dominant, and, so far as they oper-
ated, controlling and exclusive of state
power. Prigg v. Pennsylvania, 10 Pet. 539,
10 L. ed. 1060; Kentucky v. Dennison, 24
How. 104, 105, 16 L. ed. 728; Mahon v.
Justice, 127 U. S. 700, 32 L. ed. 283, 8 Sup.
Ct. Rep. 1204; Lascelles v. Georgia, 148
U. S. 537, 37 L. ed. 649, 13 Blip. Ct. Rep.
687.
Coming in the light of these prineiplea to
apply the statute, it is not open to ques-
tion that its provisions expressly or by
necessary implication prohibited the sur-
render of a person in one state for removal
as a fugitive to another where it elearly ap-
pears that the person was not and could not
have been a fugitive from the justice of the
demanding state. Ex parte Reggel, 114 U.
S. 642, 29 L. ed. 250, 5 Sup. Ct. Rep. 1148,
240 V. S.
1916.
INNBS V. TOBIN.
131-134
5 Am. Crim. Rep. 218; Roberts ▼. Reilly,
116 U. 8. 80, 29 L. ed. 644, 6 Sup. Ct. Rep.
291 ; HyAtt T. New York, 188 U. S. 691, 47
L. ed. 657, 23 Sup. Ct. Rep. 456» 12 Am.
Grim. Rep. 311; Bassing ▼. Cady, 208 U. S.
386, 392, 62 L. ed. 640, 643, 28 Sup. Ct. Rep.
392, 13 Ann. Cas. 906.
From this it results that the first inquiry
here is, did it appear that the accused was a
fugitive from the justice of the state of
Georgia? While the facts which we have
stated do not disclose affirmatively that she
was ever in Georgia, and the date, if at all,
of her flight from that state, we think that
she was such a fugitive is to be assumed for
three obvious reasons: because there was
no question of such fact made in the appli-
cation for habeas corpus, since it is appar-
ent on the face of the application that the
ground of relief relied upon was not that
there had [138] been no flight from Georgia,
but that there was and could have been no
flight into Texas, since the coming into that
state was involuntary and resulted solely
from the extradition proceedings; because
that view of the subject was assumed, both
in the elaborate opinion of the court below
and that of the dissenting judge, to be un-
questioned; and finally, because neither in
the assignments of error in this court nor
in the arguments pressed upon our atten-
tion is the contrary view insisted upon or
even suggested. fSrom that aspect, there-
fore, there is no ground for saying that the
extradition order conflicted with the ex-
press provision of the statute.
Was there a conflict between the statute
and the order for removal to Georgia, aris-
ing by necessary implication from the fact
that the accused had been brought into the
state of Texas on a requisition up<m the
state of Oregon, and had not been released
from custody or been returned to Oregon,
is the only remaining question under this
heading. While it is quite true, as pointed
out ii^ the opinion of the court below, and
in that of the judge who dissented, that
there are some decided cases and opinions
expressed by text writers which sustain the
affirmative view of this inquiry, the subject
is here not an open one since it has
been expressly foreclosed by the decision in
Lascelles v. (Georgia, 148 U. S. 637, 37 L. ed.
649, 13 Sup. Ct. Rep. 687. In that case the
issue for decision was whether a person ac-
cused, who had been removed to the state of
Georgia from another state on extradition
proceedings for trial for a specifled crime,
was liable in Georgia to be tried for an-
other and different crime. Reviewing the
whole subject and calling attention to the
broad lines of distinction between inter-
national extradition of fugitives from
justice and interstate rendition of such fugi-
•0 li. ed.
tives under the Constitution and the pro-
visions of the act of Congress, and the
error of assuming that the doctrine of
asylum applicable under international law
to the one case was applicable to the other,
it was [133] held that the right to prose-
cute for such other offense existed. The
court said: "Neither the C<mstitution nor
the act of Congress providing for the rendi-
tion of fugitives upon proper requisition
being made confers, either expressly or by
implication, any right or privilege upon
such fugitives under and by virtue of
which they can assert, in the state to which
they are returned, exemption from trial for
any criminal act done therein. No purpose
or intention is manifested to afford them
any immunity or protection irom trial and
punishment for any offenses committed in
the state from which they flee. On the
contrary, the provision of both the Consti-
tution and the statutes extends to all crimes
and offenses punishable by the laws of the
state where the act is done. Kentucky v.
Dennison, 24 How. 66, 101, 102, 10 L. ed.
717, 727 ; Ex parte Reggel, 114 U. & 642, 29
L. ed. 260, 6 Sup. Ct. Rep. 1148, 6 Am. Crim.
Rep. 218."
We are thus brought to the remaining
heading, which is:
Second. Although the order for rendition
was not in conflict, either expressly or by
necessary implication, with any of the pro-
visions of the Constitution or statute, was it
nevertheless void under the circumstances
because it dealt with a subject with which it
was beyond the power of the state to deal,
and which was therefore brought, as the
result of the adoption of the statute, within
exclusive Federal control, although no pro-
vision dealing with such subject is found
in the statute ? To appreciate this question,
the proposition relied upon needs to be ac-
curately stated. It is this: The Constitu-
tion provides for the rendition to a state of
a person who shall have fled from justice
and be found in another state; that is, for
the surrender by the state in which the
fugitive is found. This, it is conceded,
would cover the case and sustain the au-
thority exercised, as the accused was a fugi-
tive from the justice of Georgia and was
found in Texas. But the proposition insists
that the statute is not as broad as the
Constitution, since it provides not for the
surrender of the fugitive [134] by the state
in which he is found, but only for his sur-
render by the state into which he has fled,
thus leaving unprovided for the case of a
fugitive from justice who Is found in a
state, but who has not fled into such state,
because brought into such state involuntar-
ily by a requisition from another. And the
argument is supported by the contention
lU-186
SUPREME COURT OF THE UNITED STATES.
OOT. TtMM,
that, as the statute exercises the power con-
ferred by the Constitution and is exclusive,
it occupies the whole field and prohibits all
state action even upon a subject for which
the statute has not provid^, and which
therefore in no manner comes within its ex-
press terms. But we are of the opinion
that the contention rests upon a mistaken
premise and unwarrantedly extends the
scope of the decided cases upon which it
relies. The first, because it erroneously as-
sumes that although the statute leaves a
subject with which there was power to deal
under the Constitution unprovided for, it
therefore took all matters within such un-
provided area out of any possible state
action. And the second, because, while it is
undoubtedly true that in the decided cases
relied upon (Kentucky v. Dennison, supra;
Roberts v. Reilly, 116 U. S. 80, 29 L. ed.
544, 6 Sup. Ct. Rep. 201; Hyatt v. New
York, 188 U. S. 691, 47 L. ed. 657, 23 Sup.
Ct Rep. 456, 12 Am. Crim. Rep. 311) the
exclusive character of the legislation em-
bodied in the statute was recognized, those
cases, when rightly considered, go no fur-
ther than to establish the exclusion by the
statute of all state action from the matters
for which the statute expressly or by neces-
sary implication provided.
No reason is suggested nor have we been
able to discover any, to sustain the assump-
tion that the framers of the statute, in not
making its provisions exactly coterminous
with the power granted by the Constitution,
did so for the purpose of leaving the subject,
so far as unprovided for, beyond the opera-
tion of any legal authority whatever, state
or national. On the contrary, when tlie
situation with which the statute dealt is
contemplated, the reasonable assumption is
that by the omission to [135] extend the
statute to the full limits of constitutional
power it must have been intended to leave
the subjects unprovided for not beyond the
pale of all law, but subject to the power
which then controlled them, — state author-
ity until it was deemed essential by further
legislation to govern them exclusively by
national authority. In fact, such conclu-
sion is essential to give effect to the act of
Congress, since to hold to the contrary
would render inefficacious the regulations
provided concerning the subjects with
which it dealt. This becomes manifest when
it ii considered that, if the proposition
now insisted upon were accepted, it would
follow that the delivery of a criminal who
was 'a fugitive from justice by one state
on a requisition by another would exhaust
the power, and the criminal, therefore,
whatever might be the extent and char-
acter of the crimes committed in other
statei^ would remain in the state into
^0S
which he had been removed without any
authority to deliver him to other stavna
from whose justice he had fled. And this,
while paralyzing jthe authority of all
the states, it must be moreover apparent*
would cause them all to become involuntary
asylums for criminals; for no method is
suggested by which a criminal brought into
a state by requisition, if acquitted, could be
against his will deported, since to admit
such power would be virtually to concede
the right to surrender him to another state
as a fugitive from justice for a crime com-
mitted within its borders.
It follows from what we have said that
the court below was right in refusing to
discharge the accused, and- its judgment,
therefore, must be and it is affirmed.
By stipulation of counsel a similar judg-
ment will be entered in case of Viotob E.
Innes v. TOBIN, Sheriff, No. 533.
[136] TITLE GUARANTY & SURETY
COMPANY OP SCRANTON, Penn^l-
vania, a Corporation, and Vernon W.
Piatt, Plffs, in Err.,
V.
STATE OF IDAHO to and for the Use and
Benefit of O. W. ALLEN et al.
(See S. C. Reporter's ed. 136-142.)
Removal of causes — diverse citisen*
ship » state as party — amount In
controversy.
1. A suit b^ a state for the use and
benefit of certain named depositors in a
state bank, citizens of such state, against
a former state bank commissioner, now a
nonresident, and the nonresident surety on
his bond, to recover the losses separately
claimed by each of such depositors becauae
of the bank commissioner's neglect of his
official duties, may not be removed from a
state to a Federal court for diverse citi-
zenship, whether the state be treated as the
real party plaintiff or merely as a nominal
party, where none of the individual claims
equals $3,000.
[For other eases, see Removal of Causes. TO-
TS. 24T-255, In Digest Sup. Ct. 1908.]
Note. — On removal of causes in cases of
diverse citizenship — see notes to Whelan v.
New York, L. E. & W. R. Co. 1 L.R.A. 65;
Seddon v. Virginia, T. & C. Steel & I. Co. 1
L.R.A. 108; Huskins v. Cincinnati, N. O. &
T. P. R. Co. 3 L.R.A. 545; Bierbower v.
Miller, 9 L.R.A. 228; Brodhead v. Shoe-
maker, 11 L.R.A. 56T; Delaware R. Constr.
Co. V. Meyer, 25 L. ed. U. S. 593 ; Butler ▼.
National Home, 36 L. ed. U. S. 346; aall
Torrence v. Shedd, 36 L. ed. (U. 8.) 528.
On constitutionality of statute authoris-
ing officer to take charge of assets of bank
upon suspicion of insolvency — see note to
State Sav. & C. Bank v. Anderson, L.R.A.
1915E, 675.
240 U. 8.
1916.
TITLB GUARAIITT & S. 00. t. IDAHO
ALLEN.
•ConatitiitioiuU law — dna procc— of law
— olosins InsolTent tank.
2. A state may, oonsUtentlj with the
•due process of law clause of U. S. Const.,
14th Amend., clothe a bank commisAioner
with power to close the doors of a state
iMuik if, on examination, it is found to be
insolvent, without awaiting judicial pro-
ceedings.
(For other eases, see Constitutional Law, lY.
b. 7. in Digest Sup. Ct. 1908.]
[No. 815.]
Submitted January 24, 1916. Dedded Feb-
ruary 21, 19ie.
IN ERROR to the Supreme Court of the
State of Idaho to review a judgment
which affirmed a judgment of the District
-Court of Ada County, in that state, in favor
•of plaintiff in an action by the state for the
use and benefit of certain depositors in a
atate bank against a former state commis-
sioner and the surety on his bond. Dis-
missed for want of jurisdiction.
See same case below, 27 Idaho, 752, 152
Pac. 189.
The facts are stated in the opinion.
Mr. Samuel H. Hays submitted the
•cause for plaintiffs in error. Messrs. John
F. Nugent and Pasco B. Carter were on
the brief:
The state is seeking to recover the entire
fund deposited. The supreme court of the
state held that the state in this case is the
trustee of an express trust. We may prop-
•erly consider the fund represented by the
total judgment as a trust fund recovered
under such trust. In such cases, the aggre-
gate amount is to be taken in ascertaining
the amount in controversy.
Handley ▼. Stuts, 137 U. S. 366, 34 L. ed.
706, 11 Sup. Ct. Rep. 117 ; Baltimore & 0.
S. W. R. Co. V. United States, 220 U. S.
94, 55 L. ed. 384, 31 Sup. Ct. Rep. 368;
Kaus V. American Surety Co. 199 Fed. 972;
Spokane Valley Land k Water Co. v. Koo-
tenai County, 199 Fed. 481; Jones v. Mu-
tual Fidelity Co. 123 Fed. 506.
The state was only a nominal plaintiff,
being a trustee without any financial inter-
est in the matter; therefore, the question
ol citisenship was the citisenship of the
real parties in interest, they being citizens
^ Idaho.
New Orleans v. Gaines (Neyr Orleans t.
Whitney) 138 U. S. 595, 34 L. ed. 1102, 11
Sup. Ot Rep. 428; Mexican C. R. Co. v.
Ednnan, 187 U. S. 429, 432, 47 L. ed. 245,
-247, 23 Sup. Ct Rep. 211.
Section 73 of the banking act of the state
•of Idaho was unconstitutional in that it
4id not provide for due process of law.
Chicago, M. & St. P. R. Co. T. Minnesota,
40 L. ed.
I 134 U. S. 418, 33 L. ed. 970, S Inters. Com.
^ Rep. 209, 10 Sup. Ct Rep. 462, 702.
Mr. Joseph H. Peterson, Attorney Qen-
eral of Idaho, submitted the cause for de-
fendants in error. Messrs. Paris Martin
and W. E. Cameron were on the brief:
In order for this court to be justified In
holding that the Idaho supreme court com-
mitted error in affirming the action of the
trial court in refusing to grant the petition
of the plaintiffs in error to remove this
cause to the Federal district court, it must
first appear from the record that the cause
was one within the possible jurisdiction of
the Federal district court, and was one
which could properly havj^ been commenced
in that Federal court
Ex parte Wisner, 203 U. S. 449, 457, 51
L. ed. 264, 267, 27 Sup. Ct Rep. 150;
Re Winn, 213 U. S. 458, 53 L. ed. 873, 29
Sup. Ct Rep. 515.
There was a general averment in the
petition for removal that the amount in
controversy in this suit exceeded the sum
of $3,000, exclusive of interest and costs,
but this was a mere conclusion.
Fishback v. Western U. Teleg. Co. 161 U.
S. 96, 40 L. ed. 630, 16 Sup. Ct Rep. 506.
When two or more parties having sepa-
rate and distinct demands, as in the case
at bar, are united for convenience and econ-
omy in a single suit, it is essential that the
demand of each be of the requisite jurisdic-
tional amount; and the separate, distinct
demands of the various parties cannot be
united, aggregated, and added together for
the purpose of making up an amount suf-
ficient to confer jurisdiction upon a Federal
court.
Walter v. Northeastern R. Oo. 147 U. S.
370, 37 L. ed. 206, 13 Sup. Ct. Rep. 348;
Putney v. Whitmire, 66 Fed. 387; Smith-
son V. Hubbell, 81 Fed. 594; Cooper v. Pres-
ton, 105 Fed. 403; Washington County v.
Williams, 49 C. C. A. G21, 111 Fed. 813;
McDaniel v. Tray lor, 123 Fed. 338; Wis-
consin C. R. Co. V. Phoenix Ins. Co. 123
Fed. 989; Eaton v. Hoge, 72 C. O. A. 74.
141 Fed. 64, 5 Ann. Cas. 487; Troy Bank
V. G. A. Whitehead & Co. 184 Fed. 932, 222
U. S. 39, 56 L. ed. 81, 32 Sup. Ct. Rep. 9;
Auer V. Lombard, 19 C. C. A. 72, 33 U. S.
App. 438, 72 Fed. 209; Schwed v. Smith,
106 U. S. 188, 27 L. ed. 156, 1 Sup. Ct.
Rep. 221; Freeman v. Dawson, 110 U. S.
264, 28 L. ed. 141, 4 Sup. Ct Rep. 94; Ex
parte Phcenix Ins. Co. 117 U. S. 367, 29
L. ed. 923, 6 Sup. Ct. Rep. 772; Clay v.
Field, 138 U. S. 464, 34 L. ed. 1044, 11
Sup. Ct Rep. 419; Northern P. R. Co. t.
Walker, 148 U. S. 891, 37 L. ed. 494, IS
Sup. Ct Rep. 650; Davis v. S<^warts, 155
U. a 647, 39 L. ed. 296, 15 Sup. Ct Rep.
ft«7
139, 140
SUPREME COUBT OF THE UNITED STATES.
Cot. Tbbm^
237 : Fiflhback ▼. Western U. Teleg. Co. lei
U. 8. 96, 40 L. ed. 630, 10 Sup. Ct Bep.
606; Citizens' Bank ▼. Cannon, 164 U. S.
319, 41 L. ecL 451, 17 Sup. Ct. Bep. 89;
North American Transp. k Trading Co. v.
Morrison, 178 U. S. 262, 44 L. ed. 1061, 20
Sup. Ct Bep. 869; Woodside v. Beckham,
216 U. S. 117, 64 L. ed. 408, 30 Sup. Ct.
Bep. 367; Oliver ▼. Alexander, 6 Pet. 143,
8 L. ed. 349; Bich ▼. Lambert, 12 How.
347, 13 L. ed. 1017; Seaver y. Bigelow, 6
Wall. 208, 18 L. ed. 696; Farmers' Loan k,
T. Co. v. Waterman, 106 U. S. 266, 27 L.
ed. 116, 1 Sup. Ct. Bep. 131; Stewart ▼.
Dunham, 116 U. S. 61, 29 L. ed. 329, 6 Sup.
Ct. Bep. 1163; Gibson y. Shufeldt, 122 U. S.
27, 30 L. ed. 108$, 7 Sup. Ct Bep. 1066;
State ex rel. Barker v. Chicago & A. B.
Co. 216 Fed. 662; Wheless v. St Louis, 180
U. S. 379, 46 L. ed. 683, 21 Sup. Ct Bep.
402.
A state is not a citizen within the mean-
ing of removal acts.
SUme V. South Carolina, 117 U. 8. 430, 29
L. ed. 962, 6 Sup. Ct Bep. 799.
Admitting, for the sake of argument,
that a Federal constitutional question is in-
volved in the case, and that the Idaho
supreme court decided a Federal constitu-
tional question, and that the decision of
such Federal constitutional que8ti<m was
necessary to the decision rendered by the
Idaho supreme court, yet that question is
so wholly devoid of merit as to leave no
room for real controversy in the matter.
Noble State Bank v. HaskeU, 219 U. S.
676, 66 L. ed. 341, 32 LJLA.(N.S.) 1066, 31
Sup. Ct. Bep. 299, 219 U. S. 104, 66 L.
ed. 112, 32 LJUL(N.S.) 1062, 31 Sup. Ct
Bep. 186, Ann. Cas. 1912A, 487; Shallen-
berger v. First State Bank, 219 U. S. 114,
66 L. ed. 117, 31 Sup. Ct Bep. 189;
Asaaria State Bank v. Dolley, 219 U. S.
121, 66 L. ed. 123, 31 Sup. Ct. Bep. 189;
Be Mandel, 224 Fed. 642; SUte Sav. k
Commercial Bank v. Anderson, 166 Cal.
446, L.BA.1916E, 676, 132 Pac. 756. .
[139] Mr. Chief Justice White delivered
the opinion of the court:
The case is before us on a motion to dis-
miss or affirm. The action of the court
below which it is sought to review affirmed
a judgment of the trial court entered on the
verdict of a jury in a suit brought by the
state for the use and benefit of O. W. Allen
and two hundred and eighteen other named
depositors of the Boise State Bank against
Piatt, a state bank commissioner, and the
surety on his bond, for losses alleged to
have been suffered by each of the individ-
uals named as the result of alleged neglect
of official duty imposed by the state law
ft«8
upon the bank commissioner. The wrong-
relied upon was his alleged misconduct in
not closing the doors of the bank, and per-
mitting it to continue bufliness after he had
discovered, as the result of an official ex-
amination, 'that the bank was hopelessly
insolvent. The bill as a first cause of action
fully set out the facts and stated the legal
grounds relied upon to- establish the losa
and right of O. W. Allen to recover, and
separate causes of action were then stated
in favor of each of the two hundred and
eighteen other depositors. There was an
application to remove the case to the dis-
trict court of the United States on th»
ground of diverse citizenship, the depositors
named being citizens of Idaho, and Piatt,
the bank commissioner, being then a resi-
dent of California, and the Surety Company
of Pennsylvania, which application was de-
nied. After issue joined there was a trial
before a jury and a verdict in favor of
the plaintiff, the state, and against the de-
fendants, "on each and every cause of action
set forth in the complaint herein, to and
for the use and benefit of each of tlie par-
ties named in each of the separate causes
of action set forth In plaintiff's complaint.*'
And it was conformably adjudged "Uiat the
said plaintiff do have and recover of and
from the said defendants .. . . for the
[140] use and benefit of each of the follow-
ing-named parties, the sums set opposite
their respective names, to wit," etc No one
of the amounts thus awarded to the plaintiff
for the use of any one of the named per-
sons equalled $3,000, but the sum of all the
claims equalled $30,000. In affirming the
judgment the court below held that the re-
lief prayed was authorized by the state stat-
utes, and that they also conferred authority
upon the state to bring the suit as an ex-
press trustee for the use and benefit of the
respective parties.
The Federal questions relied upon are,
first, the alleged wrongful denial of th»
right to remove, and second, an asserted
error committed by the court below in re-
fusing to sustain a claim under the du»
process clause of the 14th Amendment.
The first is plainly without merit. Treat-
ing the state as the party plaintiff, it is not
open to question that there was no right
to reipove. Stone v. South Carolina, 117
U. S. 430, 29 L. ed. 962, 6 Sup. Ct. Bep.
799; Missouri, K. A T. B. Co. v. Missouri
B. ft W. Comrs. (Missouri, K. ft T. B. Co.
V. Hickman) 188 U. S. 63, 68, 46 L. ed. 78,
80, 22 Sup. Ct Bep. 18. And if we were to-
accede to the contention made in argument
that the state must be treated as merely
a nominal party, and the right to remove
be then determined by the citizenship of the
individuals for whose benefit recovery waa
240 r. s*
1916.
BANNINO CO. V. CALIFORNIA
WBBB.
140-142
allowed, ft would yet follow, since none of
the diatinet judgmentB in favor of any of
the individuals art* large enough to confer
jurisdiction, that the court below correctly
held that there was no basis for the right
to remove. Woodside v. Beckham, 216 U.
8. 117, 54 L. ed. 408, 30 Sup. Ct. Rep. 367;
Troy Bank v. 0. A. Wliitehead & Co. 222
U. S. 30, 56 L. ed. 81, 32 Sup. Ct. Rep. 9;
Rogers v. Hennepin County, 239 U. S. 621,
ante, 469, 36 Sup. Ct. Rep. 217. In fact, the
correctness of these conclusions is made
clear by the arguments advanced to the
contrary, since they serve only to confuse
and are destructive of each other. Thus, on
the one hand, for the purpose of. establish-
ing the existence of diversity of citizenship
justifying the removal, it is urged that the
state must be treated as merely a nominal
party, having [141] no interest, and as in
no wise concerned in the judgment, and then
upon the hypothesis that the state is elimi-
nated, in order to establish a jurisdictional
amount sufficient to remove, the award of
distinct and separate amounts made by the
judgment in favor of each of the distinct
plainrtifTs is wholly ignored, and it is urged
that there is but judgment, which is in
favor of the state, and which is composed
of the aggregate of the distinct amounts.
Second. The proposition' under the 14th
Amendment relied upon is that, consistently
with that Amendment, the state had not the
power to put upon the bank commissioner
the duty of closing the bank in case, on ex-
amination, it was found to be insolvent,
since such suthority, consistently with due
process, could only have been exerted after
judicial proceedings to ascertain the facts,
and the awarding of relief accordingly. The
pleadings leave it exceedingly doubtful
whether the question thus urged was pre-
sented in either of the courts below, and it
is, besides, obvious from the opinion of the
court below that it considered that the only
question raised under the Constitution of
tiie United States was a contention that
there would result a want of due process
if the state statutes conferred upon an ad-
ministrative officer the authority to liqui-
date the affairs of the insolvent bank with-
out judicial proceedings. We say this be-
cause, in its opinion, the court observed
that if that was the contention, it was ir-
relevant, as the statutes did not authorize
liquidation except as a result of judicial
proceedings, although they did impose upon
the bank commissioner the duty, after he
found a bank to be insolvent, to close its
doors and prevent the further transaction
of business until, in the orderly course of
procedure, a judicial liquidation might be
accomplished. But assuming, as it is now
insisted in argument was the eaae> thai the
•0 li. ed.
' qaesti<m relied upon was the repugnancy of
the state statute to the due process clause
of the 14th Amendment, because [142]
power was conferred upon an administrative
officer in the event of insolvency to close the
doors of a bank without awaiting judicial
proceedings, and that the observation on
that subject by the court below was an ad-
verse decision of such question, we think it
suffices to state the proposition to demon-
strate its want of merit. Noble State Bank
V. Haskell, 219 U. S. 104, 55 L. ed. 112, 32
LJLA.(N.S.) 1062, 31 Sup. Ct. Rep. 186,
Ann. Cbs. 1912A, 487; Shallenberger v.
First State Bank, 219 U. S. 114, 55 L. ed
117, 31 Sup. Ct. Rep. 189.
Dismissed for want of Jtrisdiction.
BANNING COMPANY, Mary H. Banning,
Lucy T. Greenleaf, Mary U. Morris, Han-
cock, Banning, k Pacific Electric Rail-
way Company, PUfs! in Err.,
V. •
PEOPLE OF THE STATE OF CALIFOR-
NIA upon the Information of U. S.
WEBB, Attorney General.
(See 8. C. Reporter's ed. 142-156.)
Constitutional law — Impairing con-
tract obligations — sale of state lands.
Compliance with the provisions of
CaL act of April 27, 1863, governing the
sale of tide lands of the state, by making
an application for their purchase, taking
the required oath, and expending money for
a survey, cannot be said to consummate,
without the payment of some instalment of
the purchase price, a binding contract be-
tween the purchaser and the state, protected
by U. S. Const, art. 1, % 10, against im-
pairment by subsequent legislation, not-
withstanding a subsequent judgment of a
state court in his favor, rendered in a con-
test over conflicting applications.
[For other cases, see Constitutional Law,
1088-1097, in Digest Snp. Ct. 1908.J
[No. 73.]
Argued January 19, 1916. Decided Feb-
ruary 21, 1916.
IN ERROR to the Supreme Court of the
State of California to review a decree
which affirmed a decree of the Superior
Court of Los Angeles County in favor of the
NoTB. — Generally, as to what laws are
void as impairing obligation of contracts —
see notes to Franklin County Grammar
School V. Bailey, 10 h3,JL 405; Bullard v.
Northern P. R. Co. 11 L.R.A. 246; Hender-
son v. State Soldiers k S. Monument Comrs.
13 L.R.A. 169; and Fletcher t. Peck, 3 L.
ed. U. a 162.
5^
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
state in a suit by it to qniet title to tide
lands. Affirmed.
See same ease below, 166 CaL 630, 138
Pac. 100.
Ihe facte are stated in the c^inion.
Mr. James A. Gibson argued the cause,
and, with Mr. Edward E. Bacon, filed a brief
for plaintiffs in error :
The state's offer to sell, accepted bj filing
an application to purchase, consummates a
binding contract.
McConnaughy ▼. Pennoyer, 43 Fed. 196,
140 U. S. 1, 35 L. ed. 363, 11 Sup. Ct. Rep.
699.
Decisions under preemption laws are dis-
tinguishable. Thfy do not involve the doc-
trine of contract by offer and acceptance.
Northern P. R. Co. t. De Lacey, 174 U. 8.
622, 628, 43 L. ed. 1111, 1113, 19 Sup. Ct.
Rep. 791 ; Tarpey v. Madsen, 178 U. S. 215,
221, 44 L. ed. 1042, 1045, 20 Sup. Ct. Rep.
849; Yosemite Valley Case (Hutchings v.
Low) 15 Wall. 77, 86, 21 L. ed. 82, 85;
Frisbie v. Whitney, 9 Wall. 187, 193, 197,
19 L. ed. 668, 670, 672.
Sufficient consideration for the state's
contract is found in expenditures on the
faith of an offer, and an implied promise
by the applicant to pay the purchase price.
Hendrick v. Lindsay, 93 U. S. 143, 148,
149, 23 L. ed. 855, 857.
Our contention of contract by offer and
acceptance is sustained by numerous de-
cisions under the contract clause of the
Federal Constitution.
Blair v. Chicago, 201 U. S. 400, 472, 50
L. ed. 801, 831, 27 Sup. Ct. Rep. 427 ; Rus-
sell y. Sebastian, 233 U. S. 195, 204, 58 L.
ed. 912, 921, L.R.A. — , — , 34 Sup. Ct. Rep.
517, Ann. Cas. 1914C, 1282; New Orleans
Gaslight Co. v. Louisiana Light & H. P. &
Mfg. Co. 115 U. S. 650, 660, 29 L. ed. 516,
520, 6 Sup. Ct. Rep. 252; New Orleans
Waterworks Co. v. Rivers, 115 U. S. 674,
680, 681, 29 L. ed. 525, 527, 528, 6 Sup. Ct.
Rep. 273; Walla Walla v. Walla Walla
Water Co. 172 U. S. 1, 9, 43 L. ed. 341, 345,
19 Sup. Ct. Rep. 77; Louisville v. Cumber-
land Teleph. k Teleg. Co. 224 U. S. 649, 663,
664, 56 L. ed. 934, 940, 941, 32 Sup. Ct. Rep.
572 ; Grand Trunk Western R. Co. v. South
Bend, 227 U. S. 544, 552, 57 L. ed. 633,
639, 44 L.RJl.(N.S,) 405, 33 Sup. Ct. Rep.
303; Owensboro ▼. Cumberland Teleph. &
Teleg. Oo. 230 U. S. 58, 65, 57 L. ed. 1389,
1393, 33 Sup. Ct. Rep. 988; Bois4 Artesian
Hot k Cold Water Co. v. Bois^ City, 230
U. S. 84, 90, 91, 57 L. ed. 1400, 1406, 1407,
33 Sup. Ct Rep. 997; New York Electric
Lines Co. ▼. Empire City Subway Co. 235
U. S. 179, 59 L, ed. 184, LJLA. — , — , 35
Sup. Ct. Rep. 72, Ann. Cas. 1915A, 906.
A Judgment is conclusive as to all the
570
media coneludendi, and it needs no author-
ity to show that it cannot be impeached
either in or out of the state, by showing
that it was based upon a mistake of law.
American Exp. Co. v. MuUins, 212 U. S.
311, 314, 53 L. ed. 526, 527, 29 Sup. Ot
Rep. 381, 15 Ann. Cas. 536.
The presumption is very strong that a
statute was not meant to act retrospee-
tively, and it ought never to receive such a
construction if it is susceptible of any
other. It ought not to receive such a con-
struction unless the words used are so
clear, strong, and imperative that no other
meaning can be annexed to them, or unless
the intention of the legislature cannot be
otherwise satisfied.
United States Fidelity k G. Co. t. United
States, 200 U. S. 306, 314, 52 L. ed. 804,
807, 28 Sup. Ct. Rep. 537.
In all cases where the court has acquired
jurisdiction of the action, its jurisdiction
must extend to the determination of the
right of the applicant, or the successful
applicant, to purchase from the state.
Hinckley v. Fowler, 43 Cal. 04; Cadierque
V. Duran, 49 Cal. 356; Christman v.
Brainard, 51 Cal. 534; Wright v. Lauge-
nour, 55 Cal. 280; Dillon v. Saloude, 68
Cal. 267, 9 Pac. 162; Cushing v. Keslar, 68
Cal. 473, 9 Pac. 659 ; Garfield v. Wilson, 74
Cal. 175, 15 Pac. 620; Anthony v. Jillson,
83 Cal. 299, 23 Pac. 419, 16 Mor. Min. Rep.
26; Goldberg v. Thompson, 96 Cal. 117, 30
Pac. 1019.
Where only one of the contestants is an
applicant for purchase, it is held in numer-
ous cases to be the duty of the court to
determine as to his right to purchase; and
the same principle will apply, in other
cases, to the prevailing applicant.
Tyler v. Houghton, 25 Cal. 30 ; Cadierque
V. Duran, 49 Cal. 356; Garfield v. Wilson,
74 Cal. 175, 15 Pac 620; Perri v. Beau-
mont, 91 Cal. 33, 27 Pac. 534; Youle v.
Thomas, 146 Cal. 537, 80 Pac. 714; McFaul
V. Pfankuch, 98 Cal. 402, 33 Pac. 397;
Lobree v. Mullan, 70 Cal. 150, 11 Pac. 685 ;
Cunningham v. Shanklin, 60 Cal. 118.
Several of the decisions which we have
cited in support of our construction of the
statute were rendered prior to the institu-
tion of the contest action in which the
right of purchase was adjudicated to the
predecessor of plaintiffs in error.
Hinckley v. Fowler, 43 Cal. 56; Tyler t.
Houghton^ 25 Cal. 30.
It is not within the power of a legisla-
ture to take away rights which have once
been vested by a judgment. Legislation
may act on subsequent pcoeeedings, may
abate actions pending^ but when those
actions have passed into judgment, the
S4d U. 8.
1015.
BAKNINO (X). ▼. CALIFORNIA KX. bkl. WEBB.
146
power of the legislature to disturb the t
ri^ts created thereby ceases. '
McCuUougfa ▼. Virginia, 172 U. S. 102,
123, 43 L. ed. 382, 389, 19 Sop. Ct Rep.
134; United States ▼. Klein, 13 Wall. 128,
20 L. ed. 519.
Messrs. Albert Lee Stephens and James
A. Anderson argued the cause, and, with
Mr. W. H. Anderson and Mr. U. 8. Webb,
Attorney General of California, filed a brief
for defendant in error:
By an unbroken line of decisions, begin-
ning in 1870 and extending to the present
date without any conflict, it has become
the thoroughly established law of the state
of California that applicants to purchase
«tate lands of any character or descrip-
tion acquire no vested right until pa3mient
of part of the purchase price; such rule of
decision has become a law of property with
reference to school lands by express adjudi-
cation since 1870, and by express adjudica-
tion since 1897 as to tide lands.
People y. Shearer, 30 Cal. 645; Button ▼.
Frisbie, 37 Cal. 475; Eckart ▼. Campbell,
39 Cal. 256; Johnson v. Squires, 55 Cal.
103; Urton v. Wilson, 65 Cal. 11, 2 Pac.
411; Mosely v. Torrence, 71 Oal. 321, 12
Pac. 430; Manley y. Cunningham, 72 Cal.
236, 13 Pac. 622; Klauber v. Higgins, 117
Cal. 451, 49 Pac. 466; Messenger v. Kings-
bury, 168 Cal. 615, 112 Pac. 65; Polk y.
Sleeper, 158 Cal. 632, 112 Pac. 179; Ayers
y. Kingsbury, 25 Cal. App. 183, 143 Pac.
85.
An unbroken line of decisions of this
court has established the doctrine that an
applicant to purchase lands of the United
States either under the pre-emption laws,
or under town-site laws, or under special
laws authorizing the sale of land, acquires
no rights as against the goyernment until
all of the preliminary steps required by
law are complied with ; and, where payment
is required, until such payment, in whole
or in part, has been made; such laws of
the United States are so similar to the laws
of the state of California with reference to
the sale of its public lands that the de-
cisions of this court with reference to the
former are direct authority here.
Bagnell y. Broderick, 13 Pet. 436, 10 L.
ed. 235; Rector y. Ashley, 6 Wall. 142-
150, 18 L. ed. 783-735; Hot Springs Cases,
t2 U. S. 713, 23 L. ed. 696; Frisbie y.
Whitney, 9 Wall. 187, 193, 19 L. ed. 668,
671; Yosemite Valley Case (Hutchings y.
Low) 15 Wall. 77, 21 L. ed. 82; Shepley y.
Cowan, 91 U. S. 330, 23 L. ed. 424.
This court will follow the decisions of
the state supreme court, construing a stat-
ute under whieh it is claimed a yested right
«d L. ed.
has accrued, where the question is balanced
in doubt.
Burgess y. Seligman, 107 U. S. 20, 32, 27
L. ed. 359, 365, 2 Sup. Ct. Rep. 10; Board
of Liquidation y. Louisiana, 179 U. S. 622,
638, 45 L. ed. 347, 354, 21 Sup. Ot. Rep.
263; Freeport Water Co. y. Freeport, 180
U. Si 587, 609, 45 L. ed. 679, 693, 21 Sup.
Ct. Rep. 493; Vicksburg y. Vicksburg
Waterworks Co. 206 U. S. 496, 506, 51 L.
ed. 1155, 1159, 27 Sup. Ct. Rep. 762; Yazoo
k M. VaUey R. Co. y. Adams, 181 U. 8.
580, 581, 45 L. ed. 1011, 1012, 21 Sup. Ct
Rep. 729; Milwaukee Electric R. k, Light
Co. y. Railroad Commission, 238 U. S. 174,
59 L. ed. 1254, P.U.R.1915D, 591, 35 Sup.
Ct. Rep. 823, 824; Campbell y. Wade,
132 U. S. 34-37, 33 L. ed. 240-242, 10 Sup.
Ct. Rep. 9.
There was no implied promise to pay
when the applicant filed his application.
Eckart y. Campbell, 39 Cal. 256.
As to the effect of re-enacting provisions
in a law which is simultaneously repealed,
see 36 Cyo. 1084.
See also Bear Lake A Riyer Waterworks
& Irrig. Co. y. Garland, 164 U. S. 1-11, 41
L. ed. 327-332, 17 Sup. Ct. Rep. 7; Pacific
Mail S. & Co. y. JoUffe, 2 Wall. 450-456,
17 L. ed. 805-807.
The adjudication by the superior court
on the contest referred to it by the sur-
veyor general does not estop the state.
Cunningham y. Crowley, 51 Cal. 128; Lo-
bree y. Mullan, 70 Cal. 153, 11 Pao. 685;
Youle y. Thomas, 146 Cal. 537, 80 Pac. 714;
Berry y. Cammet, 44 Cal. 351; Polk y.
Sleeper, 158 Oal. 632, 112 Pac. 179; Steel
y. St. Louis Smelting & Ref. Co. 106 U. S.
447-457, 27 L. ed. 226-230, 1 Sup. Ct. Rep.
389; Klauber y. Higgins, 117 Cal. 458, 49
Pac. 466.
The state had power to retake lands
covering the shores and a large part of the
bed of a navigable bay in front of a sea-
port, even though some right in the land
may have been theretofore granted by the
state.
Eldridge y. Cowell, 4 Cal. 80; Guy t.
Hermance, 6 Cal. 73, 63 Am. Dec 85; Peo-
ple y. Williams, 64 Cal. 498, 2 Pac. 393;
People ex» rel. Harbor Comrs. v. Kerber,
152 Cal. 736, 125 Am. St. Rep. 93, 93 Pac.
878; Montgomery y. Portland, 190 U. S.
89, 47 L. ed. 965, 23 Sup. Ct. Rep. 735;
niinoU C. R. Co. v. Hlinois, 146 U. S. 387-
476, 36 L. ed. 1018-1051, 13 Sup. Ct. Rep.
110.
Mr. Justice HoKenna delivered the opin-
ion of the court:
Suit brought bj.the state of California to
quiet title to certain lands embraced in a
57^
14^148
SUPREME (X)URT OF THE UNITED STATES.
Oct. Teem,
patent issued under certain statutes of the
state, authorizing the sale of tide lands.
The lands involved constituted location
No. 67 of the state tide lands, and the
state alleged that they had been at all times
a portion of the inner bay of San Pedro and
below the line of ordinary high tide; that
they were partly within the limits of the
city of San Pedro and partly within the
limits of Wilmington; that prior to and
since 1870 no portion of them had ever
been redaimable for agricultural or other
purposes, and that the state had at all times
withheld them from sale.
The intermediate pleadings we may omit.
The defendants (plaintiffs in error here)
filed separate answers, the pertinent parts
of which may be summarized as follows:
They denied the title of the state, the loca-
tion of the lands as alleged, or their rela-
tion to the cities of San Pedro and Wil-
mington, or that they were not susceptible
of reclamation for agricultural purposes, or
that they had been withheld from sale by
the state.
For an affirmative defense it was alleged
that one Phineas Banning, in February,
1866, made application to the [146] state
under an act of its legislature for the dis-
position of state lands to purchase the lands
in controversy; that he possessed the quali-
fications to apply to purchase the lands, and
on February 15, 1866, did apply to pur-
chase them under an act of the legislature
providing for their sale, approved April 27,
1863, and in conformity to his application
and the provisions of § 7 of that act caused
a survey of the lands to be made and a
plat and field notes thereof to be completed
by the county surveyor of Los Angeles
county, and paid a large sum of money to
such surveyor April 2, 1866, for legal fees;
that he caused a copy of his application
and aflSdavit to be filed in the office of the
surveyor general of the state February 15,
1866; that on said date he subscribed the
oath required by § 28 of the act of 1863,
and complied with % 29; that by reason of
such proceedings he acquired the title to
the lands and a contract was created be-
tween him and the state whereby the state
agreed to sell him the lands upon the terms
provided in the act of 1863. That he com-
plied with all other provisions of the act
and of other acts, and that a patent was
duly issued to him and the title thereby
conveyed to him, and by him conveyed to
defendants. That the state by this action
is attempting to impair the obligation of
the contract between the state and Banning,
in violation of article 1, § 10, of the Con-
•titutfon of the United States.
That subsequently other applications were
ft7S
made to purchase other lands in the vieiii-
ity of location No. 57, which overlapped and
conflicted with that made by Banning; that
one of said applicants, to wit, one William
McFadden, made a demand upon the sur-
veyor general of the state that, in pursuance
of § 3413 of the Political Code of the state,
the contest between the applicants be re-
ferred to the proper court for judicial de-
termination of the question as to which of
the applicants was entitled to a patent
from the state. That, in accordance with
[147] the requests, the surveyed general re-
ferred the contest to the district court of
the seventeenth judicial district of the state
in and for the county of Los Angeles, and
in pursuance thereof McFadden commenced
an action against Banning and certain other
parties, and it was therein adjudged that
Banning was entitled to purchase and to
have a patent issued to him, and that Ban-
ning was entitled to the approval of his
survey and application as to all of the lands
described in his amendatory application of
January 2, 1878, except a certain described
tract, and was entitled to comply with the
further provisions of the law to purchase
and receive a patent therefor.
That Banning, on April 5, 1880, paid the
first instalment on the purchase price of the
land, and, on April 10, 1880, a certificate
of purchase was issued to him whereby it
was certified that he had in all respects
complied with the law and was entitled to
receive a patent; that subsequently, on De-
cember 14, 1881, another certificate was is-
sued certifying that full payment had been
made to the state and that the decree of
the court in the contest proceedings had
been fully complied with, and that he was
entitled to a patent, and thereafter on De-
cember 16, 1881, a patent was duly issued
in accordance with the certificate and the
decree of the district court, and duly re-
corded in the office of the recorder of Loa
Angeles county.
That the defendants have succeeded to the
rights of Banning and have become vested
with a fee-simple title to the lands para-
mount to the claim of the state or of any
person; that the state is estopped by the
judgment of the district court and the pro-
ceedings from claiming any right, title, or
interest in them or any of them, and that
the patent and proceedings are a bar to
the claim of the state or of anyone.
As a third defenee, §§ 312, 815-^19 [148]
of the Code of Procedure of the state were
pleaded as a bar to the action.
The trial court found to be true the
allegations of the state as to the character
of the lands, their location within the inner
harbor of San Pedro, and that, since 1870,
they have been within 2 miles of the city
S40 U. 8.
191^.
BANNING CO. ▼. CAL^ORNIA KZ bkl. WEBB.
14S-150
of San Pedro and Wilmington, being partly
witliin the limits of those cities.
The oourt also found the fact of the ap-
plication of Banning as alleged, the conflict
with McFadden, its reference to the dis-
trict court for decision, the decision and
judgment rendered, and the subsequent pro-
ceedings had, the payment of the purchase
price of the lands, and the issue of patent
to Banning. It further found that the pat-
ent was void, that no title vested thereby to
any land below ordinary high tide, that the
state was not estopped by the judgment or
the subsequent proceedings, and that they
did not bar the claims of the state, nor con-
stitute an adjudication of the matters in
controversy against the state, or debar it
from prosecuting this action. The court
mlso decided against the bar of the sections
of the Code of Procedure.
From these findings the oourt concluded
And decreed that the state was the owner of
the lands, and that the defendants had not
nor had either of them any estate or titl^
in them. A motion for new trial was made
and denied, and on appeal the supreme court
«iBrmed the judgment and order denying
the new trial.
There is no dispute about the facts. Ban-
ning complied with the act of 1863 and sub-
sequent acts concerning the sale of the
lands, and acquired title if they had the
efficacy to convey it, or were not suspended
in their operation by subsequent legislation
and by the Constitution of the state, adopt-
ed in 1879.1 The supreme court denied in
[140] some respects such efficacy, and de-
cided that all of the right of Banning to
acquire title to the lands was taken away
by the Constitution of 1879, and the legisla-
tion to which we shall presently refer.
We need not encumb^ the opinion with
a detail of the statutes. It is conceded and
the supreme court has decided that title
could be acquired to the tide lands of the
state under the act of 1868, and it is con-
I'^No individual, partnership or corpora-
tion, claiming or possessing the frontage or
tidal lands of a harbor, bay, inlet, estuary,
or other navigable water in this state, shall
be permitted to exclude the right of way to
such water whenever it is required for any
public purpose, nor to destroy or obstruct
the free navigation of such water; and the
legislature shall enact such laws as will
give the most liberal construction to this
provision, so that access to tiie navigable
waters of this state shall be alwavs anain-
able for the people thereof." Article XV.,
• 2.
The Constitution of the state has special
relevancy in regard to contentions not be-
fore us. We refer to and insert it only for
the sake of completeness, it being referred
to throughout the argument.
•0 li. ed.
ceded that Banning proceeded regularly un-
der that statute and acquired the title if
other statutes or the Constitution of 1879
did not intervene to prevent. It is upon
the efficacy of the later statutes and the
Constitution that the questions in the case
depend.
The specific contention of plaintiffs in
error is that, by the application to purchase
the lands under the act of 1863, the ex-
penditure of money in accordance with its
provisions for a survey of the lands, the
statute of 1868 and the Political Code, and
the judgment in the McFadden contest, a
contract between Banning and the state
was made which the Constitution of 1879
or subsequent statutes could not impair.
The opposing contention is that no in-
violable right of purchase vested in Banning
or contract occurred until the payment by
him of the purchase price of the lands, snd
that such payment was after the adoption
of the Constitution and legislation with-
drawing the lands from sale. In other
words, that the lands were withdrawn from
sale before any right became consummated.
[150] Some dates are necessary to be
given: Banning's application was made in
February, 1866. It was allowed to repose
without attention until the contest initiated
by McFadden in April, 1878, on account of
McFadden's application that overlapped and
conflicted with Banning's. Judgment was
entered in this contest November 26, 1879.
This judgment decided Banning's to be the
prior right. He made a flrst payment on
the lands March 6, 1880. The certificate was
issued April 10, 1880, and a patent executed
December 16, 1881. The Constitution was
adopted in 1879, as we have seen. And fur-
ther, in 1872, the town of Wilmington was
incorporated, and the supreme court held
that by an act passed April 4, 1870, all
lands within 2 miles of "'any town or vil-
lage* " (SUtutes of 1869-70, § 877) were ex-
cluded from sale. This provision w: s re-
peated in the Political Code of 1872, § 3488.
The act of incorporation of Wilmington was
repealed in 1887 (Stats. 1887, 108, 109),
but the court said: "If, in point of law,
Wilmington was an incorporated town
. . . during the interval between the
passage and the repeal of the law, then all
proceedings to purchase the lands in ques-
tion taken in that interval would be invalid
with respect to land within the 2-mile
limit." [People ex rel. Webb v. California
fish Co. 166 Cal. 603, 138 Pac 79.] This
being the law, and the lands lying within
2 miles of the limits of Wilmington as in-
corporated by the act of 1872, the court
said: "The patent is void and all claims of
any of the defendants thereunder are in-
vaUd.** [166 Cal. 632, 138 Pac. 100.]
57-
160-163
SUPREME COURT OF THE UNITED STATES.
Oct. Temm,
We accept this construction of the act in-
corporating Wilmington and the effect of
the act of April 4, 1870, and of § 3488 of
the Political Code and the exclusion thereby
of tide lands within 2 miles of Wilmington
from sale; and we are brought to the short
point of the effect of the application and
proceedings under it by the payment of the
first instalment of the purchase price of the
lands and the other ac^ relied on, whether
they consummated [151] a contract be-
tween the state and Banning, protected by
the Constitution of the United States.
To support such conclusion plaintiffs in
error cite McConnaughy v. Pnnnoyer, 43
Fed. 190, in whidi Judge Deady expressed
the Tiew of an Oregon statute which offered
the lands of that state for sale, that such
an application was "a written acceptance of
the offer of the state, in relation to the
land of the state described therein," and
they cite the same case in this court (140
U. S. 1, 18, 86 L. ed. 363, 368, 11 Sup. a.
Rep. 699), where that view was pronounced
forcible and might have been conclusive but
for the opposing consideration that suggest-
ed itself that the bare application itself,
unaccompanied by the payment of any con-
sideration, partook of the nature of a pre-
emption claim under the laws of the United
States, with reference to which it had been
held that the occupancy and improvement
of the land by the settler and the filing of
the declaratory statement of such fact con-
ferred no vested right as against the gov-
ernment of the United States until all of
the preliminary steps prescribed by law, in-
cluding the payment of the price, were com-
plied with. Yosemite Valley Case (Hutch-
ings V. Low), 16 Wall. 77, 21 L. ed. 82, and
Frisbie v. Whitney, 9 Wall. 187, 19 L. ed.
668, were cited. The court found it unneces-
sary to determine between those views.
The cited cases were approved in Camp-
bell V. Wade, 132 U. S. 34, 38, 33 L. ed. 240,
242, 10 Sup. Ct. Rep. 9, and their principle
applied to statutes of the state of Texas,
one offering land for sale and the other with-
drawing it before the performance of the
conditions which gave a right of purchase.
These conditions were an application to the
surveyor of the county in which the land
was situated to siurvey the land and within
sixty days after survey to file it in the Gen-
eral Land OflSoe. Within sixty days after
such filing, it was provided by the statute,
it should be the right of the applicant to
pay the purchase money, and upon doing so
to receive patent for the land. ''But for this
declaration of the act,** this [152] oourt
said, by Mr. Justice Field, '-we might doubt
whether a rig^t to purchase could be con-
sidered as conferred by the mere survey so
as to bind the state.**
674
f Considering the same statute in Telfener
V. Russ, 146 U. S. 622, 632, 36 L. ed. 800,
806, 12 Sup. Ct. Rep. 930, it was said that
the right was "designated in the decision of
the supreme oourt of the state as a vested
right that could not be defeated by subse-
quent legislation."
Plaintiffs in error eite Northern P. R. Co.
V. De Lacey, 174 U. S. 622, 43 L. de. 1111,
19 Sup. Ct. Rep. 791, as in some way modi-
fying the doctrine of the Yosemite Valley
Case and of Fnsbie v. Whitney. That case
involved the question whether a claim of
pre-emption had, under the circumstances
stated in the case, so far attadied to the
land in controversy that it did not pass
under a grant to the railroad company as
land to which the United SUtes had "full
title, not reserved, sold, granted, or other-
wise appropriated, and free from pre-
emption, or other claims or rights." It was
held to have so passed; in other words, that
the claim had not attached to the land, De-
Lacy not having performed the conditions
of its pre-emption. The case has no vahic
in the solution of the questions presented
by the case at bar. Nor have the other
cases cited by plaintiffs in error for the
proposition that an offer made by a state,
though no particular person be designated,
and accepted, constitutes a contract which
will be protected by the Federal Constitu-
tion. The proposition in its generality may
be admitted. Its illustration and applica-
tion in the cited cases it would protract
this opinion unnecessarily to detail. It is
enough to say that the cases are not
apposite. The offer and acceptance must
have the characteristics of a bargain, must
be conventional counterparts, as in the cited
cases, and of which we may say generally
franchises were offered on one part and ac-
cepted on the other by the undertaking of
works costly to construct and costly to
maintain, and from which the public de-
rived great benefit.
[153] But even in such case it was
pointed out in Wisconsin & M. R. Co. v.
Powers, 191 U. S. 379, 386, 48 L. ed. 229,
231, 24 Sup. Ct. Rep. 107, that the offer of a
state does not necessarily imply a contract.
It may be of encouragement merely, "hold-
ing out a hope, but not amounting to a cove-
nant." The offer of the state was an exemp-
tion from taxation, and the asserted accept-
ance of the offer which was said to oonaum-
mate a contract was the building of a rail-
road, and it was observed that the "building
and operating of the railroad was a suffi-
cient detriment or change of position to con-
stitute a consideration if the other elements
were present. But the other elements are
that the promise and the detriment are the
' conventional inducements each for the other.
246 V. 8.
1916.
BANNING CO. t. CALIF«DRNIA ex bel. WEBB
153-155
No matter what the aetual motive may have
been, by the express or implied terms of the
supposed contract, the promise and con-
sideration must purport to be the motive
each for the other, in whole or at least in
part. It is not enough that the promise
induces the detriment or that the detriment
induces the promise, if the other half is
wanting." The ''offer* and "acceptance" we
held not to constitute a contract. This com-
ment is applicable to the case at bar, and
the supreme court of the state has decided,
as we shall presently see, that the filing of
the application does not constitute a bind-
ing contract upon the part of the applicant
and the state.
But plaintiffs in error say that this court
is not bound, against the invocation of the
contract clause of the Constitution of the
United States, by the decision of the su-
preme court of the state of California as to
the construction and effect of the act of
1863, and subsequent legislation supplement-
ing its provisions. Louisiana R. & Nav. Co.
V. Behrman, 235 U. S. 164, 59 L. ed. 175, 35
8up. Ct. Rep. 62; New York Electric Lines
Co. V. Empire City Subway Co. 235 U. S.
179, 59 L. ed. 184, L.ILA. — , — , 35 Sup.
Ct. Rep. 72, Ann. Cas. 1915A, 906. And
they insist that the language of the act ex-
plicitly offered the lands for sale, which
offer was accepted by Banning through his
application, the oath taken by him, and the
expenditures [154] made by him, and that
this construction has supporting strength
from the judicial contest authorized by the
act, and that the judgment rendered in such
contest was effective not only against the
losing contestant) but against the state as
welL
If we apply the analogy of the pre-emp-
tion laws we shall have to reject immedi-
ately the contention based on the proceed-
ings aside from the judgment rendered upon
a conflict of applications, and against the
asserted effect of such judgment^ we have
also the analogy of a conflict of claims un-
der the mining laws of the- United States.
In other words, the state made an offer to
sell, which might have been perfected into
an inviolable right, and provided for a con-
test of conflicting claims, not as against it-
self, but as to the rights of the contending
parties. The rightful claimant being deter-
mined and his right of purchase perfected,
the state is then bound by its offer, and is
then, and not until then, precluded from
legislation withdrawing it. And the right
of purchase is perfected only by the pay-
m«it of some instalment of the purchase
price of the land. It is only then that the
state has received anything of value from
the applicant. What he has done prior, the I
expenditures he haa made, are but the
•0 Ii. ed.
qualifications to become a purchaser, not
binding him to proceed, nor binding the
state to wait for that which may never bo
done before it determines on other uses or
disposition of the lands. And to wait
might mean serious embarrassment. We
have seen in the case at bar that Banning
applied first in 1866. His application was
permitted to repose in the files of the coun-
ty or state officers until 1878, when activ-
ity upon it was provoked by another appli-
cation.
Plaintiffs in error have been unable to
cite a single decision in sanction of their
contention. The supreme court refers to
one (Hinckley t. Fowler, 43 Cal. 63), de-
cided in 1872, as possibly being urged to
support it. [155] If we may venture to ex-
press our understanding of that case, we
should say that it is seriously disputable if
it so decides. However, the court said that
the case, so far as it announced such view,
that is, "so far as it announces the rule
that the filing of the application creates a
contract binding on the state before any
part of the price is paid, must be considered
as overruled by the later decisions." Mes-
senger V. Kingsbury, 158 Cal. 615, 112 Pac.
65, and cases cited. Also Polk v. Sleeper,
158 Cal. 632, 112 Pae. 179. And these cases
have become rules of property and factors
in decision, — indeed, would determine it,
even if we had doubt of the construction of
the applicable statutes, under the ruling of
Burgess v. Seligman, 107 U. S. 20, 27 L.
ed. 359, 2 Sup. Ct. Rep. 10, and many subse-
quent cases.
A somewhat confused contention is made
that by the act of March 28, 1868, and
under the Political Code the rights of plain*
tiffs in error were preserved, and yet it
seems to be contended that, though both
act and Code contain a provision excluding
from their operation tide lands within 2
miles of any town or village, such provision
is not applicable to lands theretofore applied
for. The contentions we may suppose were
rejected by the supreme court. And plain*
tiffs in error say that a decision either way
cannot affect their "prior contention, that
a binding contract of sale was created by
the acceptance of the state's offer, throu|^
the filing in 1866 of an application to pur-
chase under the act of 1863.** Further dis-
cussion of the coQtentions is therefore un-
necessary. Nor is further discussion of the
effect of the judgment in the contest pro-
ceedings necessary. If, by the incorporation
of Wilmington in 1872, the act of April,
1870, and the Political Code of 1872, which
excluded all tide lands within 2 miles of
Wilmington, became effective, the lands
were withdrawn from sale, and plaintiffs
in error could have acquired no rights bv
r
155, 156
SUPREME CX)URT OF THE UNITED STATES.
Cot. Tebm,
proceedings subsequent to such incorpora-
tion. This, we have seen, was the judgment
of [156] the supreme court of the state.
The court had decided in prior cases that
the state was not a party to the contest
(Cunningham v. Crowley, 51 Cal. 128, 133) ;
that the contest decided only the rights of
the opposing parties (Berry y. Cammet, 44
Cal. 347; Polk y. Sleeper, supra).
The judgment undoubtedly is conclusive
between the parties, determines their rights,
as between Uiemselves, and establishes the
privilege to purchase the lands acquired by
the prior application, even against the state,
**80 long 09 the statute retnained in force,'*
to use the language of Hinckley y. Fowler,
supra. This explanation may be given of
all the cases cited by plaintiffs in error upon
the effect of the judgment.^ As long as the
statute existed, rights could be acquired
under it. Upon its repeal or limitation,
such opportunity was taken away.
Judgment affirmed.
CARNEGIE STEEL OOBiPANY, Appt.,
y.
UNITED STATES.
(See S. C. Reporter's ed. 156-166.)
United States — oontraots — ezcuae for
delay — unavoidable cause.
Delay in the performance of a con-
tract to manufacture 18-inch face-hardened
armor plate for the United States, caused
by the manufacturer's ignorance, shared by
the world when the contract was made, of
the necessary scientific process, was not due
to "unavoidable causes, such as fires, storms,
labor strikes, actions of the United States,
and so forth," within the meaning of the
provision of the contract that, in computing
the liquidated damages which might be de-
ducted by the United States from the con-
tract price for delay, the manufacturer
should be given credit for delays due to such
causes.
(For other cases, see United States, VI. e.
In Digest Sap. Ct. 1908.]
[No. 171.]
1 Cadierque v. Duran, 49 Cal. 350; Christ-
man V. Brainard, 51 Cal. 5.34; Wright v.
Laugenour. 55 Cal. 280; Dillon v. Saloude,
68 Cal. 267, 9 Pac. 162; Cushing v. Keslar,
68 Cal. 473, 9 Pac. 659; Garfield v. Wilson,
74 Cal. 175, 15 Pac. 620; Anthony v. Jillson,
83 Gal. 299, 300, 23 Pac. 419, 16 Mor. Min.
Rep. 26; Goldberg v. Thompson, 96 Cal.
117, 80 Pac 1019.
Note.— On the effect of intervening im-
possibility to perform contract as relief
from the obligation — see note to Stewart v.
Stone, 14 L.RjL 216.
576
Argued January 21, 1916. Decided Feb-
ruary 21, 1916.
APPBAL from the Court of Claims to
review a judgment sustaining in part
a demurrer of the United States to a peti-
tion for the recovery of an amount alleged
to be due claimant under a oontraet with
the United States. Affirmed.
See same case below, 49 Ct. CI. 403.
The facts are stated in the opinion.
Mr. James H. Hayden argued the cause
and filed a brief for appellant:
The contract in suit was drawn by the
Bureau of Ordnance, and any language of
doubtful meaning contained in it should be
given an interpretation favorable to the
company, rather than one favorable to the
Ordnance Department.
Noonan v. Bradley, 9 Wall. 394, 19 L. ed.
757; Garrison v. United States, 7 WalL
688, 19 L. ed. 277; Orient Mut Ins. Co. ▼.
Wriest, 1 Wall. 456, 17 L. ed. 505.
The proviso in the contract relates to the
forfeiture by the company of part of the
sum that the Department agreed to pay for
the armor actually furnished. Clauses of
contracts and of statutes relating to for-
feitures invariably receive the one of two
or more possible interpretations which it
most favorable to the party against whom
the forfeiture is asserted.
Philadelphia, W. & B. R. Co. ▼. Howard,
13 How. 307, 340, 14 L. ed. 157, 171; New
York Indians v. United States, 170 U. S. 1,
25, 42 L. ed. 927, 935, 18 Sup. Ct. Rep.
531.
Where the meaning of an instrument or
statute is obscure and the language em-
ployed is a proper subject for interpreta-
tion, courts will give effect to every pro-
vision and word, and will not treat any
part of it as meaningless or nugatory, un-
less its provisions are in hopeless conflict.
Philadelphia v. River Front R. Co. 133
Pa. 134, 19 Atl. 356.
The proviso does not purport to be com-
plete in itself, and on its face bears evi-
dence of its incompleteness. The expres-
sion "such as" and the abbreviation "etc**
— a catch-all— demonstrate that fact. It
follows that the doctrine eapreeBio umus
eat excluaio alterUu is not to be followed
in determining the true intent and mean-
ing of the proviso.
United States v. Barnes, 222 U. S. 613,
56 L. ed. 291, 32 Sup. Ct. Rep. 417.
Presumably the Ordnance Department be-
lieved tha^t delay would be detrimental to
the government, and the penal clauses ot
the contract were designed to prevent it;
but it is evident that the Department real-
iced that difficulties might be encountered
S40 V. 8.
191ft.
CARNEGIE STEEL CX). v. UNITED STATES.
160, 161
Rowe ▼. Peabody, 207 Mass. 226, 08 N. E.
604; Marsh v. Johnston, 125 App. Div. 507,
100 N. Y. Supp. 1106; Lorillard v. Clyde,
142 N. Y. 456, 24 L.R.A. 113, 37 N. E. 489 ;
Buffalo & L. Land Co. t. Bellevue Land &
Improv. Co. 165 N. Y. 247, 51 LJLA. 061,
50 N. E. 5; Chicago & N. W. R. Co. v.
Sawyer, 60 lU. 285, 18 Am. Rep. 613;
Beach, Contr. § 217; Chitty, Contr. 272;
Day V. United States, 48 Ct. a. 128.
Mr. Justice McKenna delivered the opin-
ion of the court:
Petition in the court of claims for the
recovery of $8,506.36, alleged to be due
claimant as a balance of the price of armor
plate furnished the government under a con-
tract between it and claimant.
The contract is an elaborate one and by
it claimant engaged to manufacture for the
Ordnance Department armor plates of a cer-
tain ^ designated thickness, in conformity
with instructions, specifications, and draw-
ings attached to and made a part of the
contract. And claimant agreed to provide
certain of the 18*inch plates for the pur-
pose of the ballistic test prescribed by the
specifications, and that such plates, when
subjected to the ballistic test, should fulfil
certain requirements set forth in the speci-
fications. The dates of delivery were to be
on or before September 7, 1011, and No-
vember 7, 1011, and the place of delivery the
Bethlehem Steel Company, South Bethle-
hem, Pennsylvania.
The government engaged to receive the
plates when manufactured, tested, and ap-
proved as provided, and make payment for
them in instalments' from time to time as
the manufacture of the armor and material
progressed [161] and after delivery.
In the event of the claimant failing
to prosecute the manufacture of the
armor and material properly, or to com-
plete delivery on or before the dates
named in the contract, the Cliief of Ord-
nance might complete such manufac-
ture at the expense of claimant, charg-
ing it with the cost thereof in excess
of the contract price; ''or else (2) waive the
time limit named in the contract and permit
the claimant to complete the delivery of the
armor and material within a reasonable
time, and thereupon deduct from the sum
stipulated to be paid the claimant for all
of the armor and material, as liquidated
damages, a sum equal to . Vso ^^ ^ P^
centum of the contract price of all armor
and material remaining undelivered on No-
vember 7, 1011, for each day of delay in its
delivery; Provided, however, that in com-
puting the amount of any such deduction,
the claimant should be given credit for de-
Satterlee v. United States, 80 Ct. CL 33; lays occurring during the performance of
40 li. ed. 87 577
during the manufacture of the armor for
which it would be quite unjust to hold the
company reflpimsible, or for which no con-
tractor would assume responsibility. Ac-
cordingly, it was provided that the company
should not be held responsible for delay
found to have been produced by causes of
a certain kind, — not that the delay due to
such causes would be less detrimental to
the government, but because the company's
excuse would i^ppeal to the Department's
sense of right. That was the office of the
proviso.
Minis V. United States, 15 Pet. 423, 10 L.
ed 701; White v. United States, 101 U. S.
545, 48 L. ed. 206, 24 Sup. Ct. Rep. 171.
Is it not unreas(mabl6 to assume that the
Department selected, arbitrarily, four of
the many unavoidable causes possessing the
same characteristics, and said that the
company would be excused if the perform-
ance of the contract should be delayed by
one of the four causes, but not otherwise?
Weiss T. Swift & Co. 36 Pa. Super. Ct.
376.
In the present instance the facts were not
such as to warrant an attempt to apply
the maxim 60>pre99%o uniuM est esfolusio
iUterius,
Broom, Legal Maxims, 8th ed. 506, 515;
Broom, Legal Maxims, 7th eJ. 680.
Nor is this case for the application of
the doctrine of ejiudem gtnerU,
United SUtes v. Mescall, 215 U. S. 26, 64
L. ed. 77, 30 Sup. Ct R^. 10; Chicago,
M. A St P. R. Co. T. Hoyt, 140 U. S. 1, 14,
37 L. ed. 625, 620, 13 Sup. Ct. Rep. 770;
Ettdlich, Interpretation of Statutes, § 112;
McReynolds v. People, 230 111. 623, 82 N. E.
045; Brown v. Corbin, 40 Minn. 508, 42
N. W. 481.
Assistant Attorney General Thompson
argued the cause and filed a brief for ap-
pellee:
The delays were not within the terms of
the contract, such as fires, storms, labor
strikes, actions of the United States, etc.,
and therefore appellant was liable for the
same.
Dermott v. Jones (Ingle v. Jones) 2
Wall. 1, 17 L. ed. 762; Hanthorn v. Quinn,
42 Or. 1, 60 Pac. 817; The Harriman, 0
WaU. 161, 19 L. ed. 620; Florida R. Co. v.
Smith, 21 Wall. 266, 263, 22 L. ed. 613,
516; Smooths Case, 16 Wall 30, 46, 21
L. ed. 107, 110; Jacksonville, M. P. R. &
Nav. Co. V. Hooper, 160 U. S. 614, 527,
40 L. ed. 616, 624, 16 Sup. Ct Rep. 370;
Simpson v. United States, 172 U. S. 372, 43
L. ed. 482, 10 Sup. Ct. Rep. 212; United
States V. Gleason, 176 U. S. 588, 602, 44
Iw ed. 284, 280. 20 Sup. Ct. R^. 228;
161-164
SlJPRfiME COURT OP THE UNITED STATES.
Oct. Tmc,
the contract, which the Chief of Ordimnce
might determine to have been due to un-
avoidable causes, such as fires, storms, labor
strikes, actions of the United States, and
so forth,' and that the date of completion
of the delivery, for the purposes of the final
settlement between the parties, should be a
date to be ascertained by deducting, from the
whole period between the signing of the
contract and the date of the actual delivery,
all delays which were found to have been
due to unavoidable causes."
It is alleged that claimant encountered
difficulties which were unforeseen by both
parties when the contract was made, and
were then unforseeable, and in consequence
thereof the delivery of the armor and per-
taining material was delayed unavoidably.
That prior to the manufacture of the ar-
mor no face-hardened armor 18 inches in
thickness had been manufactured in this or
any foreign country, and no information
with respect to the process or processes to
be employed in its manufacture was obtain-
able.
[162] That, for the purpose of learn-
ing what manner of treatment or face-
hardening process should be applied to
the 18-inch plates, and in order that
they might attain the highest degree
of efficiency posuble, and meet all the
requirements of the specifications, claim-
ant completed one of the plates, ap-
plying to it a treatment or face-harden-
ing process deduced from the formula which
claimant and every other manufacturer of
armor plate in this and every foreign coun-
try had followed in the manufacture of
armor plate, and which was recognized by
authorities on the subject as the one which
would give the best results.
That upon its completion the plate was,
on April 19, 1911, subjected to the ballistic
test and it met the requirements of the
specifications. Thereupon claimant proceed-
ed to complete all of the plates, certain of
which were selected for the purpose of the
ballistic test and failed to fulfil the require-
ments of the specifications. Other plates
were selected and failed. Thereupon claim-
ant, with all due diligence and despatch,
made or caused to be made by metallurgical
experts exhaustive tests and experiments,
and it was ascertained that, in order to pass
the test required by the Ordnance Depart-
ment, the plates must possess certain me-
tallurgical qualities or conditions which, up
to that time, were unknown to anyone, and
the necessity for which was not foreseeable
when the contract was made. In conduct-
ing the test it was necessary to use plates
of full size and the tests were conducted
with all due diligence and despatch. From
the p]Mte§ thus tested the Ordnance Depart-
ment selected a third plate which was test-
ed January 19th and 24th, 1912, and waa
found to fulfil the requirements of the sped*
fications. Claimant in due course flnishad
all of the plates which the contract calM
for, and they were approved and delivarad
as in the manner prescribed.
It is alleged that by reason of the cir*
cumstances detailed [163] there were de-
lays in the delivery of the plates, and thmt
the delays were due to causes which were
unavoidable within the meaning of the con-
tract.
On account of the delays, however, tlie
Ordnance Department proposed to deduet
from the contract price of the armor and
pertaining material the sum of $8,598.16 aa
liquidated damages on account of a portloB
of the delay. Claimant made protest, as-
serting that the delays were due to causes
provided for in articles 4 and 8 of the con-
tract.
By article 4 it was provided that in case
of failure of claimant to deliver any or all
of the armor contracted for there would be
deducted from any payment to be made to
claimant Vso ^^ ^ P®^ ^^^^ ^^ ^^ contract
price of all of the armor remaining unde-
livered for each and every day of delay in
the completion of the contract, not, however,
by way of penalty, but as liquidated dam-
ages.
It was, however, provided in article 8 of
the contract, that the Chief of Ordnance, in
case of delay in the delivery of the armor,
as provided in article 1 of the contract, in-
stead of completing the manufacture or de-
livery of the material at the expense of
claimant, might waive the time limit and
deduct from any payment due or to become
due the liquidated damages, if any, provided
for in article 4: "Provided, however, thai
in making final settlement based upon tlie
date of completion of the delivery, the psriy
of the first part [claimant] shall receive
credit for such delays occurring during the
performance of the contract as the Chief
of Ordnance may determine to have been
due to unavoidable causes, such as firea,
storms, labor strikes, action of the United
States, etc., and the date of completion ahaD
be considered for the purposes of final settle-
ment as the date of the actual completion
of the delivery, less the delays due to un-
avoidable causes; but none of the above
causes shall constitute a basis for an action
against the United States for damages."
[164] The government filed a demurrer
to the petition. It was sustained ne
to $7,564.08 of the amount sued lor
and overruled aa to $1,081.08. Tl»
damages on account of delay to the-
amount of the latter sum the court
found was due to the government's delaj*
S40 U. 8.
1015.
KANSAS CITY 8. R. CX). v. GUARDIAN TRUST 00.
164-166
The other sum, that is $7,564.08, the court
attributed to the claimant, the court Bay-
ing, through Chief Justice Campbell, that
'Hhe difficulties imder which claimant la-
bored • . . were not due to 'unavoidable
causes' within the meaning of those terms
in the contract, and, though unforeseen, did
not render the performance impossible;" and
added: The court cannot make a different
contract from that which the parties made
for themselves. The Harriman, 9 Wall.
161, 172, 19 L. ed. 629, 633; Sun Printing &
Pub. Asso. V. Moore, 183 U. S. 642, 46 L.
ed. 366, 22 Sup. Ct. Rep. 240; Satterlee's
Case, 30 Ct. CI. 31; Pacific Hardware & Steel
Co. V. United SUtes, 49 Ct. CL 327." [40
Ct. CI. 407.]
It will be observed that the point in the
case 18 a short one. It is whether the
causes of delay alleged in the petition were
unavoidable, or were of the character de-
scribed in the contract; that is, "such as
fires, storms, labor strikes, action of the
United States, etc." The contention that
the alleged causes can be assigned to such
category creates some surprise. It would
seem that the very essence of the promise
of a contract to deliver articles is ability
to procure or make them. But claimant
says its ignorance was not peculiar, that it
was shared by the world, and no one knew
that the process adequate to produce 14-
inch armor plate would not produce 18- inch
armor plate. Yet claimant shows that its
own experiments demonstrated the inade-
quacy of the accepted formula. A success-
ful process was therefore foreseeable and
discoverable. Ant it would seem to have
been an obvious prudence to have preceded
manufacture, if not engagement, by experi-
ment rather than risk failure and delay and
their consequent penalties by extending an
old formula to a new condition.
[165] But even if this cannot be asserted,
the case falls within The Harriman, supra,
where it is said that "the principle deducible
from the' authorities is that if what is
agreed to be done is possible and lawful, it
must be done. Difficulty or improbability
of accomplishing the undertaking will not
avail the defendant. It must be shown that
the thing cannot by any means be affected.
Nothing short of this will excuse nonper-
formance."
And it was held in Sun Printing & Pub.
Asso. V. Moore, 183 U. S. 642, 46 L. ed. 360,
22 Sup. Ct. Rep. 240, that "it was a well-
settled rule of law that if a party by his
contract charges himself with an obligation
possible to be performed, he must make it
good, unless its performance is rendered im-
possible by the act of God, the law, or
the other party. Unforeseen difficulties,
however great, will not excuse him." Cases
60 L. ed.
were cited, and it was said the principle waa
sustained by many adjudications.
It was said, however, in The Harriman,
that **the answer to the objection of hard-
ship in all such cases is that it might have
been guarded against by a proper stipula-
tion," and such a stipulation is relied on in
the case at bar. Ignorance of the scientific
process necessary for face-hardening 18-inch
armor plate is asserted to be an unavoidable
cause of the character of the enumeration
of article 8 of the contract; that is, such
as fires, storms, labor strikes, action of the
United States, etc." The contention is that
it is the same "genus or kind," because (1)
it was not foreseeable when the contract
waa made; (2) was not the result of any
act or neglect on the part of claimant; (3)
was not a cause the company could prevent.
What we have already said answers these
contentions. Ability to perform a contract
is of its very essence. It would have no
sense or incentive, no assurance of fulfil-
ment, otherwise; and a delay resulting from
the absence of such ability is not of the
same kind enumerated in the contract — is
not a cause extraneous to it and [166] in-
dependent of the engagements and exertions
of the parties.
Judgment affirmed.
Mr. Justice McReynolds took no pars
in the consideration and decision of thii
case.
KANSAS CITY SOUTHERN RAILWAY
COMPANY, Appt.,
V.
GUARDIAN TRUST COMPANY, Central
Improvement Company, Cambria Steel
Company, and Kansas City Suburbui
Belt Railroad Company.
(See S. 0. Reporter's ed. 166-178.)
Corporations ^ reorganisation ^ liabil-
ity to creditors.
1. Unsecured creditors of a corporation
whose property, though worth enough above
the mortgage to pay their claims, was sold
on foreclosure for the amount of the mort-
gage to a new corporation formed under a
reorganization scheme by which the new
company was to issue its stocks and bonds
Note. — On the effect of consolidation,
merger, or absorption of corporation on its
unsecured liabilities in the absence of statu-
tory or contract provision — see notes to At-
lantic & B. R. Co. T. Johnson, 11 L.RJL
(N.S.) 1119; Luedecke v. Des Moines Cabi-
net Co. 32 L.RJL(N.S.) 616; and Jenninn,
N. & Co. V. Crystal Ice Co. 47 L.RJL(NJL)
1068.
On the liability of a consolidated railroad
579
SUPREME COURT OF THE UNITED STATEa
Oct. Twmu,
in exchange for stock and bonds in the old
company, — are entitled to charge the new
corporation with their debts.
(For other cases, see Corporations, III. b, in
Digest Sup. Ct. 1908.1
Estoppel — by accepting benefits.
2. A creditor of, and stockholder in, a
corporation, by assenting to a reor^^iza*
tion plan which did not on its face give no-
tice of intent to prefer the company's stock-
holders to its creditors, and by exchanging
its stock under such plan for stock in the
new corporation, did not lose its rights to
charge the new corporation with its debt,
where such corporation acquired all the
property of the old corporation under a
sale on foreclosure for the amount of the
mortgage, though such property was worth
enough above the mortgage to pay the cred-
itors.
[For other cases, see Estoppel, III. b, 7, in
Digest Sap. Ct. 1908.]
Corporations — reorganiiatlon — liabil-
ity to creditors.
8. The right of an unsecured creditor
of a corporation, whose property, though
worth enough above the mortgage to pay the
debt, was sold on foreclosure for the
amount of the mortgage to a new corpora-
tion formed under a reorganization scheme,
to charge the new corporation with its debt,
was not affected by a provision in the re-
organization agreement that no right or
obligation is created thereby or assumed
thereunder by or for any new company in
favor of any bondholder or any other cred-
itor or holder of any claim with respect to
any property acquired by purchase at any
foreclosure sale, even thoUgh such creditor
became a party to the reorganization agree-
ment because of its other interests as a
stockholder in the old company.
[For other cases, see Corporations, III. b, in
Digest Sap. Ct. 1908.]
CoriH>rations — reorganization — liabil-
ity to creditors.
4. The exchange of stock in an old cor-
poration, having a substantial value, for
stock in another corporation formed pur-
suant to a reorganization scheme, justifies
the conclusion that there was a valuable
equity in the property of the old corpora-
tion for which the new corporation must
account to unsecured creditors of the old
corporation where, in carrying out the re-
organization plan, the new corporation ac-
quired all the properly of the old corpora-
tion for the amount of the mortgage.
[For other cases, see Corporations, III. b. in
Digest Sap. Ct. 1908.]
Corporations — reorganisation — rights
of creditors — laches.
5. A creditor is not barfed by laches
company for the debts of its predecessor —
see note to Chicago A I. Coal R. Co. v. Hall,
2d L.R.A. 231.
On the right of a corporation which has
transferred all or substantially all of its
assets to another corporation to subject as-
sets so transferred to an equitable lien or
5 reference — see note to Ex parte Savings
tank, 5 L.RJL.(NJ3.) 520.
580
from asserting its right to charge witlT its
debt a new oorporat&n whieh, in carrying
out a reorganization scheme, acquired aU
the proper^ of the old corporation, whidi
was worth more than the mortgaffe, at a
sale on foreclosure for the amount of the
mortgage, where the creditor set up its
claim in another suit prior to the fore-
closure sale and tried to become a party to
the foreclosure suit, and did succeed there-
in in saving its rights from prejudice, and,
when the corporations came into the suit at
bar, set up its claim again.
[For other caHes, see Limitation of Actions,
I. b, 2, in Digest Sup. Ct. 1908.]
Appeal — In equity case ^ review of
merits — estceptlon on other grounds.
6. The erroneous conclusion of the mas-
ter in an^ equity suit Uiat, under the facts
surrounding a corporate reorganization, the
new corporation was not liable for the un-
secured debts of the old corporation, could
be reversed by the circuit court of appeals
on appeal upon the merits, although the
exceptions to such conclusion were put upon
other grounds.
[For other cases, see Appeal and Brror, TI.
a, 4, in Digest Sap. Ct. 1908.]
Appeal — from circuit court of appeals
— Federal question.
7. Allegations in the bill and in a pe-
tition in intervention which assert respec-
tively a lien under a judsment of a Federal
court and title under a decree of a Feueral
court raised Federal questions which confer
jurisdiction on the Federal Supreme Court
on appeal from a decree of a circuit court of
appeals in the suit.
[For other cases, see Appeal and Brror, 790-
807. in Digest Sup. Ct. 1908.]
[No. 85.]
Argued December 13, 14, and 16, 1915 De-
cided February 21, 1916.
APPEAL from the United States Circuit
Court of Appeals for the Eighth Cir-
cuit to review a decree which, on a second
appeal, held, reversing a decree of the Cir-
cuit Court for the Western District of Mis-
souri, that a certain unsecured creditor of
a corporation could charge with its debt a
new corporation formed under a reorganiza-
tion scheme. Affirmed.
See same case below, first appeal, 120 C.
C. A. 121, 201 Fed. 811; second appeal, 127
C. C. A. 184, 210 Fed. 696.
The facts are stated in the opinion.
Messrs. Samuel W. Moore and Samuel
Untermyer argued the cause and filed a
brief for appellant:
If the bill of the Cambria Company
stated facts sufficient to present a distinct
ground of Federal jurisdiction independent
of that of diversity of citizenship, then the
decision of the court of appeals was not
final, and the motion to dismiss the appeal
must be overruled.
S40 U. 8.
1916.
KANSAS CITY 8. R. 00. ▼. 6UABDIAN TRUST 00.
Viokabiirg t. Henson, 231 U. S. 259, 58
L. ed. 209, 84 Sup. Ct. Rep. 95; Warner
y. Searlo & H. Co. 191 U. 8. 105, 48 L. ed.
145, 24 Sup. Ct Rep. 79; St. Louis K. 0.
& C. R. Co. T. WabMh R. Co. 217 U. S.
247, 54 L. ed. 762, 80 Sup. Ct Rep. 510;
Howard t. United SUtes, 184 U. S. 676, 46
L. ed. 754, 22 Sup. Ct. Rep. 543; Union P.
R. Co. V. Harris, 158 U. S. 826, 39 L. ed.
1003, 15 Sup. Ct. Rep. 843, 10 Am. Neg.
Ou. 585; Mississippi R. Commission v.
lUinois 0. R. Co. 203 U. S. 335, 51 L. ed.
209, 27 Sup. Ct Rep. 90; United SUtes
Fidelity & O. Co. v. Bray, 225 U. S. 205, 56
L. ed. 1055, 32 Sup. Ct Rep. 620.
It is the face of the bill of the Cambria
Company to which we must look lor the
jurisdictional averments. It is not ma-
terial or important what questions arising
upon the issues made by this Ull were
actually decided.
Florida, 0. & P. R. Co. ▼. Bell, 176 U. S.
321, 44 L. ed. 486, 20 Sup. Ct. Rep. 399;
Omaha Electric Light & P. Co. v. Omaha,
230 U. S. 123, 57 L. ed. 1419, 33 Sup. Ot.
Rep. 974; Siler v. Louisville & N. R. Co.
213 U. a 175, 53 L. ed. 753, 29 Sup. Ct
Rep. 451.
Where the case made by the plaintiff is
one which depends upon the proper con-
struction of an act of Congress, with the
oontingency of being sustained by one
oonstruction and defeated by another, it is
one arising under the laws of the United
States.
Northern P. R. Co. r. Soderberg, 188 U.
S. 526, 47 L. ed. 575, 23 Sup. Ct Rap. 365;
Re Lennon, 166 U. S. 548, 41 L. ed. 1110, 17
Sup. Ct Rep. 658.
The right of the Cambria Company to
relief turned upon the existence of the Judg-
ment lien created by act of Congress, which
the Ctoibria Company asserted and the
Trust Company denied. Did not the dis-
position of this issue depend upon the laws
of the United States, and was not the juris-
diction of the lower court, as depending
upon the subject-matter, properly invoked?
Cooke y. Avery, 147 U. S. 375, 37 L. ed.
200, 13 Sup. Ct. Rep 340; First Nat Bank
V. Society for Savings, 25 C. C. A. 466, 42
U. S. App. 517, 80 Fed. 581; Sowles t.
Witters,.46Fed. 497.
The reason of. the rule finds support in
many adjudicated cases. An action on the
bond of a marshal of the United States, or
on the bond of a clerk, or on the official
bond of a cashier of a national bank, or
on the bond of a Federal contractor, given
for the protection of persons furnishing
materials and labor for the construction of
public works, or on a supersedeas bond, are
hdd to arise under the laws of the United
States for the reascm that the ease depends
•0 li. ed.
upon the scope and effect of the bond, and
the meaning of the statute under which it
was given.
Bock T. Perkins, 139 U. S. 628, 35 L. ed.
314, 11 Sup. Ct. Rep. 677; Howard v.
United SUtes, 184 U. S. 676, 46 L. ed. 754,
22 Sup. Ct Rep. 543; Walker t. Windsor
Nat Bank, 5 C. C. A. 421, 5 U. S. App.
423, 56 Fed. 76; United States use of HUl
y. American Surety Co. 200 U. S. 197, 50
L. ed. 437, 26 Sup. Ct Rep. 168; United
States V. American Bonding & T. Co. 22
C. C. A. 420, 61 U. S. App. 584, 89 Fed.
925; United States use of Anniston Pipe k
Foundry Co. v. National Surety Co. 34
C. C. A. 526, 92 Fed. 549; United SUtes
use o< Fidelity Nat. Bank y. Bundle, 40
C. C. A. 450, 100 Fed. 400; Hardaway v.
National Surety Co. 80 C. C. A. 283, 150
Fed. 465; Seymour v. Phillips & O. Oonstr.
Co. 7 Biss. 460, Fed. Cas. No. 12,689.
An action against a corporation created
by Congress is one arising under the Uws
of the United SUtes, for the reason that
the oorporation has no powers and can
incur no obligations except as authorized
or provided by iU charter. (Pacific Rail-
road Removal Cases, 115 U. S. 1, 29 L.
ed. 319, 5 Sup. Ct Rep. 1113; Texas k P.
R. Co. V. Cox, 145 U. S. 593, 36 L. ed. 829,
12 Sup. Ct Rep. 905). Likewise, an action
on an injunction bond given in the course
of proceedings in the Federal court arises
under the Uws of the United SUtes.
TuUock V. Mulvane, 184 U. S. 497, 46 L.
ed. 657, 22 Sup. Ct Rep. 372; Missouri, K.
& T. R. Co. V. Elliott 184 U. S. 530, 46 L.
ed. 673, 22 Sup. Ct. Rep. 446.
A suit on a supersedeas bond, given in
oonformity to the Federal sUtute, to super-
sede a judgment in an action for a breach
of contract, during the pendency of a writ
of error from a Federal circuit court of
appeals, is one which arises under the Con-
stitution or laws of the United SUtes.
American Surety Co. v. ShulU, 237 U. S.
159, 59 L. ed. 892, 35 Sup. Ct Rep. 625.
The intervening petition of the Southern
Company was a suit arising under the laws
of the United SUtes,- and idt that reason
alone the right of i^peal to this court ex-
isU, regardless of the source of jurisdiction
of the Cambria bilL The decision of the
court of appeals in this case was not final
for the further reason that the intervening
petition of the Southern Company (which
was in the nature of an original bill
asserted the equiUble title to certain real
and personal pr9perties held or claimed by
the Trust Company, based upon foreclosure
decrees rendered in the United SUtes cir-
cuit court for the western district of
Missouri, and sales had thereunder, at
581
SUPREME COURT OF THE UNITED STATE&
Oct. TkBM,
which the Southern Company became the
purchaser.
Dupasseur v. Rochereau, 21 Wall. 180,
22 L. ed. 588; PitUburj^ C. C. & St. L.
R. Co. V. Long Island Loan & T. Co. 173
U. S. 493, 508, 43 L. ed. 528, 533, 19 Snp.
Ot. Rep. 238; Tullock v. Mulvane, 184 U.
S. 497, 46 L. ed. 657, 22 Sup. Ct. Rep.
372.
The Southern Company set up a right to
recover as the result of a judicial sale
made under a decree of the United States
circuit court, and therefore a Federal ques-
tion was presented.
C<Hnmercial Puh. Co. t. Beckwith, 188
U. S. 567, 47 L. ed. 598, 23 Sup. Ct. Rep.
382; State ez reL Atty. Gen. v. Frost, 113
Wis. 623, 89 N. W. 915; Cooke v. Ayery,
147 U. S. 375, 37 L. ed. 209, 13 Sup. Ct.
Rep. 340.
Where an ancillary bill upon its face
presents Federal questions, the right of
appeal to this court from the circuit court
of appeals exists, regardless of the source
of Jurisdiction of the main action.
Railroad Commission v. Worthington,
225 U. S. 101, 56 L. ed. 1004, 32 Sup. U.
Rep. 653.
The plan of reorganization is binding
upon the Trust Company because it actiyely
participated in the plan, and greatly bene-
fited by it in the exdiange of its own
securities in the old companies for those
of the Southern Company. Equity will not
permit the Trust Company to retain the
benefits of the plan and at the same time
attack it as fraudulent. It cannot claim
both under and against the plan.
14 Am. & Eng. Enc. Law, 273, 281 ; Whit-
aker y. Whitaker, 157 Mo. 353, 58 S. W. 5 ;
20 Cyc. 434, 435, 608.
The application of the doctrine of "quasi
estoppel," or of estoppel by the acceptance
of benefits, is fatal to any right of recovery
on the part of the Trust Company.
16 Cyc. 784; Wormser v. Metropolitan
Street R. Co. 184 N. Y. 83, 112 Am. St.
Rep. 596, 76 N. E. 1036, 6 Ann. Cas. 123;
Pott v. Beacon Vacuum Pump k Electrical
Co. 28 0. C. %. 431, 50 U. S. App. 271, 84
Fed. 371; Towers v. African Tug Co. [1904]
1 Ch. 558, 73 L. J. Ch. N. S. 395, 62 Week.
Rep. 530, 90 L. T. N. S. 298, 20 Times L.
R. 292, 11 Manson, 198; United States ex
rel. International Contracting Co. v. La-
mont, 155 U. S. 303, 39 L. ed. 160, 15 Sup.
Ct. Rep. 97; North Chicago Street R. Co.
V. Chicago Union Traction Co. 150 Fed.
626; Farmers' Bank v. Groves, 12 How. 51,
13 L. ed. 889; Compton v# Jesup, 167 U.
8. 1, 42 L. ed. 55, 17 Sup. Ct. Rep. 795;
United States v. Hodson, 10 Wall. 395, 19
L. ed. 937; Daniels v. Teamey, 102 U. S.
415, 26 L. td. 187; Winslow t. Baltimore
68S
A 0. R. Co. 208 U. 8. 59, 52 L. ed. 388, 28
Sup. Ct. Rep. 190; Loy v. Alston, 96 C. C.
A. 578, 172 Fed. 90; Shackleton v. Bagga-
ley, 95 C. C. A. 505, 170 Fed. 57; United
States use of Hine v. Morse, 218 U. S. 493,
54 L. ed. 1123, 31 Sup. Ct. Rep. 37, 21 Ann.
Cas. 782; State ex reL Pope v. Germania
Bank, 90 Minn. 150, 95 N. W. 1116; Sem-
inole Securities Co. v. Southern L. Ins. Co.
182 Fed. 85; Gaddes v. Pawtucket Inst, for
Savings, 33 R. I. 177, 80 Atl. 415, Ann.
Cas. 1913B, 407; Sage v. Finney, 156 Mo.
App. 30, 135 S. W. 996.
The doctrine of equitable election is a
complete bar to a recovery by the Trust
Company.
Peters v. Bain, 133 U. S. 670, 33 L. ed.
696, 10 Sup. Ct. Rep. 354; Merchants' Nat.
Bank v. Sexton, 228 U. S. 634, 57 L. ed.
998, 33 Sup. Ct. Rep. 725; 11 Am. k Eng.
Enc. Law, 2d ed. p. 59; Codrington v.
Lindsay, L. R. 8 Ch. 678, 42 L. J. Ch. N. S.
626, 28 L. T. N. S. 177, 21 Wedc. Rep. 182;
Pitman v. Ewing [1911] A. O. 217, 80 L. J.
P. C. N. S. 178, 104 L. T. N. S. 611, 48
Scot. L. R. 401, 21 Ann. Cas. 547; Fox v.
Windes, 127 Mo. 512, 48 Am. St. Rep. 648,
30 S. W. 325; 1 Herman, Estoppel & Res
Judicata, p. 11; 2 Herman, Estoppel & Res
Judicata,' § 1028, p. 1156; Stone v. Cook,
179 Mo. 545, 78 S. W. 801; Kavanaugh v.
Shacklett, 111 Va. 423, 69 S. E. 335; Sav-
ings Bank v. Todd, 114 Va. 708, 77 S. £.
446.
The doctrine of equitable estoppel is also
a complete bar to a recovery by the trust
company.
Farmers' Loan & T. Co. v. Central R. &
Bkg. Co. 120 Fed. 1006; Matthews v
Murchison, 15 Fed. 691; Symmes v. Union
Trust Co. 60 Fed. 830; Vose v. Cowdrey,
49 N. Y. 343; Reagan v. First Nat. Bank,
157 Ind. 623, 61 N. E. 575, 62 N. E. 701 ;
Jessup V. Hulse, 21 N. Y. 168; Old Nat.
Bank y. Heckman, 148 Ind. 490, 47 N. E.
953; Jacobs v. Jefferson Lumber Co. —
Tex. — , 15 S. W. 236 ; Mitchell v. Mitchell,
212 Pa. 62, 61 Atl. 670; Olliver v. King.
8 De G. M. k G. 110, 25 L. J. Ch. N. S. 427,
2 Jur. N. S. 312, 4 Week. Rep. 382; Perisho
v. Perisho, 71 111. App. 222; Rapalee v.
Stewart, 27 N. Y. 310; Canton Roll ft
Mach. Co. y. Rolling MiU Co. 155 Fed. 321 ;
Thompson v. Cohen, 127 Mo. 215, 28 S. W.
984, 29 S. W. 885; Gutzweiller v. T^kman,
23 Mo. 168; Smith v. Espy, 9 N. J. Eq.
160; Richards v. White, 7 Minn. 345, Gil.
271 ; Fiske v. Carr, 20 Me. 301.
Where a person's conduct is such as to
operate as an estoppel, the estoppel will
be implied regardless of the fact that he
may protest and insist that it shall noi
have that effect.
United States ex rel. International Con«
840 v: 8.
1915.
KANSAS CITY 6. R. 00. t. OUABDIAN TRUST 00.
trmctiiig Oo. t. Lamont, 155 U. 8. 808,
li. ed. 160, 15 Sup. Ct. Rep. 07; Wonnser
^. Metrf^Iitan Street R. Co. 184 N. Y. 83,
112 Am. St. R^. 696, 76 N. £. 1036, 6
Ann. Cu. 123; Post T. Beacon Vacuum
Pump & Electrical Co. 28 C. C. A. 431, 50
U. S. App. 271, 84 Fed. 371.
The prorision of the plan which made a
tentative appropriation of $475,000 for the
payment of floating debts of all the com-
panies was not a contract for the benefit
of the Trust Company as a creditor, upon
which it was entitled to maintain an action.
The purpose and intention of this provision
was to benefit the security holders, and not
^ benefit the unsecured creditors of the
•constituent companies. That unsecured
•ereditors may have been incidentally bene-
fited does not change the rule or extend
^he contract to strangers not in priiity
with it
German Alliance Ins. Oo. ▼. Home Water
ISupply Co. 226 U. S. 220, 57 L. ed. 195,
42 L.R.A.(N.S.) 1000, 33 Sup. Ct. Rep. 32;
ISt. Louis Y. 6. H. Wright Contracting Co.
-202 Mo. 451, 119 Am. St. Rep. 810, 101 S.
W. 6; Beattie Mfg. Co. v. Qark, 208 Mo.
89, 106 S. W. 20; Howsmon v. Trenton
Wat^ Co. 119 Mo. 304, 23 L.RJi. 146, 41
Am. St. Rep. 654, 24 S. W. 784; Metropoli-
tan Trust Co. V. Topeka Water Co. 132
Fed. 702; Allen k 0. Mfg. Co. v. Shreve-
•port Waterworks Co. 113 La. 1091, 68
L.RJL 650, 104 Am. St. Rep. 525, 37
So. 980, 2 Ann. Cas. 471; Second Nat.
Bank v. Grand Lodge F. & A. M. 98 U.
8. 123, 25 L. ed. 75; Keller y. Ashford,
133 U. S. 610, 33 L. ed. 667, 10 Sup. Ct.
Rep. 494; Say ward v. Dexter, H. k Co. 19
<!. 0. A. 176, 44 U. S. App. 376, 72 Fed.
758; American Exch. Nat. Bank y. North-
•em P. R. Co. 76 Fed. 130; Moyer ▼. Ft.
Wayne, C. & L. R. Oo. 132 Ind. 88, 31 N. E.
567; Freeman y. Pennsylvania Co. 173 Pa.
^4, 33 Atl. 1034; Mcllvane v. Big Stony
Lumber Co. 105 Va. 613, 54 S. E. 473;
Armour k Co. v. Western Constr. Co. 36
Wash. 529, 78 Pac. 1106.
The acceptance and retention of benefits
under a will, contract, plan of reorganiza-
tion, or what not, operates as a complete
•estoppel or bar against any action or pro-
ceeding which does not recognize and give
effect in its entirety to the transaction from
which the benefits have been derived. What-
•ever name may be given to this rule, it is
one firmly established in our jurisprudence.
It is not dependent upon (a) the existence
•ol a misrepresentation, (b) ignorance of
the truth, or (e) action induced by the mis-
representation, or (d) injury if the truth is
permitted to be proved.
Bigelow, Estoppel, 6th ed. p. 732; 16 Oye.
784; Hector y. Mann, 225 Mo. 228, 124 B.
4« Ii. ed.
W. 1109; Utermehle y. Norment, 197 U. S.
40, 49 L. ed. 655, 25 Sup. Ct. Rep. 291, 3
Ann. Cas. 520; Humes Constr. Co. v. Phila-
delphia Oasualty Co. 32 R. I. 246, 79 Atl. 1,
Ann. Cas. 1912D, 906; Tozer v. Ocean Acci.
k Guarantee Corp. 94 Minn. 478, 103 N. W.
509 ; Gaddes v. Pawtucket Inst, for Savings,
33 R. I. 177, 80 AU. 415, Ann. Cas. 1013B,
407 ; Field v. Doyon, 64 Wis. 560, 25 N. W.
653; Chard v. Warren, 122 N. C. 75, 29 S.
E. 373; Greeley v. Provident Sav. Bank,
103 Mo. 212, 15 S. W. 429; St. Lotiis v.
Davidson, 102 Mo. 149, 22 Am. St. Rep.
764, 14 S. W. 825; Bigelow, Estoppel, 5th
ed. 685; Robinscm y. Pebworth, 71 Ala.
240.
The application to the facts in this case
of the familiar rules that he who seeks
equity must do equity, and must come into
court with clean hands, is fatal to the con-
tention of the Trust Company, even if it
be assumed (as it is not) that the reor-
ganization plan amounted to a fraudulent
conveyance to stockholders of assets to
which general creditors had a right to
resort for the satisfaction of their claims.
Harriman v. Northern Securities Co. 197
U. S. 244, 295, 49 L. ed. 739, 763, 25 Sup.
Ct. Rep. 493; Randall v. Howard, 2 Black,
585, 17 L. ed. 269; Wheeler v. Sage, 1 Wall.
518, 17 L. ed. 646; Dent v. Ferguson, 132
U. S. 50, 33 L. ed. 242, 10 Sup. Ct. Rep. 13;
Bartle v. Nutt, 4 Pet. 184, 7 L. ed. 825;
Schermerhom v. De Chambrun, 12 C. O. A.
81, 26 U. S. App. 212, 64 Fed. 195; Law-
ton V. Estes, 167 Mass. 181, 57 Am. St.
Rep. 450, 45 N. E. 90; Deppen y. German-
American Title Co. 24 Ky. L. Rep. 110, 70
S. W. 868; Lemay v. Bibeau, 2 Minn. 291,
Gil. 251; Scott v. Edes, 3 Minn. 388, Gil.
271.
If the plan became fraudulent only after
the Trust Company's debt was not paid, as
the court of appeals decided, nevertheless
the Trust Company's retention of the fruits
of the scheme is a conclusive bar to a
recovery.
Kahn v. Peter, 104 Ala. 523, 16 So. 524 ;
Brewer v. Nash, 16 R. I. 458, 27 Am. St.
Rep. 749, 17 Atl. 857.
The plan could not become fraudulent by
events subsequently transpiring.
20 Cyc. 413; Krueger y. Vorhauer, 164
Mo. 156, 63 S. W. 1098.
If the reorganization plan was ever
fraudulent and voidable as to creditors, it
was so at the time of its execution by the
Trust Company, and the eovenant is a com-
plete bar.
Louisville Trust Co. y. Louisville, N. A.
& C. R. Co. 174 U. S. 674, 43 L. ed. 1180,
19 Sup. Ct. Rep. 827; Chicago, R. I. & P.
R. Co. y. Howard, 7 Wall. 892, 19 L. ed.
U7.
68S
SUPREME COURT OF THE UNITED STATES.
Oct. TwMMp
A retention of the fruits of the fraud is
a conclusive election to hold under the plan,
and is an insurmountable barrier to any
attack upon the plan.
Stone V. Cook, 179 Mo. 534, 64 L.RJL.
287, 78 S. W. 801; 11 Am. k Eng. Eno. Law,
2d ed. p. 98; Young v. Young, 61 N. J.
£q. 491, 27 AU. 627; Medill v. Snyder,
61 Kan. 15, 78 Am. St. Rep. 306, 58 Pac.
962.
If the Southern Company, after becoming
the owner of the property of the Gulf Com-
pany and of the stocks and bonds of the
Belt Company on April 1, 1900, had con-
tinued in the operation and management of
the Gulf property acquired at foreclosure
sale, and had continued to own the stocks
and bonds of the Belt Company, without
causing any action to be instituted for the
foreclosure of the mortgage securing the
bonds, for a period of, say, five, ten, or
twenty years, no one would contend that
such a transaction was unlawful, irregular,
or even unusual.
Pullman's Palace Car Co. v. Missouri P.
R. Co. 115 U. S. 587, 29 L. ed. 499, 6 Sup.
Ct. Rep. 194; Peterson v. Chicago, R. I. k
P. R. Co. 206 U. S. 384, 51 L. ed. 841, 27
bup. Ct. Rep. 513; Atchison T. k S. F. R.
Co. V. Cochran, 43 Kan. 225, 7 L.R.A. 414,
19 Am. St. Rep. 129, 23 Pac. 151; Stone
v. Cleveland, C. C. k St. L. R. Co. 202 N.
Y. 352, 35 L.R.A.(N.S.) 770, 96 N. E. 816.
If, upon the expiration of any one of the
periods supposed, the Belt Company had
made default in the payment of interest
upon the bonds held by the Southern Com-
pany, and the trustee in the mortgage of
the Belt Company, as required by the terms
of the mortgage in such contingency, had
caused the property to be foreclosed and
sold, no stockholders' interest being pre-
served to the Southern Company, no credi-
tor of the Belt Company could have com-
plained, and no one would have imagined
that there was any fraudulent conveyance
to defeat the claims of creditors.
Pullman's Palace Car Co. v. Missouri P.
R. Co. 115 U. S. 587, 29 L. ed. 499, 6 Sup.
Ct. Rep. 194.
The mortgage indebtedness of the Belt
Company was $1,000,000. It was sold at
foreclosure sale for $1,000,000, which the
master found was the fair market value
at that time. Under these circumstances,
the Trust Company, as a creditor of the
Bjelt Company, has not been injured and
has no right to complain.
Wenger t. Chicago k E. R. Co. 61 0. C.
A. 660, 114 Fed. 84; Farmers' Loan k T.
Ca T. Louisville, N. A. & 0. R. Co. 108
Fed. 180.
A remhing truft was created in faror of
the railway companies paying for the prop-
SS4
erties deeded to the Central Company, and
this equitable interest passed under the
after-acquired property clauses of their
mortgages. The Central Company acquired
the properties subject to this trust, and
the interest of its stockholders was likewise
subject thereto. The Trust Company ac-
quired the stock of the Central Company
with a knowledge of these facts, and ita
equities, therefore, are subordinate to those
of the Southern Company.
Osborne v. Perkins, 60 C. C. A. 168, 112
Fed. 127; Lauter v. Jarvis-Conklin Mortg.
Trust Co. 29 C. C. A. 473, 54 U. S. App. 49,
85 Fed. 894; Condit v. Maxwell, 142 Mo.
266, 44 S. W. 467 ; Sanf ord v. Savings k L.
Soc 80 Fed. 54; Wade v. Sewell, 56 Fed.
129; Ducie v. Ford, 138 U. S. 687, 34 L.
ed. 1091, 11 Sup. Ct. Rep. 417; Albright v.
Oyster, 140 U. S. 493, 35 L. ed. 534, 11 Sup.
Ot. Rep. 916; Toledo, D. & B. R. Co. v.
Hamilton, 134 U. S. 296, 33 L. ed. 905, 10
Sup. Ct. Rep. 546; Augusta T. & O. R. Co.
V. Kittel, 2 C. C. A. 615, 2 U. S. App. 409,
52 Fed. 63; Brady v. Johnson, 75 Md. 445,
20 L.R.A. 737, 26 Atl. 49; McGourkey ▼.
Toledo & 0. C R. Co. 146 U. S. 536, 31^
L. ed. 1079, 13 Sup. Ct. Rep. 170; Con-
tracting k Bldg. Co. V. Continental Trust
Co. 47 O. C. A. 143, 108 Fed. 1 ; New Eng-
land Waterworks Co. v. Farmers' Loan k-
T. Co. 69 C. C. A. 297, 136 Fed. 521 ; Cen-
tral Trust Co. V. Kneeland, 138 U. S. 414,
34 L. ed. 1014, 11 Sup. Ct. Rep. 357.
Where the proi>erties are bought with the
funds of the mortgagor for its purposes, it
is universally held that the after-acquired
property clauses attach immediately, re-
gardless of the circumstances that the legal
title may be vested in an individual or in
a corporation.
Guaranty Trust Co. v. Atlantic Coast
Electric R. Co. 71 O. C. A. 41, 138 Fed. 617 ;
^ew England Waterworks Co. v. Farmeri^
Loan k T. Co. 69 C. C. A. 297, 136 Fed.
621; Farmers' Loan k T. C6. v. Denver L.
k G. R. Co. 60 C. C. i. 588, 126 Fed. 46,
Wade V. Chicago, S. k St. L. R. Co. 14i^
U. S. 327, 341, 37 L. ed. 755, 761, 13 Sup.
Ot. Rep. 842; Central Trust Co. v. Kned-
and, 138 U. S. 414, 424, 34 L. ed. 1014,
1017, 11 Sup. Ct. Rep. 357; Augusta T. tL
G. R. Co. V. Kittel, 2 C. C. A. 615, 2 U. 8,
App. 409, 62 Fed. 63.
It is the particular province of a court
of equity to look through a transaction to
the substance of it, and to disregard the
form or appearance it may take.
McGourkey v. Toledo & 0. R. Co. 146 U
S. 686, 666, 86 L. ed. 1079, 1090, 18 Sup. Ct.
Rep. 170; Smith v. Moore, 118 C. C. A.
127, 199 Fed. 690; Linn k L. Timber Oo. T.
United Statea, 116 0. 0. A. 267, 196 Fed.
608.
S40 V. B.
1913.
KANSAS CITY S. R, CX). ▼. GUARDIAN TRUST CO.
If the possession of the Trust Company 1
of this stock as pledgee gave to it an equit- 1
able interest in the property itself, why
did not the ownership of the stock by the
Belt Company give to it an equitable inter-
est in the property itself, which passed
under the after-acquired property clause of
its mortgage? And if this equitable inter-
est did pass to the trustee, how could it
ever have been afterwards devested from
the trustee and reinvested in the Trust
Company?
Pcre Marquette R. Co. r. Graham, 136
Mich. 444, 09 N. W. 408; Columbia Finance
k T. Co. V. Kentucky Union R. Co. 9 C. C.
A. 264, 22 U. S. App. 64, 60 Fed. 794;
Knevals v. Florida, C. k P. R. Co. 18 C. O.
A. 410, 23 U. S. App. 649, 66 Fed. 224;
Omaha & St. L. R. Co. v. Wabash, St. L.
A P. R. Co. 108 Mo. 298, 18 S. W. 1101;
United States Trust Co. v. Wabash, St L.
& P. R. Co. 32 Fed. 480; Brady T. John-
eon, 76 Md. 446, 20 L.R.A. 737, 26 Atl.
49; Monmouth County Electrie Co. t. Mc-
Kenna, 68 N. J. £q. 160, 60 Atl. 32 ; Harris
v. Youngstown Bridge Co. 33 C. O. A. 69,
62 U. S. App. 112, 90 Fed. 322; Contracting
& Build. Co. V. Continental Trust Go. 47 C.
C. A. 143, 108 Fed. 1; Toledo, D. A B, R.
Co. ▼. Hamilton, 134 U. S. 296, 33 L. ed.
906, 10 Sup. Ct. Rep. 646.
The Trust Company was acting in a dual
capacity. It was trustee for the bondhold-
ers under tlie mortgages with after-acquired
property clauses which, as the master
found, attached to the properties of the
Central Company. It also, in its individual
capacity, took, or attempted to take, the
same properties to secure an indebtedness
to it from the Belt Company. A trustee,
under such circumstances, will not be per-
mitted to take or receive any of the Belt
Company's assets or properties and appro-
priate them as security for its own indebt-
edness.
Guaranty Trust Co. t. Atlantic Coast
Electric Co. 71 C. C. A. 41, 138 Fed. 617;
King V. Remington, 36 Minn. 16, 29 N. W.
362; Ex parte James, 8 Ves. Jr. 337, 7 Re-
vised Rep. 76; Ex parte Bennett, 10 Ves.
Jr. 381, 8 Revised Rep. 1; Poillon y. Mar-
tin, 1 Sandf. Ch. 669; Duncomb t. New
York, H. & N. R. Co. 84 N. Y. 190; Citse
T. Carroll, 35 N. Y. 386; Gardner v. Ogden,
22 N. Y. 327, 78 Am. Dec 192; Ex parte
flughea, 6 Yes. Jr. 617; Fulton t. Whitney,
66 N, Y. 648; OUver t. Court, 8 Price, 127,
Dmniell, 801, 22 Revised Rep. 720.
There is no basis whatever for the oon-
tention that the entire floating debt of the
eonstituent companies has been paid ex-
eept only the debt of the Trust Company.
Hoard v. Chesapeake & O. R. Co. 123
TJ. S. 222, 31 L. ed. 130, 8 Sup. Ct Rep. 74;
40 L. ed.
State Trust Co. v. Kansaa City, P. & G. R.
Co. 110 Fed. 10; State Trust Co. v. Kansas
City, P. & G. R. Co. 120 Fed. 398, 128 Fed.
129, 129 Fed. 466; Westinghouse Air Brake
Co. y. Kansas City Southern R. Co. 71 C.
C. A. 1, 137 Fed. 26; Fordyce v. Bradley,
49 C. 0. A. 698, 111 Fed. 769; State Trust
Co. T. Kansas City, P. 4 G. R. Co. 116 Fed.
367, 116 Fed. 1023.
A different rule applies to one who is
both creditor and security holder.
Bank of Ft. Madison v. Alden, 129 U. S.
372, 32 L. ed. 726, 9 Sup. Ct. Rep. 332;
Thompson v. Bemis Paper Co. 127 Mass.
696: Cunningham v. Holley, M. M. &, Co.
68 C. C. A. 140, 121 Fed. 720; WhitehUl v.
Jacobs, 76 Wis. 474, 44 N. W. 630.
The reorganization plan and agreement
do not constitute a contract for the pay-
ment of the floating debt of the constituent
companies.
Robinson t. Iron R. Co. 136 U. S. 622,
34 L. ed. 276, 10 Sup. Ct Rep. 907.
Even if the reorganization plan and
agreement amounted to an express contract
to pay the floating debt (which is strenu-
ously denied), yet it was not a contract
made for the benefit of unsecured creditors,
as its object, and hence the Trust Company
cannot maintain an action upon it.
German Alliance Ins. Co. v. Home Water
Supply Co. 226 U. S. 220, 67 L. ed. 196, 42
LJLA.(N^.) 1000, 83 Sup. Ot. Rep. 32;
Second Nat. Bank v. Grand Lodge, F. k A.
M. 98 U. S. 123, 124, 26 L. ed. 76, 76; St.
Louis T. G. H. Wright Contracting Co.
202 Mo. 461, 119 Am. St Rep. 810, 101 S.
W. 6; Beattie Mfg. Co. v. Clark, 208 Mo.
89, 106 S. W. 29; Howsmon v. Trenton
Water Co. 119 Mo. 304, 23 L.R.A. 146, 41
Am. St Rep. 664, 24 S. W. 784 ; Metropoli-
tan Trust Co. y. Topeka Water Co. 132 Fed.
702; Allen & 0. Mfg. Co. v. Shreveport
Waterworks Co. 113 La. 1091, 68 L.R.A.
660, 104 Am. St. Rep. 626, 37 So. 980, 2
Ann. Gas. 471; Keller v. Ashford, 133 U.
S. 610, 33 L. ed. 667, 10 Sup. Ct. Rep. 494 ;
Sayward t. Dexter, H. k Co. 19 C. C. A.
176, 44 U. S. App. 376, 72 Fed. 768 ; Moyer
V. Ft Wayne, C. & L. R. Co. 132 Ind. 88,
81 N. B. 667; Freeman v. Pennsylvania R.
Go. 178 Pa. 274, 83 Atl. 1034; Mcllvane ▼.
Big Stony Lumber Co. 106 Va. 613, 64 S. £.
478; Armour & Co. t. Western Constr. Co.
88 Wash. 629, 78 Pae. 1106; Rochester Dry
Goods Co. T. Fahy, 111 App. Dlv. 748, 97
N. Y. Supp. 1013 ; Nalle v. Costley, — Tex.
Civ. App. — , 174 S. W. 626; Chung Kee v.
Davidson, 78 Cal. 622, 16 Pac. 100; Clark
y. P. M. Hennessey Constr. Co. 122 Minn.
476, 142 N. W. 873; COonnell v. Mercan-
tile Trust Co. 166 Mo. App. 398, 147 S. W.
841; Gulf Gompress Co. v. Harris, C. k Co.
685
SUPREME COURT OF THE UNITED STATES. Oct. Term.
158 Ala. 343, 24 L.R.A.(N.S.) 399, 48 So. property of the Belt Companj, the sale
477. thereunder, and the purchase by the South-
The Southern Company is not liable for em Company, did not operate .to establish
the debts of the Belt Company upon the a consolidation.
theory of a statutory consolidation of the National Foundry &. Pipe Works ▼. Ocon-
two companies. to City Water Supply Co. 105 Wis. 48, 81
Harriman v. Northern Securities Co. 197 N. W. 125; Hoard v. Chesapeake & O. R.
U. S. 244, 49 L. ed. 739, 25 Sup. Ct. Rep. Co. 123 U. S. 222, 31 L. ed. 130, 8 Sup. Ct.
498; Burge v. St. Louis, M. k S. R. Co. Rep. 74; Dickey v. Kansas City & I. Rapid
100 Mo. App. 460, 74 S. W. 7; 3 Purdy's Transit R. Co. 122 Mo. 223, 26 S. W. 686;
Beach, Priv. Oorp. p. 1844; 6 Am. k Eng. Helton v. St. Louis, K. k N. R. Co. 25 Mo.
Ene. Law, 2d ed. p. 801; St. Louis k S. F. App. 322.
R. Co. V. Cross, 171 Fed. 480; Gulf, C. k w^..,. i^.-^-.-i«i, w x^i. «« - ^
0 v T» /^ ir 11 TO rr \«A ir A Messrs. Frederick W. Lehmann and
S. F. R. Co. V. Newell, 73 Tex. 334, 15 Am. ^^^^.^^ „ «» i«-i. w- — j *u
flf n^r. 7ftft 11 Q \xi\aq. Pk-.« I \/iin\.\ <^«>'«e H- English, Jr., argued the cause.
Bt. Rep. 788, II 8. W. 342; Onase v. Michi- „„^ -,uk \ji^ va^^^a -d r««*^- «i-.j «
rrli^^i. n^ loi iLTj-v iioi OA XT x«7 *nd, with Mr. Edward P. Gates, filed a
1. XT * i> 1 ^ft XT V Ain oe T -a A AA4 * trust lUHQ to wuicu ine creQitors wej
•eh Nat Bank. 49 Neb 412. 35 L.R.A^444. ^.^j^ .^ . ^ ^^ .tockholder..
T ?• ! «?■ J' tl ' '^^ Central Improy. Co. v. Cambria Steel Co.
V. Johnston. 63 AU. 237. 120 C. C. A. 121. 201 Fed. 811, 127 C. C. A.
If the Southern Company and the Belt ,«. aM\ i?^ ana xr *v n -o n
^ , I'j X J J AU ^8*» 210 Fed. 696; Northern P. R. Co. t.
Company became consolidated under the x»^^, aoa tt q .iqo k7 t ^ ooi oo o
*-.. *^ : . . , I . J V AU rr A l'<>yd, 228 U. S. 482, 57 L. ed. 931, 33 Sup.
Missouri statute, as claimed by the Trust q^" ^ -- . *^
Company, then both corporations ceased to L,^ ^' * u-j a xu * i ^ m
liTiiLrrAi-i u 'J The amount bid at the foreclosure sale of
exist. The Trust Company has recognized ., ^ ^^,. _ «^ ., ...
• ,. . . AU -A ***® S«l^ property was no evidence of its
and continues to recognize the existence y-|„g r r ^
of both companies, and is estopped to assert t'a at>*a /^u- ». -^t t:>
that thev were consolidated and thereby be- In^«»t™ent Registry v. Chicago k M. E.
mat wi^ were consoiioatea ana tnereoy DC ^ ^^ ^^^ ^ ^ ^ J3^^ 2^2 ^^ g^,
came extinct. Northern P. R. Co. v. Boyd, 228 U. S. 48*/,
1. TTi^i; n r'i;«?%S?' v. Missouri P. ^^ l. ed. 931, 33 Sup. Ct. R;p. 554; Shickle
f^,^""' «^ Vp ^' loi' L ; * ^' V. Watts, 94 Mo. 410, 7 S. W. 274; Mollitt
501, 6 Sup. Ct. Rep 194; State ex re^. ^ ^^^^^' ^^^ ^^; ^^3 3^ ^^
Houck V. Lesueur, 145 Mo. 322, 46 S. W. ^ :«„:ii^ rr' .a r. t • -n xt a Z
lA're ir 1 1 iL TT7 T> n xr* • leo Louisville Trust Co. V. LouisviUe N. A. &
1075; Keokuk k W. R. Co. v. Missouri, 152 n j> n^ t^A tt o uta ao r a iio/> in
YT o OAT 00 T A Attn -t A a riA u C. R. Co. 1<4 U. S. 674, 43 L. ed. 1130, 19
U. S. 301, 38 L. ed. 450, 14 Sup. Ct. Rep. g ^. „ go- *
592; Yazoo k M. Valley R. Co. v. Adams, n-u 1 r ' • *• -j j r
180 U. S. 1. 45 L. ed. 395. 21 Sup. Ct. Rep. ,. ^'•« pUn of Teorgan.zat.on provided for
240, 77 MiBB. 194. 60 L.R.A. 33, 24 So. 200, *e payment of the debts of the old com-
317. 28 So. 956; Vick.burg & Y. City ^'The Mtimate as to the floatinir debt was
Teleph. Co. v. Citizena' Teleph. Oo. 79 Miss. .*"! ,?r^ ' " 5. •."'^"°K "*" ^*"
841. 89 Am. St. Rep. 666, 30 So. 725; Lee "°* '°*';''"'tl "•/ ^'^k °". '''*°" *
y. Atlantic Coaat Line R. Co. 160 Fed. 775. *Tr *" ?*. ?"/ ""^*' *■•* P''"" , . .^
rp, • SAX U-. AU o AU n The provision for the payment of debts
The acquisition by the Southern Company ji1.au i ^ i- -a j u au
... v*, juj ^autiiaA made by the plan was not limited by the
of the stocks and bonds of the Belt Com- . . a * au u ju u
, ., • J Ai interests of the bondholders,
pany and other companies under tlie reor- ^^ i • « j*a «.
v.... ,_ \ Aj'j A There was no exclusion of creditors who
ganization plan and agreement did not . , «, u j ^ i u u
^ ^. *^ i«j A' « AU y^•ere also bondholders and stockholders,
operate as a consolidation of those com- a,i x. ..^ au m a /-«
Jl . All the creditors save the Trust Company
^ Pullman's PaUce Car Co. t. Missouri P. were paid, and the Trust Company was
R. Co. 115 U. S. 587, 29 L. ed. 499, 6 Sup. P^ITu^V^^'a r. aai a a
Ct. Rep. 194; Peterson v. Chicago, R. L k , The Trust Company was entitled to en-
P. R. Co. 205 U. S. 364, 61 lTIi. 841, 27 f^"t the provisions of the plan as a con-
Sup, a. Rep. 513; Atchison. T. k S. P. R. *'*^* '^'ft^l' ^' ?*^""^^- ^ ,^ ^ ^
CO. V. Cochran, 43 Kan. 225, 7 L.R.A. 414, ^ ^^^^^ ^,^^' ^»;"\^; x !!J ^^'^rJ* *
19 Am. St. Rep. 129, 28 Pac. 151; Com. v. ^ ^- *® ^' ^' ^^3, 25 L, ed. 75; Johns t.
Monongahela Bridge Co. 216 Pa. 108, 64 Wilson, 180 U. S. 440, 45 L. ed. 613. 21 Sup.
Atl. 909. 8 Ann. Cas. 1078; Ulmer v. Lime ^t. Rep. 445; Meyer v. Lowell, 44 Mo. 328;
Rock R. Co. 98 Me. 579, 66 L.RJL. 387, 67 ^^^e Mfg. Co. v. aark. 208 Mo. 89, 106
Atl. 1001; Exchange Bank t. Macon Constr. S. W. 29.
Co. (Mcllghe ▼. Macon Oonstr. Co.) 97 Ga. There was no covenant by the Trust Com-
1, 88 L.R.A. 800, 25 S. E. 826; Jessup v. pany that it would not hold the new oom-
niinois 0. R. Co. 86 Fed. 736. pany for any of the debts of the old.
The foreelotura of the mortgage upon the Webster t. Dwelling House Ins. Co. 53
^S0 S40 U. 8.
1915.
KANSAS CITY S. R. CO. v. GUARDIAN TRUST CO.
Ohio St. 558, 30 L.R.A. 719, 53 Am. St.
Rep. 658, 42 N. £. 546; Hobbs v. McLean,
117 U. S. 667, 29 L. ed. 940, 6 Sup. Ct. Rep.
S70; United States v. Central P. R. Co. 118
U. S. 235, 30 L. ed. 173, 6 Sup. Ct. Rep.
1038; Noonan T. Bradley, 9 Wall. 394, 19
L. ed. 757.
The Trust Company was not barred aa a
creditor by participating in the plan as
bondholder and stockholder.
The Southern Company was liable as be-
ing a consolidation of the old companies.
Iicavenworth County v. Chicago, R. I. &
P. R. Co. 134 U. S. 688, 33 L. ed. 1064, 10
Sup. Ct. Rep. 708; State ex rel. Houck v.
Lcsueur, 145 Mo. 822, 46 S. W. 1075;
J£vana v. Interstate Rapid Transit R. Co.
106 Mo. 594, 17 S. W. 489; Wells v.
Missouri-Edison Electric Co. 108 Mo. App.
<07, 84 S. W. 204; Barrie v. United R. Co.
138 Mo. App. 557, 119 S. W. 1020; John-
son V. United R. Co. 247 Mo. 326, 152 S. W.
362, 374; Chicago, S. F. k C. R. Co. v.
Ashling 160 111. 373, 43 X. E. 373; Shad-
ford V. Detroit, Y. & A. A, R. Co. 130 Mich.
300, 89 N. W. COO.
The lands of the Central Improvement
Company did not pass under the after-
acquired property clause of the Belt mort-
gage.
Humphreys v. McKlssock, 140 U. S. 304,
35 L. ed. 473, 11 Sup. Ct. Rep. 779; Pardee
V. Aldridge, 189 U. S. 429, 47 L. ed. 883,
23. Sup. Ct. Rep. 514; Smith v. McCullough,
104 U. S. 25, 26 L. ed. 037 ; Boston k N. Y.
Air Line R. Co. v. Coffin, 50 Conn. 150;
Dinsmore y. Racine & M. R. Co. 12 Wis.
650.
There it no reason of law, policy, or mor-
als for preferring stockholders to general
creditors in the reorganization of railroad
properties.
Messrs. George H. English, Jr., Edward
P. Qates, and Walter C. Clephane filed a
separate brief for the Guardian Trust Com-
pany.
Mr. Harry 8. Mecartney argued the
eause, and, with Mr. Newell H. Clapp, filed
a brief for intervening stockholders of the
Guardian Trust Company:
The plan invited deposits of bonds and
stocks upon the express condition of the
payment of the floating debt. The decree
ordered against the Southern can validly
rest upon this express promise alone.
The Key City, 14 Wall. 653, 20 L. ed.
896; T^sen v. Wabash R. Co. 15 Fed. 763.
The words of a document will, in cases
of doubt, be construed most strongly
against the party using them; and particu-
larly is this true in cases of deeds poll.
17 Am. k Eng. Enc. Law, 14.
A construction is to be placed on a docu*
•0 L. ed.
ment such as will render it reasonable
rather than unreasonable, and just to both
the parties rather than unjust. (17 Am. k
Eng. Enc. Law, 18), and as being made for
a legal rather than an illegal purpose.
Such an agreement is construed strictly
against the -committee.
5 Thomp. Corp. 2d ed. | 5993; United
Waterworks Co. y. Omaha Water Co. 164
N. Y. 53, 58 N. E. 58; United Waterworks
Co. V. Stone^ 127 Fed. 587; Industrial k
General Trust v. Tod, 180 N. Y. 215, 73 N.
£• 7; Kratzenstein v. Western Assur. Co.
116 N. Y. 54, 5 L.RJk. 799, 22 N. E. 221.
If the agreement and plan did not consti-
tute an express contract, i. e., a complete
agreement to pay the floating debt, then
they did constitute a contract implied in
fact to make such payment.
15 Am. k Eng. Enc Law, 1077, 1078.
One of the instances where a new cor-
poration is liable for the debts of an old
one is where it has in express terms or by
reasonable implication assumed the debts
of the old corporation.
10 Cyc 287, and cases cited; Chicago k
I. Coal R. Oo. ▼. Hall, 23 L.ILA. 231, note.
The principle of estoppel and election
absolutely controls this entire case.
16 Cyc. 784-786.
The merging or joining together of the
stock and assets of the Belt and Southern
companies constituted a consolidation in
fact of such companies.
Leavenworth County v. Chicago, R. I. &
P. R. Co. 184 U. S. 688, 33 L. ed. 1064, 10
Sup. Ct. Rep. 708; Chicago, S. F. & C. R.
Co V. Ashling, 160 IlL 373, 43 N. E. 373;
Williamson v. New Jersey Southern R. Co.
26 N. J. Eq. 398; Shadford v. Detroit, Y.
k A. A. R. Co. 130 Mich. 300, 89 N. W. 960.
The exchange of stock is the distinguish-
ing feature — the very test — of a consolida-
tion.
Morawetz, Priv. Corp. § 939; 7 R. C. L. §§
155, 156; Louisville, N. A. & C. R. Co. v.
Boney, 3 L.R.A. 435, note; Chicago k I.
Coal R. Co. y. Hall, 23 L.RJL. 231, note;
7 Thomp. Corp. 2d ed. § 8241.
There being a statute of Missouri allow-
ing consolidation, the Southern Company is
estopped to deny that it did not observe
the technical method required or furnished
by statutes to accomplish the same.
Morawets, Priv. Corp. § 939; 7 R. C. L.
$§ 180, 155, 156; Louisville, N. A. & C. R.
Oo. V. Boney, 3 L.R.A. 435, note; Chicago
k I. Coal R. Co. ▼. Hall, 23 L.RJL 231,
note; 7 Thomp. Corp. 2d ed. § 8241.
The new corporation is liable:
1st. When it is merely a ''continuation''
of the old (this case).
2d. When it has by "express terms or by.
587
172-174
SUPREME COURT OF THE UNITED STATES.
Oct.
reasonable implication" aasumed the debts
of the old {this case).
3d. Where it has received the assets of
Company. In September, 1900, a suit waa
begun to foreclose the Belt mortgage, and
on December 31, 1001, it was sold for th»
the old under such circumstances as to make amount of its mortgage to the appellant,
xv^ A i-j * — J xu j.x — jjjg court of appeals thought it plain that
the foreclosure was part of the prigiuai
plan; and as it also thought that the mort-
gaged property was worth enough above the
mortgage to pay the unsecured creditors, it
held that the stockholders, when receiving
pay for their stock, were receiving it in
substance as the proceeds of a transaction
that removed all property of the Belt Com-
pany from its unsecured creditors' reach.
The appellant was the principal holder of
the Belt Company stock, as well as the
purchaser of its property with notice of the
outstanding debts, and therefore was de-
creed to pay the Trust Company's claim.
The proceedings began with a creditors'
bin by the Cambria Steel Company against
the Belt Company and the Guardian Trust
Company to prevent the latter from selling
securities held by it for an alleged debt of
the Belt Company, the bill denying the debt.
The court of [174] appeals thought that
this.suit was really a suit of the appellant.
The Cambria Steel Company has disap-
peared and the proceedings have been car-
ried on by the Belt Company, the instru-
ment of the appellant, and later by the
appellant, intervening in the suit, and all
charging that the Trust Company was in-
debted to the Belt. The Trust Company,
on the other hand, asserted its rights and
prayed judgment for its debt in its answer
to the Belt, although it failed to insert
a similar prayer in its answer to appellant.
The ground of the appellant's intervention
was that the Belt mortgage covered after-
acquired property, so that it was entitled to
the securities in the Trust Company's hands
unless the Trust Company could make good
its claim. On the other hand, the decree
foreclosing the Belt mortgage expressly left
open the right of the Trust Company to
contend that the appellant was bound to pay
the Belt Company's unsecured debts.
The appellant attacks the conclusion of
the circuit court of appeals upon several
grounds. In the first place it contends that
the Trust Cbmpany is bound by the plan
because it was a party to it, exchanged its
own Belt Company stock in pursuance of it,
was a depositary undor it, and used all its
influence to induce other stockholders and
bondholders to come in. It asserts that the
plans contained an express covenant not to
hold the new company liable for the debts
of the old one It also asserts that the
property was not worth more than the
mortgage. We will consider these and
some subordinate matters in turn.
The plan presented elaborate estimates of
240 V. S.
the transaction a. fraud upon the creditors.
4th. Where a statute imposes such a lia-
bility (this case).
Chicago & I. Coal R. Co. v. Hall, 23
LJLA. 231, note; 7 R. C. L. § 156.
The equities in favor of the Trust Com-
pany result from consolidation alone, and
from the express promise in the plan.
Northern P. R. Co. v. Boyd, 228 U. S.
482, 57 L. ed. 031, 33 Sup. Ct. Rep. 554.
The liability in every such case is a full
liability, and is not limited to the value of
the stock or property given the old stock-
holders, nor to the value of the assets trans-
ferred.
7 R. C. L. § 155.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is an appeal from a decree in which
the circuit court of appeals decided that
the Guardian Trust Company, as an un-
secured creditor of the Kansas City Subur-
ban Belt Railroad Company, was entitled
to charge the appellant for the Belt Com-
pany's debt, because the reorganization
scheme, adopted upon a foreclosure of a
mortgage of the Belt Company's property
and a purchase by the appellant, left the
unsecured creditors inadequately provided
for, while it made a considerable provision
for the stockholders in the Belt Road. 120
C. C. A. 121, 201 Fed. 811, 127 C. C. A.
184, 210 Fed. 696. See Northern P. R. Co.
V. Boyd, 228 U. S. 482, 57 L. ed. 931, 33
Sup. Ct. Rep. 554.
The facts are less complicated than the
proceedings that [173] have grown out of
them. The Kansas City, Pittsburg, A Gulf
Railroad extended from Kansas City to Port
Arthur on the Gulf of Mexico. It used ter-
minals at Kansas City belonging to the
Belt company above mentioned, and com-
panies in its control, and at Port Arthur
belonging to a Dock Company. All three
were mortgaged, and after a default on the
bonds of the Gulf Company in 1899, a plan
was made to bring the road and terminals
into one hand. The Gulf Company's mort-
gage was to be foreclosed and a new com-
pany formed, which was to exchange its own
securities for the stock and bonds of the
Gulf, Dock, and Belt Companies, making a
new mortgage to raise the necessary funds.
The Gulf Company's mortgage was fore-
closed, the appellant company was formed,
issued its new securities, and in March and
April, 1900, became the owner of the Gulf
road and of most of the stocks and bonds
of the old companies^ including the Belt
sss
1915.
KANSAS CITY S. R. CO. t. GUARDIAN TRUST CO.
174-177
the funds required. One item was: "For
present stock [of the Kansas City Suburban
Belt Railroad Company] one quarter of a
diare of new preferred stock and three
quarters of a share of new common stock
of the company as reorganized for each
share of the present stock of those who may
deposit thervimder." The Trust Company
exchanged its stock and it is said that by
ito retention of this benefit [175] it has
precluded itself from claiming its debt. But
the plan also stated at the outset as one <^
the results to be attained, "The payment of
the floating debt and the existing Car Trust
obligations," and at a later point it allowed
for payment of floating debts, $475,000, to
come from proceeds of the sale of first mort-
gage bonds and preferred stock and pay-
ment of $10 per share by participating stock-
holders. It is true that the estimate turned
oat to be much too small, but the plan did
not on its face give notice of an intent to
prefer the Belt stockholders to its creditors,
and therefore t&e Trust Company, by assent-
ing to it and exchanging stock under it,
lost no rights. What has happened is that,
owing perhaps to unexpected difficulties, the
plan has not been carried out. The appel-
lant has no ground for complaining that the
Trust Company has not tendered back its
stock, whidi it took before the foreclosure
of the Belt Road was begun.
But it is said that the Trust Company
covenanted not to assert its claim because the
agreement provided that "no right is con-
ferred, nor any trust, liability, or obligation
{except . • .) is created by this agreement
or the plan, or is assumed hereunder, or by
or for any new company in favor of any
bondholder or any other creditor or any
holder of any claims whatsoever against the
said companies, . . . with respect to any
property acquired by purchase at any fore-
closure sale." It appears to us that argu-
ment cannot make plainer the meaning of
these words. They exclude an obligation
arising from the instrument, but neither
purport to nor could exclude rights of cred-
itors founded on the facts to which we have
referred. Those rights were untouched, and
none the less that this particular creditor
became a party to the agreement because of
its other interests that were concerned. Wo
may remark in this connection that we are
squally unable to find in the plan a con-
tract in favor of the Trust Company as an
imsecured creditor. The plan sets out a
[176] general scheme that it was hoped
would be worked out, but its nature, the
words quoted, and the authority givoi to
the committee for carrying out the plan to
modify it and to use their discretion,— all
are inconsistent with the notion of a prom-
ise thSrt all unsecured debts should be paid.
•0 L. cd.
As the claim of the Trust Company was
put by the court of appeals upon the equi-
table Tiifiit of creditors to be preferred to
stockholders against the property of a
debtor corporation, it is essential to inquire
whether the appellant received any such
property, — ^that is, whether it got by the
foreclosure more than enough to satisfy the
mortgage, which was a paramount lien.
The master found, as he expressed it, in the
absence of proof to the contrary, that the
amount for which the property was sold,
$1,000,000, the amount of the mortgage, was
its fair market value. Although the evi-
dence was not reported, the circuit court of
appeals was of opinion that it sufficient-
ly appeared that there was a valuable
equity. The argument for the appellant
assumes that the different oonclusion was
reached while leaving the master's find-
ing to stand. But the decision rather
lays that finding on one side upon con-
siderations that may be summed up in
a few words. The allowance made for the
Belt Company's bonds shows that they were
regarded as well secured. The stockholders
of the Qulf Company in their exchange paid
$10 a share for stock of the appellant re-
ceived by them. Therefore it must be as-
sumed that the stock of the appellant was
worth at least that amount. Therefore the
$4,750,000 of that stock given for the Belt
Company's stock was worth at least $476,-
000, and probably more. But the value of
this stock depended on the value of the
Belt Company's property above the mort-
gage. It appears to us that while perhaps
not justifying definite figures, the reason-
ing warrants the belief that there was an
equity for which the appellant must ac-
count.
, The appellant urges that the foreclosure
sale is to be [177] treated as a distinct
transaction, — ^that after it had become the
owner of the greater part of the bonds and
stock of the Belt Company it was free to do
as it pleased. If it had dimply kept the
stock it would have incurred no liability to
creditors of the Bdt Company, and an inde-
pendent foreclosure would put it in no worse
place. But the ownership of the Belt Road
by the new company was contemplated front
the first, and although no fraud on cred-
itors was suggested or intended in the plan,
still the court of appeals was justified in
regarding the whole proceeding as one from
the start to the close, and in throwing on
the appellant the responsibility of so carry-
ing it out as to avoid inequitable results.
It is said that the Trust Company is
barred by laches: that the appellant took
possession on January 1, 1902, and that the
Trust Company did not assert its claim un-
til 1005 in this cause; that it knew and
58t
177-179
SUPRRME COURT OF THK UNITED STATES.
OOT. TdX,
WM Intimktelj eonneclwl with every itep
of the r«orguiizatioa, ud wa« lilent at a
time when ita conduct would influence
othnra, ■■ the eucceiaful suertion of ita
claim would have depreaaed the market
value of the Appellant'a stock and bonda.
But the Trnat Company set up its claim in
thia suit In answer to the Cambria bill on
November S, 1000. The very ground of the
bill waa to prevent the Traat Company from
aelliag securities to satisfy the claim aa it
had given notice that it intended to. The
company tried to became a party to the Belt
foreclosure and did succeed in saving its
rights from prejudice. When later the Belt
Company aod the appellants came Into thia
suit, it set up ita claim again. Without
going into further detail we are o( opinion
that the Trust Company is not barred.
Same technical objections may be left
pretty much upon the decision below. 127
C. C. A. 1S4, 210 Fed. 669. It ia objected
that the liability of the appellant is not
open because the exception to the maater's
conclusion against it waa put upon other
grounds than the merits, but we [ITS] see
no reaaon to doubt that the court of appeals
waa ri^t in thinking that justice would be
done by adopting the course that it did. So
it ia said that the appellant was induced by
the form of the eiceptiona to forego reopen,
ing the maater's finding that the Belt Com-
pany waa indebted to the Trust Company.
But it is not to be believed that the sppel.
lant haa given up anything that it thought
worth insisting up<m. 127 O. C. A. 184, 210
Fed. TOO. So as to the absence of a ipeciflc
prayer for relief in the Trust Company's
answer to the appellant's intervention in
its own name. In short, while it ia true
that reorganization plans often would fail
if the old stockholders could not be In-
duced to come in and to contribute some
fresh money, and that the necessity of such
arrangements should lead courts to avoid
strtiSeial scruples, atill we are not prepared
to say that the court of appeals was wrong
In flnding that there had been a transgres.
aion of the well-settled rule of equity in
this case, or that it went further than to
see that substantial justice should be done.
There is a motion to dismiss upon which,
in view of our decision, the defendant in
error would not desire to insist, and on the
other side a petition for certiorari in case
its appeal should be dismissed. In the cir-
cumstances the distinctions become of little
importance. But the Cambria bill asserted
a lien under the judgment of a Federal
court, and the petition of the appellant as-
serted title under a decree of a Federal
court, BO that the decree may be affirmed
Upon the appeal. Cooke v. Avery, 147 U.
S. 87S. 87 I' «d. 209, 13 Sup. Ct. Rap. 340;
S0O
Commercial Pub Co. t. Backwitb, 188 D.
S. 567, 669, 47 L. ed. 598, 609, £3 Sup. Ct
Rep. 382. The case haa been ao fully dia-
cussed below that we think it ui
go into further detail.
Decree afErmed.
The Chut Jcsticb and Mr. Jostioe Taa
I>()Tant«r are o( opinion that, upon tlw
findings of the master, the decrae should b»
reveraed, and therefore dissent.
[IT^] ISADOR STRAUS and Nathan
Straus, Trading and Doing Busineaa nn'
der the Firm Name and Style of R. H.
Uacy A Company, Petitioners,
NOTASEHE HOSIERY COMPANY.
(See S. C, Reporter's ed. 179-183.)
Trademark — raise representation a*
bar to relief.
1. A trademark tor hosiery, in which
the word "Notaseme" is prominently dis-
played, with the statement that it is r«is-
tered in the United States Patent OlBoa,
when in fact the trademark as registered
does not contain the word "Notaseme,"
registration having previously been r»-
fused to the trademark with that word
upon it, embodies such misrepresentation
that it will not be protected.
[For other cases, see Trademark IV. b. In Di-
gest Sup. Ct. leos.i
DamBs«B — nnfalr oompetltlon — loM
Z. Unfair imitation of a label does not
charge the user with liability to account
for all the profits, where the supposed un-
fairness consists mainly in the Imitation of
a device which, by reason of misrepresenta-
tion, has lost its protection as a trademark.
IVar other cues, tee DsniiRn, VI. t. In Dl-
geat tup. Ct. laOB.]
Damnces — nnfatr competition — kMt
3. So tar as purchasers from the un-
fair Imitator of a laliel, which, by reason of
misrepresentatiDn, has lost its protection
ss a trademark, bought for any other rea-
son but the inducement of the design aup-
posed to indicate the other's product, the
latter has no claim on the imitator's profits.
rroT other caut, nee Damsgea, VI. (, In !>!•
gett Sup. Ct. IMS.]
[No. IM.]
Argued Janusry 17 and 18, 191S. Decided
February 21, 1910.
Note. — On deception as bar to relief for
infringement of trademark — see notes t»
Joseph V. Macowsky, 10 UR-A. 63; and
Clinton E. Wordcn & Co. v. California Fig
Syrup Co. 47 L. ed. U. B. 282.
On damages for iufringenent of trade-
mark, as affected by loss of profits — m»
Rose V. Birsh, 61 ULA. 823.
140 <J. B.
1913.
STRAUS V. NOTAS£M£ HOSIERY 00.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Second Circuit to reriew a decree which,
on a second appeal, affirmed a decree of the
District Court for the Southern District of
New York in favor of complainant in a
suit for infringement of a trademarlc and
unfair competition. Reversed.
See same case below on first appeal, 110
O. C. A. 134, 201 Fed. 99; on second appeal,
131 C. C. A. 503, 215 Fed. 861.
The facts are stated in the opinion.
Mr. fidoAond B. Wise argued the cause
and filed a brief for petitioners:
The petitioners were not guilt^r of unfair
trade.
Goodyear's India Rubber Glove Mfg.
Co. V. Goodyear Rubber Co. 128 U. S. 598,
32 L. ed. 535, 9 Sup. Ct. Rep. 166; Standard
Paint Co. v. Trinidad Asphalt Mfg. Co.
220 U. S. 461, 55 L. ed. 543, 31 Sup. Ct.
Rep. 456 ; Elgin Nat. Watch Co. v. Illinois
Watch Case Co. 179 J. S. 665, 45 L. ed. 365,
21 Sup. Ct. Rep. 270; J. G. Rowley 06. v.
Rowlet, 113 C. C. A. 386, 193 Fed. 390;
Rathbone, S. k Co. v. Champion Steel Range
Co. 37 LJLA.(N.S.) 258, 110 C. C. A. 596,
189 Fed. 26; Hanover Star Mill. Co. v.
Allen k W. Co. L.RJL 1916D, 136, 125 0.
C. A. 515, 208 Fed. 516; Rushmore v.
Badger Brass Mfg. Co. 117 C. 0. A. 255,
198 Fed. 379; G. k C, Merriam Co. y. Saal-
field, 117 C. C. A. 245, 198 Fed. 369 ; 3 Cyc.
760, and notes. Howe Scale Co. v. Wyckoff,
Seamans k Benedict, 198 tJ. S. 118, 140, 49
L. ed. 972, 986, 25 Sup. Ct. Rep. 609.
The court below erroneously followed the
rule of permitting recovery of profits au-
thorized by statute in cases of patents,
copyrights, and trademarks, although there
was a total lack of proof of confusion of
goods, of substitution of goods, or compe-
tition between the parties.
Hanover Star Mill. Co. v. Allen k W.
Co. L.RJL 1916D, 136, 125 C. C. A. 515,
208 Fed. 516; Saxlehner v. Siegel-Cooper
Co. 179 U. S. 42, 45 L. ed. 77, 21 Sup. Ct.
Rep. 16; Rushmore v. Badger Brass Mfg.
Co. 117 C. 0. A. 255. 198 Fed. 379; G. k C.
Merriam Co. v. Saalfield, 117 C. C. A. 245,
198 Fed. 369.
Even if the rule in patent and trademark
eases as to the recovery of profits as dam-
ages were applicable, the decision of the
eourt below was erroneous in awarding as
damages all profits made by the petitioners
on the sale of "Irontez" hosiery in the ab-
senoe of proof of how much, if in any re-
speeta at all, the label eontributed to the
sale of the article. •
Westinghouse Eleetrie k Mfg. Co. v.
Wagner Electric k Mfg. Co. 225 U. S. 604,
614, 615,* 56 L. ed. 1222, 1226, 1226, 41
tt Ij. ed.
LJl.A.(N.S.) 653, 32 Sup. Ot Rep. 691;
Dowagiac Mfg. Co. v. Minnesota Moline
Plow Co. 235 U. a 641, 69 L. ed. 898, 36
Sup. Ot R^. 221.
In actual use, the word ''Notaseme*' in
white script on the black band, with the
word "trademark" in the flourish under the
word, was the conspicuous feature -of the
mark, and, in that form, had been refused
registration by the Patent Office, because
the word correctly described the character
of the article. That the rejection in that
form was perfectly proper is beyond criti-
cism. (Columbia Mill Co. v. Alcorn, 150
U. S. 460, 87 L. ed. 1144, 14 Sup. Ct. Rep.
161; Elgin Nat. Watch Co. v. Illinois
Watch Case Co. 179 U. S. 665, 46 L. ed. 365,
21 Sup. Ct. Rep. 270) ; and the fact that
the words were condensed into one does not
change this rule.
Barrett Chemical Co. v. Stem, 176 N. Y.
27, 68 N. B. 65.
When that descriptive name was removed
and the label wHs registered as a trade-
mark, the rectangular figure traversed by a
black band did not, in the slightest degree,
indicate by its own meaning (and there was
no proof of such indication by association)
the origin or ownership of the article to
which it was to be applied, and as it did
not do so, it served no useful purpose.
Amoskeag Mfg. Co. v. Trainer, 101 U. S.
51, 25 L. ed. 998.
Though colors on a label may make the
dress of the article striking and attractive,
the mere coloring is not usually the sub-
ject of a trademark.
Ooats V. Merrick Thread Co. 149 U. S.
562, 87 L. ed. 847, 13 Sup. Ct. Rep. 966.
Where a symbol or label is worded so as
to make a distinct assertion which is false,
the trademark will not be recognised, nor
can any right to its exclusive use be main-
tained.
Holzapfels Composition Co. v. Rahtjen's
American Composition Co. 183 U. S. 1, 46
L. ed. 49, 22 Sup. Ct. Rep. 6.
Mr. E. Hayward Fairbanks argued the
cause, and, with Mr. James H. Qriffin, filed
a brief for respondent:
In such a trademark case as this, where
a property right, a monopoly created by
statute, is invaded, a complainant is en-
titled to all defendants' profits, however
made, from the iU^al use of the spurious
mark, and in ease of kny uncertainty, all
doubts will be resolved against the in-
fringer.
Burdell v. Denig, 92 U. 8. 716, 23 L. ed.
764; Dan. Oh. Pr. 6th Am. ed. p. 1634;
Upton, Trade-Marks, 233, 234; Benkert v.
Feder, 34 Fed. 636; Root v. Lake Shore k
M. & B. Co. 106 U. 8. 189, 207, 26 L. ed.
691
170-181
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbm,
975, 981; Tilgman ▼. Proctor, 125 U. S. 136,
148, 81 L. ed. 664, 668, 8 Sup. Ct. Rep. 804;
ThaddeuB Dayida Co. v. Davids Mfg. Oo. 233
U. S. 461, 58 L. ed. 1046, 34 Sup. Ct. Rep.
648, Ann. Cas. 1015B, 322; EdeUten' v.
Edelflten, 1 DeG. J. &. S. 185, 9 Jur. N. S.
470, 7 L. T. N. S. 768, 11 Week. Rep. 328;
Lever t. Goodwin, L. R. 36 Ch. Div. 1, 57
L. T. N. S. 583, 36 Week. Rep. 177 ; Sawyer
y. Kellogg, 0 Fed. 601 ; Atlantic Mill. Co. v.
Rowland, 27 Fed. 24; Graham v. Plate, 40
Cal. 593, 6 Am. Rep. 639; Avery v. Meikle,
85 Ky. 435, 448, 7 Am. St. Rep. 604, 3 S.
W. 609; W. R. Linn Shoe Co. v. Auburn
Lynn Shoe Co. 100 Me. 461, 479, 4 L.R.A.
(N.S.) 960, 62 Atl. 499; RegU v. Jaynes,
191 Mass. 245, 77 N. E. 774; Forster Mfg.
Co. V. Cutter-Tower C6. 211 Mass. 219, 97
N. E. 749; Paul, Trade-Marks, 9 326.
Broadly speaking, it is not exact to sepa-
rate the doctrine of trademark infringe-
ment and unfair competition. The un-
derlying doctrine is the same, the control
of fraud, great or petty, however the fraud-
ulent transaction has been carried on, by
the intervention of equity. Trademark in-
fringement is obviously but one form of
unfair competition.
McLean v. Fleming, 96 U. S. 245, 24 L. ed.
828 ; Blanchard v. HiU, 2 Atk. 484 ; Redda-
way V. Banham [1896] A. C. 204, 74 L. T.
N. S. 289, 44 Week. Rep. 638, 25 Eng. Rul.
Cas. 193; Goodyear's India Rubber Glove
Mfg. Co. v. Goodyear Rubber Co. 128 U. S.
598, 32 L. ed. 535, 9 Sup. Ct. Rep. 166;
Lawrence Mfg. Co. v. Tennessee Mfg. Co.
138 U. S. 537, 34 L. ed. 997, 11 Sup. Ct.
Rep. 396.
The successful suitor in equity is entitled
to recover the gains and profits which ac-
crued to the infringer and wrongdoer by
his adoption of a garb for his goods to
which another has a better and prior right,
particularly where there exists a plain,
fraudulent intent, persisted in after notice,
as here.
P. E. Sharpless Co. v. Lawrence, 130 C.
C. A. 59, 213 Fed. 423; Saxlehner v. Eisner
k, M. Co. 179 U. S. 19, 45 L. ed. 60, 21
Sup. Ct. Rep. 7; Singer Mfg. Co. v. June
Mfg. Co. 163 U. S. 169, 41 L. ed. 118, 16 Sup.
Ct Rep. 1002; Singer Mfg. Co. v. Bent, 163
U. S. 207, 41 L. ed. 132, 16 Sup. Ct. Rep.
1016; Sawyer T. Horn, 4 Hughes, 239, 1
Fed. 24; Sartor v. Schaden, 125 Iowa, 696,
101 N. W. 511; Avery v. Meikle, 85 Ky. 485,
7 Am. St. Rep. 604, 3 S. W. 609; Forster
Mfg. Co. v. Cutter-Tower Co. 211 Mass. 219,
97 N. E. 749; Florence Mfg. Oo. v. Dowd,
110 G. C. A. 608, 189 Fed. 44; Gulden v.
Chance, 106 C. C. A. 16, 182 Fed. 303;
G. k C. Merriam Co. t. Saalfield, 117 C. C.
A. 246, 198 Fed. 369; Regis v. Jaynes, 191
JUSmv. 246, 77 N. E. 774; Paul, Trade-Marks,
p. 566, S 326; Williams v. Mitchell, 45 C.
C. A. 265, 106 Fed. 168; Walter Baker k
Co. v. Slack, 65 C. C. A. 138, 130 Fed. 514;
Wolf Bros, k Co. v. Hamilton-Brown Shoe
Co. 124 C. C. A. 409, 206 Fed. 611.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is a bill in equity brought by the
Notaseme Hosiery Company to restrain in-
fringement of a registered trademark and
unfair competition alleged to have been
practised by the petitioners, and to recover
damages and [180] profits. The plaintiff's
trademark, as registered, was a rectangle
with a black band running from the left hand
upper to the right hand lower comer, the
upper and lower panels on the two sides of
the band being printed in red. As used, it
contained the word "Notaseme" in white
script upon the black band, with the words
"Trade Mark" in small letters upon the
white, and beneath the label was printed
"Reg. U. S. Pat. Office." In fact regis-
tration had been refused to the label with
the word "Notaseme" upon it, that word
being merely a corrupted description of the
seamless hosiery sold. The defendants,
among other items of a large retail busi-
ness in New York, sold hose with seams,
which they advertised under the name "Iron-
tex." After this name had been adopted, in
pursuance of their request designs were sub-
mitted to them and one was chosen. It
turned out that this was made by the print-
er who had made the Notaseme label. It
also was a rectangle with a diagonal blade
band and red panels, the band in this case
running from the right hand upper comer
to the left hand lower, and having the word
"Irontex" in white script upon the band and
"The hose that — wears like iron" printed in
black upon the two triangles of red. The
defendants never had seen or heard of the
plaintiff, its label or its goods, until Novem-
ber, 1909, when they were notified by the
plaintiff that they were infringing its
registered trademark. They ultimately
stood upon their rights.
At the original hearing in the circuit
court it was held that the plaintiff had em-
bodied such a misrepresentation in the
trademark as used that it would not be
protected, and that unfair dealing was not
made out. This decision was reversed by
the circuit court of appeals on the ground
that although the evidence did not show
actual deception, the label used by the de-
fendants so far resembled the plaintiflTi
that it would have deception as its natural
result, and that the plaintiff was entitled to
[181] relief whether the trademark on its
label was good or bad as such. 110 C. C. A.
134, 201 Fed. 09. The plaintiff was allowed to
94t U. 8.
191ff.
STRAUS V. NOTASEME HOSIERY CO.
181-183
recover profits from a reasonable time after i have assumed, it was a wrong knowingly
j» mm « A. %_ J A.* M A.\^ • •! * A. * * J^A. J L X .# X%- • ^ • X
the defendants had notice of the similarity
of the two designs, which was put at Janu-
ary 1, 1010. 209 Fed. 495, 131 C. C. A. 503,
216 Fed. 861.
We agree with the circuit court that the
plaintiff is not in a position to recover for
an infringement of a registered trademark.
The maiic that it used held out to the pub-
lic ah registered in the Patent Office pre-
cisely the element that had been rejected
there. It affirmed that the authority of the
United States had sanctioned that for which
that authority had been refused, and by
grasping at too much lost all, so far as this
case is concerned. Holzapfers Compositions
Co. V. Rahtjen's American Composition Co.
183 U. S. 1, 8, 46 L. ed. 49, 53, 22 Sup. Ct.
Rep. 6. The liability of the defendant must
be derived from unfair competition if it
exists.
That it was unfair to continue the use of
A label so similar in general character to
the plaintifTs we are not disposed to deny.
But it does not follow that the defendants
are chargeable with profits as a matter of
course. Very possibly the statutory rule for
wrongful use of a trademark may be extend-
ed by analogy to unfair competition in a
proper case. But, as the ground of recovery
in the latter instance is that the defendant
has taken some undue advantage of the
plaintiff's reputation, or that of his goods,
and as the nature and extent of the wrong
may vary indefinitely, it cannot be assumed
in all cases that the defendant's sales were
due to that alone.
Ordinarily imitation is enough to imply
that the matter imitated is important, at
least, to the sale of the goods. But when
the similarity arises as the one before us
did, it indicates nothing, except perhaps the
poverty of the designer's invention.
Furthermore the defendants' persistence in
tlieir use of the design after notice proves
little or nothing against them. They had
been advertising [182] their goods by name
and using the design in connection with the
name. The natural interpretation is not
that they wanted to steal the plaintiff's
good will, of which they then learned for the
first time, but that they wished to preserve
their own. When they stood upon their
rights of course they made themselves re-
sponsible for the continued use of a label
that might be held likely to deceive, and if
it should be held manijfestly to have that
tendency, they would be chargeable for
what, in contemplation of law, was an in-
tentional wrong, or a fraud, although the
case is wholly devoid of any indication of
an alHual intent to deceive, or to steal the
reputation of the plaintiff's goods. If the
defendants' conduct was a wrong, as we
•0 li. ed.
committed, but no further inference against
the defendants can be drawn from the fact.
It seems a strong thing to give relief on
the ground of unfair competition when the
supposed unfairness consists mainly in the
imitation of a device that sought, obtained,
and lost protection as a trademark. If a
would-be trademark loses its protection as
such, that means that the public has a right
to use it, and it would be strange to bring
the protection back simply by giving it an-
other name. If the red square with the
diagonal black band is not a trademark, it
would seem to be free to the world. See
Flagg Mfg. Co. V. Holway, 178 Mass. 83, 91,
59 N. £. 667. Saxlehner v. Wagner, 216 U.
S. 375, 380, 381, 54 L. ed. 525, 527, 528, 30
Sup. Ct. Rep. 298. We assume that, coupled
with the script upon the band, there is suf-
fici^it pictorial similarity to deceive some
persons, but, unless we go considerably
farther, to charge the defendants with all
the profits would be unjust.
The question remains whether the peti-
tioners' sales probably were induced to any
large extent by confusion in the mind of
the public between the petitioners' goods
and the plaintiff's. The goods were different
in character, were called by a different name,
were sold mainly in different [183] places
and by parties not likely to be mistaken for
each other. The petitioners had advertised
them as Irontex since April, 1908. Their
business was that of retailers in the city of
New York, where they were widely known.
The Notaseme Company's business was
wholesale, from Philadelphia, starting with
New England and the South. So far as
purchasers bought because the petitioners
recommended the goods, or on the strength
of the name, by whatever recommended, as
distinguished from the colors and figures of
the label, or from knowledge of the specific
article, or from preference for full fashioned
over seamless hose, or for any reason but
the inducement of the red square, bar, and
script supposed to indicate the plaintiff*s
hose, the plaintiff has no claim on the peti-
tioners' profits.
There is some indication that the plain-
tiff's business was mainly in hosiery for
men, while Macy & Company's was more
than three quarters for women and children.
That the name, which the defendants do not
imitate, but, on the contrary, exclude by
using another wholly unlike it, was thought
more important by the plaintiff than it now
is willing to admit, is shown not only by th«t
use of it upon the trademark proper, but by
the adoption of a new name for the plain-
tiff company to conform to it. Taking aU
these considerations into account, coupled
with the absence of evidence that any de-
38 50"
188, 184
8UPBBME COURT OF THE UNITED STATES.
Oct. TwaMp
ceit or substitution was aiscomplished in
fact, we find it impossible to believe that
any considerable part of the petitioner's
business was due to their ^oods being sup-
posed to be the plaintiff's hose. The peti-
tioners properly were enjoined f rcmi further
use of the mark in controversy, but, so far
as the decree charged them with profits, it
is reversed.
Decree reversed.
Mr. Justice McKennm and Mr. Justice
Pitney dissent.
[184] GEORGE D. ROGERS, A. L. Goetx-
man, and F. E. Crandall, Representing
Themselves and Others Similarly Situ-
ated, Plffs. in Err.,
V.
COUNTY OF HENNEPIN et al.
(See S. C. Reporter's ed. 184-192.)
Error to state court « Federal qneatlon
^ decision on non-Federal ground.
1. A decision of the highest court of a
state affirming a decree below which dis-
missed a suit to cancel certain tax assess-
ments, and to enjoin the collection of the
tax, cannot be said to rest upon a ground
independent of the Federal questions raised
with respect to the validity of the tax,
where the sole reason assigned by the court
for its decision was the controlling effect
of its prior decision in an action by the
state to recover the tax in which some,
though not all, of the same objections as
to the validity of the tax under the Federal
Constitution were raised and overruled.
[For other cases, see Appeal and Brror,
1466-1528, in Digest Sap. Ct 1008.]
Taxes ^ Intangible property ^ member-
ship In chamber of commerce.
2. Memberships in an incorporated
chamber of commerce which has no capital
stock and transacts no business for profit.
merely furnishing buildings and equipment
for its members, who, under its rules, trans-
act business upon the trading floor, which
is in fact a grain exchange, are property
and taxable as such.
[For other cases, see Taxes, I. c, 1, In Dlcest
Sap. Ct. 1908.]
JCrror to state court ^ scope of
▼lew ^ local law.
3. The question whether memberships
in a chamber of commerce are in fact tsjc-
able under the statutes of a state is ik
matter of local law with which the Federal
Supreme Court, on writ of error to a state
court, is not concerned.
[For other cases, see Appeal and Brror.
2124-2161, In Digest Sap. Ct. 1008.1
Constltntional law — dne process of
law — taxes.
4. The assessment for taxation of mem-
berships in a chamber of commerce under
the head of "moneys and credits" is an
administrative matter which does not touch
the fundamentals contemplated by the 14th
Amendment to the Federal Constitution.
[For other eases, see Con-stltutlonul Law*
IV. b, 6, in Dlflrest Sap. Ct. 1008.]
Constitutional law — equal protection
of the laws — dne process of law — »
double taxation.
5. State taxation of memberships in
an incorporated chamber of commerce la
not repugnant to the Federal Constitution
as double taxation because the property of
the corporation has been fully taxed, since
such memberships are property, distinoi
from the assets of the corporation.
[For other cases, see Constitutional Law.
IV. a, 4; IV. b, 6, in Digest Sup. Ct. 1908.]
Taxes — situs ^ membership In chant*
her of commerce.
0. A state may fix the situs for taxa*
tion of memberships in an incorporated
chamber of commerce, furnishing the build-
ings and equipment ifor a grain exchange^
at the place in the state at which the ex*
change is located, whether such memberships
be held by residents or nonresidents.
[For other cases, see Taxes, I. c, 6, in Digest
Sop. Ct. 1908.]
NoT& — On the general subject of writs of
enoT from United States Supreme Court to
state courts — see notes to Martin v. Hun-
ter, 4 L. ed. U. S. 97; Hamblin v. Western
Land Co. 37 L. ed. U. S. 267 ; Re Buchanan,
39 L. ed. U. S. 884 ; and Kipley v. lUinois,
42 L. ed. U. S. 998.
On what adjudications of state courts can
be brought up for review in the Supreme
Coiurt of the United States by writ of error
to those courts— see note to Apex Transp.
Co. V. Oarbade, 62 L.H Jl. 613.
On how and when questions must be
raised and decided in a state court in order
to make a case for a writ of error from the
Supreme Court of the United States — sec
note to Mutual L. Ins. Co. v. Mc€hrew, 63
L.R^. 83.
On what questions the Federal Supreme
Court will consider when reviewing the
Ju4gment& oi state courts— see luyts to
S04
State ex rel. Hill v. Dockery, 63 L.R^
671.
As to what constitutes due process of law»
generally — see notes to People v. O'Brien^
2 L.R.A. 266; KunUs v. Sumption, 2 L.R.A.
666; Re Gannon, 6 KR.A. 369; Ulmaa t.
Baltimore, 11 L.R.A. 224; Oilman v. Tuck-
er, 13 L.R.A. 304; Pearson v. Yewdall, 24
L. ed. U. S. 436 ; and Wilson v. North Caro-
lina, 42 L. ed. U. S. 866.
On the validity of class legislation, gen-
erally— see notes to State v. Goodwill, 5
L.R.A. 621; and State v. Loomis, 21 L.RJL
789.
As to constitutional equality of privileges^
immunities, and protection, generally — see
note to Louisville Safety Vault k T. Co. t»
Louisville k N. R. Co. 14 L.R.A. 679.
On membership in board of trade or ex-
change as subject of taxation — see note t»
SUte V. McPhail, 50 L.RJL(N.S.) 266.
240 U. 8*
1915.
ROGERS y. HEKNEPIK.
ConstltDtional law — equal protection
7. The taxation of membershipt in an
ineorporatcd chamber of commerce does
not deny the members the equal protection
of the law's guaranteed by U. S. Const., 14th
Amend., because of the exemption from
taxation of such organizations as the as-
sociated press, lodges, fraternal orders,
churches, etc.
[For other canes, see Constitatlonal Lew,
IV. a. 4, In Diflrest Sup. Ct. 1908.]
[No. 104.]
Argued December 0, 1915. Decided Febru-
ary 21, 1910.
IN ERROR to the Supreme Court of the
State of Minnesota to review a decree
which affirmed a decree of the District
Court for the County of Hennepin, in that
state, in favor of defendants in a suit to
cancel certain tax assessments and to re-
strain the collection of the taxes. Affirmed.
See same case below, 124 Minn. 539, 145
N. W. 112.
The facts are stated in the opinion.
Mr. fl. V. Mercer argued the cause and
filed a brief for plaintiffs in error:
It is aa possible to invade the rights of
due process of law and equal protection,
secured by the 14th Amendment, through
the judicial, as through any other, depart-
ment of the state.
Fayerweather v. Ritch, 195 U. S. 276, 49
L. ed. 193, 25 Sup. Ct. Rep. 58; Chicago,
B. & Q. R. Co. V. Chicago, 166 U. S. 226, 41
L. ed. 979, 17 Sup. Ct. Rep. 581; Citizens'
Say. k L. Asso. v. Topdca, 20 Wall. 655, 22
L. ed. 455.
The upholding of this decision on the
basis of ''money and credits" by reference
to State V. McPhail, 124 Minn. 398, 50
L.R.A.(N.S.) 255, 145 N. W. 108, Ann. Caa.
J915C, 538, is so utterly devoid of statutory
or other basis as to be a mere arbitrary
judicial foreclosure of the question without
statutory authority therefor.
Fayerweather v. Ritch, supra.
The Federal court had a right to pass
upon this question, on its own judgment,
under the circumstances, as to the inter-
pretation of the statute.
Merritt v. American Steel Barge Co. 24
C. C. A. 580, 49 U. S. App. 85, 79 Fed. 228;
Northrop v. Columbian Lumber Co. 108 C.
C. A. 640, 186 Fed. 770; Burgess v. Selig-
man, l07 U. S. 20, 27 L. ed. 359, 2 Sup. Ct.
Rep. 10; Hardin v. Jordan, 140 U. S. 371,
35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838;
Carroll County v. Smith, 111 U. S. 556, 28
L. ed. 517, 4 Sup. Ct. Rep. 539; Loeb v.
Columbia Twp. 179 U. S. 472, 45 L. ed. 280,
21 Sup. Ct. Rep. 174; Great Southern Fire
•t Jj. ed.
Proof Hotel y. Jones, 198 U. S. 582, 4S
L. ed. 778, 24 Sup. Ct. Rep. 576; Hunt v.
New Yorlc Cotton Exch. 205 U. S. 322, 51
L. ed. 821, 27 Sup. Ct Rep. 529; Kuhn v.
Fairmont Coal Co. 215 U. S. 349, 54 L. ad.
228, 30 Sup. Ct. Rep. 140; ^tna L. Ins. Co.
V. Moore, 231 U. S. 544, 58 L. ed. 356, 84
Sup. Ct. Rep. 186.
The decision in the McPhail Case, if in
any way treated as a decision as to "money
and credits," does what this court said it
could not itself do.
James v. Bowman, 190 U. S. 127-141, 47
L. ed. 978-983, 23 Sup. Ct. Rep. 678.
It was not within the jurisdictional proy-
inoe of Minnesota to assess those beyond
its border.
Union Refrigerator Transit Co. y. Ken-
tucky, 199 U. S. 194, 50 L. ed. 150, 26 Sup.
Ct. Rep. 36, 4 Ann. Oas. 493; Louisville k
J. Ferry Co. y. Kentucky, 188 U. 8. 385, 47
L. ed. 513, 23 Sup. Ct Rep. 463; Delaware
L. k W. R. Co. y. Pennsylvania, 198 U. &
342, 49 L. ed. 1077, 25 Sup. Ct Rep. 669;
Joslyn y. St Paul Distilling Co. 44 Minn.
188, 46 N. W. 337; State y. Nelson, 107
Minn. 319, 119 N. W. 1058.
State y. McPhail does not apply the facta
of this case to the rule of equality.
SUte y. Nelflon, 107 Minn. 323, 119 N. W.
1058; Delaware, L. & W. R. Co. y. Penn^I-
vanU, 198 U. S. 842, 49 L. ed. 1077, 25 Sup.
Ct. R^. 669; ^Fayerweather y. Ritch, 106
U. S. 276, 49 L. ed. 193, 25 Sup. Ct. Rep. 58.
Both the Minnesota Constitution and the
14th Amendment to the Federal Constitu-
tion prohibit an intentional and deliberate
discrimination in tazatioii that Is substan-
tially unfair.
State ex rel. Mudeking v. Parr, 109 Minn.
147, 134 Am. St Rep. 759, 123 N. W. 408;
State y. Cudahy Packing Co. 103 Minn.
419, 115 N. W. 645, 1069; Central R. Co. y.
Jersey City, 199 Fed. 237 ; Detroit, G. H. k
M. R. Co. V. Fuller, 205 Fed. 86; Ritter-
busch y. Atchison, T. & S. F. R. Co. 117
C. C. A. 154, 198 Fed. 46; Lacy y. Me-
Cafferty, 131 0. C. A. 494, 215 Fed. 352;
Atchison, T. ft S. F. R. Co. v. Sullivan, 97
C. C. A. 1, 173 Fed. 461; PaUman Co. y.
Knott, 235 U. S. 23, 59 L. ed. 105, 35 Sup.
Ct Rep. 2; Choctaw, O. k G. R. Co. v. Har-
rison, 235 U. S. 292, 298, 59 L. ed. 234, 237,
35 Sup. Ct R^. 27 ; Galveston, H. ft 8. A.
R. Co. v. Texas, 210 U. S. 217-227, 52 L. ed.
1031-1037, 28 Sup. Ct Rep. 638; 37 Am.
Law Rev. p. 654; Pelton y. Commercial
Nat Bank, 101 U. S. 143, 25 L. ed. 901;
Cummings v. Mwchants* Nat Bank, 101
U. S. 153, 25 L. ed. 903; Upshur County
v. Rich, 135 U. S. 467, 473, 476, 94 L.
ed. 196, 198, 199, 10 Sop. Ct Rq>. 651;
Fargo V. Hart, 193 U. S. 490, 48 L. ed.
761, 24 Sup. Ct Rep. 498; Coulter t.
185, 186
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Louisville k N. R. Co. 196 U. S. 509, 49
L. ed. 615, 25 Sup. Ct. Rep. 342; Ray-
mond ▼. Chicago Union Traction Co. 207
U. S. 20, ^2 L. ed. 78, 28 Sup. Ot. Rep. 7,
12 Ann. Cas. 757 ; Chicago, B. t Q. R. Co. v.
Chicago, 166 U. S. 226, 41 L. ed. 979, 17
Sup. Ct. Rep. 581; First Nat. Bank v. Al-
bright, 208 U. S. 548, 52 L. ed. 614, 28
Sup. Ct. Rep. 349; Clement Nat. Bank v.
Vermont, 231 U. S. 120, 58 L. ed. 147, 34
Sup. Ct. Rep. 31 ; Southern R. Co. ▼. Greene,
216 U. S. 400, 54 L. ed. 536, 30 Sup. Ct.
Rep. 287, 17 Ann. Oas. 1247.
Other courts have universally refused
taxation of such memberships.
San Francisco v. Anderson, 103 Cal. 69,
42 Am. St. Rep. 98, 36 Pac. 1034; People
ex rel. Lammon v. Feitner, 167 N. Y. 1, 82
Am. St. Rep. 698, 60 N. E. 265 ; White v.
Brownell, 2 Daly, 329; Baltimore v. John-
son, 96 Md. 737, 61 L.R. A. 568, 54 Atl. 646 ;
Arapahoe County v. Rocky Mountain News
Printing Co. 15 Colo. App. 189, 61 Pac. 494.
Mr. Lyndon A. Smith, Attorney General
of Minnesota, and Mr. William J. Steven-
son, argued the cause, and, with Mr. John
M. Rees, filed a brief for defendants in er-
ror:
There is ample statutory authority for
taxing this class of property in Minnesota,
and the state statutes have been interpreted
by the highest court in the state to include
such property. This raises no Federal ques-
tion.
Columbus Southern R. Co. v. Wright, 151
U. S. 470, 38 L. ed. 238, 14 Sup. Ct. Rep.
390; Games v. Stiles, 14 Pet. 322, 10 L. ed.
476; Erie R. Co. v. Pennsylvania. 21 Wall.
492, 497, 22 L. ed. 595, 598; Bailey v.
Magwire, 22 Wall. 215, 22 L. ed. 850;
Brown-Forman Go. v. Kentucky, 217 U. S.
563, 54 I., ed. 883, 30 Sup. Ct. Rep. 578 ;
Adams v. Nashville, 95 U. S. 19, 24 L. ed.
369; Lane County v. Oregon, 7 Wall. 71,
19 L. ed. 101; Pullman's Palace Car
Co. V. Pennsylvania, 141 U. S. 18, 35 L.
ed. 613, 3 Inters. Com. Rep. 595, 11 Sup.
Ct. Rep. 876; Central P. R. Co. v. Nevada,
162 U. S. 512, 40 L. ed. 1057, 16 Sup. Ct.
Rep. 885; Stryker y. Goodnow (Stryker v.
Crane) 123 U. S. 527, 538, 31 L. ed. 194,
199, 8 Sup. Ot. Rep. 203; Winona k St. P.
Land Co. y. MinnesoU, 159 U. S. 526, 40
L. ed. 247, 16 Sup. Ct. Rep. 83; United
States Exp. Co. v. Minnesota, 223 U. S. 335,
56 L. ed. 459, 32 Sup. Ct. Rep. 211; Horn
Silver Min. Co. v. New York, 143 U. S. 305,
36 L. ed. 164, 4 Inters. Com. Rep. 57, 12
Sup. Ct. Rep. 403.
The claim that the local assessor failed
to list other like property does not show
that plaintiffs in error were prejudiced
thereby.
59t
First Nat. Bank v. Ayers, 160 U. S. 660,
40 L. ed. 573, 16 Sup. Ct. Rep. 412.
The claim of double taxation amounts
at most only to overvaluation, and is imma-
terial here.
Bank of Oommerce v. Tennessee, 161 U. S.
134, 40 L. ed. 645, 16 Sup. Ct. R^. 456;
Van Allen v. Assessors (Churchill v. Utica)
3 WaD. 573, 18 L. ed. 229; New York v.
Tax k A. Comrs. 4 Wall. 244, 18 L. ed. 344;
Davidson v. New Orleans, 96 U. S. 97, 24
L. ed. 616; State v. Jones, 24 Minn. 251;
State V. Rand, 39 Minn. 502, 40 N. W. 835.
The residence of plaintiffs in error out-
side the taxing district or the state does not
of itself show that in this action there has
been any depriving of such parties of a
Federal right.
Columbus Southern R. Co. v. Wright, 151
U. S. 470, 481, 483, 38 L. ed. 238, 243, 244,
14 Sup. Ct. Rep. 396; Gallup v. Schmidt,
183 U. S. 300, 305, 46 L. ed. 207, 212, 22
Sup. Ct. Rep. 162; New York ex rel. New
York C. & H. R. R. Co. v. Miller, 202 U. S.
584, 50 L. ed. 1155, 26 Sup. Ot. Rep. 714;
Metropolitan L. Ins. Co. v. New Orleans,
205 U. S. 305, 51 L. ed. 853, 27 Sup. Ct. Rep.
499; Corry v. Baltimore, 196 U. S. 466, 49
L. ed. 556, 25 Sup. Ct. Rep. 297 ; Savings k
L. Soc. V. Multnomah County, 160 U S. 421,
428, 42 L. ed. 803, 805, 18 Sup. Ct. Rep.
392.
Mr. Justice Hnghes delivered the opin-
ion of the court:
This is a suit in equity to cancel certain
assessments for the year 1912, and to re-
strain the collection of taxes imposed ac-
cordingly upon the plaintiffs and others in
like case with respect to their membershipB
in the Chamber of Commerce of the city of
Minneapolis. There were three groups al-
leged to be represented by the respi?ctive
plaintiffs: One, of members residing in
Minneapolis; another, of those residing
within the state, but outside that city; and
a third, of citizens and residents of other
states. The complaint, among other things,
averred in substance that the Chamber of
Commerce was incorporated under the laws
of Minnesota; that it had no capital stock
and transacted no business for profit; that
it furnished buildings and equipment for
its members, who, under its rules, transact-
ed business with eacli other (for themselves
and their customers) upon the trading floor
which was in fact a grain exchange; that
the property of the corporation had been
fully taxed; that the memberships, in case
of winding up, would have actually no value
[186] above the assets so taxed; that it had
been the practical construction of the tax
laws of the state that such memberships were
not taxable; that the assessments in question
240 U. S.
1015.
ROGERS T. HENNEPIN.
186-188
had been laid under the head of "Moneys
and Credits," and that they were excessive;
that memberships in other associations were
not taxed ''although standing in a similar
position;'* that the members of the Chamber
of Commerce were "unlawfully and prejudi-
cially" discriminated against "by unequally
assessing them," and that their property was
taken ^Srithout due process of law, contrary
to the state and Federal Constitutions;*' that,
unless restrained, the attempt to enforce the
tax would result in a multiplicity of suits;
that in the case of members residing outside
of the city of Minneapolis, the certificates
of membership were "kept at their re-
spective residences" and such members did
not "operate" upon the exchange personal-
ly except "at rare intervals," and that their
use of such memberships was practically
limited to benefits obtained "from having
other members buy or sell grain for them as
commission merchants" at one half the
"regular commission" by reason of "a
privilege extended to the members under the
rules."
The defendants demurred to the complaint
upon the ground that it did not state facts
sufficient to constitute a cause of action.
The trial court denied a motion for tempo-
rary injunction and sustained the demurrer,
and thereupon judgment was entered in
favor of the defendants. The plaintiffs ap-
pealed to the supreme court of the state, as-
signing as error the holding of the trial
court that the assessments "did not deny
to the several members in the respective
classes the equal protection of the laws" and
did not constitute a taking of property
"without due process of law and without
compensation," contrary to the Federal
Constitution. The latter objection was
stated in various forms, specific complaint
being made of the assessment of those mem-
bers who were said to be outside the [ 187]
jurisdiction of the taxing officers. Another
appeal was then pending in the same court in
the case of State v. McPhail, 124 Minn. 398,
50 L.RJ^.(N.S.) 265, 146 N. W. 108, Ann.
Cas. 1916C, 538, relating to the taxation of
memberships in the Board of Trade of Du-
luth, and, by stipulation, the appeals were
heard together. In the Duluth Case, the
supreme court held thtft the membership
was taxable tmder the statutes of the state,
and, further, sustained the tax there laid
as against contentions under the due process
and equal protection clauses of the 14th
Amendment. The court said: "We do not
sustain the claims that the taxation of
memberships in a board of trade or stock
exchange would violate provisions of the
Federal or state Constitution. . . . We
see no improper classification here, nor any
bck of equality or uniformity. Nor would it
•0 Jj. ed.
be double taxation The members of the
board are not required to pay taxes on the
physical and tangible property of the board,
nor does the board pay taxes upon the in-
tangible rights which constitute ' the value
of a membership. And we hold that pro-
ceedings to tax such a membership do not
deprive the member of his property without
due process of law, take property for public
use without just compensation, or deny such
member the equal protection of the laws, in
violation of familiar provisions of the Fed-
eral Constitution and Amendments." State
V. McPhail, supra.
At the same time, the decision in the
instant case was rendered with an opinion
per curiam in which, after a summary state-
ment of the nature of the case, the court
ruled as follows: "The case was submitted
on briefs in this court with State v. Mc-
Phail. The decision in that case, filed here-
with, controls this. Judgment affirmed."
124 Minn. 539, 145 N. W. 112. And this
writ of error has been sued out.
The defendants in error insist that the de-
cision of the state court involved no Federal
question; that the suit was for injunction
and that the plaintiffs had an adequate
[188] remedy at law. They invoke the fa-
miliar rule that when the decision of the
state court rests upon an independent or non-
Federal ground, adequate to support it, this
court has no jurisdiction. Hammond v.
Johnston, 142 U. 8. 73, 78, 35 L. ed. 941,
942, 12 Sup. Ct. Rep. 141 ; Qaar, S. k Co. v.
Shannon, 223 U. S. 468, 470, 66 L. ed. 510.
512, 32 Sup. Ct. Rep. 236. But the state
court, which alone determines local ques-
tions of procedure, did not deny relief be-
cause an injunction was sought or because
it was considered that under the state law
another remedy was appropriate. It said
nothing whatever as to the form of remedy,
or as to the right to proceed in equity, but
considered and decided the case on the
merits, including the Federal questions.
No other conclusion can be drawn from the
fact that the sole reason for the decision is
found in the reference to State v. McPhail
as authority, — a case in which no pro-
cedural question was involved. There, the
action was brought by the state itself to
recover the tax, and the decision was direct-
ly and exclusively upon the validity of the
tax, it being sustained first, as one author-
ized by the state law, and, then, as not re-
pugnant to the Federal Constitution. The
fact that there were some objections to the
constitutional validity of the tax in the
present case that were not urged in the
McPhail Case does not affect the matter.
They were all grounds for the contention
that the tax denied the equal protection of
the laws and took property without due
18»-190
SUPREME COURT OF THE UNITED STATES.
Oct. Thk,
process of law. That was the ultimate con-
tention which was overruled with respect to
the tax in the McPhail Case, and the al-
lusion to that decision as "controlling"
plainly meant that the court thought that
all the reasons urged for a different view
were without merit, and that the present
tax did not violate the 14th Amendment.
It is well settled that where the state court
does not decide against the plaintiff in er-
ror upon an independent state ground, but,
deeming the Federal question to be before it,
actually entertains it and decides it adverse-
ly to the Federal right asserted, this court
has [180] jurisdiction to review the judg-
ment, assuming it to be a final judgment, as
it is here. Hancock Nat. Bank v. Farnum,
176 U. S. 640, 642, 44 L. ed. 619, 620, 20 Sup.
Ct. Rep. 506 ; San Jos^ Land k Water Co. v.
San Jose Ranch Co. 189 U. S. 177, 179, 180,
47 L. ed. 766, 766, 768, 23 Sup. Ct. Rep. 487 ;
American Exp. Co. v. Mullins, 212 U. S. 311,
313, 53 L. ed. 525, 526, 29 Sup. Ct. Rep. 381,
15 Ann. Cas. 536; Atchison, T. k S. F. R.
Co. V. Sowers, 213 U. S. 55, 63, 53 L. ed.
695, 698, 29 Sup. Ct. Rep. 397; Miedreich
▼. Lauenstein, 232 U. S. 236, 243, 58 L. ed.
584, 589, 34 Sup. Ct. Rep. 309 ; North Caro-
lina R. Co. V. Zachary, 232 U. S. 248, 257,
58 L. ed. 591, 595, 34 Sup. Ct. Rep. 305, 9
N. C. C. A. 109, Ann. Cas. 1914C, 159; Carl-
son V. Washington, 234 U. S. 103, 106, 58
L. ed. 1237, 1238, 34 Sup. Ct. Rep. 717;
Mallinckrodt Chemical Works v. Missouri,
238 U. S. 41, 49, 59 L. ed. 1192, 1195, 35
Sup. Ct. Rep. 671.
It is not to be doubted — giving full effect
to all the allegations of the complaint —
that the memberships, despite the restric-
tions of the rules, were property. See Hyde
▼. Woods, 94 U. S. 523, 525, 24 L. ed. 264,
265; Sparhawk v. Yerkes, 142 U. S. 1, 12,
36 L. ed. 915, 917, 12 Sup. Ct. Rep. 104;
Page V. Edmunds, 187 U. S. 596, 604, 47 L.
ed. 318, 322, 23 Sup. Ct. Rep. 200. As was
said by the supreme court of the state with
respect to memberships deemed to be essen-
tially similar: "A membership has a use
value and a buying and selling or market
value. It is bought and sold. . . . There
Is a lien upon it for balances due membera
... It passes by will or descent and by
Insolvency or bankruptcy. . . . It is true
that there are certain restrictions in the
ownership and use of a membership. These
may increase or decrease its value, probably
In the case of a board of trade membership
greatly enhance it. They do not prevent its
being property." 124 Minn. p. 401. Of
course, there id nothing in the Federal Con-
stitution which prevents the memberships
here involved from being taxed, and the
question whether they were in fact taxable
under the statutes of the state was a matter
£fPS
of local law with which we are not eon-
cemed. It was the province of the stata
court to determine what the terms of tht
taxing statute authorized, and it is for this
court to say whether, in view of the opera-
tion of the statute, as thus defined, it over-
rides the Federal right which is claimed.
Clemait Nat. Bank v. Vermont 231 U. 8.
130, 134, 58 L. ed. 153, 156, 34 Sup. Ct Rep.
31. It is insisted that there was no
l^islative [100] authority for an offi-
cial listing of this kind of property,
or for an official estimate of its
value, and hence that there is no valid
taxing scheme. But it is manifest that the
state court, in holding the memberships to
be embraced within the description of prop-
erty subject to taxation under the statutes,
also held that the statutory scheme, in-
cluding the provision for listing and for
official valuation, did apply to these mem-
berships. See 124 Minn. pp. 404-400.
Complaint is made that in the present caae
the memberships were assessed under tlie
head of "Moneys and Credits." But this
is an administrative matter which docs not
touch the fundamentals contemplated by
the 14th Amendment. If there was any
error or irregularity in tlie particular ap-
plication of the state statute in the case
of the assessments in question, it was sub-
ject to correction according to the local
practice; and the argument that the stat-
ute is defective because there is no legis-
lative authority for listing and estimate
we think is directly opposed to the con-
struction placed upon the statute by the
state court. It is also apparent that there
is no merit in the objection that there waa
a violation of the Federal Constitution
through what is called double taxation.
The membership* as property, was distinct
from the assets of the corporation. Van
Allen V. Assessors (Churchill v. Utica) 3
Wall. 573, 584, 18 L. ed. 229, 234; Farring-
ton V. Tennessee, 95 U. S. 679, 087, 24 L.
ed. 558, 560; Davidson v. New Orleans, 96
U. S. 97, 106, 24 L. ed. 616, 620; Bank of
Commerce v. Tennessee, 161 U. S. 134, 146,
40 L. ed. 645, 649, 16 Sup. Ct Rep. 456; and
see St. Louis Southwestern R. Co. v. Ar-
kansas, 235 U. S. 350, 367, 368, 69 L. ed.
265, 273, 274, 35 Sup. Ct. Rep. 99. The
correct valuation of the membership, in
view of all relevant facts, was a matter
for the taxing officials, and we do not alt
to review their judgment The complaint
makes no case whatever of a denial by tbe
statutory scheme of proper opportunity for
the hearing of grievances where the esti-
mate is regarded by the members as extea
sive. See New York ex rel. Brookl3m City R.
Co. V. New York State Tax Comrs. 199 U.
S. 48, 51, 52, 50 L. ed« 79, 84, 85, 26 Sup.
940 V. 8.
1015.
UNITED STATES t. MORRISON.
190-192
Ct Rep. 71S; Oitaii lot. Go. ▼. Board of
AmtMon, 221 [101] U. S. 358, 860, 56 L. ed.
769, 771, 81 Sup. Ct Rep. 554. On the eon-
tnij, the complaint alleges that the plain-
Utt duly appeared before the Board of Equal-
iation of the dtj of Minneapolia and the
Minnesota Tax Commission, acting as the
State Board of Equalization, and on behalf
•of himself and other members asked to
haye the assessment canceled, or, if not
canceled, to have it reduced to what was
asserted to be a fairer valuation, and that
the boards were each apparently inclined
to grant the application; but, as it would
<ccm, withheld action pending the decision
oi tibe eourts as to the taxability of the
memberships.
There is the further contention with re-
spect to the authority of the state to tax
the memberships owned by citizens of oth-
«r states. It is urged that the member-
ships are intangible rights held by the
member at his domicil. But it sufficiently
appears from the allegations that the mem-
t>erships represented rights and privileges
which were exercised in transactions at the
•exchange in the city of Minneapolis, and
we are of the opinion, applying a principle
which has had recognition with respect to
•credits in favor of nonresidents arising
from business within the state, and in the
•case of shares of stock of domestic corpora-
iionBy that it was competent for the state
to fix the situs of the memberships for the
purpose of taxation, whether they were
held by residents or nonresidents, at the
place within the state where the exchange
was located. Tappan v. Merchants' Nat.
Bank, 19 Wall 400, 499, 22 L. ed. 189, 193;
New Orleans v. Stempel, 175 U. 8. 309, 319,
44 L. ed. 174, 180, 20 Sup. Ct. Rep. 110; State
Assessors v. Comptoir National IVEscompte,
191 U. S. 388, 403, 48 L. ed. 232, 238, 24
Sup. Ct. Rep. 109; Corry v. Baltimore, 196
TJ. S. 466, 474, 49 L. ed. 566, 661, 25 Sup.
Ot. Rep. 297; Metropolitan L. Ins. Co. v.
New Orleans, 205 U. 8. 395, 402, 51 L. ed.
853, 856, 27 Sup. Ct. Rep. 499; Liverpool
•4 L. & G. Ins. Co. v. Board of Assessors,
221 U. S. 346, 354, 355, 65 L. ed. 762, 767,
768, L.R.A.1915C, 903, 81 Sup. Ct. Rep.
.660; Hawley v. Maiden, 232 U. S. 1, 12,
5t L. ed. 477, 482, 84 Sup. Ct. Rep. 201.
With respect to discrimination, there is
no tenable objection because of the exemp-
tion from taxation (if they were exempt)
•of the various organizations to which the
I^aintiffs in 'error refer, — such as the "Asso-
•eiated Press, [108] lodges, fraternal orders,
churches, etc." The description itself sug-
gests manifest distinctions whieh the state
is entitled to observe in its taxing policy,
despite the general allegation that these as-
sociations stand '^ a similar position.''
40 Jj. ed.
The state has a broad diaeretloB as to tax
exemptions (Bell's Oap R. Co. v. Pennsyl-
vania, 184 U. S. 232, 237, 88 L. ed. 892,
895, 10 Sup. Ct. Rep. 633), and the aver-
ments of the complaint are very far from
showing any basis for a eharge of viola-
tion of the 14th Amendment by unwarrant-
able discrimination. And, finally, with re-
spect to the argument that the plaintiffs in
error were denied due process of law be-
cause the state court decided the case upon
the authority of the McPhail Case, without
referring to the asserted distinctions be-
tween the two cases, it is enough to say
that the cause was heard and determined,
and, viewing the judgment as passing upon
all the Federal questions raised, we find no
error.
Judgment affirmed.
Mr. Justice McReynolds is of opinion
that the writ of error should be dismissed.
UNITED STATES, Appt,
V.
W. J. MORRISON, Finley Morrison, and
the Sligh Furniture Company.
(See S. C. Reporter's ed. 192-214.)
Public lands — school grant — when
title passes — necessity of survey.
1. Title did not pass to the state of
Oregon under the provision of the act of
February 14, 1869 (11 SUt. at L. 383,
chap. 33, Comp. SUt 1913, g 6799 (42)),
§ 4, admitting Oregon as a state, that sec-
tions 16 and 36 in each township, or eqtiiva-
lent lands if such sections have been sold
or otherwise disposed of, ''shall be granted"
to said state for the use of the schools, until
the school sections were defined by a com-
pleted survey, and until that time Congress
was at liberty to dispose of the land; its
obligation in that event being properly to
compensate the state for whatever deficien-
cies resulted.
[For other cases, see Public Lands, I. e» 8,
in Digest Sup. Ct. 1908.]
Public lands «. school grant « oontroil
of Congress.
2. No limitation upon the authority of
Congress to dispose of public lands before
title thereto paissed to the state, upon a
completed survey, under the act of Febniary
14, 1859 (11 Stat, at L. 383, chap. 33, Comp.
SUt. 1913, S 6799 (42)), g 4, admittimr
Oregon as a state, was imposed by U. S.
Rev. SUt. SS 2275, 2276, Comp. SUt 1913,
SS 4860, 4861, as amended by the act of Feb-
ruary 28, 1891 (26 SUt. at L. 796, chap.
884, Comp SUt. 1918, §S 4860, 4861), pro-
tecting settlements when made "before the
survey of the lands in the field."
[For other cases, see Pnblie Lands, L e, 8,
in Digest Sup. Ct. 1908.]
SUPREME COURT OF THE UNITED STATES.
Oct. Tebu,
Pnbllc lands — school grant « when
■oTTey is complete.
3. The suryey of the lands embraced in
the school grant made by the act of Febru-
arv 14, 1859 (11 Stat, at L. 383, chap. 33,
Comp. SUt. 1913, S 6799 (42)), g 4, ad-
mitting Oregon as a state, did not become
a completed administrative act so as to
prevent Congress from otherwise disposing
of such lands, until such survey was finally
accepted by the Commissioner of the Gen-
eral Land Office, although such survey,
after prolonged examination, was finally
approved by him without modification.
[For other cases, see PabUc Lands, I. c. 8,
in Digest Sap. Ct 1908.]
Public lands ^ survey ^ official ap-
proval.
4. The descriptions by townships of
lands withdrawn oy the Secretary of the
Interior for forestry purposes, and the ref-
erence in the official correspondence in con-
nection with such withdrawal to a diagram
showing townships and sections, does not
constitute an official approval of the survey
of such lands.
[For other cases, see Public Lands, I. e, 4,
in Digest Sup. Ct. 1908.]
Public lands — forest reserve ^ ex-
cepted lands.
5. The exception in the President's
proclamation of January 26, 1907 (34 Stat,
at L. 3270), enlarging the Cascade Forest
Reserve, "of all lands which at this date
are embraced within any withdrawal or
reservation for anv use or purpose to which
this reservation for forest uses is incon-
sistent," referred to withdrawals or reserva-
tion by the government itself for other and
inconsistent uses, and was made with a view
to avoiding confusion in governmental ac-
tion, not to let in subsequently accruing
claims of title under school grants, as to
which (Congress had indicated its purpose
to make compensation for deficiencies when
lands which otherwise would have passed
to the state thereunder had been duly taken
for reservations.
[For other cases, see Public Lands, I., in Di-
gest Sup. Ct. 1018 Sapp.]
Pnbllc lands ^ forest reserve — unsnr-
veyed lands.
6. Unsurveyed lands might be reserved
by the President in the exercise of his au-
thority under the acts of March 3, 1891
(26 Stat, at L. 1103, chap. 561, Comp. Stat.
1913, § 5121), S 24, and June 4, 1897 (30
Stat, at L. 36, chap. 2), to establish forest
reservations on the public domain.
[For other cases, see Public Lands. I., In Di-
gest Sup. Ct. 1013 Sapp.]
[No. 138.]
Argued December 16, 1915. Decided Feb-
ruary 21, 1916.
APPEAL from the United States Circuit
, Court of Appeals for the Ninth Circuit
to review a decree which reversed, with di*
rections to dismiss the bill, a decree of the
District Court for the Distriet of Oregon
0O0
in favor of the United States in a suit by
it to quiet title. Reversed, and decree of
District Court affirmed.
See same case below, 128 C. C. A. 485, 212
Fed. 29.
The facts are stated in the opinion.
Assistant Attorney General Knaebel
argued the cause, and^ with Mr. 8. W. Wil-
liams, filed a brief for appellant:
The grant of school lands made to the
state of Oregon by the act of February 14,
1859, did not operate to vest title in the
state to any particular tract of land until
the same was surveyed under the authoritj
of the United States.
Lessieur v. Price, 12 How. 59, 13 L. ed.
893; United States v.' Thomas, 151 U. 8.
577, 38 L. ed. 276, 14 Sup. Ct. Rep. 426;
Wisconsin v. Hitchcock, 201 U. S. 202, ISO
L. ed. 727, 26 Sup. Ct. Rep. 498; Heydea-
feldt V. Daney Gold & S. Min. Co. 93 U. 8.
634, 23 L. ed. 995, 13 Mor. Min. Rep. 204;
Re Colorado, 6 Land Dec. 412; California
V. Wright, 24 I^nd Dec. 54; South Dakota
V. Riley, 34 Land Dec. 657; South Dakota
V. Thomas, 35 Land Dec. 171.
Public lands of the United States are not
surveyed until the plat and field notes
thereof are approved by the surveyor gen-
eral, accepted by the (Commissioner of the
General Land Office, and filed in the local
land office.
Barnard v. Ashley, 18 How. 43, 15 Lw ed.
285; California v. Townsend, 2 Cupp's Pub-
lic Land Laws, 1117; Anderson v. Minna-
sota, 37 Land Dec 390; Tubbs v. WilhoHk
138 U. S. 134, 34 L. ed. 887, 11 Sup. Ot
Rep. 279 ; Knight v. United Land Asso. 14S
U. S. 161, 35 L. ed. 974, 12 Sup. U. Rep.
258; Michigan Land h Lumber Co. v. Rnt^
168 U. S. 689, 42 L. ed. 591, 18 Sup. Ct. Rep.
208.
Regulations of the Land Department haiPV
all the force and effect of law. They art
made in furtherance of the statutes, whioli
cannot well be enforced without them.
Germania Iron Co. v. James, 32 C. C. A.
348, 61 U. S. App. 1, 89 Fed. 811, 46 a G.
A. 476, 107 Fed. 597.
Mr. Mark Norris argued the cause, anda
with Mr. Oscar E. Waer, filed a brief te
appellee, the Sligh Furniture Company :«
The grant was a grant tfi prcssetUi.
Ham V. Missouri, 18 How. 126, 15 L. ed.
334 ; Beecher v. Wetherby, 95 U. 8. 617, §4
L. ed. 440; United States v. Thomas, lil
U. S. 577, 583, 38 L. ed. 276, 278, 14 8q^
Ct. Rep. 426; Alabama v. Schmidt, Sit
U. 8. 168, 58 L. ed. 555, 34 Sup. Ct. Rsp^
801 ; United States v. Tully, 140 Fed. 904 j
Heydenfeldt v. Daney, Gold k S. Min. Oib
93 U. 8. 634, 23 L. ed. 995, 13 Mor. M3b.
Rep. 204; Minnesota v. Hitchcock, 18S
240 U. •.
1915.
UNITED STATES ▼. MORRISON.
U. S. 373» 46 L. ed. 954» 22 Sup. Ct Rep.
660; WiBconain v. Hitchcock, 201 U. S. 202,
60 L. ed. 727» 26 Sup. Ct. Rep. 498; St.
Paul & P. R. Co. ▼. Northern P. R. Co. 139
U. S. 6, 35 L. ed. 79, 11 Sup. Ci Rep. 389 ;
United States v. Oregon & C. R. Co. 176 U.
S. 28, 44 L. ed. 358, 20 Sup. Ct. Rep. 261;
Butti y. Northern P. R. Co. 119 U. S. 65,
30 L. ed. 330, 7 Sup. Ct Rep. 100; Southern
P. R. Co. V. United States 168 U. S 1, 42
L. ed. 355, 18 Sup. Ct. Rep. 18; United
States y. Southern P. R. Co. 146 U. S. 570,
36 L. ed. 1091, 13 Sup. Ct. Rep. 152; Men-
otti y. DUlon, 167 U. S. 703, 42 L. ed. 333,
17 Sup. a. Rep. 946; Miswuri, K. & T. R.
Co. y. Cook, 163 U. S. 491, 41 L. ed. 239, 16
Sup. Ct. Rep. 1093; New York Indians y.
United SUtes, 170 U. S. 1, 42 L. ed. 927, 18
Sup. Ct. Rep. 531 ; Wright y. Roseberry, 121
U. S. 488, 501, 30 L. ed. 1039, 1042, 7 Sup.
Ct. Rep. 985; Tubbs y. Wilhoit, 138 U. a
134, 136, 34 L. ed. 887, 888, 11 Sup. Ct. Rep
279; Rogers Locomotive Mach. Works y.
American Emigrant Co. 164 U. 8. 559, 570,
41 L. ed. 562, 557, 17 Sup. Ct. Rep. 188;
Chandler v. Calumet & H. Min. Co. 149 U. S.
79, 91, 37 L. ed. 657, 661, 13 Sup. Ct. Rep.
798 ; French y. Fyan, 93 U. S. 169, 23 L. ed.
812; Martin y. Marks, 97 U. S. 345, 24 L.
ed. 040; Hannibal & St. J. R. Co. y. Smith,
9 Wall. 95, 19 L. ed. 599; Rice y. Sioux
aty Sl St. P. R. Co. 110 U. S. 695, 28 L. ed.
289, 4 Sup. Ct. Rep. 177 ; Michigan Land &
Lumber Co. y. Rust, 168 U. S. 589, 591, 42
L. ed. 591, 592, 18 Sup. Ct. Rep. 208.
If the grant was not in prct9enii, title
yested when the field survey was made.
Cooper y. Roberts, 18 How. 173, 15 L. ed.
338; Hibberd y. Slack, 84 Fed. 571.
If title had not vested upon the comple-
tion of the field survey, it did vest upon its
approval by the surveyor general of Ore-
gon.
Endlich, Interpretation of Statutes, ed.
1888, § 85; PlaU v. Union P. R. Co. 99 U. a
48, 63, 25 L. ed. 424, 429; Smith y. Town-
send, 148 U. S. 490, 494, 37 L. ed. 533, 634,
13 Sup. Ct. Rep. 634; Mobile & 0. R. Co. v.
Tennessee, 153 U. 8. 486, 602, 88 L. ed. 793,
790, 14 Sup. Ct. Rep. 968; Dewey v. United
SUies, 178 U. S. 510, 520, 44 L. ed. 1170,
1174, 20 Sup. Ct Rep. 981; Burfenning y.
Chicago, St P. M. & O. R. Co. 163 U. 8.
823, 41 L. ed. 176, 16 Sup. Ct. Rep. 1018;
Uaitad States y. George, 228 U. 8. 14, 67
L. ed. 712, 83 Sup. Ct Rep. 412; Daniels y.
Wagner, 237 U. S. 547, 59 L. ed« 1102,
LJLA.1016A, 1116, 36 Sup. Ct Rep. 740;
St Louis Smelting k Ref. Co. v. Kemp, 104
U. S. 636, 646, 26 L. ed. 875, 878, 11 Mor.
Min. Rep. 673; Wright y. Roseberry, 121
U. S. 48S, 510, 30 L. ed. 1039, 1048, 7 Sup.
Ct Rep. 085; Doolan v. Carr, 125 U. S. 618,
31 L. ed. 844, 8 Sup. Ot. Rep. 1228; Davis
•0 li.
y. Wiebbold, 139 U. S. 507, 629, 36 L. ed.
238, 246, 11 Sup. Ct. Rep. 628; Knight v.
United Land Asso. 142 U. S. 161, 35 L. ed.
974, 12 Sup. Ct. Rep. 258.
The official use of the plat as filed in the
General Land Office constituted an approval
of it, which binds the United States.
Wright V. Roseberry, 121 U. S. 488, 501,
30 L. ed. 1039, 1042, 7 Sup. Ct. Rep. 985;
Tubbs y. Wilhoit, 138 U. 8. 134, 144, 145,
34 L. ed. 887, 890, 891, 11 Sup. Ct. Rep. 279;
Cooper v. Roberts, 18 How. 173, 15 L. ed.
338.
Immediately upon the formal approval of
the survey, the statutory reservation and
grant originally made to Oregon destroyed
the effect of the temporary withdrawal, and
vested title in the state.
Burfenning v. Chicago, St. P. M. & 0. R.
Co. 163 U. S. 323, 41 L. ed. 176, 16 Sup. a.
Rep. 1018; United States v. George, 228 U.
S. 14, 57 L. ed. 712, 33 Sup. a. Rep. 412;
Daniels y. Wagner, 237 U. S. 547, 59 L. ed.
1102, L.R.A.1916A, 1116, 35 Sup. Ct. Rep.
740; St. Louis Smelting & Ref. Co. v. Kemp,
104 U. S. 636, 646, 26 L. ed. 875, 878, 11
Mor. Min. Rep. 673; Wright v. Roseberry,
121 U. S. 488, 519, 30 L. ed. 1039, 1048, 7
Sup. Ct Rep. 985; Doolan v. Carr, 125 U. S.
618, 81 L. ed. 844, 8 Sup. Ct. Rep. 1228;
Knight y. United Land Asso. 142 U. S. 161,
35 L. ed. 974, 12 Sup. Ct. Rep. 258.
The lands had not been ''sold or other-
wise disposed of" when the siu'vey was for-
mally approved on January 31, 1006, and
title therefore vested in the state of Oregon
on that date, if not before.
Ham y. Missouri, 18 How. 126, 15 L. ed.
334; Conley v. State, 85 Ga. 348, 11 S. £.
659; Piatt v. Union P. R. Co. 99 U. S. 48,
25 L. ed. 424; Roberson v. State, 100 Ala.
37, 14 So. 554; Maxwell y. State, 140 Ala.
131, 37 So. 266.
The alleged executive withdrawal of
these lands made December 16, 1905, was
of no force.
Wolsey y. Chapman, 101 U. S. 769, 25 L.
ed. 920; Wilcox v. Jackson, 13 Pet 498, 10
L. ed. 264; United States y. Blendauer, 122
Fed. 703; Newhall v. Sanger, 92 U. S. 761,
763, 23 L. ed. 769, 770; Bardon v. Northern
P. R. Co. 145 U. S. 535, 538, 36 L. ed. 806,
809, 12 Sup. Ct. Rep. 856; Barker v. Har-
vey, 181 U. S. 481, 490, 45 L. ed. 963, 968,
21 Sup. Ct Rep. 690; Union P. R. Co. v.
Harris, 215 U. S. 388, 54 L. ed. 247, 30 Sup.
Ct. Rep. 138; Barnard y. Ashley, 18 How.
43, 46, 15 L. ed. 285, 286; Hosmer y. Wal-
lace, 97 U. S. 575, 579, 24 L. ed. 1130, 1131;
Buxton v. Traver, 130 U. S. 232, 235, 32
L. ed. 920, 921, 9 Sup. Ct Rep. 509.
The presidential proclamation of January
•01
196, 197
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm
25, 1907» was of no force as far as the lands
in question were concerned because
(a) The proclamation did not affect these
lands.
(b) The proclamation expresslj excepted
the lands.
Bardon v. Northern P. R. Co. 145 U. S.
535, 539, 36 L. ed. 806, 809, 12 Sup. Ct. Rep.
856; Missouri, K. & T. R. Co. v. Roberts,
152 U. S. 114, 119, 38 L. ed. 377, 380, 14
Sup. Ct. Rep. 496; United States v. Blen-
dauer, 122 Fed. 703.
Mr. Richard Sleight filed a brief for ap-
pellees W. J. and Finley Morrison:
The grant of the school sections to the
state irrevocably pledged this land to the
state, and placed it beyond the power of
Congress or the President to divert it to
other purposes.
Beecher v. Wetherby, 95 U. 6. 517, 24 L.
ed. 440; Cooper y. Roberts, 18 How. 173,
15 L. ed. 338; Ham v. Missouri, 18 How.
126, 15 L. ed. 334; Schneider v. Hutchinson,
35 Or. 253, 76 Am. St. Rep. 474, 57 Pac.
324.
The title to school lands became vested in
the state when the survey was jnade in the
field.
Hibberd v. Slack, 84 Fed. 571; Oakley v.
Stuart, 52 Cal. 535.
The act of 1891 (U. S. Rev. SUt. § 2275.
Comp. Stat. 1913, S 4860, as amended) ex-
pressly gives the state the right of election
to select other lands in lieu of those in the
school sections which have been embraced
within a reservation, or to await the ex-
tinguishment of the reservation, and the
restoration of the lands therein embraced
to the public domain, and then to take the
specific lands in such sections.
United SUtes v. Thomas, 151 U. S. 577,
583, 38 L. ed. 276, 278, 14 Sup. Ct. Rep.
426.
[106] Mr. Justice Hughes delivered the
opinion of the court:
The United States brought this suit to
quiet title to lands in section 16, township
3 south, range 6 east, Willamette Meridian,
Oregon. By the act of February 14, 1859,
chap. 33 (11 Stat, at L. 383, Comp. SUt.
1913, § 6799 (42)), for the admission of
Oregon into the Union, it was provided
(§4):
'^hat the following propositions be, and
t^e same are hereby, offered to the said
people of Oregon for their free acceptance
or rejection, which, if accepted, shall be ob-
ligatory on the United States and upon the
said state of Oregon, to wit: First, That
sections numbered sixteen and thirty-six in
every township of public lands in said state,
and where either of said sections, or any
part thereof, has been sold or otherwise been
disposed of, other lands equivalent thereto,
and as contiguous as may be, shall be grant*
ed to said state for the use of schools.
. • • Provided, however. That in case any
of the lands herein granted to the state of
Oregon have heretofore been confirmed to
the territory of Oregon for the purposes
specified in this act, the amoimt so con-
firmed shall be deducted from the quantity
specified in this act."
The propositions of the enabling act were
accepted by the legislative assembly of the
state of Oregon on June 3, 1859. 1 Lord's
Oregon Laws, pp. 28, 29.
There was a stipulation of facts, in sub-
stance, as follows:
Prior to May 27, 1902, no survey of any
kind had been made by the United States
of the lands in question. On June 2, 1902,
a field survey was made under the direction
of the United States surveyor general of
Oregon. This officer approved the survey on
June 2, 1903, and on June 8, 1903, trans-
mitted copies of plat of survey and field
notes to the Commissioner of the General
Land Office. On October 13, 1904, the Com-
missioner informed the surveyor general
that the deputy had failed to describe
[107] the kind of instrument used in. the
execution of the work, or to record any
polaris or solar observations at that time,
and that a supplemental report would be
necessary. Additional field notes were
transmitted to the Commissioner on Sep-
tember 8, 1905. The Commissioner ac-
cepted the survey on January 31, 1906.
In view of reports of illegal settlement,
it was directed that no entries should be
allowed until further permission, as the
survey was accepted "for payment only."
The plat was received in the local land
office on February 7, 1906. On Novem-
ber 16, 1907, the suspension was revoked,
and the surveyor general of Oregon was di-
rected to place the plat on file in the local
land office, and it was filed accordinc^ly in
substantially the same form in which it had
been accepted by the surveyor general "with-
out change or correction."
On December 16, 1905, the Secretary of
the Interior "temporarily withdrew for for-
estry purposes from all forms of disposition
whatsoever, except under the mineral laws
of the United States, all the vacant and un-
appropriated public lands" within described
areas, which include the land in controversy.
Notice of this withdrawal was given on
December 19, 1905, to the register and re-
ceiver of the local land office. In taking
this action the Secretary of the Interior
and the Commissioner described the lands
"according to the rectangular system of
government survey.'* On January 26, 1907,
240 U. 8.
1915.
UNITED STATES ▼. MOBRISON.
197-800
the President issued a proclamation enlarg-
lag the Cascade Bangs Forest Reserve so as
to include the section sixteen in question
and other lands. This proclamation, by its
terms, excepted ''all lands which at this
date are embraced within any withdrawal
•or reservation for any use or purpose tu
which this reservation for forest uses is in-
consistent." 84 Stat, at L. 3270.
It was the contention of the government
that, by reason of the withdrawal by exccu-
tive order for forestry purposes prior to the
acceptance of the purvey by the [108]
Commissioner of the General Ltand Office,
the title to the lands did not pass to the
state under the school grant. The appellees
claimed title under a conveyance from the
state, its certificates of sales having been
executed on October 10, 1006, and its deed
on January 9, 1907. Decree in favor of the
United States (United States v. Oowlishaw,
202 Fed. 317) was reversed by the circuit
court of appeals (Morrison v. United States,
128 C. C. A. 485, 212 Fed. 29), and the gov-
emment appeals to this court.
The first enactment for the sale of public
lands in the western territory provided for
setting apart section 16 of every township
for the maintenance of public schools (ordi-
nance of 1785; Cooper v. Roberts, 18 How.
173, 177, 15 L. ed. 338, 339) ; and, in carry-
ing out this policy, grants were made for
common-school purposes to each of the pub-
lic-land states admitted to the Union. Be-
tween the years 1802 and 1846 the grants
were of every section 16,1 and, thereafter,
of sections 16 and 36.' In some instances,
additional sections have been granted. In
the case of Oregon, the following provision
had been made in establishing the territori-
al government (act of August 14, 1848,
chap. 177, § 20, 9 SUt. at L. 323, 330) :
"That when the lands in the said terri-
tory shall be surveyed under the direction
of the government of the United States, pre-
paratory to bringing the same into market,
sections numbered sixteen and thirty-six in
each [109] township in said territory shall
be, and the same is hereby, reserfied for the
purpose of being applied to schools in said
territory, and in the states and territories
hereafter to be erected out of the same."
In 1850, Congress created the office of
surveyor general of the public lands in Ore-
gon, and provided for survey and for dona-
tions to settlers (act of September 27, 1860,
chap. 76, 9 Stat, at L. 496), and this act
provided (S 9) : "That no claim to a dona*
tion right . . , upon Mctions sixteen or
thirty-six, shall be valid or allowed, if the
residence and cultivation upon which the
same is founded shall have commenced after
the survey of the same." By the act of
February 19, 1851, chap. 10 (9 Stat, at L.
568), Congress authorized the legislative
assemblies of the territories of Oregon and
Minnesota "to make such laws and needful
regulations as they shall deem most expe-
dient to protect from injury and waste see*
tions numbered sixteen and thirty-six . . .
reserved in each township for the support
of schools therein." In 1853 (act of Janu-
ary 7, 1853, chap. 6, 10 Stat, at L. 150) the
legislative assembly of Oregon was author-
ised "in all cases where the sixteen or thir-
ty-six sections, or any part thereof, shall be
taken and occupied under the law making
donations of land to actual settlers" to se-
lect, "in lieu thereof, an equal quantity of
any unoccupied land in sections, or fraction-
al sections, as the ease may be." And these
provisions were followed in 1859 by the
proposition of the enabling act (supra) ac-
cepted by the state of Oregon that these
sections "in every township of public lands"
within the state, and "where either of said
sections, or any part thereof, has been sold
or otherwise been disposed of, other lands
equivalent thereto, and as contiguous as
may be, shall be granted to said state for
the use of schools."
Prior to survey, the designated sections
were undefined and the lands were unidenti-
fied. It is insisted by the [200] appellees
that there was a grant in prtxaenti, under
which the state acquired a vested right in
lOhio (2 Stat at L. 175, chap. 40);
Louisiana (2 Stat, at L. 394, chap. 39, 5
Stat, at L. 600, chap. 33) ; Indiana (3 SUt.
at L. 200, chap. 57); Mississippi (2 Stat,
at L. 234, chap. 27, 10 Stat, at L. 6, chap.
35) ; Illinois (3 Stat, at L. 430, chap. 67) ;
Alabama (3 Stat, at L. 491, chap. 47);
Missouri (3 Stat, at L. 547, chap. 22, Comp.
Stat. 1913, 9 6799 (42)); Arkansas (5
SUt. at L. 58, chap. 120) ; Michigan (5
SUt. at L. 59, chap. 121 ) ; Florida ( 5 SUt.
at L. 788, chap. 75, Comp. SUt. 1013, §
6799(42) ) ; Iowa (5 SUt. at L. 789, chap.
76, CoBip. SUt. 1913, § 6799(42) ) ; Wiscon-
tm (9 SUt. at L. 58, chap. 89, Comp. SUt.
1913, I 6799(42)).
iCalifomU (10 SUt. at L. 246. chap.
•O Ii. ed.
145) ; MinnesoU (11 Stat, at L. 167, chap.
60, Comp. SUt. 1913, S 6799(42) ) ; Oregon
(11 SUt. at L. 383, chap. 33) ; Kansas (12
Stat, at L. 127, chap. 20); Nevada (18
SUt. at L. 32, ehap. 36, Comp. SUt. 1918,
§ 6799 ( 42 ) ) ; Nebraska ( 13 SUt. at L. 49,
chap. 59); Colorado (18 SUt. at L. 475,
chap. 139) ; North DakoU, South DakoU,
Montana, and Washington (25 SUt. at L^
679, chap. 180) ; Idaho (26 SUt. at L. 216,
chap. 656) ; Wyoming (26 SUt. at L. 222,
chap. 664) ; UUh (28 Stat, at L. 109, chap.
138); Oklahoma (84 SUt. at L. 272, chap.
3335, Comp. SUt. 1913, § 5245); New
Mexico (36 SUt. at L. 561, chap. 310);
Arizona (86 SUt. at L. 672, chap. 810).
200-202
SUPREME COURT OF THE UNITED STATES.
Oct. Twm,
tbe lands, subject only to identification
which would relate back to the date of the
grant, and that ''any sale or disposAl" sub-
sequent to that date "was illegal and void."
It will be observed, however, that the lan-
guage used is not that of a present grant.
The expression is "shall be granted," and
these words are used both with respect to
the described sections and to the undefined
indemnity lands which would be received in
compensation for losses. In the latter ease,
there was obviously no present grant, and
none, we think, was intended in the former.
Attention is called to the words "herein
granted" in the proviso of the enabling act,
but this is a mere reference to what pre-
cedes, and does not change, or purport to
change, the terras of the donation. It must
have been manifest to Congress, executing
this definite policy with respect to the vast
area of the public lands, that not improba-
bly a long period would elapse in the case of
numerous townships before surveys would be
completed. Not only was it inevitable that
upon survey there would be found to be frac-
tional townships in which there would be
either no section sixteen, or thirty-six, or
only a portion of one or the other, but in
various instances there might be prior
claims, or actual settlements, or it might
appear before surveys were had that there
were important public interests which, in
the judgment of Congress, should be sub-
served by some other disposition of lands of
a particular character. On the other hand,
it was not important to the state that it
should receive specific lands, if suitable in-
demnity were given. It was in this situa-
tion that, in making its school grants to
the public-land states, Congress provided
that the described sections, or equivalent
lands if the former in whole or in part had
"been sold or otherwise been disposed of,"
should be granted. Whether or not provi-
sion had already been made for [201] the
sale or disposition of public lands within
the borders of the state at the time of its
admission, the language of the school grant
was substantially the same. And we think
that its import is clear. The designation of
these sections was a convenient method of
devoting a fixed proportion of public lands
to school uses; but Congress, in making its
compacts with the states, did not undertake
to warrant that the designated sections
would exist in every township, or that, if
existing, the state should at all events take
title to the particular lands found to be
therein. Congress did undertake, however,
that these sections should be granted un-
less they had been sold or otherwise dis*
posed of; that is, that on the survey, de-
fining ^e sections, the title to the lands
ahould pASB to the state provided sale
0O4
or other disposition had not previously
been made; and, if it had been made, thai
the state should be entitled to select equiva-
lent lands for the described purpose.
By the act of May 20, 1826, chap. 83 (4
Stat, at L. 179, Comp. SUt. 1913, § 4861),
there had been provision made for compen-
sation in the case of townships and fraction-
al townships, for which the stated ap-
propriation for school purposes had not been
made. In 1859, a further act was passed
( Feb. 26, 1859, chap. 58, 1 1 Stat, at L. 385,
Comp. Stat. 1913, § 4860), to the effect that
where settlement with a view to pre-emption
had been made "before the survey of the
lands in the field" on sections 16 or 36, these
sections should "be subject to the pre-emp-
tion claim of such settler." And it was
added — "if they, or either of them, shall
have been or shall be reserved or pledged for
the use of schools or colleges in the state or
territory in which the lands lie, other lands
of like quantity are hereby appropriated in
lieu of such as may be patented by pre-
emptors ; and other lands are also hereby ap-
propriated to compensate deficiencies for
school purposes where said sections sixteen
or thirty-six are fractional in quantity,
where one or both are wanting by [SOS]
reason of the township being fractional, or
from any natural cause whatever." These
lands were to be selected in accordance with
the principles of adjustment defined in the
act of 1826. These provisions were incor-
porated in §§ 2275 and 2276 of the Revised
SUtutes (Comp. Stat. 1913, §§ 4860, 4861).
And the latter were amended by the act of
February 28, 1891, chap. 384 (26 Stat, at L.
796, Comp. SUt. 1913, §§ 4860, 4861), whieh
in part provided: "And other lands of equal
acreage are also hereby appropriated and
granted, and may be selected by said state
or territory, where sections sixteen or thirty-
six are mineral land, or are included within
any Indian, military, or other reservation,
or are otherwise disposed of by the United
States." In this manner. Congress has
undertaken to discharge its obligation by
assuring to the states the equivalent of the
school-grant sections when these have ''been
sold or otherwise been disposed of."
The questipn now presented was not in-
volved in Ham v. Missouri, 18 How. 126,
15 L. ed. 334, or in Cooper v. Roberta, 18
How. 173, 15 L. ed. 338. The former case
related to the school grant to Missouri under
the act of March 6, 1820 (3 Stat, at L. 547,
chap. 22, Comp. Stat. 1913, § 6709, (42)).
Ham had been indicted for waste and tres-
pass on the 16th section of one of the town-
ships, and his conviction was affirmed. In
defense, he claimed title under a Spanish
grant. This had been rejected by the Board
of Commissioners in 1811, and it appeared
940 U. 8.
1915.
UNITED STATES t. MORRISON.
20^205
that the United States had full power of dit-
IKMition at the time of the donation to the
ctate. Referring to the provision for the
grant of equivalent lands, to take the place
•of those "sold or otherwise disposed of/' the
eourt said: "Sale, necessarily signifying a
Uigal sale by a competent authority^ is a dis-
position, final and irrevocable, of the land.
The phrase 'or otherwise dispose of must
signify some disposition of the property
equally efficient, and equally incompatible
with any right in the state, present or
potential, as deducible from the act of 1820,
and the ordinance of the same year." But in
the case cited there [203] had been no such
disposition. Reliance was placed by Ham
upon an act of 1828 (6 Stat, at L. 386,
chap. 135) confirming the grant to his
predecessors, but this confirmatory act ex-
plicitly provided that it should not '*preju-
•dice the rights of third persons, nor any
title heretofore derived from the United
States, either by purchase or donation."
And it further appeared that the survey had
been made of the land in question before the
•oonfirmatory act waa passed (see 18 How.
p. 134). In Cooper v. Roberts, supra,
the plaintiff asserted title under the
school grant made to Michigan (act
of June 23, 1830, 5 Stat, at L. 59,
chap. 121). The section 16 in controversy
had been surveyed in 1847. Sale had been
made by the state in February, 1851, and its
patent had issued in November of that year.
It was in 1850, after the lands had been sur-
veyed, that the defendant's grantor had ap-
plied to the officers of the land office to enter
the land, and the entry was allowed in 1852
'witli a reservation of the rights of Michigan,
which the Secretary of the Interior deemed
to be superior. It was in these circum-
stances, it being found that there was no
legal impediment through any legislation,
that the court held that the title had passed
to the state.
In the case of Heydenfeldt v. Daney Gold
A S. Min. Co. 03 U. S. 634, 23 L. ed. 905, 13
Mor. Min. Rep. 204, there had been a dis-
position of the land under the authority of
Congress between the date of the school
grant and the date of the survey. This case
arose under the school grant to Nevada (act
of March 21, 1864, 13 Stat, at L. 30, 32,
chap. 36), which was one of the exceptional
instEuices where words of present grant were
used, these, however, being qualified by the
cUuse relating to sale or other disposition.
The act provided: "That sections numbers
sixteen and thirty-six, in every township,
and where such sections have been sold or
otherwise disposed of by any act of Con-
gress, other lands equivalent thereto . . .
shall be, and are hereby, granted to said
state for the support of common schools."
«0 Ii. ed.
I The plaintiff claimed under a patent [204]
issued by the state of Nevada in 1868. The
land was mineral land, and the defendant
was in possession^ carrying on the mining
business, having obtained a patent from the
United States under the acts of July 26,
1866 (14 SUt. at L. 251, chap. 262), as
amended, and May 10, 1872 (17 Stat, at L.
91, chap. 152, Comp. Stat. 1013, § 4614).
The entry an4 claim of the defendant's
predecessors in interest were made in 1867,
prior to the survey of the section in ques-
tion. It was held that the lands were sub-
ject to the disposition of Congress until the
survey and its approval; and hence the
judgment in favor of the defendant was
affirmed. The words of present grant were
deemed to be restricted by the words of
qualification. The court said that it was
intended to place Nevada **on an equal
footing with states then recently admit-
ted. Her people were not interested in
getting the identical sections 10 and 36
in every township. Indeed, it could not be
known until after a survey where they
would fall, and a grant of quantity put her
in as good a condition as the other states
which had received the benefit of this
bounty. A grant, operating at once, an4 at-
taching prior to the surveys by the United
States, would deprive Congress of the power
of disposing of any part of tlie lands in Ne-
vada, until they were segregated from those
granted. In the mean time, further im-
provements would be arrested, and the per-
sons who, prior to the surveys, had occu-
pied and improved the country, would lose
their possessions and labor, in case it turned
out that they had settled upon the speci-
fied sections. . . . Until the atatu^ of
the lands was fixed by a survey, and they
were capable of identification, Congress re-
served absolute power over them; and if, in
exercising it, the whole or any part of a 16th
or 36th section had been disposed of, the
state was to be compensated by other lands
equal in quantity, and as near as may be in
quality. By this means the state was fully
indemnified, the settlers ran no risk of
losing the labor of years, and Congress was
left [205] free to legislate touching the
national domain in any way it saw fit, to
promote the public interests." It is said
that the Nevada school grant added the
words "by any act of Congress" to the
phrase "otherwise disposed of," and that
the former words are not in the Oregon
grant. But this does not mark a distinc-
tion, as "otherwise disposed of," of course,
implies that the disposition shall be by
competent authority. It is also urged
that the court emphasized the fact that
there had been no sale or disposition
of the public lands in Nevada prior to
«N^207
SUPREME COURT OF THE UNITED STATES.
Oct. Temm,
the enabling act, and therefore that the
clauae oould refer only to futnre disposi-
tion; whereas, in the case of Oregon, tiiere
had been earlier provisions for the disposal
of the publid domain. But Congress nsed
the same phrase substantially in nearly
every one o! the school grants, and it was
the manifest intention to place the states on
the same footing in this matter. The same
elause, relating to the same subject, and
enacted in pursuance of the same policy, did
not have one meaning^ in one grant and a
different meaning in another; it covered
other dispositions, whether prior or sub-
sequent, if made before the land had been
appropriately identified by survey and title
had passed. Nor is a distinction to be ob-
served between mineral lands and other
lands, if in fact CongresA disposed of them.
The validity of the disposition would not be
affected by the character of the lands, al-
though this might supply the motive for the
action of Congress. We regard the decision
in the Heydenfeldt Case as establishing a
definite rule of construction.
In opposition to this definition of the ef-
fect of the donation for school purposes, the
appellees rely upon what was said in Beech-
er V. Wetherby, 96 U. S. 517, 24 L. ed. 440.
That was an action of replevin to recover
logs cut on a section 16 in Wisconsin which
had been granted by the enabling act of 1846
(9 Stat, at L. 68, chap. 89, Comp. Stat. 1913,
I 6799 (42)). The exterior lines of the
township in which the land was [206] situ-
ated were run in October, 1862, and the sec-
tion lines in May and June, 1864; and the
defendant claimed under patents from the
state issued in 1866 and 1870. The land had
been occupied by the Menominee Indians,
but their right was only that of occupancy.
'The fee was in the United States, subject
to that right, and could be transferred by
them whenever they chose." By the treaty
of 1848 (9 Stat, at L. 952) these Indians
agreed to cede to the United States all their
lands in Wisconsin, it being stipulated that
they should be entitled to remain on the
lands for two years. In view of their un-
willingness to withdraw, a further act was
passed (10 Stat at L. 1064) by which a
tract was assigned to them embracing the
land in controversy. Subsequently, a portion
of this reservation was assigned by another
treaty to the Stockbridge and Munsee tribes,
and for the benefit of the latter Congress
passed the act of February 6, 1871 (16 Stat,
at L. 404, chap. 38), providing for the sale
of certain townships. The plaintiff asserted
title under patents issued by the Utaited
States in 1872 pursuant to this act. It ap-
peared, however, that the Indian occupation
of the land had ceased before the logs were
cut The court held that the title had vest-
S00
ed in the state, and hence that the plaintiff
had acquired no title by his patents from
the United States. It was said in the opin-
ion that by the compact with the state (the
school grant) the lands were ''withdrawn
from any other disposition, and set apart
from the public domain, so that no subse-
quent law authorizing a sale of it could be
construed to embrace them, although thej
were not specially excepted;" and that
after this compact "no subsequent sale or
other disposition . . . could defeat the
appropriation." But it was also stated
that "when the logs in suit were cut, those
tribes (Stockbridge and Munsee) had re-
moved from the land in controversy, and
other sections had been set apart for their
occupation." That is, the lands had been
surveyed in 1854; prior to [207] that time,
there had been no other disposition of the
fee by the United States; the title had
vested in the state, subject at most to the
Indian occupancy, and this had terminated.
There was abundant reason for the decisio*
that these lands were not embraced, and
were not intended to be embraced, in the
provisions for sale made by the act of 1871.
What was said in the opinion must be con-
sidered in the light of the facts (Weyer-
haeuser V. Hoyt, 219 U. S. 380, 394, 66 L. ed.
268, 264, 31 Sup. Ct. Rep. 300). The
Heydenfeldt Case was not cited and cannot
be regarded as overruled. See New York
Indians v. United States, 170 U. S. 1, 18,
42 L. ed. 927, 933, 18 Sup. Ct. Rep. .531;
Minnesota v. Hitchcock, 186 U. S. 375, 399-
401, 46 L. ed. 966, 967, 968, 22 Sup. Ct. Rep.
660.
The rule which the Heydenfeldt Case
established has, we understand, been uni-
formly followed in the land office. After re-
viewing the cases, Secretary Lamar con-
cluded (December 6, 1887. Re Colorado, 6
I>and Dec. 412, 417) that thi? school grant
"does not take effect until after survey, and
if at that date the specific sections are in
a condition to pass by the grant, the abso-
lute fee to said sections immediately vests
in the state, and if at that date said see-
tions have been sold or disposed of, the
state takes indemnity therefor." And see, te
the same effect, Niven v. California, 6 Land
Dec. 439; State v. Kuhn, 24 Land Dec. 12»
18; Stote v. Wright, 24 Land Dec. 64, 67;
SUte V. Riley, 34 Land Dee. 657, 660;
State V. Thomas, 36 Land Dec. 171, 173; Re
F. A. Hyde ft Co. 37 Land Dec. 164, 166;
Re Montana, 38 Land Dec. 247, 260.
The case of United States v. Thomas, 161
U. S. 677, 38 L. ed. 276, 14 Sup. Ct. Rep.
426, involved the Wisconsin school grants
the question being whether the Federal
court in that state had jurisdiction to try
an Indian charged with the murder of an-
940 U. 8*
1915.
UNITED STATES t. MORRISON.
907-210
othor Indimn within the limits of section 16
in a township forming part of an Indian
reservation. It appeared that by treaty
prior to the enabling act of 1846 the
Indians had stipulated for the right of oc-
cupancy; that they had nerer been removed
from the lands; and that, by treaty [808]
of 1854, the particular reservation in ques-
tion had been estabUshad. The lands were
not surveyed until 1865. From any point of
view it was clear that the title had never
vested in the state, except as subordinate to
the right of occupation of the Indiana, and
it was held that the Federal Jurisdiction ex-
isted. Minnesota v. Hitchcock, supra, was
a suit brought by the state to enjoin the
Secretary of the Interior from se)U^g any
sections 16 and 36 in the Red Lake Indian
Reservation, the sales having been author-
ised by the act of January 14, 1880 (25
Stat, at L. 642, chap. 24), which was passed
for the relief of the Chippewa Indians. The
school grant to Minnesota was made by the
enabling act of 1857 (11 Stat, at L. 167,
chap. 60, Comp. Stat 1013, | 6700 (42)).
The lands in question, however, were not
surveyed until after Uie act of 1880 had
been passed, and the agreement it contem-
plated had been made with the Indians. The
oourt dismissed the bill of the state. It was
held that when Congress undertook in 1889
"to make provision for this body of lands,
it could have, by treaty taken simply a ces-
sion of the Indian ri^^ts of occupancy, and
thereupon the lands would have become pub-
lic lands and within the scope of the school
grant;" but that Congress also 'Hiad the
power to make arrangements with the
Indians by which the entire tract would be
otherwise appropriated. . . . Before any
survey of the lands, before the state right
had attached to any particular sections, the
United States made a treaty or agreement
with the Indians, by which they accepted a
cession of the entire tract under a trust for
its disposition in a particular wiiy." The
Heydenfeldt case was cited with approvaL
Referring to the Joint resolution passed by
CongreBB cm March 3, 1857 (11 Stat, at L.
254), to the effect that in case of settle-
ments on the 16th or 36th sections, their se-
lection as town sites, or their reservation for
publie uses prior to survey, other lands
should be selected in lieu thereof, [209]
and to the contention of the state that the
"public uses" thus oontemf^ted were "gov-
ernmental uses," the eourt said: "It is un-
necessary to rest upon a determination of
this question. We refer to the resolution as
an express declaration by Congress that the
school sections were not grant^ to the state
absolutely, and beyond any further control
by Congress, or any further action under the
general land laws. As in Heydsnlddt T.
60 L« ed.
Dan^ Gold k 8. Min. Co. supra, priority
was given to a mining entry over tiie state's
school right, so here, in terms, preference is
given to private entries, town-site entries, or
reservations for public uses. In other
words, the act of admission, with its clause
in respect to school lands, was not a
promise by Congress that under all circum-^
stances, either then or in the future, these
specific school sections were or should be-
come the property of the state. The possi-
bility of other disposition was contemplated,
the rig^t of Congress* to make it was recog-
nised, and provision made for a selection of
other lands in lieu thereof. In this con-
nection may also be noticed the act of Febru-
ary 28, 1801, although passed after the ap-
proval of the agreement for the cession of
these lands by the Indians. That act in
terms authorised the selection of other lands
"where sections sixteen or thirty-six are
mineral land, or are included within any
Indian, military, or other reservation, or
are otherwise disposed of by the United
SUtcs."
The case of Wisconsin v. Hitchcock, 201
U. S. 202, 50 L. ed. 727, 26 Sup. Ct. Rep.
408, followed United States v. Thomas,
and Minnesota v. Hitchcock, supra. In
Alabama v. Schmidt, 232 U. S. 168, 58 L.
ed. 555, 34 Sup. Ct. Rep. 301, there was no
question as to the acquisition of title by the
state. It was held that, assuming that the
state had acquired tiUe to the lands em-
braced in the school grant, it had authority
to subject the lands in its hands to the ordi-
nary incidents of other titles in the state,
including that of adverse possession.
[810] We conclude that the state of Ore-
gon did not take title to the land prior to
the survey; and that until the sections
were defined by survey and title had vested
in the state. Congress was at liberty to
dispose of the land, its obligation in that
event being properly to compensate the
state for whatever deficiencies resulted.
The remaining question, then, is whether
there had been a survey prior to an au-
thorized withdrawal for forestry purposes.
The surveying of the public lands is an ad-
ministrative act confided to the control of
the Commissioner of the Qeneral Land Of-
fice under the direction of the Secretary of
the Interior. Act of July 4, 1836, chap. 352,
5 Stat, at L. 107, Rev. Stat, f 453, Comp.
Stat. 1018, 1 600. It was competent for the
Commissioner, acting within this authority,
to direct how surveys should be made, and
to require that they should be subject to his
examination and approval before they were
filed as officially complete in the local land
office. Cragin v. Powdl, 128 U. S. 601, 607,
608, 32 L. ed. 566, 568, 0 Sup. Ct. Rep. 208;
Tid»baT. Wilhoit, 188 U. 8. 134, 148, 144, 34
210-213
SUPREME* CX)URT OF THE UNITED STATES.
Oct. Tebm,
L. ed. 887, 890, 891, 11 Sup. Ct. Hep. 270;
Knight V. United Land Asbo. 142 U. S. 161,
177, 182, 35 L. ed. 974, 979, 981, 12 Sup.
Ct. Rep. 258; Michigan Land & Lumber Co.
V. Rust, 168 U. S. 589, 594, 42 L. ed. 591,
593, 18 Sup. Ct. Rep 208. This was a con-
tinuing authority which was not suspended
by the school grant to the state. The subse-
quent adoption of rules relating to surveys
did not alter the terms of the grant, but
these rules did control the administrative
action, which, in view of the terms of the
grant, was necessary to make the grant ef-
fective. By order of April 17, 1879, the
Commissioner required that surveyors
general should not "file the duplicate plats
in the local land offices until the duplicates
have been examined in this office and ap-
proved," and the surveyors general "of-
ficially notified to that effect." Re F. A.
Hyde k Co. 37 Land Dec. 165. It cannot be
doubted that this requirement was within
the authority of the Commissioner (see
Tubbs V. Wilhoit, 138 U. S. 134, 143, 144, 34
L. ed. 887, 890, 891, 11 Sup. Ct. Rep. 279) ;
and it necessarily follows that the making
of the field survey and its approval [811]
by the surveyor general of Oregon did not
make the survey complete as an official act.
It still remained subject to the exami-
nation and approval of the Commissioner,
and for that purpose copies of the plat of
survey and field notes were transmitted to
the Commissioner, who, not being satisfied,
required a supplemental report. The mat-
ter was still in abeyance when the lands in
controversy were withdrawn for forestry
purposes by the Secretary of the Interior on
December 16, 1905. Reference is made to
the terms of the territorial act of 1848
(supra) with respect to the reservation of
the described sections when the lands were
"surveyed . . . preparatory to bringing
the same into market," but this provision
furnishes no ground for the contention that
an incomplete and unapproved survey was
intended. Much less can it be said that, un-
der the grant of the enabling act of 1859, the
title would pass at any intermediate stage of
the survey. Nor is there merit in the con-
tention that is based on § 2275 of the Re-
vised Statutes as amended by the act of
February 28, 1891 (supra), protecting
settlements when made "before the survey
of the lands in the field." That act imposes
no limitation upon the authority of Con-
gress to dispose of the lands before title
passes to the state; and if title passes upon
survey, it must be upon a survey duly com-
pleted according to the authorized regula-
tions of the Department. It is said, however,
that in this case the plat was officially
used by the Commissioner of the General
Land Office and the Secretary of the In-
terior in connection with the withdrawal un-
der consideration, and hence that the survey
must be deemed to have been officially ap-
proved. Wright V. Roseberry, 121 U. S. 488,
517, 30 L. ed. 1039, 1047, 7 Sup. Ct. Rep.
985; Tubbs v. Wilhoit, supra. It is true
that the lands withdrawn were conveniently
described according to townships, and that
the official correspondence referred to an
accompanying diagram showing the town-
ships and sections. But neither the [218]
correspondence nor the diagram contained
any reference to a survey of the land«
in question or constituted an approval of a
survey. These lands still remain to be of-
ficially defined in the appropriate manner,
and according to the agiced statement the
survey was accepted by the Commissioner
of the Oeneral Land Office, as stated, on
January 31, 1906, and was filed in the local
land office on November 16, 1007, entries'
during the interval having been sus-
pended pending certain investigations.
We think that it is immaterial that
the survey was finally approved by the
Commissioner without modification, for
pending the approval it remained in his
hands, officially incomplete, awaiting the re-
sult of his examination. Again, it is nrged
that the survey, when approved, related back
to the date of the grant, or at least to the
date of the survey in the field. The former
contention is but a restatement in another
form of the argument that Congress could
not dispose of the land pending the surrey,
which, as we have seen, is answered by the
terms of the grant; and if Congress had this
power of disposition, it must mean that the
lands could be disposed of under the au-
thority of Congress at any time before the
survey became a completed administrative
act. The doctrine of relation cannot be in-
voked to destroy this authority.
In establishing and enlarging the'Cascade
Range Forest Reserve, the President acted
under the express authority conferred by the
acts of March 3, 1891, chap. 561, § 24 (26
Stat, at L. 1095, 1103, Comp. Stat. 1013, §§
5116, 5121), and June 4, 1897, chap. 2 (30
Stat, at L. 11, 36). The power to establish
the permanent reservation included the
power to make temporary withdrawals
(United States v. Midwest Oil Co. 236 U. 8.
459, 476, 59 L. ed. 673, 682, 35 Snp. Ct. Rep.
309) ; and the order of the Secretary of the
Interior, made on December 16, 1905, mnst
be regarded as the act of the President.
Wilcox V. Jackson, 13 Pet. 498, 10 L. ed.
264. The disposition by the President, un-
der the authority of Congress, was a dis-
position by Congress.
[813] It is finally contended that the
proclamation by the President on January
25, 1907 [34 SUt. at L. 3270], expressly ez-
940 V. 8.
1915.
ILLIN0I8 SURETT 00. t. UNITED STATES.
218, 214
oq>ted tbe lands in question. The exception
WM "of all lands which at this date are em-
braced within any withdrawal or r&erva-
tion for any use or purpose to which this
reservation for forest uses is inconsistent.**
The erideht purpose of the proclamation
was to confirm and make permanent the
prior withdrawal for forestry purposes, not
to override it. The very object of that
withdrawal was to prevent claims of title
from thereafter attaching to the lands. And
the reference in the exception to "any with-
drawal or reservation," as we view it, was
to withdrawals or reservations by the gov-
ernment itself for other and inconsistent
uses, and was with a view of avoiding con-
fusion in governmental action, not to let in
subsequently accruing claims of title under
school grants as to which Congress had indi-
cated its purpose to make compensation for
deficiencies when lands which otherwise
would have passed to the state thereimder
had been duly taken for reservations. The
contention that the lands were not "public
lands" imtil surveyed, and hence were not
subject to reservation by the President un-
der the act of Congress, is plainly without
basis. See Bev. Stat, g 453, Comp. Stat.
1913, I 609. The provisions for forest
reservations refers to any part of the public
lands which were subject to the disposition
of Congress. It is also argued that the
state, under the act of February 28, 1891
(supra), has the right to await the "ex-
tinguishment" of the "reservation," and the
"restoration of the lands therein embraced
to the public domain," and then to take the
described sections. We are not called upon
to consider any such question here, and we
express no opinion upon it, as there has
been no extinguishment of the reservation,
and from any point of view it must be con-
cluded that no title had passed to the state
when it made the conveyance under which
the appellees claim.
[214] The decree of the Circuit Court of
Appeals is reversed, and that of the Dis-
trict Court is affirmed.
It is so ordered.
Mr. Justice McReynolds took no part in
the consideration and decision of this case.
ILLINOIS SURETY COMPANY, Plff. in
Err.,
V.
UNITED STATES to the use of J. A.
PEELER, L. M. Peeler, and P. A. Peeler,
Partners, Trading under the Firm Name
of Faith Granite Company, et al.
(See S. C. Report^'s ed. 214-227.)
Action — prematurity ^ suit on bond
partment of the basis of settlement with a
public contractor fidopted by the supervis-
ing architect, who recommended that only
actual damages be charged against the con-
tractor, and that the proper voucher be is-
sued in his favor for the specific amount
found to be the balance due, is, although
the check in payment was not then issu^,
the "final settlement" of the contract, with-
in the meaning of the provision of the act
of August 13, 1894 (28 Stat, at L. 278,
chap. 280), as amended by the act of Feb-
ruary 24, 1906 (83 Stat, at L. 811, chap.
778, Comp. SUt. 1913, § 6923), that no suit
on a contractor's bond shall be brought by
persons supplying him with labor or ma-
terials within six months after the perform-
ance and final settlement of the contract.
[For other casen. see Action or Suit, I. b. In
Digest 8ap. Ct. 1908.]
Pleading « amendment « curing de-
fective statement of right of action
^ suit on bond of public contractor.
2. The court may permit the defective
statement in the complaint of an existing
right of action by subcontractors under the
act of August 13, 1894 (28 Stat, at L. 278,
chap. 280), as amended by the act of Feb-
ruary 24, 1005 (33 Stat, at L. 811, chap.
778, Comp Stat 1913, § 6923), upon the
bond of a public contractor, to be corrected
by the addition of appropriate allegations
showing that the action was not premature-
ly brought.
[For other casex, see Pleading, I. n, in Dleest
Sup. Ct, 1908. J
Action « law or equity « suit on bond
of public contractor.
3. A suit by laborers and materialmen,
brought in the name of the United States
under the authority of the act of August
13, 1894 (28 SUt. at L. 278, chap. 280),
as amended by the act of February 24, 1005
(33 Stat, at L. 811, chap. 778, Comp. Stat.
1913, § 6923), upon the bond of a public
contractor, conditioned for the prompt pay-
ment bv him of all persons supplying nim
with labor or material in the prosecution of
the work provided for in such contract, is
one at law, and not in equity, although the
statute gives priority to the claim or judg-
ment of the United States, and provides
that the aggregate recovery shall not exceed
the penalty on the bond, and that if the
total amount due exceeds such penalty,
judgment shall be given to each creditor
pro roia of the amount of the recovery.
[For other cases, see Action or Soit, L a, 1.
in Digest Sap. Ct 1908.]
Parties * suit on bond of public con-
tractor ^ substitution.
4. The participation by an alleged as-
signee solely for its own benefit in a suit
by laborers and materialmen, brought in the
name of the United States, under the au-
thority of the act of August 13, 1894 (28
Stat, at L. 278, chap. 280), as amended by
the act of February 24, 1905 (33 Stat, at
L. 811, chap. 778, Comp. Stat. 1913, § 6923),
upon the fx>nd of a public contrs^ctor, is
not the equivalent of the filing of a claim
on behalf of the assignor, who was not one
of public contractor.
1. The approval by the Treasury De- of the plaintiffs, and on whose behalf there
«0 L. ed. 39 009
SVPREME COURT OF THE UNITED STATES.
Oct. TwKMr
waa DO Intcrrentioi
and doe* not juitify
' I ftTor of the
I purported m-
Argued Janumrj 14, 1910. Decided Feb-
ruary 21, 1918.
IN ERROK bo the United SUtea Cirevlt
Court of Appeals for the Fourth Circuit
to review a judgment whicii affirmed ■ judg-
ment of the Diitrict Court tor the Eaateru
District of South Carolina in (avor of plain-
tiff in a BUit by aubcontracton upon the
bond of a public contractor. Modified bj
Btrilcing out a proviaion in favor of one of
the Bubcontraetora, and aa tbua modified af-
See eame case below, 131 C. C. A. 476,
215 Fed. 334.
The facta are atated in the opioioD.
Mr. Brnnm E. HInion argued Uie cauae
and filed a brief for plaiDtiff in error:
The right of action is in equity, and not
at law.
United SUtea use of Brading-Marshal
Lumber Co. v. VVelia, 203 Fed. 146; Illinois
SuTPty Co. ¥. United SUtea, 129 C. C A.
6B4, 212 Fed. 136; United SUtea nae of
Pittaburg Planing Mill Co. v. Scheurman,
SIB Fed. eiS.
An action which ia inherently equiUble
in lU character cannot be adjudicated in a
court of law, even by consent of the parties.
Tbompaon v. Central Ohio R. Co. 6 Wall.
134, 18 L. ed. 766; Lindsay v. Firet Nat.
Bank, 1S6 U. S. 486, 39 L. cd. SOS, 16 Sup.
a. Rep. 472; Levi v. Mathewa, 76 C. C. A.
122, 146 Fed. 102.
This action was prematurely brought.
Stitser r. United States, 106 C. C A. 61,
182 Fed. 613; United SUtea nae of SUrrett-
Fielda Co. t. MassachusetU Bonding A Ins.
Co. 216 Fed. 241; UniUd SUtes ex rel.
Brown-Ketcfaam Iron Worlu v. Robinson,
ISO C. 0. A. 432, 214 Fed. 38; United SUtes
use of Wataon-FUgg Engineering Co. v.
Winkler, 162 Fed. 397; United SUtea nse
of Chief AU Over v. Bailey, 207 Fed. TS3.
A complete exposition of the govern-
ment's method of settling ite aeoounU will
be found in McKnlght's Case, 13 Ct. Q. 299.
Each of the Departments has more or
leas different methods of procedure. The
Treasury Department . has the method
aliown in this caae. The method of the War
Department is different (United SUtea uae
of SUrrett-Fielda Co. v. MassachusetU
Bonding ft Ins. Co. 216 Fed. 241). The
method of the Navy Department appe«rt to
be diffovnt from dther of thete (Stitaor t. '
#^0
United States, 105 C. C. A. 61, 182 Fed.
513). The method of the Interior Depart-
ment appears to be still difTcrent (Unitad
SUtea use of Chief AU Over t. Bailey, 20T
Fed. 783).
The court was without authority to rai-
der judgment for the benefit of the Carolina.
Electrical Company.
Miller v. M'Intyre, Q Pet. 61, a L. ed. 820;
Hewitt V. Pennsylvania Steel Co. 24 Fed.
370; Miller v. Pollock, BB Pa. 202; First
' Nat. Bank v. Sfaoetnaker, 117 Pa. 94, 2 Am.
St. Rep. 649, 11 Atl. 304.
The amended complaint and petitions did
not relate back to the commencement of
the action.
Lilly V. Charlotte, C. 4 A. R. Co. 32 S. C.
142, 10 8. E. 932; Coker v. Monaghan Mills,
119 Fed. 706; St Louia A S. F. R. Co. v.
Loughmiller, 193 Fed. 603; Brinkmeier r.
Missouri P. R. Co. 224 U. S. 269, 66 L. ed,
759, 32 Sup. Ct. Rep. 412.
Messrs, Benjnmln E. Pierce and D. W.
Roblnaon argued the cause, and, with Mr.
John L. Rendleman, filed a brief for de-
fendants in error ;
Settlement may mean, and ia aometimea
used to mean, payment; but we submit that
it ia a much broader term; It doea not.
neceeaarily mean payment, but, in iU gen-
erally accepted meaning, ia an adjustmeni
or agreement between the parties as the-
conclusion of niattera between them.
United SUtea ex ref. Brown-Ketcban
Iron Works v. Robinson, 130 C. C. A. 432,
214 Fed. 38; Stitzer v. United SUtes, lOS
C. C. A. 66, 182 Fed. 613; United SUtea
use of Watson-Flagg Engineering Co. t.
Winkler, 162 Fed. 401; United Staten uaa-
of Chief All Over v. Bailey, 207 Fed. 783;
United SUtes use of SUrrett-Fields Co.
V. MaasachusetU Bonding A Ina. Co. 21S
Fed. 243; Bouvier'a Law Diet. Settlement;
Century Diet. Settlement; Rose v. Bradley,
01 Wis. 619, 66 N. W. 609; Sims t. Waters,
65 Ala. 442; Phipps v. WillU, 63 Or. IBO,
B6 Pac. 866, 99 Pac. 935, 18 Ann. Cm. 119;
Toombs V. Stockwcll, 131 Mich. 633, 92 N.
W. 288; Auierau v. Naglee, 74 Cal. 60, 1ft-
Pac. 371; Greene County t. light, 72 Ark.
41, 77 S. W. 916; Miller t. Conaolidatad
Patrons & F. Mut. Ins. Co. 113 Iowa, 211,
84 N. W. 1049; Jackson v. Ely, 67 Ohio St.
460, 49 N. E. 792; Pomeroy T. MiUs, ST
N. J. Eq. 678; Alben v. MerchanU' Excb.
140 Mo. App. 446, 120 S. W. 139; Roberto
V. Spencer, 112 Ind. 86, 13 N. £. 129; 7
Words * Phrases, 6446, 6447. and oases.
The settlement made by the Department,
and ite rulings and constructions of th*
aUtntea, are entitled to and are given great
weight by the courts.
United SUtes t. Cerecedo Hermanoa T
S40 V. S.
1915.
ILLINOIS SURETY CO. v. UNITED STATES.
CkMopafiia, 200 U. 8. 330, 52 L. ed. 821, 28
Siq>. Ct. Rep. 532; Jacobs ▼. Prichard, 223
U. S. 214, 56 L. ed. 400, 32 Sup. Ct. Rep.
280; United States v. Hammers, 221 U. S.
225, 226, 55 L. ed. 714, 715, 31 Sup. a.
Hep. 503.
It is the settled policj of the court
that this act shall receive a liberal con-
struction so as to advance its purpose.
United States use of Hill ▼. American
Surety Co. 200 U. S. 208, 50 L. ed. 440, 26
Sup. Ct. Rep. 168; Mankin v. United States,
215 U. S. 530, 54 L. ed. 317, 30 Sup. Ct. Rep.
174; Title Guaranty ft T. Co. t. Crane Co.
210 U. S. 33, 34, 55 L. ed. 77, 31 Sup. Ct.
Rep. 140; United States use of Alexander
Bryant Co. v. New York Steam Fitting Co.
235 U. S. 327, 50 L. ed. 253, 35 Sup. Ct. Rep.
108; Title Guaranty ft T. Co. v. Puget
Sound Engine Works, 80 C. C. A. 624, 163
Fed. 168; Equitable Surety Co. t. United
States, 234 U. S. 455, 456, 58 L. ed. 1306,
1307, 34 Sup. Ct. Rep. 803; United States
V. Freeman, 8 How. 556, 11 L. ed. 724.
The amendment was clearly within U. S.
Rev. SUt. § 054, Comp. Stat. 1013, § 1591 ;
McDonald ▼. Nebraska, 41 C. C. A. 284, 101
Fed. 171; 4 Fed. Stat. Anno. 507, and cases;
2 Fed. Stat. Anno. Supp. 1443, 1444; Texas
ft P. R. Co. T. Cox, 145 U. S. 503, 597, 606,
36 L. ed. 820, 831, 833, 12 Sup. Ct. Rep. 005;
Missouri, K. ft T. R. Co. ▼. Wulf , 226 U. S.
576, 57 L. ed. 363, 33 Sup. Ct. Rep. 135, Ann.
Cas. 1014B, 134; Athintio ft P. R. Co. v.
Laird, 164 U. S. 401, 41 L. ed. 488, 17 Sup.
Ct. Rep. 120.
The law of the United States governs,
and not the law or rules of the particular
state.
Mexican C. R. Co. t. Duthie, 189 U. S. 78,
47 L. ed. 717, 23 Sup. Ct. Rep. 610; Van
Doren y. Pennsylvania R. Co. 35 C. C. A.
200, 03 Fed. 260; Manitowoc Malting Co. v.
Fuechtwanger, 160 Fed. 083.
The statute invests the courts of the
United States with large discretion in per-
mitting the correction of defects in plead-
ings and process by amendment, and rulinics
of this character constitute no ground for
reversal unless the discretion is grossly
abased.
Great Northern R. Co. v. Herron, 68 C. C.
A. 601, 136 Fed. 40; Mexican C. R. Co. v.
Dothie, 180 U. S. 78, 47 L. ed. 717, 23 Sup.
Ct. Rep. 610.
Where the question of failure of plead*
ings to show jurisdiction is raised in the
trial court, it ^uld permit amendment for
the purpose of remedying the defect. Where
the Supreme Court has reversed and re-
manded the cause for failure of record to
show Juriadiction in the lower court, the
latter may permit amendment to show that
jurisdiction really existed when suit was
60 L. ed.
brought, if the facts warrant it. Or the
Supreme Court, in its mandate, may direct
that amendment be permitted.
1 Rose's Code of Fed. Proc. § 0, p. 65;
Howard v. De Cordova, 177 U. S. 614, 44 L.
ed. 010, 20 Sup. Ct. Rep. 817 ; King Bridge
Co. ▼. Otoe County, 120 U. S. 227, 30 L. ed.
624, 7 Sup. Ct. Rep. 552; Springstead v.
Crawfordsville State Bank, 231 U. S. 542, 58
L. ed. 856, 34 Sup. Ct. Rep. 105; ^enard v.
Goggan, 121 U. S. 253, 30 L. ed. 014, 7 Sup.
Ct. Rep. 873; Metcalf v. Watertown, 128
U. S. 500, 32 L. ed. 544, 0 Sup. Ct. Rep. 173 ;
Campbell v. Johnson, 02 C. C. A. 566, 167
Fed. 102.
Whether we consider the conditions pre-
scribed by the statute in the nature of a
statute of limitation or as an essential con-
dition to the success of plaintiffs right,
any amendment relates to the commence-
ment of the action, and the limitation of
six months and one year, respectively, runs
to the original commencement of the ac-
tion, and not to the date of the amend-
ment.
Patilk) V. Allen -West Conunission Co. 65
C. C. A. 510, 131 Fed. 680; Armstrong Cork
Co. V. Merchants' Refrigerating Co. 107 C.
C. A. 00, 184 Fed. 190; McDonald v. Ne-
braska, 41 C. C. A. 287, 101 Fed. 171 ; Van
Doren v. Pennsylvania R. Co. 85 C. C. A.
203, 03 Fed. 271; Sanger v. Newton, 134
Mass. 308.
The rights of interveners in this case are
in nowise affected by a nonsuit of plain-
tiff.
United States use of Port Blakely Mill
Co. V. Massachusetts Bonding ft Ins. Co. 108
Fed. 027 ; Title Guaranty ft T. Co. v. Crane
Co. 210 U. S. 24, 55 L. ed. 72, 31 Sup. Ct.
Rep. 140; Title Guaranty ft T. Co. v. Puget
Sound Engine Works, 80 C. C. A. 618, 163
Fed. 168; 17 Am. ft Eng. Enc. Law, 2d ed.
185; 11 Enc. PI. ft Pr. 500; Poehhnann v.
Kennedy, 48 Cal. 207.
The court had a right, and it was its
duty, to render judgment in favor of the
real party in interest without regard to the
matter of form, and to make such one a
real party to the action.
Missouri, K. ft T. R. Co. v. Wulf, 226
U. S. 576, 57 L. ed. 363, 33 Sup. Ct. Rep.
135, Ann. Cas. 1014B, 134; McDonald v.
Nebraska, 41 C. C. A. 287, 101 Fed. 171.
The proceeding under this statute is an
action at law.
United States v. Congress Constr. Co. 222
U. S. 100, 56 L. ed. 163, 82 Sup. Ct. Rep.
44; United States use of Gibson Lumber
Co. T. Boomer, 106 C. C. A. 164, 183 Fed.
726; Stitxer v. United States, 105 C. C. A.
51, 182 Fed. 513; Baker Contract Co. v.
United States, 122 C. C. A. 561, 204 Fed.
300; Eberhart v. United States, 123 C. C.
21G, sie
BUPREME COURT OF THE UNITED STATES.
Oct. Txui,
A. 181, 204 Fed. 884; United SUtea Fidel-
ity A G. Co V. United SUtei, 209 U. S. 308,
62 L. ed. 804, 28 Sup. Ct. Rep. 637; United
^tatei use uf Hill v, Ainertc&n Suretj Co.
200 U. S. 107, 50 L. ed. 437, 28 Sup. a. Hop.
188; Mankin v. United SUtea, 215 U. S. 633,
638, 64 L. ed. 315, 317, 30 Sup. Ct. Rep. 174;
United SUtee v. Frcel, 188 U. S. 300, 312,
4« L. ed. IITT, 1179, 22 8up. Ct. Rep. 876;
United Statea Fidelity £ G. Co. t. United
SUtes, 204 U. 8. 349, 51 L. ed. 618, 27 Sup.
Ct. Bep. 381; Davidson Broa. Marble Co. v.
United States, 213 U. S. 10, 63 L. ed. 076,
20 Sup. Ct. Rep. 324; United States use of
Alexander Bryant Co. v. New York Steam
Fitting Co. 233 U. S. 327, 50 L. ed. 253, 35
Sup. Ct- Rep. 108; United States ex rel.
Teraa Portland Cement Co. v. McCord, 233
U. S. 167, 58 L. ed. 803, 34 Sup. Ct. Hep.
660, 133 C. C. A- 074. 218 Fpd. 901; United
States <x rel. Brown-Ketcbani Iron Works
r. Robinson, 130 C. C. A. 434, 214 Fed. 38;
United Slates v. United SUtes Fidelity 4
a. Co. 23ti U. S. 512, 69 L. ed. 606, 35 Hup.
Ct. Rej>. 2<)8, 110 C. C. A. 187, 194 Fed. 611.
Messrs. Arthur W. Fairchild, Edwin S.
Mack, And Georse P. NJilter. as amiei curia,
filed a brier on behalf of the Weatera Lime
& Ceirient Company;
Before a suit maj' be commenced under
this statute, tiiere must be both complete
performanoe of Ihe contract and final set-
tlement of the contract.
United SUtes ex rel. Texas Portland Ce-
ment Co. V. McCord, 233 U. S. 157, 58 L. ed.
893. 34 Sup. Ct. Kep. 6.^0; United SUtes ex
rel. Proctor Mtg. Co. v. Staiinard, 207 Fed.
201 1 United Stales use of Chief All Over v-
Bailey, 207 Fed. 782; Stitier v. United
States, 106 C. C. A. 51, 182 Fed. 513; United
States use of Starrett-Fields Co. t. Mas-
sachusettB Bondini; & Ins. Co. 216 Fed. 241.
"Settlement"' means an adjustment of dif-
ferences bv aj^epment.
.15 (.'yc."l443.
The real (rround of the decision below
was that there was an adjustment by agree-
ment,—a proposition finding support in
other decisions.
IllinoU Surety Co. t. United States, 131
C. C. A. 476, 216 Fed. 334; United States
V. niinoia Surety Co. 141 C. C. A. 409, 226
Fed. 662; Stitzer r. United SUtes, 106 C.
C A. U, 162 Fed. G13.
If, in the sUtute under consideration,
the words "final settlement" refer to the
same thing referred to by the words "set-
tled" and "settlement," used in reference
to the settlement and adjustment of claima
and demands a^'ainst the United SUUs in
the Department of the Treasury, we have
then poinUd out to alt persona interested
the action for which they muat be on the
0H
alert, and the office in which they are to
seek tor the information. There ia fixed,
with a reasonable degree of definiteness, tba
thing, or action, which determine! the date
of final settlement. It is the only reason-
able construction U be given to the act If
the ordinary rule ia not to \m followed.
United SUtea use of Chief AU Over t.
Bailey, 207 Fed. 782; Uulted SUtei use of
SUrrett-Fielda Co. v. Maauehuaetto Bond-
ing &. Ine. Co. 21S Fed. 241.
Mr. Justice Hngbes delivered the opinion
of the court;
This action was brought by subeontraet-
ora under the ai:t of August 13, 18B4 (28
Stat, at L. 278, chap. 280), aa amended hf
the act of February 24, IBOS (33 8Ut. at L.
SI!, chap. 77H, Conip. Slat. 1913, § 6023),
in the name of the United SUtei, to reeover
upon a contractor's bond. The contract wu
for the construction of a postoffiee building
in Aiken, South Carolina (35 SUt. at L.
62S, 628, chap. 228), and the lUinoli
Surety Company (plaintilT in error)
uaa the aurcty. TIic summons and
complaint were filed on March 4, 191S.
Motion to dismias was made on Sep-
tember 22, 1B13, upon the ground that
the complaint did not allege that there had
been a completion and final settlement of
the contract between the contractor and tha
United SUtes; or that there had been audi
completion and settlement more than aiz
months, and within one year, prior to tba
commeni^enieiit of the action. [216] An-
other ground for the motion was that the
remedy under the statute was in equity. The
motion was denied, the court permitting th*
complaint to be amended so as to allege that
the contract was completed in July, 1B12;
that final settlement waa made by Dm '
Treasury Department on August 21, IB12;
and that no suit had been brought by the
United Ststes againat the contractor and hia
surety within the six months' period The
defendant, reserving iU objection to the
order denying the motion and allowing
the amendment, answered. Jury trial wu
waived by written stlpatatiou and the ca«
was heard by the district judge, who fonnd,
in sutiaUnce, the facU to be as followa;
That the building waa completed, and oa
August 21, 1912, the Treasury Departmcst
"sUUd and determined the final balaaea' to
be paid the contractor under the oonttaot
at the sum of tS.SBB.Ol; that thia "adjaafr-
ment and determination" waa eommiml-
cated to the contraotor; that on Angmt
26, 1012, a voucher of that dat« wu pc*-
pared by the Department, showing the bal-
ance, as above sUted, to which the om-
tractor appended his signature, certifying
the amount to be correct, and that <M
140 U. B.
1»15.
ILLIKOIS SURETY CO. t. UNITED STATES.
216-219
that day there was a definite acceptance
bj the contractor of the adjustment;
that on September 11, 1912, a check for
the above-mentioned sum was made out
by the disbursing clerk of the Department,
payable to the order of the contractor, who
thereafter collected it; that upon the re-
quest of the relator (the Faith Granite
Company) the Secretary of the Treasury,
on January 16, 1013, furnished to it a certi-
fied copy of the contract and bond, and
that on the 6th day of March, 1013, . . .
the present action was instituted by the
filing. . . . and by service of summons
and complaint on defendant Surety Com-
pany." It also appeared that no action had
been instituted by the United States upon
the bond within the six months allowed by
the statute.
[217] The district court gave judgment
for amounts found to be due to those for
whose benefit the action was brought, and
to certain interveners, and this judgment
was afiirmed by the circuit court of appeals,
131 C. C. A. 476, 215 Fed. 334. The conten-
tions presented are: (1) That the action
was instituted prematurely; (2) that the
amendment of the complaint was improper-
ly allowed; (8) that there was no right of
action at law; and (4) that the court erred
in giving judgment for the Carolina Elec-
trical Company, one of the subcontractors.
1. The statute provides: "If no suit
ahonld be brought by the United States
within six months from the completion and
final settlement of said contract, then the
person or persons supplying the contractor
^th labor and materials shall, upon appli-
cation therefor, and furnishing affidavit
• • . be furnished with a certified copy
of said contract and bond, upon which he or
^ey shall have a right of action, and shall
1^1 and arc hereby, authorized to bring suit
^^ the name of the United States . . .
against said contractor and his sureties, and
^ prosecute the same to final judgment and
«ecution; Provided, That ... it shall
iiot be commenced until after the complete
P^i'formance of said contract and final
*^tlement thereof, and shall be commenced
Within one year after the performance and
final settlement of said contract, and not
^ter." In United States ex rel. Texas Port-
land Cement Co. v. McCord, i 233 U. S. 167,
^^ L. ed. 803, 34 Sup. Ct. Rep. 650, we said
^^ this act created a new right of action
^pon terms named; and hc^cc that an
action brought by creditors before six
iBODths had expired from the time of the
"completion and final settlement of the con*
tnct" could not be sustained. In the pres-
iThe statute is set forth in full in the
aiirgin of the opinion in the case cited.
•• L. ad.
ent case, the plaintiff in error insists that
I there was no fi,nal settlement within the
meaning of the statute prior to the issue of
the check [218] for payment to the con-
tractor on September 11, 1012, and that in
this view the action was brought too soon.
It was evidently the purpose of the act of
1005 to remedy the defect in the act of 1804
by assuring to the United States adequate
opportunity to enforce its demand against
the contractor's surety, and priority with
respect to such demand. Mankin v. United
States, 215 U. S. 533, 538, 54 L. ed. 315,
317, 30 Sup. Ct. Rep. 174; United States ex
rel. Brown-Ketcham Iron Works v. Robin-
son, 130 C. C. A. 432, 214 Fed. 38, 30, 40.
Accordingly it was provided that if the
United States sued upon the bond, the de-
scribed creditors should be allowed to inter-
vene, and be made parties to the action, but
subject "to the priority of the claim and
judgment of the United States." And it
was only in case the United States did not
sue within the specified period that the
creditors could bring their action. With
this object in view, — ^to protect the priority
of the United States, and at the same time
to give a remedy to materialmen and labor*
ers on the contractor's bond and a reason-
able time to prosecute it (United Ststes
use of Alexander Bryant Co. v. New York
Steam Fitting Co. 235 U. S. 327, 337, 50 L.
ed. 253, 257, 35 Sup. Ct. Rep. 108),— it was
natural that the time allowed exclusively
for action by the government should begin
to run when the contract had been com-
pleted, and the government, in its final
adjustment and settlement according to
established administrative methods, had de-
termined what amount, if any, was due. Then
the government would have ascertained the
amount of its claim, if it had one, and could
bring suit if it desired. As such determina-
tions are regularly made in the course of
administration, nothing would seem to be
gained by postponing the date, from which
to reckon the six months, to the time of pay-
ment. Indeed, if an amount were found to
be due from the contractor, and he was in-
solvent, there might be no payment, and, if
payment were essential, there would be no
date from which the time for the bringing
of the creditors' action could be computed.
The pivotal words are not "final payment,"
but "final [210] settlement," and in view
of the significance of the latter term in
administrative practice, it is hardly likely
that it would have been used had it been
intended to denote payment. See United
States V. Illinois Surety Co. 105 Fed. 306,
300; United States use of Chief All Over t.
Bailey, 207 Fed. 782, 784; United States ez
rel. Brown-Ketcham Iron Works t. Robin-
son (C. 0. A. 2d 0.) iupra; United Statei
219-221
SUPREME COURT OF THE UNITED STATES.
Oct. Tbk»
use of StArrett-Fields Co. t. Massachusetts
Bonding & Ins. Co. 2] 5 Fed. 241, 244;
United States use of John Davis Co. v.
lUinois Surety Co. (CCA. 7th C) 226
Fed. 653, 662. The word ''settlement," in
connection with public transactions and ae*
counts, has been used from the beginning to
describe administrative determination of the
amount due. By the act of September 2,
1789, chap. 12 (1 Stat, at L. 65, Comp. Stat.
1913, § 235), establishing the Treasury De-
partment, the Comptroller was charged with
the duty of examining "all accounts settled
by the auditor." (§3.) And it was made
the duty of the auditor to receive "all pub-
lic accounts and after examination to certi-
fy the balance," subject to the provision
that any person whose account should
be so audited might appeal to the
iomptroller "against such settlement"
The act of March 3, 1809, chap. 28,
§ 2 (2 Stat. at'L. 536, Comp. Stat.
1913, § 406), gave authority to the
Comptroller to direct the auditor forthwith
"to audit and settle any particular ac-
count" which he was authorized to audit'
and settle, and "to report such settlemenf*
for his revision and final decision. (See
Rev. Stat. § 271.) By the act of March 3,
1817, chap. 45, § 2) 3 Stat, at L. 306, Comp.
SUt. 1913, § 308), it was provided that "all
claims and demands whatever, by the Unit-
ed States or against them, and all accounts
whatever, in which the United States are
concerned, either as debtors or as creditors,
shall be settled and adjusted in the Treas*
ury Department." This provision was car-
ried into § 236 of the Revised Statutes
(Comp. Stat. 1913, § 368). The words
"settled and adjusted" were taken to mean
the determination in the Treasury Depart-
ment for administrati\ (* purposes of the
state of the account and the amount due.
See 2 Ops. Atty. Gen. 518, 625, 629, 630. R*^
ferring [220] to this provision, it was said
by Mr. Chief Justice Waite, in delivering
the opinion of the court in Cooke v. United
States, 91 U. S. 889, 399, 23 L. ed. 237, 243:
"Thus it is seen that all claims against the
United States are to be settled and adjusted
'in the Treasury Department;' and that is
located 'at the seat of government.' The as-
sistant-treasurer in New Toric is a custo*
dian of the public money, which he naay pay
out or transfer upon the order of the proper
department or officer; but he has no author-
ity to settle and adju9t, that is to say, to
determme upon the validity of, any claim
against the government. He can pay only
after the adjustment has been made 'in the
Treasury Department,' and then upon drafts
drawn* for that purpose by the treasurer."
Again, the act of July 31, 1894, chap. 174
(28 Stat, at L. 162, 206-208, Comp. Stat.
•14
1913, S§ 57, 425), relating to the examin»>
tion of accounts by auditors, and revisions
of accounts, etc, provides, in § 8, that "the
balances which may from time to time be
certified by the auditors to the Division of
Bookkeeping and Warrants or to the Post-
master General upon the settlements of pub-
lic accounts shall be final and conclusive
upon the executive branch of the govern-
ment," except that any person whose ac
counts may have been "settled," the head of
the executive department, etc., to which the
account pertains, or the Comptroller of the
Treasury, may, witliin a year, obtain a re'
vision in the manner stated ; also that "any
person accepting payment under a settle*
ment by an auditor shall be thereby pre-
cluded from obtaining a revision of such
settlement as to any items from which pay
ment is accepted;" and, further, that "when
suspended items are finally settled a revi-
sion may be had as in the case of the origi-
nal settlement." By the act of May 28,
1896, chap. 252, § 4 (29 Stat, at L. 140,
179, Comp. Stat. 1913, § 390), the Secretary
of the Treasury was directed to make report
annually to Congress of such oflicers as were
found "upon final settlement of their ac-
counts" to have been indebted to the govern-
ment, [221] and to have failed to pay the
amount of their indebtedness into the
Treasury.
We should not say, of course, that in-
stances may not be found in which the
word "settlement" has been used in acts
of Congress in other senses, or in the sense
of "payment." But it is apparent that the
word "settlement" in connection with pub-
lic contracts and accounts, which are the
subject of prescribed scrutiny for the pur-
pose of ascertaining the rights and obliga-
tions of the United States, has a well-de-
fined meaning as denoting the appropriate
administrative determination with respect
to the amount due. We think that the
words "final settlement" in the act of 1005
had reference to the time of this determi-
nation when, so far as the government was
concerned, the amount which it was finally
bound to pay or entitled to receive was fixed
administratively by the proper authority.
It is manifestly of the utmost importance
that there should be no uncertainty in the
time from which the six months' period
runs. The time of the final administrative
determination of the amount due is a defi-
nite time, fixed by public record and readily
ascertained. As an administrative matter,
it does not depend upon the consent or
agreement of the other party to the eon-
tract or account. The authority to make
it may not be suspended, or held in abey-
ance, by refusal to agree. Whether the
amount so fixed is due, in law and fact, un-
240 U. 8.
1015.
ILLINOIS SUTRETY CO. t. UNITED STATES.
221-224
^onbtodly remains a question to be adjudi-
cated, if properly raised in judicial pro-
ceedings, but this does not afTect the
running of the time for bringing action un-
•der the statutory provision.
In the present case, the construction of
the building was in charge of the Secretary
of the Tronsiiry and under the general
•■upervision of the supervising architect.
Tlie Secretary of the Treasury was author-
ized to remit the whole or any part of the
stipulated liquidated damages as in his dls-
•cretion might be just and equitable. [222]
Act of June 6, 1002, 32 Stat, at L. 326,
chap. 1036, Comp. Stat. 1013, § 6022. On
August 21, 1012, the supervising archi-
tect having received the certificate of the
<^ef of the technical division of the
office that all work embraced in the
contract had been satisfactorily completed,
made his statement of the amount finally
due, recommending that only the actual
•damage (as stated) be charged against the
contractor, and tliat the proper voucher
ahould be issued in favor of the contractor
for the balance, to wit, $3,000.01. And, on
the same date, this recommendation was
approved and actual damages charged ac-
cordingly by direction of the Secretary of
the Treasury. This, in our judgment, was
the "final settlement" of the contract with-
in the meaning of the act. We understand
that tlie administrative construction of the
act has been to the same effect. The regu-
lation of the Treasury Department, as it
appears from its circular issued for the
information of persons interested in claims
for materia] and labor supplied in the prose-
cution of work on buildings under the con-
trol of that Department (Dept. Cire. No.
45, Sept. 12, 1012), la at follows: "The
Department treats as the date of final set-
tlement mentioned in said acts" (referring
to the Acts of 1804 and 1005, supra), "the
date on which the Department approves the
basis of settlement under such contract
recommended by the supervising architect,
and orders payment accordingly."
We conclude that the action was not
brought prematurely.
2. With respect to the amendment of the
complaint, it is apparent that, as there was
an existing right of action under the stat-
ute at the time the suit was brought, the
case was not within the decision in United
States ex rel. Texas Portland Cement Co. t.
McCord, 233 U. S. 157, 58 L. ed. 803, 34
Sup. Ct. Kep. 550. No new or different
cause of action was alleged in the amended
complaint. The court merely permitted the
defective statement of the existing right to
be corrected by the addition of appropriate
allegations, [223] and in this there was no
error. Rev. Stat. § 054, C>>mp. Stat. 1013,
«0 Ia. ed.
§ 1501; Missouri, K. & T. R. Co. t. Wolf,
226 U. S. 570, 576, 57 L. ed. 355, 363, 33
Sup. Ct. Rep. 135, Ann. Caa. 1014B, 134.
3. It is contended that the right given
by the statute to the described creditors ia
of an equitlible nature, and that the court
erred in permitting recovery at law. The
objection in the present case is merely tech*
nical, as the parties stipulated to waive
trial by jury, and the case waa heard and
decided by the district judge upon faets
about which there is no dispute. The ques-
tion has not been raised heretofore in this
court, but it has been aasumed in many
cases that the action to be brought under
the statute upon the contractor's bond,
whether the action were instituted by the
United States (United States v. Congress
Constr. Co. 222 U. S. 100, 56 L. ed. 163,
32 Sup. Ct. Rep. 44), or by creditors in the
name of the United States, was an action
at law. United States Fidelity & G. Co. v.
United States, 200 U. S. 306, 52 L. ed.
804, 28 Sup. Ct. Rep. 537; Mankin v. Unit-
ed States, 215 U. S. 533, 54 L. ed. 315, 30
Sup. Ct. Rep. 174; Title Guaranty k T. Co.
V. Crane Co. 210 U. S. 24, 35, 55 L. ed. 72,
77, 81 Sup. Ct. Rep. 140; United States ex
rel. Alexander Bryant Co. v. New York
Steam Fitting Co. 235 U. S. 327, 50 L. ed.
253, 35 Sup. Ct. Rep. 108. In Title Guar-
anty ft T. Co. V. Crane Co. 210 U. S. 24, 35,
55 L. ed. 72, 77, 31 Sup. Ct. Rep. 140, a
question arose as to the propriety of allow-
ing a docket fee to each claimant. Section
824 of the Revised Statutes (Comp. Stat.
1013, § 1378), provides for a docket fee of
$10 "in cases at law, when judgment h
rendered without a jury." The court said:
"The allowance of a docket fee of $10 to
each claimant appears to us to be correct.
Rev. Stat. § 824. The claims are several
and represent distinct causes of action in
different parties, although consolidated in
a single suit." In the circuit and district
courts and in the circuit courts of appeals,
while it Seems that objection has rarely
been made, there has been almost complete
uniformity in treating the creditors' action
under the act of 1005 as one at law. See
United States use of Wataon-Flagg En-
gineering Co. V. Winkler, 162 Fed. 307;
Stitzer v. United States (C. C. A. 3d C.)
105 C. C. A. 51, 182 Fed. 513; United
States use of Gibson Lumber Co. v. Boom-
er (C. C. A. 8th C.) 106 C. C. A. 164, 183
Fed. 726; United States ex rel. James B.
Clow ft Sons V. Illinois Surety Co. 105 Fed.
306; Baker Contr. Co. v. [224] United
States (C. C. A. 4th C.) 122 C. C. A. 560, 204
Fed. 300; Eberhart v. United States (C. C.
A. 8th C.) 123 C. C. A. 180, 204 Fed. 884;
United States use of Chief All Over v. Bai-
ley, 207 Fed. 783; Vermont Marble Co. v.
•1ft
224-226
SUPREME COURT OF THE UNITfiD STATES.
Oct. Tbbm,
National Surety Co. (C. C. A. 3d C.) 130 C.
C. A. 65, 213 Fed. 420; United States ex rel.
Brown-Ketcham Iron Works v. Robinson (C.
C. A. 2d C.) 130 C. C. A. 432, 214 Fed. 38;
United States use of Starrett^Fields Co. v.
Massachusetts Bonding ft T. Co. 215 Fed.
241 ; United States use of Fowden t. Emery,
225 Fed. 287; United States use of John Da-
vis Co. ▼. Illinois Surety Co. (C. C. A. 7th
C.) 226 Fed. 653. It was expressly held to
be an action at law in United States ex rel.
Proctor Mfg. Co. t. Stannard (D. C. N. D.
N. Y.) 207 Fed. 198, 202. The contrary
conclusion was reached in United States
use of Brading-Marshal Lumber Co. v.
Wells (D. C. E. D. Tenn.), 203 Fed. 146,
147; Illinois Surety Co. t. United States
(C. C. A. 2d. C.) 129 C. C. A. 584, 212
Fed. 136, 139, and United States use of
Pittsburg Planing Mill Co. v. Scheurman
(D. C. Idaho) 218 Fed. 915, 919. The
point was raised on rehearing in United
States use of John Davis Co. v. Illinois
Surety Co. (C. C. A. 7th C.) 226 Fed. pp.
663, 664, but, as it came too late, it was
not decided.
The statute provides that the bond shall
have ''the additional obligation that such
contractor or contractors shall promptly
make payments to all persons supplying him
or them with labor and materials in the
prosecution of the work provided for in such
contract." In this respect, the provision
is substantially the same as that contained
in the act of 1894, and the obligation in
favor of the materialmen and laborers has
been held to be a distinct obligation. Unit-
ed States Fidelity k 0. Co. t. Golden
Pressed Brick & Fire Co. (United States
Fidelity & G. Co. v. United States) 191 U.
S. 416, 423, 425, 48 L. ed. 242, 245, 246, 24
Sup. Ct. Rep. 142; United States use of
Hill V. American Surety Co. 200 U. S. 197,
201, 202, 50 L. ed. 437, 439, 440, 26 Sup.
Ct. Rep. 168. It is an obligation for the
payment of money to the persons described,
which they are entitled to enforce. The
nature of the obligation is not changed
by the fact that there is to be but one ac-
tion. If the United States brings the ac-
tion, the persons described are entitled to be
made parties, and "to have their rights and
claims adjudicated in such action, and judg-
ment rendered [225] thereon." II the Unit-
ed States does not sue within the time speci-
fied, they may bring action on the bond in
the name of the United States, and "prose-
cute the same to final judgment and execu-
tion." Any creditor who duly presents his
claim in such an action becomes a party
thereto with a distinct cause of action.
Title Guaranty k T. Co. t. Crane Co. 219
U. 8. 24, 86, 66 L. ed. 72, 77, 31 Sup. Ct.
Rep. 140. The obligation of the surety thus
SIS
enforced in a single action is a legal obli-
gation to the United States for the use and
benefit of the several claimants. We do nol
regard the requirements that "the claim
and judgment of the United States" shsU
have priority, and that the aggregate re-
covery shall not exceed the penalty on tlui
bond, as insuperable obstacles to proceed-
ing at law. It is the case of an undertaking
for the payment of many claims, not to
exceed the specified penalty. If the total
amount due exceeds the penalty of the bond,
it is provided that "judgment shall be given
to each creditor pro rata of the amount of
the recovery." This, however, merely re-
quires an arithmetical calculation after tho
different causes of action have been passed
upon, and the amount due upon each de-
termined. We see no ground upon which
the conclusion can be justified that the li-
ability of the surety on its bond is to be
determined in equity. The contrary luui
been the generally accepted, and we think,
the correct, practice.
It should be added that a different sittuk-
tion would arise if the surety, availing
itself of the statutory privilege, should paj
into court the full amount of its liability,
to wit, the penalty on the bond, for distribo-
tion* In Va&t case the legal obligation of
the surety would be discharged by the ex-
press terms of the statute, and the proceed-
ing would be simply for the distribution of
a fund in court.
4. The plaintiff in error contends that tlie
court erred in giving judgment in favor ol
the Carolina Electrical Company. The
record shows that among those named as
the persons instituting the action was the
"Electrical [226] Engineering k Contract-
ing Company, assignee of Joseph B. Chae-
hire, Jr., receiver of the Carolina Electrical
Company." The complaint set forth that the
Carolina Electrical Company (a North Caro-
lina corporation) had furnished to the con-
tractor certain material and labor for whiidi
there remained unpaid the sum of $498.<Mls
that on October 4, 1912, Joseph B. Cheahin^
Jr., was appointed receiver of that compa^
ny; and that on March 1, 1913, ita eUAm
had been "assignejd and transferred for Tal*
ue" to the above-named plaintiff by the re-
ceiver, and that the plaintiff was the aolt
owner of the account, and had succeeded to
all the rights incident thereto which had bo-
longed to the Carolina Electrical Company.
The alleged transfer was denied. EH-
dence was introduced to show the ineorpora*
tion, and the appointment of the receiver*
The district judge found that the or^er
proved was insufficient to establish the ao-
thority of the receiver to assign the claim,
but held that the proceeding in the case was
a sufficient filing of the claim on behalf of
240 U. &
1915.
KANSAS CITY, F. S. & M. R. CO. v. BOTKIN.
226,227
the Carolina Electrical Company. Judg-
ment was awarded in favor of that company,
with direction that it should be paid "only
to such person as may be authorized by law
to receive it for said Carolina Electrical
Company," and the judgment to this edTect
was affirmed.
In this, we think, the court erred. The
Carolina Electrical Company was not one
of the plaintiffs and there was no interven-
tion on its behalf. The trial court in its
findings sets forth the interventions of cer-
tain other parties, and states that no more
interventions appear to have been filed in
the cause. It is true, of course, that the
real party in interest who is entitled to en-
force the cause of action may be substituted
as plaintiff. See McDonald v. Nebraska, 41
C. C. A. 278, 101 Fed. 171, 178. But the
present case is not one of misnomer, or of
a nominal plaintiff for whom the real party
in interest is substituted, or indeed of any
proper substitution. The plaintiff, the Elec-
trical i:Iiiginecring & [227] Contracting
Company, was not a nominal party, nor was
action in any sense brought for the benefit
of the Carolina Electrical Company. The rec-
ord shows that it was brought, so far as
this claim is concerned, solely for the benefit
of the Electrical Engineering ft Contracting
Company upon the allegation that the claim
had been assigned to it for value, and that
it was the exclusive and beneficial owner.
According to the record, the Carolina Elec-
trical Company was not made a party at
any stage of the action unless this was ac-
complished by the decision and the judg-
ment. But at the time of the decision,
November 10, 1013, by reason of the express
limitation of the statute, it was too late
for that company to intervene.
The judgment is modified by striking out
the provision in favor of the Carolina Elec-
trical Company, and as thus modified is
affirmed.
Judgment affirmed.
a corporation, the maximum charge being
$2,500 in the case of all corporations hav-
ing a paid-up capital of $5,000,000 or more,
does not offend against the commerce clause
of the Federal Constitution as applied to a
railway company with a paid-up capital ex*
ceeding $30,000,000, whose lines extend into
other states.
[For other cases, see Commerce, III. d, 5; III.
d. 7. in Digest Sup. Ct. 1008.]
Constitutional law « due process of
law — privilege tax.
2. A domestic railway company whose
lines extend into other states is not taxed
upon its property outside the jurisdiction
of the state, contrary to the Federal Con-
stitution, by the exaction, under Kan. Laws
1918r chap. 135, of the annual tax graduated
according to paid-up capital stock, imposed
by that statute upon domestic corporations
for the privilege of being a corporation,
since such tax is not a property tax.
[For other canes, see Constitutional Law,
58e-540, In Digest Sap. Ct. 1908.]
[No. 450.]
Submitted January 7, 1916. Decided Feb-
ruary 21, 1916.
IN ERROR to the Supreme Court of the
State of Kansas to review a judgment
which affirmed a judgment of the District
Court of Shawnee County, in that state,
in favor of defendant in a suit by a domestic
railway corporation to recover back the
amount of a privilege tax paid by it. Af-
firmed.
See same case below, 95 Kan. 261, 147
Pac. 791.
The facts are stated in the opinion.
KANSAS CITY, FORT SCOTT, & MEM-
PHIS RAILWAY COMPANY, Plff. in
Err.,
v.
J. T. BOTKIN, Secretary of State of the
State of Kansas.
(See S. C. Reporter's ed. 227-235.)
Connnnerce — state privilege tax ^ in-
terstate railway.
1. The annual tax, graduated accord-
ing to paid-up capital stock, imposed upon
domestic corporations under Kan. Laws
1913, chap. 135, on the privilege of being
«0 li. ed.
Note. — State licenses or taxes, as af-
fecting interstate commerce — see notes to
Rothermel v. Meyerle, 9 L.RJ^.. 366; Amer-
ican Fertilizing Co. v. Board of Agriculture,
11 L.R.A. 179; Gibbons v. Ogden, 6 L. ed.
U. S. 23; Brown v. Maryland, 6 L. ed. U.
S. 678; Ratterman v. Western U. Teleg. Co.
32 L. ed. U. S. 229; Harmon v. Chicago, 37
L. ed. U. S. 217; Cleveland, C. C. & St. L.
R. Co. V. Backus, 38 L. ed. U. S. 1041;
Postal Teleg. Cable Co. v. Adams, 39 L. ed.
U. S. 311; and PitUburg & S. Coal Co. v.
Bates, 39 L. ed. U. S. 538.
On corporate taxation and the commerce
clause — see note to Sandford v. Poc, 60
L.RJL. 641.
On the taxation of corporate capital
stock, generally — see note to State Bd. of
Equaliuition v. People, 58 L.RJ^.. 513.
As to what constitutes due process of law,
generally — see notes to People v. O'Brion,
2 L.RA. 255; Kuntz v. Sumption, 2 L.K.A.
655; Re Gannon, 5 L.RA. 359; Ulman v.
Baltimore, 11 L.RJ^.. 224; Oilman v. Tuck-
er, 13 LJLA. 304; Pearson v. Yewdall, 24
L. ed. U. S. 436; and Wilson v. North Caro-
lina, 42 L. ed. U. S. 865.
280, 281
8UPREH£ COURT OF TH£ UNITED STATBa
Oct. TnM,
Metsrt. R. B. Vermilion and W. F.
Brans tiibmitted the cause for plaintiff in
error:
The statute imposes a burden on inter-
state oommeroe, and seeks to tax property
beyond the jurisdiction of the state of Kan-
sas.
Western U. Tdeg. Co. v. Kansas, 216 U.
S. 31, 54 L. ed. 367, 30 Sup. Ct. Rep. 100;
Philadelphia A S. Mail S. S. Co. v. Pennsyl-
vania, 122 U. S. 326, 30 L. ed. 1200, 1 Inters.
Com. Rep. 308, 7 Sup. Ct. Rep. 1118; Gal-
veston, H. ft S. A. R Co. T. Texas, 210 U. S.
217, 52 L. ed. 1031, 28 Sup. Ct. Rep. 638;
Meyer v. Wells, F. & Co. 223 U. 8. 298, 56
L. ed. 445, 32 Sup. Ct Rep. 218; Ludwig ▼.
Western U. Teleg. Co. 216 U. S. 146, 54 L.
ed. 423; 30 Sup. Ct. Rep. 280; Crane Co. v.
Looney, 218 Fed. 260.
Mr. James P. Coleman submitted the
cause for defendant in error. Mr. S. M.
Brewster, Attorney General of Kansas, and
Messrs. W. P. Montgomery and J. L. Hunt
were on the brief:
Chapter 135, Session Laws of Kansas of
1013, imposes an excise tax upon the right
or privilege of the plaintiff in error to
exist as a corporation under the laws of
the state of Kansas.
Kansas City, Ft. S. ft M. R Co. v. Ses-
sions, 95 Kan. 261, 147 Pac. 791; Society
for Savings v. Coite, 6 Wall. 594, 18 L. ed.
897; Hamilton Mfg. Co. v. Massachusetts, 6
Wall 632, 18 L. ed. 904; Provident Inst. v.
Massachusetts, 6 Wall. 611, 18 L. ed. 907;
Home Ins. Co. v. New York, 134 U. S. 594,
33 L. ed. 1025, 10 Sup. Ct. Rep. 593.
The state has full power to impose such
a privilege tax.
Society for Savings v. Coite, 6 Wall. 594,
18 L. ed. 897; Hamilton Mfg. Co. v. Massa-
chusetts, 6 Wall. 632, 18 L. ed. 904; Provi-
dent Inst. T. Massachusetts, 6 Wall. 611,
18 L. ed. 907; Horn Silver Min. Co. v. New
York, 143 U. S. 305, 36 L. ed. 164, 4 Inters.
Com. Rep. 57, 12 Sup. Ct. Rep. 403; Phila-
delphia ft R. R. Co. T. Pennsylvania, 15
Wall 284, 21 L. ed. 164; Philadelphia ft S.
Mail S. S. Co. V. Pennsylvania, 122 U. S. 326,
30 L. ed. 1200, 1 Inters. Com. Rep. 308, 7
Sup. Ct. Rep. 1118; Minot v. Philadelphia,
W. ft B. R. Co. 18 Wall. 206, 21 L. ed. 888.
Such a franchise tax, if otherwise valid,
may be computed or measured in amount
by the amount of the capital stock of the
corporation employed in part in carrying on
interstate conunerce.
Flint T. Stone Tracy Co. 220 U. S. 107,
55 L. ed. 389, 31 Sup. Ct. Rep. 342, Ann.
Cas. 1912B, 1312; United States Exp. Co. v.
Minnesota, 223 U. S. 335, 56 L. ed. 459, 32
Sup. Ct Rep. 211; Baltic Min. Co. v. Mas-
• 18
sachusetts, 231 U. 8. 68, 58 L. ed. 127»
L.RA. — , — , 34 Sup. Ct. Rep. 15.
The statute imposing the tax provides
that the amount to be paid for the privilege
for which it is required shall be determined
by reference to the capital employed in ex-
ercising that privilege, and such capital, or
the property in wMch such capital is in-
vested, is not itself taxed.
Home Ins. Co. t. New York, 134 U. S.
594, 33 L. ed. 1025, 10 Sup. Ct. Rep. 593;
New York ex reL Cornell v. Sohmer, 235
U. S. 549, 59 L. ed. 355, 35 Sup. Ct. Rep.
162.
The statute in question, as applied to
domestic railway corporations, does not bur-
den interstate commerce.
Philadelphia ft R R Co. v. Pennsylvania,
15 WaU. 284, 21 L. ed. 164; PhiUdelphia
ft S. Mail 8. S. Co. v. Pennsylvania, 122 U.
S. 326, 30 L. ed. 1200, 1 Inters. Com. Rep.
308, 7 Sup. Ct. Rep. 1118; Minot v. Phila-
delphia, W. ft B. R Co. 18 WalL 206, 21 L.
ed. 888; Wiggins Ferry Co. v. East St.
Louis, 107 U. S. 365, 27 L. ed. 419, 2 Sup. Ct.
Rep. 257; Ashley v. Ryan, 153 U. S. 436, 38
L. ed. 773, 4 Inters. Com. Rep. 664, 14 Sup.
Ct. Rep. 865; Baltimore ft O. R. Co. y.
Maryland, 21 Wall. 456, 22 L. ed. 678.
The question involved is not within the
rule of law determined in Western U. Teleg.
Co. V. Kansas, 216 U. S. 1, 54 L. ed. 355, 30
Sup. Ct. Rep. 190, and Pullman Co. y. Kan-
sas, 216 U. S. 56, 54 L. ed. 378, 30 Sup. Ct
Rep. 232. See also Kansas City Ft. S. ft M.
R. Co. V. Sessions, 95 Kan. 261, 147 Pac 791.
Mr. Justice Hughes delivered the opin-
ion of the court:
By chapter 135 of the Laws of 1918, of
Kansas, every domestic corporation is re-
quired to pay to the secretary of state an
annual fee which is graduated according
to the amount of its paid-up capital stock.
When this capital stock does not exceed
$10,000, the fee is $10; when it exceeds
$10,000, but is not over $25,000, the fee is
$25 ; and there are further increases, gradu-
ated as stated, until the maximum fee of
$2,500 is reached, that sum [231] being
payable in all cases where the paid-up cap-
ital stock exceeds $5,000,000. The plaintiff
in error is a railroad corporation organized
under the laws of Kansas, and its road ex-
tends into several states. It has a paid-up
capital stock of $31,660,000. On March 31,
1914, it paid to the secretary of state, un-
der protest, the required fee of $2,500, and
brought this action to recover the amount,
insisting that the tax is a direct burden
upon interstate commerce and is laid upon
property outside the state, and hence is in-
valid under the Federal Constitution. The
supreme court of Kansas sustained the tax»
240 U. 8.
JOIo.
KANSAS CITY, F. 8. & M. R. CO. v. BOTKIN.
231-233
thus defining its nature: "The fee collected
is a tax upon the right of corporate exist-
ence— the franchise granted by the state
to be a corporation — to do business with
the advantages associated with that form
of organization.'' 05 K«in 261, 147 Pac.
791.
It must be assumed, in accordance with
repeated decisions, that the state cannot
lay a tax on interstate commerce "in any
form," by imposing it either upon the busi-
ness which constitutes such conunerce or
the privilege of engaging in it, or upon the
receipts as such derived from it. State
Freight Tax Case, 15 Wall. 232, 21 L. ed.
146; Philadelphia & S. Mail S. S. Co. t.
Pennsylvania, 122 U. S. 326, 336, 344, 30
L. ed. 1200, 1201, 1204, 1 Inters. Com. Rep.
308, 7 Sup. Ct. Rep. 1118; Leloup v. Mo-
bile, 127 U. S. 640, 32 L. ed. 311, 2 Inters.
Com. Rep. 134, 8 Sup. Ct. Rep. 1380; Lyng
V. Michigan, 135 U. S. 161, 166, 34 L. ed.
150, 153, 3 Inters. Com. Rep. 143, 10 Sup.
Ct. Rep. 725; McCall y. California, 136 U.
S. 104, 34 L. ed. 391, 3 Inters. Com. Rep.
181, 10 Sup. Ct. Rep. 881; Galveston, H.
A S. A. R. Co. T. Texas, 210 U. S. 217, 228,
52 L. ed. 1031, 1038. 28 Sup. Ct. Rep. 638;
Western U. Teleg. Co. v. Kansas, 216 U.
S. 1, 36, 37, 54 L. ed. 355, 369, 370, 30
Sup. Ct. Rep. 190; Pullman Co. t. Kansas,
rq>resent property not subject to the state's
taxii^ power. Thus, in Society for Savings
▼. Coite, 6 Wall. 594, 606, 607, 18 L. ed.
897, iK)2, 903, the power to levy the fran-
chise tax was deemed to be ''wholly unaf-
fected" by the fact that the corporation had
invested in Federal securities; and in Home
Ins. Co. T. New York, 134 U. S. 594, 509,
600, 83 L. ed. 1025, 1029, 1030, 10 Sup. Ct.
Rep. 593, it was held that a tax upon the
privilege of being a corporation was not
rendered invalid because a portion of its
capital (the tax being measured by divi-
dends) was represented by United States
bonds. These cases were cited with distinct
approval, and the rule they applied in dis-
tinguishing between the subject and the
measure of the tax was recognized as an
established one, in Flint t. Stone Tracy Co.
220 U. S. 107, 165, 55 L. ed. 389, 419, 31 Sup.
Ct. Rep. 342, Ann. Cas. 1912B, 1312. It is
also manifest that the state is not debarred
from imposing a tax upon the granted privi-
lege of being a corporation, because the
corporation is engaged in interstate as well
as intrastate commerce. Delaware R. Tax,
18 Wall. 206, 231, 232, 21 L. ed. 888, 806;
State R. Tax Cases, 92 U. S. 575, 603, 23
L. ed. 663, 669; Philadelphia & S. Mail S.
S. Co. V. Pennsylvania, 122 U. S. 326, 336,
344, 30 L. ed. 1200, 1201, 1204, 1 Inters.
216 U. S. 56, 65, 54 L. ed. 378, 385, 30 Sup. Com. Rep. 308, 7 Sup. Ct. Rep. 1118; Ash-
Ct. Rep. 232; Meyer v. Wells F. & Co. 223
U. S. 208, 56 L. ed. 445, 32 Sup. Ct. Rep.
218; Baltic Min. Co. v. Massachusetts, 231
U. S. 68, 83, 58 L. ed. 127, 133, L.R.A.— ,
— , 34 Sup. Ct. Rep. 15. And, further, in
determining whether a tax has such a direct
relation to interstate commerce as to be an
exercise of power prohibited by the com-
merce clause, our decision must regard the
substance of the exaction, — its operation
and effect as enforced, — ^and cannot depend
upon the manner in which the taxing scheme
has been characterized. Galveston, H. &
S. A. R. Co. V. [«3«] Texas, 210 U. S. 217,
228, 52 L. ed. 1031, 1038, 28 Sup. a. Rep.
638; United States Exp. Co. v. Minnesota,
223 U. S. 335, 346, 56 L. ed. 459, 465, 32 Sup.
Ct Rep. 211 ; St. Louis Southwestern R. Co.
▼. Arkansas, 235 U. S. 350, 362, 59 L. ed.
265, 271, 35 Sup. Ct. Rep. 99.
Examining the statute in the present case,
we see no reason to doubt the accuracy of
the description of the tax by the state
court. We take it to be simply a tax on
the privilege of being a corporation,— -on
the primary corporate franchise granted by
the state. The authority of the state to
tax this privilege, or franchise, has al-
ways been recognized, and it is well
settled that a tax of this sort is not neces-
sarily rendered invalid because it is meas-
ured by capital stock which in part may
•0 li. ed.
ley V. Ryan, 153 U. S. 436, 38 L. ed. 773,
4 Inters. Com. Rep. 664, 14 Sup. Ct. Rep.
865; New Ydrk ex rol. Cornell S. B. Co. v.
Sohmer, 235 U. S. 549, 559, 560, 59 L. ed.
355, 359, 360, 35 Sup. Ct. Rep. 162. And,
agreeably to the principle above mentioned,
it has never been, and cannot be, maintained
that an annual tax upon this privilege is in
itself, and in all cases, repugnant [233] to
the Federal power merely because it is
measured by authorized or paid-up capital
stock. The selected measure may appear to
be simply a matter of convenience in com-
putation, and may furnish no basis what-
ever for the conclusion that the effort is
made to reach subjects withdrawn from the
taxing authority. We have recently had oc-
casion (Baltic Min. Co. v. Massachusetts,
231 U. S. 68, 83, 58 L. ed. 127, 133, L.RJL.— ,
— , 34 Sup. Ct. Rep. 15) to emphasize the
necessary caution that ''every case involving
the validity of a tax must be decided upon
its own facts;" and if the tax purports to
be laid upon a subject within the taxing
power of the state, it is not to be con-
denmed by the application of any artificial
rule, but only where the conclusion is re-
quired that its necessary operation and
effect is to make it a prohibited exaction.
In Philadelphia ft S. Mail S. 8. Co. t.
Pennsylvania, 122 U. S. 326, 336, 344, 30 L.
ed. 1200. 1201, 1204, 1 Inters. Com. Ren.
233-235
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm»
368, 7 Sup. Ct. Rep. 1118, the state had
laid "a tax of A of 1 per centum upon the
gross receipts of said company for tolls and
transportation." As the court said: "The
tax was levied directly upon the receipts
derived by the company from its fares and
freightb for the transportation of persons
and goods between different states, and be-
tween the states and foreign coimtries, and
from the charter of its vessels which was
for the same purpose." It was necessarily
concluded that the tax was imposed upon
interstate commerce. In Galveston, H. & S.
A. R. Co. V. Texas, 210 U. S. 217, 228, 52
L. ed. 1031, 1038, 28 Sup. Ct. Rep. 638, the
tax upon the railroad company was "equal
to 1 per centum of its gross receipts." The
court held that this was "merely an effort
to reach the gross receipts, not even dis-
guised by the name of an occupation tax,
and in no way helped by the words 'equal
to.' " By the statute which was under re-
view in Wefitem U. Teleg. Co. v. Kansas,
216 U. S. 1, 86, 37, 54 L. ed. 355, 369, 370,
30 Sup. Ct. Rep. 190,— as was said in Flint
v. Stone Tracy Co. supra, summarizing that
case, — ^the state "undertook to levy a graded
charter fee upon the entire capital stock
of one hundred millions of dollars on the
Western Union Telegrsph Company, a for-
eign corporation, and engaged in [234]
commerce among the states, as a condition
of doing local business within the state of
Kansas. This court held, looking through
forms and reaching the substance of the
thing, that the tax thus imposed was in
reality a tax upon the right to do interstate
business within the state, and an undertak-
infr to tax property beyond the limits of the
state; that whatever the declared purpose,
when reasonably interpreted, the necessary
operation and effect of the act in question
was to burden interstate commerce and to
tax property beyond the jurisdiction of the
titate, and it was therefore invalid." To
the same effect were Pullman Co. v. Kan-
sas, 216 U. S. 56, 65, 54 L. ed. 378, 385,
30 Sup. Ct. Rep. 232, and Ludwig v. West-
ern U. Teleg. Co. 216 U. S. 146, 54 L. ed.
423, 30 Sup. Ct. Rep. 280. The act before
the court in Meyer v. Wells F. & Co. 223
U. S. 208, 56 L. ed. 445, 32 Sup. Ct. Rep.
218, which provided for what was called a
"gross revenue tax," was deemed to be "so
similar to the Texas statute held bad" in
the case of Galveston, H. & S. A. R. Co. v.
Texas, as to deserve a similar condemna-
tion. On the other hand, in United States
Exp. Co. V. Minnesota, 223 U. S. 335, 346,
56 L. ed. 450, 465, 82 Sup. Ct. Rep. 211,
it appeared that the reference to gross re-
620
*»
ceipts was only intended fairly to measure
a tax upon a subject within the taxing
power of the state, and the tax was sus-
tained. And, in the case of Baltic Min. Co.
V. Massachusetts, supra, where a tax on
foreign corporations was measured by the
authorized capital stock and was limited to
$2,000, the court also reached the conclu-
sion "that the authorized capital is only
used as the measure of a tax, in itself law-
ful, without the necessary effect of burden-
ing interstate commerce," and that hence
the legislation was within the authority of
the state. It is true that in that case it
was pointed out that the taxing act did
not apply to corporations engaged in rail-
road, telegraph, etc., business, or to those
corporations whose business is interstate
commerce; but it was also distinctly stated
that the products of the corporations be-
fore the court were "sold and shipped in
interstate commerce," and that to that ex-
tent they were "engaged [235] in the busi-
ness of carrying on interstate commerce
and were "entitled to the protection of the
Federal Constitution against laws burden-
ing commerce of that character." It was
because the tax, although measured by
authorized capital stock, could not, in view
of its limitations, be regarded as imposing
a direct burden upon interstate commerce,
that the tax was upheld. 231 U. S. pp. 86«
87.
In the present case, the tax is not laid
upon transactions in interstate commerce,
or upon receipts from interstate commerce,
either separately or intermingled with other
receipts. It does not fluctuate with the
volume of interstate business. It is not
a tax imposed for the privilege of doing
an interstate business. It is a franchise
tax,— on the privilege granted by the state
of being a corporation, — and while it is
graduated according to the amount of paid-
up capital stock, the maximum charge is
$2,500 in the case of all corporations hav-
ing a paid-up capital of $5,000,UU0 or more.
This is the amount imposed in the present
case, where the corporation has a capital of
$31,660,000. We And no ground for saying
that a tax of this character, thus limited,
is in any sense a tax imposed upon inter-
state commerce.
For similar reasons, the contention can-
not be sustained that the tax was one on
property beyond the jurisdiction of the
state. Undoubtedly, a tax may be in form
a privilege tax and yet, in substance, may
be a tax on property. But the present tax
cannot be regarded as a property tax at all.
Judgment affirmed.
S40 V. 8.
1915.
LUJSK V. BOIKIX.
236-238
[236] JAMES W. LUSK, William C. Nix-
on, and William B. Biddle, Receivers of
the Railroads and Property of St Louis
& San Francisco Railroad Company, Plffs.
in £rr.,
V.
J. T. BOTKIN, Secretary of SUte of the
State of Kansas.
(See 8. C. Reporter's ed. 236-239.)
Appeal — Judgment — affirmance —
sustuininfi: privilege tax on foreign
corporation.
A decision upholding the validity of
the annual tax imposed by Kan. Laws
1913, chap. 135, upon a foreign railway
company doing business in Kansas, meas-
ured by that proportion of its capital stock
which is devoted to its Kansas business,
must be affirmed by the Federal Supreme
Court, where that court had upheld the
validity of the tax imposed by the same
statute upon domestic corporations, and '
the sole basis of the attack upon the stat- 1
ute as applied to foreign corporations is
the asserted discrimination against such I
corporations, resulting from the supposed
invalidity of the tax on domestic corpora-
tions.
(For other caseii, see Appeal and Error. IX. e.
In Digest Sop. Ct. 1908.1
[No. 451.]
Submitted January 7, 1916. Decided Feb-
ruary 21, 1916.
IX ERROR to the Supreme Court of the
State of Kansas to review a judgment
which affirmed a judgment of the District
Court of Shawnee County, in that state,
in favor of defendant in a suit by a foreign
corporation to recover a privilege tax paid
by it. Affirmed.
See same case below, 95 Kan. 271, 147
Pac. 704.
The facts are stated in the opinion.
Messrs. R. R. Vermilion and W. F.
fivans submitted the cause for plaintiffs
in error.
Mr. James P. Coleman submitted the
cause for defendant in error. Mr. S. M.
Brewster, Attorney Qeneral of Kansas, and
Messrs. W. P. Montgomery and J. L. Hunt
were on the brief.
Mr. Pant E. Walker, as anUou§ ourUe,
filed a brief for the Chicago, Rock Island,
k Pacific Railway Company.
[237] Mr. Justice Hughes delivered the
opinion of the court:
The plaintiffs in error, the receivers of a
railroad corporation organized under the
laws of the state of Missouri, brought this
action to recover the sum of $2,500, alleged
to have been paid under protest to the secre-
tary of state of the state of Kansas as a
tax upon foreign corporations imposed by
chapter 135 of the Laws of 1913. A general
demurrer to the petition was sustained,
and, as the plaintiff declined to plead
further, judgment was rendered in favor of
the defendant. This judgment was afllrmed
by the supreme court of the state. 95 Kan.
I 271, 147 Pac. 794.
I The act above mentioned (§ 2) requires
I ''every foreign corporation, for profit, now
I or hereafter doing business in this state,
j and owning or using a part or all
I of its capital in this state, and sub-
I ject to compliance with the laws re-
lating to the admission of foreign corpora-
tions to do business in Kansas" to make
annual report, setting forth certain facts, to
the secretary of state. It is further provid-
ed that "upon the filing of such report the
secretary of state, from the facts thus re-
ported and any other facts coming to his
knowledge bearing upon the question, shall
determine the proportion of the issued
capital stock of the company represented by
its property and business in Kansas, and
shall charge and collect from such company,
in addition to the initial fees, for the privi-
lege of exercising its franchise in Kansas,
an annual fee upon that proportion of such
foreign corporation's issued capital stock
as is devoted to its Kansas business." The
amount of the fee is graduated according
to the amount of the issued capital stock
''used in Kansas." The minimum annual
fee is $10, when the issued capital stock so
used does not exceed $10,000; and the maxi-
mum annual fee is $2,500, when the issued
capital stock so used exceeds $5,000,000.
[238] Construing these provisions of the
act, and answering the objection that, as to
a railroad company, and other foreign cor-
porations, doing both a local and interstate
KoTE. — State license or taxes, as affecting
interstate commerce — see notes to Rother-
mel V. Meyerle, 9 L.R.A. 366; American
Fertilizing Co. v. Board of Agriculture, 11
L.RJL 179; Gibbons v. Ogden, 6 K ed. U.
8. 23; Brown v. Maryland, 6 L. ed. U. S.
678; Ratterman v. Western U. Teleg. Co.
32 L. ed. U. S. 229; Harmon v. Chicago, 37
L. ed. U. S. 217; Cleveland, C. C. & St. L.
R. Co. V. Backus, 38 L. ed. U. 8. 1041;
60 ^. ed.
Postal Teleg. Cable Co. v. Adams, 39 L. ed.
U. S. 311; and Pittsburg & S. Coal Co. ▼.
Bates, 39 L. ed. U. S. 538.
On corporate taxation and the commerce
clause — see note to Sandford ▼. Poe, 60
L.R.A. 643.
On the taxatoin of corporate capital stock,
generally — see note to State Bd. of Equali-
zation ▼. People, 58 L.RJI. 513.
238-240
SUPREME COURT OF THE UNITED STATES.
Oct. Twmu,
business, the act was invalid because it un-
dertook to regulate interstate commerce, the
supreme court of Kansas said in State ex
rel. Dawson v. Sessions, 95 Kan. 272, 276,
147 Pac. 789:
"The requirements of the statute are im-
posed on such foreign corporations doing
business in this state as are 'subject to com-
pliance with the laws relating to the ad-
mission of foreign corporations to do busi-
ness in Kansas.' (§2.) Corporations which
are engaged solely in interstate commerce
are therefore wholly exempt from all its
provisions, and those which do both an
Interstate and an intrastate business are
exempt so far as concerns the former.
The phrases 'that proportion of such foreign
corporation's issued capital stock as is de-
voted to its Kansas business' (§ 2) , and 'the
issued capital stock used in Kansas,' refer
to the amount of capital invested in doing a
purely local business. The total capital of
the company is involved only as a basis for
arriving at a reasonable estimate of the
capital devoted to transportation originat-
ing and ending in Kansas."
In the instant case, the objections to the
tax upon the foreign corporation rest en-
tirely upon the asserted invalidity of the
tax imposed by the same statute upon do-
mestic corporations; it is insisted that the
foreign corporation had complied with
statutory conditions entitling it to be treat-
ed not less favorably, and that, if the tax
laid by the statute upon domestic corpora-
tions is invalid, the tax laid upon the
foreign corporation cannot be sustained.
Apparently, no other contention was pre-
sented to the supreme court of the state (95
Kan. 271). And, accordingly, in the brief
of the plaintiffs in error in this court, the
questions involved are stated to be: (a)
that the act under which the tax was de-
manded is uncofastitutional because "when
applied to railroad [230] companies organ-
ized imder the laws of the state of Kansas,"
owning lines extending into other states, the
act places a burden upon interstate com-
merce and undertakes to tax property out-
side the state; (b) that the act seeks "to
place a tax upon the entire capital stock of
domestic corporations owning and operating
railroads in Kansas and other states," that
it thereby attempts to tax property outside
the state, in contravention of the 14th
Amendment, and that it "is therefore void
as to domestic corporations;" and (c) that
the compliance by the Missouri corporation
(of which the plaintiffs in error are re-
ceivers) with the terms of chapter 186 of
the Laws of 1887, of Kansas, "constituted
a contract between the railroad company
and the state, by which the state bound
Hbc}! not to subject the railroad company or
the plaintiffs in error to any greater liabili-
ties than those imposed upon railroad corpo-
rations organized under the laws of Kansas^
and conferred upon such foreign corpora-
tion complying with said act 'all the ri^ta,
privileges, and franchises' of Kansas rail-
road corporations;" and that it follow*
that, if the tax act is unconstitutional as
to domestic corporations, the imposition of
the tax in question upon the Missouri
corporation "would violate the obligations
of the contract" and would deny to it "the
equal protection of the laws."
In the case of Kansas City, Ft S. & M. R.
Co. V. Botkin, decided this day [240 U. S.
227, ante, 617, 36 Sup. Ct. Rep. 261], we
have considered the arguments against the
tax imposed by the statute upon domestic
corporations, and we have found the objec-
tions to be untenable. Thus, the sole bants
for the attack made by the plaintiffs in
error upon the statute fails, and the judg-
ment must be affirmed.
Judgment affirmed.
[240] ST. LOUIS & SAN FRANCISCO
RAILROAD COMPANY, Plff. in Err.,
V.
H. B. SHEPHERD.
(See S. C. Reporter's ed. 240-242.)
Error to state court — Federal question
— when raised in time.
1. A Federal question first set up and
asserted in a petilion for rehearing after
the judgment in the trial court had been
affirmed by the highest court of the state
will not support the jurisdiction of the Fed-
eral Supreme Court on writ of error, where
the petition was not entertained, but waa
denied, without passing on the Federal ques-
tion thus tardily raised.
[For other cases, see Appeal and Error,
1292-1310. in Digest Sup. Ct. 1008.1
EIrror to state court — frivolous Fed-
eral question.
2. The contention that due effect waa
Note. — On the general subject of writs
of error from United States Supreme Court
to state courts — see notes to Martin ▼.
Hunter, 4 L. ed. U. S. 97 ; Hamblin v. West-
ern Land Co. 37 L. ed. U. S. 267; Re Bu-
chanan, 39 L. ed. U. 8. 884; and Kipley t.
Illinois, 42 L. ed. U. S. 998.
On what adjudications of state courts can
be brought up for review in the Suprema
Court of the United States by writ of error
to those courts — see note to Apex Ttuuqp.
Co. V. Garbade, 62 L..RJI. 618.
On how and when questions must bs
raised and decided in a state court in ordar
to make a case for a writ of error from th*
Supreme Court of the United SCatcs sea
note to Mutual L. Ins. Co. v. McGrew, 6S
L.RJL 33.
240 V. B.
1915.
ST. LOUIS ft S. F. R. CO. ▼. SHEPHERD.
not sAymk, in an action for damages result-
ing from alleged unreasonable delay in the
transportation of cattle, to the provisions
of the act of June 29, 1906 (84 Stat, at L.
607, chap. 6694, Comp. Stat 1913, | 8661),
limiting the time that cattle in interstate
transit may be confined in cars without be-
ing unloaded, is too devoid of merit to serve
as the basis of a writ of error from the
Federal Supreme Court to a state court,
where the question whether l^e transporta-
tion reasonably could have been completed
within the maximum time— thirl^-aix hours
— ^was the subject of direct and eonflicting
testimony, and was submitted te the jury
as one of fact, with instructions that, under
the Federal law, the carrier could not keep
the stock in the cars longer than thirty-six
hours, and that if the jury finds from the
evidence that it was not reasonably possible
for the shipment to reach its destination
within that limit, it is not liaUe for the
dela^ caused by the unloading, and no ex*
oeption was reserved to this instruction,. no
modification of it was suggested, and no
other instruction upon the subject was re-
quested.
[For other cases, see Appeal and Error,
1110-1137. in Digest Snp. Ct 1908.]
[No. 160.]
Submitted January 12, 1916. Decided Feb-
ruary 21, 1916.
IK ERROR to the Supreme Court of the
State of Oklahoma to review a judg-
ment which affirmed a judgment of the
County Court of Murray County, in that
state, in favor of plaintiff in an action
against a carrier for damages due te unrea-
sonable delay in transporting an interstate
shipment of cattle. Dismissed for want of
jurisdiction.
See same case below, 40 Okla. 680, 139
Pac. 833.
The facta are stated in the opinion.
Mr. W. F. Evans submitted the causA
for plaintiff in error. Messrs. R. A. Klein-
Schmidt and E. H. Foster were on the brief :
The righte and remedies afforded a ship-
per in interstate commerce by the provi-
sions of the interstate commerce act and ite
amendmenta are exclusive of all others, ex-
cept such as are given by existing Federal
law.
Texas A P. R. Co. t. Abilene Cotton Oil
Co. 204 U. a 426, 61 L. ed. 653, 27 Sup. Ct
Rep. 860, 0 Ann. Gas. 1076; Adams Exp.
Co. T. Croninger, 226 U. S. 491, 67 L. ed.
814, 44 LJLA.(N.S.) 267, 83 Sup. Ot. Rep.
148; Kansas City Southern R. Co. v. Carl,
227 U. S. 639, 67 L. ed. 683, 33 Sup. Ct. Rep.
391; Missouri, K. & T. R. Co. v. Harriman,
227 U. S. 667, 67 L. ed. 690, 33 Sup. Ct.
Rep. 897-; Wells, F. & Co. v. Neiman-Mar-
cus Co. 227 U. S. 469, 67 L. ed. 600, 33 Sup.
Ct Rep. 267; St. Louis, L M. A a R. Co.
60 li. ed.
V. Edwards, 227 U. S. 265, 57 L. ed. 606,
33 Sup. Ct. Rep. 262; Barrett v. New York,
232 U. S. 14, 58 L. ed. 483, 34 Sup. Ct. Rep.
203; Boston & M. R. Co. v. Hooker, 233 U.
S. 97, 67 L. ed. 868, LJIA.1916B, 460, 34
Sup. Ct. Rep. 626, Ann. Cas. 1915D, 503;
George N. Pierce Co. v. Wells, F. & Co. 236
U. a 278, 69 L. ed. 676, 36 Sup. Ct. Rep.
351; Charlesten & W. C. R. Co. v. Vam-
viUe Furniture Co. 237 U. S. 697, 69 L. ed.
1137, 36 Sup. Ct. Rep. 716; Atchison, T. &
S. F. R. Co. V. Robinson, 233 U. S. 173, 68
L. ed. 901, 34 Sup. Ct Rep. 556.
The stipulation that the live stock was
not te be transported within any specific
time, ete., is valid.
Smith V. Chicago, R. I. & P. R. Co. 112
Mo. App. 610, 87 S. W. 9; Fulbright v. Wa-
bash R. Co. 118 Mo. App. 482, 04 S. W. 002 ;
Gilbert v. Chicago, R, I. & P. R. Co. 132
Mo. App. 697, 112 S. W. 1002; St Louis, I.
M. & S. R. Co. V. Jones, 93 Ark. 537, 137
Am. St Rep. 99, 125 S. W. 1025; Cleveland,
C. C. & St. L. R. Co. V. Heath, 22 Ind. App.
47, 63 N. E. 198.
No duty of a common carrier te trans-
port and deliver live stock in season for a
particular market exista at common law, in
the absence of an express undertaking to
that effect.
6 Am. & Eng. Eno. Law, 461.
If plaintiff in error had undertaken by
express contract te deliver this live stock
in season for the market of May 15th, that
contract would have been void.
Chicago & A. R. Co. v. Kirby, 225 U. S.
165, 66 L. ed. 1033, 82 Sup. Ct Rep. 648,
Ann. Cas. 1914A, 601.
The provision of the contract requiring
notice is valid.
St Louis & a F. R. Co. t. Phillips, 17
Okla. 264, 87 Pac 470; St. Louis & S. F. R.
Co. V. Cake, 25 Okla. 227, 105 Pac 322;
Missouri, K. & T. R. Co. v. Hancock, 26
Okla. 265, 109 Pac 223; Midland Valley R.
Co. V. Ezell, 29 Okla. 40, 116 Pac. 163;
Chicago, R. I. & P. R. Co. v. Conway, 34
Okla. 356, 126 Pac. 1110; St. Louis & S. F.
R. Co. T. Bilby, 35 Okla. 589, 130 Pac 1089 ;
St Louis & S. F. R. Co. v. Zickafoose, 39
Okla. 302, 136 Pac 406, 6 N. C. C. A. 717;
Chicago, R. L & P. R. Co. V. Bruce, — Okla.
— , 150 Pac 880; St. Louis & S. F. R. Co.
V. Pickens, — Okla. — , 151 Pac 1056; St
Louis ft S. F. R. Co. t. Waggoner, — Okla.
— , 162 Pac 448.
The provision of the contract limiting the
time in which te bring suit is valid.
Missouri, K. & T. R. Co. t. Harriman, 227
U. S. 667, 67 L. ed. 690, 33 Sup. Ct Rep.
397; Missouri, K. & T. R. Co. t. Hancock,
26 Okla. 266, 109 Pac 223; St Louis & S.
F. R. Co. V. Pickens, — Okla. — , 151 Pac
1066.
240-242
SUPIIEME COURT OF THE UNITED STATES.
Cot. Tbbm,
The contract stipulations do not exempt
the carrier from liability for negligence.
Hart V. Pennsylvania R. Co. 112 U. S.
331, 28 L. ed. 717, 6 Sup. Ct. Rep. 151;
Adams Exp. Co. v. Croninger, 226 U. S. 401,
57 L. ed. 314, 44 L.RA.(NJS.) 257, 33 Sup.
Ct. Rep. 148; Kansas City Southern R. Co.
▼. Carl, 227 U. S. 630, 57 L. ed. 683, 33 Sup.
Ct. Rep. 301; St. Louis & S. F. R. Co. v.
Phillips, 17 Okla. 264, 87 Pac. 470; Missoun,
K. & T. R. Co. V. Hancock, 26 Okla. 265, 100
Pac. 223; Midland Valley R. Co. v. Ezell, 20
Okla. 40, 116 Pac. 163; Chicago, R. I. & P.
R. Co. V. Conway, 34 Okla. 365, 125 Pac
1110; St. Louis & S. F. R. Co. v. Zickafoose,
30 Okla. 302, 135 Pac. 406, 6 N. C. C. A. 717 ;
Missouri, K. & T. R. Co. v. Harriman, 227
U. S. 657, 57 L. ed. 600, 33 Sup. Ct. Rep.
307.
The effect of the decision of the supreme
coiurt of Oklahoma is to render plaintiff in
error liable for delay incident to compliance
with an act of Congress.
Galveston, H. & S. A. R. Co. v. Wamken,
12 Tex. Civ. App. 645, 35 S. W. 72; St.
Louis, I. M. A, S. R. Co. v. Davenport, 07
Ark. 82, 133 S. W. 186; St. Louis, I. M. &
8. R. Co. V. Smith, — Tex. Civ. App. — ,
135 S. W. 507 ; St. Louis, L M. & S. R: Co.
V. West Bros. — Tex. Civ. App. — , 150 S.
W. 142.
Mr. J. B. Thompson filed a brief for de-
fendant in error.
Mr. Justice Van Dcvanter delivered the
opinion of the court:
This was an action for damages resulting,
as was alleged, from unreasonable delay in
transporting cattle from Fort [241]
Worth, Texas, to Kansas City, Missouri, in
May, 1000. The plaintiff had a verdict and
judgment, and the latter was affirmed. 40
Okla. 580, 130 Pac. 833. The errors as-
signed are that due effect was not given to
certain provisions of the Carniack amend-
ment to the interstate commerce act (§ 7,
chap. 3501, 34 Stat, at L. 584, 505, Comp.
Stat. 1013, §S 8563, 8502), or to the act
limiting the time that cattle in interstate
transit may be confined in cars without be-
ing unloaded for rest, water, and feed.
Chap. 3504, 84 Stat, at Jj. 607, Comp. Stat.
1013, S 8651.
The claim under the Carmack amendment
was first set up and asserted in a petition
for rehearing after the judgment in the trial
court wasT affirmed by the supreme court
of the state. The petition was not enter-
tained, but was denied without passing upon
the Federal question thus tardily raised.
That question, therefore, is not open to con-
sideration here. Pim ▼. St. Louis, 165 U.
8. 273, 41 L. ed. 714, 17 Sup. Ct. Rep. 322 ;
Ifntnal L. Ins. Co. ▼. McGrew, 188 U. 8.
201, 308, 47 L. ed. 480, 484, 08 LJLA. 33,
23 Sup. Ct Rep. 375; McCorquodale v. Tex-
as, 211 U. S. 432, 437, 53 L. ed. 260, 270, 20
Sup. Ct. Rep. 146; Forbes v. State Council,
216 U. 8. 306, 300, 64 L. ed. 534, 535, 30
Sup. Ct. Rep. 206; Consolidated Tump. Co.
V. Norfolk A 0. V. R. Co. 228 U. S. 326,
334, 57 L. ed. 867, 862, 33 Sup. Ct. Rep. 510.
The claim made under the other act was,
that part of the delay was excusable, be-
cause the transportation reasonably could
not have been completed within the maxi-
mum time^-thirty-six hours — during which
the cattle could be confined in the cars, and
it therefore became necessary under the act
to unload them for rest, water, and feed for
at least five hours, as was done. Whether
the transportation reasonably could have
been completed within thirty-six hours waa
the subject of direct and conflicting testi-
mony, and was committed to the jury as a
question of fact. In that connection the
court said to the jury-: "You are instruct-
ed that under the laws of the United States
the defendant company could not keep the
stock in this shipment in the cars longer
than thirty-six hours, and if you find from
the evidence that it was not reasonably pos-
sible that the shipment should reach Kan-
sas City [242] within the thirty-six-hour
limit, then it is not liable for the delay
caused by the unloading of the stock." No
exception was reserved to this instruction,
no modification of it was suggested, and no
other instruction upon the subject was re-
quested. It therefore is apparent that the
assignments based upon this statute are so
devoid of merit as to be frivolous.
Writ of error dismissed.
W. S. EMBREE et al., Plffs. in Err.,
V.
KANSAS CITY & UBERTY BOULEVARD
ROAD DISTRICT et al.
(See S. C. Reporter's ed. 242-261.)
Constitutional law — due process of law
— notice and hearing — public im-
provements.
1. Landowners within a road district
as established by an order of a county
court conformably to Mo. Rev. Stat. 1000,
chap. 102, art. 7, and Mo. Laws 1011, p. 378,
were accorded the opportunity to be heard
upon the question whether their lands would
be benefited bv its creation, which is es-
sential to satisfy the due process of law
clause of U. S. Const. 14th Amend., where
KoTB. — ^As to what constitutes due process
of law, ^nerally — see notes to People ▼.
O'Brien, 2 L.R.A. 265; Kunts v. Sumption,
2 L.R.A. 666; Re Gannon, 6 L.RJI. 850;
Ulman v. Baltimore, 11 LJLA. 224: Oilman
S40 U. 8.
1916.
SMBREB T. KANSAS CITY & L. B. ROAD DIST.
the statute, ^icb was fully complied with
in this r^;ara7 requires that adequate pub-
lic notice be ffiven of the presentation of the
petition for uie creation of the district, and
the time when it will be considered, msJces
provision for the presentation of remon-
strances by owners of land within the pro-
posed district, and directs that the petition
and remonstrances be heard by the county
court, that the court make such change in
the boundaries "as the public good may re-
quire," and that the boimdaries be not en-
larged unless the owners of the lands not
before included consent in writing or appear
at the hearing and be given an opportunity
to present objections.
[For other cases, see Const itattonal Law. 745-
763. in Digest Sop. Ct. 190S.1
Constitutional law — due process of law
— notice and bearlni; — public im-
provements.
2. The opportunity of landowners with-
in a proposed road district to be heard upon
the question whether their lands will be
benefited by its creation, which is accorded
by Mo. Rev. Stat. 1909, chap. 102, art. 7,
and Mo. Laws 1911, p. 373, is no less suffi-
cient to satisfy the requirements of due
process of law because the particular road
to be improved is yet to be selected.
[B'or other cases, see Constitutional Law, 745-
7S3, in Digest Sup. Ct. 1908.]
Constitutional law -* dne process of law
— notice and hearing — public im-
provenicntH.
3. Due process of law does not require
that landowners witliin a road district as
established by an order of a county court
conformably to Mo. Rev. Stat. 1900, chap.
102, art. 7, and Mo. Laws 3911, p. 373, be
afforded a hearing upon the question wheth-
er the benelits from the improvement of the
road selected to the lands in the different
sones will be in accord with the graduated
ratings fixed by the statute itself, which
provides that the cost is to be apportioned
by rating the lands without the buildings
thereon at their full fair value where lying
within 1 mile from the road, at 75 per cent
of such value where lying between 1 and 2
miles from the road, and at 50 per cent of
such value where lying more than 2 miles
therefrom, and then charging each tract
with a share of the entire cost correspond-
ing to its proportion of the value of all the
lands as so rated.
(For other esses, see Constitutional Law, 745-
753. in Digest 8np. Ct. 1908.]
Constitutional law — dne process of law
— hearing -» public improvements.
4. A sufficient opportunity to be heard
on the question of the value of their lands
is accorded to landowners within a road
district established by a county court con-
formably to a general law so as to satisfy
the due process of law requirement of U.
S. Const., 14th Amend., although no bear-
ing is given when the lands are appraised,
where the mode of enforcement of the tax
assessed to meet the cost of the road im-
provement is by a suit in court, when own-
ers aggrieved by the valuations may have a
full hearing on that question.
[For other cases, see Constitutional Law, 745«
768, in Digest Sup. Ct. 1908.]
[No. 187.]
Argued and submitted January ;18 and 19,
1916. Decided February 21, 1916.
IN BRROR to the Supreme Court of the
State of Missouri to review a decree
which affirmed a decree of the Circuit Court
of Clay County, in that state, in favor of
defendants in a suit to restrain the issue
and sale of road district bonds. Affirmed.
See same case below, 257 Mo. 593, 166 8.
W. 282.
The facts are stated in the <^inion.
Mr. Harris li, Moore argued the cause,
and, with Messrs. W. A. Craven, Ernest
Simrall, James F. Simrall, and John M.
Cleary, filed a brief for plaintiffs in error:
Where the power to determine the boun-
daries of the benefit district, that is to say,
what property shall be assessed to pay for
an improvement, is delegated to a non-
legislative body, due process of law de-
mands notice and a hearing on whether the
property so marked out for taxation is, in
fact, benefited.
Fallbrook Irrig. Dist. v. Bradley, 164 U.
S. 170, 41 L. ed. 392, 17 Sup. Ct. Rep. 56;
Argyle v. Johnson, 39 Utah, 600, 118 Pac.
487; Spencer v. Merchant, 125 U. S. 345, 31
L. ed. 763, 8 Sup. Ct. Rep. 021; Soliah v.
Heskin, 222 U. S. 522, 56 L. ed. 294, 32
Sup. Ct. Rep. 103; Paulsen v. Portland, 140
U. 6. 30, 37 L. ed. 637, 13 Sup. Ct. Rep. 750;
Re Kissel Ave. 81 Misc. 541, 143 N. Y. Supp.
467; Bauman v. Ross, 167 U. S. 548, 42 L.
ed. 270, 17 Sup. Ct. Rep. 966.
While it is true that ordinarily a benefit
assessment that must be collected by suit
cannot be said to be wanting in due process
of law, yet if, in such suit, the property
owner cannot have tried the question of
whether his property is benefited, then such
suit does not constitute due process of law
as to that question, or supply the lack of
a hearing thereon.
Londoner v. Denver, 210 U. S. 373, 385,
52 L. ed. 1103, 1112, 28 Sup. Ct. Rep. 708;
Everington v. Park Comrs. 119 Minn. 334,
▼. Tucker, 13 L.R.A. 304; Pearson v. Ycw-
deU, 24 L. ed. U. S. 436; and Wilson r.
North Carolina, 42 L. ed. U. S. 865.
On notice and hearing required, general-
ly, to constitute due process of law — see
notes to Kunt ▼. Sumption, 2 L.Rjl. 657;
60 li. ed.
Chauvin v. Valiton, 3 L.Rji. 194; and Ul-
man ▼. Baltimore, 11 L.R.A. 225.
On landowner's right to notice and hear-
ing on assessment for public improvement
— see note to Chicago, M. ft St. P. R. Co.
V. Janesville, 28 L.R.A.(N.S.) 1201.
40 «9«
^45
SUPREME COURT OP THE UNITED STATES.
Oct. Tkrm^
138 N. W. 426; Argyle v. Johnson, 39 Utah,
500, 118 Pac 487; Central of Georgia R.
Co. T. Wright, 207 U. S. 127, 62 L. ed. 134,
28 Sup. Ct. Rep. 47, 12 Ann. Cas. 463; Nor-
wood T. Baker, 172 U. S. 260, 43 L. ed. 443,
19 Sup. Ot. Rep. 187.
The decision of the supreme court of
Missouri, in so far as it construes the stat-
ute in question, is conclusive; and where
it has held that the statute contains a legis-
lative determination of the benefit district,
then that is a conclusive decision that there
is no hearing on that question, when suit
is brought to collect.
Central of Georgia R. Co. r. Wright, 207
U. 8. 127, 62 L. ed. 134, 28 Sup. Ct. Rep.
47, 12 Ann. Cas. 463.
While the fact that a benefit assessment
is to be collected by suit ordinarily con-
stitutes due process of law, yet when a
benefit assessment has become a final lien,
divided into twenty instalments, recorded
in the public records as a lien on the land,
and sold for cash, even if it is a fact that
each property owner may defend each of
the twenty suits required to be brought
against each separate piece of property, be-
ing subject to heavy penalties and attor-
neys' fees in case of failure to make good
the defense in whole or in part, there is
neither such timely nor adequate hearing as
is necessary to constitute due process of
law.
Londoner v. Denver, 210 U. S. 873, 385,
52 L. ed. 1103, 1112, 28 Sup. Ct. Rep. 708;
Everington v. Park Comrs. 119 Minn. 354,
138 N. W. 426; Argyle v. Johnson, 39 Utah,
500, 118 Pac. 487; Central of Georgia R.
Co. V. Wright, supra; Norwood v. Baker,
172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct.
Rep. 187.
Mr. William M. Williams submitted
the cause for defendants in error. Mr.
Claude Hardwicke was on the brieif:
This court will adopt and follow the con-
struction given by the supreme court of
Missouri* to the statute of that state under
consideration in this case.
Lindsley v. Natural Carbonic Gas Co. 220
U. S. 61, 55 L. ed. 369, 31 Sup. Ct. Rep.
337, Ann. Cas. 1912C, 160; Weightman v.
Clark, 103 U. S. 256, 260, 26 L. ed. 392,
393; Chicago, M. A. St. P. R. Co. v. Iowa,
233 U. S. 334, 58 L. ed. 988, 34 Sup. Ct.
Rep. 592.
The supreme court of Missouri, in con-
struing the statute of that state under re-
view in this case, held that the only method
provided for the collection of taxes assessed
for the benefits to the lands in the road dis-
trict is by suit upon tax bills in the ordi-
nary courts of justice, and that in said
suit all the defenses the landowner may
616
have, from the inception of the proceedings
to the judgment upon the tax bill, may be
interposed.
Embree ▼. Kansas City & L. Boulevard
Road Dist. 257 Mo. 611, 166 S. W. 282.
The supreme court of Missouri, having
construed Mo. Rev. Stat. 1909, chap. 102,
art. 7, as amended in 1911, providing for
the organization of special benefit assess-
ment road districts, to require the enforce-
ment of the tax assessed upon lands in th»
district, by suit upon a tax bill in a court
of competent jurisdiction, with proper
service of process upon the landowner, as in
ordinary actions, with all defenses against
the tax open to the landowner, such statute
does not deny due process of law, and is not
in confiict with the 14th Amendment of the
Federal Constitution.
Embree v. Kansas City &, L. Boulevard
Road Dist. 257 Mo. 603, 166 S. W. 282;
Hagar v. Reclamation Dist. Ill U. S. 701,.
28 L. ed. 569, 4 Sup. Ct. Rep. 663; King v.
Portland, 184 U. S. 61, 46 L. ed. 431, 22
Sup. Ct. Rep. 290; Walston v. Nevin, 128
U. S. 578, 32 L. ed. 544, 9 Sup. Ct. Rep.
192; Londoner v. Denver, 210 U. S. 373^
385, 52 L. ed. 1103, 1112, 28 Sup. Ct. Rep.
708; Davidson v. New Orleans, 96 U. S. 97^
24 L. ed. 616; Paulsen v. Portland, 149 U.
S. 30, 37 L. ed. 637, 13 Sup. Ct. Rep. 750;
St. Louis V. Richeson, 76 Mo. 486.
While the supreme court of Missouri^
after holding that the landowner is entitled
under the statute to make any and all de-
fenses he may have in a suit upon the tax
bill, did not go further and decide his right
to be heard in the first instance in opposi-
tion to the organization of the district, and
to the inclusion of his land in the territory
to be assessed for benefits for road improve-
ments therein, the statute clearly provider
for notice to the landowners and an oppor-
tunity for a preliminary hearing upon these
issues before the county court, and such
hearing was, in fact, accorded to the plain-
tiffs in error in this case, as provided by
the statute.
Fallbrook Irrig. Dist. v. Bradley, 164 U.
S. 112, 41 L. ed. 369, 17 Sup. Ct. Rep. 56;
Davidson v. New Orleans, 96 U. S. 97, 24
L. ed. 616.
Mr. Justice Van Devanter delivered the
opinion of the court:
This is a suit to restrain the issue and
sale of road district bonds and the levy
and recordation of special taxes to pay
them. A trial of the issues resulted in a
judgment for the defendants, which at first
was reversed and on a rehearing was af-
firmed. 257 Mo. 593, 166 S. W. 282. The
plaintiffs prosecute this writ of error.
When tike suit was begun the road dis-
340 U. 8»
1915.
SMBREE ▼. KANSAS CITY & L. B. ROAD DIST.
245-248
trict had been organized, a road bad been
selected for improvement, and preliminary
steps had been taken for issuing the bonds
and levying the special taxes, — all conform-
ably to the local statute. Rev. Slat. (Mo.)
1909, chap. 102, art. 7; Mo. Laws 1911, 373.
The district is about 7 miles in length and
8 in width, and is bounded on the greater
part of one side by the Missouri river. The
road selected for improvement extends
through the district in the direction of its
length. The cost of the improvement is to
be met temporarily by the issue and sale
of bonds, and ultimately by the levy and
collection of special taxes upon all the lands
in the district. The cost is to be appor-
tioned by rating the lands — without the
buildings thereon — at their full fair value
where lying within 1 mile of the road, at
75 per cent of such value where lying be-
tween 1 and 2 miles from the road, and at
50 per cent of such value where lying more
than 2 miles therefrom (all seem to be with-
in 2 miles here), and then charging each
tract with a share of the entire cost cor-
responding to its proportion of the value
of all the lands as so rated. The lands are
appraised by the district commissioners and
the cost of the fmprovement is apportioned
by the county clerk.
[246] The plaintiffs own lands within
the district and object to the issue of the
bonds and to the levy of the special taxes,
upon the ground that the scheme for sub-
jecting the lands to the payment of the cost
is repugnant to the due process clause of the
14th Amendment to the Constitution of the
United States in that the landlord is not
afforded any opportunity to be heard on the
questions whether his lands will be bene-
fited by the improvement, whether, if bene-
fited, the benefits in the different zones will
he in accord with the graduated ratings be-
fore indicated, and whether the appraise-
ment of his lands for the purposes of the
tpportionment is fair.
The district was not established or defined
by the legislature, but by an order of the
county court, made under a general law.
Whether there was need for the district,
and, if so, what lands should be included
•and what excluded, was committed to the
judgment and discretion of that court, sub-
ject to these qualifications: First, that the
^iistrict should contain at least 640 acres
of contiguous land and be wholly within
the county; second, that the court's action
should be invoked by a petition signed by
the owners of a majority of the acres in the
proposed district; and, third, that public no-
tice— conceded to be adequate — should be
C;iven, by the clerk of the court, of the pres-
entation of the petition and the date when
it would be considered, and that owners of
60 li. ed.
land within the proposed district should be
accorded an opportunity to appear, either
collectively or separately, and oppose its for-
mation. In this connection the statute
says: 'The court shall hear such petition
and remonstrance, and shall make such
change in the boundaries of such proposed
district as the public good may require and
make necessary, and if after such changes
are made it shall appear to the court that
such petition is signed or in writing consent-
ed to by the owners of a majority of all the
acres of land within the district as so
changed, the court shall make a preliminary
[247] order establishing such public road
district, and such order shall set out the
boundaries of such district as established
. . . but the boundaries of no district
shall be so changed as to embrace any land
not included in the notice made by the
clerk unless the owner thereof shall in
writing consent thereto, or shall appear at
the hearing, and is notified in open court of
such fact and given an opportunity to file
or join in a remonstrance." The order actu-
ally made shows that four of the present
plaintiffs, with three others, appeared in
opposition to the petition, recites that "the
court, after hearing and considering said
petition and said protests and remon-
strances and all evidence offered in support
thereof, finds that the public good requires
and makes necessary the organization, for-
mation, and creation of such proposed pub-
lic road district . . . with boimdaries
as stated in said petition," and sets out the
boundaries of the district as established.
The sole purpose in creating the district,
as the statute shows, was to accomplish the
improvement of public roads therein, — ^the
particular roads to be designated by the dis-
trict commissioners and an approving vote
of the landowners.
As the district was not established by the
legislature, but by an exercise of delegated
authority, there was no legislative decision
that its location, boundaries, and needs were
such that the lands therein would be bene-
fited by its creation and wfiat it was in-
tended to accomplish, and, this being so, it
was essential to due process of law that the
landowners be accorded an opportunity to
be heard upon the question whether their
lands would be thus benefited. If the stat-
ute provided for such a hearing, the de-
cision of the designated tribunal would be
sufficient, unless made fraudulently or in
bad faith. Fallbrook Irrig Dist. v. Bradley,
164 U. S. 112, 167, 174, 175, 41 L. ed. 369,
391, 394, 17 Sup. Ct. Rep. 56.
Did the statute contemplate such a hear-
ing? We have [248] seen that it required
that adequate public notice be given of the
presentation of the petition for the creation
248-250
SUPREME COURT OF THE UNITED STATES.
Oct. TkBM,
of the dif trict and the time when it would
be considered, made provision for the pres-
entation of remonstrances by o¥mer8 of
lands within the proposed district, and di-
rected that the petition and remonstrances
be heard by the county court, that the court
make such change in the boimdaries "as the
public good may require" and that the
boundaries be not enlarged unless the owners
of the lands not before included consent in
writing or appear at the hearing and be
given an opportunity to present objections.
That a hearing of some kind was contem-
plated is o|t)vious, and is conceded. But it
is insisted that it was not to be directed to
the question' whether the lands included
would be benefited by the creation of the
district and what it was intended to accom-
plish. If that were so, there would be little
purpose in the hearing and no real necessity
for it.
True, the statute does not in terms say
that lands which will not be benefited shall
be excluded, or that only such as will be
benefited shall be included, but it does say
that the court shail make such change in
the proposed boundaries "as the public good
may require." In the presence of this com-
prehensive direction there can be no doubt
that the legislature intended to authorize
and require the county court to adjust the
boundaries so they would include only such
lands as might be reasonably expected to
be benefited by the improvement of the dis-
trict roads, and therefore might be properly
charged with the cost of that work. That
there is an inseparable union between the
public good and due regard for private
rights should not be forgotten.
Of course, the nature and extent of the
hearing contemplated by the statute is a
question of local law, and if it were clear
that the supreme court of the state had
settled it, we should accept and follow that
ruling. Whether [240] the question has
been settled is at least uncertain. In the
principal opinion delivered on the original
hearing that court said: "We hold that the
general assembly, in granting to landowners
of a proposed road district the privilege of
being heard by remonstrance, intended that
such landowners should have the rij^ht in
such remonstrance to urge against the or-
ganization of the district or the inclusion
of their lands therein any statutory or con-
stitutional grounds which such landowners
may possess; and that if such grounds be
valid the court may exclude the lands of
the remonstrants or refuse to incorporate
the proposed district. This ruling is ren-
dered necessary to avoid the conclusion that
the general assembly directed a hearing
without intending that any relief might
thereby be obtained." That opinion, al-
628
though copied into the record, does not
appear in the Missouri Reports. They
contain only the opinion delivered on the re-
I hearing. The former may have been entire-
ly recalled. If so, the question dealt with
in the quotation made from it has not been
settled, for the later opinion is silent upon
the subject. But whether the question be
settled or open is not of much importance,
for, as before indicated, our view of the
statute accords with that expressed by the
state court in the excerpt from the first
opinion.
We conclude therefore that the statute
did provide for according the landowners an
opportunity to be heard, when the district
was created, upon the question whether
their lands would be benefited, and also
that the order establishing the district
shows that the statute was complied with
in that regard.
But in opposition to this conclusion it is
urged that an adequate hearing could not
be had at that time because the road to be
improved had not been selected and no one
could say what lands would be benefited.
We are not impressed with this contention.
As was well understood, [250] the purpose
in creating the district was to bring about
the improvement of its roads. Their num-
ber, location, and condition were known, as
was also the extent and nature of their use.
The district was of limited area and the
proximity or relation of every part to each
road was patent. As applied to such a
situation, we perceive no serious obstacle
to determining with approximate certainty
and satisfaction whether the improvement
of any one or more of the roads — even
though no particular one was as yet select-
ed— ^would be of benefit throughout the dis-
trict. We say with approximate certainty
and satisfaction, because this is all that is
required. At best the question is one of
opinion and degree, even where the im-
provement to be made has been definitely
determined. The boimdaries of drainage,
irrigation, and other benefit districts are
often defined in this way. Indeed, it is con-
ceded that had the legislature created this
particular district, the present objection
would be untenable. If such a body can
obtain the requisite information and exer-
cise the requisite judgment, it is not easy
to believe 'that the task would be more
difiScult for a county coiu't sitting in the
vicinity.
The claim that the landowners are en-
titled to a hearing on the question whether
the benefits in the different zones will be
in accord with the graduated ratings of their
lands is not seriously pressed upon our at-
tention and requires but brief notice. The
ratings are not fixed in the exercise of dele-
S40 U. 8.
1916.
HAMILTONBROWN SHOE CO. v. WOLF BROS, ft CO.
250, 251
gated authoritj, but by the statute itself,
which must be taken as a legislative de-
cision that in a district lawfully constituted,
in the manner before indicated, the benefits
to the lands in the different zones will be
in approximate accord with the ratings
named. This being so, no hearing is essen-
tial to give effect to this feature of the ap-
portionment. A legislative act of this
nature can be successfully called in ques-
tion only when it is so devoid of any rea-
sonable basis as to be essentially arbitrary
and [251] an abuse of power (Wagner v.
Leaer, 239 U. S. 207, ante, 230, 36 Sup. Ct.
Bep. 66; Houck v. Little River Drainage
Disi. 239 U. S. 254, ante, 266, 36 Sup. Ct.
Rep. 58; Myles Salt Co. v. Iberia & St. M.
Drainage Dist. 239 U. S. 478, ante, 392, 36
Sup. Ct. Rep. 204; Cast Realty & Invest. Co.
V. Schneider Granite Co. 240 U. S. 55, ante,
623, 36 Sup. Ct. Rep. 254. And see Bi-Metal-
lic Invest. Co. v. State Bd. of Equalization,
239 U. S. 441, 445, 446, ante, 372, 375, 36
Sup. Ct. Rep. 141), which obviously is not
the case here.
The claim that the landowners are not
afforded an opportunity to be heard in re-
spect of the value of their lands is also un-
tenable. While no hearing is given when
the lands are appraised, one is accorded
when the tax is sought to be enforced. The
node of enforcement is by a suit in a court
of justice, when, as the supreme court of
the state holds, owners aggrieved by the
valuation may have a full hearing upon
that question. This is due process. David-
son V. New Orleans, 96 U. S. 97, 104, 24
L ed. 616, 619; Hagar v. Reclamation Dist.
Ill U. 8. 701, 711, 28 L. ed. 569, 573, 4
^np. Ct. Rep. 663.
Judgment affirmed.
IHAMILTON-BROWN SHOE COMPANY,
Petitioner,
V.
WOLF BROTHERS ft COMPANY.
(See^S. C. Reporter's ed. 251-263.)
Appeal ^ harmless error — measure of
damai^s.
1. The adoption b^ the master of a
^3neasure of recovery which might be errone-
ous, if the suit could be regarded as one of
imfair competition without trademark in-
iringement, does not require the reversal by
the Federal Supreme Court of a decree for
complainant, as recommended by the mas-
ter, where a claim of trademark rieht,
which that court finds to be well founded,
was asserted in the bill and has not becsi
abandoned, and the proofs adduced before
the master, and his findings thereon, are
as applicable to a claim of compensa-
tion for infringement of the trademark as
to a claim of compensation for unfair com-
petition in the absence of a trademark.
[For other cases, see Appeal and Error, VIII.
m. 1. In Digest Sap. Ct. 1908.]
Trademark ^ geographical or descrip-
tive term — "American Girl."
2. The words "The American Girl" are
neither geographical nor descriptive as ap-
plied to women's shoes made and sold in
the United States, and are therefore the
subject of exclusive appropriation as a
trademark for such product.
[For other cases, see Trademark, II., in Di-
gest Sup. Ct. 1008.]
Certiorari — to circuit conrt of appeals
— scope of review — elTcct of prior
refusal of writ.
3. The refusal of the Federal Supreme
Court to review by certiorari a decree of a
circuit court of appeals in a trademark suit
which, though interlocutory, has been
treated as settling the law of the ease so
as to furnish the rule for the guidance of
the referee, the district court, and the cir-
cuit court of appeals itself upon the sec-
ond appeal, does not preclude the Supreme
Court, when reviewing on certiorari the
final decree of the circuit court of appeals,
rendered on the second appeal, from no-
ticing and rectifying any errors that may
have occurred in the interlocutory proceed-
ings.
[For other cases, see Certiorari, II. c, in
Digest Sap.. Ct. 1008.]
Damages -* lost profits — trademark
salt. *
4. The owner of .a valid trademark is
entitled to recover the profits acquired by
an infringer from infringing sales.
[For other cases, see Damages, VI. t, in
Digest Sop. Ct. IOCS.]
Evidence — burden of proof — trade-
mark case -* separation of profits.
5. The inherent impossibility of an ap-
portionment between the profits attributa-
ble to the use of a simulated trademark and
those attributable to the intrinsic merit of
the infringer's product is a sufliicient rea-
son for not charging the owner of a trade-
mark, when suing the infringer, with the
burden of showing what part of the latter's
profits were attributable to the use of the
infringing mark, — especially where the in-
fringement was not innocent.
[For other cases, see Evidence, II. k, 1, in
Digest Sup. Ct. 1008.]
[No. 37.]
Note. — On trademark in geographical
same — see notes to Dyment v. Lewis, 26
L.RJL(N.S.) 73; and Elgin Nat. Watch
Co. V. Illinois Watch Case Co. 45 L. ed. U.
S. 365.
On damages for infringement of trade-
60 li. ed.
mark as affected by loss of profits — see Rose
V. Hirsh, 51 L.R.A. 823.
On certiorari from Federal Supreme
Court to circuit courts of appeals — see
notes to United States v. Dickinson, 53 tu
ed. U. S. 711.
SUPREME COURT OF THE UNITED STATES.
Oct. Tkmm,
Argued October 28 and 29, 1916. Decided
February 21, 1916.
ON WRrr of Certiorari to the United
States Circuit Court of Appeals for the
Eighth Circuit to review a decree which,
on a second appeal, reversed a decree of the
District Court for the Eastern District of
Missouri, awarding nominal damages in a
suit to restrain infringement of a trademark
and unfair competition, with directions to
enter a decree against defendant for the
damages recommended by the master. Af-
firmed.
See same case below, on first appeal, 91
C. C. A. 363, 165 Fed. 413; on second ap-
peal, 124 C. C. A. 409, 206 Fed. 611.
The facts are stated in the opinion.
Messrs. Luke E. Hart and Joseph W.
Bailey argued the cause, and, with Messrs.
H. S. Priest, Morton Jourdan, and Charles
B. Howry, filed a brief for petitioner:
Unfair competition consists in the sale of
the goods of one manufacturer or vendor
for the goods of another; and if defendant
so conducts its business as not to palm off
its goods as those of complainant, the ac-
tion fails.
Howe Scale Co. v. Wyckoff, Seamans &
Benedict, 198 U. S. 140, 49 L. ed. 986, 25
Sup. Ct. Rep. 609; Standard Paint Co. v
. Trinidad Asphalt Mfg. Co. 220 U. S. 461, 55
L. ed. 543, 3 Sup. Ct. Rep. 456; Elgin Nat.
Watch Co. V. Illinois Watch Case Co. 179
U. S. 665, 45 L. ed. 365, 21 Sup. Ct. Rep.
270; Brown Chemical Co. v. Meyer, 139 U.
S. 540, 35 L. ed. 247, 11 Sup. &t. Rep. 625;
Good^ar's India Rubber Glove Mfg. Co. v.
Goodyear Rubber Co. 128 U. S. 598, 32 L.
ed. 535, 9 Sup. Ct. Rep. 166; Baker v.
Baker, 53 C. C. A. 167, 115 Fed. 299; J. G.
Rowley Co. v. Rowlet, 113 C. C. A. 386, 193
Fed. 390; Rathbone, S. &, Co. v. Champion
Steel Range Co. 37 L.RJ^.(N.S.) 258, 110
C. C. A. 596, 189 Fed.*26; G. & C. Merriam
Co. V. Ogilvie, 95 C. C. A. 423, 170 Fed. 167 ;
Apollo Bros. V. Perkins, 125 C. C. A. 192,
207 Fed. 530; Rushmore v. Badger Brass
Mfg. Co. 117 C. C. A. 255, 198 Fed. 379.
See also John T. Dyer Quarry Co. v. Schuyl-
kill Stone Co. 185 Fed. 557 ; N. K. Fairbank
Co. T. Windsor, 61 C. C. A. 233, 124 Fed.
200; Dr. A. Reed Cushion Shoe Co. v. Frew,
158 Fed. 552; Newcomer v. Scriven Co. 94
C. C. A. 77, 168 Fed. 621.
This is a case of alleged unfair Competi-
tion in business. It is an action on ac-
count of alleged fraudulent conduct on the
part of defendant to plaintiff's injury; it is
not a trademark or a patent case. The
plaintiff can recover such damages only as
it shows it has sustained, or such profits
as defendant has made by reason of the
6S0
alleged unfair competition. It must show:
(a) that it has lost trade which it other-
wise could have bad but for defendant's
alleged wrongful acts; or (b) that defend-
ant sold its goods to the trade as and for
the plaintiff's with the belief at the time
of the purchase on the part of the trade
that it was purchasing plaintifl^s goods, and
not those of defendant.
Elizabeth v. American Nicholson Pav. Co.
97 U. S. 126, 24 L. ed. 1000; Baker v. Baker,
53 0. C. A. 157, 115 Fed. 297; Newcomer ▼.
Scriven Co. 94 C. C. A. 77, 168 Fed. 621;
Kann v. Diamond Steel Co. 32 C. C. A. 324,
61 U. S. App. 22, 89 Fed. 712; New Orleans
Coffee Co. v. American Coffee Co. 124 La. 19,
49 So. 730; Dr. A. Reed Cushion Shoe Co.
V. Frew, 158 Fed. 552, on appeal, 89 C. C.
A. 577, 162 Fed. 887; Lawrence Mfg. Co. v.
Tennessee Mfg. Co. 138 U. S. 549, 34 L. ed.
1004, 11 Sup. Ct. Rep. 396; G. & C. Merriam
Co. V. Ogilvie, 95 C. C. A. 423, 170 Fed. 169.
Under the analogy of the patent cases,
plaintiff would not be entitled to recover
the "entire profits" made by the defendant
from the manufacture and sale of American
Lady shoes, but only that part of the "en-
tire profits" which was due and attributable
to the use of the offending mark.
Walker, Patents, 4th ed. §§ 555, 711;
Keystone Mfg. Co. v. Adams, 151 U. S. 139,
38 L. ed. 103, 14 Sup. Ct. Rep. 205; Dobson
V. Hartford Carpet Co. 114 U. S. 444, 446,
29 L. ed. 178, 179, 5 Sup. Ct. Rep. 045;
Westinghouse Electric & Mfg. Co. v. Wag-
ner Electric & Mfg. Co. 225 U. S. 604, 620,
56 L. ed. 1222, 1228, 41 L.ILA.(N.S.) 653, 32
Sup. Ct. Rep. 691; Dowagiac Mfg. Co. v.
Minnesota Moline Plow Co. 235 U. S. 641,
59 L. ed. 398, 35 Sup. Ct. Rep. 221; Elisa-
beth V. American Nicholson Pav. Co. 97 U.
S. 126, 24 L. ed. 1000; Mowry v. Whitney,
14 Wall. 620, 20 L. ed. 860.
The American Lady shoes sold by the de-
fendant ''since the commencement of this
suit" were ''accompanied with other mat-
ter clearly indicating" that they were the
product of the Hamilton-Brown Shoe Com-
pany, and therefore the defendant cannot
be required to account for them. *
Delaware k H. Canal Co. v. Clark, 13
Wall. 327, 20 L. ed. 584; Howe Scale Co. v.
Wyckoff, Seamans & Benedict, 198 U. S.
118, 140, 49 L. ed. 972, 986, 25 Sup. Ct. Rep.
600; Dr. A. Reed Cushion Shoe Co. v. Frew,
89 C. C. A. 577, 162 Fed. 887; Elgin Nat.
Watch Co. V. Illinois Watch Case Co. 179 U.
S. 665, 45 L. ed. 365, 21 Sup. Ct. Rep. 270;
Standard Paint Co. v. Trinidad Asphalt
Mfg. Co. 220 U. S. 461, 55 L. ed. 543, S Sup.
Ct. Rep. 456; Brown Chemical Co. v. Meyer,
139 U. S. 547, 35 L. ed. 250, 11 Sup. Ct.
Rep. 625; Goodyear's India Rubber Glove
Mfg. Co. ▼. Goodyear Rubber Co. 128 U. SL
240 V. &
1915.
HAIOLTONBROWN SHOE 00. t. WOLF BRO& t 00.
^8, 32 L. ed. 636, 9 Sup. Ot Rep. 106; Sax-
lehner v. Wagner, 216 U. 8. 376, 64 L. ed.
^26, 30 Sup. €t Rep. 298; J. F. Rowley Oo.
V. Rowlet, 113 O. a A. 386, 193 Fed. 390;
<1. & 0. Merriam Co. r. Ogilvie, 96 G. a A.
423, 170 Fed. 169; Trinidad Asphalt Mfg.
Co. V. Standard Paint Go. 90 0. a A. 196,
163 Fed. 977; Walter Baker & Co. r. Oraj,
^ L.RJL.(KJS.) 899, 113 C. G. A. 417, 192
Fed. 921; McLean t. Fleming, 96 U. S. 246,
24 L. ed. 828; Coats y. Merrick Tluread Co.
149 U. 8. 669, 37 L. ed. 861, 13 Sup. Ct. Rep.
966; Proctor ft Q. Co. v. Globe Ref. Co.
34 a G. A. 406, 92 Fed. 362; Samson Cord-
age Works T. Puritan Cordage Mills, 197
Fed. 206; Centaur Go. v. Marshall, 38 G. G.
A. 413, 97 Fed. 786; Allen B. Wrisley Go.
T. Iowa Soap Co. 69 a 0. A. 64, 122 Fed.
796.
The amount of the defendant's profit is
the amount that is left after everj item
which the manufacture and sale cost the de-
fendant has been deducted; and if the de-
fendant made no profit, plaintiff is entitled
to none.
Keystone Mfg. Oo. t. Adams, 161 U. S.
139, 148, 38 L. ed. 103, 106, 14 Sup. Ot
Rep. 296.
The action of the master and of the court
•of appeals in refusing to allow the defend-
ant, as an element of the cost of manufac-
turing and selling American Lady, shoes, in-
terest on its capital, which was devoted ez-
^lusiYoly to the American Lady line of
shoes, oyer and above borrowed moneys, is
erroneous.
Gould's Mfg. Go. T. Oowing, 106 U. S. 263,
267, 26 L. ed. 987, 988; Seabury ft Johnson
T. Am Ends, 162 U. S. 661, 670, 38 L. ed.
^63, 666, 14 Sup. Ct. Rep. 683; Troy Iron
ft Nail Factory y. Coming, 6 Blatchf. 328,
Fed. Gas. No. 14,196; Steam Stone Gutter
Co. y. Windsor Mfg. Co. 17 Blatehf . 24, Fed.
Cas. Na 13,336.
Mr. Lawrence Maxwell argued the
cause, and, with Messrs. Simeon M. Johnson
and Percy Werner, filed a brief for respond-
ent:
The question is whether the defendants
haye or have not knowingly put into the
hands of the retail dealers the means of
deceiving the ultimate purchaser.
Scheuer y. Muller, 20 G. G. A. 161, 46 U.
S. App. 184, 26 U. S. App. 784, 74 Fed. 226;
Bennison Mfg. Co. y. Thomas Mfg. Go. 94
Fed. 651 ; National Biscuit Go. y. Baker, 96
Fed. 135; N. K. Fairbank Co. y. R. W. BeU
Mfg. Co. 23 C. C. A. 554, 49 tj. S. App. 190,
77 Fed. 869; Revere Rubber Oo. y. Consoli-
dated Hoof Pad Co. 139 Fed. 151; Lever y.
<3oodwin, L. R. 36 Ch. Div. 1, 67 L. T. N. S.
683, 36 Week. Rep. 177; Gulden y. Chanoe,!
106 C. C. A. 16, 182 Fed. 303. '
40 li. ed.
It was evidently for the purpose of f acili*
tating such fraud that defendant left its
name off the shoe where it would be seen
by the ultimate purchaser, and placed it in-
conspicuously on cartons, where it would
not be seen by her until after she had
bought the shoes, if at all.
Herring-Hall-Marvin Safe Co. y. Hall's
Safe Go. 208 U. S. 664, 569, 62 L. ed. 616,
620, 28 Sup. Ct Rep. 350; Singer Mfg. Co.
y. June Mfg. Go. 163 U. S. 177, 41 L. ed.
121, 16 Sup. Ot. Rep. 1002; George G. Fox
Go. y. Hathaway, 199 Mass. 99, 24 L.RA.
(NJ3.) 900, 86 N. S. 417.
Plaintiff was entitled to an account of
defendant's profits.
Regis y. Jaynes, 191 Mass. 249, 77 N. E.
774; Root y. Lake Shore & M. S. R. Go. 105
U. S. 189, 207, 26 L. ed. 975, 981; Tilghmati
y. Proctor, 125 U. S. 136, 148, 31 L. ed.
664, 668, 8 Sup. Ct. Rep. 894; Singer Mfg.
Go. y. June Mfg. Co. 163 U. S. 169, 41 L.
ed. 118, 16 Sup. Ct. Rep. 1002; Herring-
HaU-Marvin Safe Co. v. Hall's Safe, 208 U.
a 654, 62 L. ed. 616, 28 Sup. Ct. Rep. 360.
Defendant has infringed a ''property"
right.
G. & G. Merriam Oo. y. Saalfield, 117 0.
0. A. 245, 198 Fed. 369; Secondary Riidits
in Trade-Mark Cases, 18 Yale L. J. 671;
Sartor v. Schaden, 125 Iowa, 696, 101 N. W.
611; Wotherspoon v. Gurrie, L. R. 5 H. L.
508, 42 L. J. Gh. N. a 130, 27 L. T. N. S.
393; Singer Mfg. Co. y. June Mfg. Co. 163
U. S. 169, 188, 41 L. ed. 118, 125, 16 Sup.
Ct Rep. 1002; Sazlehner v. Siegel-Cooper
Go. 179 U. S. 42, 46 L. ed. 77, 21 Sup. Ct.
Rep. 16; Edelsten v. Edelsten, 1 DeG. J. &
a 186, 9 Jur. N. S. 479, 7 L. T. N. S. 768,
11 Week. Rep. 328; Lever v. Goodwin, L. R.
36 Ct. Div. 1, 57 L. T. N. S. 683, 36 Week.
Rep. 177; W. R. Lynn Shoe Go. v. Auburn-
Lynn Shoe Co. 100 Me. 461, 4 L.R.A.(NJ3.)
960, 62 Atl. 499; Avery y. Meilde, 86 Ky.
448, 7 Am. St. Rep. 604, 3 S. W. 609; Regis
y. Jaynes, 191 Mass. 245, 77 N. £. 774;
Forster Mfg. Co. v. Cutter-Tower Co. 211
Mass. 219, 97 N. B. 749; Paul, Trade-Mark,
I 326; Noiaseme Hosiery Co. y. Straus, 209
Fed. 496, 131 G. a A. 503, 216 Fed. 361; P.
B. Sharpless Co. y. Lawrence, 130 G. C A.
69, 213 Fed. 423.
Plaintiff has sustained the burden of
proof.
Avery y. Meikle, 86 Ky. 436, 7 Am. St.
Rep. 604, 3 S. E. 609; Lawrence Mfg. Go.
y. Tennessee Mfg. Go. 138 U. S. 538, 646,
34 L. ed. 998, 1003, 11 Sup. Ct. Rep. 396;
Forster Mfg. Co. y. Gutter-Tower Co. 211
Mass. 219, 97 N. E. 749; National Biscuit
Co. y. Baker, 05 Fed. 136. •
"American Girl" is a valid trademark.
Keasbey v. Brooklyn Chemical Works,
142 N. Y. 467, 40 Am. St. Rep. 623, 37 N. E.
253-265
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
476; Dennison Mfg. Co. v. Thomas Mfg. Co.
94 Fed. 653; Joseph Banigan Rubber Co. v.
Bloomingdale, 89 Off. Gaz. 1670.
Plaintiff it entitled to interest on the
amount awarded from March 9, 1910, the
date as of which the master stated the ac-
count.
Tilghman t. Proctor, 125 U. 8. 136, 160,
31 L. ed. 664, 672, 8 Sup. Ct. Rep. 894.
Mr. Justice Pitney delivered the opinion
of the court:
Respondent, an Ohio corporation en-
gaged in the manufacture of shoes, filed
its bill of complaint on January 29, 1906,
in the circuit court of the United States for
the eastern district of Missouri, eastern
division, against petitioner, a Missouri cor-
poration engaged in the same business, seek-
ing an injunction to restrain infringement
of an alleged trademark for shoes consist-
ing of the words "The American Girl,"
by the use of the words *' American Lady"
as a colorable imitation, and also unfair
competition in trade, carried on by means
that included the use of the latter words;
and praying an accounting of damages and
profits. On final hearing the circuit court
dismissed the bill. Upon appeal, the cir-
cuit court of appeals (91 C. C. A. 363, 165
Fed. 413) held that "The American Girl"
was a geographical name, and, as applied
to women's shoes, was descriptive merely
of shoes manufactured in America and to
be worn by women, and not an arbitrary
or fanciful name to indicate the maker, and
hence that the term [254] as applied to
shoes was not the subject of a valid trade-
mark. But the court held that complainant
was entitled to be protected against imfair
trade; that the record disclosed that it and
its predecessors in business had employed
the words "The American Girl" as a trade-
mark continuously since the year 1896, had
extensively advertised their shoes under
that name, with the catch phrase "A shoe
as good as its name," in trade journals and
newspapers throughout the United States,
and largely throughout the southern states,
and thus established an extensive trade
therefor; and that defendant, by adopting
in the year 1900 and thereafter using the
name "The American Lady," with certain
catch phrases, in connection with shoes made
by it, and this with full knowledge of com-
plainant's rights, was guilty of unfair com-
petition, tending to and resulting in con-
fusion in the trade, and that complainant
was entitled to relief. The decree of the
circuit court was therefore reversed, with
directions to -decree an injunction and an
accounting limited to the time since the
eonunencement of the suit.
Complainant petitioned this court for a
ess
I writ of certiorari to review that decision,
I but this was denied. 214 U. S. 514, 53 H
ed. 1063, 29 Sup. Ct. Rep. 696.
Tliereafter the circuit court, pursuant to
the mandate of the court of appeals, made
a decree granting an injunction in accord-
ance with the opinion of that court, and
referring to a master an accounting of the
damages and profits for which defendant
might be liable, "limited to shoes sold by
the defendant since the filing of the bill
in this case, and which were marked with
the name 'American Lady,' and not accom-
panied with any other matter clearly
indicating that such shoes were of the manu-
facture of the Hamilton-Brown Shoe Com-
pany." An accounting was had, extending
frojn the date of the commencement of the
suit to March 10, 1910. Complainant made
no attempt to introduce substantial proof
as to the amount of [255] its damages,
declaring that they were practically in-
capable of exact computation. All the
testimony was directed to the question of
defendant's profits.
The master reported that during the peri-
od covered by the accounting defendant sold
"American Lady" shoes, which, because of
differences in marking, he divided into three
classes:
Class 1. 974,016 pairs of shoes bearing
the words "American Lady" stamped upon
the sole, and bearing no other impression
or distinguishing mark. Tlie profits upon
these were found to be $254,401.72.
Class 2. 961,607 pairs of shoes marked
"American Lady," with the words "Hamil-
ton-Brown Shoe Co.," but without the word
"Makers," or other matter indicating that
the shoes were of defendant's manufacture.
The profits upon these were found to be
$190,909.83.
Class 3. 593,872 pairs of shoes marked
"American Lady," but bearing also the
marks "Hamilton-Brown Shoe Co., Makers."
The profits .upon these were found to be
$132,740.77.
The master recommended that a judgment
be entered for the profits accruing from the
first two classes, aggregating $445,311.55.
The profits accruing from the third claas
he held complainant was not entitled to re-
cover under the opinion of the court of ap-
peals and the decree of the circuit court,
entered in accordance with it. Both parties
having filed exceptions, the district court
(successor of the circuit court), overruled
those of complainant, sustained those of de-
fefidant, and adjudged a recovery of $1 nom-
inal damages. 192 Fed. 930.
Complainant appealed to the circuit court
of appeals, contending that a decree should
have been rendered in its favor for the prof-
' its upon the first two classes of shoes, in ao-
S40 U. 8.
1915.
HAHILTON-BROWN SHOE 00. t. WOLF BROS, ft 00.
266-258
eordance with the master's recommendation,
and that it should have included the profits
upon the third class, which were denied by
the master. The court of appeals [256]
reversed the decree, with directions that de*
fendant's exceptions to the master's report
be overruled, that the report be confirmed,
and that a decree be entered against de-
fekidant for the amount recommended by
him, with costs. 124 a 0. A. 409, 206 Fed.
6U.
This writ of certiorari having been al-
lowed, we proceed to deal with the questions
presented by the record.
Regarding the case as one of unfair com-
petition without trademark infringement* it
is insisted by petitioner that tbe normal re-
covery does not include the gains and profits
of defendant, according to the rule admit-
tedly applicable in equity to trademark cas-
es, but tiiat the injured party is limited to
such damages as it shows it has sustained;
and that the present case is devoid of cir-
cumstances to take it out of the ordinary
rule.
If, however, complainant was and is en-
titled to the use of the words "The American
Girl" as a trademark, in the strict sense of
tbe term, and if the proofs adduced before
the master, and his findings thereon, are as
applicable to a claim of compensation for
infringement of the trademark as to a claim
of compensation for unfair competition in
the absence of trademark, it will not be nec-
essary to pass upon the question of the
proper measure of recovery in a non-trade-
mark case. As above pointed out, a claim
of trademark right was asserted in the bill,
and it has not been abandoned. It was over-
ruled by the circuit court of appeals on the
first appeal, upon reasoning with which we
are unable to concur. We do not regard the
words 'The American Girl," adopted and
employed by complainant in connection with
shoes of its manufacture, as being a geo-
graphical or descriptive term. It does not
signify that the shoes are manufactured in
America, or intended to be sold or used in
America, nor does it indicate the quality or
characteristics of the shoes. Indeed, it does
not, in its primary signification, indicate
shoes at all. It is a fanciful designation,
arbitrarily selected by complainant's [257]
predeoessors to designate shoes of their
manufacture. We are convinced that it was
•abject to appropriation for that purpose,
and it abimdantlj appears to have been ap-
propriated and used by complainant and
those under whom it claims.
The eases cited to the contrary are dis-
tlngnishable. In Delaware ft H. Ganal Co*
T. Clark, 18 Wall. 811, 824, 20 L. ed. 681,
§88, the word "Lackawanna" was rejected
■s a trademark for ooal because it designat-
•0 li. ed.
ed the district in which the ooal was pro-
duced. In Columbia Mill Co. v. Alcorn, 150
U. S. 460, 466, 37 L. ed. 1144, 1147, 14 Sup.
Ct. Rep. 151, it was held that "Columbia"
could not be appropriated for exclusive use
as a trademark because it was a geograph-
ical name. So, with respect to ''Elgin," as
designating watches (Elgin Nat. Watch Co.
▼. lUinoU Watch Case Co. 179 U. S. 665, 673,
45 L. ed. 365, 878, 21 Sup. Ct. Rep. 270) ;
"Genesee," claimed as a trademark for salt
(Genesee Salt Co. v. Bumap, 20 C. C. A.
27, 43 U. S. App. 243, 73 Fed. B18 ) ; "Old
Country," as a mark for soap (Allen B.
Wrisley Co. v. Iowa Soap Co. 59 C. C. A.
54, 122 Fed. 796). If the mark here in con-
troversy were "American Shoes," these cas-
es would be quite in point. (And see Shav-
er T. Heller ft M. Co. 65 L.R.A. 878, 48
C. C. A. 48, 108 Fed. 821, 826.) But "The
American Girl" would be as descriptive of
almost any article of manufacture as of
shoes; that is to say, not descriptive at alL
The phrase is quite analogous to "American
Express," held to be properly the subject of
exclusive appropriation as a trademark for
sealing wax in Dennison Mfg. Co. v. Tliomas
Mfg. Ck>. 94 Fed. 651, 653.
It is contoided that this question is set-
tled otherwise, at least as between these
parties, by the decision of the circuit court
of appeals on the first appeal, and our re-
fusal to review that decision upon complain-
ant's petition for a writ of certiorari, and
that the only questions open for review at
this time are those that were before the
court of appeals upon the second appeal.
This, however, is based u]Km an erroneous
view of the nature of our jurisdiction to re-
view tiie judgments and decrees of the cir-
cuit court of [258] appeals by certiorari
under $ 240, Judicial Code [36 Stat at L.
1157, chap. 231], derived from § 6 of the
Evarts act of March 3, 1891, 26 Stat, at L.
828, chap. 517, Comp. SUt. 1913, § 1217. As
has been many times declared, this is a ju-
risdiction to be exercised sparingly, and only
in cases of peculiar gravity and general im-
portance, or in order to secure uniformity of
decision. Re Lau Ow Bew, 141 U. S. 583,
587, 35 L. ed. 868, 869, 12 Sup. Ct. Rep. 43;
Re Woods, 143 U. S. 202, 36 L. ed. 125, 12
Sup. Ct. Rep. 417; Lau Ow Bew v. United
States, 144 U. S. 47, 58, 36 L. ed. 340, 344,
12 Sup. Ct. Rep. 517; American Constr. Co.
V. Jacksonville, T. ft K. W. R. Co. 148 U. S.
372, 383, 37 L. ed. 486, 491, 13 Sup. Ct. Rep.
758; Forsyth v. Hammond, 166 U. S. 506,
514, 41 L. ed. 1095, 1098, 17 Sup. Ct. Rep.
665 ; Fields v. United States, 205 U. S. 292,
206, 51 L. ed. 807, 810, 27 Sup. Ct. Rep.
543^ And, except in extraordinary cases,
the writ is not issued until final decree.
American Constr. Co. r. Jacksonville, T. ft
258-260
SUPREME COURT OF THE UNITED STATES.
Oct. Tbkm»
K. W. R. Co. 148 U. S. 372, 378, 384, 37 L.
ed. 486, 489, 491, 13 Sup. Ct. Rep. 758;
The Three Frienda, 166 U. S. 1, 49, 41 L. ed.
897, 913, 17 Sup. Ct. Rep. 495; The Con-
queror, 166 U. S. 110, 113, 41 L. ed. 937,
939, 17 Sup. Ct. Rep. 510; Denver v. New
York Trust Co. 229 U. S. 123, 133, 57 L.
ed. 1101, 1120, 33 Sup. Ct. Rep. 657. The
decree that was sought to be reviewed by
certiorari at complainant's instance was not
a final one, a fact that of itself alone fur-
nished sufficient ground for the denial of
the application; besides which it appears,
by reference to our files, that the applica-
tion was opposed by the present petitioner
upon the ground that the case, however im-
portant to the parties, involved no question
of public interest and general importance,
nor any conflict between the decisions of
state and Federal courts, or between those
of Federal courts of different circuits.
It is, of course, sufficiently evident that
the refusal of an application for this ex-
traordinary writ is in no case equivalent to
an affirmance of the decree that is sought to
be reviewed. And, although in this instance
the interlocutory decision may have been
treated as settling "the law of the case" so
as to furnish the rule for the guidance of
the referee, the district court, and the court
of appeals itself upon the second appeal,
this court, in now reviewing the final de-
cree by virtue of the writ of certiorari, is
called upon to notice and rectify any error
that may have occurred in the interlocutory
proceedings. Panama R. Co. v. [250] Na-
pier Shipping Co. 166 U. S. 280, 284, 41 L.
ed. 1004, 1005, 17 Sup. Ct. Rep. 572; United
States V. Denver & R. 6. R. Co. 191 U.
S. 84, 93, 48 L. ed. 106, 109, 24 Sup. Ct. Rep.
33 ; Lutcher & M. Lumber Co. v. Knight, 217
U. S. 257, 267, 64 L. ed. 757, 761, 30 Sup.
Ct. Rep. 505; Messenger v. Anderson, 225
U. S. 436, 444, 56 L. ed. 1152, 1156, 32 Sup.
Ct. Rep. 739.
Having reached the conclusion that com-
plainant is entitled to the use of the words
"The American Girl" as a trademark, it re-
sults that it is entitled to the profits ac-
quired by defendant from the manifestly in-
fringing sales under the label "American
Lady," — at least to the extent^ that such
profits are awarded in the decree under re-
view. The right to use a trademark is rec-
ognized as a kind of property, of which the
owner is entitled to the exclusive enjoyment
to the extent that it has been actually u^ed.
McLean v. Fleming, 96 U. S. 245, 252, 24 L.
ed. 828, 831; Manhattan Medicine Co. v.
Wood, 108 U. S. 218, 224, 27 L. ed. 706, 708,
2 Sup. Ct. Rep. 436. The infringer is re-
quired in equity to account for and yield
up his gains to the true owner, upon a prin-
ciple analogous to that which charges a
6S4
trustee with the profits acquired by wrong-
ful use of the property of the cestui que
truet. Not that equity assumes jurisdic-
tion upon the ground that a trust exists.
As pointed out in Root v. Lake Shore ft M.
S. R. Co. 105 U. S. 189, 214, 26 L. ed. 975,
984; and Tilghman v. Proctor, 125 U. S.
136, 148, 31 L. ed. 664, 668, 8 Sup. Ct. Rep.
894 (patent cases), the jurisdiction must
be rested upon some other equitable ground,
— in ordinary cases, as in the present, the
right to an injunction, — ^but the court of
equity, having acquired jurisdiction upon
such a ground, retains it for the purpose of
administering complete relief, rather than
send the injured party to a court of law for
his damages. And profits are then allowed
as an equitable measure of compensation,
on the theory of a trust ew malefioio. In the
courts of England, the rule seems to be that
a party aggrieved must elect between dam-
ages and profits, and cannot have both. In
this country, it is generally held that in a
proper case both damages and profits may
be awarded. As already observed, the decree
under review allows profits only, confines
the allowance to such as accrued [260]
after the commencement of the suit, and ex-
cludes all sales where the term "American
Lady" was accompanied with any other
matter clearly indicating that suc^ shoes
were of the manufacture of the Hamilton-
Brown Shoe Company. It was construed to
exclude all shoes bearing in addition to
"American Lady*' the marks "Hamilton-
Brown Shoe Co., Makers." The account
was based upon undisputed data, and no
reason is suggested why, if otherwise accu-
rate, it is not as properly applicable upon
the theory of trademark as upon that of
unfair competition aside from trademark
infringement,— at least, so far as defendant
is entitled to criticize it; complainant is
not attacking the decree.
It is, however, insisted by defendant (pe-
titioner) that whether the recovery be based
upon the theory of trademark, or upon that
of unfair competition, the profits recovera-
ble should be limited to such amount as
may be shown by direct and positive evi-
dence to be the increment of defendant's in-
come by reason of the infringement, and
that the burden of proof is upon complain*
ant to show what part of defendant's profits
were attributable to the use of the infring-
ing mark. It is said the true rule is strict-
ly analogous to that applied in patent cas-
es, and Mowry v. Whitney, 14 Wall. 620,
650, 20 L. ed. 860, 865; Elizabeth v. Ameri-
can Nicholson Pav. Co. 97 U. S. 126, 139,
24 L. ed. 1000, 1006; Garretson v. Clark,
111 U. S. 120, 121, 28 L. ed. 371, 372, 4
Sup. Ct Rep. 291; Dobson v. Hartford
Carpet Co. 114 U. S. 439, 444, 29 L. ed. 177,
S40 V. 8.
1915.
HAMILTON-BROWN SHOE CO. t. WOLF BROS, k 00.
260-26.1
178, 5 Sup. Ct. Rep. 945; Tilghman t. Proc-
tor, 125 U. S. 136, 146, 31 L ed. 664, 667,
t Sup. Ct. Rep. 894; Keystone Mfg. Co. v.
Adams, 151 U. S. 139, 147, 38 L. ed. 103,
105, 14 Sup. Ct. Rep. 295; Wcstinghouse
Electric k Mfg. Co. v. Wagner Electric &
Mfg. Co. 225 U. S. 604, 615, 50 L. ed. 1222,
1226, 32 Sup. Ct. Rep. 691; and Dowagiac
Mfg. Co. ▼. Minnesota Moline Plow Co. 235
U. S. 641, 59 L. ed. 398, 35 Sup. Ct. Rep.
221, are relied upon. The rule invoked is
tliat wliich, as pointed out in the last two
of these cnses, is applicable where plaintiff's
patent relates to a part onlj of a machine
or combination or process, or to particular
improvements in a machine or other device.
In such case, where the invention is used in
combination with other elements of value
not covered bj the patent, [261] so that
plaintiff's patent creates only a pai-t of the
profits, he is entitled to recover only that
part, and must give evidence tending to ap-
portion the profits between the patented
and unpatented features. But, as pointed
out in the Wcstinghouse Case (p. 618),
there is a recognized exception where the
plaintiff carries the burden of proof to the
extent of showing the entire profits, but is
unable to apportion them, either because of
the action of the wrongdoer in confusing
his own gains with those which belong to
plaintiff, or because of the inherent impos-
sibility of making an approximate appor-
tionment. There, "on established principles
of equity, and on the plainest principles of
justice, the guilty trustee cannot take ad-
vantage of his own wrong."
Assuming the asserted analogy to patent
cases to exist, a sufficient reason for not re-
quiring complainant in the present case to
make an apportionment between the profits
attributable to defendant's use of the offend-
ing mark and those attributable to the in-
trinsic merit of defendant's shoes is that
such an apportionment is inherently impos-
sible. Certainly, no formula is suggested by
which it could be accomplished. The result
of acceding to defendant's contention, there-
fore, would be to deny all compensation to
complainant. And it is to be remembered
tliat defendant does not stand as an inno-
cent infringer. Not only do the findings of
the court of appeals, supported by abundant
evidence, show that the imitation of com-
plainant's mark was fraudulent, but the
profits included in the decree are confined
to such as accrued to defendant through its
persistence in the unlawful simulation in
the face of the very plain notice of complain-
ant's rights that is contained in its bill.
As was said by the supreme court of Califor-
nia in a similar case, Graham y. Plate, 40
CaL 593, 598, 6 Am. Rep. 639, 640: "In
sales made under a simulated trademark it
<• L. ed.
is impossible to decide how much of the
profit resulted from the intrinsic value of
[262] the commodity in the market, and
how much from the credit given to it by the
trademark. In the very nature of the case
it would be impossible to ascertain to what
extent he could have effected sales and at
what prices except for the use of the trade-
mark. No one will deny that on every prin-
ciple of reason and justice the owner of the
trademark is entitled to so much of the
profit as resulted from the use of the trade-
mark. The difficulty lies in ascertaining
what proportion of the profit is due to the
trademark, and what to the intrinsic value
of the commodity; and as this cannot be as-
certained with any reasonable certainty, it
is more consonant with reason and justice
that the owner of the trademark should
have the whole profit than that he should be
deprived of any part of it by the fraudulent
act of the defendant. It is the same prin-
ciple which is applicable to a confusion of
goods. If one wrongfully mixes his own
goods with those of another, so that they
cannot be distinguished and separated, he
shall lose the whole, for the reason that the
fault is his; and it is but just that he
should suffer the loss rather than an inno-
cent party, who in no degree contributed to
the wrong." • To the same effect are Avery v,
Meikle, 85 Ky. 435, 448, 7 Am. St. Rep. 604,
610, 8 S. W. 609; El Modello Cigar Mfg.
Co. T. Gato, 25 Fla. 886, 915, 6 L.R.A. 823,
829, 28 Am. St. Rep. 537, 544, 7 So. 23 ; Regis
V. Jaynes, 191 Mass. 245, 249, 251, 77 N. £.
774; W. R. Lynn Shoe Co. v. Auburn-Lynn
Shoe Co. 100 Me. 461, 479, 4 L.R.A.(N.S.)
9C0, 62 Atl. 499; Saxlehner v. Eisner k
M. Co. 70 C. C. A. 452, 138 Fed. 22, 24.
Finally, it is contended that the account,
as stated by the master and confirmed by
the circuit court of appeals, failed to make
due allowance for certain items entering iur
to the cost of manufacturing and selling
the shoes in diminution of defendant's prof-
its, including interest on capital, deprecia-
tion of real estate, taxes, insurance, advertis-
ing, and trade discounts. Tliese are matters
of fact, respecting which we see no suffi-
cient reason for disturbing the decree. One
of the points [263] most earnestly insisted
upon is that certain overhead charges, ap-
pearing on defendant's books as "Advance
Boston House, $73,772.03," and "Allowance
to Boston, $103,075.14," of which the amount
chargeable pro rata against "American Lady"
shoes not marked "Makers," tor the period
covered by the accounting, was $10,271.69,
ought to have been deducted in computing
defendant's profits. The only explanation
of these charges is in a stipulation of the
parties that they "represent allowances
made by the wholesale house of Hamilton-
203, 264
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
Brown Shoe Company on goods shipped by
it to what is known as the 'Boston House',
being a separate and distinct corporation
from the defendant company, and the
amount received by the Hamilton-Brown
Shoe Company from the 'Boston House' for
goods shipped to it was $73J72.03 and
$103,075.14 less than the price at which
the goods were billed to that house, and
those items do not represent moneys paid
by the Hamilton-Brown Shoe Company to
the 'Boston House,' or advances by the Ham-
ilton-Brown Shoe Company to the 'Boston
House.' " If, in the master's calculation of
the profits, defendant had been charged
with sales of the goods at the prices at
which they were billed to the Boston House,
the insistence that a deduction of $10,271.69
ought to be allowed as being in the nature
of a trade discount would seem correct.
But that is not made to appear, and we can-
not conclude that the master erred in over-
ruling this allowance.
Decree affirmed.
The Chxet Justice and Mr. Justice Tan
Devanter are of opinion that the term "The
American Girl," as applied to women's shoes
made and sold in America, is geographical
and descriptive, and not subject to exclusive
appropriation as a trademark, and that up-
on this record a recovery of the entire prof-
its is not admissible. They therefore dis-
sent*
[264] GUERINI STONE COMPANY, Plff.
in Err.,
v.
P. J. CARLIN CONSTRUCTION COM-
PANY.
(See S. C. Reporter's ed. 264-283.)
Contracts — construction — reference
to extrinsic agreement.
1. A reference in a subcontract to the
general contract for a particular purpose
makes it a part of the subcontract only for
the purpose specified.
[For other cases, see Contracts, II. a, in Di-
gest Sup. Ct. 1008.]
Contracts — oonstraction of subcon-
tract — controlling effect of general
contract.
2. The subcontractor for a part of the
work called for by a general contract with
the United States for the construction of a
public building was not bound by the pro-
visions of the general contract so as to be
obliged to submit to delays resulting from
the action of the ffovemment, where the
subcontract, although referring to the draw-
Note. — On loss of profits as rn element of
damages for breach of contract — see note to
Wells v. National Life Asso. 53 L..R.A. 84.
€86
inffs and specifications for the purpose of
indicating what work was to be done by
the subcontractor and in what manner, and
making the supervising architect of the
Treasury the architect or referee, contains
no clause incorporating into itself the pro-
visions of the general contract, or even In
general terms referring to that instrument,
and expressly places upon the seneral con-
tractor the obligation to provide all labor
and material not includea in the subcon-
tract in such manner as not to delay the
material progress of the work.
[For other cases, see Contracts, II. a, in Di-
gest Sup. Ct. 1008.]
Contracts — breach of subcontract ~
delay by general contractor — reim-
bursement of subcontractor.
3. A provision in a subcontract which
extends the time for completion in case
the subcontractor is delayed bv the fault
of the general contractor, and thus relieves
the subcontractor from the liability to liqui-
dated damages imposed by the contract in
case of failure to complete his work with-
in a specified time, cannot be so construed
as to aeprive the subcontractor of his right
under another provision of the subcontract
to reimbursement Tor any loss attributable
to any delay resulting from the general con-
tractor's failure to provide materials not
included in the subcontract.
[For other cases, see Contracts, V. f, in Di-
gest Sup. Ct. 1908.]
Contracts — breach of contract — de*
lay by general contractor — ' reim-
bursement of subcontractor.
4. The failure to furnish a foundation
upon which a subcontractor's work could
be superimposed was a failure to provide
labor and materials not included within the
subcontract, within the meaning of such
contract binding the general contractor to
reimburse the subcontractor for any loss
caused by delay resulting from the general
contractor's failure to provide such labor
and materials.
[For other cases, see Contracts, V. f, in Di-
gest Sup. Ct. 1008.]
Contracts — breach of contract — de*
lay by general contractor — reim-
bursement of subcontractor.
6. Delays attributable to action by the
government were among those intended to
be safeguarded by a provision in a subcon-
tract for a part of tiie work called for by
a general contract with the United States
for the construction of a public building,
that "the general contractors will provide
all labor and materials not included in this
contract in such manner as not to delay the
material progress of the work, and in the
event of failure so to do, thereby causing
loss to the subcontractor, agree that they
will reimburse the subcontractor for such
loss."
[For other cases, see Contracts, V. f. In Di-
gest Sup. Ct. 1008.]
Trial — question for Jury — lost profits.
6. The profits which a subcontractor
probably would have gained if the contract
had been proceeded with in the ordinary
manner should not have been excluded from
S40 V. 8.
19 J 3.
GUERINI STONE 00. t. P. J. CARLIN C0N8TR. CO.
265
the jury at contingent and speculative in
an action by him against the general con-
tractors for the latter's breach of the con-
tract, where there was testimony from an
experienced witness as to the probable cost
to the subcontractor of lurnisuing the ma-
terials and doing the work called for by the
mbeontract.
[For other canps. see Trial, VI. c, In Digest
Sup. Ct IflOS.]
Trial — request for instructions —
breach of contract.
7. The refusal of a requested instruc-
tion that if the general contractor failed
to make payments as called for by the sub-
contract on account of work done by the
subcontractor in accordance with the con-
tract, such failure constitutes a breach of
the contract on the part of the general
contractor, is not error, where the subcon-
tract does not specify the amouut of the
advance payments, or indicate how they
are to be ascertained, merely providing that
Uie contract price is to be paid "in month-
ly payments on account, not to exceed in
amount 85 per cent of the cost of the work
actually erected in the building" on con-
dition that the subcontractor furnish a
written requisition not less than twelve
daprs before payment is required, and the
evidence fails to show that the requisitions
were based upon the cost of the work, or
that any clear statement of such cost was
submitted with them.
(For otber cases, see Trial, VII. d, in Dlsefit
Sup. Ct. 1908.]
Trial -* requested instructions ^ dam-
8. It is not error to refuse a requested
instruction as to damages which contains
dements that would not properly be ap-
plicable if recovery should be based solely
upon some of the grounds of action declared
upon.
(Vor other cases, see Trial, VII. d, in Digest
Sup. Ct. 190S.J
[No. 78.]
Argued and submitted November 12, 1015.
Decided February 21, 1916.
JN ERROR to the District Court of the
United States for Porto Rico to review
a judgment for a part of the damages
sought by a subcontractor in an action
against the general contractor for a breach
of contract. Reversed and remanded for
further proceedings.
The facts are stated in the opinion.
Mr. Edward S. Paine argued the cause
and filed a brief for plaintiff in error:
The terms of the contract between the
govemment and the general contractor are
Boi to be incorporated in the contract be-
tween plaintiff and defendant, and they
famish no defense to the defendant under
the circumstances here alleged and proven.
Noyes v. Butler Bros. 98 Minn. 448, 108
N. W. 839; Modern Steel Structural Co. t.
«• Ju ed.
English Constr. Co. 129 Wis. 31, 108 N. W.
70; Mannix ▼. Tryon, 152 Cal. 31, 91 Pac.
983; Young y. Borzone, 26 Wash. 4, 66 Pac.
135, 421; Moreing y. Weber, 3 Cal. App.
14, 84 Pae. 220; 2 Page, Contr. p. 1730.
The court erred .in charging that pro-
spective future profits could not be recov-
ered.
United SUtes y. Behan, 110 U. S. 338, 28
L. ed. 168, 4 81;^. Ct. Rep. 81; Ironton y.
Harrison Constr. Co. 129 C. C. A. 29, 212
Fed. 353; Anvil Min. Co. v. Humble^ 153
U. 8. 540, 38 L. ed. 814, 14 Sup. Ct. Rep.
876, 18 Mor. Min. Rep. 98; Pennsylvania
Steel Co. y. New York City R, Co. 117 C.
C. A. 503, 198 Fed. 721 ; Kenney y. Knight,
127 Fed. 403.
The court erred in charging that the de-
fendant could not be liable in money dam-
ages for delay in furnishing the granite, or
for delays other than failure to provide
labor and material.
Nelson t. Pickwick Associated Co. 30 111.
App. 333; Del Genovese y. 3d Ave. R. Co.
13 App. Div. 424, affirmed in 162 N. Y.
614, 57 N. £. 1127; O'Heron y. American
Bridge Co. 177 111. App. 405.
The court erred in admitting in evidence
an unaccepted bid as proof of the cost of
completing the work covered by plaintiff's
contract.
Sharp y. United States, 191 U. 8. 341,
48 L. ed. 211, 24 Sup. Ct. Rep. 114; Hine
V. Manhattan R. Co. 132 N. Y. 481, 15
L.R.A. 591, 30 N. £. 985.
Mr. Francis H. Dexter submitted the
cause for defendant in error.
Mr. Justice Pitney delivered the opin-
ion of the court:
We have here under review a judgment
for damages in favor of plaintiff in error
against defendant in error, reversal being
asked upon the ground that, through errone-
ous rulings made by the trial judge, the re-
covery was unduly limited. The writ of
error was sued out under § 244, Jud. Code
(act of March 3, 1911, chap. 231, 36 Stat,
at L. 1087, 1157, Comp. Stat. 1913, §§ 968,
1221), prior to the act of January 28, 1016
(38 Stat, at L. 804, chap. 22, §§ 3 and 6).
Defendant, a corporation of the state of
New York, on December 12, 1910, secured
a contract with the government of the
United States for the bonstruction of a
postoffice and court building at San Juan,
Porto Rico. A few days later it entered
into a subcontract in writing with one
Guerini, by the first paragraph of which he
agreed: 'To furnish and set in position, in-
cluding the concrete backing, all the imita-
tion of sandstone, and to construct the
interior concrete walls, concrete floors, con-
HVV
265-268
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Crete roof, backing the granite construction,
enclosing all the I beams . . . agree-
able to the drawings and specifications made
by the said architect (copies of which have
been delivered to the subcontractor), and
to the dimensions and explanations thereon,
therein and herein [266] contained, accord-
ing to the true intent and meaning of said
drawings and specifications," etc.; it being
agreed that the work should be done ''under
the direction and to the satisfaction of the
general contractors and James Knox. Taylor,
architect (acting as agents of the owner)
or his or its representative.''
A subsequent paragraph reads as follows:
"25th. The subcontractor further agrees
to furnish the material and build the con-
crete footing complete to the basement floor
for the sum of $6.70 a cubic foot.
''Also to furnish the materials and build
all the sidewalks for the sum of $1.85 a
square yard.
"Also set in position all the granite walls,
steps, balusters, buttresses, and curbing,
and all other granite work for the sum of
40 cents a square foot surface. The three
above items to be at the option of the gen-
eral contractor. . . .**
Thereafter the plaintiff corporation was
formed under the laws of Massachusetts,
and Guerini transferred the contract to it.
Defendant was notified of this, expressed
satisfaction in writing under date Febru-
ary 20, 1911, and thereafter dealt with
plaintiff as subcontractor.
At a later time, defendant exercised the
third only of the options given to it by the
25th paragraph.
The plan of the building contemplated a
foundation of concrete and piles, which was
to be constructed by defendant complete to
the basement fioor; above this a basement
story, surfaced with granite blocks to be
furnished by defendant (as a practical mat-
ter, to be sent from the United States) and
to be set in position by plaintiff under the
accepted option. The blocks were to be
backed witii concrete, to be furnished and
set by plaintiff. Above the basement story,
the exterior walls were to be faced with
imitation sandstone, backed with concrete,
which, together with interior walls, fioors,
and roof of concrete, were to be constructed
by plaintiff.
[267] The contract contained the follow-
ing clauses that bear upon the matters in
dispute:
"fith. The subcontractor shall and will
proceed with the said work and every part
and detail thereof in a prompt and diligent
manner, ... and shall and will wholly
finish Uie said work according to the said
drawings and specifications and this con-
tract in 800 days from the date upon which
«88
the building is ready to receive his work
and after he has been notified to proceed
by general contractors, and in' default there-
of, the subcontractor shall pay the general
contractors the sum of $20 for every day
thereafter that the said work shall remain
unfinished as and for liquidated damages.
The subcontractor further agrees to begin
work at the building within three daya
from the time that he is notified by tibe
general contractors that the building i»
ready to receive such work.
"Tth. . . . Should the subcontractor
be obstructed or delayed in the prosecu-
tion or completion of the work by neglect,
delay, or default of the owner, the archi-
tect, the general contractors, or of any
other contractors employed by them upon
the work, or by alterations which may be
required in said work, or by any damage
which might happen by fire, lightning,
earthquake, or cyclone, or by the abandon-
ment of the work by the employees through
no fault of the subcontractor, then the time
herein fixed for the completion of the work
shall be extended for a period equivalent to
the time lost by reason of any or all of the
causes aforesaid," etc.
"11th. The general contractors will pro-
vide all labor and materials not included in
this contract in such manner as not to delay
the material progress of the work, and in
the event of failure so to do, thereby causing
loss to the subcontractor, agree that they
will reimburse the subcontractor for such
loss; and the subcontractor agrees that if
he shall delay the material progress of the
work so [268] as to cause any damage for
which the general contractors shall become
liable, then he shall make good to the gen-
eral contractors any such damage over and
above any damage for general delay, herein
otherwise provided ; the amount of such losa
or damage in either case, to be fixed and de-
termined by the architect, or by arbitra-
tion, as provided in article 3d in this con-
tract.
"12th. It is hereby mutually agreed by
the parties hereto that the sum to be paid
by the general contractors to the subcon
tractor for said work and materials shall be
sixty-four thousand seven hundred and fifty
dollars ($64,750), subject to additions or de-
ductions as hereinbefore provided, and that
such sum shall be paid in current funds by
the general contractors to the subcontractCHr
in monthly payments on account, not to ex-
ceed in amount 85 per cent of the cost of
the work actually erected in the building,
provided that the subcontractor furnishes to
the general contractors a written requisi*
tion, on a form to be supplied by the gen*
eral contractors, not less than twelve daya
before payment is required, ..."
S40 U. S»
1015.
GUERINI STOXE CO. v. P. J. CARLIN C0N8TR. 00.
868-271
The aetion was commenced in June, 1912.
The complaint, besides the jurisdictional
ayerments, alleged the making of the con-
tract between Guerini and defendant, the
assignment to plaintiff, and defendant's con-
sent and recognition of plaintiff as the con-
. tracting party; averred that thereafter and
during the month of February, 1911, at
defendant's request and in pursuance of the
terms of the contract, plaintiff employed
and sent to Porto Rico its representatives,
brou^t laborers from the United States
and employed others in Porto Rioo, organ-
ized its working forces, purchased and sup-
plied the necessary tools and materials, and
prepared itself and was ready and willing
to perform its obligations under the con-
tract, but that thereafter until the 16th
day of October, 1911, plaintiff was not per-
mitted by defendant to proceed with the
work, owing to defendant's failure to pro-
vide the necessary [269] granite blocks;
that on that day plaintiff did proceed with
all possible diligence and performed all the
work provided for by the contract as fast
as defendant, in the course of construction
work, permitted plaintiff to do so; that
nevertheless during the period from October
16» 1011, until March 9, 1912, the work was
unreasonably and unjustifiably delayed by
the failure of defendant to provide neces*
sary materials and carry on its part of the
constraotion work so as to permit plaintiff
to perform the work required of it under
the contract, and that plaintiff was thereby
greatly damaged; that on March 9, 1912,
all work of every nature was stopped on
the building, and plaintiff was prevented by
defendant from continuing with any work;
that said stoppage "has continued ever since,
is still continuing, and . . . will con-
tinue for a period of at least several months
liereafter," and that defendant has accord-
ingly committed a breach of its obligations
under the contract, the result of which has
been and is to cause great damage and loss
to plaintiff, which has been obliged to keep
its labor force on hand during all of said
period at great loss and expense; that by
the terms of the contract payment of not
more than 86 per cent of the amount of the
work actually done was due and payable
by defendant monthly on twelve days' no-
tice from plaintiff to defendant, and that
plaintiff during the months of December,
1911, and January and February, 1912,
duly notified and demanded of defendant
payment of the sums due for the work
actually performed, but that defendant con-
tinuously and repeatedly failed and refused
to make said payments; that because of
said repeated violation and breach of the
contract on the part of defendant, plaintiff,
under date of May 22, 1912, notified defend-
•0 L. ed.
ant in writing of its election to terminate
the contract and bring its action for dam-
ages for breach thereof; and that plaintiff
has offered to defendant to arbitrate their
differences, but that defendant has refused.
Plaintiff claimed damages to the amounl of
$45,797.45 [270] for work and labor per-
formed, materials furnished, and moneys
expended in and about the performance of
the contract, and for lost profits. In a
separate paragraph an indebt^lness of about
$40,000 was alleged, for the reasonable value
of work, labor, and materials supplied.
Defendant ajoswered, admitting some of
the averments of the complaint, but denying
that plaintiff had complied with the terms
of the contract or had been prevented by
defendant from proceeding with and carry-
ing on its work; admitting that plaintiff
notified defendant of its election to cancel
or rescind the contract and bring its action
f«r damages for the alleged breach thereof,
but denying that there was cause for rescis-
sion, and denying that plaintiff had sus-
tained damages as claimed by it. The an-
swer further set up that the subcontract
was subject to all the terms and conditions
of the principal contract made between de-
fendant and the government of the United
States; that defendant had at all times
[nroceeded strictly in accordance with the
terms and conditions of the latter contract,
that during the course of the construction
of the building the representatives of the
government found it desirable or necessary
to change the manner of constructing the
foundations, and that this action of
the government was within its rights under
the original contract, and plaintiff was
bound thereby equally with defendant.
The case was tried before the judge of the
district court and a jury. Plaintiff intro-
duced evidence tending to support the ma-
terial averments of its complaint. It ap-
peared that in January, 1911, defendant no-
tified plaintiff's predecessor that 'Svork must
start at once," and that in February plain-
tiff sent its representatives to Porto Rico;
that upon their arrival so little work had
been done upon the foundations that they
were unable to do anything upon the build-
ing itself, but preliminary work was done
in the way of getting tools and machinery to
the Island, building [271] workshops and an
office, and preparing moulds for the casting
of the artificial stone; that during the spring
and summer delay was occasioned by the
failure of defendant to construct the founda-
tions; that this continued until about the
first week in October, when the foundation
work and the grading inside the foundation
walls had proceeded to a point that would
admit of the eommenoement of the course of
granite, and enough granite was upon th^
271-278
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbm»
IH'ound to allow a start to be made of set-
ting it. In August or September plaintiff
was notified of defendant's acceptance of
the option to call upon plaintiff to set the
grapite at 40 cents per square foot, but
the granite was slow in arriving, and some
of the stones were misfits, so that the work
of lajing was considerably interrupted.
There was diflScultj also with the derrick
equipment, defendant having, under the con-
tract, furnished two derricks and an engine,
but with insufficient power to admit of
operating both derricks at the same time.
This was remedied, some time in Decem-
ber, by the provision of additional power.
The granite setting proceeded from the mid-
dle of October to the 12th of February,
1912, plaintiff's evidence being to the effect
that it was set as fast as delivered, but that
because the granite came in separate ship-
ments, a little at a time, sometimes with
needed blocks missing, the work of setting
it could not be speeded. On or about Feb-
ruary 12, 1912, plaintiff stopped setting
granite, with defendant's consent.
The evidence tended to show that much
of the delay during the spring and summer
of 1911 was occasioned by a change made
by arrangement between defendant and the
government in the provisions of the general
contract respecting the mode of construct-
ing the foundations. The pleader would
seem to have limited the complaint respect-
ing delay prior to October 10, 1911, to such
as was due to defendant's failure to provide
granite blocks, but the evidence was not
thus limited.
In February, 1912, when the granite work
had been [272] practically finished, it was
ascertained that the foundations had set-
tled, and that there were variations in the
foundation work from the specifications as
agreed upon between the government and
defendant. On March 9th work was sus-
pended by order of the government, pending
an investigation which resultinl in showing
that practically the entire building would
have to be underpinned in order to secure a
safe foundation. This result was officially
communicated to defendant under date
March 25, 1912, and a few days later, pur-
suant to an order of the Assistant Secre-
tary of the Treasury, all work upon the
building was stopped ''pending the settle-
ment of responsibility for deviations from
contract requirements regarding founda-
tions." The question of responsibility lay
between defendant and the representatives
of the government; plaintiff having had
nothing to do with the foundations. Leav-
ing the question undetermined, the govern-
ment, in the month of May, 1912, entered
into an agreement with defendant for under-
pinning the entire building. It perhaps docs '
€40
I not clearly appear when this work
commenced, but it was in progress whaa
the action was begun, and Mr. Berrynuut,
the government's superintendent of coB-
struction then in charge of the building,
testified: "This work is now [Novembtf,
1912] about 85 per cent completed." The
same witness testified that from March 9th,
1912, until the time of the trial, "condi-
tions were such that it was impossible for
the Guerini Stone Company to continue
with their work under the contract."
On March 9, 1912, plaintifFs agent at San
Juan was notified by defendant's representa-
tive there that the Federal authorities bad
'>rdered all work upon the building suspend-
ed pending investigation of the foundations.
On the same day he wrote defendant's San
Juan ofiSce asking whether plaintifTs men
should be discharged and sent back to the
United States, but got no satisfactory reply.
Further correspondence upon the same
topic led to no result.
[273] Meanwhile, the parties had been in
disagreement about payments on account.
The contract {\ 12) provided for payment
of the contract price "in monthly payments
on account, not to exceed in amount 85
per cent of the cost of the work actually
erected in the building, provided that tlw
subcontractor furnishes to the general con-
tractors a written requisition, on a form to
be supplied by the general contractors, not
less than twelve days before payment is re-
quired," etc. The contract, however, did not
provide how the cost of the work other than
the granite setting should be ascertained.
For the concrete backing and other concrete
work and the imitation sand-stone ooyered
by the subcontract, no "unit prices" were
specified. The price of "0.70 a cubic foot,"
mentioned in the 25th paragraph as the
optional price for concrete footings, was
treated by the parties as if intended to
read $0.70 per cubic yard, — approximately
26 cents per cubic foot. This, however, hnd
reference to work that plaintiff was not
called upon to do, and obviously did not
furnish a unit price for the concreting actu-
ally done by plaintiff.
In December, 1011, and January, 1912,
plaintiff made written requisitions for pay-
ments on account, based upon statements of
the "amount of work completed to date."
They were not complied with, and thd par-
ties soon realized the practical importanee
of agreeing upon a unit price to be em-
ployed in estimating the amounts payable.
According to the testimony of Bir. Con-
verse, President and Treasurer of the
Ciuerini Company, he went from Boston to
New York city on February 2, 1912, by ap-
pointment, and conferred with Mr. Oirlin,
defendant's representative, upon the subject
S40 U. 8.
1016.
GUERINI STONE 00. ▼. P. J. CARLIN OONSTR. CO.
278-276
4d unit prieet, and it wm then agreed that
plaintiff should make its applications and
reeeive its payments upon the basis of a
certain written schedule of units, produced
by Mr. Carlin, which specified (inter alia) :
^'Exterior and interiov concrete walls,
arches, and cement [274] work, $1.07 per
<nu It.; concrete floors and casings, 45 }o. per
sq. ft." Mr. Carlin, in his testimony, denied
that such an agreement was made, but ad-
mitted that the schedule had been agreed
upon between defendant and the govern-
ment's superintendent of construction, and
used as • basis for payments by the gov-
^ramenl to defendant, including payments
for the work done by plaintiff under the
miboontract. At the interview of February
2d, Mr. Converse received a check for $3,-
766.50 on account, as against $12,750 previ-
ously called for. Under date of March 9th
« requisition for $ll,7Z6M was made, and
against this a payment of $074 was made
about two weeks thereafter. No other pay-
ments were made to plaintiff. It appeared,
however^ that for the work theretofore
done by plaintiff, defendant had received
from the government at least $13,871.25 (a
witness called by defendant said "about
$19,000"), based upon the price of $1.07 per
•cubic foot for concrete. It was explained
that this unit price was fixed by the first
auperintendent of construction, who had
•charge during the year 1011 and the first
month of the following year, and that his
aueeessor, who took charge on February 1,
1912, employed a lower unit price, on the
basis of which the Carlin Company had been
•overpaid about $8,000.
Enough has been said to indicate the situ-
ation as it stood on May. 22, 1012, on which
date plaintiff wrote to defendant, reciting
briefly its complaints respecting defendant's
previous conduct and the stoppage ol the
work, and concluding as follows:
"Under these circumstances and owing to
your entire failure to comply with the
terms of the contract, we hereby notify you
that we now terminate the contract and
additional expense, if any, above your con-
tract price."
Plaintiff further produced evidence tend-
ing to show that the moneys expended by
it in and about the performance of the con-
tract amounted to upwards of $30,000; that
if permitted to complete the contract under
ordinary conditions, its estimated profits
would have been about $9,700; and that de-
fendant had taken over machinery, tools,
etc., belonging to plaintiff, estimated to be
worth from $3,300 to $3,800.
Defendant to some extent disputed the
facts recounted in SPd inferable from plain-
tiff's evidence, but based its defense princi-
pally upon the provisions of the contract
between defendant and the government,
which it was insisted must be read into the
contract between plaintiff and defendant.
Among those provisions was this:
'*It is further covenanted and agreed that
the United SUtes shall have the right of
suspending the whole or any part of the
work herein contracted to be done, when-
ever, in the opinion of the supervising archi-
tect, it may be necessary for the purposes
or advantage of the work, and upon such
occasion or occasions the contractor shall,
without expense to the United States, propr
erly cover over, secure, and protect such of
the work as may be liable to sustain injury
from the weather, or otherwise; and for
all such suspensions the contractor shall be
allowed one day additional to the time here-
in stated for each and every day of such
delay so caused in the completion of the
work, the same to be ascertained by the
[276] supervising architect; and a similar
allowance of extra time will be made for
such other delays as the supervising archi*
tect may find to have been caused by the
United States, provided that a written claim
therefor is presented by the contractor
within ten days of the occurrence of such
delays; provided, further, that no claim
shall be made or allowed to the contractor
for any damages which may arise out of
any delay caused by the United States."
. „ J ^ xt .^v XV • J • -^d among the "Generar Conditions" pre-
ahall proceed no further with the work, and ^^.^ ^^^ si^ifications was this:
"The Department, acting for the United
that we shall hold you liable for damages
we have sustained by reason of your breach
•of contract, including your failure to provide
labor and materials not included in the con-
tract with [275] us in such manner as not
to delay the material progress of our work
and your failure to make payments in ac-
cordance with the terms of the contract, and
all other breaches of contract on your part."
Defendant acknowledged receipt and re*
plied May 31, 1912: ''Said letter is a breach
•of contract on your part, and we shall im-
mediately proceed to have the work done by
other parties, and shall charge you with the
«• Jj. ed. 41
States, reserves the right to suspend any
portion of the work embraced in the con-
tract whenever, in its opinion, it would be
inexpedient to carry on said work."
Other contentions were made which are
not now material.
The jury rendered a verdict somewhat
special in form, finding for the plaintiff and
assessing its damages at $6,609.25, ''includ-
ing the value of tools inventoried at $3,000."
The judge had instructed them that for cer-
tain material and appliances used by plain-
tiff in carrying out its contract, and which
27(^270
813PREMF COUKT OF THE UNITED STATES.
Oct. TsBiff^
were placed in the custody and charge of
defendant, "credit must be given, in what-
ever decision you anive at, to the plaintiff
company, and in the uncontradicted sum of
$3,000." Just how the residue of the ver-
dict was made up we have no means of de-
termining, nor is it now important.
The chief oontrov^ersy here is over the
admission in evidence of the general con-
tract, and the .effect given to it in the rul-
ings of the trial judge, which were in sub-
stance that the provisions of that contract,
including those above quoted, were to be
read into *the subcontract, and that for any
delays which resulted from the action of
the representatives of the government in
changing the foundations or plans of the
building, in suspending or stopping the
work, or otherwise, defendant was not
[277] responsible to plaintiff. To these
rulings exceptions were duly taken.
From what was said by the trial judge
it would seem that he labored under the im-
pression that the supervising architect of
the treasury was a party to the subcon-
tract. This is not the case; he did not sign
the agreement, and his name was inserted
solely in the capacity of architect or referee.
And although the subcontract very plainly
imports that it covers only a part of the
work of constructing the building, and that
the Carlin Company was the general con-
tractor, it contains no clause incorporating
into itself the provisions of the principal
contract, or even in terms referring to that
instrument. The subcontractor's work was
agreed to be done according to drawings
and specifications, "copies of which have
been delivered to the subcontractor." These
copies were not produced, nor was their non-
production accounted for. The parties seem
to have assumed that the drawings and
specifications of which copies were to have
been delivered wth the subcontract were
identical with those that formed a part of
the general contract; and we adopt that
assumption.
The reference in the subcontract to the
drawings and ^ecifications* was evidently
for the mere purpose of indicating what
work was to be done, and in what manner
done, by the subcontractor. Notwithstand-
ing occasional expressions of a different
view (see Shaw v. First Baptist CSiurch, 44
Minn. 22, 24', 46 N. W. 146; Avery v. Ionia
County, 71 Mich. 538, 546, 547, 39 N. W.
742; Stein v. McCarthy, 120 Wis. 288, 296,
97 N. W. 912), in our opinion the true rule,
based upon sound reason and supported by
the greater weight of authority, is that in
the case of subcontracts, as in other cases
of express agreements in writing, a refer-
race by the contracting parties to an ex-
traneous writing for a partieular purpose
«4S
makes it a part of their agreement only
for the purpose specified. Woodruff y.
Hougli, 91 U. S. 596, 602, 28 L. ed. 332,
335; [278] Neuval v. Cowell, 36 Cal. 648,
650; Mannix v. Tryon, 152 CaL 31, 39, 91
Pac. 983; Moreing v. Weber, 3 Cal. App. 14,
20, 84 Pae. 220; l^ort v. Van Dyke, 50
Minn. 286, 289, 52 N. W. 643 ; Noyes v. But-
ler Bros. 98 Minn. 448, 450, 108 N. W. 839;
Modem Steel Structural Co. v. Bnglisb
Constr. Co. 129 Wis. 31, 40, 41, 108 N. W.
70.
In the present case, not only was th*
reference to the drawings and specifications
for a limited purpose, but the subcontract,
by the express terms of its 11th paragraph,
placed upon the general contractor (defend*
ant) the obligation to "provide all labor
and materials not included in this contract
in such manner as not to delay the material
progress of the work." Applying this to
the. facts of the case, defendant agreed to
furnish the foundation in such manner that
plaintiff might build upon it without delay.
This is inconsistent with any implication
that the parties intended that delays at-
tributable to the action of the owner should
leave plaintiff remediless.
We therefore hold that the general con-
tract was notiidmissible in evidence against
plaintiff, unf^s for the purpose of showing
(if, indeed, it did show) what drawings and
specifications were referred to in the sub-
contract; and that the rulings of the trial
judge holding plaintiff bound by the pro-
visions of the general contract, so as to be
obliged to submit to delays resulting from
the action of the government, were errone*
ous.
Another point that may conveniently be
dealt with here is raised by an exception
taken to the instruction that "even if there
was 'delay in furnishing granite, there could
have been no liability under the subcontract
for such delay, in money, but such a con-
dition was to be remedied by an extension
of time for completion, as therein provided.''
This was clearly erroneous. Paragraph 11
binds defendant to reimburse plaintiff for
any loss caused by delay resulting from de-
fendant's failure to provide materials not
included in the subcontract. The 1279]
granite was in this category. The trial
court misapplied f 7. The extension of time
therein provided for was intended as a dis-
pensation, under given circumstances, of the
liability to liquidated damages imposed
upon the subcontractor by f 6 for failure to
complete his work within the time therein
limited. The purpose of f 7 is to relieve
the subcontractor. It cannot properly be
construed to deprive him of his right under
f 11 to reimbursement for losses attribu*
table to delays assumed by the general con-
S40 U. S.
1918.
GUBRINI STONE 00. y. P. J. CARUN 00N8TIL 00.
279-281
tntetor. NeltoB y. Pickwick AssocUted Oo.
30 IlL App. 333.
What lias been said indicates the disposi*
tiom tliat must be made of another excep-
tion taken by plaintiff, which was to the in-
struction that tinder j[ 7 plaintiff was not
entitled to recover damages or money com-
pensation from defendant even though It
should appear that plaintiff "was obstructed
or delayed in the prosecution or completion
of the work by the neglect, delay, or de-
fault of the government of the United
States, the supervising architect, or his rep-
resentatives, or by defendant, or by altera-
tions required in the work, since by the
provisions of that paragraph the only rem-
edy of plaintiff in such cases is the time
allowance therein provided for; unless, how-
ever, you should believe frpm the evidence
that the defendant failed to provide labor
and materials not included in the subcon-
tract, in such manner as to delay the ma-
terial progress of the work."
As we have shown, the failure to furnish
a foundation upon which plaintiff's work
could be superimposed was a failure to
provide "labor and materials not included
in this contract," within tl^e meaning of
f 11. To furnish the foundation defendant
assumed an obligation not conditioned by
the question whether it was at fault, or
whether the delay was involuntary on its
pait because attributable to a stoppage of
work by the owner, in the exercise of a
right conferred upon it by the principal con-
tract. [280] Defendant, of course, had no*
tice of the government's right to suspend
the work, and could easily have safeguarded
itself against responsibility to the subcon-
tractor for delays attributable to the exer-
cise of that right by an appropriate modifi-
cation of f 11 of the subcontract, for which
presumably an allowance would have been
made to the subcontractor in the form of
an increased price for its work or otherwise.
This not having been done, f 11 must be
enforced as it is written. It matters not
whether plaintiff or its predecessor had no-
tice of the provision of the general contract
respecting suspension of the work, since
that provision was not incorporated into the
subcontract. It must be presumed that de-
lays attributable to action by the govern-
ment were among those intended to be safe-
guarded by f 11.
There was testimony as to the profits
that plaintiff probably would have gained
if the contract had been proceeded with in
the ordinary manner. But this question
was excluded from the consideration of the
jury upon the ground that the profits were
contingent and speculative. In this there
wsa error. The testimony was from an ex-
perienced witness, and included an estimate
of the total cost to plaintiff of the doin|p
of the work called for in the subcontract.
This amounted to $53,012. The contract
price was $64,750. The witness testified
that a profit of $9,700 would have been
made. Whether he intended to' say $11,700
was for the jury to determine. No more
definite or certain method of estimating the
profits could well be adopted than to deduct
from the contract price the probable cost
of furnishing the materials and doing the
work. Philadelphia, W. & B. R. Co. y.
Howard, 13 How. 307, 344, 14 L. ed. 157,.
173; Hinckley v. Pittsburgh Bessemer Steel
Ck>. 121 U. S. 2C4, 275, 30 L. ed. 067, 970,.
7 Sup. Ct Rep. 875; Anvil Min. Co. v.
Humble, 153 U. S. 540, 540, 38 L. ed. 814,
817, 14 Sup. Ct. Rep. 876.
Error is assigned to the refusal of the
trial judge to give the following instruc-
tion:
[281] "If you find that the defendant
failed to make payments as called for by the
contract, on account of work done by the
plaintiff in accordance with the terms of the
contract, such failure constitutes a breach
of the contract on the part of the defend-
ant, and justified the plaintiff in stopping
work under the contract, and entitles it te
recovery from the defendant of such dam-
ages as may be proper on the evidence and
under the instructions which the court will
give you in that regard."
The request was evidently based upon
the doctrine illustrated in South Fork Canal
Co. V. Gordon, 6 Wall. 561, 18 L. ed. 804;
Phillips & C. Constr. Co. v. Seymour, 91 U.
S. 646, 649, 23 L. ed. 341, 342; Norrington
V. Wright, 115 U. S. 188, 205, 20 L. ed.
366, 360, 6 Sup. Ct Rep. 12. There is m
diflOiculty, however, in applying that doc-
trine to this case, due to the fact that the
contract does not either specify the amount
of the advance payments or indicate how
they are to be ascertained. The language
of f 12 is that the contract price is to be
paid "in monthly payments on account not
to exceed In amount 85 per cent of the cost
of the work actually erected in the build-
ing, provided/' etc Tliere is no clause, such
as is frequently found in contracts of this
character, that the amounts payable from
time to time shall be ascertained and certi-
fied by the architect The language cannot
be construed to oblige the general contractor
to pay precisely 85 per cent of the cost of
the work done; the use of the words "not
to exceed" forbids this. The paragraph
must receive a reasonable construction, and
undoubtedly required the general contractor
to make substantial payments monthly,
fairly approximating, but not exceeding, 85
] per cent of the cost of the work. But the
proviso requiring the subcontractor to fur-
«4»
mv^
281-284
SUPREME COURT OF THE UNITED STATES.
Got. Tmmm,
waA to the general contractor a written
Tequisition did not entitle the subcontractor
to be the sole judge of the amount it was
entitled to receive. On the contrary, the
provision that the requisition should be sub-
mitted "not less than twelve days before
payment is required" evidently contemplat-
ed [282] that the general contractor was to
be afforded an opportunity to verify the pro-
priety of the demand made. But the evi-
dence fails to show that the requisitions
were based upon the cost of the work, or
that any clear statement of such cost was
submitted with them. As already pointed
out, the parties endeavored to arrive at an
agreement about unit prices, in order that
these might be employed in making up the
requisitions. Whether they did so agree the
eridence left in dispute. If the agreement
was made, it was at the interview of Febru-
ary 2, 1912. A letter is in evidence, written
by plaintiff to defendant under date of Feb-
ruary 6, saying: "In accordance with your
instruction to Mr. Converse we have made
our January requisition in the units and
unit prices used by the government engineer.
. . . We inclose formal requisition for
$9,012.50 due us under contract." But the
requisition itself was not introduced. The
next and last requisition appears to have
been made under date March 9, 1912, and
this stated: "Amount of work completed to
date, $18,237." But such details as were
furnished do not seem to bear out this esti-
mate. In the state of the record, we can-
not say that there was Irror in the refusal
of the requested instruction.
Error is assigned because of the refusal
to instruct the jury as follows:
"In estimating the recovery to which the
plaintiff is entitled, if you find he is en-
titled to recover, you should consider the
reasonable expenditures incurred, the un-
avoidable losses incident to stoppage, the
amount of work actually performed, the
amount plaintiff was actually entitled to
by reason of such work at the contract
price, and the profits which plaintiff could
have made if allowed to complete the work
under the contract."
Had the requested application of these
elements of damage been confined to the
case of plaintiff being found entitled to re-
coTer upon the theory that the contract
was [283] rightfully terminated by the no-
tice of May 22, 1912, we assume it ought to
have been panted. United States v. Behan,
110 U. S. 338, 28 L. ed. 168, 4 Sup. Ct. Rep.
81; Anvil Min. Co. v. Humble, 153 U. S.
540, 551, 552, 38 L. ed. 814, 817, 818, 14
Sup. Ct. Rep. 876; Roehm v. Horst, 178
U. S. 1, 21, 44 L. ed. 953, 961, 20 Sup.
Ct. Rep. 780. But, as already pointed out,
other grounds of action were declared upon:
•44
(a) defendant's failure to provide granite
blocks prior to October 16, 1911; (b) iU
failure between that date and March 19,
1012, to provide necessary materials and
carry on its part of the construction work;
and (c) a quantum meruit for labor per-
formed and materials furnished. In the
event of plaintiff's recovery being based
upon these grounds only, some of the ele-
ments indicated in the request would not
be properly applicable. The form of the re-
quest was such that compliance with it
might have misled the jury, and hence there
was not error in refusing it.
Exceptions were taken to the refusal of
certain oj^ber instructions requested by
plaintiff with the object of basing a recov-
ery of damages, including profits, upon the
ground of plaintiff having been prevented
by defendant's acts from performing its con-
tract within the time specified or a reason-
able extension thereof, or on the ground
that defendant's refusal to make payments
and other breaches of contract were so un-
reasonable and inexcusable as to indicate
an inability or unwillingness on its part to
carry out the contract, or to amount to a
refusal to perform it in the future, such
as to justify plaintiff in stopping work.
But these exceptions have not been fully
argued, and the requests are perhaps want-
ing in accuracy; hence, we pass them with-
out consideration.
Judgment reversed, and the cause remand-
ed for further proceedings in accordance
with this opinion.
Mr. Justice McReynolds took no part in
the consideration or decision of this cane
[284] UNION NAVAL STORES COM-
PANY, Plff. in Err.,
v.
UNITED STATES.
(See S. C. Reporter's ed. 284-293.)
Evidence — variance.
1. Evidence that it was the crude, and
not the manufactured, product that was
taken, supports the claim of the complaint
in an action brought bv the United states
for conversion that spirits of turpentine and
rosin were taken from certain government
lands.
[For other cases, see Evidence, XIII. b, in Di-
gest Sup. Ct. 1908.]
NoTB. — On the right to cut timber on pub-
lic land — see note to King-Ryder Lumber
Co. V. Scott, 70 L.RJL 873.
On title by accession to crops, fruit, and
timber wrongful Iv severed — see note to Car-
penter V. Lingenfelter, 32 LJLA. 422.
On confusion of goods —see note to Petera
▼. Bain, 33 L. ed. U. S. 090.
240 U. 8.
10 J (^.
UNION NAVAL STORES CO. v. UNITED STATES.
Pleadlnir — conTerslon — tnrpentine
taken from goyermneiit land — de-
scription of lands.
2. Error in the particular description
of the lands in the complaint in an action
hj the United States (or the conversion of
q>irits of turpentine and rosin, alleged to
have been taken from government lands, is
of no serious consequence where they wer<*
otherwise described as a certain homestead,
and there was uncontradicted evidence that
the lands referred to and no others were
known by this description.
Cl«*or othor cases, see Pleading, II., in Digest
8ap. Ct 1908.]
Trial — taklnir case from Jnry — nomi*
nal damages — conversion.
3. The failure of the evidence in an
action by the United States for the con-
version of spirits of turpentine and rosin
alleged to have been taken from certain
government lands to show precisely what
quantities of such products of crude tur-
pentine taken from the public lands were
received by the defendant was not ground
for a peremptory instruction to find in the
latter's favor or to limit the recovery to
nominal damages, where there was evidence
from which tlie jury could form a reason-
ably certain estimate of the amount of
crude turpentine taken from such lands dur-
ing the years in question, and the amount
of spirits and rosin that this probably
yielded.
[For other cases, see Trial, VI. b; Damages.
VI. n, in Digest Sup. Ct. 1908.]
Public lands -* taking turpentine from
— iicnorance of illegality of act.
4. The boxing and chipping of pine
trees on public lands covered by an unper*
footed homestead entry by any person who
knew the character of the land, and the ex*
tracting of crude turpentine therefrom for
sale and profit, constituted a wilful tres-
pass, although he may have acted without
knowledge of the illegality of the act.
[For other cases, see Public Lands, I. b;
Trespass, in Digest Sap. Ct. 1908.]
Public lands — taking turpentine flrom
— following converted piroperty.
6. The value of the distilled product of
crude turpentine taken by tlie distiller
from land which he knew was covered by
an unperfected homestead entry may be
recovered by the United States from any
person into whose possession such product
may pass.
[For otbcr cases, see Public Triads, I. b;
Trover. In Digest Sup. Ct. 1908.]
Public lands — taking turpentine from
-* continuing trespass.
6. The distillation by the trespasser of
the crude turpentine taken by him from
(government lands is a continuing act of
trespass tliat did not devest the United
States of its property, but left it still en-
titled to the manufactured product.
[For other cnsps, see i*ublic IadcIs, I. b:
Trover, in Digest 8up. Ct. 1008. J
Accession of goods — knowledge of
ownership.
7. One who knowingly takes the prop-
erty of another cannot \^ changing its form
ۥ li. ^d.
or increasing its value, or by conuningliaf
it with other property of his own, aeqalra
title by accession.
[For other cases, see Accession and Confusloa*
Id Digest: Sup. Ct. 1908.]
Public lands — taking tnrpentine from
— accession — conversion.
8. Ihe mortgagee in a mortgage givsii
to secure advances and the faithful per-
formance by the mortgagor of his agreement
to extract crude turpentine from certain
lands and to manufacture the same into
spirits of turpentine and rosin, and to ship
the manufactured products to the mort-
gagee, to be sold for the mortgagor'a ac-
count, cannot, under the doctrine of aooes-
sion, escape the obligation to answer to the
United States for the value of tlie manu-
factured product of the government prop-
erty which came into its possession through
the practice of the mortgagor in his dis-
tilling operations to mix with crude gum to
which he had an unquestioned title a small
but substantial quantity of gum knowinglj
taken by him from government land.
[For other cases, see Public Lands, I. b; Ac-
cession and Confusion; Trover, in Digest
Sup. Ct. 1908.]
Mortgage — after*acquired property — •
tnrpentine taken from public lands.
9. An after-acquired-property clause in
a mortgage given to secure advances and
the faithful performance by the mortgagor
of his agreement to extract crude turpen-
tine from certain lands and to nuinidac-
ture the same into spirits of turpentine and
rosin, and ship the manufactured products
to the mortgagee, to l>e sold for the mort-
gagor's account, will not confer title upon
the mortgagee to property of the United
States which came into its possession
through the practice of the mortgagor in
his distilling operations to mix with crude
gum to whidi he had an unquestioned title
a small but substantial ouantity of gnm
knowingly taken by him from government
lands, since property in such product could
not be acquired by the mortgagor without
the consent of the United States.
[For other cases, see Mortgage, I. d, 2, in Di-
gest Sap. Ct. 1908.]
Trover — neoesaity of demand for pea*
session.
10. A demand by the United States for
the spirits of turpentine and rosin manu-
factured from crude gum unlawfully taken
from public lands is futile and therefore
unnecessary in order to support an action
of conversion against a corporation whieh
has received the earao from the trespasser
mixed with a much greater quantity to
which he had unquestioned title, where the
corporation sold tho entire product soon
after its receipt, and accounted to sueii
trespasser for the proceeds.
[For otber cases, see Trover: Public Lands.
I. b, in Digest Sop. Ct. 1908.]
[No. 80.]
Submitted November 11, 1916. Dcdded
February 21, 1916.
%4B
SUPREME OOURT OF TBE UNITED STATES.
Got. Tknc,
IK ERROR to the Unit^l SUtet Circuit
Court of Appeals for tlie Fifth Circuit-
to review a judgment which modified, and
affirmed as modified, a judgment of the
District Court for the Southern District of
Alabama in favor of the United States in
«n action for the conversion of turpentine
and rosin from public lands. Affirmed.
See same case below, 123 C. C. A. 1, 202
Fed. 401.
The facts are stated in the opinion.
Mr. Richard William Stouts submitted
the cause for plaintiff in error :
When personalty is attached to realty, as
bricks, lumber, or machinery, when built
into a house, these things cease to be per-
acmalty, and become merged into the realty.
In that case the identity is considered lost,
and the right to follow the same ceases
and the doctrine of accession applies. This
doctrine goes even to the extent of holding
that the rights of the owner and the rights
of a chattel mortgagee thereof may be thus
annihilated through the doctrine of acces-
sion, and merged into the realty.
Peirce ▼. Qoddard, 22 Pick. 559, 33 Am.
Dec. 764; Fryatt v. Sullivan Co. 6 Hill,
117; Ricketts v. Dorrell, 55 Ind. 473; Mil-
,lar V. Humphries, 2 A. K. Marsh. 447.
Kor is this principle unconstitutional. It
existed before our Constitutions were writ-
ten, and was applied both by the ancient
civil and common law. It is deemed to be
recognized by the Contsitution as an exist-
ing principle, and the Constitution is to be
construed in the light of its existence.
Cecil V. Clark, 44 W. Va. 650, 30 S. £.
216.
Personal property may become merged
into other personal property under the doc-
trine of accession, and thereby cease to
exist in its prior character, in the eye of the
law, as completely as if it were attached to
realty.
Abom V. Mason, 14 Blatchf. 405, Fed.
Gas. No. 10; Woodruff ft B. Iron Works v.
Adams, 37 Conn. 239; Merritt v. Johnson,
7 Johns. 473, 6 Am. Dec. 280; Davis v.
Easley, 13 HI. 198; Dunn v. Oneal, 1 Sneed,
106, 60 Am. Dec. 140; Pulcifer v. Page, 32
Me. 404, 54 Am. Dec. 582; Arnott v. Eoinsas
P. R. Co. 19 Kan. 109 ; Atchison, T. k S. F.
R. Co. V. Schriver, 72 Kan. 5C0, 4 L.R.A.
(N.S.) 1059, 84 Pao. 119; Wetherbee v.
Qreen, 22 Mich. 311, 7 Am. Rep. 653;
Brown v. Sax, 7 Cow. 95; Worth v. North-
am, 26 N. C. (4 Ired. L.) 102; Carpenter v.
Lingenfelter, 42 Neb. 728, 32 LILA. 430, 60
K. W. 1022; Ex parte Ames, 1 Low. Dec.
561, Fed. Cas. No. 323.
There is no tenancy in common if there is
a difference in quality and grade of goods
mixed.
€4«
Lupton V. White, 15 Ves. Jr. 442. 10 Re-
vised Rep. 94, 2 Mor. Min. Rep. 430; Jen-
kins V. Steanka, 19 Wis. 126, 88 Am. Dec
675; Reid v. King, 89 Ky. 388, 12 S. W.
772.
There can be no recovery by one supposed
tenant in common against the other in tro-
ver, conversion, or replevin, unless the goods
contributed by each to a common mass are
identical in quality, kind, and value, so
that a portion by measurement would be
practicable and just.
Piazzek v. White, 23 Kan. 621, 33 Am.
Rep. 211; Kimberly v. Patchin, 19 N. Y.
330, 75 Am. Dec. 334; Grimes v. Cannell, 23
Neb. 187, 36 N. W. 479; Young v. Miles,
20 Wis. 623; Weeks v. Hackett, 104 Me.
271, 19 L.RJk.(N.S.) 1201, 129 Am. St.
Rep. 390, 71 Ail. 858, 15 Ann. Cas. 1158;
Kaufmann v. Schilling, 58 Mo. 219.
In case of the bestowal of labor by even
a wrongdoer upon the goods of another, so
as to impart extraordinary value to the
goods, the goods would belong to the party
who put the labor upon them, and not to
the former owner.
Wetherbee v. Green, 22 Midi. 311, 7 Am.
Rep. 653.
Where goods have been changed in char-
acter by being put through a process so that
the original identity is lost, the original
owner loses his property by reason of the
change.
Ibid.; Lampton v. Preston, 1 J. J. Marsh.
454, 19 Am. Dec. 105.
llie doctrine of accession to property is
not confined to cases of innocent taking.
United States v. Detroit Timber A Lum-
ber Co. 100 U. S. 331, 332, 50 L. ed. 503,
504, 26 Sup. Ct. Rep. 282.
Every man is presumed to know the law
to such an extent that he may be held
responsible for, and required to compensate
another for, an injury done such other, and
as against this measure of responsibility no
plea of ignorance of the law will avail. But
this maxim has never been applied to pun-
ish him beyond that measure for not know-
ing the law. Nor should it be applied to
punish third parties innocent of conduct
meriting punishment.
Morgcn v. United States, 94 C. C. A. 518,
169 Fed. 249; Gentry v. United Stotes, 41
C. C. A. 185, 101 Fed. 51, 55 C. C. A. 658,
119 Fed. 70; United SUtes v. Van Winkle,
51 C. C. A. 533, 113 Fed. 903, 22 Mor. Min.
Rep. 56; United States v. Homestake Min.
Co. 54 C. C. A. 303, 117 Fed. 481, 22 Mor.
Min. Rep. 365.
The doctrine which entitles the govern-
ment to recover the increased value in
manufactured rosin and turpentine over the
crude is based entirely upon the idea of
punishing a wilful wrongdoer, and this doc-
%40 V. B.
1916.
UNION NAVAL STORES CO. ▼. UNITED STATES.
trine can luiTe no reference to the man who
«cta upon an honest belief as to his legal
rights, even though he may be mistaken as
to the law.
United States y. Homestake Min. Co.
•npra.
The forfeiting doctrine of confusion of
goods does not apply against mortgagees
who are innocent third parties.
Smith ▼. Au Ores Twp. 9 L.RJL(N.S.)
«76, 80 C. C. A. 145, 150 Fed. 257; Mer-
chants' Nat. Bank ▼. McLaughlin, 2 Fed.
128; Ex parte Ames, 1 Low. Dec 561, Fed.
Cas. No. 323; Weaver v. Neal, 61 W. Va.
57, 123 Am. St. Rep. 972, 55 S. £. 909;
Putnam v. Cushing, 10 Gray, 335; Willard
T. Rice, 11 Met. 493, 45 Am. Dec. 226; Park-
er V. Williams, 77 Me. 138, 1 Atl. 138;
Wells V. Baits, 112 N. C. 283, 34 Am. St.
Rep. 506, 17 S. E. 417 ; Tippett v. Barham,
37 L.R.A.(N.S.) 119, 103 C. C. A. 430, 180
Fed. 81; Union Trust Co. v. Southern Saw
MiUs k Lumber Co. 92 C. C. A. 101, 166
Fed. 199; Detroit Steel Cooperage Co. ▼.
Sistersville Brewing Co. 115 C. C. A. 349,
195 Fed. 450.
Before the passage of the criminal statute
of June 4, 1906, it was not prima facie un-
lawful to box and work trees for turpentine.
Bryant v. United SUtes, 45 C. C. A. 145,
105 Fed. 941; Orrell v. Bay Mfg. Co. 83
Miss. 800, 70 L.RJL 881, 36 So. 561 ; Milli-
kin v. Carmichael, 139 Atl. 226, 101 Am. St.
Rep. 29, 35 So. 706; United Stotes v.
Waters- Pierce Oil Co. 116 0. C. A. 391, 196
Fed. 767.
To show conversion by a tenant in com-
mon there must be either a demand for
possession and a refusal thereof (Bond v.
Ward, 7 Mass. 123, 5 Am. Dec. 30; Bum-
ham V. Marshall, 56 Vt. 365; Gibson v. Mc-
Intirc, 110 Iowa, 417, 81 N. W. 699 ; Smith
V. Welch, 10 Wis. 94; Kewaunee County v.
Decker, 30 Wis. 636), or a showing that
some disposition was made thereof that was
inconsistent with and destructive of the
rights of the cotenant.
One who effects a substantial change in
the form or nature of property without the
knowledge or consent of the owner is liable
for a conversion, and trover will lie for the
new product if the owner has not lost title
thereto under the doctrine of accession.
38 Cyc. 2026, Riddle v. Driver, 12 Ala.
590; Curtis v. Groat, 6 Johns. 168, 5 Am.
Dec. 204; Brown v. Sax, 7 Cow. 95.
While the actual wrongdoer (in this case,
Rayford) may be liable for the highest
value up to time of judgment, an innocent
purchaser, from even such an one, can only
be held liable as of the time of the purchase
or other inception of his rights.
Fisher v. Brown, 17 C. C. A. 225, 87 U. S.
App. 407, 70 Fed. 571; Powers T. United
\%9 L. ed.
SUtes, 56 C. C. A. 128, 119 Fed. 562; E. B.
Bolles Wooden-ware Cio. v. United States,
106 U. S. 432, 27 L. ed. 230, 1 Sup. Ct. Rep.
398; Potter ▼. United States, 58 C. C. A.
231, 122 Fed. 53.
Assistant Attorney General Kiuiebel sub*
mitted the cause for defendant in error:
The boxing of trees upon the lands in
question was a trespass.
Shiver v. United SUtes, 159 U. &. 491, 40
L. ed. 231, 16 Sup. Ct. Rep. 54.
The owner has a ri^t to insist that the
land remain as it is — ^the trees untouched—
except in so far as his license or demise
authorised changes.
Taylor, Land, ft T. 5th ed. fS 345, 348,
360, 351; Underbill, Land, k T. 1909, pp.
707, 714; McAdam, Land, ft T. 4th ed. pp.
1286, 1291; Livingston v. Reynolds, 26
Wend. 115; McGregor v. Brown, 10 N. Y.
114.
Boxing and chipping trees for turpentine
is decidedly not cultivation in the sense of
the homestead act ( Re Wooten, 5 Land. Dec.
389; Re McKensie, 86 Land. Dec. 302;
United SUtes v. Waters-Pierce Oil Co. 116
C. C. A. 891, 196 Fed. 767), or in any sense
whatever.
The hypothesis of innooenea seems quite
too absurd for serious consideration.
Re Cromartie, 1 Land Dee. 607; Acting
Secretary's Letter of July 1, 1885, 4 Land
Dee. 1; Re Wooten, 5 Land Dec 389; Re
McKensie, 36 Land Dec. 302; Parish v.
United States, 106 C. C. A. 570, 184 Fed.
590; McKenzie v. United States, 106 C. C.
A. 666, 184 Fed. 988; United States v. Tay-
lor, 35 Fed. 484.
The trespass being proved, wilfulness is
presumed.
United States v. Ute Coal ft Coke Co. 85
C. C. A. 302, 158 Fed. 23; Liberty Bell (3k>ld
Min. Co. V. Smuggler-Union Min. Co. 122
C. C. A. 113, 203 Fed. 802, 231 U. S. 747,
58 L ed. 464, 34 Sup. Ct. Rep. 320; Ontral
Coal ft Coke Co. v. Penny, 97 C. C. A. 600,
173 Fed. 344.
The burden of proving the trespass inno-
cent was on the defendant.
Dartmouth College v. International Paper
Co. 132 Fed. 92; £. G. Beechwood Ice Co. v.
American Ice Co. 176 Fed. 435; United
States V. Ute Coal ft Coke Co. 85 C. C. A.
302, 158 Fed. 23; Liberty Bell Gold Min.
Co. ▼. Smuggler-Union Min. Co. 122 C. C.
A. 113, 203 Fed. 802, 231 U. S. 747, 58 L.
ed. 464, 34 Sup. Ct. Rep. 320; E. E. Bolles
Woodenware Co. v. United States, 106 U. S.
432, 435, 27 L. ed. 230, 231, 1 Sup. Ct. Rep.
398; Pine River Logging ft Improv. Co. v.
United States, 186 U. S. 279, 293, 46 L. ed.
1164, 1171, 22 Sup. Ct. Rep. 920; Northern
P. R. Co. T. Lewis, 162 U. S. 366, 374, 40
^^
^^9m
mm
285, 286
SUPREME COURT OF THE UNITED STATES.
Oct. Tbm^
L. ed. 1002, 1006, 16 Sup. Ct. Rep. 831; St.
Louis Stave Go. v. United States, 100 C. C.
A. 640, 177 Fed. 178 ; 1 C. J. 388.
The evidence introduced proves wilfulness,
not innocence.
Liberty Bell Gold Min. Co. v. Smuggler,
Union Min. Co. 122 C. C. A. 113, 203
Fed. 802, 231 U. 8. 747, 54 L. ed. 464, 34
Sup. Ct. Rep. 320.
The action being an ambulatory one for
the conversion of the manufactured prod-
ucts, it was not necessary to allege the place
of conversion. Nor was it necessary to aver
the source of plaintiff's title to the goods
converted.
38 Cyc. 2069; Melrose Mfg. Co. v. Ken-
nedy, 59 Fla. 312, 51 So. 595.
l^ere is no such vagueness or uncertainty
in the evidence concerning the amount and
value of the goods converted as would war-
rant an attack upon the verdict.
Sauntry v. United States, 55 C. C. A. 148,
117 Fed. 132.
Leaving the mortgage aside, it is plain
that the government's right to recovery was
not affected by the mixtures and alterations
wrought by the guilty trespasser.
6 Am. & Eng. E;ic. Law, pp. 504, 596;
The Idaho, 93 U. S. 575, 585, 23 L. ed. 978,
981; 1 C. J. 387, 388; Silsbury v. McCoon,
3 N. Y. 379, 53 Am. Dec. 307; Lampton v.
Preston, 1 J. J. Marsh. 455, 19 Am. Dec.
104; Curtis V. Groat, 6 Johns. 169, 5 Am.
Dec. 204; Eaton v. Langley, 65 Ark. 448,
42 L.R.A. 474, 47 S. W. 123; Tuttle v.
White, 46 Mich. 485, 4 Am. Rep. 175, 9 N.
W. 528; Rockwell v. Saunders, 19 Barb. 473;
Potter V. Mardre, 74 N. C. 36; Newton v.
Porter, 69 N. Y. 137, 25 Am. Rep. 152;
Strubbee v. Cincinnati R. Co. 78 Ky. 481;
Carpenter v. Lingenfelter, 32 L.rA. 422,
note; Distilled Spirits (Harrington ▼.
United SUtes) 11 Wall. 356, 368, 20 L. ed.
167, 171; E. E. Bolles Wooden-ware Co. v.
United States, 106 U. S. 432, 27 L. ed. 230,
1 Sup. Ct. Bjep. 398.
While it is true that a mortgagee who,
under authority of a recording act, has left
the mortgagor in possession, may follow tho
goods if wrongfully sold, and, if confused
with other goods of the mortgagor, may
seize upon all for the satisfaction of his
mortgage, we have yet to find an authorit}^
for the proposition that an innocent third
party, bearing no relationship whatever to
the parties to the mortgage, may be de-
prived of his goods in this way for the en-
richment of the mortgagee.
Robinson ▼. Holt, 39 N. H. 557, 75 Am.
Dec. 233.
Even if the goods were affected by a lien,
the conversion would not be excused or the
damages diminished.
Cooley, Torts, 3d ed. pp. 69, 875; 8 Cyc
648
574; 6 Am. k Eng. Enc. Law, 594; Ryder v.
Hathaway, 21 Pick. 305; Hesseltine ▼.
Stockwell, 30 Me. 242, 50 Am. Dec. 627; D.
M. Osborne & Co. v. Cargill Elevator Co. 62
Minn. 400, 64 K. W. 1135; 38 Cyc 2010,
2024, 2028.
If there was a lien, its existence was
made immaterial by the sale of the goods.
Saltus V. Everett, 20 Wend. 273, 32 Anu
Dec. 541; Galvin v. Galvin Brass ft Iron
Works, 81 Mich. 16, 45 N. W. 654.
Mr. Justice Pitney delivered the opin-
ion of the court:
This was an action by the United States
against the Union Naval Stores Company
for the conversion during the years 1904
and 1905 of spirits of turpentine and rosin,
alleged to have been taken by defendant
from certain government lands in the coun-
ty of ^lobile, in the state of Alabama,
known as the Freeland homestead, and thus
and otherwise more particularly described
in the complaint.
The facts, as they appeared at the trial,
were as follows: Freeland had made an
application for a homestead entry under* f
2289, Rev. Stat. (Comp. SUt. 1913, § 4530),
but never perfected it. Being the owner of
other lands in the same neighborhood, Free-
land agreed with one Rayford to give him
a tiu7>entine lease for a lump sum upon all
of his timber, not including the homestead.
A third party having been employed to re-
duce the agreement to writing, Freeland
discovered that the homestead had been
included, and he called Rayford's attention
to this and tendered back the [286J check
given for the consideration money, on the
ground that if the homestead was included
in the lease he would be in danger of losing
his entry. Rayford replied: "There is no
law against turpentining a piece of home-
stead land as long as you are on it." And
so Freeland made no further objection.
Rayford, during the years in question,
conducted turpentining operations upon the
Freeland homestead and a large number of
other tracts in its vicinity. Under date
December 21, 1903, he had entered into a
"shipping contract" with the Union Naval
Stores Company, by which he undertook to
cut and box at least 10 crops of 10,500
boxes each from lands described in a deed
of trust or mortgage of even date given by
him to one Wade as trustee of the company,
and to manufacture the crude turpentine
into spirits of turpentine and rosin, and
deliver the maniifactured product at Mobile,
Alabama, or other points selected by it. By
the same agreement plaintiff in error under-
took to advance moneys to be used by Ray-
ford, and that it would receive the manu-
factured turpentine and rosin and sell it
940 U. 8.
1015.
UNION NAVAL STORES 00. t. UNITED STATES.
286-289
for Rayford's account at stipulated charges
and commissions. The mortgage was given
to secure the advances and the performance
of the shipping agreement. It covered
Rayford's turpentine leases, and also all
emde and manufactured spirits of turpen-
tine, and other products owned or in any
manner secured by Rayford during the con-
tinuance of the contract. The crude tur-
pentine taken by Rayford from the home-
stead was mixed with that taken from his
other properties at or before it reached the
still; and the manufactured products were
shipped from time to time to plaintiff in
error at Mobile, bills of lading being sent
by mail, and accounts of sales being re-
turned by plaintiff in error to Rayford.
It was admitted that, during the years
1904 and 1905, spirits of turpentine and
rosin were received by plaintiff in error
from Rayford, under the contract and mort-
gage referred [287] to, in quantities great-
er than those claimed for in the suit. There
was evidence as to the market values of
these products during the period in question,
but none as to the market value of crude
turpentine. A verdict and judgment having
gone in favor of the United States for
12,447.55, defendant appealed to the circuit
court of appeals, where it was directed that
so much of this as represented interest prior
to the commencement of the action should
be remitted, and the judgment otherwise
affirmed. 123 0. C. A. 1, 202 Fed. 491.
There are numerous assignments of error,
based upon exceptions taken at the trial,
one of them to the refusal to direct a ver-
dict in favor of defendant, the others to
instructions given or refused to be given.
Without reciting these in detail, we will
express our views upon the principal ques-
tions of law that are raised.
Neither the complaint nor the evidence
is fatally defective or uncertain. The claim
is for spirits of turpentine and rosin taken
from certain described lands. That it was
the crude, and not the manufactured, prod-
uct that was in a literal sense taken from
the land, is of no consequence. The
land is referred to only to identify the
chattels, conversion of which is alleged.
Whether there was an error in the partie-
ular description of the lands, as is iuBisted,
is a matter of no serious consequence, for
they were otherwise described as the "Louis
I. Freeland Homestead,*' and there was un-
contradicted evidence that the lands re-
ferred to, and no others, were known by
this description. That the evidence did not
show precisely what quantities of turpen-
tine spirits and rosin, manufactured from
the crude turpentine taken from the home-
stead, were received by the plaintiff in error,
was not ground for a peremptory instruc-
to L. ed.
tion to find for defendant, or to limit the
recovery to nominal damages, since there
was evidence from which the jury could
form a reasonably certain estimate of the
amount of crude taken from the homestead
during the [288] years in question, and the
amount of spirits and rosin that this prob-
ably yielded.
There was no error in charging that "the
boxing of trees by a settler on public land
coverwl by an unperfected homestead entry,
or by any person who knew it was public
land (which an unperfected homestead en-
try is), and the extracting of crude tur-
pentine therefrom, constitutes in law an
intentional, wilful trespass, although he
may have acted without knowledge of the
illegality of the act, and that from such
persons the United States are entitled to
recover the value of the product manufac-
tured from such crude turpentine by the
settler, or from any person into whose pos-
session the same may have passed." This
refers, of course, as other parts of the
charge clearly show, to a manufacture by
Rayford, who was himself the trespasser.
The rights and privileges of an entry-
man with reference to standing timber
were considered and discussed in Shiver v.
United States, 169 U. S. 491, 497, 498, 40
L. ed. 231-233, 16 Sup. Ot. Rep. 54, where,
after reviewing the pertinent sections of the
Revised Statutes, it was said: "From this
r^§um4 of the homestead act, it is evident,
first, that the land entered continues to be
the property of the United States for five
years following the entry, and until a pat-
ent is issued; . . . third, that mean-
time such settler has the right to treat tlie
land as his own so far, and so far only,
as is necessary to carry out the purposes
of the act. The object of this legislation
is to preserve the right of the actual settler,
but not to open the door to manifest abuses
of such right. Obviously the privilege of
residing on the land for five years would be
ineffectual if he had not also the right to
build himself a house, outbuildings, and
fences, and to clear the land for cultiva-
tion. . . . It is equally clear that he
is bound to act in good faith to the govern-
ment, and that he has no right to pervert
the law to dishonest purposes, or to make
use of the land for profit or speculation.
The law [289] contemplates the possibility
of his abandoning it, but he may not in the
meantime ruin its value to others, who may
wish to purchase or enter it. With respect
to the standing timber, his privileges are
analogous to those of a tenant for life or
years. ... By analogy we think the
settler upon « homestead may cut such tim-
ber as is necessary to clear the land for cul-
tivation, or to build him a house, outbuild-
280-291
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbm,
ings, and fences, and, perhaps, as indicated
in the charge of the court below, to exchange
such timber for lumber to be devoted to the
same purposes; but not to sell the same for
money, except so far as the timber may
have been cut for the purpose of cultiva-
tion."
There is nothing in the letter* or policy
of the homestead act that permits the box-
ing and chipping of pine trees for the pur-
pose of extracting turpentine for sale and
profit. It cannot be regarded as cultiva-
tion within the meaning of the act; it
affects the value of the inheritance too seri-
ously for that. As is well known, the pro-
cess requires the cutting of a deep gash or
''box" into the side of the tree, so shaped
as to catch and retain a considerable quan-
tity of the crude gum, and repeated cbip-
pings thereafter, by each of which an ad-
ditional portion of the bark is cut through
to the wood so as to expose a fresh bleeding
surface. It not only saps the vital strength
of the tree and lessens its power to resist
the force of the wind, but exposes the wood
to decay and to wood-boring grubs and
beetles; while the waste gum, being highly
inflammable, increases the danger of forest
fires. Government publications have repeat-
edly pointed out the ill effects of the prac-
tice.i
The recognition of these evils led Con-
gress to pass the [200] act of June 4, 1900,
chap. 2571, 34 Stat, at L. 208, now found in
Crim. Code, § 51 (act of March 4, 1909,
chap. 321, 35 Stat, at L. 1088, 1098, Comp.
Stat. 1913, SS 10,165, 10,218). It is true
that in Bryant v. United States (1901)
45 C.'C. A. 145, 105 Fed. 941, the circuit
court of appeals for the fifth circuit, in
holding that boxing for turpentine was not
a criminal offense within the meaning of
§ 2461, Rev. Stat. (Comp. Stat. 1913, S
4980), said, obiter, "We think it is not a
matter of common knowledge that such cut-
ting and boxing of pine trees destroy the
value of the trees as timber, or that it has
a tendency even to retard the growth of
the trees," and that this view was made the
basis of a decision by the circuit court of
appeals from the eighth circuit that, prior
to the act of 1906, the boxing of trees for
turpentine on public lands was not action-
able. United States v. Waters Pierce Oil
1 "A New Method of Turpentine Orchard-
ing," Bulletin No. 40, Bureau of Forestry,
1903, pp. 9-18; "The Naval Stores Indus-
try," Bulletin No. 229, Department of iUri-
culture, July 28, 1915; "Conservative ^r-
pentining," Senate Doc. 676, 60th Cong., 2d
Hess., vol. 11, p. 498. See also Re Cromartie,
1 Land Dec. 607 ; 4 Land Dec. 1 ; Re Wooten,
5 Land Dec 889; Re McKenzie, 36 Land
Dec. 802.
650
Co. 116 C. C. A. 391, 196 Fed. 767, 769. We
are clear, however, that the act of 1906 only
rendered criminal that which before was
actionable because not included in any right
or privilege expressly or by implication con-
ferred upon the homesteader by the act of
Congress. So the circuit court of appeals
for the fifth circuit held in Parish v. United
States, 106 C. C. A. 570, 184 Fed. 590.
And see United Statea v. Taylor, 36 Fed.
484.
Rayford, in conducting his turpentining
operations upon the homestead with notice
that the land was the property of the United
States, became a wilful trespasser, although
he may have supposed, as he is said to
have declared, that there was "no law
against it." He acted with full notice of
the facts, and his mistake of law cannot
excuse him.
Upon the facts as the jury must have
foimd them, the distillation by Rayford of
the gum that was taken from the govern-
ment's land was a continuing act of tres-
pass that did not devest the United States
of its property, but left it still entitled to
the manufactured products. Distilled Spir-
its (Harrington v. United SUtes) 11 Wall.
356, 369, 20 L. ed. 167, 171. If the doctrine
of confusion of goods were to be applied, the
entire product of the still would belong to
the United States. The [291] Idaho, 93 U.
S. 575, 586, 23 L. ed. 978, 982. But, by the
instructions of the trial judge, recovery was
limited to the value of the products manu-
factured from crude gum taken from the
Freeland homestead.
It is ingeniously .argued that a different
rule must govern as between the United
States and the defendant company, because
the company had a mortgage upon Rayford's
product, both crude and manufactured; that
the crude stuff as soon as it reached the
still was inextricably mixed with a much
greater quantity to which Rayford had an
unquestioned title, which passed to defend-
ant at. once by virtue of the mortgage, and
that the evidence shows such hopeless con-
fusion and admixtures of unknown quanti-
ties and varying qualities of gum that no
reasonable ascertainment of the rights of the
parties as tenants in common is possible;
therefore, the government proper^, being
relatively small in value, passed to defend-
ant under the doctrine of accession. It is
less confidently argued that the same result
would apply even as between the lawful
owner and a wilful trespasser; but this we
deem clearly untenable. One who knowings
ly takes the property of another cannot, by
changing its form or increasing its value, or
by commingling it with other property of
his own, acquire title by accession. Dis-
140 U. S.
1915.
O^EEFE T. UNITED STATES.
291-294
tilled Spirits, supra; Silsbury v. MeCoon,
3 N. Y. 379, 63 Am. Dec. 307, 315, note.
The argument based upon the mortgage
is confronted with this obstacle, to say
nothing of others: that the mortgage and
the shipping contract alilce contemplated
that Rayford should manufacture the crude
turpentine into spirits and rosin and ship
these to defendant, and such was the actual
course of dealing thereunder. Defendant at
no time asserted any lien upon or property
in the crude material by virtue of the mort-
gage. And even if it were now permitted
by a fiction to assert ownership in all that
part of the crude gum which was the law-
ful property [202] of Rayford, as of the
time that it reached his still, it must per-
force place itself in the position of employ-
ing Rayford as its agent for the purpose of
distilling the turpentine. Now Rayford, in
doing this, placed with it a comparatively
small, but still substantial, quantity of
crude turpentine that was the property of
the United States. Defendant cannot take a
benefit from the distilling operations thus
conducted by Rayford without at the same
time assuming a responsibility for that
which he did; and what he did in distilling
the government's gum was a continuing
trespass, that left the United States entitled
to its property in its changed form, the
same if the distilling was done by Rayford
under an agency from defendant, as if done
on his individual account.
And, of course, if defendant's title dates
from the time of the delivery to it of the
manufactured product, it can take no great-
er interest than that which Rayford held.
Thus, whether we indulge the fiction, or
whether we adhere to the practical fact,
which is that Rayford under the contract de-
livered manufactured products to defendant,
the latter can take no credit for the work
and labor bestowed upon the turpentine by
the wrongdoer, but must answer for its
value as manufactured products. E. E.
Bolles Wooden-Ware Co. v. United States,
106 U. S. 432, 435, 27 L. ed. 230, 231, 1
Sup. Ct. Rep. 398; Guffey v. Smith, 237
U. S. 101, 119, 59 L. ed. 856, 866, 35 Sup.
Ct. Rep. 526.
The after-acquired-property clause in the
mortgage does not help matters for defend-
ant. Property in the turpentine could not
be acquired by Rayford without the consent
of the United States, and this he did not
have. See Holt v. Henley, 232 U. S. 637,
640, 58 L. ed. 767, 772, 34 Sup. Ct. Rep. 459 ;
Detroit Steel Cooperage Co. v. Sisters-
ville Brewing Co. 233 U. S. 712, 58 L. ed.
1166, 34 Sup. Ct. Rep. 753.
It is insisted that if a tenancy in com-
mon existed in the manufactured product,
the possession of it by defendant company
60 Ii. ed.
was not tortious, and that in order to show
a conversion there must be either a demand
for possession and refusal thereof, or a
showing that some [293] disposition was
made of the chattels inconsistent with and
destructive of the rights of plaintiff as co-
tenant. But, taking the shipping contract
and th» mortgage with the testimony and
admissions as to the course of business car-
ried on thereunder, the jury was fully war-
ranted in finding that defendant had
converted the manufactured products by sell-
ing them soon after they were received, and
accounting to Rayford for the proceeds. The
question of conversion was submitted to
the jury, with a proper instruction that in
such * «vent a demand for possession was
futile and therefore unnecessary.
The trial court instructed the jury that
recovery should be based upon the market
value of the spirits and rosin at the time
they were received by defendant, and it is
insisted that the value at the time of the
conversion ought to have been taken instead.
As to this it is sufficient to say that, except
as it was to be inferred that probably the
manufactured products were sold not long
after their receipt by defendant, there is
nothing to throw light upon the time that
intervened between receipt and sale; and
while by stipulatioik the highest and lowest
market prices for turpentine and for rosin
during the years 1904 and 1905 were shown,
it did not appear at what time the prices
were high, and at what time low. In short,
the evidence contained nothing to aid the
jury in distinguishing between the market
price at the time of receipt and the market
price at the time of sale. Defendant did
nothing — if it could — ^to elucidate the mat-
ter by evidence, nor did its exceptions call
the attention of the trial judge to the point
now insisted upon.
Minor points are raised, but none that
seems to eall for discussion.
Judgment affirmed.
Mr. Justice McReynolds took no part in
the consideration or decision of this case.
[204] J. D. CKEEFE, Receiver ot Kew
Orleans, Texas, ft Mexico Railroad Com-
pany, Appt,
▼.
UNITED STATES and the Interstate Com-
merce Commission.
(See 8. O. Repoiter's ed. 294-305.)
Interstate Gonaiineroe Gommlssion —
— powers -* division of Joint rates
— tap HfkeB,
1. To prescribe the maximum allow-
ance out of the joint rates which trunk li^^
SU^KEME COURT OF THE UNITED STATES.
Oct. Tebm,
railways may make to tap lines which are
owned hj the persons who own the timber
and mills which they principally serve can-
not be said to be beyond the powers of the
Interstate Commerce Commission because
no joint rate was fixed either by the Com-
mission or by the carriers, and they had
not been afforded an opportunity to agree
in respect to the division, since, in addition
to the provisions of the act of February
4, 1887 (24 Stat, at L. 379, chap. 104),
§ 15, as amended by the act of June 18,
1010 (36 Stat, at L. 539, 551, chap. 309,
Comp. Stat. 1913, §§ 993, 8583), § 12, deal-
ing expressly with the division of rates
where carriers fail to agree among them-
selves as to the division, or where they
have refused or neglected voluntarily to
establish through routes or joint rates, the
section also empowers the Commission, if
of the opinion that any individual or joint
rates or charges, or classifications, regula-
tions, or practices are unjust, or unlawful-
ly discriminatory, to prescribe others which
shall be just and reasonable, and authorizes
the Commission to determine the maximum
charge which the carrier may pay for serv-
ices rendered or instriunentalities furnished
by the owner of the property transported.
[Powers of Interstate Commerce Commission,
see Interstate Commerce Commission, in Di-
gest Sup. Ct. 1908.]
Carriers — -tap line cases — dlTision of
joint rates.
2. The division of through rates be-
tween trunk line rail^ys and tap lines as
prescribed by the Interstate Commerce Com-
mission is not necessarily arbitrary be-
cause, while classifying all service rendered
by the tap lines for distances up to 3 miles
from junction points as switching, and al-
lowing for this a division of $2 and $3 a
car, allowances for all distances above 3
miles are based upon mileage.
[For other cases, see Carriers, III., in Digest
Sup. Ct. 1908.]
Constitutional law — due process of law
— right of carrier to give rebates or
bonuses.
3. A trunk line railway has no right
protected by the due process of law clause
of the Federal Constitution to build up its
business by paying tap line railroads
bonuses or rebates which have been for-
bidden by Congress from considerations af-
fecting the public welfare.
[For other cases, see Constitutional Law, IV.
b, 4, tQ Digest Sup. Ct. 1908.]
[No. 516.]
Argued December 15, 1915. Decided Feb-
ruary 21, 1916.
APPEAL from the District Court of the
United States for the Eastern District
of Louisiana to review a decree which dis-
missed a bill praying the annulment of an
order of the Interstate Commerce Commis-
sion prescribing the maximum allowance
out of joint rates which trunk line rail-
ways may make to tap lines. Affirmed.
The facts are stated In the opinion.
65S
Messrs. U. Generes Dufonr and Walter
F. Taylor argued the cause, and, with Mr*
Morgan M. Mann, filed a brief for appel-
lant:
The Interstate Commerce Commission had
no power to make the order of July 29th,
1914, herein complained of.
Interstate Commerce Commission v. Chi-
cago G. W. R. Co. 209 U. S. 119, 62 L. ed.
712, 28 Sup. Ct. Rep. 493; Re Transporta-
tion of Salt, 10 Inters. Com. Rep. 148; In-
terstate Commerce Commission v. Stickney,
215 U. S. 98, 54 L. ed. 112, 30 Sup. Ct. Rep.
66; Southern P. Co. v. Interstate Commerce
Commission, 219 U. 8. 433, 55 L. ed. 283,
31 Sup. Ct. Rep. 298.
The Commission, in making the order
complained of, applied erroneous principles
of law, in that it excluded from consider-
ation competitive conditions as an element
to be taken into account in determining
whether a division is just and reasonable,
or unlawfully discriminatory and a cloak
for a rebate.
Interstate Commerce Commission v. Chi-
cago G. W. R. Co. 141 Fed. 1003, affirmed
in 209 y. S. 108, 52 L. ed. 705, 28 Sup. Ct.
Rep. 493; Phipps v. London & N. W. R. Co.
[1892] 2 Q. B. 229, 61 L. J. Q. B. N. S. 379,
66 L. T. N. S. 721, 8 Eng. Ry. & C. Traffic
Cas. 83; Interstate Commerce Commission
V. Baltimore & O. R. Co. 145 U. S. 263, 36
L. ed. 699, 4 Inters. Cora. Rep. 92, 12 Sup.
Ct. Rep. 844; Cincinnati, N. 0. & T. P. R.
Co. V. Interstate Commerce Commission, 162
U. S. 184, 40 L. ed. 935, 5 Inters. Com. Rep.
391, 16 Sup. Ct. Rep. 700; Interstate Com-
merce Commission v. Alabama Midland R.
Co. 168 U. S. 144, 104, 42 L. ed. 414, 422,
18 Sup. Ct. Rep. 45; Louisville k N. R. Co.
V. Behlmer, 175 U. S. 648, 44 L. ed. 309. 20
Sup. Ct. Rep. 209: East Tennessee, V. & G.
R. Co. V. Interstate Commerce Commission,
181 U. S. 1, 45 L. ed. 719, 21 Sup. ( t. U<'p.
516; Texas & P. R. Co. v. Interstate Com-
merce Commission, 162 U. S. 197, 40 L. ed.
940, 5 Inters. Com. Rep. 405, 16 Sup. Ct.
Rep. 666; Interstate Commerce Commission
V. Louisville & N. R. Co. 190 U. S. 273. 47
L. ed. 1047, 23 Sup. Ct. Rep. 687 ; Interstate
Commerce Commission v. Western & A. R.
Co. 35 C. C. A. 217, 93 Fed. 83; Judson, In-
terstate Commerce, §§ 175-183.
The order oi July 29th, 1914, is arbitrary,
and there was no substantial evidence in the
record upon which the same could have been
based. There was no evidence before the
Commission to sustain its finding to the
effect that any allowance or division in ex-
cess of those which it prescribed would
result in undue preference and imjust dis-
crimination.
Interstate Commerce Commission v.
Union P. R. Co. 222 U. S. 541, 56 L. ed.
240 U. 8*
1915.
O'KEEFE V. UNITED STATES.
308, 32 Sup. Ct. Rep. 108; Ft. Dodge Com-
mercial Club V. Illinois C. R. Co. 16 Inters.
Com. Rep. 681; Business Men's Asso. v.
Chicago, St. P. M. & O. R. Co. 2 Inters. Com.
Rep. 41; New York Produce Exch. v. Balti-
more & O. R. Co. 7 Inters. Com. Rep. 660;
Loup t)reek Colliery Co. v. Virginian R.
Co. 12 Inters. Com. Rep. 471; Gustin v.
Atchison, T. & S. F. R. Co. 8 Inters. Cora.
Rep. 288; Wilmington Tariff Asso. v. Cin-
cinnati, P. k V. R. Co. 0 Inters. Com. Rep.
167; Corporation Commission t. Norfolk &
W. R. Co. 19 Inters. Com. Rep. 300.
The effect of the Commission's order is to
deprive complainant of its property without
due process of law by denying to complain-
ant the right to contract and compete for
traffic originating on the line of tho Louisi-
ana & Pacific Railway Company.
Interstate Commerce Commission v. Chi-
cago G. W. R. Co. 209 U. S. 108, 62 L. ed.
705, 28 Sup. Ct. Rep. 493.
The rights of the complainant have not
been foreclosed by the action of the Com-
mission.
Interstate Commerce Commission t.
Louisville & N. R. Co. 227 U. S. 88, 67 L.
ed. 431, 33 Sup. Ct. Rep. 186; Interstate
Commerce Commission v. Union P. R. Co.
222 U. S. 641, 56 L. ed. 308, 32 Sup. Ct. Rep.
108.
Mr. Joseph W. Folk argued the cause
and filed a brief for the Interstate Com-
merce Commission:
In the absence of prior action by the Com-
mission, the courts have no jurisdiction to
determine the discriminatory or nondis-
criminatory character of any agreement as
to divisions.
Atchison, T. & S. F. R. Co. v. United
States, 232 U. & 199, 221, 58 L. ed. 568, 576,
34 Sup. Ct. Rep. 291.
The Commission had power to fix maxi-
mum divisions.
Louisiana & P. R. Co. v. United States,
209 Fed. 253, 234 U. S. 1, 29, 58 L. ed. 1185,
1196, 34 Sup. Ct. Rep. 741; Ellis v. Inter-
state Commerce Commission, 237 U. S. 434,
445, 59 L. ed. 103G, 1041, 35 Sup. Ct. Rep.
645; Texas & P. R. Co. v. Interstate Com-
merce Commission, 1G2 U. S. 197, 40 L. ed.
940, 5 Inters. Com. Rep. 405, 16 Sup. Ct.
Rep. 666; lUinois C. R. Co. v. Interstate
Commerce Commission, 206 U. S. 441, 51 L.
ed. 1128, 27 Sup. Ct. Rep. 700; Interstate
Coounerce Commission v. Illinois C. R. Co.
215 U. 6. 462, 64 L. ed. 280, 30 Sup. Ct.
Rep. 155; Mitchell Coal ft Coke Co. v. Penn-
sylvania R. Co. 230 U. S. 247, 57 L. ed.
1472, 33 Sup. Ct. Rep. 916; Houston, E. k
W. T. R. Co. V. United States, 234 U. S.
342, 58 L. ed. 1341, 34 Sup. Ct. Rep. 833;
Louisville ft N. R. Co. v. United States, 238
•0 li. ed.
U. S. 1, 20, 59 L. ed. 1177, 1184, 86 Sup. Ct
Rep. 696.
The Commission had pow^ to fix the
divisions upon a mileage basis.
Ozark Fruit Growers' Asso. v. St. Louis
ft S. F. R. Co. 16 Inters. Com. Rep. 140;
Re Investigation of Alleged Unreasonable
Rates on Meats, 22 Inters. Com. Rep. 176;
Indianapolis Freight Bureau v. Cleveland,
C. C. ft St. L. R. Co. 23 Inters. Com. Rep.
198; Re Advances on Fresh Meats ft Pack-
ing House Products, 23 Inters. Com. Rep.
663 ; Iowa State Bd. of R. Comrs. v. Arizona
Eastern R. Co. 28 Inters. Com. Rep. 193; F.
S. Royster Guano Co. v. Atlantic Coast
Line R. Co. 31 Inters. Com. Rep. 458; Rail-
road Commission v. St. Louis Southwestern
R. Co. 34 Inters. Com.' Rep. 472; Thompson
V, Railroad Commission, 198 Fed. 691;
Texas ft P. R. Co. v. Railroad Commission,
112 C. C. A. 638, 192 Fed. 280.
The Commission having the power to
regulate these divisions, it was an adminis-
trative question within its province to de-
termine whether they should be regulated
upon a mileage basis or otherwise.
Interstate Commerce Commission v. Union
P. R. Co. 222 U. S. 641, 647, 650, 66 L. ed.
308, 311, 312, 32 Sup. Ct. Rep. 108; Inter-
state Commerce Commission ▼. Illinois C.
R. Co. 215 U. S. 452, 470, 54 L. ed. 280,
287, 30 Sup. Ct. Rep. 156; Baltimore ft O.
R. Co. V. United States, 216 U. S. 481, 494,
54 L. ed. 292, 297, 30 Sup. Ct. Rep. 164;
Illinois C. R. Co. v. Interstate Commerce
Commission, 206 U. S. 441, 464, 51 L. ed.
1128, 1133, 27 Sup. Ct. Rep. 700; Los
Angeles Switching Case (Interstate Com-
merce Commission v. Atchison, T. ft S. F.
R. Co.) 234 U. S. 294, 314, 58 L. ed. 1319,
1328, 34 Sup. Ct. Rep. 814; Interstate Com-
merce Commission v. Chicago, R. I. ft P. R.
Co. 218 U. S. 88, 103, 54 L. ed. 946, 965, 30
Sup. Ct. Rep. 661; United States v. Louis-
ville ft N. R. Co. 235 U. S. 314, 320, 59 L.
ed. 245, 250, 36 Sup. Ct. Rep. 113.
Disadvantages in rates due to disad-
vantageous location do not constitute an
undue prejudice or an undue discrimination,
cither in fact or in law.
United States v. Baltimore ft 0. R. Co.
231 U. 8. 274, 58 L. ed. 218, 34 Sup. Ct. Rep.
75.
It is not the province of the Commission
to equalize by rate adjustment dissimilar
conditions^ due to location.
Page Mill Co. v. Norfolk ft W. R. Co. 30
Inters. Com. Rep. 612; Railroad Comrs. v.
Atchison, T. ft S. F. R. Co. 22 Inters. Com.
Rep. 410; Wichita Business Asso. ▼. Atchi-
son, T. ft S. F. R. Co. 30 Inters. Com. Rep.
55.
The act to regulate oommeroe does not
295, ^96
SUPREME COURT OF THE UNITED STATES.
Oct. Temm,
attempt to equalize fortunes, opportunities,
or abilities.
Interstate Commerce Commission ▼. Dif-
fenbaugh, 222 U. S. 42, 46, 56 L. ed. 83, 87,
32 Sup. Ct. Rep. 22; Southern P. Co. v. In-
terstate Commerce Commission, 219 U. S.
433, 55 L. ed. 283, 31 Sup. Ct. Rep. 298.
Competitive conditions cannot justify the
purchase of traffic.
Wight V. United States, 167 U. S. 512,
42 L. ed. 258, 17 Sup. Ct. Rep. 822.
The legality of maximum divisions fixed
by the Commission must prevail over any
alleged equities of appellant.
Southern P. Co. v. Interstate Commerce
Commission, supra.
Any agreement with respect to divisions
contrary to the order of the Commission is
illegal and void.
Armour Packing Co. v. United States, 209
U. S. 56, 52 L. ed. 681, 28 Sup. Ct. Rep. 428.
The act to regulate commerce was in-
tended to correct rebating, favoritism, and
discrimination, and to bring about justice
and equality in the treatment of shippers.
Interstate Commerce Commission v. Chi-
cago, R. I. & P. R. Co. 218 U. S. 88, 54 L.
ed. 946, 30 Sup. Ct. Rep. 651.
Assistant Attorney General Underwood
argued the cause and filed a brief for the
United States:
The discriminations which the Commis-
sion found to exist could only be remedied
by establishing uniform divisions on a mile
age basis.
Ozark Fruit Growers' Asso. v. St. Louis &
S. F. R. Co. 16 Inters. Com. Rep. 140; Re
Investigation of Alleged Unreasonable Rates
on Meats, 22 Inters. Com. Rep. 176 ; Indian-
apolis Freight Bureau v. Cleveland, C. C. &
St. L. R. Co. 23 Inters. Com. Rep. 198;
Sheridan Chamber of Commerce v. Chicago,
B. & Q. R. Co. 26 Inters. Com. Rep. 644;
Mississippi River Case, 28 Inters. Com. Rep.
61; Arizona Corp. Commission v. Atchison,
T. & S. F. R. Co. 28 Inters. Com. Rep. 428;
Thompson v. Railroad Commission, 198 Fed.
691; Texas ft P. R. Co. v. Railroad Commis-
sion, 112 C. C. A. 538, 192 Fed. 280.
The order was within the authority of
the Commission, was made after full in-
vestigation, is supported by the proof, and is
conclusively correct.
Interstate Commerce Commission v.
Illinois C. R. Co. 215 U. S. 452, 470, 64 L.
ed. 280, 287, 30 Sup. Ct. Rep. 155; Inter-
state Commerce Commission v. Union P. R.
Co. 222 U. S. 541, 547, 56 L. ed. 308, 811,
32 Sup. Ct. Rep. 108; United States v.
Louisville k N. R. Co. 235 U. S. 314, 320,
321, 59 L. ed. 245, 250, 251, 35 Sup. Ct. Rep.
113; Pennsylvania Co. v. United States, 236
U. S. 351, 59 L. ed. 616, P. U. R. 1915B, 261,
S3 Sup. Ct. Rep. 870.
0^4
Mr. Justice Pitney delivered the opinion
of the court:
This is an appeal from a decree dismiss*
ing a bill filed by appellant, as receiver of
the New Orleans, Texas, ft Mexico Railroad
Company, against the United States and the
Interstate Commerce Commission, pfaying
the annulment of an order of the Commis-
sion, dated July 29, 1914, made in the Tap
Line Cases, following the decision of this
court reported in 234 U. S. 1, 58 L. ed. 1185,
34 Sup. Ct. Rep. 741. The order required
certain trunk line railway companies, in-
cluding the New Orleans, Texas, ft Mexico,
to reopen through routes and publish joint
rates to interstate destinations with certain
tap lines, including Louisiana ft Pacific Rail-
way Company, with wliich appellant's road
had and has a connection, and prohibited
any of the line carriers from making to
any of the tap lines an allowance or di-
vision out of the joint rates in excess of
maximum amounts prescribed as follows:
'Tor switching a distance of 1 mile or
less from the junction, $2 per cnr; over 1
mile and up to 3 miles from tlie junction, $3
per car; on shipments from points over 3
miles, and not more than 6 miles from the
junction, 1^ cents per 100 pounds; over 6
miles, and not more than 10 miles from the
junction, 2 cents per 100 pounds; over 10
miles, and not more than 20 miles from the
junction, 2i [296] cents per 100 pounds;
over 20 miles, and not more than 30 miles
from the junction, 3 cents per 100 pounds;
over 30 miles, and not more than 40 miles
from junction, 3i cents per 100 pounds;
over 40 miles from the junction, 4 cents per
100 pounds." [31 Inters. Com. Rep. 492.]
The following is an outline of the his-
tory of the case. After the supplemental
report of the Commission in Star Grain ft
Lumber Co. v. Atchison, T. ft S. F. R. Co.
14 Inters. Com. Rep. 364, 372; 17 Inters.
Com. Rep. 338, in which the making of al-
lowances and divisions to tap lines for the
traffic of proprietary mills was condemned,
although no formal order was entered, the
trunk lines, including the New Orleans,
Texas, ft Mexico, filed cancelation of tariffs
theretofore filed providing for joint rates
with various tap lines, including the Louis-
iana ft Pacific. Certain of the tap lines
filed complaints with the Commission, re-
questing that through routes and joint
rates with trunk lines be enforced. The
Commission thereupon investigated the tap
line situation with reference to lumber
operations in the states of Arkansas, Mis-
souri, Louisiana, and Texas. Pending this
investigation, the cancelation of joint rates
was suspended from time to time. Oa
April 23, 1912, the Commission filed its re-
port, and on May 14, 1912, its supplemental
940 U. 8.
1015.
O'KEEFE ▼. UNITED STATES.
296-299
report (23 Inters. Com. Rep. 277, 549), and
in orders dated Maj 14 and October 30,
1912, based upon these reports, it found
that the tracks and equipment of the tap
lines with respect to the industry of the
proprietary lumber companies were plant
facilities, and the service performed for the
proprietary companies in moving logs to
the mill and mill products to the trunk
line was not a transportation service by
a common carrier railroad, but a plant serv-
ice by a plant facility, and that any allow-
ance or division out of the rate on account
thereof was unlawful and resulted in undue
and unreasonable preferences and unjust
discriminations; and the order of October
30 required the trunk lines, including the
[297] New Orleans, Texas, ft Mexico, to
desist and abstain from making any such al-
lowance to any of the tap lines mentioned.
Certain of the tap lines, including the
Louisiana ft Pacific, filed petitions in
the commerce court to annul this order. The
court granted this relief (209 Fed. 244),
and its decision was affirmed by this court
(234 U S. 1), the court holding that the
O>mmission exceeded its authority in con-
demning the tap line railroads, when duly
incorporated as common carriers under the
state laws, as being a mere attempt to
evade the* commerce law and secure rebates
and preferences for themselves. At the
same time the court said (p. 28) :
"It is doubtless true, as the Commission
amply shows in its full report and supple-
mental report in these cases, that abuses
exist in the conduct and practice of these
lines and in their dealings with other car-
riers which have resulted in unfair ad-
vantages to the owners of some tap lines
and to discriminations against the owners
of others. Because we reach the conclusion
that the tap lines involved in these appeals
are common carriers, as well of proprietary
as nonproprietary traffic, and as such en-
titled to participate in joint rates with
other common carriers, that determination
falls far short of deciding, indeed, does not
at all decide, that the division of such joint
rates may be made at the will of the car-
riers involved, and without any power of the
Commission to control. That body has the
authority and it is its duty to reach all un-
lawful discriminatory practices resulting in
favoritism and unfair advantages to par-
ticular shippers or carriers. It is not only
within its power, but the law makes it the
duty of the Commission to make orders
whkh shall nullify such practices resulting
in rebating or preferences, whatever form
they take and in whatsoever guise they may
appear. If the divisions of joint rates are
sudi as to amount to rebates or discrimina-
tions in favor of the owners of the tap lines
•• Ij. ed.
because of their disproportionate amount in
view of the [208] service rendered, it is
within the province of the Commission to
reduce the amount so that a tap line shall
receive just compensation only for what it
actually does."
After this decision, the Commission, after
a rehearing and further argument, but with-
out taking further testimony, and upon the
same record on which its orders of May 14
and October 30, 1912, had been entered,
made further findings (31 Inters. Com. Rep.
490), upon which was based the order of
July 29, 1914, now under attack.
The New Orleans, Texas, ft Mexico Rail-
road Company operates, directly and
through stock ownership of other companies,
a system of railroad extending from New
Orleans across the states of Louisiana and
Texas. The Louisiana ft Pacific Railway
Company, incorporated under the laws of
the state of Louisiana, owns and operates a
tap line within that state, including ap-
proximately 80 miles of main and branch
lines, its main line extending from De Rid-
der southerly to Lake Charles, approximate-
ly 45 miles, crossing and forming a junction
with the main line of the New Orleans,
Texas, ft Mexico at Fulton, which is about
25 miles from De Ridder and 19 miles from
Lake Charles. The Louisiana ft Pacific con-
nects also with the following trunk lines:
At De Ridder, with the Gulf, Cok>rado, ft
Santa Fe and the Kansas City Southern ; at
Bon Ami (near De Ridder) with the Kan-
sas City Southern; and at Lake Charles,
with the Louisiana ft Western (Southern
Pacific Company), the Kansas City South-
em, and the St. Louis, Iron Mountain, ft
Southern. Located along the line of the
Louisiana ft Pacific are certain lumber mills,
which are called proprietary mills because
controlled by the same interests which own
the stock of the Louisiana ft Pacific. Some
of these are at De Ridder, Bon Ami, and
Longville, all of which points are north of
Fulton, while one is at Gossport, near Lake
Charles. At Bannister and Ragley, on the
line of the Louisiana ft Pacific, north of
Fulton, there are nonproprietary mills.
[200] In the year 1906, before the con-
struction or definite location of the New Or-
leans, Texas, ft Mexico, an agreement was
made between that company, then known by
another name^.on the one hand, and the
Louisiana ft Pacific and the various com-
panies owning the proprietary mills, on the
other, whereby the Louisiana ft Pacific and
the lumber companies agreed to give a sub-
stantial amount of their tonnage to the New
Orleans, Texas, ft Mexico upon a division
of the joint rates approximating 35 per cent,
not exceeding, however, in any case, 5^
oenta per hundred pounds. The lumber *
299-301
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
nage which, pursuant to this arrangement,
the New Orleans, Texas, ft Mexico expected
to receive and did, until the order of July
29, 1914, actually receive, was a great in-
ducement for the company to locate its line
through the territory where it is located.
During the five fiscal years prior to July,
1914, its lumber tonnage amounted to 37.45
per cent of its total gross, and of this the
Louisiana ft Pacific supplied approximately
one third, or about 13 per cent of the total
gross tonnage. Since the order of July 29,
1914, the New Orleans, Texas, ft Mexico has
been deprived of practically all of this ton-
nage, which has been diverted to the other
trunk lines because the Louisiana ft Pacific,
in order to gain as large a division of the
joint rate as possible, moves its lumber ton-
nage from points near the northerly end of
its line across the line of the New Or-
leans, Texas, ft Mexico, and delivers it to
the trunk lines at the southerly end of its
line; and also takes tonnage originating
near the southerly end of its line, carries
it across the line of the New Orleans, Texas,
ft Mexico, and delivers it to trunk lines at
or near its northerly terminus. It is said
that the practical effect of the Commission's
order results always to the disadvantage of
the New Orleans, Texas, ft Mexico with re-
spect to traffic originating upon the line of
the Louisiana ft Pacific, and that the disad-
vantage is in no case less than 1 cent per
hundred pounds, or approximately $5 per
[300] car. A single illustration will suffice.
From the mill at Longville to the junction
of the New Orleans, Texas, ft Mexico the dis-
tance is 8.2 miles, so that if the product of
this mill were shipped over appellant's road,
the Louisiana ft Pacific would receive only 2
cents *per hundred pounds, or $10 per car;
whereas, by carrying the product beyond
Fulton to Lake Charles, and there deliver-
ing it to a trunk line, the Louisiana ft
Pacific receives a division of 3 cents per
hundred; or by taking the Longville product
to De Ridder, the Louisiana ft Pacific like-
wise receives 3 cents per himdred. As the
trunk lines all operate under a common
blanket rate on lumber for this territory,
the through rate is the same in all circum-
stances, and the proprietary mills route
their shipments in such manner as to give
to the Louisiana ft Pacific the largest pos-
sible division, always to the disadvantage
of the New (h-leans, Texas, ft Mexico.
It is insisted by appellant that the Com-
mission was without power to prescribe
maximum divisions, as was done by the or-
der of July 29, 1914, because no joint rate
was fixed, either by the Commission or by
the parties, and they had not been afforded
an opportunity to agree in respect to the
division. This is based upon the view that
656
§ 15 of the Commerce act as amended (act
of June 18, 1910, chap. 309, § 12, 36 Stat
at L. 539, 551, Comp. Stot. 1913, §§ 993,
8583), contains only two provisions dealing
expressly with the division of rates, the
first being applicable where the carriers fail
to agree among themselves upon the divi-
sion, the other where the carriers have re-
fused or neglected to establish through
routes or joint rates voluntarily. Without
stopping to consider whether the circum-
stances of this case bring it within either
of these provisions, we deem it clear that
to regard these only is to take too narrow
a view of the scope of the section. The
first part of the same section enacts : "That
whenever . . . the Commission shall be
of opinion that any individual or joint rates
[301] or charges whatsoever demanded,
charged, or collected by any common carrier
or carriers subject to the provisions of this
act for the transportation of . . • prop-
erty ... or that any individual or
joint classifications, regulations, or practices
whatsoever of such carrier or carriers . . .
are imjust or unreasonable or unjustly dis-
criminatory, or unduly preferential or pre-
judicial or otherwise in violation of any of
I the provisions of this act, the Commission
is hereby authorized and empowered to de-
termine and prescribe what will be the just
and reasonable individual or joint rate or
rates, charge or charges, to be thereafter ob-
served in such case as the maximum to be
charged, and what individual or joint classi-
fication, regulation, or practice is just, fair,
and reasonable, to be thereafter followed,
and to make an order that the carrier or
carriers shall cease and desist," etc. And a
later part of the same section (p. 553) pre-
scribes: **If the owner of property trans-
ported under this act directly or indirectly
renders any service connected with such
transportation, or furnishes any instrumen-
tality used therein, the charge and allow-
ance therefor shall be no more than is just
and reasonable, and the Commission may,
after hearing on a complaint or on its own
initiative, determine what is a reasonable
charge as the maximum to be paid by the
carrier or carriers for the services so ren-
dered or for the use of the instrumentality
so furnished, and fix the same by appropri-
ate order," etc.
In the case in 234 U. S. 1, this court did
not ignore, but fully recognizedi the signifi-
cance of the community of interest between
the lumber company and the tap line. It
was pointed out (p. 27) that timber and its
manufactured products were exempted from
the absolute prohibition of the commodity
clause of the Hepburn act (of June 29,
1906, chap. 3591, 34 Stat, at L. 684, 585,
Comp, Stat. 1913, { 8563). But this was
940 U. 8.
1015.
OICEEFE V. UNITED STATES.
801-304
regarded as one of the dreiimstances render-
ing it important that the Commission should
deal with the abuses [302] found to exist
in the diyision of joint rates with the tap
lines, not by abolishing them altogether, but
by "reducing the amount so that a tap line
shall receive just compensation only for
what it actually does." So, in Interstate
Commerce Commission v. Diffenbaugh, 222
U. S. 42, 46, 56 L. ed. 83, 87, 32 Sup. a.
Rep. 22, the court said: "The act of Con-
gress in terms contemplates that if the car-
rier receives services from an owner of prop-
erty transported, or uses instrumentalities
furnished by the latter, he shall pay for
thenu That is taken for granted in § 15;
the only restriction being that he shall pay
no more than is reasonable, and the only
permissive element being that the Commis-
sion may determine the maximum." Again,
in Ellis V. Interstate Commerce Commission,
237 U. S. 434, 445, 59 L. ed. 1036, 1041, 35
Sup. Ct Rep. 645, it was said: "The inter-
vening corporation may be a means by
which an owner of property transported in-
directly renders the services in question, and
in that event its charges are subject to the
Commission by § 15."
We are clear that the Commission had
jurisdiction to make the order of July 29,
1014.
Next it is insisted that the Commission
applied erroneous principles of law, in that
it excluded from consideration competitive
conditions as an element in determining
whether a division is just and reasonable or
unlawfully discriminatory. The order is
not open to this criticism. It not only takes
competitive conditions into consideration,
but establishes the maximum divisions for
the very purpose of preventing preferences,
discriminations, and rebates, as methods of
competition.
It is insisted that there was no evidence
before the Commission to sustain its find-
ing to the effect that any allowance or di-
vision in excess of the limits prescribed
would result in undue preference and imjust
discrimination. This, of course, is to be
tested by a consideration of the evidence
that was before the Commission. The re-
port and supplemental report of April 23
and Hay 14, and the orders of May 14 and
October 30, 1912, and the [303] oral evi-
dence and main exhibits before the Commis-
sion from the beginning of the tap line in-
vestigation to the making of the order last
mentioned were offered in evidence. Appel-
lant, however, has printed only a small part
of the testimony, being that vrhich especially
relates ta the Louisiana k Pacific Railway,
its organization, ownership, manner and cost
of construction, operating revenue and ex-
penses, accumulated surplus, etc. But, be-
•0 li. ed.
sides these details as to thb line, the Com-
mission had before it, as its reports show,
a mass of evidence relating to numerous
other tap lines, operated under somewhat
similar circumstances, including evidence as
to the aDowances actually made to them
out of the joint rate. Evidence of what was
allowed on these tap lines had a tendency
to show what ^as reasonable and therefore
permissible upon other tap lines, including
the Louisiana ft Pacific. It is said there was
no evidence to enable the Commission to
fix a just compensation to that line for a
haul of a given number of miles as com-
pared with the just compensation for a haul
of a greater or lesser number of miles; no
evidence as to terminal expenses, or cost of
road haul, or the relation between these
factors, or as to other elements which
should be taken into account in fixing a di-
vision according to the length of haul. But
the evidence showed that some limitation
was caUed for, and, in general at least, fur-
nished the materials upon which to base it.
A tribunal such as the Interstate Commerce
Commission, expert in matters of rate regu-
lation, may be presumed to be able to draw
inferences that are not obvious to others.
Nor can it be said that the Commission's
action was arbitrary because, while classify-
ing all the service for distances up to 3
miles from jimction as switching, and al-
lowing for this a division of $2 and $3 per
car, allowances for all distances above 3
miles are based upon mileage. It is ad-
mitted that distance is an element properly
to be considered; but appellant insists
[304] that terminal service, the origin of
traffic, etc., are more important elements.
This is an administrative question. The tap
line problem is exceedingly complex, and the
importance of a general rule based upon
simple elements easily ascertained is obvi-
ous. We are not able to say that the adop-
tion of the mileage basis is, imder the cir-
cmnstances, sufficient to sustain a charge of
arbitrary action.
The final contention, which is that the
Commission's order in effect deprives the
New Orleans, Texas, & Mexico of its prop-
erty without due process of law, by deny-
ing to it the right to contract and compete
for traffic originating on the line of the
Louisiana & Pacific, is transparently un-
sound. The trunk line has no constitution-
al right to build up its business by paying
bonuses or rebates that have been forbidden
by act of Congress from considerations af-
fecting the public welfare.
We are not to be understood as conced-
ing that appellant is in a legal sense ag-
grieved by the action of the Commission in
limiting the allowance to the tap line. The
case la singular, in that neither this tap
42 61^"
sot, SOB BUPBEUB CX)URT OP THB UNITED STATES. Qcr. Ttmu,
line nor any tap line la oomptkiuiug that CVimmiHioD, In pauing on the clAlm, found
tbe allowance ii too emtUl; nor ia any tnmk that the claimant naa indebted t« the atate
line complaining that it is too great. Tha i" a ipecified amount, being th« dlfferenM
real basia of appellant's complaint, repre- between Uie amount of the claim and tb*
..-fi... . *^,„v li— n.^;^ ;. tk.t »h« .1 """ which It found that the claimant had
•entmg a tnmk bne carrier i« that the a^- ,i„„,, f„uduie„tly collected from tha
towanee to the Up Ime i. too amaU. It i. J^^te. and rendered judgment accordingh!
queationable whether It lies in the mouth „he„ the aUte supreme court, in afflrm-
of the line carrier to object on thii ground, lug the action of the Diapenaary Commia-
We recognize the exceptional situation in lion, did ao only in ao far aa the Commia-
which appellant'i road ia placed, and the «ion declined to approve the claim, espreaa-
hardahip that reaulta to it from the appli- '7 holding that the validity of any poasibl*
cation of the order of July 26, 19H. to the ae^'.^d by the aUte againat the claimant
t— <n. «.:^«. »:..«.,.»« »i..ii» nr<k.Tn..i. remained wholly uncontrolled by the Com-
trafflc originating upon the line of the Louia- miggig^.g gnjing '
Una & Pacific. After that order, the New [p^, „(b„ caeea,' eee Conttltutlonal Law. IV.
Orleans, Teiaa, ft Mexico and the Louiaiana b, B, in Digest Sup. CL l»OB.l
ft Pacific undertook to agree upon through Oonstltatlonal law — due proceaa oT
routes and joint rates, with divielona not law — Itupairinc contract obllyMtloB
greater than those allowed by the Commie- — transfer ol state funds,
sion, but aaid to be equalized ao as to en- 2. The removal by the South Carolina,
able the New Orleans, Teiaa. ft Mexico to Dispenaary Commiasion under the "uthor-
compet, (30S) on equal terms with the L°. .n' th: tin. «^ ^"^ Sf™ «'■-
.,.,,. ~.. . , lunda in the banda of county diapensanea.
Other trunk lines. Th.a agreement, ao far aa due to a corporation which the Cklmmiasim
appears, has not been aubmitted to the Com- has found to be indebted to the state, does
mission for ita approval or disapproval, and not deprive the corporation of ite property
i intimate no opinion upon the question without due proceaa of law, nor impair any
' ' contract obligations, the state nut having
consented to be sued.
(For other fbhs, loe Constltatloaal Law, IT.
b. *: IV. t, m Diceu Bap. Ct. IWS.]
Slate — Immanltr from ealt — salt
■C^lnat state officers.
3. The state's immunity from suit pra-
"^^^ vents a Federal court from taking juria*
diction of a suit against individual meni-
CASOLINA GLASS COMPANY, Plff. tn bers of the South Carolina Dispensary Com-
Err., mission to recover judgment for moneys
V. due the plaintiff from county dispensaries
STATE OF SOUTH CAROLINA. (No. IS.) which the Commission, acting under the au-
thority of state l^alation attacked aa on*
CAROLINA OLASS COMPANY, Plff. In conatltutlonal, had withdrawn from sud>
£rr^ county diapenaariea, upon finding that plain-
V tiS waa indebted to the state.
WILLIAM J. MURRAY, Chairman, John "'".""J'" Sf1{,08*l ^'"*'' ^''"^"' '" "'
McSween, et al.. Constituting the State "^ ° , ,
Diapenaary Conualaaion, et al? (No. B.) Error from circuit court of .ppcala -
■^ ^ constltntional question.
CAROLINA GLASS COMPANY. PUT. in , <■ ^ Federal circuit court of app«U
j<ff_ haa no appellate jurisdiction m an action
y *' in which the juriadiction of the diatriet
WILLIAM J. MURRAY, John McSween, '?"r*.r"' '"1°'""^ "P-" ?%■".'! ^""^
VjTv^. -a w~^iL™: w.**™ V^A that the controversy involved the appli<
f.«^Sr ^; J^^« B^i ' «'ti™ «' »»•• F"'""' Conatitution.
Jamea 8. Bric«. (No. EOS.) ,p„^ „t^„ „^ ^ Appeal and Error. III.
■ c. In Dlceat Sup. Ct 1908,1
CAROLINA GLASS COMPANY, Plff. in
^'- [Nos. 12, 9, 206, and 204.]
WILUAM J. MURRAY, John McSween, Kotk.— Generally, on suite against a atata
Adolphtw N. Wood, Aveiy Patton, and _Bee notes to Murdock Parlcw Grate Co.
Jamea 8. Brice. (No. 204.) ». Com. e L.Rji.. 3Bfl; Carr v. State, 11
L.R.A. 370; Beera t. Arkansas, 16 L. ed.
(See S. C. Reporter'a ed. 306-318.) U. 8. 091; Hans v. Louiaiana, 33 L. ed. C.
S. B42.
- dne proceaa of On anlte against state offlcera aa sulta
against atate-^^ee notes to Sanders v. Sax-
1. A claim for goods fumiahed to the ton, 1 L.RA.(N.S.) 727; Ex parte Young,
South Carolina diapenaary cannot be aaid IS L.R.A.(N.B.) 032; LouUville ft N. R. Co.
to have been oonflacated in violation of Fed- r. Burr, i4 L.R.A.(N.S.) 189; and Beera v.
vl righU because the State Di^penaaiy Aikauaaa, 16 L. ed. U. S. 991.
««« 940 U. S.
ins. CAROLINA OLASS CO. v. SOUTH CAROLINA.
Argued Jannaij £0, 1910. Decided Feb- 29 Sup. Ct. Rep. 101, 16 Ann. Cma. 27C;
nutry 21, 1910. Kuhu v. Fainnont Coal Co. 21S U. 6. SU,
54 L. ed. 228, 30 Sup. Ct. Rep. IM; Vm-
IN ERROR to tha Supreme Court ol the dock v. Memphia, 20 Wall. S90, 22 L. ad.
State of South Carolina to review a 429; Scott v. McNeal, 164 U. S. 34, 38 Jj.
jodgment which affirmed a deciaion of Uw ed. 806, 14 Sup. Ct. Rep. HOB; Lake Conn-
Btata Diapenaary CommiaBlon, rejecting a ty t. RoUina, 130 U. S. 002, 32 L. ed. 1O50,
daim upon finding that the claimant waa 9 Sup. Ct. Rep. 061; United SUtei t. QoU-
indebted to the atste. Affirmed. Alao enberg, 168 U. S. 06, 42 I* ed. 394, IB Sup,
IN ERROR to the Supreme Court of the ct Rep. 3; SUte Co. v. Jonea, 90 S. C. 218,
Bute of South Carolina to review a gs g, e. 1048; United Statea v. Freeman, S
decree in an original proceeding in that Tgow. 550, 11 L. ed. 724; United Statea ».
court, refuaing to enjoin the SUte Diapen- Qilmore, 8 Wall. 330, 19 I* ed. 390; State
aary Commiaaion from removing funds from ,. pacific Ouano Co. 22 8. C. 74; Witt* v.
county diepeneariea. Afiirmed. Also Weinberg, 37 8. C. 603, 17 S. E. 881; Sharp
IN ERROR to the Dtitriot Court of the y. Kinaman, 18 8. C. 108; Lenhardt-r. .
United SUtea for the Eaatern District French, 57 S. C. 403, 36 8. E. 781 ; Williaiu
of South Carolina to review, a decree dls' ,. ir^y, IG 8. C. 4SB; Railroad Comn. ».
missing, for want of juriadiction, a luit Columbia, N. & L. R. Co. 82 B. C. 418, H
against individual members of the South g^ g_ 240.
Carolina Dispensary Commission to recover ' tv^, pUlntiff in wror had contract and
judgment for moneys alleged to be due property rights in the money due and owing
plaintiff from county diapenaariea which the ^ [„^ t^e county dispensaries, and the
Commission has withdrawn upon finding .equestratlon and confiscation of thia mcHMy
that plaintiff was indebted to the aUte. ^y the defendanta, claiming to act by yiitae
I Affirmed. Alio „, u,eir office aa member* and advlaera of
N ERROR to the Un.ted SUtea Circuit ^.e State Dispensary Commission by virtM
Court of Appeals for the Fourth Circuit „( the so-called overjudgment of Novembw
to review a judRment which affirmed the goth, 1909, and the authority claimed to
judgment of the District Court for the East- ^Rve been conferred upon them by the art
ern District of South Carolina, just above „, igiQ impaired the obligation of plaintUT
mentioned. Reveraed and remanded with ,„ g„„r's contract rights with reference to
directiona to diamisa the wtit of error to g^p^ moneys, deprived plaintilT in error ol
the District Court for want of juriadiction. 5^, property without due process of Uw,
™^' ^'°'/^ ^J.- ^^^A ^"^ fi?' i^I ^!^- Prot^tion of the law., in violation of the
392; No. 204, 124 C. C. A. 423. 208 Fed, J^tj, Amendment.
•^5: , ^ . ^ J , *v , - Curran v. Arkansas, Ifi How. 304. .14 L.
The facU are aUtod in tha opinion. ^ ^^5. j^^^ , g^ „, Sj^j^_ 3 g ^
Mr. IVIIIlMn H. LyiM argued the cause, 126; Baring t. Dabney, 19 Wall. 1, 9, 22 L.
mnd, with Messrs. David W. Robinaon and ed. 90, 96; Davis v. Gray, 16 Wall. 203, 21
^o-Rerry 8. Lylei, Bled a brief for plain- L. ed. 447; Green v. Riddle, S Wheat. 1,
tiff in error: 92, S L. ed. 647, 670; PUnters' Bank t.
The so-called overjudgment waa null and Sharp, 0 How. 301, 12 L. ed. 448; Edwards
-void. T. Eean^, 90 U. 8. 696, 24 L. ed. 793;
SUte ex rel. Lyon v. SUte Dispensary StaU ex rel. Lyon v. SUte Dispensary Com-
Conunission, 79 8. C. 316, 00 S. E. 928; mission, 79 8. C 316, 00 S. E. 928; Hnmy
ilurray v. Wilson Distilling Co, 213 U. 8. v. Wilson Distilling Co. 213 U. S. 151, 93
351. 63 L. ed. 742, 20 Sup. Ct. Rep. 458; L. ed. 742, 20 Sup. Ct. Rep. 468.
X>en ex dem. Murray v. Hobokcn Land A The suit was one brought against the da-
Improv. Co. 18 How. 272, IG L. ed. 372; fendanta, who, claiming to act aa offleara
^iahimura Ekiu v. United States, 142 U. S. of the state and under color of unconstita-
Q51, 35 L. ed. 1147, 12 Sup. Ct. Rep. 330; tionat statutes, committed acts of wrong
Kilboum *. Thompson, 103 U. 8. 168, 20 L. and Injury to the rights and property of
«d. 377; Hurtado v. California, 110 U. 8. the plaintiff, acquired under contract with
fS16, 28 L. ed. 232, 4 Sup. Ct. Rep. Ill, 292; the state, and was to request money from
Cooley, Const. Lim. 7th ed. 504; Holdcn v. such defendanU unlawfully taken by then
Hardy, 160 U. S. 391, 42 L. ed. 700, 18 Sup. from plaintiff, on behalf of tha sUto, or for
Ct. Rep. 383; Re Tyler, 140 U. 8. 104, 167, compensation in damagea. and therefore was
S7 L. ed. 689, 097. 13 Sup. Ct. Rep. 785; not a suit against the sUte, nor oao to
Great Southern Fire Proof Hotel Co. v. which the sUte waa a neeeaaary party.
Jones, 193 U. S. 632, 48 L. ed. 778, 24 Sup. i United SUtea v. Lee, 106 U. 8. 100, 2U,
Ct Rep. 676; North American Cold Storage 27 L. ed. 171, 170, 1 Sup. Ct Rep. 240;
Co. V. Chicago, 211 U. S. 300, 63 L. ed. 196, Poindeitar y. Greenhow, 114 U. 8. 270, 887,
•0 I., ed. %V«
807-300
SUPREME COURT OF THE UMITED STATBa
Oct. 1
29 L. ed. IBS, 1&2, 6 Sup. Ct. Rep. H3, 9S2
Re Tyler, 140 U. 6. 190, 37 L. ed. 098. 1
Sup. Ct. Rep. T8S.
Where the JnrUdietioa of the distric
court i« BfBt invoked upon & Federft) quct
tion, the CAM miut be brought direct t
this court, And the kppelUte juriadietion o
thfi court ia eicliuiTe.
Loeb V. Columbia Twp. 179 U. S. 472, 41
L. ed. 280, 21 Sup. Ct. Rep. 174; Americai
Sugir Ref. Co. v. New Orleaai, 181 U, S
277, 46 L. ed. 8G9, 21 Sup. Ct. R^. 646
Union k P. Bsnk v. Hempbis, 189 U. S. 71
47 L. ed. 712, 23 Sup. Ct. Rep. 004.
Ur. Benjamin Llndaer Abner ftrgue*
tha cause, and, with Mr. Thomaa E. Peeplea
filed a brief tor defsndanta in error:
The act creating county djipenaary boardi
did not change in any way the conatructioi
and principlea laid down in the eaaea o
State ex rel. Lyon t. State Diapenaary Com
tniaaion, 70 S. C. 316, 60 S. E. 928, and Mur
ray ». Wilaon Diititling Co. 213 U. S. IBl
63 L. ed. 742, 20 Sup. Ct. Rep. 4GB.
The atate cannot be sued without ita con-
•ent, and auch conaent can be given, aa il
ia a voluntary act, under auch conditions ae
it aeee fit to impose.
Beera v. Arkanaaa, 20 How. G27, 15 L. ed
BBl; Smith v. Reevea, 178 U. S. 436, 44 L,
ed. 1140, 20 Sup. Ct Rep. B19; Chandler v,
Dix, 104 U. S. eoe, 48 L. ed. 1129, 24 Sup.
Ct. Rep. 766; Murray t. Wilaon Diitilling
Co. 213 U. S. 161, 63 L. ed. 742, 29 Sup. Ct.
Rep. 4S8) Wiaconeln a rel. Bolena v. Frear,
2S1 U. S. 616, 68 L. ed. 400, 34 Sup. Ct.
H/ep. 272.
Hr. Justice McRrrnolds delivered the
(pinion of the court:
Tliese anita grew out of the legialation
by which South Carolina aought to control
traffic in llquora. Th^ Involve cloiely re-
lated mattera, were heard together, and tt
will be convenient likewiee to dispose of
them. In Scott v. Donald, 165 U. B. 68, 41
L. ed. 632, 17 Sup. Ct. Rep. 206, Vance t.
W. A. Vandercook Co. 170 U. 8. 438, 42 L.
ed. 1100, 18 Sup. Ct. Rep. 674, and Murray
T. Wilson Distilling Co. 213 U. S. IGl. &3 L.
■d. 742, 29 Sup. Ct. Rep. 468, the history
and general purpoees of the legislation are
eoDsidered.
By act of 1802 the general aaaembly cre-
ated a atate board of control, with power
to supervise the trafHc; also provided for a
state, eommiaaiouer charged with the duty
of purehaaing and distributing liquors
throngh local officer* known as dispensers.
The statute of 1896 directed election, by
the general aaaembly, of the board of con-
trtd, and gave it power to make purchaaes
and to appoint a eommiasioner who ahoold
supply local diapenaers selected by and lu-
der direction of county boarda. By tm
amending act of 1900 the board then ezlrt-
ing was aboliahed; a board of directors of
the state dispensary waa created, with pow-
er to prescribe rules and regulationa to gar-
em diapensaries, [308J both state and
couu^; and provision was made for the
election of a dispensary commisaioner. TIm
new board was required to purchase liqnBr
for lawful use within the state; and gmerii
management and control of the state dia-
penaary waa intrusted to the eommiasioner.
A legislative committee was appointed in
1906 to investigate the state dispensary.
In 1007 the atatuta of 1B96 was repe*lcdi
control through a atata board waa abolished
and county boards substituted, clothed with
authority to purchase "in the name of this
state" all liquors to be sold within their
several counties, "Provided, That the state
shall not be liable upon any contract for
the purchaae thereof beyond actual assHs
of the dispensary for which the purchaae ia
made." At tlie same time another act er«-
ated a State Dispensary Commission of flve^
gave it control of all fnnds, aaaeta, and
property other tlian real estate of the state
dispensary, required it to investigate all
facta concerning outstanding claims against
the atate dispensary, and thereafter to pay
nil just liabilities from dispensary aaaeta
which might come into Ita handa. Thin
■econd act of 1907 waa amended In 1006,
utd the commission given "full power to
l>asa upon, fix and detarmiue all elaiaw
tgainat the state growing out of dealinga
vitli the dispensary 1 and to pay for the
itate any and all just claims, w^ieh luTe
jeen submitt4^ to and determined by it,
knd no other, out of the asacts of the di>>
lensary which have been or may hereafter
M collected by said Dispensary Commia-
lion: Provided, Tliat each and every peraoa,
Irm or corporatiao, presenting a claim or
:Iaims to said Commiasion, shall ha,ve the
ight to appeal to the supreme court, •■
By act of February 23d, 1910, flndfngi
if the State Dispensary Commission were
ieclared to be final; any sum ascertained
o be due the state waa required to be il»-
lucted from whatever a coun^ dispenauy
night owe such debtor; and anthori^ wm
iven the Commission to [909] coaunMsd
ny county dispensary so indebted to tnni
ver to it an equivalent amount of money,
lotices of claims in favor of the state, erea-
ion of liens to secure the same, and cb-
arcement of their payment, were alao
.rovlded for.
«4o V. a
1915^
CAROLINA GLASS CO. v. SOUTH CAROUNA.
309-311
Number 12.
The hiiioiy and disposition of tliis cause
ia the state tribunals sufficiently appear
from parts of tbe opinion by the supreme
court (87 S. C. 270, 69 S. E. 391) quoted
below:
'The investigations of the committee
[appointed 1905] resulted in an act, passed
in 1907, authorizing the appointment of a
commission, to be known as the State Dis-
pensary Commission, whose duty it was
to close out the entire business and proper-
ty of the state dispensary, collect all debts
due, and pay 'all just liabilities' of the
state growing out of said business. The
Commission ^as given 'full power and au-
thority to investigate the past conduct of
the affairs of the dispensary.' It was also
clothed with all the power and authority
conferred upon the committee which had
been appointed under the resolution above
referred to. 25 Stat. 835. The act of 1907
was amended in 1908 so as to give the Com-
mission 'full power to pass upon^ fix and
determine all claims against the state grow-
ing out of dealings with the dispensary;
and to pay for the state any and all just
claims which have been submitted to and
determined by it, and no other.' 25 Stat.
1289.
"Appellant presented to the Commission
a claim for $23,013.75 as the balance due
it by the state for bottles and demijohns
furnished to the dispensary under con-
tracts made with the board of directors
from and including April, 1906, until the
business was closed out by the Commission.
Appellant had also furnished the dispensary
practically ail the bottles and demijohns
used since about December, 1902; but all
accounts prior to April, 1906, had been set-
tled.
[310] "Upon the filing of thU claim, the
Commission went into an investigation of
all past dealings of appeUant with the dis-
pensary; and, after hearing a great deal of
testimony and argument thereon, rendered
its decision, dated Nov. 17, 1909, which
will be set out in the report of the case.
"The conclusion and finding of the Com-
mission was that, in pursuance of a con-
spiracy between some of the directors of
the dispensary and some of the appellant's
officers or agents to defraud the state,
whereby legitimate competition was de-
stroyed, appellant had a monopoly of the
business of furnishing glass to the dispen-
sary from the date of its beginning business,
in 1902, until April, 1906; and that the
prices paid it for glass during that period
exceeded the fair market value thereof by
$51,432.99. Therefore, allowing appellant's
claim of $23,013.75, the Commission found'
60 li. ed.
that appellant was indebted to the state in
the sum of $28,419.24, the difference be-
tween the amount of its claim and the sum
it had fraudulently collected from the state.
"From that decision, this appeal was tak-
en, under the provisions of the statute,
giving every claimant the right of appeaj
to the supreme court, 'as in cases at law.'
Appellant concedes that the jurisdiction of
this court is limited in such cases to a
review of alleged errors of law.
• •* •.•••
"The next contention of appellant is that
the Commission is not a court, but a spe-
cial tribunal of limited power, and that it
exceeded its authority in undertaking to
fix and determine appellant's liability to
the state, and then set off its claim against
the liability so fixed. It is conceded that
the Commission is not a court, though its
duties necessarily involve, to some extent,
the exercise of judicial functions, as is
always the case where judgment and dis-
cretion are to be exercised. It was cre-
jited under § 2 of article 17 of the Consti-
tution, which provides [311] that 'the gen-
eral assembly may direct by law in what
manner claims against the state may be
established and adjusted."
• •...••.
"The question, therefore, whether the
commission had authority to entertain a
'set-off* or 'counterclaim' in favor of the
state against a claimant, in the technical
sense in which those terms are used in legal
proceedings, is not germane or material to
the present inquiry. To what purpose
should the Commission investigate, unless
it announced the result of its investigation f
We see no error, therefore, in the Commis-
sion stating its .findings as the result of
its investigation.
"The findings of the Commission, how-
ever, are controlling only in its determina-
tion of the nonliability of the state upon
appellant's claim. Ihey have not the force
or effect of a judgment, concluding appel-
lant in any other proceeding, — such, for
instance, as the state might institute in
the proper court to recover the amount
found by the Commission to be due it by
appellant.
"The judgment of this court is that the
decision of the Commission upon plaintiff's
claim against the state be affirmed."
Manifestly, we think, the supreme court
affirmed the Commission's action only in
so far as it declined to approve the glass
company's claim, — there, was no final de-
termination of the state's right to recover
over against the company.
Error is assigned concerning supposed
Federal questions upon the theory that
Sll-314
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbm,
there has been "in praetical effect an adju-
dication of the validity of the alleged claim
of the state arising out of the ended trans-
actions prior to April, 190G, and a satis-
faction of such a judgment by the confis-
cation of plaintiff in error's property; that
is, its claim against the state for goods
furnished since 1906."
[312] This theory is entirely out of
harmony with the supreme court's opinion,
which holds the validity of possible demands
against the glass company remains wholly
undetermined/ and that, acting within its
plain powers, the state had only refused
to recognize and discharge a claim against
itself. The argument of counsel proceeds
upon a fundamental misconception. We
find Ho error in the judgment below, and
it must be afilrmed.
Number 9.
By this original proceeding begun in the
supreme court of South Carolina, March 4,
1910, the Carolina Glass Company sought
to restrain any effort to collect the so-called
overjudgment for $28,419.24, pronounced by
the Dispensary Commission under circum-
stances narrated supra (cause No. 12) ;
and also to prevent the Commission from
demanding or receiving sums of money al-
leged to be due the company from certain
county dispensaries, or interfering with
payment of such indebtedness.
Quotations from the opinion below (87
6. C. 270, 285) will adequately disclose the
issues involved.
"These arise principally out of an act
approved Febniary 23, 1910, and what was
done by the defendants under the provisions
of that act, which, it will be noted, was
passed subsequent to the decision of the
Conunission upon the claim of the plaintiff.
The provisions of the first five sections of
the act pertinent to this case are, in sub-
stance: That, in add^^tion to the powers
conferred by all previous acts, the Dispen-
sary Commission shall have po.ver to pass
upon, fix and determine claims of the state
against any person, firm, or corporation
heretofore doing business with the state
dispensary, and settle and receipt therefor;
that the findings of the Commission under
its provisions shall be final, and, upon the
finding by the Commission that any person,
firm, or corporation is indebted to the state,
the dispensary auditor and officials [313]
having charge of the fimds of any county
dispensary which may be indebted to such
person, firm, or corporation, shall pay to the
Commission the amount so found to be due
the state, or so much thereof as the funds
in their hands due to such person, firm, or
corporation will pay, and the receipt of the
•69
Commission shall be a sufficient voucher
therefor; that the Commission may, by its
order, stop the paying out of any funds of
any county dispensary by any officer hav-
ing charge thereof. Sections 7 and 9 of the
act are as follows: [They are copied in
margin.]
''Within a few days after the approval
of the act, to wit, on February 26, 1910, the
Commission, by its attorneys, filed in the
office of the clerk of the court for Richland
county, in which county plaintiff owned
real estate, a notice, headed or entitled.
The State v. Carolina Glass 0>., and signed
by the attorney general and other counsel
[314] representing the state. The notice
was as follows: 'Notice is hereby given to
all whom it may concern, that the above
stated cause has been instituted, and is now
pending before the State Dispensary Com-
mission for the recovery against the Caro-
lina Glass Company of $29,000, the amount
which has been found to be due from the
said defendant to the state of South Caro-
lina owing to overcharges made by said
defendant in selling goods to the state dis-
pensary, and this notice is given in accord-
ance with the terms of an act of the
legislature passed in February, 1910, and
duly approved by the govemer.' About the
same time, notice was served on the plain-
tiff, pursuant to the provisions of the act,
that the Commission would proceed to pass
Sec. 7. "The State Dispensary Commis-
sion is hereby empowered to pass all orders
and judgments and do any and all things
necessary to carry out the purposes of this
act; and ail judgments rendered by them
for any claim due the state shall be a lien
on the property of the judgment debtor
situated within this state, and a transcript
of said judgment shall be filed in the ofiice
of the cleric of the court of common pleas
in each county where any property of such
judgment debtor is situated."
Sec. 9. "In all cases pending before the
said State Dispensary Commission, upon
any claim or claims against any person or
persons or any corporation or corporations
owning any real estate in any county in
this state, the said Commission shall file
in the office of the cleric of court in each
county where such real estate is situated
a notice of the pendency of such cases, and
the said notice so filed shall be full notice
to all persons whomsoever olaimlng any
title to or lien upon such real estate ae-
Suired subsequent to the filing thereof, and
he debt found by said Commission to be due
the state shall have priority over the claims
of all creditors, except creditors secured by
mortgage or judgment entered and recorded
prior to the filing of such notice, and the
said real estate, in the hands of an^ person
or persons whomsoever, shall be liable for
the payment of such debt so found to be
due the state."
140 U. B.
1916.
GABOLINA GLASS 00. ▼. SOUTH CABOLINA.
814-^17
opcm, flZy and determine the elaim of the
ftate against the plaintiff on account of
the orercharges growing out of its dealings
with the diapensary. Notice was also
senred on the county dispensary board of
Riehland county, requiring that board to
pay to the Commission the amount due by
said board to the plaintiff.
"Another feature of the case grows out
of an agreement alleged to have been made*
between the attorneys for the plaintiff and
the attorney representing the state with
regard to payments for shipments of glass
made by plaintiff to the county dispensaries
after November 20, 1900.
'^nder the provisions of the Constitu-
tion (art. 8, S 11) and sUtutes (25 SUt.
463) the county dispensaries are conducted
'under the authority and in the name of
the state.' Therefore, the officers in charge
«f them are agents of the state and the
funds arising from the sale of liquors
through them are the funds of the state,
and the debts due for goods sold to them
are the debts of the state. In exercising
the powers conferred upon it by the legis-
lature, the Dispensary Commission is also
the agent and representative of the state,
'subject to no interference, [315] except
that of the general assembly itself,' and a
suit brought against it is, in effect, a suit
against the state. State ex reL Lyon v.
£N[ate Dispensary Commission, 79 S. C. 316,
329, 60 S. E. 928. As the state cannot be
sued without its consent, no court has pow-
er to interfere with or direct the disposition
of the state's funds in the hands of its
agents, unless it appears that they are act-
ing without authority of law, or are refus-
ing to recognize and obey the law to the
detriment of private rights. . . . In or-
dering the funds in the hands of the officers
of the county dispensaries due to the plain-
tiff turned over to itself, the commission
acted within the limits of its authority
and discretion conferred upon it by the
legislature, and this court has no power to
interfere. From the foregoing, it will be
<seen that it is unnecessary to inquire or de-
cide whether there was an agreement
between the attorneys for plaintiff and the
attorneys for the state as to the collection
-«f the amounts due plaintiff from the coun-
ty dispensaries for shipments made prior
^ November 20th, or what the agreement
was, or whether it has been violated. The
Dispensary Commission is the sole arbiter
-of the rights of the plaintiff, if it has any,
with regard to that matter.
■•.......
"So long, therefore, as the action of the
Oommission was confined to the investiga-
tion of all dealings, past and present, with
40 Ii« ed.
the dispensary, and tiie determination of
the just liabilities of the state gro¥ring out
of them, it was, as we have seen, based upon
constitutional authority, and was valid and
bindinir. But we find no authority in the
Constitution for the legislature to provide
by law how claims of the state against oth-
ers shall be established or adjusted, except
through the courts. We conclude, therefore,
that in so far as the act of 1910 attempts
to confer upon the Commission power to
pass final judgment upon the claim of the
state against the plaintiff, it is unconstitu-
tional, [316] null, and void. And, as the
lien which the act attempts to create is
based upon the unauthorised act of the Com-
mission, it is likewise null and void."
Defendants were accordingly enjoined
from asserting a lien upon the company's
property, and the notice filed in Richland
county was directed to be canceled; but
the Commission's power to remove funds
from oounty dispensaries was upheld.
Plaintiff in error now maintains the so-
called over judgment of November 17, 1909,
was void; that by reason of claims against
them it had contract and property rights in
money held by the county dispensaries; and
that removal of funds therefrom by the
State Dispensary Commission impaired
contract obligations in violation of g 10,
article 1, Federal Constitution, and de-
prived it of property without due process of
law.
It was distinctly adjudged by the su-
preme court that the Dispensary Commis-
sion was without power to pronounce the
over judgment; that it was invalid and
could not be enforced. In view of repeated
holdings by that court and our opinion in
Murray ▼. Wilson Distilling Co. 213 U. S.
151, 53 L. ed. 742, 29 Sup. Ct Rep. 458, it
is clear that funds of county dispensaries
were state funds, and, as such, subject to
control by the Dispensary Commission.
Their removal, therefore, violated no right
which the glass company could assert,—
the state had not consented to be sued.
The judgment of the court below must be
affirmed.
Number 206.
The Carolina Glass Company instituted
this proceeding at law in the United States
district court, South Carolina, December 13,
1911, to recover judgment against individu-
al members of the Dispensary Conmiissioa
for sums of money said to have been un-
lawfully withdrawn by them from county
dispensaries which held the same for plain-
tiff's benefit. It is alleged that for sup-
plies furnished partly before [317] and
partly after February 23, 1910, these oounty
317-319
SUPREME COURT OF THE UNITED STATES.
Oct.
dispensarietf became lawfully indebted to the
company for more than $19,000, and that
the money in their keeping was held in
trust to pay ■uch sum, and further:
"That the said defendants, undertaking
to proceed under § 6 of the act entitled,
'An Act to Further Provide for Winding up
the Affairs of the State Dispensary,' ap-
proved the 23d day of February, 1910
[copied in margin], as this plaintiff is in-
formed and believes, demanded from the
county dispensary boards for the county of
Clarendon, the county of Richmond, and the
county of Georgetown, the sums of money
alleged in paragraph six of this complaint,
amounting in the aggregate to the sum of
nineteen thousand and eighty-four and
38/100 dollars then due to this plaintiff by
said several county dispensary boards, as al-
leged in said paragraph six, and unlawfully
and wrongfully received the said sums of
money from said several county dispensary
boards, claiming that they were entitled to
the same on account of the above-mentioned
illegal offset found by said State Dis-
pensary Commission to be due by this plain-
tiff as aforesaid; which action this plaintiff
alleges was wholly without authority of
law, as the provisions of said § 6 of the
act of February 23d, 1910, were unconstitu-
tional, null, and void, as constituting an ef-
fort, unwarrantably and without authority,
to confiscate the property of this plaintiff
without due process of law, the provisions
of said section being [318] in violation of §
10 of article 1 of the Constitution of the
United States, and also of the 14th Amend-
ment to the Constitution of the United
States ; and, furthermore, in violation of the
express contract and agreement entered into
by this plaintiff with the defendants above
named as above alleged."
Holding it in effect a suit against the
state, the district court dismissed the cause
(197 Fed. 392) ; and it is here upon direct
writ of error. We are of opinion that the
action of the court below was correct.
And in view of what has been said above
and our opinion in Murray v. Wilson Dis-
tilling Co. further discussion of the ques-
Sec. 6. "In any and all cases where the
State Dispensary Commission has hereto-
fore founa any amount due the state by
any person, firm or corporation on account
of dealings with the state dispensary, the
several county dispensary boards now exist-
ing, and all boards and other officer or of-
ficers in charge of any money due any such
person, firm or corporation on account of
any dealings with any and all county dis-
pensaries heretofore existinff, shall, upon
demand, pay to the State Dispensary Com-
mission a sufficient amount, or so much
thereof as may be on hand, to eover the
amount to found to ba due the atata."
664
tions involved would not be profitable. The
judgment is affirmed.
Number 204.
This writ brings up a judgment rendered
by the circuit court of appeals, fourth
circuit, affirming the same final judgment
of the district court considered in No. 205,
supra. 124 C. C. A. 423, 206 Fed. 636.
There is no allegation of diverse citisenahip,
and the trial court's jurisdiction was in-
voked solely upon the ground that the con-
troversy involved application of the Federal
Constitution.
In such circumstances the Circuit Court
of Appeals is without jurisdiction to re-
view. Union ft P. Bank t. Memphis, 189
U. S. 71, 73, 47 L. ed. 712, 713, 23 Sup. Ct.
Rep. 604. Its judgment is accordingly
reversed and the cause remanded, with
directions to dismiss the writ of error im-
properly entertained.
Judgments in Nos. 12, 9, and 205, af-
firmed; judgment in No. 204 reversed and
remanded to the Circuit Court of Appeals
for the Fourth Circuit, with directions to
dismiss writ of error for want of juris-
diction.
[319] FIDELITY ft DEPOSIT COMPANY
OF MARYLAND, Plff. in Err.,
V.
COMMONWEALTH OF PENNSYLVANDL
(See S. C. Reporter's ed. 319-324.)
Taxation — Federal agency — foreign
surety company.
A surety company does not, by be*
coming, conformably to the act of August
13, 1894 (28 Stat, at L. 279, chap. 282,
Comp. Stat. 1913, § 3293), surety on bonds
required by the United States, act as a
Federal instrumentality so as to be exempt
from a state tax on the premiums received,
exacted from foreign corporations for the
privilege of doing business within the state.
[For other cases, see Taxes, 1. c, 2, a; I. c 8»
a, in Digest Sap. Ct. 1908.]
[No. 114.]
Argued January 6, 1916. Decided F^
ruary 21, 1916.
IN ERROR to the Supreme Court of the
State of Pennsylvania to review a judg-
ment which affirmed a judgment of the
Court of Conuncm Pleas of Dauphin Coun-
ty, in that state, enforcing a tax upon the
premiums received by a foreign surety oom«
pany upon bonds required by the United
States. AiBrmed.
S40 17. 8.
1916.
FIDSLTTY k DEPOSIT CO. t. PENNSYLVANIA.
See lanie case below, M4 Pa. 67, 00 AH.
437.
The facts are stated in the opinkm.
Mr. Oharlea Markell argued the cause,
and, with Mr. Charles F. Patterson, filed
a brief for plaintiff in error:
This tax is an occupation or pririlege tax
on the privilege of carrying on business un*
der the act of Congress; it is not a property
tax on property (tangible or intangible) of
the defendant.
Equitable Life Assur. Soc. t. Pennsyl-
Tania, 238 U. 8. 143, 69 L. ed. 1239, 36 Sup.
Ct. Rep. 829; Com. t. Standard Oil Co. 101
Pa. 146 ; Choctaw, O. 4 O. R. Co. t. Harri-
son, 236 U. S. 292, 299, 69 U ed. 234, 237,
35 Sup. Ct. Rep. 27.
Nor is it, either in name or in fact, a
commutation tax or just equivalent for the
ordinary tax upon projierty, ascertained by
reference thereto.
Equitable Life Assur. Soc. t. Pennsyl-
Tania, 238 U. S. 143, 69 L. ed. 1239, 36 Sup.
Ct. Rep. 829,,PhiladelphU k S. Mail S. S.
Co. V. Pennsylvania, 122 U. S. 326, 30 L.
ed. 1200, 1 Inters. Com. Rep. 308, 7 Sup.
Ct. Rep. 1118; Western U. Teleg. Co. v.
Pennsylvania, 128 U. S. 39, 32 L. ed. 346,
2 Inters. Com. Rep. 241, 9 Sup. Ct. Rep.
6; Galveston, H. ds S. A. R. Co. ▼. Texas,
210 U. S. 217, 224, 226, 62 L. ed. 1031, 1036,
1037, 28 Sup. Ct. Rep. 638; Meyer ▼. Wells,
F. k Co. 223 U. S. 298, 300, 301, 56 L. ed.
445, 447, 448, 32 Sup. Ct. Rep. 218; West-
em U. Teleg. Co. v. Texas, 106 U. S. 460,
26 L. ed. 1067; Choctaw, O. k O. R. Co. v.
Harrison, 236 U. S. 292, 69 L. ed. 234, 36
Sup. Ct. Rep. 27; Postal Teleg. Cable Co.
V. Adams, 166 U. S. 688, 696, 697, 39 L. ed.
311, 316, 316, 6 Inters. Com. Rep. 1, 16 Sup.
Ct Rep. 268, 360; United SUtes Exp. Co.
V. Minnesota, 223 U. S. 336, 346, 347, 66 L.
ed. 469, 466, 466, 32 Sup. Ct. Rep. 211;
Maine t. Grand Trunk R. Co. 142 U. S. 217,
.35 L. ed. 994, 3 Inters. Com. Rep. 121, 163,
12 Sup. Ct Rep. 807; Galveston, H. A S. A.
R. Co. V. Texas, 210 U. S. 217, 226, 62 L.
ed. 1031, 1037, 28 Sup. Ct. Rep. 638; Baltic
Min. Co. T. Massachusetts, 231 U. S. 68, 83,
68 L. ed. 127, 183, LJt Jk. — , — , 34 Sup. Ct.
Rep. 16; Fargo t. Hart, 198 U. S. 490, 48
L. ed. 761, 24 Sup. Ct Rep. 498.
The state of Pennsylvania has for many
years been accustomed to taxing occupa-
tions, even of individuals, in addition to
property.
Continuously since 1864, the state of
Pennsylrania has imposed a number of spe-
cial occupation or priyilege taxes on the
boslneas of Tarious corporations, domestic or
foreign. Moat of these oceupation or privi-
lege taxes have been impoaed in addition to
ordinary property taauition. One, at least,
•6 Ii. ed.
was imposed expressly upo» the business of
foreign corporations beyond the reach of
ordinary property taxation. None have been
imposed as an equivalent for ordinary prop-
erty taxation, or have (except the extra cap-
ital stock tax on transportation companies
under the act of 1874, repealed in 1877)
been ascertained or measured with any ref-
erence whatever to the taxable property of
the corporation taxed. •
Three of these occupation or privilege
taxes on the business of certain corpora-
tions have been held unconstitutional by this
court when applied to the Federal business
of interstate commerce (State Freight Tax
Case, 16 Wall 232, 271, 21 L. ed. 146, 160;
Philadelphia k S. Mail S. S. Co. v. Pennsyl-
Tania, 122 U. S. 826, 30 L. ed. 1200, 1 Inters.
Com. Rep. 308, 7 Sup. Ct. Rep. 1118; West-
em U. Teleg. Co. v. Pennsylvania, 128 U. S.
39, 82 L. ed. 846, 2 Inters. Com. Rep. 241, 9
Sup. Ct Rep. 6; Norfolk A W. R. Co. v.
Pennsylvania, 136 U. S. 114, 34 L. ed. 394,
3 Inters. Com. Rep. 178, 10 Sup. Ct Rep.
968), and an occupation tax on an individ-
ual in the employ of the Federal government
has been similarly stricken down.
Dobbins t. Erie County, 16 Pet. 436, 10
L. ed. 1022.
The business of foreign insurance com-
panies is now subject to the occupation oi
privilege tax of 2 per cent on gross pre-
miums. The property of foreign insurance
companies (if they had any in Pennsyl-
vania) is nominally ^empt from the tax
on capital stock, and nominally subject to
the tax on property (i. e., mortgages, bonds,
securities, etc.). Actually foreign insur-
ance companies have normally no property
with its situs in Pennsylvania, which could
be taxed either as property eo nominey or
as constituting capital stock. The Penn-
sylvania tax on capital stock is a tax on
the property and assets of the corporation
(Delaware, L. & W. R. 0>. v. Pennsylvania,
198 U. S. 341, 353, 49 L. ed. 1077, 1081, 26
Sup. Ct. Rep. 669, citing Com. v. Standard
Oil Co. 101 Pa. 145, and Ck>m. v. Delaware,
S. k S. R. Co. 166 Pa. 44, 80 Atl. 622, 623),
including both tangible and intangible
property, the franchises as well as other
property of the company (Com. v. Dela-
ware, S. A S. R. Co. supra), but not includ-
ing any property having its situs outside
of the state of Pennsylvania (Delaware, L.
A W. R. Ck>. V. Pennsylvania; 198 U. S.
341, 49 L. ed. 1077, 26 Sup. Ct. Rep. 669;
Com. T. Standard Oil Ca 101 Pa. 119).
The settled construction of Pennsylvania
taxing statutes is that all such intangible
personal property of a foreign corporation
as investments in bonds or stocks— even
stock in Pennsylvania corporations (Com.
T. Standard Oil Co. 101 Pa. 146), or de-
666
BUPHEUE CODRT OP THE UNITED STATES. Oor. Ttaat,
poalt tmoaaata with Fcniuy W^nia ' bank*, 737; Horn Silvn Hln. Co. r. Ncir York,
uied In the oonduet of buiaeu in Pennsyl- 143 U. B. 306, 314, 316, 38 L. «d. lU, ISS,
Tuiia, or Mcnritlei phTaieall; kept In sftfe 4 Inters. Com. Rep. 67, 12 Bnp. Ct. Rep.
depoalt Tftulti In PenniylTknla (Com. t. 403; Hooper t. CaUfomU, 166 U. S. 64S,
CuTtid Pub. Co. EST P». 335, 85 AtL 360)— 052, 30 U ed. 297, 298, 6 Inter*. Com. Rep.
hM ita aitna at the domicil of the corpora- 610, 15 Bup. Ct. Sep. 207; Postal Teleg.
tion, and ia therefore not taxable in Cable Co. t. Adami, 165 U. 8. SSS, 696, 39
Feonaylvania. L. ed. 311, 315, 6 Inters. Com. Rep. 1, 15
This tu cannot be maUined as within Sup. Ct. Rep. 268, 330; Weatem U. Teleg.
the latitude allowed a sUte in Bxing the Co. v. EansM, 216 U. 8. I, 27, S4 L. ed. 355,
measnre ol a tax on non-Federal busineas. 366, 30 Sup. Ct. Rep. ISO; Pullman Co. v.
Western U. Teleg. Co. v. Kansas, £16 Kansas, 216 U. S. 66, 6S, 71, 64 L. sd. 378,
I U. S. 1, 64 L. ed. 3S9, 30 Sup. Ct. Rep. 190; 38S, 387, 30 Sup. Ct. Rep. 832.
Galveston, H. ft S. A, R Co. v. Texas, 210 „ wiiii.™ m H.»«t .*«..! t-h.
U, S. 217, 227, 62 L «i. 1031. 1037. 28 Sup. "'' ^""'^ j^' ^^L"^f„^
fH Tj— a«o, rn.~.t.. n t n v r^ I cause, and, with Mr. Francis Bhnnk Brown,
Bup. Ct. Kep. 2T. , ., , This tax is imposed by the sUte of P«nn-
A tax on the occunation or nriTileffe oi , . ...
.a uu uii ^uc u«.u|»i.<uu ui p., .«»= ajWania upon foreign insurance companiM
earrTins on busuess under the act of Con- ' ,, _ ,, '. ^^ . "_ ,,, ._ ,, '._ ,
■>'"», 1. J i 11. wi I..J <"• "" bUBlnea* done within the statv of
gress, vu., executing bonds to the United penngyiy^ni.
States govemmcnt, required }^ tiie laws of ~^ ' , j
the United States, is a Ux on a Federal rZ^^i!,iTL
ta.i™»»t.hly .eling_™der_congre»io™i ^^ „ JJ, 7g7, 238 U. B. I4S, 6« I. «l
123Q, 36 Sup. Ct. Rep. S2«i Hooper t.
CkUfarnU, 1S6 U. 8. MS, 30 L. «L 297, 6
0«rmuiU L. Ina. Co. t. C<». 85 Pa. fill;
Com. T. EquiUble Ufe Auur. Soc S
MinnoMU, 232 U. S. 616, 621, 622, 6:
;■ 2".'.. ;S S « S . iA i »S 1 I'l— Co. Hop. 784, 1! All. 277;
r "^lofSi ,;,J ^f,V "•'■'«■/»"■ T.;™. .. T,.«ll.r.' I... &>. 80 P.. 28^
? :,. ^'J V, ^' .V I" MliKorl, 190 O. S. 412, 47 L. «L UW, SS
Rep. 118: Wertern U. Teleg. Co. r. Texae, _ r, r„ ijn
105 n. S. 480, 28 U ed. 1087; Choel.w, O. ^"t^'-.^Sj,^ .„„ I. »„. o™™.i™
t O. «. Co. .. H.rrl«,o. 236 U. S. 202, 69 ?' P""""' '", T" '.' "'*. •■"""^
L. .a. 234, 3S Sup. CI. i.p. 27; Ao.br<ilol ■»<!«' ■tM;"' >™el»" wh.tr,.T, 1..
MSup. Ct. R^. 1 12 to. Crim. Kep. JM; "J ^ P. R. Co! »
SS^V S -k"^'?'. ^' ti K 1, "•"■ "«■" I- -i '«; ""- ""■ i^ <=°- '-
So^J. !i = ;,l r^tJ" J ■ ■ P R. Co. r. OlUorolt 182 U. 8. «i, 40
810, 30 Sup. Ct. Hep. 179; Dobbine e. Erie „ ~^ ^ .
r«,.l, 1« PI. ask 446 10 T. -1 1022. '■■^ »°3' " Sup Ct Rep. 78S.
Count;, 16 Pet. 436, 446, 10 L. ed. 1022,
1020; MiMourl P. R. Co. t. I^rabee, 234
The penalealon to do bueineoe, giTen by —
0. 8. 46., 66 L. ed. 1308, 3. Sup, Ct. Rep. J» jj, jj^^' "- "' ~""'°'- '"
;"i,^,'if '',:«"°"S''i" ".Vl- r':,2 Wra.„" Slledegu, 226 U. 8. 404, 67 '
i; f S'rf f'n ?• "i, -.L S". I> «1. '". " 8"P. cT Hep. 116; PoitlO-
IS 2i Sou C. Ref m ••^. " >- "■ '". ' """■■ C-- «^- "'-
620^27 Sop. CI. Rep 381 74 Sup. Ct Rep. 1004; Weelen. D. Tele«.
The ngbt ol the .1.1. to ^elude loreign Jjiieeourl, IM U. S. 412. 47 iSlL
eorpor.tta., or to ore.eelbe lem. .»d 3„ „_^„ „_
eondition. lor their .dmlB.ioD within ill ^ , ' „ '^„. . _ T „.. „ - ,„„ _.
bordars, doe. not include power to prohibit, Teleg. Co v^ R«>hmond, 224 V; S- 160. »
or ImpU term, or condition, u^n, the ^ '^- "C 32 Sup O^ Rep. M9; Wiggfaa.-
tranasX. by foreign corporations of Fed- ^erry Co. y. East St. I->uis, 107 U. 8. «5,
•r.I bBsines. within the rtate. 2^ L «d. 418. 2 Sup. Ct Hep. 267.
Stockton w. Balttmore ft N. T. R. Co. While Congreas might have azempted
llntara.Com.Rep. Ml, Sa Fed. 14; Pembina 'rom taxation any premiunia on bonda
Consol. Silrer Mln. ft Mill. Co. t. Pannsyl- which run to the United BtatM goTem-
Vftnia, 126 U. S. 181, 180, 31 L. ed. 690, ment, it did not do so.
«62, e iDtari. Com. Rq). £4, 8 Bnp. Ct. Rep. dtisMw* Bank v. F»i1car, 192 U. 8. 73, *»
##• 140 U. 8.
1915.
FIDELITY k DEPOSIT CO. t. PENNSYLVANIA.
820, 321
L. e<L 346, 24 Sup. Ct. Rep. 181; Reftgan t.
MercantUe Trust Ck>. 154 U. S. 413, 38
Lw ed. 1028, 4 Inters. Com. Rep. 575, 14
Sup. Ct Rep. 1060.
The plaintiff in error is not acting as a
Federal agent, or using any government in-
atrumentality, in becoming surety upon the
bonds upon which the tax is sought to be
imposed.
37 Cyc. 878, and notes; 12 Am. k Eng.
Bne. Law, 2d ed. 367, and notes; Baltimore
Shipbuilding k Dry Dock Co. ▼. Baltimore,
195 U. S. 375, 49 L. ed. 242, 25 Sup. Ct.
Rep. 50; United States t. Moses, 107 C. C.
A. 310, 185 Fed. 90; Union P. R. Co. ▼.
Penist^ 18 WalL 5, 21 L. ed. 787; Van
Brocklin t. Tennessee (Van Brocklin ▼.
Anderson (117 U. S. 151, 29 L. ed. 845, 6
Sop. Ct. Rq>. 670; Flint v. Stone Tracy 0>.
220 U. S. 107, 55 L. ed. 389, 31 Sup. Ct
Rep. 342, Ann. <^as. 1912B, 1312; Western
U. Teleg. Co. ▼. Richmond, 26 Oratt. 1;
Thomson y. Union P. R. Co. 9 Wall. 579, 19
L. ed. 792; Ratterman ▼. Western U. Teleg.
Co. 127 U. S. 411, 32 L. ed. 229, 2 Inters.
Com. Rep. 59, 8 Sup. Ct. Rep. 1127; Atty.
Gen. V. Western U. Teleg. Co. 141 U. S. 40,
35 L. ed. 628, 11 Sup. Ct. Rep. 889; West-
em U. Teleg. Co. ▼. Atty. Gen. 125 U. S.
530, 31 L. ed. 790, 8 Sup. Ct Rep. 961;
Western U. Teleg. Co. y. Missouri, 190 U.
S. 412, 47 L. ed. 1116, 23 Sup. Ct. Rep. 730;
Western U. Teleg. Co. v. Trapp, 108 C. C.
A. 226, 186 Fed. 114; Society for Savings
y. Coite, 6 Wall. 594, 18 L. ed. 897 ; SwarU
V. Hammer, 194 U. S. 441, 48 L. ed. 1060,
24 Sup. Ct. Rep. 695; Thompson y. Ken-
tucky, 209 U. S. 340, 52 L. ed. 822, 28 Sup.
Ct Rep. 533; Henderson Bridge Co. v.
Henderson, 173 U. S. 592, 43 L. ed. 823,
19 Sup. Ct. Rep. 553; Henderson Bridge Co.
y. Henderson, 141 U. S. 679, 35 L. ed. 900,
12 Sup. Ct Rep. 114; 23 Ops. Atty. Gen.
421.
Immunity from taxation by a state is
granted to a Federal agent only upon the
theory that such taxation may interfere
with the usefulness or efficiency of the
agent in serving the Federal government.
First Nat. Bank y. Kentucky, 9 Wall.
353, 19 L. ed. 701; M'Culloch v. Maryland,
4 Wheat 316, 4 L. ed. 579; Union P. R.
Co. y. Penistcm, 18 Wall. 5, 21 L. ed. 787;
Reagan y. Mercantile Trust Co. 154 U. S.
413, 38 L. ed. 1028, 4 Inters. Com. Rep. 575,
14 Sup. Ct Rep. 1060; Western U. Teleg.
Co. y. Atty. Gen. 125 U. S. 530, 31 L. ed.
790, 8 Sup. Ct. Rep. 961.
[820] Mr. Justice McReynolda deliv-
ered the opinion of the eourt:
We are asked to reverse a judgment of
the supreme court of Pennsylvania which
denied plaintiff in error's claim that, in
60 Ii. ed.
becoming surety upon bonds required by
the United States, it acted as a Federal in-
strumentality, and was not subject to tax-
ation on the premiums received. 244 Pa.
67, 90 Atl. 437.
Incorporated under the laws of Maryland,
the Fidelity k Deposit Company is em-
powered by its charter to act as surety. It
was duty licensed to transact business in
Pennsylvania. In pursuance of the act of
Congress referred to below, the Attorney
General granted it authority to enter into
obligations required by laws of the United
SUtes.
Contracting within Pennsylvania, the
company became surety, during 1909, on
bonds in the following matters: 'Internal
Revenue, customs. United States govern-
ment officials. United States government
contracts and banks for United States de-
posits, bonds given in courts of the United
States in litigation there pending." Gross
premiums thereon amounting to $17,646.86
were collected. Within the same period it
also became party to other bonds and re-
ceived therefor $198,199.19. The state de-
manded 2 per centum of such total receipts,
basing its claim on the proviso in § 1, act
of Assembly, June 28, 1895, P. L. 408,
which declares: 'That hereafter the annual
tax upon premiums of insurance companies
of other states or foreign governments shall
be at the rate of 2 per centum upon the
gross premiums of every character and de-
scription received from business done within
this commonwealth within the entire calen-
dar year preceding." The amount demand-
ed because of premiums on bonds not
authorized or required by the United States
was paid; but liability for $352.92, assessed
in respect of those so authorised, [321]
was denied, and to enforce it the present
suit was instituted in the common pleas
court, Dauphin county.
The act of Congress entitled, "An Act
Relative to Recognizances, Stipulations,
Bonds, and Undertakings, and to Allow
Certain Corporations to be Accepted as
Surety Thereon," approved August 13,
1894 (chap. 282, 28 Stat, at L. 279, Comp.
Stat. 1913, § 3293), provided:
Sec. 1. "That whenever any recognizance,
stipulation, bond or undertaking condi-
tioned for the faithful performance of any
duty, or for doing or refraining from doing
anything in such recognizance, stipulation,
bond, or undertaking specified, is by the
laws of the United States required or per-
mitted to be given with one surety or with
two or more sureties, the execution of the
same or the guarantying of the perform-
ance of the condition thereof shall be suf-
ficient when executed or guaranteed sole-
ly by a corporation incorporated under
821-324
SUPREME COURT OF THE UNITED STATES.
Oct.
the laws of the United States, or of any
Btate having power to guarantee the fidel-
ity of persons holding positions of public
or private trust, and to execute and guar-
antee bonds and undertakings in judicial
proceedings: Provided, That such recog-
nizance, stipulation, bond, or undertaking
be approved by the head of department,
court, judge, officer, board, or body execu-
tive, legislative, or judicial required to ap-
prove or accept the same. But no officer
or person having the approval of any bond
shall exact that it shall be furnished by a
guarantee company or by any particular
guarantee company."
Sec. 2, that "no such company shall do
business under the provisions of this act be-
yond the limits of the state or territory
under whose laws it was incorporated and
in which its principal office is located
. . . until it shall, by a written power
of attorney, appoint some person residing
within the jurisdiction of the court for the
judicial district wherein such suretyship is
to be undertaken, ... as its agent,
upon whom may be served [322] all law-
ful process against such company, . . ."
Sec. 3, that every company, before trans-
acting business under the act, shall deposit
with the Attorney General of the United
State a copy of its charter and a state-
ment showing assets and liabilities, and "if
the said Attorney General shall be satisfied
that such company has authority under its
charter to do the business provided for in
this act, and that it has a paid-up capital
of not less than $250,000 in cash or its
equivalent, and is able to keep and perform
its contracts, he shall grant authority in
writing to such company to do business un-
der this act." Sec. 4, that quarterly state-
ments shall be filed with the Attorney Gen-
eral, who shall have power to revoke the
authority of any company "whenever in his
judgment such company is not solvent or is
conducting its business in violation of this
act.'' Sec. 6, that "any surety company do-
ing business under the provisions of this
act may be sued in respect thereof in any
court of the United States*' which has juris-
diction, in the district in which the instru-
ment was made or guaranteed or the prin-
cipal office of the company is located. Sec.
6, that "all right to do business under this
act" shall be forfeited upon failure to pay
a final judgment against it. Sec. 7, that a
company having executed any instrument
under the act shall be estopped to deny its
corporate power to execute same. Sec. 8,
that penalties therein prescribed for failure
to comply with the provisions of the act
shall be recovered by suit.
The court of common pleas held the tax
"ie M chBTge for the privilege of transacting
00S
business in the state, measured by tin
amount of the business done;" there ii
"nothing in the act of Congress to support
the proposition that the defendant was Ml'
thorized by it to transact its business ii
the state of Pennsylvania;" and in exaeat*
ing the specified bonds the surety companj
"was in no sense an instrumentality of gov-
ernment." Judgment was according^
[323] rendered for the state; and, on ap-
peal, this was affirmed upon findings and
opinion below.
In behalf of plaintiff in error, counad
maintained that the taxing power of thi
state has been so exercised as to collide
with operations of the Federal government;
that under the act of Congress the surety
company became a Federal instrumentality
with power to execute bonds within tlM
state, and consequently could not be sab-
jected to a privilege tax therefor.
That the challenged tax "is an exactioa
for the privilege of doing business" seenu
plain (Equitable Life Assur. Soc. t. Penn*
sylvania, 238 U. S. 143, 59 L. ed. 1239, S6
Sup. Ct. Rep. 820) ; and undoubtedly s
state may not directly and materially
hinder exercise of constitutional powers oi
the United States by demanding in opposi-
tion to the will of Congress that a Federal
instrumentality pay a tax for the privilegf
of performing its functions. Farmers' A
M. Sav. Bank v. MinnesoU, 232 U. 8. 616,
58 L. ed. 706, 31 Sup. Ct. Rep. 354; Qkw
taw, O. & G. R. Co. V. Harrison, 235 U. 8.
292, 59 L. ed. 234, 35 Sup. Ct. Rep. 27.
But mere contracts between private corpo-
rations and the United States do not neoos-
sarily render the former essential govern-
mental agencies, and confer freedom from
state control. Baltimore Shipbuilding A
Dry Dock Co. v. Baltimore, 195 U. a 376,
49 L. ed. 242, 25 Sup. Ct. Rep. 50. More-
over, whatever may be their status, if the
pertinent statute discloses the intention oi
Congress that such corporations, contractin|
under it with the Federal government, ahaV
not be exempt from state regulation and
taxation, they must submit thereto. Firsi
Nat. Bank v. Kentucky, 9 Wall. 353, 362
19 L. ed. 701, 703; Van Allen v. Asseaaon
(Churchill v. Utica), 3 Wall. 573, 685, If
L. ed. 229, 235; Cooley, Taxn. 3d ed. pp
130, 131.
As revealed by its title, the purpose ol
the act of 1894 is "to allow certain corpo-
rations to be accepted as surety, etc." Ii
does not undertake to endow any corpora-
tion with power, but only to permit thoM
complying with specified conditions to exer-
cise their lawful powers, derived from otta
F urces, by contracting with the govemmenl
[324] under official approval. ^Power to
guarantee," required by § 1, is not the sam
240 U. B*
iOU. SBABOASD A. L. R. CO. t. RAILROAD OOUMIBSION. 3M
thing M "authority under iti charter" r«- trackag* ooimection between r^lwaya. Af-
fwred to in g 3; and we think the clear firmed.
Intent was that existence «f the former See aame case below, 129 C. C. A. 013, £18
•hould be determined by the Uwa in force Fed. Z7.
at place of contract. Neither cireumitance* The facta are stated in the opinion.
nor language of the act indicate de.ign or „^„, ^ Watklna. and W. O.
neceaaity to hmit •Ppli«t'on by the aev- j^ ^ ^ ^^^ ^ ^„j ^i^l, ^
era) .tatea of a weU-e.tabl.Bhed ayBtem of ^^ Carroll Latimer, flled a brUf for appe].
Iiecnsmg and taxing bonding companie* not j^^^.
incorporated under their own etatutea. ^he order complained of ie arbitrary,
PlamtUI u> error ■ right to carry on buai- ^^,^^^^1 ^j without tubtUntUI evi-
neui in Pennaylvania depended upon com- ^^^ ^^ support it.
P'™*^-*!''' ''■ "*"■ ... .... Central Stock Yardi Co. v. Louisville ft
We find DO error m the judgment of the jj g_ ^^ ^^^ U. S. 688, 671. 48 L ed. 665,
emrt below and it le affirmed. ggg 2^ g,,p ^ p^p 335. Wadley South-
ern R. Co. T. State, 137 Oa. 607, 73 S. B.
—~-^ 741- Washington ex rel. Oregon R, ft Na¥.
Co. T. Fairchild, 224 U. S. 610, 631, 66 L. ed.
663. 870. 32 Sup. Ct. Rep. 636.
It is the judgment of the Commission
that the statute says must be satisfied.
Such statute contemplates that the Com-
miMion ahould base its determination upon
(Bee B. C. Reporter's ed. 324-328.) the evidence before it, and unless an order
is founded upon iubstantial evidence, it
Conatltntlonnl law — due procaas of law should be set aside.
— compnlaorr trackage connection. Railroad Commission v. Louiaville ft N.
It is within Uie power of a sUte. r. Co. 140 Ga. 817, L.RJ1.1B15B, 902, 80
acting through an administrative body, to g. E. 327, Ann. Gas. 1916A, 1018; Louis-
LTnng X"^e"n"Tci"f t"'S -»« ft N. R. Go. v. Finn, 236 U. S. 601, 59
and ma'nUin track connections tor the in- L- «!■ 3^8. P.U.R.IB15A, 121, 35 Sup. Ct.
terchange of tranic at that point, where the Rep. 146; Wadley Southvrn R. Co. v.
etUblished facts show public neceisitv Georgia, 235 U. S. Q51, 59 L. cd. 405, P.U.R.
therefor, just regard being given to the ad- 1915A, 100, 36 Sup. Ct. Rep. 214.
vantages which will possibly result on one The courts cannot Initiate any plan for
*'''di"'i;h"'"'"^ expenses to be incurred ^ connection; that question has been left
r?or oiher"«,e.. see Conslltn.loD.l Lsw. for;aetern.in«tion by the Commission.
IV. b, t. In Dlsest 8up. Ct. 1U08.J Texas ft P. R. Co. v. Abilene Cotton Oil
Co. 204 U. S. 426, SI L. ed. 553, '27 Sup.
[No. 170.] Ct. Rep. 360, 0 Ann. Cas. 1076.
. , ,~ . ,. ,n,. T. -J J Congress having acted on the subject-
Argued January 13 and 14 1918. Decided „,^j^« j^, jj^,,^ Commission of Geor-
lebruary 21, lUiu, ^^ ^^^ ^^ Jurisdiction to order the phyai-
APPEAL from the United States Circuit «1 connection.
Court of Appeals for the Fifth Circuit ^lakely Southern R. Co. t. Atlantic
to review a decree which affirmed a decree CoastUne R. Co. 26 Intera. Com. Rep. 300;
of the District Court for the Northern Dia- St Louis, S. 4 P. R. Co. v. Peoria ft P. U.
trict of GeorgU, dismisaing the bill In a R Co. 26 Inters. Com. Rep. 226; Chicag«),
suit to enjoin the enforcement of an order R- I. ft P. R Co. v. Hardwick Farmers'
of th« SUte Railroad Commiuion, requiring Elevator Co. 226 U. 8. 426, 67 L ed. 2S4J
: 46 L.R.A.(N.S.) 203. 33 Sup. Ct. Rep. 174;
Note.— On requiring connection or joint gouthem R Co. ». Reid, 222 U. S. 424, 440,
must be made-Se note to Pacific Teleg. ft United States v. Union Stock Yard ft
Tfeleph. Co. V. Eshleman, 50 L.R.A.(N.S.) Transit Go. 228 U. S. 286, 303. 57 L. ed.
«62. 226, 232. 33 Sup. Ct. Rep. 83; St. Louis, I.
As to what constitutes due process of law. U. ft S. R. Co. t. Edwards, 227 U. S. 266,
marallr— see notes to People v. O'Brien, 2 269. 270. 67 L, ed. 606, 507, 33 Sup. Ct. Rep.
.RJ, 265; Kunti v. Sumption. 2 L.R.A. 202; McNeill t. Southern R. Co. 202 U. S.
w5; Re Gannon. 5 I^f-Ai.ffB; Ulman v. g^j ^ ^ ^ jj^g, 26 Sup. Ct. Rep. 722;
Baltimore, 11 L.R.A. 224; Oilman V. Tucker, „. ' . n n a. m u 1. oit tt o
13 L.R.A. 304 ; Pearson v. Yewdall. 24 L. ed! "'"«"" !"■ «■ Co '. Nebraska, 217 U S.
n. S. 436; Witoon v. North Carolina. 42 J»e. 207, 64 L. ed. 727. 731, 30 Sup. Gt Rep.
It. ed. U. S. 8(S 461, 18 Ann. Gas. 889 ; Loa Angeles Switch-
•• L. ed. ««^
Cr
SUPRBHE COURT OP THB UNITED STATES. Oor. -.
tng C«sa (Interatatfl CommarM CommlMioB
T. AtchiMii.T.*S.F. R.CO.) 234 U. S. SM,
SB L. ed. 1319, 34 Sup. Ot. Rq>. 814; Louii-
ville A H. R. Co. *. Hlgdon, 234 U. 6. S92,
68 L. «d. 1484, 34 Sup. Ct. Rep. 048 1
lUinob a E. Co. T. Da FnentM, 236 U. S.
167, 69 L. ed. 617, P.U.R.1S16A, 840, S6
deuce, or if the facts fouod do ttot, •• ft wt
ter of Uw, support this order, then the mmm
would be void.
Iiit«rit«t« Commerce Commission t,
Lou»7il1e A N. R. Co. E27 U. S. 88, 57 U
ed. 431, 33 Sup. Ct. Rep. IBS.
In matters of local ooneern, mad not ol
Sup. Ct. Rep. 87S. BStionsl importance, the state may act fer
Hr. Jamea K. HInea argued the eanai
their control and maiia{(emeiit until (
and AM a brief for appelleL: f *" ^i'^*"* «•» «uperaede. state aotioB.
Error must afUrmativcly appear before ^uch exerciie of authority is regarded H
there can be a reTerwl, and the burden Is f^fl ^"^'"g i>;t«riUte commerce taal-
on the plaintiff to show it. dentally or remotely, and not constitntiaff
Mercantile Trust Co. y. Heusey, t06 U. % "«?;'*""° "^ ^* '" *'" "•"'°« "* ***
B. SD8, 308, 61 L. ed. 811, 814, 27 Sup. Ot. i-o"ti»ution. , „ „ „.
Rep. 636. 10 Ann. Cas. 672; Carroll t. „, ^*"*'/"'«''*.7", ^ " ^^}- "»'
Peake, 1 Pet 18, 23, 7 L. ed. 34, 36: Bsc- ^^ ^ *^- ^^2; MobUe Coun^ t. Kunball.
nell ». Hroderlck. 13 Pet. 436. 10 L. cd. 235; ]^. «■ S- Ml. 26 I* »d- 238; Bowman t.
Southern R. Co. t. AtUnU StoTe WoA^ Chicago t N. W. R. Co. 126 U. S. 466, 485,
I2B Qa. 222 67 S. E. 429. ^^ ^ *'' '^^' '^^^' ^ ^^^^- ^^- R«P- SIS,
TTie flndinn of the Railroad Commission ^ ^"P- Ct- Rep. 689, 1082.
of Georgia, having been concurred in by the A state sUtute i. not to U deemed ■
district court and the circuit court o( ap- '^l«tl«> »' commerce among the aUte^
peaU, will not be interfered with, unless ■^P'? '»««''« " ""? Inculentally or Indl-
tho record establishes that clear and un- '^^7 •"*«* ""*=» commerce,
mistakable error has been committed. Mt«oori, K. * T. R. Co. t. Habor, ISt
Illinois C. R. Co. y. InteraUte Commerce ^ S- "», 626, 42 L ed. B78, 881, 18 Sup.
Cominisiion, 208 U. S. 441, 44S, 61 L ed. ^t' ««?■ "8; Chicago, M. t St P. R. Co.
112B, 1130, 27 Sup. Ct Rep. 70O; Cincin- "■ ^olan, 189 U. 8. 133. 42 L. ed. 688, 15
nati, H. t D. R. Co. t. IntersUte Com- Sup. Ct Rep. 280; Western U. Teleg. Co. r.
mcree Commissioa. 206 U. 8. 142, 154. 61 J'"*', 162 U. S. 660. 40 L. ed. 1106. »
L. ed. 006, 1001, 27 Sup. Ct. Bep. 648. Sup. Ct. Rep. 034.
Courts are rehictwit to interfere with the Tk'« ""''l". requiring the Seaboard Air
laws of a state, or with the tribunals con- !-'« Railway and the Lawrencerille BrawA
sUtnted to enforce them; and doubts will R»ilroad Company to connect their tradn
be reaolTed In favor of the state and ita ^*^^ *■" city Hmita of LawrenceriUe, for
tribnoals. ^* interchange of trsffle between said llne^
Grand Tmak R. Co. t. Michigan R. Com- *' "'"•'" *^' regulaUng power of the aUta
mission, 281 U. S. 4«7, BB L. ad. 316, 34 "^ Commission ; and is not unconrtttu-
Sup Ct Rep 152. *'*""' " intw'w'ng "'** interaUte corn-
There can be no doubt of the power of "■"«»■ " d'pHving the csrriers of their
the sUte. acting through an admin latntive property without due proceas of law.
body, to require railroad companiea to make Grand Trunk R. Co. t. HichigMi R. Corn-
track connections. ■"i"*'™. 231 U. S. 488, SB I* ed. 813. 34
Wisconsin, M. A P. R. Co. t. Jacobaon, °"P; p*" ^P- ^"2.
170 U. a 287, 4S L. ed. 104, 21 Sup Ct. ^hu order of the Railroad Commieaion b
Rep. 116j Washington es rel. Or<«on R. * • tegulation of the businesa of appelUot,
NaT. Co. T. Fairchild, 224 U. 8. 610, 628. ^"^ "«>* •" »Ppropriation of lU tanulnat
66 L. ed. 863. 869. 32 Sup. Ct. Rep. 635; '»cilitiea for the uae and benefit of tfao
Grand Trunk B. Co. t. Michigan R. Com- I*wrenceyille Branch Railroad,
mission. 231 U. B. 467, 468, 68 L ed. 310, Wisconsin, M. ft P. R. Co. y. Jacobatm,
317, 84 Sup. Ct Rap. 152. 1" U. S. 287, 46 L. ed. 194, 81 Sup. Ct
In determining the reasonableness of ^^- ^^^'' Minneapolis ft St U R. Co. Vi
raoh an order, the court must consider sll Minnesota, 186 U. S. 267, 46 L. ed. 1151,
the facU, the places and persons interested, 22 Sup. Ct Rep.' 000; Wsshington ex M.
Tolume of business to be affected, the s»t- Oregon R. ft NaT. Co. v, Fairchild, 224
ing of time and ezpenae to the shipper, as V. S. 619, 628, 56 L, ed. S67, 869, 32 Sup.
■gainst the ooat and expense to the carrier. Ct. Rep. 535; Grand Trunk R. Co. t. Miehl-
Washlngton ei reL Oregon R. ft Nav. Co. gan R. Commission, 231 U. 6. 467. 408, 68
T. Fairchild, 224 U. 8. 510, 628, 66 L. ed. U ed. 310. 317, 34 Sup. Ct Rep. 168.
863, 869, 32 Sup. Ct Rep. 536. Railroad companiea are organiied for the
If this order was baaed upon a finding public interest, and to subserra primarilr
w.Udb it Indiaputftbly contrary to the stI- the public good and ooBTenicnea.
vm.
8EAB0ABD A. L. R. 00. ▼. RAILROAD 00MMIS8I0N.
Qrand Trunk R. Oo. ▼. Michigan R. Com-
HiMioii, 231 U. 8. 457, 470, 58 L. ed. 310,
118, 34 Sup. Ct. Rep. 152.
It can require a carrier to run its trains
io as to connect with another carrier, al-
though this is done at a loss.
Atlantic Coast line R. Co. t. North
Carolina Corp. Commissicm, 206 U. S. 1,
51 L. ed. 933, 27 Sup. Ct Rep. 585, 11 Ann.
Oas. 898.
So, the state can compel physical connec-
tions between railroads, when the public in-
terest demands it, although the construe-
tion of such connections requires the ex-
penditure of money by such companies, and
entails on them loss of business and rev-
enue.
Wisconsin, M. A P. R. Co. t. Jaoobson,
179 U. S. 289, 45 L. ed. 195, 21 Sup. Ct.
Rep. 115; Minneapolis A St. Lw R. Co. t.
Minnesota^ 186 U. & 257, 46 L. ed. 1151,
22 Sup. Ct. Rep. 900; Washington ex reL
Oregon R. A NaT. Co. ▼. Fairchild, 224 U. 8.
519, 528, 56 L. ed. 867, 869, 82 Sup. Ct
Rep. 535.
A railway company accepts its franchise
from the state, subject to the condition that
it will conform at its own expense to any
reasonable regulation.
Cincinnati, I. A W. R. Co. t. Connors-
▼ille, 218 U. S. 336, 54 L. ed. 1060, 31 Sup.
Ct Rep. 98, 20 Ann. Cas. 1206.
A state is competent to create a commis-
sion and give it the power of regulating
railroads and investigating conditions upon
which regulations may be directed; and
the judiciary will only interfere with such
a commission when it appears that it has
clearly transcended its powers.
Grand Trunk R. Co. v. Michigan R. Com-
mission, 231 U. S. 457, 58 L. ed. 310, 34
Sup. Ct. Rep. 152.
Mr. Justice McReynolds delivered the
opinion of the court:
After hearing the interested parties, the
Railroad Commission of Georgia concluded
that making and maintaining physical con-
nection at Lawrenceville, Georgia (a man-
ufacturing town with two thousand in-
habitants), between Lawrenceville Branch
Railj-oad and Seaboard Air Line Railway,
would be practicable and to the public in-
terest; and accordingly passed an order
that within lour months the roads should
provide and maintain one, together with
sufficient interchange tracks to care lor
traflle moving between them. No definite
point for the connection was prescribed;
opinion was expressed that expenses should
be* borne equally by the two companies;
60 li. ed.
and they were directed to report their ac-
tion within thirty days.
[327] Appellant brought this proceeding
in the United States district oourt» north-
em district of Georgia, alleging the order
was null and void, and asking that its en-
forcement be enjoined. That oourt heard
additional evidence and upon the whole
record concluded the challenged order was
not unreasonable, and the Commission was
InUy justified in making it 206 Fed. 181.
Injunction was accordingly denied and suit
dismissed, and this action was affirmed by
the circuit court of appeals. 129 C. C. A.
613, 213 Fed. 27.
Section 2664, Georgia Code 1910, gives
the Railroad Commission "power and au-
thority, when in its judgment practicable
and to the interest of the public, to order
and compel the making and operation of
physical connection between lines of rail-
road crossing or intersecting each other, on
entering the same incorporated town or city
in this state." Wadley Southern R. Co. v.
Georgia, 235 U. S. 651, 59 L. ed. 405, P.
U.R.1915A, 106, 35 Sup. Ct Rep. 214.
It is within the power of a state, acting
through an administrative body, to require
railroad companies to make tarack connec-
tions .where the established facts show pub-
lic necessity therefor, just regard being
given to advantages which will probably re-
sult on one side and necessary expenses to
be incurred on the other. The facts being
established, the question then presented is
whether, as matter of law, there is sufficient
evidence to support a finding of public ne-
cessity,— ^the mere declaration of a Commis-
sion is not conclusive. Wisconsin, M. A P.
R. Co. V. Jacobson, 179 U. S. 287, 295, 296,
45 L. ed. 194, 198, 199, 21 Sup. Ct. Rep. 115;
Washington ex rel. Oiegon R. A Nav. Co. v.
Fairchild, 224 U. S. 510, 56 L. ed. 863, 32
Sup. Ct. Rep. 535; Great Northern R. Co.
V. Minnesota, 238 U. S. 340, 845, 59 L. ed.
1337, 1339, P.U.R.1915D, 701, 86 Sup. Ct
Rep. 753.
The state Commission ^nd both courts
were of opinion that the facts sufficed to
show public necessity for the connection
in question, and that it could be construct-
ed and maintained without unreasonable ex-
penditure. The only substantial question
before us ii whether such finding [328] is
plainly erroneous because the evidence is in-
sufficient to support it; and, having exam-
ined the record, we are unable to say the
facts disclosed do not give the essential
support The judgment of the oourt below
is acoordingly affirmed.
828
SUPREME COURT OF THE UNITEtf STATES.
Oct. TEtM,
JAKE BUTLER, Plff. in Err., f
J. W. PERRY, as Sheriff of Colombia I
County, Florida. ,
(See S; G. Reporter's ed. 328-338.)
Constitutional law — Involuntary serri-
tude ^ conscripted labor on high-
way.
1. Involuntary servitude is not im-
posed, contrary to U. S. Const., 13th
Amend., by the provisions of Fla. Jaws
1913, chap. 6537, §§ 10, 12, making it a
misdemeanor punishable by fine or impris-
onment for any able-bodied male person be-
tween the ages of twenty-one and forty-five
years to fail in any year to perform six
days' labor on the highways of bis county,
when summoned, or to provide an able-
bodied substitute, or, in lieu thereof, pay
$3 to the road overseer.
[For other cases, see Constitutionml Law,
1581-1587, in Digest Sup. Ct 1908.]
Constitutional law « due process of
law — liberty — conscripted labor on
highways.
2. Liberty or property is not taken
without due process of law, contrary to U.
S. Const., 14th Amend., by the provisions
of Fla. Laws 1913, chap. 6637, §§ 10, 12,
making it a misdemeanor punishable by fine
or imprisonment for any able-bodied male
person between the ages of twenty-one and
forty-five years to fail in any year ta per-
form six days' labor on the highways of his
county, when summoned, or U> provide an
able-bodied substitute, or, in lieu thereof,
pay $3 to the road overseer.
(For other cases, see Constitutional Law,
IV. b, 3; IV. b, 4, in Digest Sup. Ct. 1908.]
[No. 182.]
Submitted January 14, 1916. Decided Feb-
ruary 21, 1916.
IN ERROR to the Supreme Court of the
State of Florida to review a judgment
which affirmed a judgment of the Circuit
Court of Columbia County, in that state,
refusing relief by habeas corpus to a per-
son cofivicted of failing to do the required
work on the public highways. Affirmed.
See same case below, 67 Fla. 405, 66 So.
150.
The facts are stated in the opinion.
Mr. Charles Cook Howell submitted the
cause for plaintiff in error:
The Florida statute imposes involuntary
servitude upon the plaintiff in error, not as
a punishment for crime, in violation of the
13th Amendment to the Federal Constitu-
tion.
Bailey v. Alabama, 219 U. S. 219, 55 L.
Note. — On conscription of labor for work-
ing highway as a tax — see note to State t.
Wheeler, 5 L.RJk.(N.S.) 1139.
• 72
ed. 191, 31 Sup. Ct. Rep. 145; CivU Rights
Cases, 109 U. S. 36, 27 L. ed. 847, 3 Sup.
Ct Rep. 18; Clyatt v. United States, 197
U. S. 207, 49 L. ed. 726, 25 Sup. Ct. Rep.
429; Slaughter-House Cases, 16 WalL 69»
21 L. ed. 406; State ex rel. Erickson v.
West, 42 Minn. 147, 43 N. W. 845; Re
Thompson, 117 Mo. 83» 20 L.RJL 462, 38
Am. St. Rep. 639, 22 S. W. 836; Ex parte
Wilson, 114 U. S. 417, 29 L. ed. 89, 5 Sup.
Ct Rep. 935, 4 Am. Crim. Rep. 283.
The police power of the state must always
yield to the Federal Constitution and do
rights granted or secured by the supreme
law of the land.
1 Bailey, Habeas Corpus,* § 38; Barrett
V. New York, 232 U. S. 14, 58 L. ed. 483,
34 Sup. Ct. Rep. 203; Henderson v. New
York, 92 U. S. 259, 23 L. ed. 543; Kansas
City Southern R. Co. v. Kaw Valley Drain-
age Dist 233 U. S. 75, 58 L. ed. 857, 34
Sup. Ct. Rep. 564; New Orleans Oaslight
Co. y. Louisiana Light & H. P. A Mfg. Co.
115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep.
252; Hannibal A St J. R. Co. v. Husen,
95 U. S. 465, 24 L. ed. 527 ; SUte v. Arm-
stead, 103 Miss. 790, 60 So. 778, Ann. Cas.
1915B, 495; Stone v. Farmers' Loan A T.
Co. 116 U. S. 307, 29 L. ed. 636, 6 Sup. Ct
Rep. 334, 388, 1191; Re Tie Loy, 26 Fed.
611; Toney v. State, 141 Ala. 120, 67 L.R.A.
286, 109 Am. St Rep. 23, 37 So. 332, 8
Ann. Cas. 319; Webber v. Virginia, 103 U.
S. 344, 26 L. ed. 565'; Welton' v. Missouri.
91 U. S. 275, 23 L. ed. 347.
A statute declaring the exercise of a con-
stitutionally guaranteed right to be a
crime is unconstitutionaL
Bailey v. Alabama, 219 U. S. 219, 55 L.
ed. 191, 31 Sup. Ct Rep. 145, 161 Ala. 75,
49 So. 886; State v. Armstead, 103 Miss.
790, 60 So. 778, Ann. Cas. 1915B, 495;
State V. Julow, 129 Mo. 163, 29 LJLA. 257,
50 Am. St Rep. 443, 31 S. W. 781.
Due process of law is denied by this
statute.
Dartmouth College t. Woodward, 4
Wheat 518, 4 L. ed. 629; Davis v. Florida
Power Co. 64 Fla. 246, 60 So. 759, Ann.
Cas. 1914B, 965, 5 N. C. C. A. 926; Taylor v.
Porter, 4 Hill, 140, 40 Am. Dec 274; Story»
Const 4th ed. §§ 1943 et seq.
I^abor is property, and as such is enti-
tled to the protection of the 14th Amend-
ment
Re Marshall, 102 Fed. 324; O^ara ▼.
Stack, 90 Pa. 491 ; Gillespie v. People, 188
III. 176, 52 L.R.A. 283, 80 Am. St Rep.
176, 58 N. £. 1009; Slaughter-House Cases,
16 Wall. 69, 21 L. ed. 406; Ex parte Stein-
man, 95 Pa. 220, 40 Am. Rep. 637.
Statutes forcing an attorney to represent
the state, or persons designated by it, with-
240 U. 8.
tUM. BUTLER r. FEBBY. SSB, UO
Mt nmuawtion, «oiiitltut« deprlTfttloa of i tiit age of tortr-llTe jet^n, retlding In uid
frojfttij vlthout <lu« proMU of l&w. nunty for thirtj days or more continuoua-
BlTtha T. State, 4 Ind. SSS; Clay County ly next prior to the dat« of makiiiK of the
t. HeOregoT, 171 Ind. 034, 87 N. B. 1, 17 liat by the board of oounty oommiaaionera,
Ann. Caa. 333; Dane County v. Smith, IS or the date of the aummani or notice te
Wia. eU, 60 An. Dec. 754; Howard County work, sltall be subject, liable and required
T. Pollard, 163 Ind. 371, SS N. B. 87; Webb to work on. the roada and bridge* of the
*. Baird, S Ind. 13. teveral counties for aix daya of not leaa
Private proper^ can be constitutionaUy than ten hours each in earh year when lunt-
teken for road du^ only under the right of moned ao te do, aa herein provided; tliat
enuDent domain, or upon the payment of auch pereona ao lubject to road duty may
jnat eompenaatloD. perform auch aervicea by an able-bodied
People ex laL Manhattan SaT. Inat. t. substitute over the age of eighteen yoara, or
Otia, 90 N. T. 48; Poaay Twp, t. Benour, in lieu thereof may pay to the road overaeer
4S Ind. App. 680, 88 N. E. 440; Punpelly on or before the day he ia called upon to
V. Green Bay ft M. Canal Co. IS Wall. 166, render such Hrvica the aum of t3, and aueh
10 L. ad. 6ST; Toone *. Stete, 178 AU. 70, overaeer shall turn into the county treaa-
42 LJLA.(M.S.) 1046, 69 So. 605. ury of bie county any and all moneya ao
w _- •. .^ ... n 1 P*'^ to ''""» **>* same to be placed to the
». Thorn., r. w™, Atlor™, Ora.r.l ^^^^ „^„ „, ^, „^ „j bridg. f™d
I It ■"''"'"*^ "■ """ ''" ''•'»''■ "d •uliKt to th. Older o( th. liord ol
"m. f^'i' 1 . J . J . ._ eounty commiMioner, tot ro.d .nd bridge
n»« (UtuU compl.liied of doe. not im- _„j_(j^g.
J«. m,oloot.ry „r.ltud. opoo tb. pl.i.. "^ ^^ '^^ ' „ ^.
tin ..mo, bot.. . P"o..b«™t lor „,«.. ,f„,„',ir.ho .k.ll 1.11 to work
Ro I>...l.r 3» K.. 671 12 P«. 130; ^ ' „, j „, ^ ^ ^^ , ^^
SUt, B r.l. Ojrl,. , TopA^ 3« X... 76, J ^ to do ». or .0 pro.id. . .ubitl-
P; ' ^ ,,j,j .J or reluM to m.ke payment tor tbe ..me,
Tb. eUtut. eompUlned of doe. »ol de- ., i,„|„i,,„„ p,o!rtd»l, .b.ll be guilt,
pti,e tb. pU.ot.ir 1. error of b.e l.bert, or „, , „i,j,„„„„, ,„j „p„„ eoovletloo .h.ll
propert, wilboot doe proceM of Uw |^ ,^ , ^ „„ „ |o,p,i„o,j
n the county jail tor not longer than thirty
days."
Galloway v. Tavares, 37 Fla. 68, 19 So.
170; Haahburn v. Stete, 65 Fta. 470, 62 So.
MS; 8Uto V. Wheeler, 141 N. C. 773. S ""J.ui„tiff m error waa convicted In the
L.B^.(N.S.) 1139, 115 Am. St. Rep. 700, „„^„t j^j ,, ^^^ Columbia county, up-
S3 8. E. 368; Short ». Stete, 80 Md. SBZ, ^ ^'^lar^ of failing te work on a ro.d^
a L.R.A. 404, 31 AtL 322; Toone v. Stete. „j «nteneed to jail for thirty days. The
178 AJa. 70. 42 L.R.A.(NB.) 1045. 59 So. ^^.^^ ^^^^ ^„t^ ^ „i{ J habeaa
866; Stete T. McCnllu. 28 R. I. 165, g y,^ „„ heard, remanded te the cus-
La.A.(N.S.) 635, 60 Atl. 301, 13 Ann. Caa. f^^^ „( the sheriff, and then releaaed under
701; Stete V. McMahon. 78 Conn. 97. 66 t^^^ The aupreme court of the atete af-
-AtL 691; Smith v. Elberton. S Ga. App. armeA the action of the circuit court {67
Sit, 63 8. E. 48; l^edy v. Bourbon. 12 Ind. yU. 406. 06 So. 150), and the causa la here
-Ak>. 486, 40 N. E. 640; Dennia y. Simon, u„n «,jit of error
■^l Ohio St. 233, 36 N. E. 832; Stete v. ^ j, i„gi,tgd that §§ 10 and )2, aupra,
I^aybum, 2 Okla. Crim. Rep. 413. 22 L.HJ. „a i^^^n^ becauae they undertake to Im-
<H.S.) 1067, 101 Pao. 1029. Ann. Caa. j^^ i„voluntery aervitude not aa a pun-
-291SA. 733. iahment for crime, contrary to the 13th
He polioe power of the atete U one of Amendment te the Federal Conatitntioa ;
^tk< moat eaaential powera of the govern- and alao because their enforcement would
^^aent and one of the leaat Umiteblei and deprive plaintiff of his liberty and property
-the imperative necessity for ite eziatenoa without due prooeaa of Uw. in violation of
:3)reeludea any limiUtion upon it when not the 14th Amendment.
arbitrarily exerciaed. In view of ancient usage and the unanim-
Hadacheck v. Sebaatiau, 230 U. 8. 304, jty of judicial opinion, it must be teken aa
«Bte, 348, 36 Sup. Ct. Rep. 143. aettled tliat, unteas restrained by some con-
stitutional limitation, a stete haa inherent
Mr. Juatlce Hcltoynolda delivered the power to require every able-bodied man
pinion of the court: within lU jurisdiction to labor for a rea-
Chaptet 8637, Lawa of Florida (Aete of sonable time on public roads near hia real-
1913, pp. 469, 474, 476), provldee: dence without direct eoropenaatlon. Thla
"See. 10. Every able-bodied male peraon ia a part of the duty whieh h« owea to the
over tha age of tweu^-one yeara, and under puhlio. The law of England ia thus da-
<• Ii. ad. 43 Vl%
S80-33S
SUPREME COURT OF THE UNITED STATES.
Oct. Tkrm^
dared in Blackttone's Commentaries, bk.
1, page 367:
"Every parish is bound of common right
to keep the [331] highroads that go
through it in good and sufficient repair;
unless by reason of the tenure of lands,
or otherwise, this care is consigned to some
particular private person. From this bur-
then no man was exempt by our ancient
laws, whatever other inununities he might
enjoy: this being part of the trinoda neoe*"
9ita9, to which every man's estate was
subject; vie, ewpeditio contra ho»tem, ttroi-
um oonBtruciio, et poniium reparatio. For,
though the reparation of bridges only is ex-
pressed, yet that of roads also must be un-
derstood; as in the Roman law, with re-
spect to the construction and repairing of
ways and bridges no class of men of what-
ever rank or dignity should be exempted."
The trinoda necesiitaa was an obligation
falling on all freemen, or at least on all
free householders. VinogradofT, English
Society in the Eleventh Century, p. 82.
From Colonial days to the present time
conscripted labor has been much relied on
for the construction and maintenance of
roads. The system was introduced from
England, and, while it has produced no
Appian Way, appropriateness to the cir-
cumstances existing in rural communities
gave it general favor. Elliott, Roads &
Streets, §§ 479, 480; Dill. Mun. Corp. 5th
ed. f 1407, p. 2459, note; Cooley, Const.
Lim. 7th ed. p. 736; Re Dassler, 35 Kan.
678, 12 Pac. 130; State v. Wheeler, 141
N. C. 773, 116 Am. St. Rep. 700, 53 S. E.
368, 6 L.R.A.(N.S.) 1139, note; Den-
nis V. Simon, 61 Ohio St. 233, 36 N. E. 832;
State V. Raybum, 2 Okla. Crim. Rep. 413,
22 L.R.A.(N.S.) 1067, 101 Pac. 1029, Ann.
Cas. 191 2 A, 733; Sawyer v. Alton, 4 111.
127; State v. Halifax, 15 N. C. (4 Dev. L.)
345. In 1889 the statutes of twenty-seven
states provided for such labor on public
roads. Young's Recent Road Legislation.
The ordinance of 1787 for the govern-
ment of the Northwest Territory declares:
There shall be neither slavery nor invol-
untary servitude in the said territory,
otherwise than in punishment of crimes,
whereof the party shall have been duly con-
victed." [1 Stat, at L. 53, note.]
[332] In 1792 the territorial legislative
body passed an act providing: "That every
male inhabitant of sixteen years of age and
upwards on being duly warned to work on
the highways by the supervisor in the town-
ship to which such inhabitant may belong
shall repair to the place and at the time by
the said supervisor appointed with such
utensils and tools as may be ordered him
wherewith he is to labour and there abide
and obey the direction of such supervisor
•74
during the day in opening and repairing th»
highway." (Sec. 6, chapter IV., Laws passed
from July to December, 1792, Laws of the
Territory Northwest of the Ohio, 1788-
1798.) An act of the general assembly of
the territory passed in 1790, declared:
"That all male persons of the age of twen-
ty-one years, and not exceeding fifty, wha
have resided thirty days in any township
of any county within this territory, wha
are not a township charge, shall over and
above the rate of assessment hereinafter
mentioned, be liable, yearly and every year,
to do and perform two days' work on the
public roads, under the direction of the
supervisor within whose limits they shall
be respectively residents." (Sec. 10, chap-
ter 28 of Northwest Territory Acts 1799.)
By their several Constitutions the states
within the limits of the Northwest Terri-
tory prohibited involuntary servitude sub-
stantially in the language of the 1787 ordi-
nance, and with the possible exception of
Wisconsin, all of them early enacted and
long enforced laws requiring labor upon
public roads.
Utilizing the language of the ordinance
of 1787, the 13th Amendment declares that
neither slavery nor involuntary servitude
shall exist. This Amendment was adopted
with reference to conditions existing since
the foundation of our government, and the
term "involuntary servitude" was intended
to cover those forms of compulsory labor
akin to African slavery which, in practical
operation, would tend to produce like unde-
sirable results. [333] It introduced no
novel doctrine with respect of services al-
ways treated as exceptional, and certainly
was not intended to interdict enforcement of
those duties which individuals owe to the
state, such as services in the army, militia,
on the jury, etc. The great purpose in view
was liberty under the protection of effective
government, not the destruction of the latter
by depriving it of essential powers.
SlaughterHouse Cases, 16 Wall. 36, 69, 71^
72, 21 L. ed. 394, 406, 407 ; Plessy v. Fergu-
son, 163 U. S. 537, 542, 41 L. ed. 256. 257,
10 Sup. Ct. Rep. 1138; Robertson v. Bald-
win, 165 U. S. 275, 282, 41 L. ed. 715, 717,
17 Sup. Ct. Rep. 326; Clyatt v. United
States, 197 U. S. 207, 49 L. ed. 726, 26 Sup.
Ct. Rep. 429; Bailey v. Alabama, 210 U. S,
219, 55 L. ed. 191, 31 Sup. Ct. Rep. 145.
There is no merit in the claim that a
man's labor is property, the taking of which
without compensation by the state for
building and maintenance of public roads
violates the due process clause of the 14th
Amendment. That Amendment was intend-
ed to preserve and protect fundamental
rights long recognised under the common-
law system. Slaughtar-House Oases, fu-
240 IT. 8.
191^
PHILADELPHIA & R. IL CO. ▼. UNITED STATES.
833, 334
pra; Jaeobson ▼. Mastachusetts, 107 U. S.
11, 40 L. ed. 643, 26 Sup. Ct. Rep. 358, 8
Ann. Ca8. 765; Giozza ▼ Tiernan, 148 U.
8. 657, 662, 37 L. ed. 500, 13 Sup. Ct. Rep.
721; Hugler t. Kansas, 123 U. S. 623, 663,
81 L. ed. 205, 211, 8 Sup. Ct. Rep. 273;
Barbier ▼. Connolly, 113 U. S. 27, 31, 28 L.
ed. 023, 024, 5 Sup. Ct. Rep. 357; Kelly t.
PitUburgh, 104 U. S. 78, 80, 26 L. ed. 658,
650; Davidson y. New Orleans, 06 U. S.
07, 24 L. ed. 616. Conceding for some pur-
poses labor must be considered as property,
it is evident from what already has been
said that to require work on the public
roads has never been regarded as a depriva-
tion of either liberty or property.
The circumstances of the present cit^ in-
dicate no failure •to observe due process of
law in the exercise of the state's undoubt-
ed power. Ample notice appears to have
been given and disr^arded. There was an
orderly trial and conviction before a duly
constituted tribunal for a plainly defined
statutory offense, followed by a sentence not
alleged to be unreasonable.
We find no error in the judgment of the
court below, and it is affirmed.
[334] PHILADELPHIA ft READING
RAILWAY COMPANY, Appt.,
V.
UNITED STATES OF AMERICA (Inter-
state Commerce Commission, and Allen-
town Portland Cement Company, Inter-
vening Respondents), Appellees.
(See S. C. Reporter's ed. 334-341.)
Carriers « discrimination In rates.
Jersey City is ^ot subjected to any
undue or unreasonable prejudice or disad-
vantage in respect to freight rates on
eement from the Lehigh cement district be-
cause a carrier, while maintaining or partic-
ipating in joint rates for cement to eastern
destinations, such as Baltimore, Philadel-
phia, New York, and New England points,
whidi are not higher from Evansville, Penh-
sylvania, than the contemporaneous rates
which it maintains or participates in from
other cement mills in the Lehigh district,
refuses contemporaneously to participate in
the same relative adiustment on the cement
traflic from Evansville to Jersev City for
load consumption, where the /ersey City
rate is intrinsically reasonable and nondis-
criminatory in relation to rates accorded
other consuming points.
[For other cases, see Carriers, III. % in Digest
8np. Ct. 1908.]
[No. 440.]
Argued and anbmitted October 18 and 10,
1915. Deoided Febmary 28, 1910b
•• Ii. ed.
APPEAL from the District Court of the
United States for the Eastern District
of Pennsylvania to review a decree which
dismissed the bill by which a carrier sought
to secure the annulment of an order of the
Interstate Commerce Commission command-
ing it and other carriers to desist from sub*
jecting Jersey City to undue prejudice and
disadvantage in respect of rates on cement.
Reversed and remanded for further proceed*
ings.
See same case below, 219 Fed. 988.
The facts are stated in the opinion.
Mr. Henry 8. Drinker, Jr., argued the
cause, and, with Messrs. William L. Kinter,
Charl^ Heebner, and Abraham M. Beitler,
filed a brief for appellant:
When a carrier, in fixing its rates, baa
given proper consideration to circumstances
within its control, it is not obliged to alter
its otherwise reasonable rates by reason of
circumstances beyond its power to regulate.
East Tennessee, V. & G. R. Co. v. Inter-
state Commerce Commission, 181 U. 8. 1,
18, 46 L. ed. 719, 725, 21 Sup. Ct. Rep. 516.
An order of the Commission is unlawful
which is predicated on a charge of discrim-
ination by locality against a railroad which
does not serve both the locality alleged to
be preferred and that alleged to be preju-
diced by the regulation complained of.
St. Louis, I. M. ds S. R. 0>. v. United
States, 217 Fed. 80.
The exaction of inland rates on shipments
for transshipment by water lower than the
local rates for domestic consumption has so
frequently been sustained by this court as
to require but little comment.
Texas & P. R. Co. v. Interstate Commerce
Ckimmission, 162 U. S. 107, 40 L. ed. 940, 5
Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666.
Assistant Attorney General Underwood
submitted the cause for the United States.
Mr. Blackburn Esterline was on the brief:
The practice complained of subjected
Jersey City to undue and unreasonable
prejudice and disadvantage.
Houston, E. A W. T. R. 0>. v. United
States, 234 U. S. 342, 356, 58 L. ed. 1341,
1350, 34 Sup. Ct. Rep. 833; Southern R. Co.
V. United States, 204 Fed. 465; IntersUte
0>mmerce Commission v. Louisville A N. R.
Co. 118 Fed. 613; Texas k P. R. Co. v.
Interstate Commerce Commission, 162 U. S.
197, 220, 40 L. ed. 940, 947, 5 Inters. Com
Rep. 405, 16 Sup. Ct. Rep. 660.
What is undue or unreasonable prefer-
ence or advantage is a question not of law,
but of fact.
Pennsylvania Co. t. United States, 236
U. 8. 851, 361, 59 L. ed. 616, 623, P.U.R.
1915B, 261, 85 Sup. Ct. Rep. 370; Texas k
P. R. Co. ▼. Interstate Commerce Commis-
675
SUPREME CX)URT OF THE UNITED STATES.
Oct. TteM,
flion, 162 U. 8. 197, 219, 40 L. ed. 940, 947,
6 Inters. Com. Rep. 406, 16 Sup. Ct. Rep.
666; Interstate Commerce Commission ▼.
Alabama Midland R. Co. 168 U. S. 144, 170,
42 L. ed. 414, 424, 18 Sup. Ct. Rep. 45.
The determination of this question of
fact is for the Commission, and its findings
are conclusiye.
Interstate Commerce Commission t. Illi*
nols C. R. Co. 215 U. S. 462, 64 L. ed. 280,
80 Sup. Ct. Rep. 156; Interstate Commerce
Commission ▼. Delaware, L. A W. R. Co.
220 U. S. 235, 56 L. ed. 448, 31 Sup. Ct:
Rep. 892; Interstate Commerce Commission
V. LouisvUle A N. R. Co. 227 U. S. 88, 57
L. ed. 431, 33 Sup. Ct. Rep. 185; East
Tennessee, V. A 6. R. Co. t. Interstate Com-
merce Ccmunission, 181 U. S. 1, 23-29, 45
L. ed. 719, 727-729, 21 Sup. Ct. Rep. 616;
United SUtes t. Louisville A N. R. Co. 236
U. a 314, 320, 59 L. ed. 245, 260, 35 Sup.
Ct Rep. 113.
This case haying been submitted on bill
and answer, the preferences and discrimina-
tion alleged in the answer of the Commis-
sion must be taken as true.
Interstate Commerce Commission t. Illi-
nois C. R. Co. 215 U. S. 462, 475, 64 L. ed.
280, 289, 30 Sup. Ct. Rep. 165; Interstate
Commerce Commission ▼. Chicago ft A. R.
Co. 216 U. S. 479, 64 L. ed. 291, 30 Sup. Ct.
Rep. 163; Interstate Commerce Commission
T. Chicago, R. I. k P. R. Co. 218 U. S. 88,
64 L. ed. 946, 30 Sup. Ct Rep. 651.
Appellant having voluntarily, in its traffic
agreements with the other carriers, estab-
lished the same relative rates from all
points in the Lehigh district to consuming
points other than Jersey City, cannot, if
conditions are the same, arbitrarily decline
to make the same arrangement with respect
to Jersey City.
Darling v. Baltimore A O. R. Co. 15
Inters. Com. Rep. 87; Spokane v. Northern
P. R. Co. 21 Inters. Com. Rep. 424.
There is nothing in the record to show
the absence of substantial evidence sup-
porting the findings of fact, so they are con-
clusively correct in case of judicial review.
United States v. Louisville k N. R. Co.
235 U. S. 314, 320, 59 L. ed. 246, 250, 35
Sup. Ct Rep. 113.
Mr. Oharlea W. Needham argued the
eause, and, with Mr. Joseph W. Folk, filed
a brief for the Interstate Commerce Com-
mission:
So long as the parties affected appear
and are fully heard, the power of the Com-
mission extends to the granting of such
relief as the facts disclosed may warrant,
even though such facts may be presented by
evidenos technically outside the issues.
•7«
New York C. k H. R. R. Co. v. Interstate
Commerce Commission, 168 Fed. 188.
The powers of the Commission are quasi
judicial as well as administrative, and in
making its orders it must have in view the
general provisions of the act to regulate
commerce and the prevention of any evil
which that act declares unlawful. The out-
look of the Commission must be as compre-
hensive as the interest of the whole country.
Interstate Commerce Conmiissioh v. Chi-
cago, R. L A P. R. Co. 218 U. S. 88, 103, 54
L. ed. 946, 955, 30 Sup. Ct. Rep. 651.
In the removal of discrimination the
Commission must consider not only the wd-
fare of the locality where the traffic orig-
inates; the welfare of the locality of des-
tination is also, under the terms and spirit
of the act, to be considered.
Texas k P. R. Co. v. Interstate Commerce
Commission, 162 U. S. 197, 220, 40 L. ed.
940, 947, 6 Inters. Com. Rep. 405, 16 Sup.
St. Rep. 666.
In view of the facts found by the Com-
mission as to preferences and discrimina-
tions, which must be taken as true, as the
cause was submitted on bill and answer,
it is beyond controversy that the subject
with which the order dealt was within the
sweeping provisions of § 3 of the act to
regulate commerce, prohibiting prefenmces
and discriminations.
Interstate Commerce Commission v. Illi-
nois C. R. Co. 216 U. S. 452, 476, 477, 64 L.
ed. 280, 289, 290, 30 Sup. Ct. Rep. 155.
The determination of what is undue or
unreasonable prejudice or disadvantage re-
quires the exercise of judgment and discre-
tion on the part of the administrative, rate-
r^^lating body.
Pennsylvania R. Co. v. International Coal
Min. Co. 230 U. S. 18*4, 196, 67 L. ed. 1446,
1451, 33 Sup. Ct. Rep. 893, Ann. Cas. 1915A,
315.
It is the duty of the Commission, under
the statute, and not of the courts, to pass
upon administrative questions involving the
reasonableness or unreasonableness of rates,
regulations, or practices.
Mitchell Coal k Coke Co. v. Penn^lvania
R. Co. 230 U. S. 247, 266, 267, 57 L. ed.
1472, 1476, 1476, 38 Sup. Ct Rep. 916. See
also Houston, E. ds W. T. R. Co. t. United
SUtes, 234 U. S. 342, 349, 869, 68 L. ed.
1341, 1346, 1361, 34 Sup. Ct Rep. 883.
The concurrence of a carrier in a lawfuUy
publiihed rate subjeets that oarrier to the
terms of the act as clearly as if it had itself
actually filed the tariff in questton.
United States v. New York C. 4 H. R. R.
Co. 218 U. S. 609, 616, 68 L.ed. 629, 681, 29
Sup. Ct Rep. 818.
140 V. ••
191&
PHILADELPHIA k R. R. CO. y. UNITED STATES.
886-838
Mr. William A. Glasgow, Jr., argued
the eaufle, and, with Messrs. George W.
Aubrey and Chester N. Farr, Jr., filed a
brief for the Allentown Portland Cement
Compaiiy.
Mr. Justice McReynolds delivered the
(pinion of the court:
This appeal brings up a final decree of
the United States district court, eastern
district of Pennsylvania, which dismissed
the railway's original bill presented to se-
cure annulment of an order by the Inter-
state Commerce Commission commanding
it and other carriers to desist from subject-
ing Jersey City to imdue prejudice and dis-
advantage in respect of rates on Portland
cement from the ''Lehigh district" in Penn-
sylvania. 219 Fed. 988.
Appellant maintains that when consid-
ered in connection with its report, the Com-
mission's order is plainly erroneous as
matter of law because wholly unsupported
by the ascertained facts. Interstate Com-
merce Commission v. Louisville & N. R. Co.
227 U. S. 88, 91, 57 L. ed. 431, 433, 33 Sup.
Ct Rep. 185; Florida East Coast R. Co. v.
United States, 234 U. S. 167, 185, 58 L. ed.
1267, 1271, 84 Sup. Ct. Rep. 867.
In November, 1912, the Allentown Port-
land Cement Company filed a petition be-
fore the Interstate Commerce Commission
against the Philadelphia & Reading Rail-
way Coinpany, Central Railroad Company
^f New Jersey, Delaware, Lackawanna, k
Western Railroad Company, Erie Railroad
Company, and Pennsylvania Railroad Com-
jMuiy, wherein it alleged the Philadelphia
^ Reading operates the only line reaching
its plant at Evansville, Pennsylvania, and
:in connection with other defendants trans-
:S>orts cement therefrom to many points, in-
^shiding Jersey City; [337] that the pub-
lished rate of $1.35 per ton charged and col-
lected for transportation to the latter place
^s unlawful and forbidden by §§ 1 and 3 of
^^^e act to regulate commerce. It prayed for
"an order declaring the rates aforesaid to
unjust and unreasonable and that the
ime discriminate against complainant and
^he locality wherein is located its plant or
factory aforesaid, and that the Commission
^Vrill also enter an order fixing the reason-
able and just rates for the transportation of
Portland Cement from its factory or plant
%t Evansville, over the lines of the defend-
ant." After hearing, a report and order
Were made by the Commission ; upon rehear-
ing the original findings were approved in
an additional report, and a supplemental
order, not substantially different from the
lirst one, was passed. The material por-
tions of these reports follow:
"The case involves the question of the
•0 Ii. ed.
reasonableness and justness of defendantif
rate for the transportation of cement in
car loads from Evansville, Pennsylvania, to
Jersey City, New Jersey. Evansville is
reached only by the Philadelphia & Reading
Railway. That carrier transports the ce-
ment in question from Evansville to Allen-
town, where.it delivers it to one of numer-
ous connections which either transports it
to Jersey City or in turn delivers it to
other carriers for final delivery at Jersey
City. The rate via these various routes
is $1.35. Certain of the carriers which re-
ceive this Evansville cement from the Phila-
delphia k Reading at Allentown also serve
other mills in the same general vicinity at
Allentown, namely, the Lehigh district^
either directly or through connections. The
rate from these other mills to Jersey City
is 80 cents. The Philadelphia k Reading
docs not participate in the 80-cent rate from
any mill in the district.'' (31 Inters. Com.
Rep. 277.)
''Evansville is situated in the Lehigh dis-
trict and is one of numerous cement produc-
ing points in that district located within a
radius of perhaps 20 miles of each other.
None of the other mills, however, are reached
by the Philadelphia k [338] Reading, they
being served by the Central Railroad of New
Jersey or Lehigh Valley direct, or by short
lines of railway which connect with those
carriers at distances of from I to 16 miles
from their junction points. While the rate
to Jersey City is thus $1.35 from Evans-
ville on the Philadelphia k Reading, the rate
to Jersey City from these competing mills
on other lines is 80 cents. ... On ship-
ments to Jersey City for trans-shipment by
water to points in the southeast, such as
Charleston and Savannah, the rate is 80
cents from Evansville, the same as it is
from these other mills; and this equality of
Evansville with the other mills is main-
tained on traffic to Philadelphia, Baltimore,
New York city, and New England. In other
words, the rate is the same from Evansville
as from other mills in the Lehigh district to
all points east, except on traffic to Jers^
City for local consumption.
"The 8a-cent rate to Jersey City locally
from the other mills is used in connection
with shipments destined to New York, that
rate plus the trucking charge to all points
South of Ninetieth street totaling less than
the $1.40 rate to New York proper plus the
trucking charge to the same point, the result
being that complainant, who must use the
latter rate, is effectively barred from eom-
petition in that part of the dty located
south of Forty-third street, whidi is the
greatest Cement consuming district. North
of Ninetieth street complainant can com-
pete with the other mills because of their
888-341
SUPREME COURT OF THE UNITED STATES.
Oct. TkBic»
greater expense in the longer truck haul
from Jersey City. It will alto necessarily be
apparent that complainant cannot sell any
cement in Jersey City for local consumption
in competition with these other mills which
have the 80-cent rate."
''It cannot be questioned that complainant
is laboring under a prohibitory disadvan-
tage in marketing its product in Jersey
City under the present rate in competition
with other mills in the same district.
While it is true that the Philadelphia k
Beading does not have any hand in the
[330} establishment of the 80-cent rate
from these other mills, as it cannot partici-
pate in that traffic be«iuse it does not senre
them, it is also true that it is a* party to
tariffs under which cement may be purchased
as cheaply at £vansville as at neighboring
mills in the Lehigh district by dealers in
and consiuners of cement at practically all
points of importance east of that district,
with the single exception of Jersey City.
Why Jersey City should be singled out by
that carrier as the one exception to
this equalization of rates as between com-
peting mills in the same district has not
been satisfactorily shown by this record.
We are therefore of opinion, and find, that
in maintaining or participating in rates on
cement' in carloads to other eastern desti-
nations, such as Baltimore, Philadelphia,
New York, and New England points, which
are not higher from Evansville than the con-
temporaneous rates which it maintains or
participates In from other mills in the
Lehigh district, while refusing contempo-
raneously to participate in the same relative
adjustment from Evansville to Jersey City,
the Philadelphia ft Beading, as well as the |
other carriers defendant, are subjecting
Jersey City and its traffic to an undue prej-
udice and disadvantage, from which an
order will be entered to cease and desist." i
(27 Inters. Com. Bep. 448.)
Purporting to base its action on the fore-
going findings, the Commission directed:
"That the above-named defendants, ac-
cording as their various lines or routes may
run, be, and they are hereby, notified and re-
quired, on or before October 1, 1914, to cease
and desist from said undue and unreason-
able prejudices and disadvantages."
"That said defendants, according as tluir
various lines or routes may run, be, and they
are hereby notified and required to establish
OB or before October 1, 1914, upon statutory
notice to the Interstate Commerce Commis-
sion and to the general public by filing and
posting in the manner [340] prescribed in
I 6 of the act to regulate commerce, and for a
period of two years after said October 1,
1914, to maintain and apply to said trans-
portation rates which will prevent and avoid
67S
the aforesaid undue and unreasonable preju-
dices and disadvantages."
Undue discrimination against itself or the
locality of its plant, as alleged by the ce-
ment company, was not found; the com-
munity declared to be prejudiced by estab*.
lished conditions had offered no complaint
and was not party to the proceedings.
Neither the $1.35 rate to Jersey City nor any
other participated in by the Philadelphia k
Beading was declared unreasonable, either
in itself or in relation to others; and there
was no positive finding touching the reason-
ableness— intrinsic or relative— of the 80-
cent schedule from "Ldiigh district" adopted
by the remaining carriers.
In their brief here, counsel for the Com-
mission say:
"The Commission did not pass upon the
reasonableness of either rate [to Jersey
City— 80 cents or $1.35]. It struck at the
discrimination and the cause of it. It said,
in effect, to these iLYt carriers, that as they
treated the Lehigh cement district as one
point of origin and made a relative odjusi-
meni of raiet on cement to all the principle
consuming points competing with Jersey
City, they must make the same adjustment
of the rates to Jersey City on thift commod-
ity; that they might make the rate any
suin which they might choose to initiate,
but that it must be the same as the rate
from every mill in the district to Jersey
City. ..."
"If, as to all other consuming localities,
they [the carriers] are giving the relative
adjustment of rates on cement from oement
mills in the Lehigh district, and refusing
this adjustment to one consuming locality,
they are prejudicing that locality. . ' . . "
"The establishment of joint rates is pro-
vided for in § 6 of the act to regulate com-
merce. Such rates [341] are nuuie by
agreement between the participating car-
riers and cannot be filed or published with-
out such agreement. . . ."
"The appellant has no individual rate
which covers the cement traffic from Evans-
ville to Jersey City; the traffic moves on a
joint rate. The cement traffic from other
mills to Jersey City and to other principal
consuming points also moves on joint rates.
The Philadelphia k Beading is a party to
many of these rates. It is also a party to
the joint rate from Evansville to Jersey
City. As a participating carrier in these
rates it is responsible for the violation of
the act described in the order."
We must assume the Jersey City rate of
$1.35 is intrinsically reasonable and nondis-
criminatory in relation to thoae aooorded
otiier consuming points; and, plainly, if
this were put in by all carriers, the Commis-
sion's order would be complied with and the
240 U. S.
]015.
RAST ▼. VAN DEMAN k LEWIS 00.
841, 842
-supposed discrlmioatlon disappear. It
muflt be taken aa true that no rate above
what all might lawfully establish is being
demanded by any carrier; and, with one
exception, they are paid 40 per cent less
than that amount. If a universal rate of
41.36 could not justly be complained of by
the locality, certainly it is not discrimi-
nated against or unlawfully prejudiced be-
<ause, failing to agree, most of the carriers
have established an 80-cent schedule. In
the circumstances disclosed it is impossible
rightly to conclude that Jersey City is be-
ing subjected to "any undue or unreason-
able prejudice or disadvantage."
As the facts reported afford no founda-
-tion for the Commission's findings, enforce-
ment of the order based thereon must be
•enjoined. The decree below is accordingly
Teversed and the cause remanded for further
proceedings consistent with this opinion.
Reversed.
4342] JOHN W. RAST, Tax Collector for
Duval County, State of Florida, et al.,
Appts.,
V.
^AN DEMAN k LEWIS COMPANY, The
Harkisheimer Company, J. S. Pinkussohn
Cigar Company.
(See S. C. Reporter's ed. 342-368.)
¥*ederal courts — enjoining state officers
— civil or criminal prcx^eedings.
1. llie threatened enforcement by state
•officers through civil or criminal proceed-
ings, of a state statute which is attacked
I aa repugnant to the Federal Constitution,
may be enjoined by a Federal court, whera
the statute, if exerted against complainants
and their property, will produce irreparable
injury.
(For other cases, see Courts, VI. d, 2; In-
jDDction, I. 1, 1, In Digest Sap. Ct. 1908.]
Constitutional law — equal protection
of the laws « claasiflcation — license
tax.
2. There is such a difference between*
the selling of goods accompanied by coupons,
profit-sharing certificates, or other evidenoea
of indebtedness or liability redeemable in
premiums, and the selling of goods with-
out such inducements to purchasers, that
the imposition upon the former business of
an additional license tax for each place in
each and every county in which said busi-
ness is conducted, as is done by Florida
Laws 1913, chap. 6421, | 35, does not of-
fend against the equal protection of the
laws clause of the Federal Constitution.
[For other cases, see Constitutional Law, lY.
a, 4, in Digest Sup. Ct. 1908.]
Commerce — state licenses — retail
sales — redeemable coupons or oer-
tlflcates.
3. The delivery by a Florida merchant
of coupons, profit-sharing certificates, or
other evidence of indebtedness or liabilitT
redeemable in premiums, in connection with
sales of merchandise at retail, is not inter-
state commerce so as to be protected against
the imposition of a state license tax, al-
though the coupons may have been inserted
in the retail packages by the manufacturer
or shipper outside the state, and are redeem-
able outside the state, either by such manu-
facturer or shipper, or by some other agency
outside the state.
[For other cases, see Commerce, IV. b, 1, In
Digest Sup. Ct 1908.]
Note. — On injunction to restrain prose-
cution of criminal or quasi criminal nature
—see notes to Hall v. Dunn, 25 L.RA.(N.S.)
193; penton v. McDonald, 34 L.RJl.(N.S.)
453; and Alexander v. Elkins, L.RJ1.1916C,
263.
As to when action against officer is
deemed to be action against the state — see
note to Louisville & N. R. Co. v. Burr, 44
L.RJl.(N.S.) 189.
On forbidding use of trading stamps — see
notes to £x parte Drexel, 2 L.RA.(NJ3.)
^8; Denver v. Frueauff, 7 L.RA.(N.S.)
1131; District of Columbia v. Kraft, 30
X.JIJI.(N.S.) 957; and State ex rel. Harti-
^n V. Sperry k H. Co. 49 L.RA.(N.S.)
1123.
As to what constitutes due process of
law, generally — see notes to People v.
O'Brien, 2 L.RJI. 255; Kuntz v. Sumption,
-2 L.RJL 655; Re Gannon, 5 L.Rw^. 359;
Ulman v. Baltimore, 11 L.R.A. 224; Gilman
V. Tucker, 13 L.RJl. 304; Pearson v. Yew-
dall, 24 L. ed. U. S. 436; and Wilson v.
North Carolina, 42 L. ed. U. S. 865.
Aa to the validity of class legislation,
^nerally— see notes to State v. Goodwill, 6
L.RJI. 621, and State v. Loomis, 21 LJLA.
789.
410 Xi. ed.
As to constitutional equality of priv-
ileges, immunities, and protection, gener-
ally—see note to Louisville Safety Vault k
T. Co. V. Louisville & N. R. Co. 14 L.RJk.
579.
Generally, as to what laws are void as
impairing obligation of contracts — see notes
to Franklin County Grammar School v.
Bailey, 10 L.R.A. 405; Bullard v. Northern
P. R. Co. 11 L.Rw^. 246; Henderson v. State
Soldiers k S. Monument Comrs. 13 L.RA.
169; and Fletcher v. Peck, 3 L. ed. U. S.
162.
As to state licenses or taxes, generally,
as afiTecting interstate commerce — see notes
to Rothermel v. Meyerle, 9 L.RA. 366;
American Fertilizing Co. v. Board of Agri-
culture, 11 L.R.A. 179; Gibbons v. Ogden, 6
L. ed. U. S. 23; Brown v. Maryland, 6 L.
ed. U. S. 678; Ratterman v. Western U.
Teleg. Co. 32 L. ed. U. S. 229; Harmon v.
Chicago, 37 L. ed. U. S. 217 ; Cleveland, C.
0. k St. L. R. Co. V. Backus, 38 L. ed. U. S.
1041; Postal Teleg. Cable Co. v. Adams, 39
L. ed. U. S. 311, and Pittsburgh k S. Coal
Co. V. Bates, 39 L. ed. 538.
On excessive penalty as denial of due
process of law — see note to State v. Craw-
ford, 46 LJLA.(N.S.) 1039.
844, 845
6UPREMB COURT OF THE UNITED STATES.
Oci. Tbm,
Internal revenne — tobacco ^redeem-
able coupons — state reculatlon of re-
tall sales.
4. The permission, if any, granted by
the amendment of the act of July 1, 1902
(32 Stat, at L. 715, chap. 1371, Ck>mp. Stat
1918, % 6204), § 2, to U. S. Rev. SUt.
§ 3394, to inclose in packages of tobacco
redeemable coupons, profit-sharing certifi-
cates, etc., does not extend to retoil sales
of such packages within a state so as to in-
validate state restrictions upon such sales.
[For otber cases, see Internal Reyenne, III. i,
in Digest Sup. Ct. 1908.]
Constitntlonal law ^Impairing contract
obligations — regulating retail sales
with redeemable coupons.
5. Contract obligations are not uncon-
stitutionally impaired by the imposition,
under Florida Laws 191^, chap.' 6421, § 35,
of an additional license fee upon merchants
offering with merchandise bargained or sold
coupons, prollt-sharinff certificates, or other
evidences of indebtedness or liability re-
deemable in premiums, since the statute
must be deemed to be prospective in its
operation, and not to affect sales completed
before its enactment.
[For otber cases, see Constitutional Law,
14S0-1474, in Digest Sup. Ct. 1908.]
Constitutional law — due process of law
» freedom of contract — license tax
on sales accompanied by redeemable
coupons.
6. Liberty to contract is not unconsti-
tutionally infringed, contranr to the due
process of law clause of U. B. Const., 14th
Amend., b^ Florida Laws 1913, chap. 6421,
§ 35, making merchants offering with mer-
chandise bargained or sold any coupons,
profit-sharing certificates, or other evidences
of indebtedness or liability redeemable in
premiums, liable to pay an additional li-
cense tax, which may be prohibitive, and, if
the same are to be redeemed bv someone else
than the merchant offering them,. liable to
pay a similar license fee for the one who is
to redeem.
[For other cases, see Constitntioi^l Law, lY.
b, 7, in Digest Sap. Ct. 1908.]
Constitutional law — equal protection
of the laws — excessive penalties.
7. The penalties of $1,000 fine, or six
months' imprisonment, prescribed by Flori-
da Laws 1913, chap. 6421, § 35, for viola-
tions of its provisions against the sale
without payment of the specified license fee,
of merchandise accompanied by coupons,
profit-sharing certificate, or other evidences
of indebtedness, or other liability redeem-
able in premiums, are not so severe as to
intimidate against a contest of the validity
of such statute, and thus deny the equal
protection of the laws.
[For other cases, see Constitutional Law, lY.
a, 7, in Digest Sup. Ct. 1908.]
[No. 41.]
Argaed October 29 and November 1 and 2,
1915. Decided March 6, 1916.
es0
APPEAL from the District Court of ths
United States for the Southern Dis-
trict of Florida to review a decree granting
an interlocutory injunction to restrain the
threatened enforcement of a statute im-
posing a license fee on merchants using ra-
deemable coupons, profit-sharing certificates,
etc. Reversed and remanded, with dirss-
tions to dismiss the bill.
See same case below, 214 Fed. 827.
Statement by Mr. Justice McKenna:
A statute of Florida passed in 1918, im-
posing licenses and other taxes, provides
that merchants, druggists, and storekeepers
shall pay a license tax upon the cash valoe
of the "stock of merchandise" of $3 for the
first $1,000 or fraction thereof, and $1JM>
for each additional $1,000 or fraction there-
of. The tax upon wholesale dealers is $1.50
upon each $1,000. The statute has this
proviso :
"Provided, further. That each and erery
person, firm or corporation, who shall offer
with merchandise bargained or sold in the
course of trade any coupon, profit-sharing
certificate, or other evidence of indebtednem
or liability, redeemable in premiums, shall
pay annually a state license tax of &▼•
nundred ($500) dollars and a county li-
cense tax of two himdred and fifty (|250)
dollars in each and every county in which
said business is conducted or carried on,
and if more than one place of such businem
shall be operated by any person, firm or
corporation, a separate state and county
license shall be taken out for each smh
place; and no person, firm or corporatioB
shall offer with merchandise, bargained or
sold as aforesaid, any coupon, profit-sharing
certificate or other evidence of indebtedness
or liability, redeemable by any other persoot
firm or corporation than the one offering
the same without paying the above licenss
for each other person, firm or corporation
who may redeem the same. The license pre-
scribed in this section shall be in additioa
to other licenses prescribed by this aet
Any [345] person violating any of the pro-
visions of this section, whether acting fat
himself or as the agent of another, shidl oa
conviction thereof be punished by fine Mi
exceeding one thousand ($1,000) dollars or
by imprisonment in the county jail not ss-
ceeding six months.
"Mercantile agencies: Shall pay a lU
tax of one hundred ($100) dollars in
county in which an office is established.
"Merchants using trading stamps, shaL^
pay a license tax of two hundred and fifis
($250) dollars for each place of busiss^
where they use such stamps.
''Merchant tailors shall pay a license tax
240 17. ft
1916.
BAST T. VAN DEMAN & LEWIS 00.
M5-847
of ten ($10) dollars for each place of busi-
>f
nesa.
This suit was instituted by appellees
(Florida merchants) against appellant
Bast as tax collector of Duval county, Flori-
da, and the tax collectors of each county in
the state, the different state's attorneys,
eounty solicitors, and prosecuting attorneys
of the circuits and counties of Florida. The
purpose of the suit was to restrain those
officers from proceeding under the statute
or enforcing it. A preliminary and per-
petual injunction was prayed, and that the
act be declared unconstitutional, illegal, and
Toid.
The bill is very elaborate and we select
from its repetitions and condense the fol-
lowing: It alleges the yarious businesses
in which the complainants are engaged. The
Van Deman & Lewis Company is a Florida
corporation and a wholesale grocer, doing
business as such and selling groceries in
certain counties in the state; Harkisheimer
Company is also a Florida corporation and
is a retail grocer; J. S. Pinkussohn Cigar
Company is a corporation organized under
the laws of South Carolina and is a whole-
sale and retail merchant, buying and selling
cigars and other tobacco products in the
cities of Jacksonville and Pensacola, Flori-
da. With these complainants were joined
others, corporations and individuals, doing
business in Florida.
[346] It is alleged that complainants and
esch of them, in the conduct of their busi-
ness, offer for sale and deal in various and
numerous articles of merchandise manu-
factured and produced in other states than
Florida by . persons and corporations in
those states and shipped into Florida to be
sold therein, and who, for the purpose of
advertising their businesses and increasing
their sales, inclose in the packages in which
the merchandise is put up for market and
sale coupons, slips, certificates, and other
profit-sharing discount or premium tokens.
The articles and the persons and companies
producing them are enumerated.
The manner or method of disposing of
and redeeming and taking up such coupons,
etc., is alleged to be that the same are in-
closed in packages or the wrappers thereof,
or ure a part of the wrappers, the pack-
ages are put into boxes, cases, or other re-
ceptacles or inclosures and shipped by the
manufacturer or producer from his place
of business outside of Florida to the mer-
chants in Florida, generally to a wholesale
merchant or jobber, and are received by
such in Florida and sold to the retail mer-
chants in that state. The retail merchant
sells tliem to his customers. When the lat-
ter have accumulated a sufficient number
of the coupons, etc., to entitle them to re-
•0 L. ed.
ceive a premium or article or payment
therefor according to some list, catalogue,
or* rule promulgated by the manufacturer,
producer, or original shipper, they send such
coupons, etc., to such manufacturer, pro-
ducer, or original shipper, or, in some in-
stances, to a company or agency in some
state other than Florida, where they are re-
deemed or paid, or the articles which the
purchasers have selected are sent to them
in consideration of such coupons, etc., or
for the same and a postage stamp or stamps,
or a small sum of money in addition thereto.
And this in accordance with the contract,
agreement, or sale made to the purchasers
by the manufacturer, shipper, or producer
outside of the [347] state. And it is al-
leged that the transactions so detailed, the
manufacture without the state and ship-
ment to wholesale merchants within the
state, the sale by the latter to retail mer-
chants, and by the latter again to custom-
ers, constitute interstate commerce.
That the form of the coupons, etc., varies,
and when its identity is secured as pre-
scribed it is evidence that each purchaser
of a package has bought a definite part of
some article, to be selected by him or her
from a certain list, the list showing a num-
ber of valuable articles which can be paid
for by a certain number of the tokens and
a two-cent stamp.
In another case there is an accumulation
of the tokens which are to be sent to the
redemption or coupon agency or corpora-
tion and exchanged for a valuable article
of merchandise to be selected by the pur-
chaser from a list or catalogue furnished
him.
Another form of coupons, etc., is where
each of them is good for a certain value;
for instance, one-half cent in presents or
premiums, the coupons being sent from the
state of Florida to another state. There
are also other forms in which the coupons
or tokens are to be redeemed, paid for, or
used in the purchase of other articles of
merchandise or in the accumulation of
premiums or the like. All of the articles
are known and largely used as legitimate
articles of commerce, and the transactions
detailed are interstate commerce.
That divers forms of coupons, etc., in
connection with the sale of merchandise, are
used by the merchants of the state sub-
stantially in similar form mentioned above,
and the payment or redemption is made by
the Florida merchant in Florida, sometimes
by the delivery of some valuable article of
merchandise; sometimes by the payment of
cash or the allowance of credit on account
of purchases in the nature of a discount, or
for or on account of a certain amount hav-
ing been purchased of the merchant by the
348^860
SUPREME OOURT OF THE UNITED STATES.
Got. Teem»
[348] customer. The tpkens are Bometimes
in the form of a cash r^^ter slip or mem-
orandum.
That the methods detailed are a form of
advertising and the use of such coupons,
etc, induces purchasers to trade more large-
ly with and to make more of their pur-
chases from complainants on account of the
additional inducement of such coupons,
etc.; that they increase the businesses of
complainants and their profits, and enable
them to carry and sell stocks of goods cov-
ering the various articles of merchandise,
and are of great importance and value to
complainants in their several businesses;
and if they are prevented from using them,
their businesses will be decreased to the
amount of many thousands of dollars.
That at the time of the passage of the
statute complainants had on hand large
amounts and quantities of goods, and if
they are prevented from selling them in the
manner detailed they will be subjected to
great loss and damage, will be embarrassed
and injured in their businesses, and the
value of their property destroyed or greatly
lessened.
That the transactions and methods give
an additional value to purchasers and they
are substantially benefited thereby. That
there is no element of gambling or chance
in the transactions, and nothing in them or
their methods prejudicial to the public
health, safety, morals, or welfare.
That if there is a cessation of the trans-
actions, purchasers and customers who have
received tokens, but have not accumulated
a sufficient number of them, will be unable
to have the same redeemed or paid, or se-
cure articles therewith, lliat about 500
merchants are similarly affected with com-
plainants.
That certificates or tokens commonly
called trading stamps, and so designated in
the statute, are substantially like some of
the tokens hereinbefore mentioned and
[349] described, and when delivered by re-
tail merchants with the various articles sold
to purchasers, such purchasers are entitled
to purchase or receive various valuable arti-
cles of merchandise, according to a list or
catalogue, upon the presentation of the
stamps to some person or company that has
issued the trading stamps, and that redeems
them according to the provisions of such
list or catalogue.
That under the statute every person,
firm, or corporation offering with merchan-
dise any coupon, profit-sharing certificate,
or- other evidence of indebtedness or lia-
bility redeemable in premiums, is not only
liable to pay the license tax for himself or
itself, but to pay such tax for every other
•82
person, firm, or c<»rporation who may re-
deem any such coupon, etc.
That such taxes are imreaa<mable, enor-
mous, and prohibitive on account of the
number of articles sold, and by reason of
the provision requiring complainants and
each and every other person in like situa-
tion to pay the license tax to the state,
and it is alleged with much circumstance
that, from their number and the number
of the articles' that each sells, each and
every person would be required to pay for
license tax to the state and for one county
or one place of business alone $15,000 per
year, or one half that amount for six
months or less time.
That as a result of the statute, if the
tax be paid for only 100 persons, or persons,
firms, or corporations, it would amount to
$75,000 per annum; if for 1,000 persons,
or persons, firms, or corporations in Florida
for one place of business, it would amount
to $750,000, and so on as to any number
to be paid by and for each and every manu-
facturer, producer, or shipper.
That such coupons, etc., inclosed in pack-
ages of tobacco and so delivered, are au-
thorized and rendered lawful by §.3394 of
the Revised Statutes of the United [350]
States, as amended by § 10 of the act of
July 24, 1897. [30 Stat, at L. 206, chap. 11],
and by § 2 of the act of July 1, 1902 [32
Stat, at L. 715, chap. 1371, Comp. Stat.
1913, § 6204], of the sUtutes of the United
States.
That the provision of § 35 (the provision
quoted above) of the Florida statute and
all provisions and enactments for its en-
forcement are in violation of the Constitu-
tion of the United States in that they vio-
late (1) the commerce clause, (2) the due
process clause of the 14th Amendment, and
(3) the equal protectipn clause of that
Amendment. There are many specifications
of the particulars and it is alleged: (1)
The statute discriminates between mer-
chants in similar lines of business. (2)
Between merchants who advertise in a cer-
tain manner and those who advertise in an-
other manner. (3) The taxes are not upon
the business or occupation of complainants,
but upon the mere incidents of the busi-
ness, and are an unreasonable and illegal in-
terference with the method and manner of
conducting the business. (4) The taxes are
unreasonable, arbitrary, oppressive, dis-
criminatory, and prohibitory for the rea-
sons already detailed, and 'are far in excess
of the amounts of taxes or licenses fixed or
imposed when other methods of advertising
or inducing custom are used, and will pre-
vent complainants from carrying on their
legitimate business. (5) They are not pro-
ductive of revenue, are in excess of tha
240 V. 8.
1915.
RAST ▼. VAN DEMAN & LEWIS 00.
860, 861
profits of tbe buBincsses, and are in fact pro*
hibitory. (6) That the methods employed
bj complainants in no wise affect the public
health, morals, or welfare, and the imposi-
tion of the taxes is in no way a legitimate
or lawful exercise of the police power of
the state. (7) That the fines are so oner-
ous, drastic, excessive, and enormous as to
deter complainants in going on and doing
business as they have heretofore done, and
testing tbe ralidity of the statute in a court
of law.
That by the statute and in § 59 thereof
a Tiolation of its provisions is made a mis-
demeanor, and it is provided [351] in § 35
that, for failure to pay any of the license
taxes, any person, whether acting for him-
self or as agent of another, may be impris-
oned in the county jail, not exceeding six
months.
It is further alleged that the statute im-
pairs the obligations of the contracts en-
tered into between complainants and their
customers, in violation of clause 1, § 10,
article I., of the Constitution of the United
That the officers of the state threaten to
«nforce the statute, and that the staters at-
torneys, county solicitors, and prosecuting
attorneys of the several circuits and coun-
ties of the state are respectively empowered
and authorized to prosecute in the several
courts of the state, and such officers are
threatening to prosecute divers of the com-
plainants, and it is alleged that a multi-
tude of prosecutions will be instituted, with
seizures, sales, and injury to property, if a
temporary restraining order be not grant-
4>d. There is a prayer for such order and
for a perpetual injunction.
A restraining order was issued. The de-
fendants appeared specially and filed mo-
tions to dismiss the suit, and as grounds
thereof denied the allegations and implica-
tions of the bill as to the various grounds
of infringement of the Constitution of the
United States charged against the statute,
and set up that complainants had a com-
plete and adequate remedy at law. That
the bill sought a restraint of the enforce-
ment of a criminal statute of the state, and
to enjoin an alleged threaten^ seizure of
property in the enforcement of the alleged
illegal tax, and the enforcement of the col-
lection of a tax imposed by a statute of the
atate of a general and public nature.
A motion was made for an interlocutory
injunction, hearing upon which was referred
to three judges. Upon the hearing tbe in-
junction was ordered (214 Fed. 827), to re-
view which this appeal has been prosecuted.
40 L. ed.
I Mr. Thomas F. West, Attorney General
of Florida, argued the eause and filed a
brief for appellants:
No ground for equitable interposition is
shown to exist as against the tax collectors.
Florida Packing & Ice Co. v. Carney, 49
Fla. 293, 111 Am. St. Rep. 95, 38 So. 602,
51 Fla. 190, 41 So. 190; H. W. Metcalf Co.
v. Martin, 54 Fla. 531, 127 Am. St. llep.
149, 45 So. 463; Cruickshank v. Bidwell,
176 U. S. 73, 80, 44 L. ed. 377, 380, 20 Sup.
Ct Rep. 280; Cooley, Taxn. 3d ed. pp. 530,
1411, 1412; Shelton v. Piatt, 139 U. S. 591,
85 L. ed. 273, 11 Sup. Ct. Rep. 646; Allen
V. Pullman's Palace Car Co. 139 U. S. 658,
85 L. ed. 803, 11 Sup. Ct. Rep. 682; Pacific
Exp. Co. V. Seibert, 142 U. S. 339, 35 L. ed.
1035, 3 Inters. Com. Rep. 810, 12 Sup. Ct.
Rep. 250; Pittsburgh, C. C. & St. L. R. Co.
V. Board of PuUic Works, 172 U. 8. 32, 48
L. ed. 354, 19 Sup. Ct. Rep. 90; Arkansas
Bldg. & L. Asso. V. Madden, 175 U. 8. 269,
44 L. ed. 159, 20 Sup. Ct. Rep. 119.
A statute may perform the double func-
tion of regulating the business under the
police power, and of producing revenue, if
authorized by the law of the state, and this
is such a statute.
Harrison v. Kersey, 67 Fla. 24, 64 So. 853;
Bradley v. Richmond, 227 U. S. 477, 57 L.
ed. 603, 83 Sup. Ct. Rep. 818; Gundling v
Chicago, 177 U. S. 183, 44 L. ed. 725, 20
Sup. Ct. Rep. 683.
A court of equity has no jurisdiction to
restrain the prosecuting officers named, be-
cause any action taken by them, looking to
the enforcement of the provisions of this
statute, is a criminal proceeding, and to en-
join them is to enjoin the state from pro-
ceeding in its own courts.
Ex parte Nightingale, 12 Fla. 274; Re
Sawyer, 124 U. 8. 200, 211, 31 L. ed. '402,
406, 8 Sup. Ct. Rep. 482; FitU v. McGhee,
172 U. 8. 516, 531, 532, 43 L. ed. 535, 542,
543, 19 Sup. Ct. Rep. 269.
A part of the business conducted by the
appellees being wholly intrastate, the en-
forcement of the statute cannot violate the
commerce clause of the Federal Constitu-
tion.
Singer Sewing Mach. Co. v. Brickell, 233
U. S. 304, 58 L. ed. 974, 84 Sup. Ct. Rep.
498; Browning v. Waycross, 233 U. 8. 16,
58 L. ed. 828, 34 Sup. Ct. Rep. 578; Minne-
sota Rate Cases (Simpson v. Shepard) 230
U. 8. 352, 57 L. ed. 1511, 48 L.R,A.(N.8.)
1151, 33 Sup. Ct. Rep. 729, Ann. Cas.
1916A, 18; Savage v. Jones, 225 U. S. 501,
56 L. ed. 1182, 32 Sup. Ct. Rep. 715; Plum-
ley V. Massachusetts, 155 U. 8. 461, 39 L. ed.
223, 5 Inters. Com. Rep. 590, 15 Sup. Ct.
Rep. 154.
The statute is not in contravention of t^-^
SUPREME OOURT OF THE UNITED STATES.
Oct. Tbbm,
provisions of the 14th Amendment to the
Federal Constitution.
State ▼. Pitney, 79 Wash. 608, 140 Pac.
018, Ann. Cas. 1916A, 209; Lansburgh v.
District of Columbia, 11 App. D. C. 512;
Humes ▼. Ft. Smith, 93 Fed. 857; Wilder ▼.
Quebec, Rap. Jud. Quebec, 25 C. S. 128;
Otis ▼. Parker, 187 U. S. «06, 609, 47 L. ed.
323, 327, 23 Sup. Ct. Rep. 168; Central
Lumber Co. v. South Dakota, 226 U. S. 157,
160, 57 L. ed. 164, 169, 33 Sup. Ct. Rep. 06;
Purity Extract k Tonic Co. v. Lynch, 226
U. S. 192, 204, 205, 57 L. ed. 184, 188, 189,
33 Sup. Ct. Rep. 44.
There is a just basis for the classification
made by this statute.
Lindsley ▼. Natural Carbonic Gas. Co.
220 U. S. 61, 55 L. ed. 369, 31 Sup. Ct. Rep.
337, Ann. Cas. 1912C, 160; State v. Pitney,
79 Wash. 608, 140 Pac. 918, Ann. Cas.
1916A, 209; Lansburgh v. District of Co-
lumbia, 11 App. D. C. 512; Com. ▼. Reinecke
Coal Min. Co. 117 Ky. 885, 79 S. W. 287;
Noble State Bank ▼. Haskell, 219 U. S. 104,
111, 55 L. ed. 112, 116, 32 L.R.A.(N.S.) 1062,
31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487 ;
Freund Pol. Power, § 3; McLean ▼. Arkan-
sas, 211 U. S. 539, 547, 53 L. ed. 315, 319,
29 Sup. Ct. Rep. 206; Bradley t. Richmond,
227 U. S. 477, 57 L. ed. 603, 33 Sup. Ct.
Rep. 318; Ferguson t. McDonald, 66 Fla.
496, 63 So. 915; Afro- American Industrial
& Ben. Asso. ▼. State, 61 Fla. 85, 54 So.
383; Peninsular Industrial Ins. Co. v.
State, 61 Fla. 376, 55 So. 398; Peninsular
Casualty Co. v. State, 68 Fla. 411, 67 So.
165; Pullman Co. v. Knott, 235 U. S. 23, 59
L. ed. 105, 35 Sup. Ct. Rep. 2; Citizens'
Teleph. Co. v. Fuller, 229 U. S. 322, 57 L.
ed. 1206, 33 Sup. Ct Rep. 833; Atchison, T.
k S. F. R. Co. T. Matthews, 174 U. S. 96,
106, 43 L. ed. 909, 913, 19 Sup. Ct. Rep.
609; Quong Wing T. Kirkendall, 223 U. S.
59, 56 L. ed. 350, 32 Sup. Ct. Rep. 192;
Patsone ▼. Pennsylvania, 232 U. S. 138, 58
L. ed. 539, 34 Sup. Ct. Rep. 281 ; Metropolis
Theatre Co. t. Chicago, 228 U. S. 61, 69, 70,
57 L. ed. 730, 733, 734, 33 Sup. Ct. Rep.
441; Atlantic Coast Line R. Co. y. Golds-
boro, 232 U. S. 548, 558, 58 L. ed. 721, 726,
34 Sup. Ct Rep. 364.
Mr. Charles H. Cooper argued the cause
and filed a brief for appellees:
The court below had jurisdiction of the
subject-matter of the bill of complaint, of
the parties, and to grant the relief prayed.
Little V. Tanner, 208 Fed. 605; Ex parte
Young, 209 U. S. 123, 52 L. ed. 714, 13
L.R.A.(N.S.) 932, 28 Sup. Ct. Rep. 441, 14
Ann. Cas. 764 ; Western U. Teleg. Co. ▼. An-
drews, 216 U. S. 165, 167, 54 L. ed. 430, 431,
30 Sup. Ct. Rep. 286; Ludwig v. Western
U. Teleg. Co. 216 U. S. 146, 152, 164, 54
•84
L. ed. 423, 425, 430, 30 Sup. Ct Rep. 280;
Dobbins v. Los Angeles, 195 U. S. 223, 242, 49
L. ed. 169, 177, 25 Sup. Ct Rep. 18; Home
Teleph. k Teleg. Co. v. Los Angeles, 227
U. S. 278, 57 L. ed. 510, 33 Sup. Ct Rep.
312; Harrison v. St Louis k S. F. R. Co.
232 U. S. 318, 58 L. ed. 621, L.R.A.1915F,
1187, 34 Sup. Ct. Rep. 333; Cleveland v.
Cleveland City R. Co. 194 U. S. 517, 48
L. ed. 1102, 24 Sup. Ct Rep. 756 ; Mills v.
Chicago, 127 Fed. 732; Raymond v. Chicago
Union Traction Co. 207 U. S. 20, 37, 38,
52 L. ed. 78, 87, 88, 28 Sup. Ct. Rep. 7, 12
Ann. Cas. 757 ; Glucose Ref. Co. v. Chicago,
138 Fed. 209; Ozark-Bell Teleph. Co. v.
Springfield, 140 Fed. 666; Hewin v. At-
lanta, 121 Ga. 731, 67 L.R.A. 795, 49 S. K
765, 2 Ann. Cas. 296; Bacon v. Rutland R.
Co. 232 U. S. 134, 138, 58 L. ed. 538, 539,
34 Sup. Ct Rep. 283; Ohio River & W. R.
Co. V. Dittey, 232 U. S. 676, 587, 58 L. ed.
738, 743, 34 Sup. Ct. Rep. 372; Fargo v.
Hart, 193 U. S. 490, 503, 48 L. ed. 761, 767,
24 Sup. Ct. Rep. 498; Union P. R. Co. v.
Cheyenne (Union P. R. Co. v. Ryan) 113
U. S. 516, 526, 527, 28 L. ed. 1098, 1102, 5
Sup. Ct. Rep. 601; Raymond v. Chicago
Union Traction Co. 207 U. S. 20, 37, 38, 52
L. ed. 78, 87, 88, 28 Sup. Ct. Rep. 7, 12 Ann.
Cas. 757; Cummings v. Merchants' Nat.
Bank, 101 U. 6. 153, 25 L. ed. 903; Croom
V. Pennington, 59 Fla. 473, 52 So. 957;
Louisvillo k N. R. Co. v. Railroad Comrs.
(Louisville k N. R. Co. v. Burr) 63 Fla.
491, 502, 44 L.R.A.(N.S.) 189, 58 So. 543;
Michigan C. R. Co. v. Powers, 201 U. S.
245, 290, 291, 50 L. ed. 744, 760, 761, 26 Sup.
Ct. Rep. 459; San Francisco Gas k E. Co.
V. San Francisco, 189 Fed. 943; Des Moines
City R. Co. ▼. Des Moines, 151 Fed. 854;
Wilmington City R. Co. v. Taylor, 198 Fed,
159; Kankakee ▼. American Water Supply
Co. 118 C. C. A. 195, 199 Fed. 758; Linton
V. Denham, 6 Fla. 533; Carter v. Bennett,
6 Fla. 214; Godwin v. Phifer, 51 Fla. 441,
41 So. 597; Holt t. Hillman-Sutherland
Co. 56 Fla. 801, 47 So. 934; Carter v. Fort-
ney, 172 Fed. 722.
There is no just or reasonable classifica-
tion upon which these license taxes are
based.
Little Y. Tanner, 208 Fed. 605; Gulf, C.
k S. F. R. Co. v. Ellis, 165 U. S. 150-159,
41 L. ed. 666-669, 17 Sup. Ct. Rep. 255;
Cotting ▼. Kansas City Stock Yards Co.
(Cotting V. Godard) 183 U. S. 79, 103, 104,
112, 113, 46 L. ed. 92, 106, 107, 109, 110,
22 Sup. Ct Rep. 30; Barbier v. Connolly,
113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup.
Ct. Rep. 357; Southern R. Co. v. Greene,
216 U. S. 400, 412, 417, 418, 54 L. ed. 536,
539, 541, 542, 30 Sup. Ct. Rep. 287, 17 Ann.
Cas. 1247; Seaboard Air Line R. Co. v.
Simon, 56 Fla. 545, 20 L.R.A.(N.S.) 126,
240 V. 8.
1916.
RAST ▼. VAN DEMAN & LBWIS 00.
47 So. 1001, 16 Ann. Oat. 1234; Jaekson-
Yille Y. Ledwith, 26 Fla. 165, 9 L.R.A. 69,
23 Am. St. Rep. 658, 7 So. 886.
The allegations of the bill of complaint
as to the character of the business and use
of such coupons, profit-sharing certificates,
etc., and that it contains no element of
gambling, and that there is nothing in con-
nection therewith or in the use of the same
that is prejudicial to public health, safety,
morals, or welfare, and that, in fact, there
is thereby given to purchasers either a dis-
count or an additional value in premiums
or articles, and that the purchasers of such
articles of merchandise are substantially
benefited thereby, are allegations of fact
admitted by the motion to dismiss. '
American School ▼. McAnnulty, 187 U. S.
94, 103, 47 L. ed. 90, 94, 23 Sup. Ot Rep.
33.
The all^ations that these enormous
license taxes which are stated in detail in
the bill of complaint, with detailed state-
ments of facts showing that they are neces-
sarily prohibitory, and followed up by the
positive allegations in the bill, not as mat-
ters of opinion and conclusion, but as ulti-
mate facts, that said license taxes, if en-
forced, will, in fact, preclude and prevent
complainants and all persons in like situa-
tion, using such coupons, profit-sharing cer-
tificates, etc., from doing such business, and
that, in fact, they are prohibitory and will
produce no revenue, and in fact are not
imposed for the purpose of revenue or tax-
ation, are all allegations of fact which are
admitted by the motion to dismiss.
St. Louis T. Knapp, S.' & Oo. 104 U. S.
658, 661, 26 L. ed. 883, 884.
The allegation of the intent or purpose
with or for which a thing was done is an
allegation of fact, not an opinion or con-
clusion. Thus, a mere general allegation
that a certain act was fraudulent may be
merely a matter of opinion or conclusion;
but an allegation that something was done
with the intent to defraud, especially where
connected with other allegations as t6 the
facts, is not a statement of a conclusion or
opinion, but is the statement of a fact
which is admitted by demurrer or motion.
Piatt V. Mead, 9 Fed. 91.
Such pretended classification and such
attempted license taxes on account of using
coupons, certificates, or the like, as made
in this case, are unconstitutional and void.
Ex parte Hutchinson, 137 Fed. 950;
Humes v. Little Rock, 138 Fed. 929; Sperry
k H. Oo. V. Tacoma, 190 Fed. 682; O'Keeffe
V. Somerville, 190 Mass. 110, 11^ Am. St.
Rep. 316, 77 N* E. 457, 5 Ann. Oas. 684;
Opinion of Justices, 207 Mass. 606, 94 N. E.
846; Ex parte Drexel, 147 Oal. 763, 2 L.R.A.
(N.6.) 688, 82 Pao. 429, 3 Ann. Oas. 878;
•• li. ed.
People V. Oillson, 109 N. Y. 889, 4 Am. St.
Rep. 465, 17 N. E. 343; Hewin v. Atlanta,
121 Ga. 731, 67 L.RJL 795, 49 S. B. 765,
2 Ann. Oas. 296; Montgomery t. Kelly, 142
Ala. 652, 110 Am. St Rep. 48, 38 So. 67;
Denver v. Frueauff, 39 Oolo. 20, 7 L.RjL
(NJS.) 1131, 88 Pac. 389, 12 Ann. Oas. 521;
State V. Dalton, 22 R. I. 77, 48 L.R.A. 775,
84 Am. St. Rep. 818, 46 Atl. 284; State
V. Dodge, 76 Vt. 197, 56 Atl. 983, 1 Ann.
Oaa. 47; State ex rel. Simpson v. Sperry ft
H. Oo. 110 Minn. 378, 30 LJl.A.(N.S.) 966,
126 N. W. 120; Young t. Oom. 101 Va. 863,
46 S. B. 827 ; Winston v. Beeson, 135 N. 0.
271, 66 L.R Jl. 167, 47 S. E. 457 ; People ex
rel. Appel t. Zimmerman, 102 App. Div.
103, 92 N. Y. Supp. 497; Ex parte Mc-
Kenna, 126 Oal. 429, 58 Pac. 916; State v.
Ramseyer, 73 N. H. 31, 58 Atl. 958, 6 Ann.
Oaa. 445; State t. Shugart, 138 Ala. 86,
100 Am. St. Rep. 17, 86 So. 28; Long t.
State, 74 Md. 566, 12 L.RJl.*426, 28 Av:.
St. Rep. 268, 22 Atl. 4.
The imposition of the Ifcense taxes is In
no way a legitimate exercise of any police
power of the state.
New Orleans Gaslight Oo. t. Louisiana
Light & H. P. A Mfg. Oo. 115 U. S. 650,
661, 29 L. ed. 616, 620, 6 Sup. Ot Rep. 252 ;
Dobbins v. Los Angeles, 195 U. S. 224, 239,
49 L. ed. 169, 176, 25 Sup. Ot Rep. 18;
Gulf, 0. & S. F. R. Oo. V. Ellis, 165 U. S.
150-169, 41 L. ed. 666-669, 17 Sup. Ot Rep.
256; Ootting t. Kansas Oity Stock Yards
Oo. (Ootting T. Godard) 188 U. S. 79, 103,
104, 112, 113, 46 L. ed. 92, 106, 107, 109,
110, 22 Sup. Ot. Rep. 30; Barbier v. Con-
noUy, 118 U. S. 27, 81, 28 L. ed. 923, 924, 5
Sup. Ot. Rep. 857; Southern R. Oo. t.
Greene, 216 U. S. 400, 412, 417, 418, 54 L.
ed. 536, 639, 641, 642, 30 Sup. Ot. Rep. 287,
17 Ann. Oas. 1247.
The Florida statute violates the com-
merce clause of the Oonstitution of the
United States.
Lottery Oase (Ohampion t. Ames) 188
U. S. 821, 351, 354, 47 L. ed. 492, 499, 600,
23 Sup. Ot. Rep. 321, 13 Am. Orim. Rep.
661 ; Dozier v. Alabama, 218 U. S. 124, 127,
128, 54 L. ed. 966, 966, 967, 28 L.R.A.(N.S.)
264, 30 Sup. Ot. Rep. 649; Orenshaw v.
Aricansas, 227 U. S. 389, 67 L. ed. 665, 88
Sup. Ot Rep. 294; Stewart v. Michigan,
232 U. S. 666, 58 L. ed. 786, 34 Sup. Ot.
Rep. 476; Oaldwell t. North Oarolina, 187
U. S. 622, 631, 632, 633, 47 L. ed. 836, 341,
23 Sup. Ot. Rep. 229; Lyng t. Michigan,
136 U. S. 161, 34 L. ed. 150, 3 Inters. Oom.
Rep. 143, 10 Sup. Ot. Rep. 725; Orutcher t.
Kentucky, 141 U. S. 47, 36 L. ed. 649, 11
Sup. Ot Rep. 851; Brown v. Maryland, 12
Wheat 444, 6 L. ed. 687.
The equal protection of the laws, which,
by the 14th Amendment, no state can denv
355, 356
SUPREME OOURT OF THE UNITED STATES.
OoT. Teem»
to the individual, forbids legislation, in
whatever form it may be enacted, by which
the property of one individual is, without
compensation, wrested from him for the
benefit of another, or of the public.
Reagan v. Farmers' Loan & T. Co. 164 U.
S. 390, 38 L. ed. 1024, 4 Inters. Com. Rep.
560, 14 Sup. Ct. Rep. 1047.
One man cannot be required to pay taxes
for another, nor can his property be levied
on or sold to enforce collection of taxes for
another.
Brown v. Snell, 6 Fla. 741.
Fines so great and imprisonment so
severe are fixed for nonpayment of such
license taxes as to intimidate complainants
from continuing to do business and testing
the validity of such statute in a court of
law, and therefore the provisions of the
statute are unconstitutional.
Ex parte Young, 209 U. S. 123, 148, 52
L. ed. 714, 7^4, 13 L.R.A.(N.S.) 932, 28
Sup. Ct. Rep. 441, 14 Ann. Cas. 764; Con-
solidated Gas Co. V. New York, 157 Fed.
851.
The provisions of the statute amount to
confiscation of the goods complainants have
on hand with inserts of coupons, certificates,
or the like.
People ex rel. McPike v. Van De Carr,
178 N. Y. 425, 66 LJELA. 189, 102 Am. St.
Rep. 516, 70 N. E. 965; People ex rel. Ap-
pel V. Zimmerman, 102 App. Div. 103, 92
N. Y. Supp. 497.
Such license taxes, upon the face thereof,
are so exorbitant, onerous, and unreason-
able, as to be manifestly prohibitory and
void.
Postal Teleg. Cable Co. v. Taylor, 192 U.
S. 64, 48 L. ed. 342, 24 Sup. Ct. Rep. 208 ;
Humes v. Little Rock, 138 Fed. 929; Ex
parte Hutchinson, 137 Fed. 949, 950.
The provisions of the statute are contrary
to the provisions of the Constitution of the
United States against impairing the obliga-
tion of contracts.
Humes v. Little Rock, 138 Fed. 929; Ex
parte Drexel, 147 Cal. 763, 2 L.R.A.(N.S.)
588, 82 Pac. 429, 3 Ann. Cas. 878; Collins
V. New Hampshire, 171 U. S. 30, 33, 43 L.
ed. 60, 61, 18 Sup. Ct. Rep. 768.
In its virtual prohibition of tobacco-
insert coupons, certificates, or the like, the
Florida statute is contrary to the statutes
of the United States which authorize such
insertions.
McDermott v. Wisconsin, 228 U. S. 115,
57 L. ed. 754, 47 L.RJl.(N.S.) 984, 33 Sup.
Ct Rep. 431, Ann. Cas. 1915A, 39; Bettman
V. Warwick, 47 C. C. A. 186, 108 Fed. 50;
M'Culloch V. Maryland, 4 Wheat. 436, 4 L.
ed. 608.
•86
Mr. Justice McKenna, after stating the
case as above, delivered the opinion of the
court :
It was determined that the bill set forth
grounds of equitable relief; that the con-
dition of complainants' businesses and of
the property engaged in them was such that
the statute, if exerted against complainants
and their property, would produce irrepar-
able injury, citing Ex parte Young, 209 U.
S. 123, 52 L. ed. 714, 13 L.RJl.(N.S.) 932,
28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764;
Dobbins v. Los Angeles, 195 U. S. 223, 49
L. ed. 169, 25 Sup. Ct. Rep. 18; Davis &
F. Mfg. Co. V. Los Angeles, 189 U. S. 207,
47 L. ed. 778, 23 Sup. Ct. Rep. 498. We
concur in this view.
Passing on the constitutional questions in-
volved, the [356] court was of opinion that
the statute violated the 14th ijnendment,
and considered it unnecessary to decide
whether there was an interference with in-
terstate conunerce.
It is not entirely clear upon what clause
of the 14th Amendment the court rested its
judgment. The equality clause was selected
for special comment. After stating the limi-
tation upon legislation and the power of
classification, the court proceeds to say:
"Is there a just basis for the classification
attempted in this section [§ 35] of the act?
Merchants, etc., all pay a tax according to
the value of the stock carried by each, but
if they sell goods for which coupons, etc.,
are given by themselves or others, then they
must pay this additional tax for each place
of business in each and every county in
which said business is conducted or carried
on. And if goods are offered for sale with
which coupons are given, redeemable by
persons other than the seller, then this tax
must be paid by him for each of said lines
of goods.
"We can see no just basis for such classi-
fication. It is an arbitrary selection of one
merchant for the imposition of a 'greater
burden' than that imposed on others in the
same calling and condition." [214 Fed. 833.]
But the court went farther and declared
that "the use of coupons, etc, was an en-
tirely legitimate method of advertising,"
and that such had been the ruling in state
cases which were cited. And excluding the
application of cases adduced by defendants
to sustain the statute as an exercise of the
police power of the state, the court said:
"As before pointed out, this coupon busi-
ness is legitimate, in no way affecting the
health or morals of the community."
Though it is not clear, as we have said,
certainly not explicit in the opinion of the
court, whether it decided the due process
clause as well as the equal protection clause
of the 14th Amendment was violated by the
240 U. 8.
1915.
RAST T. VAN DEMAN k LEWIS 00.
S67-^l^
statute, [357] we may assume that the yio-
lation of both was decided. It may be that
the court thought that even though the use
of coupons was a legitimate method of ad-
vertising, and not affecting the health or
morals of the community, it was neverthe-
less within the power of Uie state to license
if the statute were free from discrimina-
tion, or it may be that the court considered
that the two grounds interlocked and were
dependent upon the same reasoning. How-
ever, the two grounds may be, indeed must
be, taken into consideration, as they are
submitted for decision.
The groimd of discrimination, simply and
separated from the other attacks upon the
statute, does not present much difficulty.
Tlie difference between a business where
coupons are used, even regarding their use
as a means of advertising, and a business
where they are not used, is pronounced.
Complainants are at pains to display it.
The legislation which regards the difference
is not arbitrary within the rulings of the
cases. It is established that a distinction
in legislation is not arbitrary, if any state
of facts reasonably can be conceived that
would sustain it, and the existence of that
state of facts at the time the law was en-
acted must be assumed. Lindsley v. Nat-
ural Carbonic Gas Co. 220 U. S. 61, 78, 55
L. ed. 369, 31 Sup. Ct. Rep. 337, Ann. Cas.
1912C, 160. It makes no difference ihkt the
facts may be disputed or their effect op-
posed by argument and opinion of serious
strength. It is not within the competency
of the courts to arbitrate in such con-
trariety. Chicago, B. ft Q. R. Co. t. Mc-
Guire,*219 U. S. 549, 55 L. ed. 828, 81 Sup.
Ct. Rep. 259; German Alliance Ins. Co. ▼.
Lewis, 233 U. S. 389, 413, 414^ 58 L. ed.
1011, 1022, 1023, L.R.A.1915C, 1189, 84
Sup. Ct. Rep. 612; Price v. Illinois, 238 U.
S. 446, 452, 59 L. ed. 1400, 1405, 85 Sup.
Ct. Rep. 892.
It is the duty and function of the legis-
lature to discern and correct evils, and by
evils we do not mean some definite injury,
but obstacles to a greater public welfare.
Eubank v. Richmond, 226 U. S. 187, 142, 57
L. ed. 156, 158, 42 L.RJi.(N.S.) 1123, 88
Sup. Ct. Rep. 76, Ann. Cas. 191 4B, 192;
Sligh ▼. Kirkwood, 287 U. S. 52, 59, 59 L.
ed. 835, 837, 85 Sup. Ct. Rep. 501. And,
we repeat, "it may make discriminations if
founded on distinctions that we cannot pro-
nounce unreasonable and purely arbitrary."
Quong [358] Wing v. Kirkendall, 223 U. S.
59, 62, 56 L. ed. 350, 351, 32 Sup. Ct. Rep.
192, and the cases cited above.
Of course, an element to be considered is
the authority of the legislature over the
subject-matter, and this will best be exam-
ined in considering the contentions of com-
•0 li. ed.
plainants under the due process clause.
Preceding that, however, are the contentions-
based on the commerce clause and the sanc-
tion whidi the Constitution gives to the
integrity of contracts.
First, as pertinent to our discussion are
the specific schemes at which, it is said, the
statute is directed, and we adopt complain-
ants' description of them. The first is>
"where the Florida merchant issues his own
coupon, certificate, or cash register receipt^
and himself makes payment or redemption
of the same, sometimes by tiie delivery of
some valuable article of merchandise, some-
times by the payment of cash or allowance
of credit on account of purchases, being in
the nature of a discount, or for or on ac-
count of a certain amount having been
purchased of the merchant by the cus-
tomer." In a word, it is a case where the
Florida merchant issues his own coupons
and redeems them.
The second is "where the manufacturer
or shipper outside of the state of Florida,
in some other state of the Union, inserts
such coupons or certificates in packages of
his goods which he shiifB to Florida, and
the ultimate purchaser or consumer takes
such coupons or certificates from such pack-
ages and returns them to such manufac-
turer or shipper in such state outside of
Florida, who gives a premium for them and
sends such premium or proceeds of redemp-
tion to such ultimate purchaser or con-
sumer in Florida who has forwarded to him
such coupons or certificates." The mer-
chandise so shipped into Florida is kept
in stock by the merchants of the state,
and the coupons, etc., ate delivered upon the
sale of the merchandise to their customers,
who have them redeemed in the [369]
manner described. That is, the coupons are
redeemed by the person who originally is-
sues them; the coupons, however, to repeat,
being delivered by the Florida merchant aa
a part of the transaction between him and
the purchaser from him at retail.
The third is "where the manufacturer or
shipper in a state other than Florida in-
serts in the packages of his goods which he
ships to Florida such coupons or certificates
which are taken from the packages by the
ultimate purchaser or consumer in Florida
and sent to some company or agency in
some state of the United States outside of
the state of Florida other than the manu-
facturer or shipper of the goods, to be re-
deemed or paid, and the premium or pro-
ceeds thereof is returned by such company
or agency to the person in Florida who has
sent such coupons or certificates." This
differs from the other two cases in that a
premium company or agency other than the
manufacturer or shipper himself is used
859-302
SUPREME COURT OF THE UNITED STATES.
Oct.
for the redemption or payment of the cou-
pons or certificates. But here again the
Florida merchant is a factor because it is
in completion of the sale by him at retail
that the coupons are delivered to the pur-
chasers.
We are careful, by much repetition, to
show the di£ference between the cases, to dis-
tinguish between the premium systems, and
to show, as urged by counsel, that this case
is not concerned with a license tax upon a
tracing stamp business pure and simple,
a license upon companies engaged in such
business being provided by another section
of the statute. ^
It is well here to observe, to avoid mis-
understanding, that the redemption in the
first scheme is **soTneHmes hy the payment
of caeh or cUlotcance of credit on account of
[360] purchaaea or for or on account of a
certain amount having been purch<ieed of
the merchant by the customer,** We are not
concerned with a statute directed solely at
such method of redemption or a business
so confined. The Florida statute imposes
its license tax on coupons, etc., ''redeem-
able in premiums."* And therefore, whether
any other method of redemption — be it by
giving a discount or an allowance of credit
simply — would be amenable to objection, we
express no opinion. In all of the schemes
other methods of redemption are used and
are attempted to be justified.
With this comment we may say that all
of the schemes have a common character, —
something is given besides that which is or
is supposed to be the immediate incentive
to the transaction of sale and purchase, —
something of value given other than it; and
even as to the second and third schemes, the
transactions are only executed through the
purchase at retail. In other words, they
are not designed for or executed through a
sale of the original package of importation,
but in the packages of retail and sale to
the individual purchaser and consumer.
Ill is fixes their character as transactions
within the state, and not as transactions in
interstate commerce, and this is conceded
as to the first scheme; it is true as to the
second and third schemes. All of the
schemes have their influence and effect with-
in the state. Nor is such influence and ef-
fect changed or lessened by the redemption
of the tokens outside of the state.
The transactions, therefore, are not in
interstate conunerce. The sales, as we have
said, are not in the packages of that com-
i "Sec. 65. Trading stamp firms : Persons
or firms or corporations known as trading
stamp companies shall pay a state license
tax of one thousand ($1,000) dollars in
each county whera they transact any buai-
€SS
merce; they are essentially local salci^
schemes consummated by such sales, and it
is upon them and on account of their effeoA
that the statute has imposed its licenJBe tax,
and not upon the shipment into the state
nor their disposition in the packages of im-
portation. Of course, there is shipment to
Florida merchants, but [361] for the dis-
position of the merchandise in retail trade.
Ihe schemes contemplate such disposition
and are executed by it. Detach the importi^
tions from the retail sale, consider only the
transportation to the state of merchandiee
in its original package, being sold therein
in such package, and there may, indeed, be
interstate commerce; but so detached and
so considered the importations are left with-
out purpose, the schemes without execution.
Indeed, complainants contend for the right
not only of importations in the original
package containing the coupons, but the die-
position of the goods and coupons througli
the retail merchant. This, we repeat, has
no protection in the commerce clause.
Nor is the regulation of the statute pro-
hibited by § 3394 of the Revised Statutes of
the United States as amended in 1897 [80
Stat, at L. 206, chap. 11] and 1902 [32
Stat, at L. 715, chap. 1371, Comp. Stat.
1913, § 6204]. Section 3394 providee for
a tax on cigars and cigarettes. By the
amendment of 1897 it was forbidden to pack
in, attach to, or connect with any package
of tobacco or cigarettes anything but the
wrappers, and it was further provided that
there should not be afl&xed to, or branded,
stamped, marked, written, or printed upon
the packages or their contents any promiae
or offer of, or any order or certifiate for,
any gift, prize, premium, payment, or re-
ward. This provision upset the practice <rf
manufacturers, and was attacked on the
groimd that it was beyond the power of
Congress under the Constitution to enact,
the prohibited practice being a method of
advertising. The provision was sustained.
Felsenheld v. United States, 186 U. S. 126,
46 L. ed. 1085, 22 Sup. Ct. Rep. 740, aflSrm-
ing 103 Fed. 453. In 1902 the paragraph
containing the provision was amended ao
as to forbid the inclosure or attachment
to the packages of "any paper, certificate^
or instrument purporting to be or repreaent
a ticket, chance, share or interest in, or
dependent upon the event of a lottery,
[362] nor any indecent or immoral pietun^
representation, print or words."
Let it be granted that this proTiaion per-
mitted the inclosure in the padcage of to-
bacco of tokens of the character with whidi
this case is concerned. It goes no farther
nor does it purport to go farther. It doea
not attempt to protect and enforce the per-
mission to the retail salea of packagee in
240 tr. 8.
1915.
RAST T. VAN DEMAN & LEWIS 00.
362-3M
tli« state. It might not legally hare lueh
effect if attempted; and aueh attempt will
not lightly be inferred. Savagv ▼. Jones, 225
U. & 501» 56 L. ed. 1182, 82 Sup. Ct. Rep.
715; Standard Stodc Food Oo. t. Wright,
225 U. S. 540, 58 L. ed. 1107, 82 Sup. Ct.
Rep. 784. The statute of Florida does not
seek to control the interstate transportation
of the packages; it controls only their sale
in the state through the retail merchant,
^r, it may be, directly to • the individual
consumer lor the purpose described, and in
both cases for the ultimate redemption of
the tokens delivered with the sale.
McDermott v. Wisoonsin, 228 U. 8. 115,
57 L. ed. 754, 47 L.RJL(N.8.) 984, 88 Sup.
Ct. Rep. 431, Ann. Cas. 1915A, 39, is not
applicable. There Congress, for the effective
execution of the food and drugs act, de-
fined what the "package" of oommeroe
should be, and necessarily any law which
conflicted with it was void. In the case
at bar there is no such definition. There
is only permission to insert in the package
whatever the manufacturer of tobacco may
choose, with a single exception. There is
no compulsion of use, and omission to avail
of the permission has no effect upon the
purpose of Congress in the enactment of the
revenue laws which provide for the packing
of tobacco products.
The contract clause of the Constitution
is also unavailable to complainants. The
statute must be held to have prospective
operation. Sales completed before its en-
actment are unaffected by it. We say "sales
completed," and by this we mean those in
which the right of redemption according to
some of the schemes has accrued as distin-
guished from what is alleged in the bill as
"the [363] understanding and expectation"
arising from one or more sales that com-
plainants would continue to sell to such
purchasers other articles so that they might
be able to accumulate tokens and use them.
It cannot be said that there is an obligation
to continue sales or an obligation to con-
tinue purchases. Besides, as the business
is subject to regulation, the contracts made
in its eonduct are subject to such regula-
tion. Louisville & N. R Co. v. Mottley, 219
U. 8. 487, 55 L. ed. 297, 34 L.R.A.(N.S.)
671, 81 Sup. Ct. Rep. 265, and New York
0. & H. R R. Co. V. Gray, 239 U. S. 583,
ante, 451, 36 Sup. Ct. Rep. 176.
Having disposed of the other contentions
of complainants, we are brought to a con-
sideration of the question whether the stat-
ute of Florida offends the due process clause
of the 14th Amendment of the Constitution.
In other words, does the statute interfere
with the business liberty of complainants?
Is it an illegal meddling with a lawful
calling and a deprivation of freedom of
•0 I^ ed.
contract? This is the contention, and it is
attempted to be supported hy the assertion
that the schemes detailed in the bill are
but a method of advertising, and, as such,
mere allurements to customers, not detri-
mental in any way to the public health and
morals, nor obstructive of the public wel-
fare; but are a means of enterprise, mere
incidents of the businesses of complainants,
and as beneficial to their customers as to
them. And besides, that they are but a
method of giving discount, practically in
some instances a rebate upon the price, and
in othera an equivalent gift of some article
that may attract the choice of the pur-
chaser, the choice being free and the article
of definite utility and value.
These contentions have the support of a
number of cases. They are opposed by
others, not nearly so numerous as the sup-
porting cases, but marking a change of
opinion. Both sets ef cases indicate by the
statutes passed upon a persistent legisla-
tive effort against the schemes under review
or some form of them, beginning in 1880
and [364] repeated from time to time until
the statute in controversy was passed in
1913.S In such differences between judicial
and legislative opinion where should the
choice be? Hint necessarily depends upon
what reasoning judicial opinion was based.
We appreciate the seriousness of the situa-
tion. Regarding the number of the cases
only, they constitute a body of authority
from which there might well be hesitation
to dissent except upon clear compulsion.
The foundation of all of them is that the
schemes detailed are based on an invio-
lable right, that they are but the exercise of
a personal liberty secured by the Constitu-
tion of the United States and distinguished
from other lawful exercise of business con-
tracts and activity by a method of advertis-
ing and lawful inducements to an increased
custom, and that in them there is no ele-
ment of chance or anything detrimental to
the public welfare. But there may be par-
tial or total dispute of the propositions.
And it can be urged that the reasoning upon
which they are based regards the mere mech-
anism of the schemes alone, and docs not
give enough force to their influence upon
conduct and habit, not enough to their in-
sidious potentialities. As to all of which
not courts, but legislatures, may be the best
judges, and, it may be, the conclusive
judges.
This may be illustrated. A lottery of it-
Sit is said that twenty-three states have
attempted either to prohibit or to license the
selling or use of trading stamps and cou-
pons. And there has been like legislation
for the District of Columbia and the terri-
tory of HawaiL
44
364-367
SUPREME CX)URT OF THE UNITED STATES.
Oct. Teem^
self is not wrong, may be fairer, having
less of overreaching in it, than many of the
commercial transactions that the Constitu-
tion protects. All participants in it have
an equal chance; there is no admonishing
caveat of one against the other. And at one
time it was law'ful. It came to be con-
demned by experience of its evil influence
and effects. It is trite to say that practices
harmless of themselves may, from [366]
circiunstanoes, become the source of evil or
may have evil tendency. Murphy v. Cali-
fornia, «25 U. S. 623, 56 L. ed. 1229, 41
L.R.A.(N.S.) 163, 32 Sup. Ct. Rep. 697.
But no refinement of reason is necessary
to demonstrate the broad power of the legis-
lature over the transactions of men. There
are many lawful restrictions upon liberty
of contract and business. It would be an
endless task to cite cases in demonstration,
and that the supplementing of the sale of
one article by a token given and to be re-
deemed in some other article has accompani-
ments and effecis beyond mere advertising
the allegations of the bill and the argument
of coimsel establish. Advertising is mere-
ly identification and description, apprising
of quality and place. It has no other ob-
ject than to draw attention to the article
to be sold, and the acquisition of the article
to be sold constitutes the only inducement
to its purchase. The matter is simple,
single in purpose and motive; its conse-
quences are well defined, there being noth-
ing ulterior; it is the practice of old and
familiar transactions and has sufficed for
their success.
The schemes of complainants have no such
directness and effect. They rely upon some-
thing else than the article sold. They tempt
by a promise of a value greater than that
article and apparently not represented in
its price, and it hence may be thought that
thus by an appeal to cupidity lure to im-
providence. This may not be called in an
exact sense a "lottery," may not be called
"gaming;" it may, however, be considered
as having the seduction and evil of such,
and whether it has may be a matter of
inquiry, — a matter of inquiry and of judg-
ment that it is finally within the power of
the legislature to make. Certainly in the
first instance, and, as we have seen, its
judgment is not impeached by urging
against it a difference of opinion. Chicago,
B. & Q. R. Co. V. McGuire, 219 U. S. 649,
66 L. ed. 328, 31 Sup. Ct. Rep. 259, and
German Alliance Ins. Co. v. Lewis, 233 U.
S. 389, 68 L. ed. 1011, L.R.A. 1915C, 1189,
34 Sup. Ct. Rep. 612. And it is not re-
quired that we should be sure as to the pre-
cise reasons for such judgment, or that we
should certainly know them [366] or be
convinced of the wisdom of the legislation.
690
Southwestern Oil Co. v. Texas, 217 U. S.
114, 126, 127, 64 L. ed. 688, 694, 696, 30
Sup. Ct. Rep. 496. See also Munn v. IIU-
nois, 94 U. S. 113, 132, 24 L. ed. 77, 86.
But it may be said that judicial opin-
ion cannot he controlled by legislative opin-
ion of what are fundamental rights. Ihis-
is freely conceded; it is the very essence of
constitutional law, but its recognition does
not determine supremacy in any given in-
stance. "While the courts must exercise*
a judgment of their own, it by no means ia
true that every law is void which may seem
to the judges who pass upon it excessive,,
imsuited to its ostensible end, or based up-
on conceptions of morality with which they
disagree. Considerable latitude must be al-
lowed for differences of view as well as for
possible peculiar conditions which this-
court can know but imperfectly, if at all.
' Otherwise a constitution, instead of embody-
ing only relatively fundamental rules of
right, as generally understood by all Eng-
lish-speaking communities, would become
I the partisan of a particular set of ethical
or economical opinions, which by no meana
are held semper uhique et ah omnihue."
Otis V. Parker, 187 U. S. 606, 608, 609, 47
L. ed. 323, 327, 328, 23 Sup. Ct. Rep. 168.
That case illustrated the reach of the pow-
er of government to protect or promote the
general welfare. It sustained a provision
of the Constitution of the state of Cali-
fornia which made void all contracts for
the sale of the stock of corporations on
margin or to be delivered at a future day.
The practice had been common, its evil was
disputed. It was attempted to be justified
by argument very much like those advanced
in the case at bar, but this court decided
that the legislative judgment was control-
ling.
Even more pertinent in illustration of the
power of the states as unaffected by the
14th Amendment is Central Lumber Co. v.
South Dakota, 226 U. S. 167, 67 L. ed. 164,
33 Sup. Ct. Rep. 66. A statute of the state
was sustained which provided that anyone
engaged in the manufacture, production, or
distribution [367] of any commodity in
general use, who should intentionally, for
the purpose of destroying the competition of
any regular, established dealer, discriminate
between different places by selling such com-
modity at a lower rate in one place than
such person charged in another, siter equal-
izing the distance from the point of pro-
duction, should be guilty of a crime. Free-
dom of conduct was restricted by the stat-
ute, which had its incentive in trade advan*
tages. It was the judgment of the legisla-
ture that such practice was an impediment
to the public welfare. The l^islative judg-
ment was sustained against the attack,
240 U. 8*
1915.
TANNER V. LITTLE.
867-^99
among others, that the law was an infringe-
ment of freedom of conduct and contract.
In Keokee Consol. Coke Co. v. Taylor,
234 U. S. 224, 58 L. ed. 1288, 34 Sup. Ct.
Rep. 856, the company issued scrip pay-
able in merchandise only from its store as
an advance of monthly wages in payment
of labor performed. A statute of the state
(West Virginia) prohibited the issue of any
order for the payment of labor unless it was
redeemable in money. The statute was as-
sailed on the grotind that it interfered with
the freedom of contract. It will be observed
that there was a consideration for the order
payable in merchandise; it was a payment
in advance, and hence it was asserted that
the statute was an injury to the employees
and employers. There were elements in the
transactions of apparent advantage to both,
and it would seem to have been within the
liberty of both to contract upon an estimate
of the value of that advantage. It was
deemed an evil by the legislature and this
court sustained its judgment.
In Erie R. Co. v. WUliams, 233 U. S.
685, 58 L. ed. 1155, 51 L.R.A.(N.S.) 1097,
34 Sup. Ct. Rop. 761, a law of the state
of New York required railroad companies
to pay their employees semimonthly, and
prohibited them from making contracts
which should vary the time of pa3rment.
The law was sustained mainly upon the
ground that it was an amendment of the
charter of the corporation, but the extent of
the police power was adverted to and the
competency [368] of the legislature exer-
cising that power to enact the legislation.
The incentive of the legislation was the ben-
efit which accrued to the employees by the
period of payment. The public welfare was
deemed to be promoted by it.
Other eases might be cited, and, it may
be, of more pertinent application, which,
from their number and instances, would
seem to have uttered the last necessary
word upon the power of the legislature to
regulate conduct and contracts, and, in the
exercise of the power, to classify objects,
upon its conception of the public welfare,
the right of review to be exerted by the
courts only when the legislation is unrea-
sonable or purely arbitrary.
Complainants allege that the license tax
which the statute imposes is of prohibitory
character, and assert that they are exercis-
ing inviolable rights and privileges which
the excess of the tax prevents in violation
of the 14th Amendment; they contend that
hence the statute is invalid.
It is not certain from the allegations of
the bill that the tax is of the asserted char-
acter, but granting it to be so, we have
shown that the business schemes described
in the bill are not protected from regulation
•0 li. ed.
I or prohibition by the Constitution of the
■ United States. Lawton v. Steele, 152 U.
S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. 499;
Booth V. Illinois, 184 U. S. 425, 46 L. ed.
623, 22 Sup. Ct. Rep. 425; Otis v. Parker,
187 U. S. 606, 47 L. ed. 323, 23 Sup. Ct.
Rep. 168; see also Dobbins v. Los Angeles,
195 U. S. 238, 49 L. ed. 176, 25 Sup. Ct.
Rep. 18; Murphy v. California, 225 U. S.
623, 56 L. ed. 1229, 41 L.R.A.(N.8.) 153,
32 Sup. Ct. Rep. 697; Postal Teleg. Cable
Co. V. Charleston, 153 U. S. 699, 38 L. ed.
874, 4 Inters. Com. Rep. 637, 14 Sup. Ct.
Rep. 1094; McCray v. United States, 195
U. S. 27, 49 L. ed. 78, 24 Sup. Ct. Rep.
769, 1 Ann. Cas. 561; Kehrer v. Stewart,
197 U. S. 60, 49 L. ed. 663, 25 Sup. Ct.
Rep. 403; Hammond Packing Co. v. Mont-
ana, 233 U. S. 331, 58 L. ed. 985, 34 Sup.
Ct. Rep. 596.
The contention that the statute intimi-
dates against a contest of its legality by
the severity of its penalties, and is therefore
unconstitutional on that ground, within the
ruling in Ex parte Young, 209 U. S. 123,
52 L. ed. 714, 13 L.R.A.(N.S.) 932, 28 Sup.
Ct. Rep. 441, 14 Ann. Cas. 764, is not justi-
fied.
Order reversed and case remanded with
directions to dismiss the bilL
[369] W. V. TANNER, as Attorney Gener-
al of the State of Washington, Qeorge H.
Crandall, Prosecuting Attorney of Spo-
kane County, State of Washington, and
£. W. Evenson, County Treasurer of Spo-
kane County, State of Washington,
Appts.,
V.
JOHN T. LITTLE, August Stahlberg, Law-
rence Ryan, and William T. Oathout, Do-
ing Business as Ryan and Oathout, et al.
(See S. C. Reporter's ed. 369-386.)
Federal ooarts — enjoining state officers
— civil or criminal proceedings.
1. The threatened enforcement by state
officers through civil or criminal proceed-
ings of a state statute which is attacked as
repugnant to the Federal Constitution may
be enjoined by a Federal court, where the
statute, if exerted against complainants
and their property, will produce irreparable
injury.
[For other cases, see Courts, YI. d, 2; In-
junction, I. i, 1. in Digest Sup. Ct. 1908.]
NoTV. — On injunction to restrain prose-
cution of criminal or quasi criminal na-
ture— see notes to Hall v. Dunn, 25 L.R.A.
(N.S.) 193; Denton v. McDonald, 34 L.RJl.
(N.S.) 453; and Alexander v. Elkins, L.RJI.
1916C, 263.
On forbidding use of trading stamps— see
notes to Ex parte Drexel, 2 L.R.A.(N.S.)
588; Denver v. Frueauff, 7 L.R.A.(N.S.)
691
SUPREME COURT OF THE UNITED STATE&
Cor. Tknc»
States — Inunnnlty from suit — salt
against state officers.
2. The state's immunity from suit does
not extend to a suit against state officers
to enjoin the threatened enforcement of a
state statute which is attacked as repugnant
to the Federal Constitution.
[For other cases, see States, IX. c, in Digest
Sup. Ct. 1908.]
Constitutional law — equal protection
of the laws — classification — license
tax.
3. The imposition, under Washington
Laws 1913, chap. 334, of an annual license
tax of $6,000 upon merchants using stamps,
tickets, or coupons redeemable in cash or
merchandise, is not repugnant to the equal
protection of the laws clause of U. 6. Const.,
14tii Amend., as an attempted arbitrary clas-
sification, whether such stamps are prepared
or redeemed by the merchant issuing them
or by a third party with whom the mer-
chant has a contract for their use.
[For other cases, see Constitntional Law, IV.
a, 4, in Digest Sup. Ct. 1908.]
Gonstitutlonal law — police power — li-
cense tax — retail sales — trading
stamps or coupons.
4. The police power of the state justi-
fies the enactment of Washington Laws
1913, chap. 134, imposing an annual li-
cense tax of $6,000 upon merchants using
atamps, tickets, or coupons redeemable in
cash or merchandise.
(For other cases, see Constitutional Law, IV.
c, 8, d, in Digest Sup. Ct. 1908.]
Internal revenue — tobacco — redeem-
able coupons — state regulation.
6. A state license tax on merchants
using stamps, tickets, or coupons redeem-
able in cash or merchandise is not invalid
as applied to sales of packages of tobacco
containing such coupons because of the per-
mission, if any, granted by the amend-
ment of July 1, 1902 (32 Stat, at L. 716,
chap. 1371, Comp. Stat. 1913, § 6204), § 2,
to U. S. Hev. Stat. § 3394, to inclose in
packages of tobacco redeemable coupons,
profit-sharing certificates, etc.
[For other cases, see Internal Revenue, III.
i, in Digest Sup. Ct. 1908.]
Gonstltutional law — impairing con-
tract obligations — sales with trading
stamps or coupons.
6. The imposition of a prohibitive li-
cense tax on merchants using stamps, tick-
ets, or coupons, redeemable in cash or mer-
chandise, as is done by Washington Laws
1913, chap. 134, does not oncoiictitutioa-
ally impair the contract obligations of such
merchants with their customers or with
third parties with whom they haTe con-
tracted for the use of such stamps or cou-
pons.
[For other cases, see Constitutional Law.
1450-1474, in Digest Sup. Ct. 1908.]
Ck>nstltutlonal law — due process of law
— liberty of contract — prohibiting
trading stamps or redeemable cou-
pons.
7. There is no denial of dueprocess of
law in the imposition under Washington
Laws 1913, chap. 134, of a prohibitive li-
cense tax upon merchants using stamps,
tickets, or coupons redeemable in cash or
merchandise as inducements to purchasers.
[For other cases, see Constitutional Law, IV.
b, 7, in Digest Sup. Ct. 1908.]
Criminal law — Indeflnlteness of stat-
ute — prohibiting trading stamps or
redeemable coupons.
8. The lack of any definite or fixed re-
tail market price for the uremium articles
does not render invalid for indefiniteness
and uncertainty the provisions of Wash-
ington Laws 1913, chap. 134, making the
use of trading stamps or other devices
which entitle the holders to obtain goods
for less than the retail market price a crime
unless a prohibitive license fee is paid.
[For other cases, see Criminal Law, I. a, in
Digest Sup. Ct. 1908.]
[No. 224.]
Argued October 29 and November 1 and 2,
1915. Decided March 6, 1916.
APPEAL from the District Court of the
United States for the Eastern District
of Washington to review a decree granting
an interlocutory injunction to restrain the
threatened enforcement of a statute impos-
ing a prohibitive license fee on the use of
trading stamps or redeemable coupons. Re-
versed and remanded, with directions to
dismiss the bill.
See same case below, 208 Fed. 605.
Statement by Mr. Justice McKenna:
This case was submitted with No. 41,
and attacks the validity of a statute of the
state of Washington of the same general
import and purpose as the Florida statute
1181; District of Columbia v. Kraft, 30
L.RJL.(N.S.) 957; and State ex rel. Harti-
gan V. Sperry & H. Co. 49 L.R.A.(N.S.)
1123.
As to what constitutes due process of law,
generally — see notes to People v. 0*Brien, 2
L.R.A. 255; Kuntz v. Sumption, 2 L.R.A.
656; Re Gannon, 6 L.R.A. 359; Ulman v.
Baltimore, 11 L.R.A. 224; Oilman v.
Tucker, 13 L.R.A. 304; Pearson v. Yewdall,
24 L. ed. U. S. 436; and Wilson v. North
Carolina, 42 L. ed. U. S. 865.
As to the validity of class legislation,
gmerAlly — tfee notes to State v. Q^xiwill, 6
€9M
L.R.A. 621 ; and State v. Loomis, 21 L.RJL
789.
As to constitutional equality of privi-
leges, immunities, and protection generally
— see note to Louisville Safety Vault ft T.
Co. V. Louisville & N. R. Co. 14 L.RJL 679.
Generally, as to what laws are void as
impairing obligation of contracts — see notes
to Franklin County Grammar School v.
Bailey, 10 L.R.A. 405; Bullard v. Northern
P. R. Co. 11 L.R.A. 246; Henderson v. State
Soldiers & S. Monument Comrs. IS L.RJk.
169; and Fletcher v. Peck, 8 L. ed. U. 8.
162.
940 U. 8.
1916.
TANNBR T. LITTLE.
860^78
p«Med on in No. 41. [240 U. 8. 342, ante,
•79, 86 Sup. Ct. Rep. 870.]
The statnte requires that OTery person,
•iCy who shall use or furnish to any other
person, etc., to use in, with, or for the sale
of any goods, etc., any stamps, etc, which
shall entitle the purchaser receiTing the
same with such sale of goods, etc., to procure
from any person, etc., any goods, etc., free
of charge, or for less than the retail market
price thereof, upon the production of any
number of such stamps, etc., shall, before so
furnishing, selling, or using [370] the same,
obtain a license from the auditor of each
county wherein such furnishing or selling
or using shall take place for each and every
store or place of business in that county,
owned or conducted by such person, etc.,
from which such furnishing or selling, or
in which such using, shall take place.
The statute fixes the license at $6,000, and
there is a prohibition of the use of the
■tamps, etc., in any town, city, or county
other than that in which they are furnished
or sold. Violation of the act is made a
''gross misdemeanor.'*
The complainants are nineteen in number,
counting partnerships as single indiTiduals,
and engaged in the business of hardware,
cleaning and dyeing, grocery, soap, canned
goods, meats, drugs, dry goods, boots and
shoes, fuel, photography, laundry, and wine.
Complainants sue for all similarly situated.
Their allegations, condensed and narra-
tively stated, are as follows: They carry on
their respective businesses at Spokane, state
of Washington, and advertise in various
ways, which are enumerated, including the
premium advertising system, so-called, and
have at various times, for the purpose of
Increasing their general trade and volume of
business, especially their cash trade, adopt-
ed and used a premium advertising system
conducted as -follows: with the sale of their
goods and merehandise they each give to
their cash customers stamps, tickets, or
coupons at the rate of one stamp for each
cash purchase of a convenient unit amoimt,
aa one stamp for each 6, 10, or 25-cent cash
purchase, as the case may be, which stamps
or coupons entitled their customers to the
choice of a certain cash discount or, free of
charge, to certain articles of merchandise
of their own selection, when presented in
certain prescribed numbers for redemption
to complainants who redeem their own
•tamps or certificates, or to a third party
with whom other of the complainants have
contracts, many of wliich are still in force,
for the use of their premium [371] adver-
tising system, including the use of their
trading stamps or coupons used in connec-
tion therewith, and the redemption thereof
in merchandise.
•• L. ed.
Many of the complainants accept the
coupons, at the cash value thereon printed,
in payment or part pa3rment of the cash re-
tail price of the premium articles.
The stamps and coupons are redeemable in
accordance with the terms of printed cata-
logues or premium lists. Booklets are dis-
tributed free among complainants' custom-
ers and describe the articles which may be
secured by the stamps or coupons, and state
the number thereof required to obtain the
same. The delivery of the required number
of stamps or coupons set forth in the list is
in full payment for the article specified, and
no money or other consideration is charged
therefor.
There is no element of chance involved in
the system. The value of each article is
fixed as to cash and merchandise redemption
and the right of every holder is secure. The
articles are of sound value and durable man-
ufacture and are open to inspection during
business hours. The premiums are not
regularly dealt in by many of the com-
plainants, but are used exclusively in con-
nection with premium advertising.
A number of complainants have contracts
based on the system, running from one to
five years for the use of their premium ad-
vertising system, including their trading
stamps in connection therewith, which con-
tracts are now in force and were in force at
the passage of the act, and a larpfe number
of stamps are now in the hands of complain-
ants, and if they are prevented from dis-
posing of them complainants will suffer
great and irreparable loss.
A great many manufacturers of various
lines of merchandise, for the purpose of
advertising their businesses and increasing
the volume of their sales, inclose in the
packages of their merchandise coupons and
other premium tokens which entitle the pur-
chaser of such merchandise to [378] other
articles of merchandise free of charge. The
number of the manufacturers is given, their
names and the articles which they manu-
facture.
Complainants have upon their shelves
large quantities of merchandise in which
premium tokens are packed, which, upon
their sale, entitle purchasers to other
articles in the manner described, and in
such packages are tobacco and tobacco prod»
nets, and the use of the coupons and tickets
as described is authorized and rendered
lawful by § 3304 of the Revised Statutes of
the United States and the amendments of
that section in 1897 [30 Stat, at L. 206,
chap. 11, § 10] and 1902 [32 Stat, at L. 715,
chap. 1371, % 2, Comp. Stat. 1913, 9 6204].
The adoption of the premium advertising:
system enables complainants to give a dis-
count upon purchasea of small as well as.
S72-370
SUPREME COURT OF THE UNITED STATES.
OoT. Term,
Urge amounti, one coupon or stamp being
giTen with each 5, 10, or 25-cent cash pur-
chase, or multiple thereof, as the case may
be. And a larger discount in merchandise
can be given than otherwise there could be
because, as a result of large purchases of
the merchandise given in exchange for the
tokens, the articles are secured at much less
than tiie regular retail price. By reason of
the system complainants have been enabled
at a moderate cost to greatly increase their
businesses and profits, and are benefited be-
cause their articles in the homes of their
customers are a continual advertisement.
And the businesses are lawful ones, and not
prejudicial to the public health, safety,
morals, or welfare.
The statute of Washington violates the
provisions of the 14th Amendment to the
Constitution of the United States in that
it deprives complainants of their property
without due process of law and of the equal
protection of the laws (a) because it is not
equal and uniform in operation, each of the
complainants paying their taxes as do other
merchants engaged in similar lines of busi-
ness, and who use other and various methods
of advertising, and [373] who are not re-
quired to pay a license tax of $6,000. The
statute is therefore arbitrary and discrimina-
tory, (b) The tax is not upon the businesses
of complainants, but upon their incidents,
and is an unwarrantable interference with the
method and manner of conducting the same,
is arbitrary, oppressive, discriminatory, is
in excess of profits and prohibitive, and,
while in the guise of revenue, will 'produce
none, (c) It deprives complainants of
their liberty and property without due pro-
cess of law inasmuch as they cannot bestow
a gift or give an order upon another mer-
chant for a gift to a customer, which is the
exercise of a natural right, without paying
on onerous and excessive tax. (d) The
penalties and fines are so drastic and exces-
sive that they deter complainants from
violating the act and testing its validity in
a court of law. (e) The statute is in con-
travention of § 10, article 1, of the Constitu-
. tion of the United States, in that it impairs
the obligations of contracts with and the
right of complainants to contract with their
customers to give trading stamps and
coupons with the purchase of merchandise
redeemable in merchandise heretofore given
by them. It also impairs the obligations of
contracts entered into by complainants with
third parties for the use of the advertising
system, including the use of the stamps and
coupons and the redemption thereof in
merchandise, (f) The statute is partial,
unreasonable, oppressive, unequal, in re-
straint of trade, and prohibitive of lawful
business, (g) The statute oonflicta with i
694
3394 of the Revised Statutes of the United
States and the amendments thereof (Comp.
Stat. 1913, § 6264). (h) It is criminal,
making a crime of acts the test of which is
incapable of ascertainment; that is, it
makes a crime of furnishing stamps or
similar devices which are redeemable "for
less than the retail market price thereof,"
the premium article having no definite or
fixed retail market price. The statute is
therefore void for indefiniteness and un-
certainty; and such provision is besides pro-
hibitive of the business, [374] as the articles
are not dealt in by complainants except in
connection with the premium system. And
further, that the statute is void because it
attempts to fix the price at which com-
plainants shall sell their merchandise.
The prosecuting attorney of the county
threatens to enforce the provisions of the
statute, to bring numerous criminal prose-
cutions as well as civil suits to enforce the
payment of the license, and if complainants
are forced to discontinue their business as
described they will suffer great and irrep-
arable damage because they have expended
large sums of money in advertising the
premium system, which expenditures would
be a total loss, they having large stocks of
merchandise on hand in which are packed
the premium tokens, and which cannot be
removed without practically destroying the
packages and the value of the merchandise
contained therein, and that thei^fore, if not
permitted to dispose of them, complainants
will lose a large amount of money.
Complainants have outstanding in the
hands of customers a large amount of
tokens, the result of transactions before the
passage of the statute, and it will be neces-
sary, in order to keep faith with their
customers, for complainants to redeem such
tokens in merchandise in the future from
time to time as the necessary and requisite
number of the same are presented for re-
demption. If they fail to do so they will
lose many customers and a large amount of
trade and suffer thereby great loss and in-
jury.
Having no remedy at law, complainants
pray an injunction, first temporary and
then perpetuaL
A temporary restraining order was is-
sued, which the attorney general and the
prosecuting attorney of Spokane county
separately made motions to quash, each ap-
pearing only for that purpose. The motions
asserted exemption from suit of those of-
ficers in a Federal court because the suit
was against them as officers of the state to
prevent the enforcement of the criminal
laws of the state, and was [375] therefore
a suit against the state, in violation of the
240 U. 8.
1915.
TANNER T. LITTLB.
875
lltli Amendment to the Constitution of the
United States.
Snbseqnentlj motions to dismiss were
filed by them and also by the defendant
Evenson, county treasurer of Spokane ooun-
-fy. The grounds of the motions alleged
were misjoinder of parties complainants and
oi defendsnts, improper union of causes of
suit, insufficiency of the facts alleged to
justify the relief prayed, the adequacy of a
remedy at law, and the absence of jurisdic-
tion over the persons of the defendants or
of the subject-matter of the action.
The motion for an interlocutory injunc-
tion came before three judges. Rudkin, dis-
trict judge, delivered the opinion and judg-
ment ordering an injunction was prayed.
208 Fed. 605. This appeal was then taken.
Mr. J>aUas V, HalTerstadt argued the
'Cause, and, with Mr. W. V. Tanner, Attor-
ney General of Washington, in propria per-
.soMa, filed a brief for appellants:
The act is not arbitrary classification.
American Sugar Ref. Co. ▼. Louisiana,
179 U. S. 80, 46 L. ed. 102, 21 Sup. Ct. Rep.
43; Assaria State Bank t. Dolley, 219 U. S.
121, 55 L. ed. 123, 31 Sup. Ct. Rep. 189;
Atlantic Coast Line R. Co. t. Georgia, 234
U. S. 280, 58 L. ed. 1312, 34 Sup. Ct. Rep.
S29; Bacon v. Walker, 204 U. S. 311, 51
L. ed. 499, 27 Sup. Ct. Rep. 289; Baccus v.
Louisiana, 232 U. S. 334, 58 L. ed. 627, 34
8up. Ct. Rep. 439; Barbier t. Connolly, 113
U. S. 27, S[8 L. ed. 923, 5 Sup. Ct. Rep. 357;
Barrett ▼. Indiana, 229 U. S. 26, 57 L. ed.
1050, 33 Sup. Ct Rep. 692; Brodnax ▼. Mis-
souri, 219 U. S. 285, 55 L. ed. 219, 31 Sup.
Ot. Rep. 238; Central Loan k T. Co. ▼.
Campbell Commission Co. ,173 U. S. 84, 43
L. ed. 623, 19 Sup. Ct. Rep. 346; Central
Lumber Co. ▼. South Dakota, 226 U. S. 157,
^7 L. ed. 164, 33 Sup. Ct. Rep. 66; Chicago,
R. I. ft P. R. Co. ▼. Arkansas, 219 U. S. 453,
55 L. ed. 290, 31 Sup. Ct. Rep. 275; Char-
lotte, C. k A. R. Co. ▼. Gibbes, 142 U. S. 386,
35 L. ed. 1061, 12 Sup. Ct. Rep. 256; Cin-
4sinnati Street R. Co. t. Snell, 193 U. S. 30,
48 L. ed. 604, 24 Sup. Ct. Rep. 319; Clark
v. Kansas aty, 176 U. S. 114, 44 L. ed. 392,
20 Sup. Ct Rep. 284; Clark v. Titusrille,
184 U. 8. 329, 46 L. ed. 569, 22 Sup. Ct.
Rep. 382; Clement Nat. Bank ▼. Vermcmt,
^1 U. S. 120, 58 L. ed. 147, 34 Sup. Ct
R^. 31; Connolly ▼. Union Sewer Pipe Co.
184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct
Rep. 431; Consolidated Coal Co. v. Illinois,
185 U. S. 203, 46 L. ed. 872, 22 Sup. Ct
Rep. 616 ; Engel v. O'Malley, 219 U. S. 128,
^5 L. ed. 128, 31 Sup. Ct Rep. 190; Erb v.
Kc^asch, 177 U. S. 584, 44 L. ed. 897, 20
Sup. Ct Rep. 819; Erie R. Co. y. Williams,
^33 U. S. 685, 58 L. ed/1155, 51 LJLA.
(N.^.) 1097, 34 Sup. Ct Rep. 761; Farm-
40 L. ^d
ers* k M. SaT. Baid: t. Minnesota, 232 U. 8.
516, 58 L. ed. 706, 84 Sup. Ct Rep. 354;
Farmers' k M. Ins. Co. t. Dobney, 189 U.
S. 301, 47 L. ed. 821, 23 Sup. Ct Rep. 565;
FideU^ Mut Life Asso. t. Mettler, 185 U.
S. 308, 46 L. ed. 922, 22 Sup. Ct. Rep. 662;
Fleetwood t. Read, 21 Wash. 547, 47 L.RJL.
205, 58 Pac. 665; Freund, Pol. Power;
Gundling v. Chicago, 177 U. S. 183, 44 L.
ed. 725, 20 Sup. Ct. Rep. 633; International
Harvester Co. v. Missouri, 234 U. S. 199,
58 L. ed. 1276, 52 L.R.A.(N.S.) 525, 34 Sup.
Ct. Rep. 859; Jeffrey Mfg. Co. t. Blagg, 235
U. S. 571, 59 L. ed. 364, 35 Sup. Ct. Rep.
167, 7 N. C. C. A. 570; Kdirer v. Stewart,
197 U. S. 60, 49 L. ed. 663, 25 Sup. Ct. Rep.
403; Keokee Consol. Coke Co. v. Taylor, 234
U. S. 224, 58 L. ed. 1288, 34 Sup. Ct. Rep.
856; Lindsley v. Natural Carbonic Gas Co.
220 U. S. 61, 56 L. ed. 369, 31 Sup. Ct Rep.
337, Ann. Cas. 1912C, 160;. Magoun v. Illi-
nois Trust k SaT. Bank, 170 U. S. 283, 42
L. ed. 1037, 18 Sup. Ct Rep. 594; McLean
▼. Arkansas, 211 U. S. 539, 53 L. ed. 315,
29 Sup. Ct Rep. 206; Ex parte McKenna,
126 CaL 429, 58 Pac. 916; Metropolis The-
atre Co. v. Chicago, 228 U. S. 61, 57 L. ed.
730, 33 Sup. Ct. Rep. 441; Minnesota Iron
Co. T. EUine, 199 U. S. 593, 50 L. ed. 322,
26 Sup. Ct Rep. 159, 19 Am. Neg. Rep. 625;
Missouri, K. ft T. R. Co. v. May, 194 U. S.
267, 48 L. ed. 971, 24 Sup. Ct. Rep. 638;
Missouri P. R. Co. v. Mackey, 127 U. B, 205,
32 L. ed. 107, 8 Sup. Ct. Rep. 1161 ; Mutual
Loan Co. ▼. Martell, 222 U. S. 235, 56 L. ed.
179, 32 Sup. Ct Rep. 74, Ann. Cas. 1913B,
529; Murphy v. California, 225 U. S. 623,
56 L. ed. 1229, 41 .L.R.A.(N.S.) 153, 32 Sup.
Ct. Rep. 697; Nicol v. Ames, 173 U. S.*509,
43 L. ed. 786, 19 Sup. Ct Rep. 522; Ohio
River A W. R. Co. t. Dittey, 232 U. S. 576,
58 L. ed. 738, 34 Sup. Ct. Rep. 372; Otis t.
Parker, 187 U. & 606, 47 L. ed. 323, 23
Sup. Ct Rep. 168; Ozan Lumber Co. v.
Union County Nat. Bank, 207 U. S. 261, 52
L. ed. 195, 28 Sup. Ct Rep. 89; Pacific Exp.
Co. T. Seibert, 142 U. S. 339, 35 L. ed. 1035,
3 Inters. Com. Rep. 810, 12 Sup. Ct. Rep.
260; Patsone ▼. Pennsylvania, 232 U. S. 138,
5d L. ed. 539, 34 Sup. Ct Rep. 281; Postal
Teleg. Cable Co. v. Charleston, 163 U. S.
692, 38 L. ed. 871, 4 Inters. Com. Rep. 637,
14 Sup. Ct Rep. 1094; Quong Wing v. Kir-
kradall, 223 U. 8. 59, 56 L. ed. 350, 32 Sup.
Ct Rep. 192; Rippey v. Texas, 193 U. S.
604, 48 L. ed. 767, 24 Sup. Ct Rep. 516;
Savannah, T. k I. of H. R. Co. v. Savannah,
198 U. 8. 392, 49 L. ed. 1097, 26 Sup. Ct
Rep. 690; Singer Sewing Mach. Co. v.
Brickell, 233 U. 8. 304, 58 L. ed. 974, 34
Sup. Ct Rep. 403; Smith t. Texas, 233 U.
a 630, 58 L. ed. 1129, L.RJL.1915D, 677,
34 Sup. Ct. Rep. 681, Ann. Cas. 1916D, 420;
Southwestern Oil Co. t. Texas, 217 U. 8
Tzrrne- — fr.
SUPREME CX)URT OF THE UNITED STATES.
Oct. TwaM,
114, 64 Lb ed. 688, 80 Sup. Ct. Rep. 496;
Sperry ft H. Co. ▼. Blue, 120 C. C. A. 364,
202 Fed. 82; Sperry k H. Co. v. Melton, 69
W. Va. 124, 34 l4.RJk.(N.S.) 433, 71 S. E.
10; Sperrj k H. Co. t. Owensboro, 151 Ky.
389, 161 S. W. 932, Ann. Cas. 1915A, 373;
Sperry k H. Co. ▼. Ttcoma, 68 Wash. 254,
I4.R.A.1915B, 241, 122 Pac. 1060; State v.
I^tney, 79 Wash. 608, 140 Pac. 918, Ann.
Cas. 1916A, 209; Sturges k B. Mfg. Co. v.
Beauchamp, 231 U. S. 320, 58 L. ed. 245,
L.RJL.1915A, 1196, 34 Sup. Ct. Rep. 60;
Travellers' Ins. Co. ▼. Connecticut, 185 U. S.
864, 46 L. ed. 049, 22 Sup. a. Rep. 673;
Western U. Tel^. Co. ▼. Commercial Mill.
Co. 218 U. 8. 406, 54 L. ed. 1088, 36 L.R.A.
(NJ3.) 220, 81 Sup. Ct. Rep. 59, 21 Ann.
Cas. 815; Wheeler v. Sohmer, 233 U. S. 434,
58 L. ed. 1030, 34 Sup. Ct. Rep. 607 ; Wil-
liams ▼. Arkansas, 217 U. S. 79, 54 L. ed.
673, 18 Sup. Ct. Rep. 493, 18 Ann. Cas. 865;
WiUiams v. Fears, 179 U. S. 270, 45 L. ed.
186, 21 Sup. Ct. Rep. 128; Wilmington SUr
Min. Co. ▼. Fulton, 205 U. S. 60, 51 L. ed.
708, 27 Sup. Ct. Rep. 412.
If the state possesses power to tax for
revenue, the extent of exercise of power is
immateriaL
American Sugar Ref. Co. t. Louisiana,
179 U. 8. 89, 45 L. ed. 102, 21 Sup. Ct. Rep.
48; Baltic Min. Co. v. Massachusetts, 231
U. 8. 68, 58 L. ed. 127, L.RJI. — , — , 34 Sup.
Ct Rep. 15; Bradley v. Richmond, 227 U. S.
477, 67 L. ed. 603, 83 Sup. Ct. Rep. 318;
Emert t. Missouri, 156 U. S. 296, 39 L. ed.
430, 6 Inters. Com. Rep. 68, 15 Sup. Ct.
Rep. 807 ; Ficklen t. Taxing DUt 145 U. S.
1, 86 L. ed. 601, 4 Inters. Com. Rep. 79, 12
Sup. Ct. Rep. 810; Fleetwood ▼. Read, 21
Wash. 547, 47 L.R.A. 205, 58 Pac. 665;
Flint ▼. Stone Tracy Co. 220 U. S. 107, 55
L. ed. 389, 31 Sup. Ct. Rep. 342, Ann. Cas.
1912B, 1312 ; Frederick ▼. Seattle, 13 Wash.
428, 43 Pac. 364; Re Garfinkle, 37 Wash.
650, 80 Pac. 188; Kehrer t. Stewart, 107 U.
8. 60, 49 L. ed. 663, 25 Sup. Ct. Rep. 403';
Kirtland v. Hotchkiss, 100 U. S. 491, 25 L.
ed. 558 ; McCray y. United SUtes, 195 U. S.
27, 49 L. ed. 78, 24 Sup. Ct. Rep. 769, 1
Ann. Cas. 561; M'Culloch t. Maryland) 4
Wheat. 316, 4 L. ed. 579; McKnight ▼.
Hodge, 55 Wash. 289, 40 L.R.A.(N.S.) 1207,
104 Pac* 504; Nathan v. Louisiana, 8 How.
73, 12 L. ed. 992; Schollenberger ▼. Pennsyl-
vania, 171 U. S. 1, 43 L. ed. 49, 18 Sup. Ct.
Rep. 757; Society for Savings v. Coite, 6
Wall. 594, 18 L. ed. 897; Spencer v. Mer-
chant, 125 U. S. 345, 31 L. ed. 763, 8 Sup.
Ct. Rep. 921; Sperry k H. Co. v., Blue, 120
C. C. A. 354, 202 Fed. 82; Sperry k H. Co.
▼. Melton, 69 W. Va. 124, 84 LJt.A.(N.S.)
488, 71 8. S. 19; Sperry ft H. Co. y. Tacoma,
68 Wash. 864, LJLAa916B, 241, 122 Pac
JOdO; SM& r. Pitn^, 79 Wash. 608, 140
Pac. 918, Ann. Cas. 1916A, 209; Stall t.
De Mattos, 23 Wash. 71, 51 L.ILA. 892, 68
Pac. 451; Union P. R. Co. ▼. Peniston, 18
Wall. 5, 21 L. ed. 787; Veazie Bank t.
Tenno, 8 Wall. 533, 19 L. ed. 482; Ward t.
Maryland, 12 Wall. 428, 20 L. ed. 452; Wel-
ton V. Missouri, 01 U. S. 275, 23 L. ed. 347;
Weston T. Charleston, 2 Pet. 449, 7 L. ed.
481; Wiggins Ferry Co. ▼. East St. Louis,
107 U. S. 365, 27 L. ed. 419, 2 Sup. Ct
Rep. 257 ; Williams ▼. Fears, 179 U. 8. 270,
45 L. ed. 186, 21 Sup. Ct. Rep. 128.
The state may prohibit the use of trading
stamps by virtue of the police power.
Allgeyer ▼. Louisiana, 165 U. S. 578, 41
L. ed. 832, 17 Sup. Ct. Rep. 427; Antoni t.
Greenhow, 107 U. S. 769, 27 L. ed. 468;
Atkitt ▼. Kansas, 191 U. S. 207, 48 L. ed.
148, 24 Sup. Ct. Rep. 124; Austin t. Ten-
nessee, 179 U. S. 343, 45 L. ed. 224, 21 Sup.
Ct. Rep. 132; Bacon v. Walker, 204 U. S.
311, 51 L. ed. 409, 27 Sup. Ct. Rep. 289;
Barbier v. Connolly, 113 U. S. 27, 28 L. ed.
923, 5 Sup. Ct. Rep. 357; Barrett ▼. In-
diana, 229 U. S. 29, 57 L. ed. 1052, 33 Sup.
Ct. Rep. 692; Bartemeyer ▼. Iowa, 18 Wall.
129, 21 L. ed. 929; Booth ▼. Illinois, 184
U. S. 425, 46 L. ed. 623, 22 Sup. Ct.' Rep.
425; Central Lumber Co. v. South Dakotii,
226 U. S. 157, 57 L. ed. 164, 33 Sup. Ct
Rep. 66; Charles River Bridge t. Warren
Bridge, 11 Pet 420, 9 L. ed. 773; Chicago,
B. ft Q. R. Co. T. Illinois, 200 U. S. 561, 50
L. ed. 596, 26 Sup. Ct Rep. 341, 4 Ann. Cas.
1175; Chicago, B. ft Q. R. Co. ▼. McGuire,
219 U. S. 549, 55 L. ed. 328, 31 Sup. Ct
Rep. 259; Chicago, R. I. ft P. R. Co. T.
Zemecke, 183 U. S. 582, 46 L. ed. 839, 28
Sup. Ct. Rep. 229; 13 Columbia L. Rer.
296; Com. y. Strauss, 191 Mass. 546, 11
LJl.A.(N.S.) 968, 78 N. E. 136, 6 Ann. Cas.
842; Connolly v. Union Sewer Pipe Co. 184
U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep.
431; Denver v. Frueauff, 89 Colo. 20, 7
L.RJ1.(N.S.) 1131, 88 Pac. 389, 12 Ann.
Cas. 521 ; Dobbins v. Los Angeles, 195 U. 8.
223, 49 L. ed. 169, 25 Sup. Ct. Rep. 18;
Eberle v. Michigan, 232 U. S. 700, 58 L. ed.
803, 34 Sup. Ct Rep. 464; Erie R. Co. v.
Williams, 233 U. S. 685, 58 L. ed. 1156, 61
L.R.A.(N.S.) 1097, 34 Sup. Ct Rep. 761;
Fallbrook Irrig. Dist. v. Bradley, 164 U. S.
112, 41 L. ed. 369, 17 Sup. Ct Rep. 56;
Freund, Pol. Power; Qerman Alliance Ins.
Co. ▼. Lewis, 233 U. S. 389, 58 L. ed. 1011,
L.R.A.1915C, 1189, 34 Sup. Ct. Rep. 618;
Halter v. Nebraska, 205 U. S. 34, 51 L. ed.
696, 27 Sup. Ct Rep. 419, 10 Ann. Caa. 526;
Hammond Packing Co. v. Montana, 233 U.
S. 331, 58 L. ed. 985, 34 Sup. Ct Rep. 596;
Holden t. Hardy, 169 U. S. 366, 42 Lb ed.
780, 18 Sup. Ct Rep. 388; International
Harvester Co. v.' Missouri, 234 U. 8. 199, 68
L. ed. 1276, 52 Lit.A.(N.S.) 626, 34 819.
840 U. ■.
1916.
TANNER Y. LUTLB.
Gt Rep. 859; Re JMdbe» 98 N. Y. 98, 50
Am. Rep. 836; Jaoobeon t. MaMaehuietU,
197 U. 8. 11, 49 li. ed. 043, 25 Sup. Ot. Rep.
358, 3 Ann. Cae. 705; Kanaek y. Peier, 22
Waeh. 419, 50 L.RJk. 345, 01 Pae. 33;
Kehrer y. Stewart, 197 U. 8. 60, 49 L. ed.
003, 25 Sup. Ct Rep. 403; KnozyiUe Iron
Co. Y. Harbison, 183 U. 8. 13, 40 L. ed. 55,
22 Sup. Ct. Rep. 1; lindsley y. Natural
Carbonic Gat Co. 220 U. 8. 01, 55 L. ed.
309, 31 Sup. Ct Rep. 337, Ann. Cai. 1912C,
100; Lochner Y. New York, 198 U. 8. 45,
49 L. ed. 937, 25 Sup. Ct Rep. 539, 3 Ann.
Caa. 1133; LouisYille A N. R. Ca y. Mottl^,
219 U. S. 407, 55 li. ed. 297, 34 LJUL(NJ3.)
071, 31 Sup. Ct. Rep. 205; liagoun y. lUinoia
Trust k Sav. Bank, 170 U. 8. 283, 42 L. ed.
1037, 18 Sup. Ct. Rep. 594; McCracken y.
Ua3rward, 2 How. 008, 11 L. ed. 397; Me-
Cray y. United SUtes, 195 U. 8. 27, 49 L.
ed. 78, 24 Sup. Ct. Rep. 709, 1 Ann. Cat.
501; McKnight y. Hodge, 55 Wash. 289, 40
L.RJl.(N.S.) 1207, 104 Pae. 504; McLean
Y. Arkansas, 211 U. 8. 539, 53 L. ed. 315,
29 Sup. Ct. Rep. 200; Metropolis Theatre
Co. Y. Chicago, 228 U. 8. 01, 57 L. ed. 730,
33 Sup. Ct Rep. 441 ; Missouri, K. A T. R.
Co. Y. May, 194 U. 8. 207, 48 L. ed. 971, 24
Sup. Ct Rep. 038; Missouri P. R. Co. y.
Mackey, 127 U. S. 205, 32 L. ed. 107, 8 Sup.
Ct. Rep. 1161; Muller y. Oregon, 208 U. S.
412, 52 L. ed. 551, 28 Sup. Ct Rep. 324, 13
Ann. Cas. 957; Munn y. Illinois, 94 U. S.
113, 24 L. ed. 77; Murphy y. California,
225 U. S. 023, 50 L. ed. 1229, 41 L.RJk.
(N.S.) 153, 32 Sup. Ct Rep. 697; Noble
State Bank y. Haskell, 219 U. 8. 104, 55 L.
ed. 112, 32 l4.RJL(NJ9.) 1002, 31 Sup. Ct.
Rep. 180, Ann. Cas. 1912A, 487; The Osce-
ola, 189 U. 8. 158, 47 L. ed. 700, 23 Sup. Ct
Rep. 483 ; Otis y. Parker, 187 U. 8. 000, 47
L. ed. 323, 23 Sup. Ct Rq>. 108; Ozan Lum-
ber Co. Y. Union County Nat Bank, 207 U.
8. 251, 52 L. ed. 105, 28 Sup. Ct. Rep. 89;
Patsone y. PennsyWania, 232 U. 8. 138, 58
L. ed. 539, 34 Sup. Ct. Rep. 281; People y.
GiUson, 109 N. Y. 389, 4 Am. St Rep. 465,
17 N. E. 343; People y. Marx, 99 N. Y. 377,
52 Am. Rep. 34, 2 N. E. 29; Petit y. Min-
nesota, 177 U. 8. 168, 44 L. ed. 719, 20 Sup.
Ct Rep. 000; Phalen Y. Virginia, 8 How.
103, 12 L. ed. 1030; Plessy y. Ferguson, 103
U. 8. 537, 41 L. ed. 250, 10 Sup. Ct. Rep.
1138; Powell y. PennsylYania, 127 U. 8.
078, 32 L. ed. 253, 8 Sup. Ct Rep. 992,
1257; Parity Extract A Tonic Co. y. Lynch,
220 U. 8. 192, 57 L. ed. 184, 33 Sup. Ct. Rep.
44; Quoog Wing y. Kirkendall, 223 U. S.
59, 50 L. ed. 350, 32 Sup. Ct. Rep. 192;
Sdimidinger y. Chicago, 220 U. 8. 578, 57 L.
ed. 304, 33 Sup. Ct Rep. 182, Ann. Cas.
1914B, 284; Seattle y. Hurst, 50 Wash. 424,
18 LJRJL(N.S.) 109, 97 Pac 454; Smith y.
Teens, 233 U. a 030, 58 L. ed. 1129, L.RJL
00 li. ed.
1915D, 077, 84 Sup. Ct Rep. 081, Ann. Cas.
1915D, 420; Southwestern Oil Co. y. Tesuts,
217 U. 8. 114, 54 L. ed. 088, 30 Sup. Ct
Rep. 490; State y. Buchanan, 29 Wash. 002,
59 LJUL 342, 92 Am. St. Rep. 930, 70 Pac.
52; Stote Y. Nichols, 28 Wash. 628, 69 Pac
372; SUte Y. Pitney, 79 Wash. 608, 140 Pac
918, Ann. Cas. 1910A, 209; State ex rel.
DaYis*Smith Co. y. Clausen, 05 Wash. 150,
37 LJLA.(N.S.) 400, 117 Pac 1101, 2 N. C.
C. A. 823, 3 N. C. C. A. 599; New York ex
rel. Site y. Hesterberg, 211 U. 8. 31, 53 L.
ed. 75, 29 Sup. Ct Rep. 10; SUte y. Neit-
zel, 09 Wash. 507, 43 L.R.A.(N.S.) 203, 125
Pac 939, Ann. Cas. 1914A, 899; Sturges A
B. Mfg. Co. Y. Beauchamp, 231 U. 8. 320, 58
L. ed. 245, LJLA.1915A, 1190, 34 Sup. Ct
Rep. 60; Watson y. Maryland, 218 U. 8.
174, 54 L. ed. 988, 30 Sup. Ct Rep. 644;
Welch Y. Swasey, 214 U. S. 91, 53 L. ed.
923, 29 Sup. Ct Rep. 567; State y. Under-
wood, — La. — ^,71 So. 513.
In the Yast majority of the cases in which
it has been hdd that the trading stamp and
coupon business could not be prohibited, the
courts haYC limited the police power to the
protectMm of the public health, morals and
safety, a Yiew considerably more limited
than that which has been held by this court
cYen from the time of the case of Barbier y.
Connolly, 113 U. 8. 27, 28 L. ed. 923, 5 Sup.
Ct Rep. 357.
Com. Y. Emerson, 165 Mass. 146, 42 N. E.
659; Com. Y. Gibson Co. 125 Ky. 440, 101
S. W. 385; C(«i. Y. Moorhead, 7 Pa. Co. Ct.
513; Com. Y. Sisson, 178 Mass. 578, 00 N. E.
385; DeuYcr y. Frueauff, 39 Colo. 20, 7
L.RJk.(NJ3.) 1131, 88 Pac. 389, 12 Ann.
Cas. 521; District of Columbia y. Kraft, 35
App. D. C. 253, 30 L.R.A.(NJ3.) 957; Ex
parte Drexel, 147 Cal. 703, 2 L.ItA.(N.S.)
588, 82 Pac. 429, 3 Ann. Cas. 878; Fleet-
wood Y. Read, 21 Wash. 547, 47 L.R.A. 205,
68 P&c. 005; Gamble y. Montgomery, 147
Ala. 082, 39 So. 353; Re Gregory, 219 U. 8.
210, 55 L. ed. 184, 31 Sup. Ct Rep. 143;
Hewin y. Atlanta, 121 Ga. 731, 07 L.RJL
795, 49 8. E. 765, 2 Ann. Cas. 296; Humes
Y. Ft Smith, 93 Fed. 857 ; Humes y. Little
Rock, 138 Fed. 929; Ex parte Hutchinson,
137 Fed. 949; Ex parte Hutchinson, 137
Fed. 950; Trading Stamp Co. y. Memphis,
101 Tenn. 181, 47 8. W. 130; Kane y. Seg-
erstrom Piano Mfg. Co. 118 Minn. 483, 41
L.RA.(N.8.) 1041, 137 N. W. 170; Lans-
burgh Y. District of Columbia, 11 App. D. C.
512; Leonard y. Bassindale, 46 Wash. 301,
89 Pac. 879; Little y. Tanner, 208 Fed. 605;
Long Y. SUte, 74 Md. 505, 12 L.R.A. 425,
28 Am. 8t Rep. 208, 22 AtL 4; Ex parte
McKenna, 120 Cal. 429, 58 Pac. 910; Mont-
gomery ▼. Kelly, 142 Ala. 552, 70 LJR.A.
209, 110 Am. St Rep. 43, 38 So. 07 ; Oilure
Wg. Go. T. Pidduck-Rosi Go. 38 Wash. 137,
SUPREME CX)URT OF THE UNITED STATES.
Oct. jEBSf,
80 Pac. 276; O'Keeffe t. Somerville, 190
Mass. 110, 112 Am. St. Rep. 316, 76 N. £.
457, 6 Ann. Cas. 684; Opinion of Justices,
208 Mass. 607, 94 N. E. 848 ; People y. Gill-
son, 100 N. Y. 389, 4 Am. St. Rep. 465, 17
N. E. 343; People ex rel. Appel v. Zimmer-
man, 102 App. Div. 103, 92 N. Y. Supp.
497; Sperry k H. Co. v. Blue, 120 C. C. A.
354, 202 Fed. 82; Sperry & H. Co. ▼. Brady,
134 Fed. 601; Sperry k H. Co. ▼. Melton,
69 W. Vs. 124, 34 L.R.A.(N.S,) 433, 71 8.
E. 19; Sperry k H. Co. v. Owensboro, 151
Ky. 389, 151 S. W. 932, Ann. Cas. 1915A,
373; Sperry k H. Co. v. Tacoma, 190 Fed.
682, 68 Wash. 254, L.R.A.1915B, 241, 122
Pac. 1060, 199 Fed. 853; Sperry k H. Co. v.
Temple, 137 Fed. 992; SUte ex rel. Harti-
gan v. Sperry k H. Co. 94 Neb. 785, 49
L.RJ^.(NJS.) U23, 144 N. W. 795; SUte
ex rel. Madden ▼. Dycker, 72 App. Div. 308,
76 N. Y. Supp. Ill; SUte v. Caspare, 115
Md. 7, 80 Atl. 606; SUte v. Dalton, 22 R. I.
77, 48 L.R.A. 775, 84 Am. St. Rep. 818, 46
AtL 234; SUte ▼. Dodge, 76 Vt. 197, 56 Atl.
983, 1 Ann. Cas. 47; SUte v. Hawkins, 95
Md. 133, 93 Am. St. Rep. 328, 51 Atl. 850;
SUte v. Pitney, 79 Wash. 608, 140 Pac 018,
Ann. Cas. 1916A, 209, 80 Wash. 699, 141 Pac.
883; SUte ▼. Ramseyer, 73 N. H. 31, 58 Atl.
058, 6 Ann. Cas. 445 ; SUU v. Shugart, 138
Ala. 86, 100 Am. St. Rep. 17, 35 So. 28; SUte
ex rel. Simpson v. Sperry k H. Co. 110
Minn. 378, 30 L.R.A.(N.S.) 966, 126 N.'W.
120; SUte v. Walker, 105 La. 494, 29 So.
973; Territory v. M. A. Ounst k Co. 18 Haw.
196; Van Deman k L. Co. v. Rast, 214 Fed.
828; Ex parte West, 147 Cal. 774, 82 Pac.
434; SUte ▼. Underwood, — La. — , 71 So.
513; Winsten v. Beeson, 135 N. C. 271, 65
L.RJ^. 167, 47 S. E. 457 ; Winston v. Hud-
son, 185 N. C. 286, 47 S. E. 1023; Young ▼.
Com. 101 Va. 853, 45 S. E. 327.
The appellees are merchanto using trad-
ing sUmps in their business. They, there-
fore, have no legal interest in the question
of the right of anyone to sell stamps te
merchanU.
Albany County t. SUnley, 105 U. 8. 305,
26 L. ed. 1044; Turpin v. Lemon, 187 U. S.
51, 47 L. ed. 70, 23 Sup. Ct. Rep. 20; The
Winnebago (Iroquois Transp. Co. v. De
Laney Forge k Iron Co.) 205 U. S. 354, 51
L. ed. 836, 27 Sup. Ct. Rep. 509; Patsone t.
Pennsylvania, 232 U. S. 138, 58 L. ed. 539,
34 Sup. Ct. Rep. 281.
Mr. Blackburn Interline also argued
the cause for appellanU
Mr. W. T. DoTell argued the cause, and,
with Mr. Frank T. Wolcott, filed a brief for
appellees:
As authority for the maintenance of this
action to restrain sUte officers from the
threatened enforcement of an unconstitu-
•f8
tional enactment, our reliance is upon the
doctrine of Ex parte Young, 209 U. 8. 123,
52 L. ed. 714, 18 L.R.A.(N.S.) 932, 28 Sup.
Ct Rep. 441, 14 Ann. Cas. 764, and Western
U. Teleg. Co. t. Andrews, 216 U. S. 165, 54
L. ed. 430, 30 Sup. Ct Rep. 286.
The act is prohibitive.
Murphy ▼. California, 225 U. S. 623, 56
L. ed. 1229, 41 L.RJL.(N.S.) 153, 32 Sup.
Ct. Rep. 697; Rosenthal v. New York, 226
U. 8. 260, 57 L. ed. 212, 33 Sup. Ct. Rep. 27,
Ann. Cas. 1914B, 71; SUte v. Pitney, 79
Wash. 608, 140 Pac. 918, Ann. Cas. 1916A,
209.
To prohibit the conduct of the business
is contrary te the law of the land.
Cotting V. Kansas City Stock Yards Co.
(Cotting V. Godard) 183 U. S. 79, 46 L. ed.
92, 22 Sup. Ct. Rep. 30; Dobbins ▼. Los
Angeles, 195 U. 8. 223, 49 L. ed. 169, 25
Sup, Ct. Rep. 18; Gulf, C. ft S. F. R. Co. v.
Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup.
Ct. Rep. 255 ; Halter v. Nebraska, 205 U. S.
34, 51 L. ed. 696, 27 Sup. Ct. Rep. 419, 10
Ann. Cas. 525; Holden v. Hardy, 169 U. S.
366, 42 L. ed. 780, 18 Sup. Ct Rep. 383;
Lawten v. Steele, 152 U. S. 133, 38 L. ed.
385, 14 Sup. Ct Rep. 499; Mugler v. Kan-
sas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct
Rep. 273.
Does the prohibition fall within the police
power because it tends te limit extrava-
gance?
Allnutt V. Inglis, 12 East, 527, 11 Revised
Rep. 482; Cooley's Bl. Com. bk. 1, p. 125;
Cooley, Const. Lim. 7th ed. p. 549; Ex parte
Dickey, 144 Cal. 234, 66 L.ILA. 928, 103
Am. St. Rep. 82, 77 Pac. 924, 1 Ann. Cas.
428; 2 Farrand, Records of the Federal
Convention, p. 344; German Alliance Ins.
Co. y. Lewis, 233 U. S. 389, 58 L. ed. 1011,
L.RJL.1915C, 1189, 34 Sup. a. Rep. 612;
Humes v. Little Rock, 138 Fed. 929 ; Keokee
ConsoL Coke Co. v. Taylor, 234 U. 8. 224, 58
L. ed. 1288, 34 Sup. Ct. Rep. 856; Noble
SUte Bank v. Haskell, 219 U. 8. 104, 55 L.
ed. 112, 32 L.R.A.(N.S.) 1062, 31 Sup. Ct
Rep. 186, Ann. Cas. 1912A, 487 ; Patsone v.
Pennsylvania, 232 U. 8. 138, 58 L. ed. 539,
34 Sup. Ct Rep. 281; People v. Gillson, 109
N. Y. 389, 4 Am. St Rep. 465, 17 N. E. 343;
People V. Steele, 231 111. 340, 14 LJIJL
(N.S.) 361, 121 Am. St Rep. 321, 83 N. E.
236; People ex rel. Appel v. Zimmerman,
102 App. Div. 103, 92 N. Y. Supp. 497;
Pulhnan Co. v. Knott, 235 U. 8. 23, 59 L.
ed. 105, 35 Sup. Ct. Rep. 2; Ex parte Quarg,
149 Cal. 79, 5 L.R.A.(N.S.) 183, 117 Am.
St Rep. 115, 84 Pac. 766, 9 Ann. Cas. 747;
Seattle v. Dencker, 58 Wash. 501, 28 L.R.A.
(N.8.) 446, 137 Am. St Rep. 1076, 108 Pac
1086; SUte V. Fir# Creek Coal k Coke Ca
33 W. Va. 188, 6 L.R.A. 359, 25 Am. St
Rep. 891, 10 8. E. 288; Stickney, SUte Con-
140 V. 8.
1915.
TANNER V. LITTLE.
trol of Trade k Commerce, chap. 1, p. 100;
Tiedeman, Limitations of Pol. Power, p.
154.
Is the act brought within the police power
because it may foster intermediate con-
cerns?
Denver t. Frueauff, 39 Colo. 20, 7 L.R.A.
(N.S.) 1131, 88 Pac. 389, 12 Ann. Gas. 521;
Winston v. Bceson, 135 N. C. 271, 65 L.R.A.
167, 47 S. E. 457; Com. v. Gibson Co. 125
Ky. 440, 101 S. W. 385; People ex rel. Mad-
den V. Dycker, 72 App. Dir. 308, 76 N. Y.
Supp. Ill; People ex rel. Appel v. Zimmer-
man, 102 App. Div. 103, 92 N. Y. Supp. 497;
State V. Dalton, 22 R. I. 77, 48 L.ILA.* 775,
84 Am. St. Rep. 818, 46 Atl. 234; State v.
Ramseyer, 73 N. H. 81, 58 Atl. 958, 6 Ann.
Cas. 445; State ex rel. Simpson v. Sperry
A H. Co. 110 Minn. 378, 30 L.R.A.(N.S.)
966, 126 N. W. 120; Wiseman Y. Tanner,
221 Fed. 694.
The act denies equal protection of the law
because the attempted classification for the
purpose of a license tax is purely arbitrary.
Bell's Gap R. Co. v. Pennsylvania, 134 U.
8. 232, 33 L. ed. 892, 10 Sup. Ct. Rep. 533;
Winston v. Beeson, 135 N. C. 271, 65 L.R.A.
167, 47 S. E. 457; Com. v. Gibson Co. 125
Ky. 440, 101 S. W. 385; Connolly v. Union
Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679,
22 Sup. Ct. Rep. 431; Ex parte Drexel, 147
Cal. 763, 2 L.R.A.(N.S.) 588, 82 Pac. 429,
3 Ann. Cas. 878; Gulf, C. A S. F. R. Co. v.
Ellis, 105 U. S. 150, 41 L. ed. 666, 17 Sup.
Ct. Rep. 255 ; Ex parte Hutchinson, 137 Fed.
949; Ex parte Hutchinson, 137 Fed. 950;
Southern R. Co. v. Greene, 216 U. S. 400,
54 L. ed. 536, 30 Sup. Ct. Rep. 287, 17 Ann.
Cas. 1247 ; Sperry k H. Co. v. Temple, 137
Fed. 992; State v. Loomis, 115 Mo. 307, 21
L.R.A. 789, 22 S. W. 350.
The adjudicated cases have held the class-
ification arbitrary.
Montgomery v. Kelly, 142 Ala. 552, 70
L.R.A. 209, 110 Am. St. Rep. 43, 38 So. 67;
Com. V. Gibson Co. 125 Ky. 440, 101 8. W.
385; Hewin v. Atlanta, 121 Ga. 723, 67
L.R.A. 795, 49 S. E. 765, 2 Ann. Cas. 296;
Ex parte McKenna, 126 Cal. 429, 58 Pac.
916; O'Keeffe v. Somerville, 190 Mass. 110,
112 Am. St. Rep. 316, 76 N. E. 457, 5 Ann.
Cas. 684; Van Deman k L. Co. v. Rast, 214
Fed. 827.
If the business or practice is lawful, it
may not be prohibited indirectly by a
license tax.
Connolly v. Union Sewer Pipe Co. 184 U.
8. 560, 46 L. ed. 690, 22 Sup. Ct. Rep. 431;
Cooley, Taxn. 3d ed. pp. 260, 1140, 1143;
Flint V. Stone Tracy Co. 220 U. S. 107, 55 I
L. ed. 389, 31 Sup. Ct. Rep. 342, Ann. Cas.
1912B, 1312; 26 Harvard L. Rev. 682; |
Kehrer t. Stewart, 197 U. S. 60, 49 L. ed. i
663, 25 Sup. Ct. Rep. 403; Kirtland T.
•0 L. ed.
Hotchkias, 100 U. S. 491, 2^ L. ed. 558;
McCray v. United States, 195 U. S. 27, 49
L. ed. 78, 24 Sup. Ct. Rep. 769, 1 Ann. Cafc.
561; M'Culloch v. Maryland, 4 Wheat. 316,
4 L. ed. 579; 3 McQuillin, Mun. Corp. §
1002; Postal Teleg. Cable Co. v. Charleston,
153 U. S. 692, 38 L. ed. 871, 4 Inters. Coul
Rep. 637, 14 Sup. Ct. Rep. 1094; Spencer
V. Merchant, 125 U. S. 345, 31 L. ed. 763,
8 Sup. Ct. Rep. 921; Union P. R. Co. v.
Peniston, 18 Wall. 5, 21 L. ed. 787 ; Veazie
Bank v. Fenno, 8 Wall. 533, 19 L. ed. 482;
Weston V. Charleston, 2 Pet. 449, 7 L. ed.
481; Wiggins Ferry Co. v. East St. Louis,
107 U. 6. 365, 27 L. ed. 419, 2 Sup. Ct. Rep
257.
Repeated attempts to enact such legisla-
tion offer no argument for its constitution-
ality.
Chaddock t. Day, 75 Mich. 527, 4 L.RJL.
809, 13 Am. St. Rep. 468, 42 N. W. 977;
Gulf, C. k S. F. R. Co. V. Ellis, 165 U. S.
150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255;
Marbury v. Madison, 1 Cranch, 137, 2 h,
ed. 60.
The "retail market price" provision in the
act renders it unconstitutional.
Bishop, Statutory Crimes, 2d ed. § 41;
Brown v. State, 137 Wis. 543, 119 N. W.
338; Buckles v. State, 5 Okla. Crim. Rep.
109, 113 Pac. 244; Chicago k N. W. R. Co.
V. Dey, 1 L.RJ^. 744, 2 Inters. Com. Rep.
325, 35 Fed. 866; Collins v. Kentucky, 234
U. S. 634, 58 L. ed. 1510, 34 Sup. Ct. Rep.
924; Cook V. SUte, 26 Ind. App. 278, 59
N. E. 489; International Harvester Co. v.
Kentucky, 234 U. S. 216, 58 L. ed. 1284, 34
Sup. Ct Rep. 853; Kilboume v. State, 84
Ohio St. 247, 35 L.RJL(N.S.) 766, 95 N. E.
824; 2 Lewis's Sutherland Stat. Constr. 2d
ed. § 520; Louisville k N. R. Co. v. Com. 99
Ky. 132, 33 L.R.A. 209, 59 Am. St. Rep.
457, 35 S. W. 129 ; Matthews v. Murphy, 23
Ky. L. Rep. 750, 54 L.RwA. 415, 63 S. W.
785; Savage ▼. Wallace, 165 Ala. 572, 51
So. 605; Tozer v. United SUtes, 4 Inters.
Com. Rep. 245, 52 Fed. 917.
The act is invalid because its observance ^
requires the removal of inserts.
Asbell V. Kansas, 209 U. S. 251, 52 L. ed.
778, 28 Sup. Ct. Rep. 485, 14 Ann. Cas.
1101; Bettman v. Warwick, 47 C. C. A. 186,
108 Fed. 46; Com. v. R. I. Sherman Mfg.
Co. 189 Mass. 76, 75 N. E. 71, 4 Ann. Cas.
268; Felsenheld v. United SUtes, 186 U. S.
126, 46 L. ed. 1085, 22 Sup. Ct. Rep. 740;
Halter v. Nebraska, 205 U. S. 34, 51 L. ed.
696, 27 Sup. Ct. Rep. 419, 10 Ann. Cas.
525; M'Culloch v. Maryland, 4 Wheat. 316,
4 L. ed. 579; McDermott v. Wisconsin, 228
U. S. 115, 57 L. ed. 754, 47 L.R.A.(N.S.)
984, 33 Sup. Ct. Rep. 431, Ann. Cas. 1915A,
39; Missouri, K. ft T. R. Co. v. Haber, 169
U. S. 613, 42 L. ed. 878, 18 Sup. Ct. Rep.
880, 881
SUPREME COURT OF THE UNITED STATES.
OoT. Tknc,
488; Mngler ▼. Kmnsas, 123 U. S. 828, 81 L.
ed. 208, 8 Sup. Ct. Rep. 278; Northern P.
R. Co. ▼. Wftflhington, 222 U. S. 370, 56
L. ed. 237, 32 Sup. Ct. Rep. 160; People ex
reL MePike t. Van De Carr, 178 N. Y. 425,
66 L.R.A. 180, 102 Am. St. Rep. 516, 70
N. E. 965; People ex rel. Appel ▼. Zimmer-
man, 102 App. DiT. 103, 02 N. Y. Supp.
497; Savage ▼. Jones, 225 U. S. 501, 56 L.
ed. 1182, 32 Sup. Ct. Rep. 715; Second Em-
ployers' Liability Cases (Mondou y. New
York, N. H. A H. R. Co.) 223 U. S. 1, 56
L. ed. 327, 38 L.RJL.(N.S.) 44, 32 Sup. Ct.
Rep. 169, 1 N. C. C. A. 875; Sinnot ▼.
Darenport, 22 How. 227, 16 L. ed. 243;
Smith ▼. Alabama, 124 U. S. 465, 31 L. ed.
508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep.
564; Southern R. Co. v. Reid, 222 U. S.
424, 56 L. ed. 257, 32 Sup. Ct. Rep. 140;
Texas ft P. R. Co. ▼. Abilene Cotton Oil Co.
204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct.
Rep. 350, 0 Ann. Cas. 1075.
The excessive penalty renders the act un-
constitutionaL
Bonnett ▼. Vallier, 136 Wis. 193, 17
LJl.A.(N.S.) 486, 128 Am. St. Rep. 1061,
116 N. W. 885; Consolidated Oas Co. v.
New York, 157 Fed. 849; Cotting v. Kansas
City Stock Yards Co. (Cotting v. Godard)
183 U. S. 79, 46 L. ed. 92, 22 Sup. Ct. Rep.
30; Grenada Lumber Co. v. Mississippi, 217 I
U. S. 483, 54 L. ed. 826, 30 Sup. Ct. Rep.
535; Missouri P. R. Co. v. Tucker, 230 U.
S. 340, 57 L. ed. 1507, 33 Sup. Ct. Rep.
961; Portland R. Light k P. Co. v. Port-
land, 201 Fed. 119; Reagan v. Farmers'
Loan k T. Co. 154 U. S. 362, 38 L. ed. 1014,
4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep.
1047; Southwestern Oil Co. v. Texas, 217
U. S. 114, 54 L. ed. 688, 30 Sup. Ct. Rep.
496; SUte V. Crawford, 74 Wash. 248, 46
L.R.A.(N.S.) 1039, 133 Pac. 590; United
States ex rel. Atty. Gen. y. Delaware k H.
Co. 213 U. S. 866, 53 L. ed. 836,. 29 Sup.
Ct Rep. 527; Waters-Pierce Oil Co. v.
Texas, 212 U. S. 112, 53 L. ed. 431, 29 Sup.
Ct Rep. 227; Ex parte Young, 209 U. S.
128, 52 L. ed. 714, 13 L.RJL.(N.S.) 932, 28
Sup. Ct. Rep. 441, 14 Ann. Cas. 764. 1
[380] Mr. Justice McKenna, after stat-
ing the case as above, delivered the opinion
of the court:
The court ruled against the motions to
dismiss, and, concurring with the ruling as
far as it retained jurisdiction of the suits
and the persons of the defendants, we pass
to the consideration of the validity of the
statute of the state. Of that it was said:
'The court is fully aatisfled from a bare in-
spection of the act without more, and with-
out considering the affidavits on file, that it
is and was intended to be prohibitive of the
business methods against which it is direct-
fOO
ed. It is plainly manifest thfi no mer-
chant could afford to pay the sum of $6,000
annually for the mere privilege of giving
away trading stamps or allowing discounts
on his cash sales. But if this were the only
objection to the act, it may be that tfaie
courts would be powerless to enjoin its exe-
cution. The power of taxation rests upon
necessity and is inherent in every inde-
pendent state. It is as extensive as the
range of subjects over which the govern-
ment extends; it is absdlute and unlimited,
in the absence of constitutional limitations
and restraints, and carries with it the
poweV to embarrass and destroy. Postal
Teleg. Cable Co. v. Charleston, 153 U. 8.
699, 38 L. ed. 874, 4 Inters. Com. Rep.* 637,
14 Sup. Ct. Rep. 1094; McCray v. United
States, 195 U. S. 27, 49 L. ed. 78, 24 Sup. Ct.
Rep. 769, 1 Ann. Cas. 561 ; Kehrer v. Stew-
art, 197 U. S. 60, 49 L. ed. 603, 26 Sup. Ct.
Rep. 403." [208 Fed. 609.]
The charge of discrimination against the
statute was decided to be a factor as to its
validity. The use of trading stamps and
other similar devices was regarded as a
legitimate system of advertising, and that
to distinguish it from other systems of
advertising was a violation of the
equality clause of the Federal Consti-
tution. And it was said: "As well
might the legislature classify separately
those who advertise in the columns of the
daily papers, by bill boards, or by electrical
signs, and impose a tax upon them to the
exclusion of others engaged in the same
business or calling who do not so advertise."
[381] In this conclusion we think, for the
reasons expressed in Rast v. Van Deman k
L. Co. just decided [240 U. S. 342, ante, 679,
36 Sup. Ct. Rep. 370], that the court erred.
We have been at pains to summarize the
bill in this case to show its similitude to
that.
The coupons in this case, in compliance
with the law of the state of Washington
(Laws of 1907, p. 742), must be redeemed
in cash if demanded by the purchaser;
otherwise in articles of merchandise selected
by him. The redemption of the coupons in
some instances is directly by the merchant
issuing them; in others, it is alleged, by "a
third party, with whom said complainants
have a contract for the use of their trading
stamps or coupons used in connection there-
with and the redemption thereof in mer-
chandise." These differences, however, do not
affect the principle announced in No. 41.
Whether the coupona are prepared by the
issuing merchant or prepared by another,
whether they be redeemed by him or by an*
other, is but a phase of the system, not af-
fecting its essential character. And we may
say here, as we said in No. 41, that we are
840 U. 8;
J015.
TANNSR ▼. LITTLS.
881-383
not concerned with consideration of a busi-
neia in which coupons, etc, are issued or
used and not redeemed in merchandise; that
is, where they are used as a rebate upon the
price of the article or a discount upon pur-
chases, nor with the legality of a statute
which should regulate or prevent such use of
the coupons disassociated from other uses of
them. Complainants contend for a broad
use, and assert tlu:t there cannot legally be
any limitation of their methods of redemp-
tion, which they comprehensively denomi-
nate the "premium system."
The opinion in No. 41 is, therefore, de-
cisive of the contentions in this case. We
said there that there were manifest dif-
ferences between the "premium system" of
advertising and the other methods enum-
erated, and that those differences justified a
difference in measures. And this is justified
not only by the wide [382] discretion which
may be exercised in legislation, but by a
rigid principle of classification. Classifi-
cation is not different in law than in other
departments of knowledge. "It is the
grouping of things" in speculation or prac-
tice because they 'agree with one another in
certain particulars and differ from other
things in those particulars.'" Billings v.
Illinois, 188 U. S. 97, 102, 47 L. ed. 400,
403, 23 Sup. Ct. Rep. 272. Upon what dif-
ferences or resemblances it may be exercised
depends necessarily upon the object in view,
may be narrow or wide according to that
object. Red things may be associated by
reason of their redness, with disregard of
all other resemblances or of distinctions.
Such classification would be logically ap-
propriate. Apply it further: make a rule of
conduct depend upon it, and distinguish in
legislation between red-haired men and
black-haired men, and the classification
would immediately be seen to be wrong; it
would have only arbitrary relation to the
purpose and province of legislation. The
power of legislation over the subject-matter
is hence to be considered. It may not make
the distinction adverted to, but it may make
others the appropriateness of which, con*
sidered logically, may be challenged; for
instance: between sales of stock upon
margin or for immediate or future delivery
(Otis V. Parker, 187 U. S. 600, 47 L. ed.
323, 23 Sup. Ct. Rep. 168); between acts
directed against a regularly established
dealer and one not so established (Central
Lumber Co. v. South Dakota, 226 U. S. 157,
€7 L. ed. 164, 33 Sup. Ct. Rep. 66) ; in an
inspection law, between coal mines where
more than five men are employed and coal
mines where that or a lesser number are em-
ployed (Consolidated Coal Co. v. Illinois,
186 U. S. 203, 46 L. ed. 872, 22 Sup. Ct.
Rep. 616) ; and a like distinction in a work-
•0 Jj. ed.
men's compensation law (Jeffrey Mfg. Co.
V. Blagg, 235 U. S. 571, 50 L. ed. 364, 35
Sup. Ct Rep. 167, 7 N. C. C. A. 570) ; be-
tween a combination of purchasers and a
combination of laborers (International
Harvester Co. v. Missouri, 234 U. S. 199,
58 L. ed. 1276, 52 L.R.A.(K.S.) 525, 34 Sup.
Ct. Rep. 859) ; between residents and non-
residents (Travellers' Ins. Co. v. Connecticut,
185 U. S. 364, 46 L. ed. 949, 22 Sup. Ct. Rep.
673) ; in a law requiring railroads to heat
passenger coaches, between roads of 50 miles
and [383] roads of that length or less ( New
York, N. H. k H. R. Co. v. New York, 165
U. S. 628, 41 L. ed. 853, 17 Sup. Ct. Rep.
418; see also Dow v. Beidelman, 125 U. S.
680, 31 L. ed. 841, 2 Inters. Com. Rep. 56, 8
Sup. Ct. Rep. 1028; Postal Teleg. Cable Co.
V. Adams, 155 U. S. 688, 39 L. ed. 311, 5
Inters. Com. Rep. 1, 15 Sup. Ct. Rep. 268,
360) ; between theaters according to the
price of admission (Metropolis Theatre Co.
V. Chicago, 228 U. S. 61, 57 L. ed. 730, 33
Sup. Ct. Rep. 441) ; between landowners as
to liability for permitting certain noxious
grasses to go to seed on the lands (Mis-
souri, K. k T. R. Co. V. May, 194 U. S. 267,
48 L. ed. 971, 24 Sup. Ct. Rep. 638) ; be-
tween businesses in the solicitation of
patronage on railroad trains and at depots
(WiUiams v. Arkansas, 217 U. S. 70, 54 L.
ed. 673, 30 Sup. Ct. Rep. 493, 18 Ann. Cas.
865); and a distinction based on the evi-
dence of the qualifications of physicians
(Watson V. Maryland, 218 U. S. 179, 54 L.
ed. 990, 30 Sup. Ct. Rep. 644 ) .
Those were instances (and others might
be cited) of the regulation of conduct and
the restriction of its freedom, it being the
conception of the legislature that the regu-
lation and restriction were in the interest
of the public welfare. Those classifications
were sustained as legal, being within the
power of the legislature over the subject-
matter, and having proper bases of com-
munity.
But the classification which was sus-
tained in Consolidated Coal Co. v. Illinois,
185 U. S. 203, 46 L. ed. 872, 22 Sup. Ct.
Rep. 616, was condemned in Truax v. Raich,
239 U. S. 33, ante, 131, 36 Sup. Ct. Rep. 7.
The statute in the latter case required em-
ployers of more than five workers at any one
time to employ not less than 80 per cent
qualified electors or native-born citizens of
the United States or of some subdivision of
such. The statute was held void because
there was no authority to deal with that at
which the legislation was aimed. And this
is important to be kept in mind. If there
is no such authority, a classification, how-
ever logical, appropriate, or scientific, will
not be sustained; if such authority exist, a
classification may be deficient in those at-
383-386
SUPREME COURT OF THE UNITED STATES.
Oct. Tsui,
tributes, may be harsh and oppressive, and
yet be within the power of the legislature.
This has been declared many times. Let us
• apply the test to the case at bar. Let it
be granted that the "premium system" is a
method of advertising; can there not be
differences in advertising [384] which may
be subject to differences jm legislation ? Can
there not be advertising at places or at
times or in kind or effect subversive of pub-
lic order or convenience? Fifth Ave. Coach
Co. V. New York, 221 U. S. 467, 66 L. ed.
816, 31 Sup. Ct. Rep. 709; Com. ▼. Mc-
Cafferty, 145 Mass. 384, 14 N. E. 451. How-
ever, a decisive answer to the questions need
not be given, for we have said, in Rast v.
Van Deman k L. Co. that the ''premium
system" is not one of advertising merely.
It has other, and, it may be, deleterious,
consequences. It does not terminate with
the bringing together of feller and buyer,
the profit of one and the desire of the other
satisfied, the article bought and its price
being equivalents. It is not so limited in
purpose or effect. It has ulterior purpose,
and how it has developed complainants
vividly {represent by their averments. It ap-
pears that companies are formed, called
trading stamp companies, l which extend
and facilitate the schemes, making a seller
of merchandise their agent for the distri-
bution of stamps to be redeemed by them or
other merchants, the profit of all being se-
cured through the retail purchaser who has
been brought under the attraction of the
system. There must, therefore, be some-
thing more in it than the giving of dis-
counts, something more than the mere
laudation of wares. If companies— evolved
from the system, as counsel say in justifi-
cation of them — are able to reap a profit
from it, it may well be thought there is
something in it which is masked from the
common eye, and that the purchaser at re-
tail is made to believe that he can get more
out of the fund than he has put into it,
something of value which is not offset in
the prices or quality of the articles which he
buys. It is certain that the prices he pays
make the [385] efficiency of the system and
the fund, if we may individualize it, out of
which the cost of the instruments and
agents of the system must be defrayed and
the profit to all concerned paid. The sys-
tem, therefore, has features different from
the ordinary transactions of trade which
iLansburgh v. District of Columbia, 11
App. D. C. 512; State ex rel. Simpson
y. bperry k H. Co. 110 Minn. 378, 30 L.R.A.
(N.S.) 066, 126 N. W. 120; State ▼. Under-
wood, decided October 18, 1015, by the su-
preme court of Louisiana; Hewin v. At-
lanta, 121 Ga. 723, 67 L.RJ^. 705, 40 S. E.
Z0^, 2 Ann. Cm, 296,
702
have their impulse, as we have said, in im-
mediate and definite desires having definite
and measurable results. There may be Ib
them at times reckless buying, but it is not
provoked or systematized by the seller.
Complainants charge that the tax of the
statute is not upon the business, but upon
its incidents. Tlie separation is artifidaL
It is the incidents which give character to
the business, affecting it with evil, it was
thought, provoking therefore against it the
power of the state, and taking away from
it the immunity it else might have.
It is unimportant what the incidents may
be called, whether a method of advertising,
discount giving, or profit sharing. Their
significance* is not in their designations, but
in their infiuence upon the public welfare.
And of this the judgment of the legislature
must prevail, though it be controverted and
opposed by arguments of strength. Nor is
there support of the system or obstruction
to the statute in declamation against sump-
tuary laws, nor in the assertion that there
is evil lesson in the statute, nor in the
prophecies which are ventured of more seri-
ous intermeddling with tlie conduct of
business. Neither the declamation, the as-
sertion, nor the prophecies can influence a
present judgment. As to what extent legis-
lation should interfere in affairs political
philosophers have disputed and always will
dispute. It is not in our province to engage
on either side, nor to pronounce anticipatory
judgments. We must wait for the instance.
Our present duty is to pass upon the stat-
ute before us, and if it has been enacted
upon a belief of evils that is not arbitrary
we cannot measure their extent against the
estimate of the legislature. McLean ▼.
Arkansas, 211 U. S, 530, 53 L. ed. 315, 20 Sup.
Ct. Rep. 206. Such belief [386] has many
examples in state legislation, and, we have
seen, it has persisted against adverse judi-
cial opinion. If it may be said to be a judg-
ment from experience as against a judgment
from speculation; certainly, from its gener-
ality, it cannot be declared to be made in
mere wantonness. Central Lumber Co. v.
South Dakota, 226 U. S. 167, 100, 57 L. ed.
164, 160, 33 Sup. Ct. Rep. 66; Purity Ex-
tract A Tonic Co. v. Lynch, 226 U. S. 102,
204, 205, 57 L. ed. 184, 188, 180, 33 Sup.
Ct. Rep. 44.
Discrimination aside, the power to enact
the legislation we need not discuss, but may
refer to the opinion in No. 41. Of course,
it is in the exercise of the police power of
the state. We will not here define it or it»
limitations. As was said by Mr. Justice
Brown, in Cam field v. United States, 167 U.
S. 518, 524, 42 L. ed. 260, 262, 17 Sup. Ct
Rep. 864, citing Rideout ▼. Knox, 148 Masiu
368, 2 L.R.A. 81, 12 Am. St Rep. 660, 10
S40 U. 8.
1»1C PITNEY T. WASHINaTON. IN, W7
N. E. 390: "Th* police power !■ not mbject The extonaiTe use of thU eTstcni of ad-
to aaj dednite limitation*, but ia coexten- rertiafng ia ao much % matter of conunOB
aive with the neceaaitiea of the can mud the knowledge th>t many courta, having under
taf^liard of tiie public iatcreats." eonaideration atatutea aimiUr to that hen
In the view Uiat the license is prohlbitlva involved, have referred to that fact,
we may concur, and concede that aueh ia the People ex rel. Appel t. Zimmerman, 102
effect given it bj the supreme court of the App. DIt, 103, 98 N. Y. Supp. 497 ; State
aUte in SUte v. Pitney, BO Waih. 699, 141 ei rel. Simpaon v. Bperry t H. Co. 110
Pac. BS3, one of the casea submitted with Hinn. 376, 30 L.R.A.(N.S.) 060, 126 N. W.
thia one. And we think it was competent ISOj State ex rel. Hartigan v. Sperry t H.
for the sUte to give it that effect. The cases Co. »4 Neb. T8S, 4» L.R.A.(N.S.) 1123,144
cited by Judge Rudkin and those cited io the N. W. 70S; State v. Dodge, 76 Vt. 1B7, 06
opinion in No. 41 ao eatabllah. AtL 083, 1 Ann. Cai. 47 ; Young v, Com.
For answer to the other contentions which 101 Va. 863, 4S S. B. 327.
we consider material to notice we refer to The lawfulness of the trading stamp and
No. 41. premium advertising business has often been
Decree reversed and case remanded with auatained.
directions to dUmiaa the bllL SUte t. Dodge, 76 Vt. 197, 66 Atl.' 9S3, 1
Ann. Caa. 47; Young v. Com. 101 Va. 868,
4S S. E. 327; People ». Gillson. 100 N. Y.
ST.T. 0, w^smo^N. lJ*''-4^ .V„":,J' ,^f- ™; «
<8ee S. C. Reporter-a ed. 387-391.) "'; ^P^ !; Zimmerman, lOZ A pp. Div.
' "^ 103, 92 N. Y. Supp. 497; Winston v. Bee
This ease Is governed by the decisions In •»»' 135 N. C. 271, 66 L.R.A. 167. 47 S. E.
Itast r. Van Deman t Lewis Campany and 457; SUte t. Bamseyer, 73 N. H. 31, 68 Atl.
7ann«r t. Uttle, ante, 670, 601. 966, 6 Ann. Caa. 446; Ex parte Drexel, 147
Cal. 772, 2 Ul.A.(N.S.) 588, 62 Pac. 420,
[No. 242.] 3 Ann. Caa. 876; £i parte West, 147 Cal.
774, 82 Pac. 434; Montgomery v. Kellv, 142
-Argued November 1 and 2, 1016. Decided ^i.. 552^ 79 l.r^. 209, 110 Am. St! Rep.
March 6, 1016. O^ 38 g,, 57. gj^te ex rel. Simpson v.
Ivr r-DDou . .u D. ,> ^ t ^i. Bperry ft H. Co. 110 Minn. 376, 30 L.RA.
N ERROR to the Supreme Court of the (JJgj ggg ,26 N. W. 120; State v. Caa-
SUte of Washington to review a jndg- ^,5 j^^ , 30 ^^1 ^ ^.^.^^ ^
ttent which OB a Kcond appeal, affirmed a j^^t^ 2O8 Mass. 807, B4 N. E. 848; Peo-
convictten In the Superior Court of King ,^ ^ ^^, ^^^^^^ , ^^^ j2 . jjj,
Ctounty, m that aUto, for ua.ng redeemable ^^g ^^ jj ^ g jj^^ C^ , fiJieraon,
T*^""",^^^^^ ''"*'"" IIW Ma8»- 1«. « N. E. 669; Territory t.
See same caae below, 80 Wash. 600. 141 ^ ^ ^ ^^^^ ,8, P^ ^^g. ^^ ^H.
*^ V'. ^ * J . *.. i . ^- '^^ F'*"!" (Md.) Baltimore Daily Roc-
The facU are aUted in the opinion. ,^^_ (^ j_ jg^g. ^^^ ^ g ^ / T^.
Mr. Ixtuls Marshall argued the cause, pie. 137 Fed. 992; Bx parte Hutchinson,
«nd, with Mr. Sol. M. Stroock, filed a brief I3T Fed. 9S0; Sperry ft H. Co. v. Brady, 134
for plaintiff in error; B'ed. 691; Sperry ft H. Co. v. Mechanics'
The Washington statute under which Clothing Co. 136 Fed. 633; Sperry ft H. Co.
the plaintiff in error has l>een convicted r. Tftcoma, 190 Fed. 682; Van Deman ft L.
violates the I4th Amendment, in that it de- :^ r. Rast, 214 Fed. 627; SUU v. Shugart,
prlves him of his liberty and property with- 138 Ala. 86, 100 Am. St. Rep. 17, 36 80.
out due process of law. !8; Ex parte McKenna, 126 Cal. 420, 58
Butchers' Union S. H. ft L. 8. L. Co. v. Pac. 018; Denver v. Frueauff, 39 Colo. 20,
Orescent City, L. 8. L. ft 8. H. Co. Ill U. r L.RA..(N.S.) 1131, 86 Pac. 3S9, 12 Aim.
S. 746, 762, 28 L. ed. 685, 688, 4 Sup. Ct. 3as. 521; Hewin v. Atlanta, 121 Qa. 731,
Rep. 652; PoweU v. Pennsylvania, 127 U. IT L.RjL 795, 40 S. E. 766, 2 Ann. Caa.
a. 678, 684, 32 L. ed. 253, 266, 8 Sup. Ct. !»6; Long v. SUte, 74 Md. 665, 12 L.R.A.
Rep. 002, 1267; Allgoyer v. Louisiana, 165 I2S, 22 AtL 4; SUte ex rel. Hartigan t.
U. S. 689, 41 L. ed. 836, IT Sup. Ct. Rep. , dperry ft H. Co. 04 Neb. 786. 49 L.RJL
427; Coppag^v. Kansas, 236 U. B. 1, 14, 59 (N.S.) 1123, 144 N. W. 796; Leonard t.
L. ed. 441, 446, L.Rjl.l915C, 960, 36 Sup. Ct. Baasindale, 48 Wash. 301, 80 Pac 879.
Rep. 240; Com. t. fiisaon, 178 Masa. 578, 1 Similar in principle are:
60 N. E. 385, ' Schnaier v. Navarre Hotel ft ImporUtlon
•0 u cd. t^^
SUPREME COURT OF THE UNITED STATEa Oot. IteH,
On. 182 N. T. 83, TO L.R.A. T22, 103 Am 916; (TKetBt t. SomarrlUa, 100 Uua. 110,
St Rep. TOO, T4 N. E. 561 ; Peopla ex rd 112 Am. St. Rep. Sie, 76 N. B. 4S7, 9 Ann.
Uoakowiti v. Jenkini, 202 M. Y. 63, SI Cm. B84; Com. t. Oibwm Co. 12fi Kj. 440,
L.R.A.(N.S.) 107B, 9* N. E. lOOS; Hbumi 101 3. W. 386: Eewin t. AtUnte, 121 Ga.
T. North Britlih t M. Id>. Co. 206 N. Y 731, 67 L.ILA. 706, 4S B. B. 786, 2 Ann.
405, 42 LJt.A.(N.5.) 1139, 100 N. £. 62 Cm. 296; Hame* t. Lltth Rock, 138 F«d.
Ann. Caa. 1B14B, 263; SUt« ei rel. Wyatt 920; Winitm t. BeeMn, 13S N. C. 271, 65
r. Aahbrook, 154 Mo. 376, 48 L.R.A 266, 77 L.RjL 167, 47 6. E. 457; Trading Stamp
Am. St. Rep. 785, G5 8. W. 627; Smith t Co. v. Memphis, 101 Tenn. 181, 47 8. W.
TeiM, 233 U, 8. 630, 68 L. ed. 1129, L.R.A 136; Spcrry A. H. Co. v. Taooma, 190 Fed.
1916D, 677, 34 Sup. Ct. Bep. 681, Ann. Cm. 6B2; Little v. Tanner, 208 Fed. 606; Tan
IB16D, 420. Deman A. L. Co. t, Rast, 214 Fed. 827; Peo-
Although the police power is extensive, pie ex rel. Farrington t. Mensehing, 187
and there is a present tendency to enlarge N. Y. B, 10 L.R.A.(N.S.) S26, 79 N. E. BS4,
its boundaries, it is nevertheless subordi. 10 Ann. Cas. 101 ; People ex rel. Moakowiti
nate to the constitutional guaranties of lite, *■ Jenkins, 202 N. Y. 53, 36 L.RJl.(NJ3.)
liberty, and property. 1079, 04 N. E. 1065; Smith t. TexM, 233
Lochner t. New York, 198 U. 8. 66, 40 U. 8. 630, 58 L. ed. 1120, LJLA.lftlSD, 677,
L. ed. 941, 25 Sup. Ct Rep. 639. 3 Ann. 34 Sup. Ct. Rep. 681, Ann. Cm. 1B1SD, 420;
<^M. 1133; Coppage v. KansM, 236 U. S. 1, Gulf, C. k S. F. R. Co. v. Ellis, 165 U. 8.
6S L. ed. 441, L.R.A.1016C, 060. 35 Sup. 150, 41 L. ed. 066, 17 Sup. Ct Rep. 266;
Ct. Rep. 240; Wright v. Hart, 1B2 N. Y. Coning v. Kansas City Stock Yards Co.
SSS, 2 L.R.A.(N.S.) 338, 76 N. £. 404, 3 (Cotting v. Godard) 183 U. 8. 70, 46 L. ed.
Ann. Cas. 263; Allgeyer v. Louisiana, 165 BZ, 22 Sup. Ct. Rep. 30; ConnoUf t. Union
U. 8. G89, 41 L. ed. 836, 17 Sup. Ct. Rep. Sewer Pipe Co. 184 U. 8. 640, 46 L. ed. 686,
427; State v. Loomia, 116 Mo. 307, 21 L.R.A. 22 Sup. Ct. Rep. 431.
769, 22 S. W. 350; Otis T. Parker, 1B7 U.
S. 606. 47 L. ed. 323, 23 Sup. Ot. Rep. 168;
Pbelpa. 144 Wis. 1. 35 L.R.A.(N.S.) 3fi3,
128 N. W. 1041; Bonnrtt v. Vallier,
experience most prevalent, that la su^-
WU. 1.3, 17 L.ll.i.(N.S.l «6, la A.. St l|"'„°"jrf T.'m Su^'S.'S.V
Hep. IMl, 11. N. W. ..5, T..ll„r ,. Bll- "^^ ^^^, cS^.L^T^tJlUll
136 N. Y. 677, IB L.R.A. 543. 32 N. E. B76;
Sup. Ct. Rep. 114; Miller v. Wilsca, 236
Colon r. Liik. 153 N. Y. 188, 60 Am. St n s ^ja IS, ^'iT^™ ^Tl' ^
w, .nn ., „ c -n- i. i t i.- l U. B. 373, 383, 5S L. ed. 328, 631, I,iR A.
Bep. 809, 47 N. E. 302; FrMk L. Fisher .(...i. .nQ .^ r„„ r-. n.. «.a
CO.V. Wood., 187N. Y. 00, 12L.R.A.(N.S,) S' ??Lk^ , 'f l, '' ^ „ a
707, 73 N. E. 836, Cl.le.gi, B. » Q. E. Oe. J^'^.S"^"' "' ''"" °' "■"" '^
Sup. CI. Sep. 341, 4 Ano C... 1175, Peipl, ..fT^ ,'i'"S ,'S*'.'f V' i"'
., OiM„„, 109 N. Y. 388, 4 An., kt. E^p. !|- ?}.}• ">■ ^- ^' ' ^-P- «• «V-
405, 17 N. E. 343; StaUT. Dalton, 22 B. I. ~ „ „ , _, ,
77, 48 L.Ei. 775 84 A». St. Rep. 818, 48 ™' "" y?'" ""^ -I -PP"!. >• 'M In
Atl 234 iccord with this court as to the Bitent and
Thl. HW.i™ deprive, meretaot. who *=«? °' ''* rll" """"■
?. . , . "^ . Ha .lacnhn. DH N. Y. OS. K
stamps, coupons,
Re Jacobs, BS N. Y. 08, 60 Am. Rep. 636;
tickets, certmcatee, or similar devices, in ^''■t"' '" Tennessee, 170 U. 8. 843, 48 L.
connection with their sales, of the equal ^- 224. 21 Sup. Ct Rep. 182; Poople r.
protection of the law. «w«. 08 **. Y. 377, 52 Am. Rep. 34. B N.
Ex parte Hutchinson, 137 Fed. 960; S. 29; Powell v. PenMylvanU, 127 U. a
Montgomery v. Kelly, 142 Ala. 558, 70 "8. 32 L. ed. 263, 8 Sup. Ct Sap. 002,
LJLA. 20B, 110 Am. St. Rep. 43, 38 So, 67; 1267; MeCray v. United Btatea, 106 D. B.
Ex parte McKennm, 126 Cal. 429, 68 Pac J7, 49 L. ed. 78, 24 Sup. Ct K^. 7W, 1
''04 140 V. 8.
1915.
PrrNBY Y. WASHINGTON.
38^-390
Ann. GMb 601; Hammond Packing Oo. y.
Montana, 233 U. S. 331, 68 L. ed. 085, 34
Sap. Ct. Rep. 696; People y. Orange County
Road Constr. Co. 175 N. Y. 84, 65 L.R.A.
33, 67 N. E. 129; Atkin v. Kansas, 191 U.
S. 207, 48 L. ed. 148, 24 Sup. Ct. Rep. 124 ;
People ex rel. McPike v. Van De Carr, 178
N. Y. 425, 66 L.R.A. 189, 102 Am. St. Rep.
516, 70 N. E. 965; Halter v. Nebraska, 205
U. S. 34, 51 L. ed. 696, 27 Sup.4#Ct. Rep.
419, 10 Ann. Cas. 525; Lemieuz. v. Young,
211 U. S. 489, 53 L. ed. 295, 29 Sup. Ct.
Rep. 174; Kidd, J>, k P. Co. v. Musselman
Qrooer Oo. 217 U. 8. 461, 54 L. ed. 839, 30
Sap. Ct Rep. 606; People ex rel. Tyroler
Y. Warden, 157 N. Y. 116, 43 L.R.A. 264, 68
Am. St. Rep. 763, 51 N. E. 1006; Frank
L. Fisher Co. y. Woods, 187 N. Y. 90, 12
I4JLA.(NJ9.) 707, 79 N. E. 836; People y.
WiUiama, 189 N. Y. 131, 121 Am. St. Rep.
854, 81 N. £. 778, 12 Ann. Cas. 798; Mul-
ler Y. Oregon, 208 U. S. 412, 52 L. ed. 551,
28 Sap. Ct Rep. 324, 13 Ann. Cas. 957;
People ex rel. Duryea y. Wilber, 198 N. Y.
1, 27 LJt.A.(N.S.) 357, 90 N. E. 1140, 19
Ann. Cat. 626.
Legislatures are ultimate guardians of
the liberties and welfare of the people in
quite as great a degree as the courts.
Missouri, K. ft T. R. Co. y. May, 194 U.
8. 267, 48 L. ed. 971, 24 Sup. Ct Rep. 638.
Mr. Blackburn Bsterline also argued
the cause for defendant in error.
Mr. Justice McKenna dellYered the opin-
ion of the court:
A companion case with Nos. 41 and 224
[240 U. a 342, 369, ante, 679, 691, 36 Sup.
Ct R^. 370, 379]. It was argued and sub-
mitted with those cases and involves the
same general questions and the validity of
the statute passed upon in No. 224.
A criminal information was filed in the
superior court of the state of Washington
for the county of King, charging that the
United Cigar Stores Company, Inc., a New
Jersey corporation, doing business in the
etate of Washington, owned and conducted
a certain store and place of business in the
eity of Seattle, and had not then or there-
tofore obtained a separate license from the
auditor of the county entitling it at its
store and place of business to use or fur-
nish to other persons, etc., to use, in, with,
or for the sale of any goods, etc., any
stamps, etc, or other similar devices, en-
titling the purchaser receiving the same to
procure from any person, etc., any goods,
etc, free of charge or for less than the re-
tail price thereof upon the production ol
any number of said stamps, etc
That Pitney (plaintiff in error), at said
place of business, [380] well knowing the
above facts, did then and there unlawfully,
as the manager, servant, and agent of the
United Cigar Stores Company, Inc., use and
furnish in, with, and in connection with the
sale of certain goods, etc, to (me John Gar-
vin a certain stamp, etc, of the following
tenor:
No. 139,198. Dr.
United Cigar Stores Company (Incorpo-
rated).
Certificate.
Cash value at any Profit-Sharing Station
in the state of Washington, 1 cent, but
average merchandise value, according to
profit-sharing list, 2 cents.
This certificate represents a 25-cent pur-
chase, and is redeemaiile according to the
conditions of our profit-sharing list. Ask
for a copy of list Redeemable only by the
person to whom originally issued.
United Cigar Stores Company (Incorpo-
rated).
Largest Cigar Retailers in the world.
And it was alleged that Garvin received
the same.
A demurrer was filed to the information,
the grounds of which were, as alleged, that
the defendant had not violated any law, that
the information failed to state facts suf-
ficient to constitute a crime or misdemeanor,
and that it did not charge any offense
against the laws of Washington. The de-
murrer was sustained and the case dis-
missed. This action was reversed by the
supreme court of the State and the cause re-
manded with directions to overrule the de-
murrer. 79 Wash. 608, 140 Pac. 918.
Upon the return of the case to the su-
perior court the demurrer was overruled and
defendant pleaded guilty. He then moved
in arrest of judgment, invoking against the
law and sentence under it articles 5 and 8
of the Constitution of the United States and
§ 1 of the 14th Amendment of that Consti-
tution.
It was stipulated that Pitney, as charged,
furnished (Marvin a certain stamp, etc.,
which entitled Garvin to procure from the
United Cigar Stores Co., Inc., upon the
[390] production of a certain specified
number of such stamps, etc, or other sim-
ilar device, certain goods, etc, free of
charge; that the stamp, etc., so delivered
to Garvin, was redeemable by the company
alone, and entitled him to receive frcHu the
company, and from no other, such goods,
etc; that the stamp, etc, was by its terms
redeemable in goods, etc, or 1 cent in cash.
46 Ii. ed.
46
8(K), 801
SUPRBMB COURT OF THE UNITED STATES.
OOT. Tbrm^
at the option of the holder, a8 provided by
the laws of the state of Washington.!
Judgment of a fine of $10 and costs was
pronounced against him, which was affirmed
by the supreme oourt for the reasons an-
nounced in- its former opinion. The case was
then brought here by writ of error allowed
by the chief justice of the state.
The eourt overruled Leonard v. Bassin-
dale, 46 Wash. 301, 80 Pac. 870, in which
case it had decided that the law, passed in
1005, prohibiting the use of trading stamps,
was unconstitutional, giving as reason that
the police power of the state, as expounded
and illustrated by the decisions of this
court, was legally exercised in the passage
of the statute.
The reasons and conclusion of the court
are combated [301] by plaintiff in error by
the same considerations and arguments that
were advanced in Nos. 41 and 224. What we
said in answer to them there we need not
repeat here, and upon the authority of those
cases the judgment of the Supreme Court
must be, and it is, affirmed.
GEORGE 8. BADDERS, Plff. in Err.,
V.
UNITED STATES..
(See 8. 0. Reporter's ed. 301-305.)
Postofllce ^ power of Congress — of-
fenses ~ furthering scheme to de-
frand.
1. The placing of letters in the mail
iThe law of Washington, passed in 1007
(Laws 1007, p. 742), provided:
(§ 1 ) That no stamps, etc., or other sim-
ilar device which should entitle the holder
thereof to receive from the vendor or indi*
rectly through anv other person, money or
goods, etc., should be sold or issued unless
each of the stamps, etc., should have legibly
printed or written upon the face thereof the
redeemable value thereof in cents.
(§2) That such stamps, etc., should be
redeemable in goods, etc., "or in cash, good
and lawful money of the. United States, at
the option of the holder thereof," and any
number of such stamps, etc., should be re-
deemed at the value thereof in cents print-
ed on the face thereof, and it should not
bo necessary for the holder thereof to have
any stipulated number of the same.
(§ 3) That in case of refusal to redeem
the stamps, etc., the vendor or such other
person should be liable to the holder thereof
for the face value thereof.
(§4) Violation of the act is made a mis-
demeanor.
NoiB.— On emel and unusual punish-
ment^-aee notes to State ex reL Garvey v.
Whitaker, 85 L.RJL 561, and Franklin t.
Brown, LJLAa015C, 557.
706
for the purpose of exeeoting a seheme to de-
fraud could be made a criminal offense by
Congress, as was done by the provision of
the Criminal Code, § 215, although the
fraudulent scheme itself may be outside the
jurisdicti(m of Congress.
[For other ^ims, see Postofflos, VI.. in Di-
gest Sop. Ct 1008.1
Criminal law ^ omel and itniiaiial pun*
iahment — separate offenses.
2. Making the deposit of each letter
placed in the mails for the purpose of exe-
cuting a seheme to defraud a separate of-
fense punishable by fine and imprisonment,.
as is done by the United States Criminal
Code, § 215, does not render the statute
unconstitutional as imposing cruel and un-
usual punishment and excessive fines.
[For other. cases, see Criminal Law, V. b. in
Digest Sup. Ct. 1008.1
Grand jury — absence of judge fron»
district — validity of indictment.
3. The absence of the judge from the
Federal district during a part of the delib-
erations of the grand jury does not invali-
date the indictment.
(Matters as to grand jury, sse Grand Jury,
In Digest Sup. CL 1008.1
[No. 521.]
Argued February 23 and 24, 1016. Decided
March 6, 1016.
IN ERROR to the District Court of the
United SUtes for the District of Kan-
sas to review a conviction for placing let-
ters in the mail for the purpose of executing
a scheme to defraud. Affirmed.
The facts are stated in the opinion.
Mr. James H. Harklesa argued the
cause, and, with Messrs. D. R. Hite and
Clifford Histed, filed a brief for plaintiff in
error:
Section 215 of the Criminal Code as ap-
plied to the facts set up in the indictment
in this case is not within the grant to
Congress of power to establish postofficea
and post roads, and to nmke all laws which
shall be necessary and proper for carrying
into execution such power.
Lottery Case (Champion v. Ames) 180
U. S. 321, 374, 375, 47 L. ed. 402, 508, 2S
Sup. Ct. Rep. 821, 13 Am. Crim. Rep. 321;
Slaughter-House Cases, 16 Wall. 36, 21 L^
ed. 304.
Interpreted so as to make each letter
placed in the mails for the purpose of exe-
cuting a scheme or artifice, as alleged in
the indictment herein, a separate offense^
the section is repugnant to the constitu-
tional provision that "excessive bail shall
not be required, nor excessive fines imposed,
nor cruel and unusual punishmenta in-
flicted."
CWeil v. Vermont, 144 U. S. 337, 341, 86
L. ed. 457, 458, 12 Sup. Ot Rep. 603.
Where tha accused is held under a Fed-
940 V. 8»
1015.
BADDBBS T. UKITBD 8TATB&
end indietmcnt wMeh does not eubetan-
tially state an offense against the laws of
the United SUtes, he is deprived of his
eonstitutional right to be informed of the
eharge against him.
Stewart ▼. United SUtes, 66 C. a A. 041,
110 Fed. 80; United SUtes y. Cruikshaid:,
02 U. 8. 642, 23 L. ed. 688.
The statement of facts in that part of
the indictment attempting to charge a
scheme or artifice is insufficient.
Miller y. United SUtes, 60 C. C. A. 300,
133 Fed. 337; United States v. Hess, 124
U. S. 483, 31 L. ed. 616, 8 Sup. Ct. Rep.
671; United States y. Cruikshank, supra;
United States y. Simmons, 00 U. S. 300, 24
L. ed. 810; United SUtes y. Carll, 106 U. S.
Oil, 20 L. ed. 1135, 4 Am. Crim. Rep. 240;
Naftiger y. United SUtes, 200 Fed. 602;
Miller y. United SUtes, 60 C. C. A. 300, 133
Fed. 341 ; Martin y. United SUtes, 03 0. C.
A. 484, 108 Fed. 206 ; United SUtes y. Wat-
kins, 3 Cranch, C. C. 441, Fed. Cas. No. 10,-
049; United SUtes y. Post, 113 Fed. 864;
People y. Flack, 126 N. Y. 326, 11 L.RJ^.
807, 20 N. E. 207 ; People y. Baker, 00 N. Y.
344; PotUr y. United SUtes, 166 U. S. 438,
30 L. ed. 214, 16 Sup. Ct. Rep. 144; Rudd
y. United SUtes, 07 C. C. A. 402, 173 Fed.
012; Whart Crim. £y. 10th ed. pp. 001,
006, 1086, 1008, 1771.
The indictment is f aUlly defectiye in that
it does not sUU facto showing that the de-
fendant deyised any scheme or artifice.
Etheredge y. United SUtes, 108 C. C. A.
366, 180 Fed. 434; United SUtes y. Britton,
108 U. 8. 100, 27 L. ed. 008, 2 Sup. Ct. Rep.
681 ; Stewart y. United SUtes, supra.
The indictment Ib faUIIy defectiye be-
cause it does not charge an inUnt on the
part of the defendant to use the postoffice
establishment as a means to effect the al-
leged scheme or artifice.
Pettibone y. United SUtes, 148 U. S. 107,
203, 37 L. ed. 410, 422, 13 Sup. Ot Rep.
642.
Plaintiff in error is held to answer for
an infamous crime without an indictment
of a grand jury, found and presented as re-
quired bj law.
People y. Rotolo, 01 Misc. 670, 116 N. Y.
Supp. 864; Renigar y. United SUtes, 20
L.RJl.(NJ3.) 083, 07 C. C. A. 172, 172 Fed.
064, 10 Ann. Cas. 1117; SUU y. Cox, 28
K. C. (0 Ired. L.) 446.
The defendant was not arraigned as re-
quired by law.
Cndn y. United SUtes, 102 U. 8. 026, 40
L. ed. 1007, 10 Sup. Ct. Rep. 062; SUU y.j
Ghenier, 32 La. Ann. 103; 1 Bishop, CrinL.
Proc § 733. •
•0 Ii. ed.
Assistant Attorney General Wallmoe ar-
gued the cause and filed a brief for defend-
ant in error:
The indictment is sufficient in law.
United SUtes y. Young, 232 U. S. 166,
101, 68 L. ed. 648, 661, 34 Sup. Ct Rep.
303; United SUtes y. Steyer, 222 U. S. 107,
60 L. ed. 146, 32 Sup. Ct. Rep. 61 ; Brooks
y. United SUtes, 70 0. C. A. 681, 146 Fed.
227; United SUtes y. Young, 216 Fed. 207;
United SUtes y. Wootten, 20 Fed. 702;
United SUtes y. Watson, 36 Fed. 368; Bett-
man y. United SUtes, 140 C. C. A. 206, 224
Fed. 826, denied in 230 U. S. 042, anU, 482,
30 Sup. Ct Rep. 103.
The indictment is not duplicitous.
United SUtes y. Ridgway, 100 Fed. 280;
Gardes y. United SUUs, 30 C. C. A. 600,
68 U. S. App. 210, 87 Fed. 176; Emanuel y.
United SUtes, 110 C. C. A. 137, 100 Fed.
320.
Where an indictment has been regularly
returned in open court, the presumption, in
the absence of a contrary showing, is that
the grand Jury, the sereral court officials,
and the court all properly discharged their
respective duties.
Carlisle y. United SUtes, 114 C. C. A.
631, 104 Fed. 827.
While it appears that the grand jury was
not poUed when the indictment was re-
turned, this defect cannot be said to haye
worked any substantial injury to the de-
fendant, and is cured by the provisions of
U. S. Rev. SUt § 1026, Comp. SUt 1013,
! 1601.
Breese v. United SUtes, 220 U. S. 1, 11,
67 L. ed. 01, 102, 33 Sup. Ot. Rep. 1.
The judge's absence during the delibera-
tions of the grand jury is not prejudicial.
Jones y. United SUtes, 80 C. C. A. 303,
102 Fed. 421, denied in 212 U. S. 670, 53
L. ed. 057, 20 Sup. Ct. Rep. 085; Com. v.
Bannon, 07 Mass. 220; Nealon y. People, 39
ni. App. 483; People ex rel. Pickard v.
ChauUuqua, 11 N. Y. Civ. Proc. Rep. 184.
Criminal prosecutions in the Federal
courts are governed by Federal, and not by
sUte, sUtutes.
United SUtes y. Reid, 12 How. 361, 306,
13 L. ed. 1023, 1026; Bucher v. Chesire R.
Co. 126 U. S. 666, 682, 31 L. ed. 706, 708,
8 Sup. Ct. Rep. 074; Jones v. United SUtes,
80 C. 0. A. 303, 102 Fed. 417, and cases
cited.
The record shows that defendant waa
properly arraigned.
Garland v. Washington, 232 U. S. 042,.
047, 68 L. ed. 772, 776, 34 Sup. Ct Rep.
460; SUte y. O'Kelley, 268 Mo. 346, 62
L.R.A.(N.8.) 1003, 107 S. W. 080.
Denial of an application for a bill of par-
ticulars, a motion to postpone, or a motion
for a continuanoe, is not subject to review
193,894
8UPREMB COUBT OF THE UNITED STATES
Oct. Tknc,
«iile« there has been a flagrant abuae of
diflcretion. No such ahnae ia shown.
Donlop ▼. United SUtea, 165 U. 8. 486,
491, 41 L. ed. 799, 800, 17 Sup. Ct. Rep.
876; Hardy v. United States, 186 U. S. 224,
46 L. ed. 1137, 22 Sup. Ct Rep. 889; Isaaca
▼. United SUtes, 159 U. S. 487, 489, 40 L.
ad. 229, 230; 16 Sup. Ct. Rep. 51.
The allied constitutional questions have
■o merit.
Barrett t. United States, 169 U. S. 218,
tt L. ed. 723, 18 Siip. Ct Rep. 327 ; United
SUtes v. Toung, 232 U. S. 155, 58 L. ed.
548, 34 Sup. Ct Rep. 303; Durland t.
United SUtes, 161 U. S. 306, 40 L. ed. 709,
16 Sup. Ot Rep. 508; Re De Bara, 179 U. 8.
816, 45 L. ed. 207, 21 Sup. Ct Rep. 110;
Streep v. United SUtes, 160 U. S. 128, 40
Lu ed. 365, 16 Sup. Ct. Rep. 244 ; Stokes v.
United SUtes, 157 U. S. 187, 39 L. ed. 667,
15 Sup. Ct Rep. 617; Re Henry, 123 U. S.
872, 31 L. ed. 174, 8 Sup. Ct. Rep. 142;
United SUtes ▼. Hess, 124 U. S. 483, 31 L.
ed. 516, 8 Sup. Ct Rep. 571; Homer t.
United SUtes, 143 U. S. 207, 213, 36 L. ed.
126, 129, 12 Sup. Ct. Rep. 407; Re Rapier,
143 U. S. 110, 133, 36 L. ed. 93, 102, 12 Sup.
Ot Rep. 374 ; Ebeling v. Morgan, 237 U. S.
625, 631, 50 L. ed. 1151, 1153, 35 Sup. Ct
Rep. 710; Carter v. McClaughry, 183 U. S.
365, 394, 46 L. ed. 236, 250, 22 Sup. Ct. Rep.
181.
Solicitor General Davis also filed a brief
for defendant in error:
The power vested in Congress to esUb-
liah postoffices and post roads authorises
all measures necessary to secure the safe
and speedy transmission of the mails and
a prompt delivery of their oontenU, as well
as the power to prescribe what should be
carried and what should be excluded.
Ex parte Jackson, 06 U. S. 727, 24 L. ed.
877; Re Rapier, 143 U. S. 110, 134, 36 L. ed.
98, 102, 12 Sup. Ot. Rep. 374; Public Clear-
ing House V. Coyne, 104 U. S. 497, 506, 48
Lu ed. 1092, 1097, 24 Sup. a. Rep. 789;
Burton v. United States, 202 U. S. 344,
871, 50 L. ed. 1057, 1067, 20 Sup. Ct. Rep.
688, 6 Ann. Cas. 362. See also United States
T. Loring, 91 Fed. 881, 882; Lottery Case
(Champion v. Ames) 188 U. S. 321, 47 L.
ad. 492, 23 Sup. Ct. Rep. 321, 13 Am. Crim.
Bep. 561.
llie punishment denounced by § 215 is
neither cruel nor unusual.
Be Henry, 123 U. S. 872, 374, 31 L. ed.
174, 175, 8 Sup. Ct. Rep. 142 ; Re De Bara,
179 U. S. 316, 322, 45 L. ed. 207, 210, 21
Sup. Ot. Rep. 110; Durland v. United.
SUtes, 161 U. S. 306, 315, 40 L. ed. 709,'
712, 16 Sup. Ct. Rep. 508; Howard v. Flem-
ing, 191 U. S. 126, 137, 48 L. ed. 121, 125,
24 Sup. Ot. Rep. 49; Hanley v. United
168
SUtes, 62 C. 0. A. 561, 127 V^L 930; Fran-
cis V. United SUtes, 81 0. C. A. 407, 152
Fed. 155; Han v. United States, 81 0. 0.
A. 562, 152 Fed. 420; United SUtes v. Mc-
Vickar, 164 Fed. 894; Rinker v. United
SUtes, 81 CCA. 379, 151 Fed. 755 ; Jack-
son V. United SUtes, 42 0. C A. 452, 102
Fed. 487.
Section 215 doea not deprive the accused
of his liberty without due process of law.
Missouri Drug Co. T. Wyman, 129 Fed.
623; Re Rapier, 143 U. S. 110, 134, 36 L..
ed. 93, 102, 12 Sup. Ot Rep. 374.
Mr. Justice Holmes delivered the opin-
ion of the court:
The case is brought to this court from
the district court under § 238 of the Judi-
cial Code, act of March 3, 1011, chap. 231,
36 SUt at L. 1087, Comp. SUt 1913, §
1215, on the ground that it involves the
construction and application of the Consti-
tution of the United SUtes. The plaintiff
in error was indicted for placing letters in
the mail for the purpose of executing a
scheme to defraud devised by him, in viola-
tion of § 215 of the Criminal Code, act of
March 4, 1909, chap. 321, 35 SUt at L.
1088, Comp. SUt. 1913, | 10,385. There
were twelve oounU, on seven of which, each
relating to a different letter, he was found
guilty. He was sentenced to five year's im-
prisonment on each count, the periods be-
ing concurrent, not cumulative, and also to
a fine of $1,000 on each or $7,000 in all.
The grounds for coming to this court are,
first, that § 215 of the Criminal Code is be-
yond the power of Congress, aa applied to
what may be a mere incident of a fraudulent
scheme that itself is ouUide the jurisdic-
tion of Congress to deal with; and second,
that if it makes the deposit of each letter
a separate offense, subject to such punish-
ment as it received in this case, it imposes
cruel and unusual punishment and exces-
sive fines.
These contentions need no extended an-
swer. The overt act of putting a letter in-
to the postoffice of the United Statea is a
matter that Congress may regulate. Bx
parte Jackson, 96 U. S. 727, 24 L. ed. 877.
Whatever the limite to the power, it may
forbid any such acU done in furtherance
of a scheme that it regards aa contrary to
public policy, whether it can forbid the
scheme or not Re Rapier, 143 [894] U. 8.
110, 134, 36 L. ed. 93, 102, 12 Sup. Ot Repi
374; Public Clearing House v. Coyne, 194
U. S. 497, 507, 48 L. ed. 1092, 24 Sup. Ct.
Rep. 789; United SUtes v. Stever, 222
U. S. 167, 173, 56 L. ed. 145, 147, 32 Sup.
Ct. Rep. 51. See Lottery Case (Champion
V. Ames) 188 U. S. 321, 357, 47 L. ed. 492,
501, 23 Sup. Ct. Rep. 321, 18 Am. Crim.
140 U. 8.
L
1916.
ILLINOIS C. R. 00. ▼. MJCSSINA.
394,
Rep. 561; United SUtee t. Holte, 236 U.
8. 140, 144, 59 L. ed. 504, 505, L.RJL.1915D,
281, 35 Sup. Ot. Rep. 271. Intent may make
an otherwise innocent act criminal, if it is
a Ktep in a plot. Aikens ▼. Wisconsin, 195
U. S. 194, 206, 49 L ed. 154, 160, 25 Sup.
Ot. Rep. S ; Swift & Oo. v. United States. 196
U. S. 375, 396, 49 L. ed. 518, 524, 25 Sup.
Ot. Rep. 276. The acts alleged have been
found to have been done for the purpose of
executing the scheme, and there would be no
ground for contending, if it were argued,
that they were too remotely connected with
the scheme for the law to deal with them.
The whole matter is disposed of by United
States ▼. Young, 232 U. S. 155, 161, 58 L
ed. 548, 551, 34 Sup. Ot. Rep. 303. As tp the
other point, there is no doubt that the law
may make each putting of a letter into
the postoffice a separate offense. Ebeling
¥. Morgan, 237 U. S. 625, 59 L ed. 1151,
35 Sup. Ot. Rep. 710; Re Henry, 123 U.
S. 372, 374, 31 L. ed. 174, 175, 8 Sup. Ot.
Rep. 142. And there is no ground for de-
claring the punishment unconstitutional.
Howard ▼. Fleming, 191 U. S. 126, 185, 48
L. ed. 121, 124, 24 Sup. Ot. Rep. 49; Ebel-
ing T. Morgan, supra.
The other matters discussed are before
us only as incident to the constitutional
questions upon which the case was brought
here. As those questions merely attempt
to reopen well established and familiar law,
it is not necessary to go beyond them. Brdl-
an T. United SUtes, 236 U. S. 216, 222, 69
L. ed. 544, 649, 35 Sup. Ot. Rep. 285. There
is the more reason for declining further
consideration in the extravagant and un-
necessary multiplication of exceptions and
assignments of error that often has been
condemned by this court. Oentral Vermont
R. Oo. V. White, 238 U. 6. 507, 509, 59 L.
ed. 1433, 1435, 35 Sup. Ot Rep. 865, 9 N.
0. 0. A. 265. If there were anything in the
objections to the indictment, they are not
of a kind to involve constitutional rights
(Lamar ▼. United States, 240 U. S. 60,
ante, 526, 36 Sup. Ot Rep. 255), although
the argument attempts to give a constitu-
tional turn to them and to other technical
eomplaints, such as that the judge was ab-
sent during a part of the deliberations of
the grand jury. We find no error in this
or the other particulars mentioned in argu-
ment. [395] Jones t. United States, 89 0.
0. A. 303, 162 Fed. 417, 421, B. c. 212 U. S.
576, 53 L. ed. 657, 29 Sup. Ot Rep. 685;
OouL T. Bannon, 97 Mass. 214, 220. See
Breese y. United SUtes, 226 U. S. 1, 11, 67
L ed. 97, 102, 33 Sup. Ot. Rep. 1. As to
the arraignment, see Garland v. Washing-
ton, 232 U. S. 642, 646, 647, 58 L ed. 772,
•0 L. ed.
775, 776, 34 Sup. Ot. Rep. 456. We deem ik
unnecessary to go into further detaiL
Judgment affirmed.
ILLINOIS OENTRAL RAILROAD OOM-
PANY, Yazoo k Mississippi Valley lUU-
road Oompany, and J. B. Boothe et tA^
Their Sureties, Plffs. in Err.,
V.
V. P. MESSINA.
(See S. 0. Reporter's ed. 395-398.)
Carriers ~ free transportation — riding
with employee's consent.
Ridinff upon the tender of an inter-
state train by permission of the engineer
without payment of fare is made unlawful
by the act of February 4, 1887 (24 SUt
at L. 379, chap. 104), § 1, as amended by
the act of June 29, 1906 (34 SUt at L. 684,
chap. 3591, Oomp. Stat 1913, § 8563), ua-
der which any common carrier violating the
provisions of that statute against free trans*
portation is guilty of a misdemeanor and
subject to a penalty, and any person,
other than those excepted, who uses such
interstate free transportation, is made sid»-
ject to a like penalty.
[For other cases, see Carriers, III. e, in IM*
gest Sup. Ct 1908.]
[No. 535.]
Argued February 23, 1916. Decided Marek
6, 1916.
IN ERROR to the Supreme (3ourt of the
State of Mississippi to review a jii4f-
ment which affirmed a judgment of the Oir-
cuit Oourt of Holmes Oounty, in that stats^
in favor of plaintiff in a personal-injury
action. Reversed.
See same case below, — Miss. — , 67 So.
963.
The facts are stated in the opinion.
Mr. R. V. Fletcher argued the causs^
and, with Messrs. Blewett Lee and Edward
Mayes, filed a brief for plaintiffs in error:
Messina was, at the time of the injury,
violating a Federal law.
Gloucester Ferry Oo. v. Pennsylvania, 114
U. S. 196, 29 L. ed. 158, 1 Inters. Oom. Rep.
382, 5 Sup. Ot. Rep. 826; Spencer v. Obi-
cago, M. k St P. R. Oo. 161 Wis. 474, 164
N W. 979 ; Chicago, I. A L. R. Oo. v. United
States, 219 U. S. 486, 55 L. ed. 305, 81 Sup.
Ot Rep. 272; Louisville A N. R. Oo. ▼. Moi-
tley, 219 U. S. 467, 55 L. ed. 297, 34 LRA.
(N.S.) 671, 31 Sup. Ot. Rep. 265.
Note. — On liability of railway oomjMUij
for injury to person wrongfully on tram by
collusion with a train employee — see note
to St Louis, I. M. ft S. R. Oo. v. JoneSy 87
L.R.A.(N.S.) 418.
8UPREMB COURT OF THE UNITED 8TATE&
Ooi. Tjbm;
There are verj many respectable authori-
ties in the United States and E^land hold-
ing, just as the Mississippi court has held
in the McLaurin Case, that no one can re-
cover from a tort feasor, however great the
negligence, provided the plaintiff, m proving
his case, must establish his own unlawful
act.
Western U. Teleg. Co. v. McLaurin, —
Miss. — , L.R.A.1916C, 487, 66 So. 739; 1
Cooley, Torts, p. 172; Pullman's Palace Oar
Co. V. Central Transp. Co. 171 U. S. 138, 43
L. ed. 108, 18 Sup. Ct Rep. 808; McGrath
T. Merwin, 112 Mass. 467, 17 Am. Rep. 119;
Gulf, C. A S. F. R. Co. V. Johnson, 71 Tex.
ei9, 1 L.R.A. 730, 9 S. W. 602; Phalen v.
Clark, 19 Conn. 421, 60 Am. Dee. 253; Bos-
worth T. Swansey, 10 Met. 363, 43 Am. Dee.
441; James v. Wellston Twp. 13 L.RJL
(NJ3.) 1271, note.
Mr. Harry Peyton argued the cause, and
Mr. William H. Watkins filed a brief for de-
fendant in error:
Even though the ruling by the Missis-
sippi supreme court as to the applicability
of the Hepburn act to the facts of this case
should be conceded to be erroneous, still this
Federal question Ib without merit, and the
case should be affirmed.
Southern P. Co. v. Schuyler, 227 U. S.
601, 57 L. ed. 662, 43 L.R.A.(K.S.) 901, 33
Sup. Ct. Rep. 277.
llie right of action of the defendant in
error, asserted in the court below, was not
derived from any contract, and was not de-
duced from any supposed violation of the
Hepburn act. It arose from the obligation
created by law, as construed by the state
court, not to wilfully and wantonly injure
him after consenting, and therefore having
knowledge that he was aboard the engine.
Delaware, L. A W. R. Oo. v. Trautwein,
52 N. J. L. 169, 7 L.R.A. 435, 19 Am. St.
Rep. 442, 19 Atl. 178, 5 Am. Neg. Cas. 21 ;
Carroll v. Staten Island R. Co. 58 N. Y.
126, 17 Am. Rep. 221; Opsahl v. Judd, 30
Minn. 126, 14 N. W. 575.
The violation of the Hepburn act, assum-
ing, for the sake of argument, that the de-
fendant in error here was guilty of such
violation, was in no sense the cause of his
injury, nor did he have to rely upon such
illegal act in order to make out his case.
It was only the occasion for his injury by
the railroad company's wilful, wanton, and
grossly negligent act, as held by the Mis-
sissippi supreme court. It was merely a
condition, and was not a contributing cause.
Delaware, L. A W. R. Co. v. Trautwein,
supra; Jacobus v. St. Paul A C. R. Co. 20
Minn. 125, Oil. 110, 18 Am. Rep. 360.
A carrier, in transporting a person in
riplation of constitutional or statutory pro-
710
visions, cannot rely upon the Tiolatloii d
such provisions to evade the conaeqaeiioss
resulting from personal injury through tha
negligence of the carrier.
Watson, Damages for Personal Injuries^
I 230 ; Sutton v. Wauwatosa, 29 Wis. 21, 9
Am. Rep. 534; John v. Nortiiem P. B. Oow
42 Mont. 18, 32 L.R.A(N.8.) 86, 111 Plae.
632; Oabbert v. Hackett, 135 WU. 86, 14
L.ILA.(N.S.) 1070, 116 N. W. 346; Brad-
burn V. Whatcom County R. A Light Oo.
45 Wash. 582, 14 L.R.A.(N.S.) 526, 88 Pae.
1020; Delaware, L. A W. R. Co. v. Traut-
wein, and Carroll v. Staten Island R. Oo.
supra. See also Conithan v. Royal Ins. Co.
91 Miss. 386, 18 LJLA(NJ3.) 214, 124 Am.
St. Rep. 701, 45 So. 861, 16 Ann. Cas. 539|
Philadelphia A R. R. Co. v. Derby, 14 How.
470, 14 L. ed. 502, 10 Am. Neg. Cas. 602.
The rule that where parties are mi pari
delicto the court will lend its aid to neither
is subject to the exception that the rule
will not be applied where paramount publie
interest requires the intervention of the
court.
Rideout v. Mars, 99 Biiss. 199, 36 LJLA.
(N.S.) 485, 54 So. 801, Ann. Cas. 1913D,
770; Texas A P. R. Co. v. Mugg, 202 U. 8.
242, 50 L. ed. 1011, 26 Sup. Ct. Rep. 628.
Mr. Justice Holmes delivered the opitt*
ion of the court:
This is an action for personal injuries
suffered by the defendant in error while
upon a train running from Mississippi to
Tennessee. He had paid no fare, but was
upon the tender, as he said, by permission
of the engineer. The engineer had notice
that the water was high between Beatty and
Sawyer and over the track at Sawyer.
After passing Beatty the train was going
at a rate variously put as 35 to 50 or 00
miles an hour when it ran into the water
and was thrown from the track. The plain-
tiff was caught between the tender and a
car and adly hurt.
The plaintiff got a judgment for $10,000,
which was sustained by the supreme court.
At the trial the jury were instructed that
the defendant railroad was presumed to be
negligent, and that if the evidence left it
doubtful, it was their duty to find full dam-
ages for the plaintiff. The judge refused
to instruct them that the engineer had no
authority to permit the plaintiff to ride
on the train "at the place he was in,** but
the request for this instruction was based
upon the company^s rules, not upon the aet
to regulate commerce. Tlie supreme coart»
however, discussed the act of Congress and
held that it did not apply to the case.
By § 1 of the act, as amended by the aet
of June 29, 1906, chap. 3591, 84 Stat, at
L. 584, Comp. SUt 1913, | 8563, and still
140 U. S.
1915.
CAUSEY y. UNITED 6TATE8.
SM-309
in force, any eominoii carrier violating the
provisions against free transportation is
guilty of a misdemeanor and subject to a
penalty, and any person other than those
excepted *'who uses any such interstate
. . . free transportation" is made sub*
ject to a like penalty. No doubt the enact-
ment had somewhat more formal [397]
OSes especially in view, but we see no reason
for limiting the prohibition to them. The
word "such" like "said" seems to us to indi-
cate no more than that free transportation
had been mentioned before. We cannot think
that if a prominent merchant or official
ahould board a train and by assumption and
an air of importance should obtain free car-
riage, he would escape the act. We are of
opinion therefore that the act was construed
wrongly. Assuming, as it has been aa-
sumed, that the defendant's liability was
governed otherwise by state law, it seems
doubtful under the state decisions whether
the plaintiff would have been allowed to
recover had the court been of opinion that
the act of Congress made his presence on
the train illegal. Western U. Teleg. Co. v.
McLaurin, — Miss. — , L.R.A.1916C, 487,
<M So. 739. And although there are ex-
pressions in the opinion below that raise a
doubt, the fact that the supreme court
thought it necessary to construe the act
indicates that the construction was ma-
terial to the result. For this reason the
Judgment must be reversed.
Judgment reversed.
Mr. Justice Hnghes, dissenting:
The supreme court of the state held that
the provision of the Federal act was not ap-
plicable to this case, and I think that the
court was right. Congress did not con-
cern itself with the possibility that promi-
nent persons, or others, might steal a ride
through the unauthorized action of some
employee of the railroad company. Con-
gress was concerned with the well-known
abuse which consisted in the giving of
passes, or free transportation, by railroad
companies, and it directed its legislation to
that abuse. The provision is: "No com-
mon carrier subject to the provisions of this
act shall, . . . directly or indirectly,
issue or give any interstate free ticket, free
jass or free transportation for passengers,"
except as stated; and [398] that "any
common carrier violating this provision
shall be deemed guilty of a misdemeanor,
and for each offense, on conviction shall
pay ... a penalty . . . and any
person, other than the persons excepted
in this provision, who uses any such in-
terstate free ticket, free pass, or free
transportation shall be subject to a like
penalty.'' [84 Stat, at L. 684, chap.*
•0 li. ed.
8591, Comp. Stat 1918, | 8668.] Here, it
was found that the engineer had no author-
ity to give any free transportation to the
plaintiff, and I cannot but think that in this
view the defendant in error was outside the
act. The supreme court of the state saidt
"The common carrier did not issue any
free transportation to this plaintiff, and
he was not using any such free transporta-
tion. The engineer in charge of the locomo-
tive pulling a passenger train under no con-
ceivable circumstances has any power to
issue free transportation to any person, and
we are unable to see the force of the argu-
ment along this line. ... It is clear to
us that the engineer was not authorised to
carry plaintiff free, and it is also manifest
that the act of Congress is not directed
against acts of the duiracter here involved.
[— Miss. — , 67 So. 966.]
I know of no reason for disregarding the
finding of the state court as to want of au-
thority in the engineer, and it was on this
hypothesis that the court held the Federal
provision to be inapplicable. Aside from
this ruling, it is not suggested that any
Federal' question is involved.
I am authorised to say that Mr. Justice
McKenna concurs in this dissent.
[399] POWHATAN B. CAUSEY, Appt.,
V.
UNITED STATE&
(See S. C. Reporter's ed. 899-408.)
Appeal — roriew of facts — concurrent
findings.
1. Concurrent findings of fact by the
master and the two lower courts that a
patentee under the homestead laws had
agreed that the title when acquired should
inure to the benefit of another will not be
disturbed by the Federal Supreme Court on
appeal unless plainly erroneous.
(For other cases, see Appeal and Error, 4920-
4930, in Digent Sup. Ct. 1908.]
Public lands — homestead — acquiring
title for another — commutation.
2. An agreement by a homestead entry-
man that the title when acquired shall inure
to the benefit of another disqualifies him
from securing title under the commutation
provision of the homestead laws by sub-
stituting the minimum price of the land for
a part of the required five years of resi-
dence and cultivation.
(For other cases, see Public Lands, 855-861.
In Digest Sap. Ct. 1908.]
Appeal — presumptions — sanction of
Attorney General.
3. The sanction of the Attorney Gen-
eral to a suit purporting to be brought in
the name and for the benefit of the United
States by a bill bearing the signature of
the assistant United States aUomey for
Sm^lEME OOUKT OF THE UNITED STATES.
«ri on appeal t patented to him, and be .. _
1 behalf of the Bradford. Ai ground* for the miit the bill
government by one of the Aaaietant Attor- cbargee that the oath and proof wherebr
ney. General, who filed a certified copy of u,^ ^t,(«, ^^^ secured were falw in that.
S.o'^r^^g'rin^t^.lir^tr.^ti'eS^: ^^^ "k'T.^'^ ^^%^*'"' ^"""^
formably to a requert of the Secretary of ^^' *"> •"'' entered into an agreement
the Interior,— eroecially where It li fairly "'•*'' ™' Wright, a clerk and agent of
inferable that the letter waa exhibited in Bradford, whereby the title when acquired
the court below. waa to be paised to the latter ; that botli
IFor other caeee, lee Appeal and Brror. VIH. entriei were made in pureuance of this un-
d: United Butea, IV, a. In Digeit Sop, Ct,,, .j .u* .j
]9(J8.} lawful agreement and were therefore fraudu-
Pnbttc land* ^ salt to annal patent ^ lent; and that Bradford took the tranafel
offer to return consideration. from Causey under the agreement and with
4. An offer to return the land acrip full knowledge of the fraud perpetrated
certificates received hv the United Statea upon the government. It aleo is alleged
when a commutation homestead entir fM that, in virtue of an arrangement with
made is not a prerequisite to a suit hy the B^^f^^d, Causey U cUiming mi intereet In
government to annul the patent because of , ,, , ' , ' „,.,.,;'' iT .. r.lr,
in agreement by the entryman that title, »"" °' '''e !»"'*■ With Bradford's [Ml]
when acquired, shall inure to the benefit of Co"**"* » decree was entered against hun.
another. Causey ansivered, denying the unlawful
IFor otber eases, see Public Lands, I. 1, S, In atrreenient and fraud, and the suit was re-
Dlren Sop. Ct. 1908.1 f„,^d t„ , n,,,t^,^ „ho found the facU to
[No. 197. 1 ^ *' charged in the bill. The findings wera
sustained by the district court, which a-
Argoed January 26, 1916. Decided March tered a decree against Causey, and the da-
fl, 191fl. cree was afBrmed by the circuit court ol
. appeals. 121 C. C. A. 663, 203 Fed. 1022.
APPEAL from the United SUtes Circuit Complaint is made of the findings. The;
Court of Appeals (or the Fifth Circuit "ere concurred in by the master and both
to review a decree which affirmed a decree courts, and therefore should be permitted to
of the District Court for the Eastern Dis- stand unless shown to be plainly erroneoua.
trict of Louisiana in a suit to annul a pat- Washington Securities Co. t. United Statea,
ent for public lands. Affirmed. 234 U. S. TS, 78, SB L. ed. 1220, 1222, 34
See same case below, 121 C. O. A. 883, Sup. Ct. Rep. 726; Gilson t. United SUtea,
203 Fed. 1022. 234 U. S. 3B0, 383, fiS L. ed. 1381, 1362,
The facts are stated in the opinion. 34 Sup. Ct, Rep. 778. Testing them by the
w ». w .. .. u... J •!. evidence, we discover no plain error, but,
and filed a brief for appellant. tained
Assistant Attorney General Knaebel ar- That the title was acquired by substltut-
gued the cause, and, with Hr. 8. W. Wil- ing the minimum price of the land for a
liams, filed a brief for I4>pellee. part of the required five years of residenco
and cultivation, as permitted by the corn-
Mr. Justice Tan DeTsnter delivered the mutation provision of the homestead law,
opinion of the court: ■■ not material, for the agreement to obtain
This is a suit by t^a United Statea to ^^' ''"d tor the benefit of another disquali-
recover the title to 167.77 acre* of land in ^^ Causey from acquiring the title in either
Ascension' parish, Louisiana, patented to ■^'x'e Bailey v. Sanders, 228 U. S. 603, 603,
PowhaUn E. Causey and by him transferred C7 L ed. BSE, 888, 33 Sup. Ct. Rep. 602;
to Jamea L. Bradford. While the land was Qil*on r. United States, 234 U. S. 360, 384,
yet public, Causey aecured a preliminary 68 L. ed. 1381, 1383, 3^ Sop. Ct. Rep. 778.
homestead entry thereof by taking an oath, "^e bill, while purporting to be brought
as waa required, that he had not directly or "> *^' o*™" *nd 'o' the benefit of the
Indirectly made, and would not make, any United States, and bearing the signature
agreement whereby the title which he might o' ^e assieUnt United SUtes attorney for
acquire would inure in whole or in part to the district, does not state or show that it
the benefit of another. After the expiration '■ brought with the sanction of the Attorney
of fourteen months he secured a final entry General, and because of this it is objected,
under the commutation provision of the ■* >t was in both courts below, that the
homestead law by presenting proof that he bill should not be entertained, but dismissed,
bad not sold or contracted to sell any part In the absence of a oontroUing statute, and
of the land, and by paying therefor In so- there is none, it is essential to such a suit
called Bcrip at the rate of (1.25 per acre, that It be brought with the Attorney Gen-
Pnrsuant to the final entry the land waa eral'i approvali and while the usual and
'■" 140 TJ. 8.
UU. HANOVEB STAB MILLING CO. r. METCAU'. 401-403
betUr practice !■ to stkU or show in the Ct B«p. 9ZT; United SUtei 1
biU that it )■ brought with liie approval, wealth TitU Ina. A T. Co. 193 U. S. 661, 48
this ia not indiapeiiBable. The caae ia ar- L. ed. 830, 24 Sup. CU Eep. 546; United
gued here on behalf of the government by 6tuea v, Colorado Anthracite Co. 22S U. 8.
one of the Aiaistaot Attorneys General, who 219, 66 L. ed. 1003, 32 Sup. Ot Bap. 017.
files • certified cop; of a letter [40S] from Decree afflrmed.
the Attorney General, authoriiing the lusti-
tution of the suit conformably to a request
of the Secretary of the Interior. Thia saf-
flciently meeU the objection, especially as HANOVER STAR HILLING COMPAN;,
it ia fairly inferable that the letter wms Petitioner,
exhibited in the courts below. United StAtca „_ ''
▼. Throd-inorton. 98 U. S. 61, TO. 26 L. ed. ^- ^- METCALF. (No. 23.)
93. 90; Mcl^ughlm, United States, Wert- ^^LBj, ^ WHEEliTcOMPANT, Appt
«rn P. R. Co. ». United SUtea) 107 U. 8. „j Petitioner.
S2e. SZ8, 27 L. ed. 021, 2 Sup. Ct. Rep. 802;
Mullan T. United States, 118 U. S. 271, 276,
30 L. ed. 170, 172, 6 Sup. Ct. Rep. 1041;
United States *. San Jacinto Tin Co. lES U.
B. 273, 278-287, 31 L. ed. 717, 74B-762. 8 (See 8. C. Reporter's ed. 403-i26,)
Sup. Ct. Sep. 850.
The further objection is made that the Trftdemark — tttMndonment — nonaser
bill cannot be mainUined because it does in particular market — estoppel.
not contain an offer to return the scrip re- ^ 'u^* I""'' "PPropriator of the words
c«ived when the commuted entry was made. 7 m ^T a ^^Y''. ^ confining his use
TV- «t.:_<i», ......... ty.t ikl .„•„ I. „„ °' y'*^ trademark to territory north of the
The objection aaaumes that the suit is up- q^;-; ^i^„_ ^jj^ ^^^ ^^„,j {j^^^ j,i, ..^^
on the same plane aa If brought by an m- r^^.. f^^^^ jg wholly unknown in the south-
dividual vendor to annul a aale of land eutem states under that name, loses any
fraudnlently induced. But, as this court right to enjoin the use in Alabama ot the
has aaid, the goTemment, in disposing of same trademark by another flour manufac-
Ita publlo landa, does not assume the atti- turer who, in entire good faith and without
tude of a mere seller ot real estate at ita knowledge of the other trademark, has built
market value. These lands are held in trust "?»"<*»" "i^'-''^. *^t^« '^ *?' '^w
I II .1. _ I J 1 -ji * eastern states that in the flour trade in that
for all the people, and in providing for territory the mark -Tea Rose" has come to
their diipoaal Congress has sought to ad- „g^ it', (,„„, „d nothing else.
fance the intaresta of the whole country by [For other cims, see Trademark, v.; Estoppel,
opening them to entry in comparatively I"- "i- ^ 0\test Sop. Ct. 1908.1
unall tracts under restrictions designed to On'**' oompeUtlon - imitation of pack.
«c«.mplUh their settlement, development ^; ^ „„„„,„,t„,„ „, „„„, ,h, ha. built
and utihration. And when a suit is brought ^^j, ^^ extensive trade in the south-
to annul a patent obtained in violation of eastern atataa for flour labeled "Tea Ross"
these restrictions, the purpose is not merely that in the fiour trade in that tarritory thoae
to regain the title, but also to enforce a words have come ta mean its flour and
public statute and maintain the policy un- nothing else is entitled, irrespective of any
derlying it. Such a suit is not within the question of technical trademark right, to
reason of the ordinary rule that a vendor ^njoi" t*>e sale in Alabama of "Tea Rose"
suing to annul a sale fraudulently induced """f made by a riva manufacturer and put
ninsf offer and I. ready to retu.n the con- l^aVtsT^r tat VyT'e'!^'i?uSE^
sideration received. That rule, if applied, to, and do, deceive ordinary and casual pur-
would tend to fruBtrate the policy of the chasers into the belief that they are pur-
public land laws; and so it is held that the chasing ita flour-
wrongdoer must restore the title unlawful- [For oUier cases, •*« Dnfalr Competition, In
ly obtained and abide the judgment of Con- °'«"* ^"P" "" *"*'
gress as to whether the consideration paid [Kos. 23 and 30.]
shall be refunded. United States r. Trinidad
Coal k Coking Co. 137 U. S. 160, 170, 171, Argued Hay t and 10, 1915. Decided March
34 L. ed. 040, 644, 11 Sup. Ct. Rep. C7; 6, 1916.
Heckman v. United States, 224 U. 8. 413,
447, 60 L. ed. 820, 833, 32 Sup. Ct. Rep. NOTK.— On territarlal extent of right in
424. And see Rev. Stat § 2302; Comp. trademark or tradename used In limited
e. . -innv > ..T11 1 . T.,_» IB iBon .k.t. localitv where used by another in a diff-r-
Stat. 1B13 8 4771; Act June 16 1880. diap. ^ loimty-see note to Eastern Outfitting
244, S 2, 21 Stat, at L 287, Comp. Stat. ^o. v. Maiheim, 35 L.R.A.{N.S.) 251. and
1B13, S *586; (403] HoITeld v. United to case No. 30 in circuit court of appeals.
States, 1S6 U. S. 273, 46 L. ed. 1160, 22 Sup. as reported in L.R.A.1916D, 136.
40 t. ed. "^^^
SUPREME COURT Of THE UNITED ST&TBS. Oct. Tsui,
ON WRIT of Certiorari to the United L.RA.(NjS.) 2fi8, 110 C. C. A. MS, 18»
State* Circuit Court of Appeals for tlie Fed. &6i Thomaa Q. OttmAl ft Son Co. t.
Fiftli Circuit to review a decree which re- McIlTaine ft Baldwin, 171 Fed. US.
Tersed, with direction* to dismiai the bill,
a decree of the District Court for the Middle
ra. Bdward Brerett Iioacftn and
_.,,,,.,. ., . „ J. Fp«d Ollater argued the eanaa and tiled
DiJtrict of Alabama, grMting a temporary ^ j^^,^ ,^ j, j, u'Jtcalf:
. PPEAL ta,n a, Un,W SUf. Circuit u^^^., „ „ ""a. ii^'./u,.
A Court ol App.;l. lo, tl, B,.olh Clr- ,^;^|, „»« h.™ b«u Ih. Bnt to «« or
cult to review a decreo which re.ereed h , ,._ „, .^i.i„ „.
teree ol the Dl.trlct Court to th. E..U™ ^^ "» "»' »» '■!» "«iol« of pro-
pielrlct ot lUbiole, grenling . Uuipor.r, o^^i,^ „„, a,. ,. Alcom, IM a S.
lojunctlou to ™l'«.i" a Inlrlugeoeot ol 3, ;_ ^ „ „ ^ „
. trulemark. Dlniiud lor w.nt ol jurii- n,u.„, 1 H. Cui.1 Co. v. CUA, U Wmll.
diction.
0'
311, 20 L. ed. 681.
-.."«"„!!..?*':".!« .''•^"'?i S.. Vht ^ the u» o, . fdiulca .,.-.
States Circuit Court of Appeali
Y """"^ ^'r™'. r -Kc™- ■■» „,„k ertenda throughout the jurisdiction
the Seventh Circuit to review the aame de- , ,, . ,„, J? . ,_ ... i., ,.
of the sovereignty wherein the right is cra-
ated; and it Is Immaterial to its exolueive
cree. Affirmed.
A.X"o: F^. ?iiTKo.to: LlllZnei. -.t''*^ ^« P-PHetor doe. not «tend hi.
IZ^lk 0. C. A. «£=«.8 F^d. 013. '•T^r,:,^LtSt!TS7. » I. «L
The fact, are sUUd In the opinion. ^^^_ Columbia m/i1 Co. v. Alcorn, «ipra;
Meura. Henry pitta and Edgar L. Amoskeag Mfg. Co. t. Trainer, 101 U. S. fil,
CUrluon argued the cause, and, with 26 L. ed. 993; McLean v. Fleming, BO U. S.
Hewr.. James E. Morrisette and John Lon- 246, 24 L. ed. 828; Baxldner v. Eisner ft
don, filed a brief for the Hanover Star Hill- M. Co. 179 U. S. 10, 46 L. ed. CO, 21 Sup.
ing Company : Ct. Rep. 7 ; Saslehner t. Slegel-Oooper Co.
Trademark property ii limited to the ter- 179 U. S. 42, 46 L. ed. 77, 81 Sup. Ct. Rap.
ritory occupied by the trade which is inci- 16.
dent to the mark, and the rights in the One whose registered trademark la mani-
mark extend only to markets where the festly an imitation of an earlier but un-
trader's good, have become known and iden- registered trademark cannot reatrais a
tifled hy tlie use of the mark. third party from Oiiug it.
Hanover SUr Mill. Co. t. Allen ft W. Ubeda v. ZialciU, 220 U. S. 462, 67 I*, ad.
Co. LJt.A.19ieD, 13a, 126 C. C. A. 616, 208 2B6, 33 Sup. Ct. Rep. 166.
Fed. 613: C. A, Brises Co. v. National ., _, ^ -^ „ , j «
„, , _' . r^ ,n, JO o-Mi t Mewr.. Edward Krerett tongnn and *.
Wafer Co. Ann. Cas. 19140, 032, note; ___. _,, , , ..„ „„„V_j _uu
Cohen V. Nagle, 6 Ann. Cas. 661, note; Sar- ^, "n wk . . «^ ^T^ ^
tor y. Bchader, 126 Iowa, 696, 101 N. W. "'■ \ S,.^. ^ ^ '
611 1 Halnque v. Cyclops Iron Work^ 136 Allen ft Wheeler Company:
Cal. 351, 68 Pao. 1014; Corwin v. Daly, 7 The sole and only function ol a t«!hnical
BoBw. 222 ; Lee v. Haley, L. R. 5 Oh. 166, trademark i. to indicate the origin or own-
39 L J. Ch. N 8. 284, 22 L. T. N. S. 261, *^"*''P "' '"^ S*^» ^ "'"*'' " " *™»"a.
18 Week. Rep. 242; Miskel! v. Prokop. 68 Delaware ft H. Canal Co. v. Clark, U
Neb. 628, 70 N. W. 552; Tetlow v. Tappan, Wall. 311, 20 L. ed. 681; Amoskeag Wg.
86 Fed. 774; Levy v. Waitt, 26 L.R.A. 180, Co. v. Spear, 2 Sandf. 898; Lawrence Mfg.
10 C. C. A. 227, 21 U. 8. App. 3B4, 81 Fed. Co. v. TenneMee Mfg. Co. 138 U. 8. 637, 34
1008; Heublein v. Adams, 126 Fed. 782; ^ <^ »8T, U Sup. Ct. Rep. 3B8; Amoriceag
Diets V. Horton Mfg. Co. 06 C. C. A. 41, Oo. v. Trainer. 101 U. S. 61, 26 L. ed. 81»».-
170 Fed. 885; Menendei v. Holt, 128 U. S. T^o 'eal •>»"■ "' ^^ remeij tor infringa-
614, 32 L. ed. 620, 0 Sup. Ct. Rep. 143; meot of a techoical trademark ia th« ix^
Macmahan Pharmacal Co. v. Denver Chem- elusive property right in the use of th*
ical Mfg. Co. Gl C. 0. A. 302, 113 Fad. 4S8; mark itaeU.
McLean v. Fleming, 06 U. 8. 245, 24 L. ed. Lawrence Mfg. Co. t. Tennesaee M^. Co.
828; Ooodyear's Rubber Glove Mfg. Co. t. 138 U. S. 637, 84 L. ed. 807, 11 Sup. Ct
Goodyear Rubber Co. 128 U. 8. 698, 32 L. Rep. 398; Elgin Nat. Watch Oo. r. Illinois
ed. 636, 9 Sup. Ct. Rep. 186; Howe Scale Wateh Case Co. 178 U. 8. 666, 46 L. ed. 30S,
Co. V. Wycoff, Beamans ft Benedict, 198 U. 21 Sup. Ct. Bep. 270.
S. 118, 49 L. ed. 972, 26 Sup. Ct. Rep. 600; The inherent characteristic or attribuU
Jtothbone ▼. Champion Steel Range Co. 37 of a trademark ia ita exduMVeneaa; and it
ri4 140 V. s.
1916.
HANOVER STAR MILLING CO. y. MSTCALF.
406-^7
must diBtinctlj indicate origin or owner- 1
ehip.
Columbia Mill Co. t. Alcom» 150 U. S.
4IM), 87 L. ed. 1144, 14 Sup. Ct. Rep. 161;
Amoskeag Mfg. Co. t. Trainer, 101 U. S.
61, 25 L. ed. 093; McLean y. Fleming, 90
U. S. 245, 24 L. ed. 828.
The principles of this case have hereto-
fore been decided by this honorable court,
in the following cases:
Kidd v. Johnson, 100 U. S. 017, 26 L. ed.
760; Columbia Mill Co. y. Alcorn; Amos-
keag Mfg. Co. y. Trainer; and McLean y.
Fleming, supra; Sazlehner y. Elisner k M.
Co. 179 U. S. 19, 46 L. ed. 60, 21 Sup. a.
Rep. 7; Saxlehner y. Siegel-Cooper Co. 179
U. S. 42, 46 L. ed. 77, 21 Sup. Ct. Rep. 16.
The ri^t to the use of a technical trade-
mark extends throughout the jurisdiction of
the soyereignty wherein the right is cre-
ated, and it is immaterial to its exclusive
use that the proprietor does not extend his
business to a particular locality.
Derringer y. Plate, 29 Cal. 292, 87 Am.
Dec 170; Browne, Trade-Marks, §§ 47, 324;
Paul, Trade-Marks, | 88; Hopkins, Trade-
Marks, I 13; Kidd y. Johnson, 100 U. S.
617, 25 L. ed. 769; Metcalf v. Hanover Star
Mill. Co. 1^ C. C. A. 483, 204 Fed. 211;
United Drug Co. y. Theodore Rectanus Co.
206 Fed. 570; Saxlehner v. Eisner k M. Co.
179 U. S. 19-39, 45 L. ed. 60-76, 21 Sup. Ct.
Rep. 7; Saxlehner v. Siegel-Cooper Co. 179
U. S. 42, 46 L. ed. 77, 21 Sup. Ct. Rep. 16;
Menendez y. Holt, 128 U. S. 514, 32 L. ed.
626, 9 Sup. Ct. Rep. 143; McLean y. Flem-
ing, 96 U. S. 245, 24 L. ed. 828.
The right of action in technical trade-
marks is based upon the ground that an ex-
elusive property right in the mark is
claimed, and the mere use of a close imi-
tation of it by another ipso facto creates a
cause of action. Unfair competition cases
do not necessarily involve the violation of
any exclusive right in a trademark, but may
arise from the use of marks which are free
to everybody. It is true, the results of the
infringement in both cases may be identical ;
that is, injury to the owner and also to
the public. However, this similarity in re-
sults does not affect the kind and degree of
ownership in either.
Cohen y. Nagle, 2 LRJL.(N.S.) 964, and
note, 190 Mass. 4, 76 N. E. 276, 6 Ann. Cas.
663.
Mr. Justice Pitney delivered the opinion
of the court:
These cases were argued together, and
may be disposed of in a single opinion.
In No. 23, the Hanover Star Milling Com-
pany, an Illinois corporation engaged in the
manufacture of flour in that state, filed a
bill in equity on March 4, 1912» in the
«0 Id. ed.
United States district court for the middle
district of Alabama, against Metcalf, a citi-
zen of the state of Alabama and a merchant
engaged in the business of selling flour at
Greenville, Butler county, in that state, to
restrain alleged trademark infringement
and unfair competition. The bill averred
that for twenty-seven years last past com-
plainant had been engaged in the manufac-
ture of a superior and popular grade of
flour, sold by it at [406] all times under
the name of "Tea Rose'* flour, in a wrapping
with distinctive markings, including the
words "Tea Rose" and a design containing
three roses imprinted upon labels attached
to sacks and barrels; that this flour had
been marketed thus by complainant in the
state of Alabama for the preceding twelve
years, during which time, by maintaining a
high and uniform quality, by expensive ad-
vertising, and by diligent work of its repre-
sentatives, it had built up a large and lucra-
tive market, with annual sales of more than
$175,000 of Tea Rose flour in. that state,
and had established a valuable reputation
for the name "Tea Rose" and the distinctive
wrappings in Alabama and other states,
particularly Georgia and Florida; that un-
til shortly before the commencement of the
suit complainant's Tea Rose fluur was the
only flour made, sold, or offered for sale
under that name in Butler county or else-
where in the state of Alabama, and the
name "Tea Rose" had represented* and
stood for complainant's flour; and that re-
cently the Steeleville Milling Cpmpany, of
Steeleville, Illinois, had« through Metcalf's
agency, been marketing in Alabama, and
particularly in Butler county, flour of its
manufacture, in packages and wrappings
substantially identical with complainant's
and bearing a design containihg three roses
and the name "Tea Rose" upon the labels,
in a manner calculated to deceive and in
fact deceptive to purchasers, thereby threat-
ening pecuniary loss to complainant exceed-
ing $3,000 in amount, and destroying the
prestige of complainant's "Tea Rose" flour,
and damaging its trade therein.
Defendant's answer denied all attempts
to deceive purchasers, and further denied
complainant's right to the exclusive use of
the words "Tea Rose" or the picture of a
rose as a trademark; averred that long
prior to complainant's flrst use of it, and as
early as the year 1872, the name had been
adopted, appropriated, and used as [407] a
trademark for flour by the firm of Allen &
Wheeler, of Troy, Ohio, and used by it and
its successor, the Allen & Wheeler Company,
continuously as such; and alleged that the
Steeleville Milling Company had used its
"Tea Rose" brand for more than sixteen
years last past, and as early -- •^'- -r
407-409
SUPREME CXDURT OF THE UNITED STATE&
Oct. Tebm,
1890 had sold flour in Alabama under that
label.
Upon consideration of the bill and answer
and affidavits submitted by the respective
parties, the district court granted a tem-
porary injunction restraining Metcalf from
selling flour labeled *Tea Rose," manufac-
tured by the Steeleville Company or any
person, flrm^ or corporation otiier than the
Hanover Company, at Greenville, or at any
other place in the middle district of Ala-
bama. Upon appeal, the circuit court of
appeals for the flfth circuit reversed this
decree and remanded the cause, with direc-
tions to dismiss the bill. 122 C. C. A. 483,
204 Fed. 211. A writ of certiorari was then
allowed by this court.
In No. 30, the Allen k Wheeler Company,
a corporation of the state of Ohio, manu-
facturing flour at the city of Troy, in that
state, filed a bill against the Hanover Star
Milling Company on May 23, 1912, in the
United States district court for the eastern
district of Illinois, averring that in or be-
fore the year 1872 the firm of Allen &
Wheeler, then engaged in the manufacture
of flour at Troy, adopted as a trademark
for designating one of its brands the words
''Tea Rose," and from thence until the year
1904 continuously used that trademark by
placing it upon sacks, barrels, and packages
containing the brand and quality of flour
designated by that term and sold through-
out the United States; that in 1904 the
Allen Jt Wheeler Company was incorporated
and took over the mills, machinery, stock,
trademark, and good will of the firm, since
which time the corpoiation had continued
to use the trademark upon fiour of its man-
ufacture, and had distributed and sold such
flour in the markets [408] of the United
States, whereby the words "Tea Rose" had
become the common -law trademaik of the
Allen k Wheeler Company; that recently
it had learned that the Hanover Star Mill-
ing Company had adopted the words "Tea
Rose" as designating a brand of flour manu-
factured by it, and, notwithstanding no-
tice of complainant's rights, was persisting
in the sale of its flour under that name and
threatening to continue so to do; and that
defendant had sold large quantities of Tea
Rose flour, particularly in the markets of
the states of Alabama, Florida, and Missis-
sippi, with large gross sales, and profits
approximating $5,000 per year for the past
five years, causing damage and loss to com-
plainant in excess of $3,000. An injunction
and an accounting of profits were prayed.
Upon t)iis bill, a demurrer filed by the Han-
over Company, and affidavits presented by
both parties, the district court granted a
temporary injunction restraining the use of
the words "Tea Rose" as a trademark for
716
flour, without territorial restriction. The
circuit court of appeals for the seventh cir-
cuit reversed this decree, and renumded the
cause to the district court for further pro-
ceedings not inconsistent with its opinion.
L.RJL1916D, 136, 126 C. C. A. 616, 208 Fed.
513. An appeal was taken to this conrt»
and a writ of certiorari was subsequently
granted. The appeal must be dismissed for
want of jurisdiction, and the case will be
disposed of under the writ of certiorarL
No question is raised respecting the pro-
priety of passing upon the questions at is-
sue on a review of decisions rendered upon
applications for temporary injunction. Both
district courts granted such injunctions,
and both, circuit courts of appeals reversed
upon grounds that went to the merits.
These courts differed upon fundamental
questions, and it was because of this that
the writs of certiorari were allowed, the sit-
uation being such that it was deemed proper
to allow them before flnal decrees [409]
were made, notwithstanding the general
rule to the contrary. American Constr. Co.
V. Jacksonville, T. & K. W. R. Co. 148 U.
S. 372, 378, 384, 37 L. ed. 486, 489, 491,
13 Sup. Ct. Rep. 758; The Three Friends,
166 U. S. 1, 49, 41 L. ed. 897, 913, 17 Sup.
Ct. Rep. 495; The Conqueror, 166 U. S.
110, 113, 41 L. ed. 937, 939, 17 Sup. Ct.
Rep. 510; Denver v. New York Trust Co.
229 U. S. 123, 133, 57 L. ed. 1101, 1120, 33
Sup. Ct. Rep. 657.
In both cases it was shown without dis-
pute that the firm of Allen & Wheeler
adopted and used the words "Tea Rose*' as
a trademark for one kind or quality of
flour manufactured by it as early as the
year 1872, and continued that use until
the year 1904, when the Allen & Wheeler
Company was incorporated and took over
the mills, machinery, stock, trademark, and
good will of the firm and succeeded to its
business. But there is nothing to show the
extent of such use or the markets reached
by it, except that in the year 1872 Allen
& Wheeler sold three lots of 25 barrels each
to a firm in Cincinnati, Ohio, and one lot
of 100 barrels to a firm in Pittsburgh,
Pennsylvania; that in the early 70's an-
other firm in Pittsburgh was a customer
for this brand; and that in the later 70's
a firm in Boston, Massachusetts, was a cus-
tomer for the same brand. As to the Allen
& Wlieeler Company, there are affivadits
stating in general terms that since its in-
corporation in 1904, and "continuously
down to the present time," the company has
used the brand "Tea Rose" for flour; but
there is a remarkable absence of particular
statements as to time, place, or circum-
stances; in short, no showing whatever as
to the extent of the use or the marketa
240 U. 8.
1916.
HANOVER STAR MILLING CO. y. METCALF.
409-412
reached. There is nothing to show that the
Allen k Wheeler "Tea Rose" flour has been
even advertised in Alabama or the adjoin-
ing states, and there is clear and undis-
puted proof that it has not been sold or
offered for sale or known or heard of by the
trade in Alabama, Mississippi, or Georgia.
In No. 30, there is uncontradicted proof
that the Allen k Wheeler Company is selling
flour in Alabama and Georgia, but under
the brands <*£ldean Patent" and '*Trojan
Special."
[410] In both suits, the Hanover Star
Milling Company introduced affidavits fair-
ly showing that shortly after its incorpora-
tion in the year 1885 it adopted for one of
its brands of flour the name "Tea Rose," and
adopted for the package or container, wheth-
er sack or barrel, a label bearing the name
"Tea Rose" and the design already referred
to; and that this trademark was adopted
and used in good faith without knowledge
or notice that the name "Tea Rose" had
been adopted or used by the Allen & Wheel-
er flrm, or by anybody else. In 1904 the
Hanover Company began and has since
prosecuted a vigorous and expensive cam-
paign of advertising its Tea Rose flour,
covering the whole of the state of Alabama,
and parts of Mississippi, Georgia, and Flo-
rida, employing many ingenious and inter-
esting devices that are detailed in the
proofs, with the result that at the com-
mencement of the litigation its sales of
Tea Rose flour in these markets amounted
to more than $150,000 a year, the Hanover
Star Milling Company has come to be
known as the Tea Rose mill, the reputation
of the mill is bound up with the reputation
of Tea Rose flour, and "Tea Rose" in the
flour trade in the territory referred to
means flour of the Hanover Companys' man-
ufacture. There is nothing to show any
present or former competition in Tea Rose
flour between the latter company and the
Allen k Wheeler flrm or corporation, or
that either party has even advertised that
brand of flour in territory covered by the
activities of the other.
Metcalf's purchases of competing Tea
Rose flour, which gave rise to the suit
brought by the Hanover Company against
him, were made from the Steeleville Milling
Company, an Illinois corporation, which ap-
pears to have adopted the name and design
of a tea rose for flour in the year 1895.
It should be added that, so far as ap-
pears, none of the parties here concerned
has registered the trademark [411] und^
any act of Congress or under the law of any
state. Nor does it appear that in any of the
states in question there exists any peculiar
local rule, arising from statute or decision.
Hence, the cases must be decided according
•0 Ii. ed.
to common-law principles of general appli-
cation.
Interesting and important questions are
raised concerning the territorial extent of
trademark riglits. In behalf of the Han-
over Company it is, in effect, insisted: (a)
that the failure ojf the Allen k Wheeler
Company and its predecessors to enter the
southeastern territory with their Tea Rose
flour, and the fact that such flour has been
and is wholly unknown there under that
name, disentitle it to interfere with the
Hanover Company's trade established in
good faith in that territory under the same
mark; (b) that the same considerations en-
title Hanover to affirmative trademark
rights of its own, enforceable against the
Steeleville Company and everybody else over
whom it has priority in that territory; and
(c) that Hanover is entitled to relief
against Steeleville and against Metcalf as
its agent, upon the ground of unfair com-
petition in trade regardless of the trade-
mark right. An affirmative answer to the
first proposition will decide the Allen k
Wheeler case (No. 30) in favor of Hanover,
and an affirmative answer to the third
proposition will decide the Metcalf case
(No. 23) in favor of Hanover, irrespective
of the disposition that might be made of
the second proposition. In view of possible
consequences to the rights of parties not
before the court, it is desirable to limit the
range of our decision as much as prac-
ticable, especially as the proofs now before
us are incomplete and in some respects un-
satisfactory.
It will be convenient to dispose first of
No. 30. Here the bill is rested upon al-
leged trademark infringement, pure and
simple, and no question of unfair competi-
tion is involved. The decision of the court
of appeals for the seventh circuit in favor of
the Hanover Company and [412] against
the Allen k Wheeler Company was rested
upon the ground that although the adoption
of the Tea Rose mark by the latter ante-
dated that of the Hanover Company, its on-
ly trade, so far as shown, was in territory
north of the Ohio river, while the Hanover
Company had adopted "Tea Rose" as its
mark in perfect good faith, with no knowl-
edge that anybody else was using or had
used those words in such a connection, and
during many years it had built up and ex-
tended its trade in the southeastern terri-
tory, comprising Georgia, Florida, Alabama,
and Mississippi, so that in the flour trade
in that territory the mark "Tea Rose" had
come to mean the Hanover Company's flour,
and nothing else. The court held in effect
that the ri^t to protection in the exclusive
use of a trademark extends only to those
markets where the trader's goods have b-
7
41£-414
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbm,
come known and identified bj hie use of
the murk; and because of the nonoccupancy
by the Allen k Wheeler Company of the
southeastern markets it had no ground for
relief in equity. Let us test this by refer-
ence to general principles.
The redress that is accorded in trade-
mark cases is based upon the party's right
to be protected in the good will of a trade
or business. The primary and proper func-
tion of a trademark is to identify the origin
or ownership of the article to which it is
affixed. Where a party has been in the
habit of labeling his goods with a distinc-
tive mark, so that purchasers recognize
goods thus marked as being of his produc-
tion, others are debarred from applying the
same mark to goods of the same description,
because to do so would in effect represent
their goods to be of his production and
would tend to deprive him of the profit he
might make through the sale of the goods
which the purchaser intended to buy.
Courts afford redress or relief upon the
ground that a party has a valuable interest
in the good will of his trade or business,
and in the trademarks adopted to maintain
and extend it. The essence of the [413]
wrong consists in the sale of the goods of
one manufacturer or vendor for those of an-
other. Delaware & H. Canal Co. v. Clark, 13
Wall. 311, 322, 20 L. ed. 581, 5S3; McLean v.
Fleming, 96 U. S. 245, 251, 24 L. ed. 828,
830; Amoskeag Mfg. Co. v. Trainer, 101 U.
S. 51, 53, 25 L. ed. 993, 994; Menendez v.
Holt, 128 U. S. 514, 520, 32 L. ed. 526, 527,
9 Sup. Ct. Rep. 143; Lawrence Mfg. Co. v.
Tennessee Mfg. Co. 138 U. S. 537, 546, 34
L. ed. 997, 1003, 11 Sup. Ct. Rep. 306.
This essential element is the same in
trademark cases as in cases of unfair compe-
tition unaccompanied with trademark in-
fringement. In fact, the common law of
trademarks is but a part of the broader law
of unfair competition. Elgin Nat. Watch
Co. V. Illinois Watch Case Co. 179 U. S. 665,
674, 45 L. ed. 365, 379, 21 Sup. Ct. Rep.
270; G. & C, Merriam Co. v. Saalfield, 117
C. C. A. 245, 198 Fed. 369, 372; Cohen v.
Nagle, 190 Mass. 4, 8, 15, 2 L.R.A.(N.S.)
964, 76 N. E. 276, 5 Ann. Cas. 553, 555, 558.
Common-law trademarks, and the right to
their exclusive use, are, of course, to be
classed among property rights (Trade-Mark
Cases, 100 U. S. 82, 92, 93, 25 L. ed. 550,
551 ) ; but only in the sense that a man's
right to the continued enjoyment of his
trade reputation and the good will that
flows from it, free from unwarranted inter-
ference by others, is a property right, for
the protection of which a trademark is an
instrumentality. As was said in the same
case (p. 94), the right grows out of use,
noi mere adoption. In the English courts
it often has been said that there ia no prop*
erty whatever in a trademark, as sueh. fir
Ld. Langdale, M. R., in Perry v. Truefitty 6
Beav. 73; per Vice Chancellor Sir Wm. Paga
Wood (afterwards Ld. Hatherly), in 0^-
lins Co. V. Brown, 3 Kay A J. 423, 426, I
Jur. N. S. 930, 5 Week. Rep. 676; per
Ld. Herschell in Reddaway t. Banham
[1896] A. C. 199, 209, 65 L. J. Q. B. N. &
381, 74 L. T. N. S. 289, 44 Week. Rep. 638»
25 Eng. Rul. Cas. 193. But since in tbte
same cases the courts recognize the right of
the party to the exclusive use of marka
adopted to indicate goods of hia manufae-
ture, upon the ground that "a man is not to
sell his own goods under the pretense that
they are the goods of another man; he can-
not be permitted to practise such a decep-
tion, nor to use the means which contributa
to that end. He cannot therefore be [414]
allowed to use names, marks, letters, or
other indicia, by which he may induce pur-
chasers to believe that the goods which he ia
selling are the manufacture of another per-
son" (6 Beav. 73) ; it is plain that in deny-
ing the right of property in a trademark it
was intended only to deny such property
right except as appurtenant to an estab-
lished business or trade in connection with
which the mark is used. This is evident
from the expressions used in these and other
English cases. Thus, in Ainsworth v. Walm-
sley, L. R. 1 Eq. 518, 524, Vice Chancellor
Sir Wm. Page Wood said: "This court haa
taken upon itself to protect a man in the uad
of a certain trademark as applied to a par-
ticular description of article. He has no
property in that mark per ae, any mora
than in any other fanciful denomination ha
may assume for his own private use, other-
wise than with reference to his trade. If
he does not carry on a trade in iron, but
carries on a trade in linen, and stampa a
lion on his linen, another person may atamp
a lion on iron; but when he has appropri-
ated a mark to a particular species of gooda»
and caused his goods to circulate with thia
mark upon them, the court has said that no
one shall be at liberty to defraud that maa
by using that mark, and passing off gooda
of his manufacture as Ixing the gooda of
the owner of that mark?'
In short, the trademark ia treated aa
merely a protection for the good will, and
not the subject of property except in ecm-
nection with an existing business. Tbo
same rule prevails generally in this country,
and is recognized in the decisions of thia
court already cited. See also Apollinaria
Co. V. Scherer, 23 Blatchf. 469, 27 Fed. 18»
20; Levy v. Waitt, 25 L.RJL 190, 10 a
C. A. 227, 21 U. S. App. 394, 61 Fed. lOOQ,
1011; Macmahan Pharmaeal Co. v. Denvar
Chemical Mfg. Co. 61 a C. A. 802, 118 Fad.
140 V. 8*
1915.
HANOVER STAR MHUMG CO. v. MBTGALF.
414-417
468, 471 » 475; Congress k E. Spring Co.
y. High Rock Congress Spring Co. 57 Barb.
526, 551; Weston v. Ketcham, 51 How. Pr.
455, 456; Candee y. Deere, 54 111. 439, 457;
Ayerj y. Meikle, 81 Ky. 73, 86.
[416] Expressions are founil in many of
the cases to the effect that the ezclusiye
right to the use of a trademark is founded
on priority of appropriation. Thus, in Dela-
ware & H. Canal Co. y. Clark, IS Wall.
311, 323, 20 L. ed. 581, 583, reference is made
to "the first approprlator;" in McLean y.
Fleming, 96 U. S. 245, 251, 24 L. ed. 828,
830, to "the person who first adopted the
stamp;" in Amoskeag Mfg. Co. y. Trainer,
101 U. S. 51, 53, 25 L. ed. 993, 994, the ex-
pression is "any symbol or deyise, not pre-
viously appropriated, which will distin-
guish,** etc. But these expressions are to
be understood in their application to the
facts of the cases decided. In the ordinary
case of parties competing under the same
mark in the same market, it is correct to
say that prior appropriation settles the
question. But where two parties independ-
ently are employing the same mark upon
goods of the same class, but in separate
markets wholly remote the one from the
other, the question of prior appropriation
is legally insignificant; unless, at least, it
appear that the second adopter has selected
the mark with some design inimical to the
interests of the first user, such as to take
the benefit of the reputation of his goods,
to forestall the extension of his trade, or the
like.
Of course, if the symbol or deyice is al-
ready in general use, employed in such a
manner that its adoption as an index of
source or origin would only produce con-
fusion and mislead the public, it is not sus-
ceptible of adoption as a trademark. Such
a case was Columbia Mill Co. y. Alcorn,
150 U. S. 460, 464, 37 L. ed. 1144, 1146,
14 Sup. Ct. Rep. 151, affirming 40 Fed. 676.
where it appeared that before complainant's
adoption of the disputed word as a brand
for its flour the same word was used for
the like purpose by numerous mills in dif-
ferent parts of the country.
That property in a trademark is not lim-
ited in its enjoyment by territorial boimds',
but may be asserted and protected whereyer
tha law affords a remedy for wrongs, is true
in a limited sense. Into whatever markets
tha use of a trademark has extended, or
its meaning has become [416] known, there
will the manufacturer or trader whose trade
is pirated by an infringing use be entitled
to protection and redress. But this is not
to saj that the proprietor of a trademark,
good in the markets where it has been em-
plciyed, can monopolize markets that his
trade has neyer reached, and where the
•P Ii. eO.
mark signifies not his goods, but those of '
another. We agree with the court below
(L.R.A.1916D, 136, 125 C. C. A. 515, 208
Fed. 519) that "since it is the trade, and
not the mark, that is to be protected, a
trademark acknowledges no territorial
boundaries of municipalities or states or
nations, but extends to eyery market where
the trader's goods haye become known and
identified by his use of the mark. But the
mark, of itself, cannot travel to markets
where there is no article to wear the badge '
and no trader to offer the article."
To say that a trademark ri^t is not lim-
ited in its enjoyment by territorial bounds
is inconsistent with saying that it extends
as far as the sovereignty in which it has
been enjoyed. If the territorial bounds of
sovereign^ do not limit, how can they en-
large such a right? And if the mere adop-
tion and use of a trademark in a limited
market shall (without statute) create an
exclusive ownership of the mark through-
out the bounds of the sovereignty, the ques-
tion at once arises, "What sovereignty f
So far as the proofs disclose, the Allen k
Wlieeler mark has not been used at all, is
not known at all in a market sense, within
the sovereignty of Alabama, or the adja-
cent states, where the controversy with the
Hanover Star Milling Company arose. And
so far as the controversy concerns intra-
state distribution as distinguished from in-
terstate trade, the subject is not within
the sovereign powers of the United States.
Trade-Mark Cases, 100 U. 8. 82, 93, 25 L.
ed. 550, 551.
We are referred to an expression con-
tained in the opinion of this court in Kidd
V. Johnson, 100 U. S. 617, 619, 25 L. ed.
769, 770: "The right to use the trade-
mark is not limited to any place, city, or
state, and, therefore, must be deemed [417]
to extend everywhere." But a reference to
the facts of the case, and the context, shows
that the language was not used in the sense
attributed to it in the argument. The ques-
tion presented for decision related to the
ownership of a trademark used by com-
plainants (Johnson & Company), on padc-
ages and barrels containing whisky, manu-
factured and sold by them in Cincinnati,
and this turned in part upon the force to
be given to a written transfer executed by
one Pike, and delivered to complainant's
predecessors in business in connection with
a sale of the distillery and its appurtenances,
which were Pike's individual property.
Kidd, the defendant, claimed the right to
use the same mark as surviving partner of
a firm of which Pike had been a member.
The court, speaking by Mr. Justice Field,
said (p. 619) : "That transfer was plain-
ly designed to confer what«^«t xV^Xi ^^^^
417--il0
SUPREME COURT OF THE UNITED STATES.
Ooi. Tmmm,
posaessed. It, in termB, extends the use of
the trademark to Mills, Johnson, & Com-
pany and their successors. Such use, to
be of any value, must necessarily be ex-
clusive. If others also could use it, the
trademark would be of no service in dis-
tinguishing the whisky of the manufacturer
in Cincinnati; and thus the company would
lose all the benefit arising from the reputa-
tion the whisky there manufactured had
acquired in the market. The right to use
the trademark is not limited to any place,
city, or state, and, therefore, must be
deemed to extend everywhere." This does
not import that the trademark right as-
signed was greater in extent than the trade
in which it was used. The record in the
case showed that complainant's trade had
been extended to New Orleans, and the con-
troversy arose out of sales made there by de-
fendants as licensees of Kidd. It was ad-
mitted in the answer that they had sold
whisky in competition with that of com-
plainants at New Orleans, and under the
same trademark, and the case was by stipu-
lation treated as a test case to settle wheth-
er Johnson • & Company or Kidd had the
[418] exclusive right, or whether they had
A joint right, to the use of the mark.
We are also referred to Derringer v. Plate,
29 Cal. 292, 295, 87 Am. Dee. 170, in which
it was said by the court: "The manufac-
turer at Philadelphia who has adopted and
uses a trademark, has the same right of
property in it at New York or San Fran-
cisco that he has at his place of manufac-
ture." In tliat case plaintiff averred that
he was a resident of Philadelphia, and up-
wards of tliirty years before the action in-
vented a pistol and adopted as a trademark
for it the words ''Derringer, Philadel.,"
which was and ever since had been his
trademark, and which he had caused to be
stamped on the breech of all pistols manu-
factured and sold by him; and that the de-
fendant since 1858 had been engaged in the
manufacture of pistols at San Francisco
similar to plaintiff's, on the breech of which
he had stamped plaintiff's trademark, etc.
The report of the case shows (p. 294) that
the only question presented was whether
the California statute of 1863 concerning
trademarks had repealed or abrogated the
remedies afforded by the common law in
trademark casei. This was answered in
the negative, and in the course of the reason-
ing the court said, p. 295: "The right is
not limited in its enjoyment by territorial
bounds, but, subject only to such statutory
regulations as may be properly made con-
cerning the use and enjoyment of other
property, or the evidences of title to the
same, the proprietor may assert and main-
tmJn Mb property right wherever the com-
7S0
mon law affords remedies for wrongs;" eon-
tinning with what we have first quoted.
Although not expressly stated, it is impUelt
in the report that plaintiff's pistols were
on the market in San Francisco, and hii
trademark known there and imitated by de-
fendant for that very reason. It was sueh
a mark as could not be accidentally hit
upon.
It results from the general principles thm
far discussed that trademark rights, like
others that rest in user, may [419] be loel
by abandonment, nonuser, laches, or acquiee-
cence. Abandonment, in the strict
rests upon an intent to abandon; and
have no purpose to qualify the authority of
Saxlehner v. Eisner & M. Co. 179 U. S. 19,
31, 45 L. ed. 60, 73, 21 Sup. Ct. Rep. 7» to
that effect. As to laches and acquiescesesb
it has been repeatedly held, in cases where
^defendants acted fraudulently or with knowl-
edge of plaintiffs' rights, that relief by in-
junction would be accorded although aa
accounting of profits should be denied. Ho-
I Lean v. Fleming, 96 U. S. 245, 257, 24 h.
ed. 828, 833; Menendez v. Holt, 128 U. 8.
514, 523, 32 L. ed. 526, 528, 9 Sup. Ct. Rep.
143; Saxlehner v. Eisner & M. Co. 179 U.
S. 19, 30, 45 L. ed. 60, 76, 21 Sup. Ct. Rep.
7. So much must be regarded as settled.
But cases differ according to their circum-
stances, and neither of those cited is in
point with the present. Allowing to the
Allen & Wheeler firm and corporation the
utmost that the proofs disclose in their
favor, they have confined their use of the
"Tea Rose" trademark to a limited terri-
tory, leaving the southeastern states un-
touched. Even if they did not know — and
it does not appear that they did kno1l^—
that the Hanover Company was doing eo^
they must be held to have taken the riik
that some innocent party might, during their
forty years of inactivity, hit upon the same
mark and expend money and effort in build-
ing up a trade in fiour under it. If, during
the long period that has elapsed since tlie
last specified sale of Allen k Wheeler '^ea
Rose"— this was "in the later 70V'— that
flour has been sold in other parts of the
United States, excluding the southeastern
states, no clearer evidence of abandonment
by nonuser of trademark rights in the latter
field could reasonably be asked for. And
when it appears, as it does, that the Han-
over Company in good faith and withoot
notice of the Allen & Wheeler mark has ex-
pended much money and effort in building
up its trade in the southeastern market, eo
that "Tea Rose" there means Hanover Oom-
pany's fiour and nothing else, the Allen 4
Wheeler Company is estopped to aaesri
trademark infringement as to that terri-
tory.
140 17. «•
1015.
HANOVER STAR MILLING 00. t. MBTOACF.
420-422
[4S0] The extent and character of that
territory, and its remoteness from that in
which the Allen & Wheeler mark is known,
are eircumstances to be considered. Ala-
bama alone — to say nothing of the other
states in question — has an area of over 50,-
000 square miles, and by the census of 1910
contained a population of more than 2,000,-
000. Its most northerly point is more than
250 miles south of Cincinnati, which is the
nearest piiiit at which sales of Allen k
Wheeler *Tea Rose" are shown to have been
made, and these at a time antedating by ap-
proximately forty years the commencement
of the present controversy. We are not deal-
ing with a case where the junior appropria-
tion of a trademark is occupying territory
that would probably be reached by the
prior user in the natural expansion of his
trade, and need pass no judgment upon such
a case. Under the circumstances that are
here presented, to permit the Allen &
Wheeler Company to use the mark in Ala-
bama, to the exclusion of the Hanover Com-
pany, would take the trade and good will
of the latter company — built up at much
expense and without notice of the former's
rights — and confer it upon the former, to
the complete perversion of the proper theory
of trademark rights.
The case is peculiar in its facts; and we
have found none precisely like it. The re-
cent case of Theodore Rectanus Co. v. Unit-
ed Drug Co. (C. C. A. 6th C.) 226 Fed. 545,
549, 553, is closely analogous.
We come now to No. 23. The court of
appeals (122 C. C. A. 483, 204 Fed. 211)
denied relief to the Hanover Company
against Metcalf under the head of trade-
mark infringement partly upon the ground
that Allen & Wheeler were the first appro-
priators of the mark, and that it had been
continuously used by that firm and its suc-
cessor down to the time of the suit, but
principally upon the ground that, irrespec-
tive of whether this use was so general or
continuous as to exclude other appropria-
tions, the evidence [421] showed a use of
the same brand by the Steeleville Company
commencing in the year 1805, and carried on
in the states of Illinois, Tennessee, Ipdiana,
Arkansas, and Mississippi, with occasional
shipments into Alabama, — a use so exten-
sive and continuous as to exclude the claim
of the Hanover Company to either first ap-
propriation or exclusive use in any of the
territory from which it sought to expel
Metcalf; and that ''the Steeleville Milling
Company's first use and its extensive and
continuous use established by the evidence
in the territory of its selection gave it the
unqualified right to extend unhampered its
trade in flour imder the Tea Rose brand in-
to any part of the United States, and that.
too, without incurring the legal odium of
unfair competition." Relief under the head
of unfair competition was denied upon the
ground that the Hanover Company had not
clearly shown that it had established by
prior adoption the exclusive right to dreaa
its goods in the manner claimed.
Upon the question of trademark rights as
between the Hanover and the Steeleville
companies (leaving Allen & Wheeler out of
the question), the proofs are somewhat con-
flicting. There is evidence that Hanover's
use of the Tea Rose brand antedated the
year 1803, and probably began as early as
1886. The extent and particulars of such
use, prior to the year 1003, are not made to
appear. On the other hand, Steeleville ap-
pears to have adopted the brand in the year
1805, and used it in trade in Illinois, Ten-
nessee, Mississippi, Louisiana, and Arkan-
sas; the extent and particulari of the use
not being shown. Sharp competition ap-
pears to have been carried on between the
two companies in selling flour under the
Tea Rose brand at Meridian, Mississippi,
in the years 1903 to 1905, with the result
that the Hanover Company, claiming that
its use of the mark for flour had antedated
that of the Steeleville Company, succeeded
in obtaining a favorable decision in an in-
formal arbitration by officials of the Millers
[422] National Federation; and for this or
some other reason Steeleville appears to
have retired and left the Hanover Company
in complete control of the Meridian market.
Aside from the business done by the Steele-
ville Company at Meridian, there is no
proof of business done by it in the south-
eastern states, except that it made an iso-
lated sale of Tea Rose flour to a merchant
at Whistler, Alabama, in the year 1809, the
quantity not stated, and two isolated sales,
involving a small quantity in each case, one
to a retailer in Tupelo, Mississippi, in the
year 1910, the other to a retailer in Weat
Point, Mississippi, in January, 1912.
As we regard the proofs, they do not sus-
tain the view of the circuit court of appeals
for the fifth circuit either as to first use
or as to extensive, continuous, or exclusive
use of the Tea Rose brand by the Steele-
ville Company, and there is nothing in the
history of the use of the brand in the dis-
puted territory to deprive the Hanover Com-
pany of its right to be protected at least
against unfair competition at the hands of
the Steeleville Company or of Metcalf aa its
representative.
That there was such unfair competition,
commenced by Metcalf • shortly before the
bringing of the suit, the proofs clearly show.
Repeating that since the year 1904 the Han-
over Company had extensively advertised its
Tea Rose flour throughout the ata^A ^ KSar
•0 li. ed.
46
422-426
8UPREMB CX)URT OF THB UNITED 8TATSS.
Oct. Tibm,
bama and parts of MUsissippi, Georgia, and
Florida, with the result that its sales of
that flour in those markets amounted to
more than $150,000 a year, while the Han-
oyer Star Milling Company had come to be
known as the Tea Rose mill, and the words
"Tea Rose" in the flour trade in that terri-
tory meant flour of the Hanover Company's
manufacture and nothing else, and that, ex-
cept for isolated sales in Mississippi in 1910
and 1912, already mentioned, no Tea Rose
flour other than that of the Hanover Com-
pany had been sold in that territory for a
number of [423] years, it further should be
stated that Hanover Tea Rose was distrib-
uted in Butler County and adjoining coun-
ties, in Alabama by the McMullan Grocery
Company, whose place of business was at
Greenville. They had built up a large trade
for this flour in Butler county and the
neighboring counties of Conecuh, Covington,
Lowndes, and Crenshaw. The McMullan
Company had the exclusive sale of the Han-
over Company's Tea Rose flour, so that
Metcalf, who likewise did business at Green-
ville, was unable to procure it for distri-
bution to his customers. A short time be-
fore the suit was commenced, however, he
announced to the public and the trade in
Butler county that he had secured Tea Rose
flour, and on receiving a consignment from
the Steeleville Company, which was labeled
"Tea Rose" and put up in packages closely
resembling those used by the Hanover Com-
pany,— so closely that, according to the
undisputed evidence, they are "calculated to
and do in fact deceive the ordinary and
.casual purchaser of flour into the belief that
he is purchasing the article of that name
manufactured by the said Hanover Star
Milling Company," — Metcalf put large ban-
ners on his mules and dray, advertising to
the public that he had received a shipment
of Tea Rose flour, and that it was "Steele-
ville Milling Company's Tea Rose flour, best
quality." Metcalf and his traveling sales-
man who marketed the greater part of this
consignment, and several parties who pur-
chased it in lots of from one to ten bar-
rels, deposed that it was not sold under
a representation that it was manufactured
by the Hanover Company, but, on the con-
trary, thut it was Tea Rose flour manufac-
tured by the Steeleville Milling Company.
But Metcalf's purpose to take advantage
of the reputation of the Hanover Company's
Tea Rose flour is so manifest, and the tend-
ency of the similarity of the brand and ac-
companying design, and of the make-up of
the packages, to mislead ultimate consumers,
is so evident, that it seems to [4S4] us a
case of unfair competition is made out. The
circumstances strongly indicate a fraudu-
lent intent to palm <^ the Steeleville Tea
722
Rose flour upon customers as being the same
as the Tea Rose flour made by oomplainantr
the reputation of which is shown to be so
well established. The mere substitution of
"Steeleville" in the place of "Hanover" on
the labels is not convincing either that the
intent is innocent or that the result will
be innocuous, since it is accompanied with
the words "Tea Rose" (shown to have ac-
quired a secondary meaning), and with the
distinctive wrapping, both indicative in that
market of complainant's flour. Complain-
ant is thus shown to be entitled to an in-
junction against Metcalf, irrespective of its
claim to affirmative trademark rights in
that territory. Coats v. Merrick Thread
Co. 149 U. S. 562, 666, 37 L. ed, 847, 850,
13 Sup. Ct. Rep.- 966; Elgin Nat. Watch
Co. V. lUinois Watch Case Co. 179 U. S.
665, 674, 45 L. ed. 365, 379, 21 Sup. Ct.
Rep. 270. Adjudication of the latter claim
may be made, if necessary, upon final hear-
ing, when the proofs will presumably be
more complete than they now are.
It results that the decree under review
in No. 23 should be reversed, and the cause
remanded for further proceedings in con-
formity with this opinion, and that the
decree in No. 30 should be affirmed.
Decree in No. 23 reversed.
Appeal in No. 30 dismissed.
Decree in No. 30 affirmed.
Mr. Justice Holmes, concurring:
I am disposed to agree that the decree
dismissing the bill of the Hanover SUr Mill-
ing Company should be reversed and that
the decree denying a preliminary injunction
to the Allen & Wheeler Company should be
affirmed, and I agree in the main with the
reasoning of the court, so far as it goes.
But I think it necessary to go farther even
on the assumption that we are dealing with
[425] the question of trademarks in the
several states only so far as commerce
among the states is not concerned. The ques-
tion before us, on that assumption, is a
question of state law, since the rights that
we are considering are conferred by the sov-
ereignty of the state in which they are ac-
quired. This seems to be too obvious to need
the citation of authority, but it is a neces-
sary corollary of the Trade-Mark Cases, 100
U. S. 82, 25 L. ed. 550. Those cases decided
that Congress cannot deal with trademarks
as used in commerce wholly between citizens
of the same state. It follows that the sUtee
can deal with them, as in fact they some-
times do by statute (Mass. Rev. Laws, chap.
72, §§ 2, 3), and when not by statute 1^
their common law.
Ai the common law of the several states
has the same origin for the most part, and
as their law concerning trademarks and un-
S40 U. 8.
1915.
EATON V. BOSTON SAFE DEPOSIT A T. CX).
425-427
lair eompetition Is the same in its general
features, it is natural and very generally
correct to say that trademar]c8 acknowledge
no territorial limits. Buyit never should
be forgotten, and in this caRTlt is important
to remember, that when a trademark started
In one state is recognized in another it is
by the authority of a new sovereignty that
gives its sanction to the right. The new
sovereignty Is not a passive figurehead. It
creates the right within its jurisdiction, and
what it creates it may condition, as by re-
quiring the mark to be recorded, or it may
deny. The question, then, is what is the
common law of Alabama in cases like these.
It appears to me that if a mark previously
unknown in that state has been used and
given a reputation there, the state well ihay
say that tiiose who have spent their money
innocently in giving it its local value are
not to be defeated by proof that others have
used the mark earlier in another jurisdic-
tion more or less remote Until I am com-
pelled to adopt a diffeient view I shall as-
sume that that is the common law of the
state. It appears to me that the founda-
tion of the right as stated by the court re-
quires that conclusion. See, [426] further,
Chadwick v. Oovell, 151 Mass. 100, 103, 104,
d L.ILA. 830, 21 Am. St. Rep. 442, 23 N. E.
1068. Those who have used the mark with-
in the state are those who will be defraud-
ed if another can come in and reap the
reward of their efforts on the strength of a
use elsewhere over which Alabama has no
control.
I think state lines, speaking always of
matters outside the authority of Congress,
are important in another way. I do not be-
lieTe that a trademark established in Chi-
cago could be used by a competitor in
some other part of Illinois on die ground
that it was not known there. I think that
If it is good in one part of the state, it is
good in all. But when it seeks to pass state
lines, it may find itself limited by what has
been done under the sanction of a power
co-ordinate with that of Illinois and para-
mount over the territory concerned. If
this view be adopted we get rid of all ques-
tions of penumbra, of shadowy marches
where it is difiicult to decide whether the
business extends to them. We have sharp
lines drawn upon the fundamental consid-
eration of the jurisdiction originating the
right. In most cases the change of juris-
diction will not be important because the
new law will take up and apply the same
principles at the old; but when, as here,
justice to its own people requirea a state to
set a limit, it may do so, and this court
cannot pronounce its action wrong.
•0 Id, ed.
[427] JOHN E. EATON, Trustee in Bank-
ruptcy of the Estate of Fannie Leighton
Luke, Plff. in Err.,
V.
BOSTON SAFE DEPOSIT k TRUST COM-
PANY, Trustee under the Will of John
W. Leiffhton, Deceased, and Fannie Leigh-
ton Luke.
(See S. C. Reporter's ed. 427-420.)
Bankruptoj — assets — spendthrlfi
trust.
The equitable life interest of the bene-
ficiary in a trust created by a bequest of
a fund to a trustee to pay the entire net
income thereof to the beneficiary for life
"free from the interference or control of her
creditors" did not pass to her trustee in
bankruptcy, under the bankrupt act of July
1, 1808 (30 Stat, at L. 566, chap. 541,
Comp. Stat. 1013, § 0654), § 70a (5), vest-
ing in the trustee all propertv that the
bankrupt "could by anv means have trans-
ferred,'' where the local law treats such re-
strictions against interference or control by
creditors as limiting the character of the
equitable property, and inherent in it.
[For other cases, see Bankruptcy, VI. a* In
Digest Sup. Ct. 1008.]
[No. 466.]
Submitted February 28, 1016. Decided
March 13, 1016.
IN ERROR to the Supreme Judicial Court
of the State of Massachusetts to review
a judgment which, on a petition by a testa-
mentary trustee for instructions, adjudged
that the equitable life interest of the cestui
que trust did not pass to her trustee in
bankruptcy. Affirmed.
See same case below, 220 Mass. 484,
LJLA. — , — , 108 N. E. 64.
The facts are stated in the opinion.
Mr. Gilbert B. Kemp submitted the
cause for plaintiff in error.
The life estate of the bankrupt was of
such a character as to pass to the trustee
in bankruptcy.
CoUier, Bankr. 10th ed. 1014, pp. 1004,
1005; 1 Loveland, Bankr. p. 823; Clark t.
Williams, 100 Mass. 210, 76 N. E. 723;
Remington, Bankr. 2d ed. |S 066, 072; Re
Jersey Island Packing Co. 2 L.RJ^.(N.S.)
560, 71 C. C. A. 75, 138 Fed. 625.
The trustee in bankruptcy is not a cred-
itor.
Masten t. Amerman, 51 Hun, 244, 4 N. T.
Supp. 681; Collier, Bankr. 10th ed. pp. 1002,
1003; Cowan t. Burchfield, 180 Fed. 614;
Re Rodgers, 60 C. C. A. 567, 125 Fed. 168;
Re Burnett, 201 Fed. 162; Zartman t. First
Nat. Bank, 216 U. S. 134, 54 L. ed. 418, 30
*6up. Ot Rep. 368; Thompsmi ▼. Fairhanka.
SUPREME COUBT OF THE UNITED STATES. Oos. TmM,
IM U. S. SIS, 49 L. ed. 5TT, 25 Sup. Ct. latent. If nch m inUnt ii ifaowB, aueh a
Rep. 306. triut ii kt once cre&ted.
Courta have not the power to legiiUte, Broadwajr Nat. Bank r. Adama, 13S Maai.
and can no more add an exemption not 170, 43 Am. Rep. 504; Niekaraon v. Van
itirlj within the itatute than they can take Hora, 181 Sloaa 562, M N. E. 204; Baker
from the aUtutc. r. Brown, 146 Mau. 371, IS N. E. 703;
Re Gerber, lOB C. C. A. 511, 1B6 Fed. 6B3; Sanger v. Bourke, 209 Mau. 461, 4S6, 96
Remington, Bankr. 2d ed. 1077. N. E. 864.
So tar SB the elTect of the decision of the No particular term* or tecbnioal Ian-
Uaaaachuaetta court in the case at bar Is ^age is neeeaaaij.
eoneidered as eatablishing a rule of prop- Baker v. Brown, 140 Maas. STl, IS N. B.
trty, it should be borne in mind that thia 783; Berry t. Dunham, 202 Mass. 1S9, 88
decision was given contrary to the txpreas N. E. B04.
terms of, and during the operation of, the The estate in quettion in this ckm ia a
prasent bankrupt law; and under luch cir- spendthrift trust. As such. It has all the
ownstances a new rule of property cannot incidents of this limited Mtate; for cxain|tle:
bm created. (1) It cunnot be appropriated bf cred-
B* Oerber, supra. itors.
Tha state court has not construed the Broadway Nat. Bank r. Adams, 183 Hasi.
proriilofls of auy exemption law of the 170, 43 Am. Sep. 504.
state. It has merely asserted what It re- (2) It cannot be reached by an assignee
gards as a declaration or principle of law. in insolvency.
TUl court is not bound, however, by rules Billings t. Uarsh, 153 Mass. Sll, ID
«f procedure, to foUaw the state court's de- L.R.A. 704, 25 Am. St. Rep. 0311, 2S N. £.
aisi<m. 1000.
Remingtoo, Bankr. 2d ed. | 1043; Page (3) It does not pass to a trustae In baak-
▼. Edmunds, 187 U. S. 506, 47 L. ed. 31S, ruptcy.
SS Sup. Ct. Rep. 200; Re Gerber, supra. Spindle v. Shreve, 9 Bias. 199, 4 Fad. 13S;
The rights of a bankrupt to property as Re McKay, 143 Fed. 671; Munroe v. tlewey,
exempt are those given him by the state 176 Mass. 184, 79 Am. St. Rep. S04, 67
statutes. N. E. 340.
Smalley t. Laugenour, 196 U. S. 93, 97, That an equitable esUte can be created
49 L. ed. 400, 401, 25 Sup. Ct. Bcp. 216; that will be free from the interference or
Blcbardson v. Woodward, 44 C. C. A. 235, control of creditors is set forth in the fol-
IM Fed. 873. lowing cases:
If, ii..„«.j tw n „-.,_ ...i, ■.. J Nichols V. Eaton, 91 U. 8. 716, 23 L. ed.
Mr. Raymond H. Oveson subm.tUd 254; Hyde v. Wood^, »4 U. S. 623, 24 L. ed.
» cause for defendants m error. Messrs. g^^; p^^^^^ , ^^^ j^^ „ ^- ^^^ „„
JT.T- T"*^" "^ ^'""'** °"' ""' 35 L. ed. 721, 733, 11 Sup. Ct Rep. 1005;
T* r .!ij 1 ■ vt L ^. ... . Shclton v. King, 229 U. S. 90, 57 L. ed.
It is settled law ,n Massachuset a that . 33 ^ ^^
do«or may, ,n crea .ng an equ.tah e estate. j^ .^ ^^^/^ ^^^^ ^^^^ ^, ^^^ bankruptcy
eaire out and create such equitable nehts , .1 ., . Ti ._ . • .t 1. ,
, . ... ... ,1. act provides that the trustee of the bank-
In property as his fancy may dictate, with- . t u 1, . j -.i .i. .1.1 i .1.
/ '^ i , .. . 1. ■' . . t . rupt shall be vested with the title of the
out reEBrd to the riehts apiiertaininK to , , . . , -, , .
.. , . , I , '.>. , " ,, bankrupt, except in ao far as it is to prop-
the several estates known to the law. He , ■ \. , ■ 1-. >.
_ i-fl J ■ . . J .. . ■ erty over which his creditors haTe no con-
ma* give a quatined inturest, and the cestui . , .■-. . . . ■ ■ _. , ..^
' ? . ^ . ■ i . .1. .. trol. What part of hie property ia with-
que trust acquires no interest other than , , .f 1. j j-^ ■ ^
?, . . ., ,.^ .. . , J . ,. , drawn from the reach of creditors i* a qnes-
tbe strictly limited one created by the terms .. .... , ., . ^ i. ■ - _-ji
fj t}, , t - " J <■ (,g„ ^f (]i^. [^„ Qf |.|,g gtite having jansdie-
D«^n '"li.b„„, 188 M.«. 142, S) N. E. " H'-:!;K'.V'„r™ NMow"!*^ E WJL
JK, H.I. ». Boil.,, 216 Uu.. I5i, 102 ..f.'.'f i 1' ? f J , ■.^™ S
N K A1K ' oSo; apindle v. obrere, 111
'. ■ *"■ „ , .. ... , , U. 8. 542, 28 L. ed. 512, 4 Sup. Ct. Rep. SO.
A. a result of the recognition of suel. a ^^ j.^^^^j ^^^ introduce!, no new class
fr« . t ■»«'">'. the doctrine of spend- ^, „^i,„„, „„, ^„, it i„ ^ creditors
thrift trust* has developed in Masaachu- . ■ u. _■ i .i. .., .._ j
.. , , , . "^ .. . . any greater rights against the property of
•ttta mnd in almost every other state. ^^^^ j^^tor than they have under the lUto
Under this doctrine it is compeUnt for a law, except in cases of preferences and fraud.
a create a trust estate for the life
«< the cestui que trust, with a proviso that Hanover Nat. Bank t. Moysea, ISA U. 8.
the said interest of the cestui que trust igi, 46 L. ed. 1113, 22 Sup. Ct Rsp. 867;
Aftll be beyond the control of creditors. Re Cohn, 171 Fed. 568; Holden t. Strattoo,
The question of whether a spendthrift trust lOS U. S. 202, 49 L. ed. 1018, fiS Sup! Ct
ir created depends solely upon the testator's Rep. 666 ; Norcross v. Nathan, 99 Fed. 414.
r»4 140 U. B.
1916.
EATON V. BOSTON SAFE DEPOSIT k T, CO.
427-429
Courts of other states which have de-
^oped the doctrine of spendthrift trusts
along the same lines as Massachusetts has,
hold that such an estate is not assignahle,
even though that is not expressly stipu-
lated, as that would prevent the object of
the testator from being carried out.
Bennett v. Bennett, 217 111. 434, 4 LJI.A.
(N.S.) 470, 76 N. £. 339; Re Mehaffej, 139
Pa. 276, 20 Atl. 1056.
To give the beneficiary power to assign
her interest would necessitate the implica-
tion of the power on her part to defeat the
purpose clearly expressed in the will.
Perkins v. Hays, 3 Gray, 410.
Even had the testator provided that the
interest of the cestui que trust was to be
assignable by her voluntary act, as well as
being beyond the control of creditors, then
if these are inconsistent, and if it must be
nonassignable in order to be beyond the
reach of creditors, the court would have to
pick out one of these objects and sacrifice
the other.
Malcolm v. Malcolm, 3 Gush. 472.
Mr. Justice Holmes delivered the opinion
of the court:
This is a bill for instructions, brought by
the Trust Company, the principal defend-
ant in error, to ascertain whether a fund be-
queathed to it in trust for Mrs. Luke, [428]
eo-defendant in error, passed to her trustee
in bankruptcy. The bequest was of $75,000,
"The whole of the net income thereof to be
paid my adopted daughter, Fannie Leighton
Luke, wife of Otis H. Luke, of said Brook-
line, during her life quarterly in each and
every year together with such portion of the
principal of said trust fund as shall make
the amount to be paid her at least three
thousand dollars a year during her life, said
income to be free from the interference or
control of her creditors." It is established
law in Massachusetts that such trusts are
Talid and effective againsf creditors (Broad-
way Nat. Bank v. Adams, 133 Mass. 170,
43 Am. Rep. 504), and, subject to what we
are about to say, against assignees in in-
solvency or trustees in bankruptcy (Billings
-r. Marsh, 153 Mass. 311, 10 L.R.A. 764, 25
Am. St. Rep. 635, 26 N. £. 1000; Munroe
T. Dewey, 176 Mass. 184, 79 Am. St. Rep.
304, 57 N. E. 340). The trustee in bank-
ruptcy seeks to avoid the effect of these de-
cisions on the ground that Mrs. Luke's
equitable life interest was held by the su-
preme court of the state to be assignable,
and that therefore it passed under § 70 a
(6) of the bankruptcy act, vesting in the
trustee all property that the bankrupt
''eould by any means have transferred." [30
Stat, at L. 566, chap. 541, Comp. Stat. 1913,
I 9654.] The supreme judicial court, how-
•0 Ii. ed.
ever, held that the above-cited cases gov-
erned, and that the property did not pass.
220 Mass. 484, L.R.A. — , —, 108 N. E. 64.
If it be true without qualification that the
bankrupt could have assijirned her interest
and by so doin£ could have freed from the
trust both the fund and any proceeds re-
ceived by her, the argument would be very
strong that the statute intended the fund
to pass. There would be an analogy at least
with the provision giving the trustee all
powers that the bankrupt might have exer-
cised for her own benefit, § 70 a (3), and
there would be difficulty in admitting that a
person could have property over which he
could exercise all the powers of ownership
except to make it liable for his debts. The
conclusion that the [420] fund was assign-
able was based on two cases, and we presume
was meant to go on farther than their au-
thority required. The first of these simply
held that an executor was not liable on his
bond for paying over an annuity to an as-
signee as it fell due, when the assignor to
whom it was bequeathed free from creditors
had not attempted to avoid his act. Ames t.
C^larke, 106 Mass. 573. The other case does
not go beyond a dictum that carries the
principle no farther. Huntress v. Allen, 105
Mass. 226, 122 Am. St. Rep. 243, 80 N. E.
949. It is true that where the restriction
has been enforced there generally has been a
clause against anticipation, but the present
decision in following them holds the re-
stricting clause paramount, and therefore we
feel warranted in assuming that the power
of alienation will not be pressed to a point
inconsistent with the dominant intent of the
will. Whether, if that power were absolute,
the restriction still should be upheld, as in
case of a statutory exemption that leaves
the bankrupt free to convey his rights^ ii
is unnecessary to decide.
The law of Massachusetts treats such re-
strictions as limiting the character of the
equitable property and inherent in it. Dunn
V. Dobson, 198 Mass. 142, 140, 84 N. E. 327;
Lathrop v. Merrill, 207 Mass. 6, 9. 92 N. E.
1019. Whatever may have been the criti-
cisms upon the policy and soundness of the
doctrine, and whatever may be the power
of this court to weigh the reasoning npoo
which it has been. established by the Massa-
chusetts cases (Pagie v. Edmunds, 187 U. 8.
596, 602, 47 L. ed. 318, 321, 23 Sup. Ct. Rep«
200), it has been established too long and kk
too nearly sanctioned by the decisions «if
this court to be overthrown here (Nichols v..
Eaton, 91 U. S. 716, 23 L. ed. 254; SheltoDi
V. King, 229 U. S. 90, 99, 57 L. ed. 1086,.
1089, 33 Sup. Ct. Rep. 686). The policy oT
the bankruptcy act is to respect state ck*
emptions, and until the Massachusetts de-
cisions shall have gone farther than '\SMrs
4SI>-<91 SUPREME COURT OF THE UNITED STATES. Oct. Tdh,
fflt hftY* we in not prepared to nj that C. C. A. 254, 200 F«d. 328; on aeeond appeal,
the prewDt bequest is not protMtwl by the 120 C. C. A. 604, Z13 Fed. 1021.
The facta are itated in the opinimi.
Mt. Morleon R. Walt« argned Qie cmaa.
and, with Ur. John Randolph Behiudul,
■ filed a brief tor appellant:
In Ohio a deed it good, although unn-
[taOl WALTER J. OAHEY, Appt, "'*>'■ *«■;"' •".««!* >»» "' P"-
y_ ■ rr chatere without notice.
E. REEDER DONOHUE, Truatee in Bank- _^"/" '„ ^'"'"'l„"^5"''''i,"?' ^^^^ I'
niptcT of John E. Humphreya and Har- Ef"nklin Bank, 69 Ohio St. 80, SI N. E.
riet A. Humphreye. 876; Kemper t. Campbell. 44 Ohio St. 210,
9 N. E. eeS; Blackburn v. Blackburn, 8
(See 8. C. Beporta's ed. 430-438.) Ohio, 81.
Congreaa, in enacting Jg 60a and 00b of
Bankrnptor — prelerenttel transfers — the bankruptcy act niUBt have had in mind
oompnUnc four montha' period — the atatuB given to a trustee in bankruptcy
when la rocordlnK "pequlred." by g 47a, el. 2, and meant that thoae inatrn-
TTie recording of a oooveyance by an ^' j^ ^ ,^^ i^^ ^^ ^ recorded
Iniolvent ii not "required" by law, within ,, j^,. ,j .^ _, ^
the meaning of the provision, of the bank- "' ^fS'-t^^d which would otherwiae be nn-
runt act of July 1, IBflS (30 8Ut. at L. ""wlmg againit the trustee in bankruptcy
S62, chap. S41), § OOa, aa amended by the having that aUtuB.
act of February 5, 1903 (32 BUt. at L. Re Hunt, 139 Fed. 283; Little t. HoUey-
799, chap. 487), and § SOb, aa amended by Brooka Hardware Co. 67 C. C. A. 46, 13S
the act of June 25, 1910 (36 8Ut. at L. Pe^, 674: Heyer Bros. Drug Co. v. Pipkin
842 chap. 412, Comn, 8Ut 1913 S 9844), p^ Co. OB C. C. A. 240, 138 Fed. SM; Re
r:^t^AST^fr.^t.is\\L,i^tot H*"> ,\« C' ?; t r« ^f, it- ^'
month! before the bankruptcy procewlinga ^ ^oyd, 130 C. O. A. 28B, 213 Fed. 774;
are begun, if by law recording or regiaUr- Rydborg v. Smith, 110 C. C. A. 68, IBB Fed.
ing la required, where, under the apptica- 1^6; Re Klein, 116 C. C. A. 603, 197 Fed.
ble local Uw (Ohio Gen. Code, S B643), the 241; Re Moaher, 224 Fed. 739.
failure to record a deed doea not render it „ _ „ _ , ,
invalid aa to the grantor'a creditors, but ^- =■ »■ Oonoh"* "-gued the eauMt.
only aa to aubiequent bona fide purchaaera ^°^> "'*^ Meaara. David Davia and W. O.
without notice. Durrell, filed a brief for appellees;
tPor other earas, aea Bankraptcj, 214-222. Id Failure by Carey from August 8, 1810, to
IM,.« 8np. a. 1M8.J Noyember 15, 1910. to record the deed, ^aa,
[Ko. 179.] of itself, so far aa the creditors of the
bankrupt are concerned, fraudulent.
Clayton T. Exchange Bank, 67 C. C. A.
656, 121 Fed. 830, 191 U. 8. 667, 48 L. ed.
305, 24 Sup. Ct. Rep. 840.
APPEAL from the United Statei Circuit The question at bar is one that haa been
Court of Appeals for the Sixth Circuit before the courta in numerous eases in Uia
to review a decree which, on a second appeal, several diatricta of the United States, and
affinned a decree of the District Court for the following caaes are to the point and
the Southeru District of Ohio, setting aside sustain the contention of the trustee:
in favor of a trustee in bankruptcy a con- Re Beckhaus. 100 C. 0. A. 661. 177 Fed.
veyance made by the bankrupt. Reversed 141 ; Loeser t. Savings Deposit Bank & T.
and remanded for further proceedings. Co. 18 I^R.A.(N.S.) 1233, 78 C. C. A. 697,
See same case below on flrst appeal, 126 148 Fed. 975; Engliah v. Rosa, 140 Fed.
— ^;- — ; ; ~ — ■ 830; Ragan t. Donovan, 189 Fed. 138; Mat-
NOT«.--When the local, law is deemed to tky v. Giesler, 110 C. C. A. 90, 187 Fed.
require the regisUring or recording of a gjX. ouUnv v Morse 39 Ann D C fi23-
tranafer, within the meaning of S 60a of the V \ 1^. I , ^ » .'V o'. , Jl .'
bankruptcy act ^'^*' N*'' ^^^^ ^- Connett. 6 L.ILA.(N.S.)
He aeelsion in Camt t. DoiroHui settles 1«, 73 C. C. A. 219, 142 Fed. 33; Carey w.
thia hitherto mooted question by rejecting Donohue, 126 C. C. A. 264, 209 Fed. 328.
the view taken by th6 circuit courts of ap-
peals for the aUth, seventh and eighth cir- Mr. Justice Hnghes delivered the opln-
enits in favor of that reached in the second, '^^^ g[ ^,g court:
flfth and ninth circuita. A full discussion I tu- ■» ' k».._t.* v- *_. .._ i.
«f the opposing cases may be found in the L T,*"' '■"' "" ''«"'.^* \ " *^*^ ^
notM to First Nat. Bank t. Connett, 6 bankruptcy to set aaide a tranafer madn
LJLA.(N.S.) 148, and Loeaerv. Savings De-bj O"* bankrupt of cerUin real eaUte.
paalt Bank & T. Co. 18 LJUA.(N.S.) 1233. Upon appeal from a decree in favor ol th«
rsa «40 V. B.
1016.
CAREY T. DOKOHUE.
481--4SS
trustee, it was held by the circuit court of
J4»peaU that the case had been tried, and
the decree was baaed, upon the theory of
preference voidable under the bankruptcy
act, and for the purpose of ^>propriate
4unendment to conform the bill to the proof,
the decree was reversed and the cause was
remanded. 126 C. C. A. 254, 209 Fed. 328.
The amendment was made accordingly, and
the decree was re-entered and affirmed. 129
C. C. A. 604, 213 Fed. 1021.
The petition in involuntary bankruptcy
was filed on January 3, 1011, and the
adjudication was had on January 24, 1911.
The following facts appear from the find-
ings: On August 6, 1910, John £. Hum-
phreys (the bankrupt) executed and deliv-
ered to Walter J. Carey (the appellant)
the deed in question. It was left for record
on November 15, 1910, with the recording
officer of the proper county, and was re-
'Corded. Humphreys was insolvent at the
time of the execution of the deed, and Carey
4it that time had reasonable cause to believe
that such transfer to him, if made, would
•effect a preference, being given in payment
of an antecedent debt. On December 81,
1910, Carey conveyed the property to inno-
cent purchasers, this deed being left for
record on January 8, 1911. It was held
that the latter conveyance placed the prop-
erty itself beyond the reach of the court;
and judgment was given in favor of the
trustee and against Carey for the [432]
value of the property as found by a jury,
with provision for the payment by the trus-
tee to the wife of the bankrupt of the esti-
mated value of her inchoate right of dower.
We are not concerned with the provisions
•of the Ohio statute relating to preferences
(General Code, gg 11,104, 11,105),— a stat-
ute which provides a different test of lia-
bility from that of g 60 i of the Federal
4tct pursuant to which the recovery was
had. (126 C. C. A. 254, 209 Fed. pp. 331,
332.) The sole question presented for the
consideration of this court is whether the
deed executed by the bankrupt was one
which was ''required" to be recorded within
the meaning of this section. If it was not,
there could be no recovery of the property
under g 60, as the deed was [483] executed
and delivered more than four months before
the petition in bankruptcy was filed. If
the deed was required to be recorded in the
sense of the statute, it is clear that the
trustee was entitled to recover, as the re-
cording was within the four months' period
and the other conditions of recovery were
satisfied.
The provision for the recording of the
deed is foimd in g 8543 of the General Code
of Ohio, which follows the requirement for
the recording of mortgages and powers of
attorney. The section reads:
"Section 8543. All other deeds and in-
struments of writing for the conveyance or
encumbrance of lands, tenements, or here-
ditaments executed agreeably to the provi-
sions of this chapter, shall be recorded ia
the office of the recorder of the county in
which the premises are situated, and until
so recorded or filed for record, they shall
be deemed fraudulent, so far as relates to
a subsequent bona fide purchaser having,
at the time of purchase, no knowledge of
the existence of such former deed or instru-
ment."
Referring to this section, the supreme
court of Ohio said in Dow v. Union Nat.
Bank, 87 Ohio St. 173, 181, 100 N. E. 328:
''This provision of the statute must be ac-
cepted as exclusively defining the conse-
quences which follow a faUure to file a
deed for record, and there being mere neg-
lect, unaccompanied by any fraudulent con-
duct or representation on the part of the
grantee, no right can accrue to anyone
I The applicable provisions of g 60 are as
follows:
"Sec. 60. Preferred Creditors — a. A per-
son shall be deemed to have given a prefer-
•ence if; being insolvent, he has, within four
months before the filing of the petition, or
after the filing of the petition and before
the adjudication, procured or suffered a
judgment to be entered against himself in
favor of any person, or made a transfer of
any of his propertv, and the effect of the
enforcement of such judgment or transfer
will be to enable any one of his creditors
to obtain a ereater percentage of his debt
than any oUier of such creditors of the
same class. Where the preference consists
in a transfer, such period of four months
shall not expire until four months after the
date of the recording or registering of the
transfer, if by law such recording or regis-
tering is required. [32 Stat, at L. 799, 800,
<hap. 487, I 18, Comp. SUt. 1913, | 9644.]
•40 li. ed.
"b. If a bankrupt shall have procured or
suffered a judgment to be entered against
him in favor of any person or have made a
transfer of any of his property, and if, at
the time of the transfer, or of the entry of
the judgment, or of the recording or reffis-
tering of the transfer if by law recording
or registering thereof is required, and being
within four months before the filing of the
petition in bankruptov or after the filing
thereof and before the adiudication, the
bankrupt be insolvent and the judgment or
transfer then operate as a preference, and
the person receiving it or to be benefited
thereby, or his agent acting therein, shall
then have reasonable cause to believe that
the enforcement of such judgment or trans-
fer would effect a preference, it shall be
voidable by the trustee and he may reoover
the property or its value from such person.**
[36 Stat, at L. 842, chap. 412, g 11, Comp.
Stat. 1918, I 9644.]
483-436
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbm,
other than such bona fide purchaser." Ac-
cordingly, it was held that the mere fail-
ure to record a deed did not render it
invalid as to creditors of the grantor al-
though they became such on the faith of
his representation that he was still the
owner of the property conveyed. This de-
cision applied the ruling in Wright v.
Franklin Bank, 50 Ohio St. 80, 92, 03, 61
N. E. 876, where it was said: "Lands held
by a properly executed but unrecorded deed
are also free from the debts of the grantor,
whether attempted [434] to be reached in
an assignment for the benefit of creditors
made by him, or upon an attachment, judg-
ment, or execution against him. The title
under such a deed is good as against every-
thing except a subsequent bona fide pur-
chaser without notice. . . . Mortgages
so executed, whether on an estate in real
property or on only an interest therein, take
effect from the time of the delivery to the
recorder, and deeds so executed, conveying
the estate or only an interest therein, that
is, an equity, take effect from delivery, ex-
cept as against subsequent bona fide pur-
chasers without notice, and as against such
the deed must be also recorded." In the
present case, the court of appeals was satis-
fied that in equity the instrument (which
was absolute in form) should be treated as
a mortgage, but the court did not think
this to be important because of the holding
of the Ohio court that an instrument in this
form, "unlike a legal mortgage, operates
upon delivery to transfer title and so is re-
quired to be recorded as a deed." 126 C.
C. A. 260, 261, 200 Fed. pp. 334, 335;
Kemper v. Campbell, 44 Ohio St. 210, 218,
6 N. E. 566; Wright v. Franklin Bank, 50
Ohio St. p. 05, 51 N. E. 876; Cole v. Mer-
chants Nat. Bank, 15 Ohio C. C. (N. S.)
315, 347.
Under these decisions, then, we assume
that there was no requirement that this con-
veyance should be recorded in order to give
it validity as against any creditor of the
bankrupt, whether a general creditor, or
a lien creditor, or a judgment creditor with
execution returned unsatisfied; that is, as
against any class of persons represented by
the trustee or with whose "rights, remedies,
and powers" he was to be deemed to be
vested. Bankruptcy act, § 47a. This fact,
the appellant contends, makes recovery im-
possible under g 60; while the appellees in-
sist that the provision in the interest of
subsequent bona fide purciiasers constitutes
a requirement of recording which entitles
a trustee to recover for the benefit of cred-
itors. With req>eet to the construction of
the [436] clause in question, there has been
diversity of opinion in the circuit courts of
appeals. In the sixth, seventh, and eighth
728
circuits, the view has been taken that ths
word "required" refers "io the character
of the instrument giving the preference"
without regard to the. persons in whose
favor the requirement is imposed; that is,
if the transfer is required to be recorded
as to anyone, the trustee may recover if it
has not been recorded more than four
months before the filing of the petition in
bankruptcy. See Loeser v. Savings Deposit
Bank & T. Co. (C. C. A. Sixth) 18 L.RJL
(N.S.) 1233, 78 a C. A. 507, 148 Fed. 075,
070 (followed by the decision in the pres-
ent case) ; Re Beckhaus (C. C. A. Seventh)
100 C. C. A. 561, 177 Fed. 141 (see Re
Sturtevant [C. C. A. Seventh] 110 C. C. A.
68, 188 Fed. 106) ; First Nat. Bank v. Con-
nett (CCA. Eighth) 5 L.RJl.(N.S.) 148,
73 C C A. 210, 142 Fed. 83, 36; MatUey
V. Giesler (C C A. Eighth) 110 C 0. A.
00, 187 Fed. 070, 071. A different conclu-
sion has been reached in the second, fifth,
and ninth circuits. See Re Boyd (C C A.
Second) 130 C C A. 288, 213 Fed. 774;
Meyer Bros. Drug Co. v. Pipkin Drug Co.
(C C A. Fifth) 60 C C A. 240, 136 Fed.
306; Re Mcintosh (C C A. Ninth) 80 C.
C A. 250, 150 Fed. 546; also Re Hunt (D.
C N. Y.) 130 Fed. 283.
In its original form, § 60 made no refer-
ence to record. 30 Stat, at L. 562, chap.
541, C)mp. SUt. 1013, g 0644. The four
months ran from the time of the giving of
the preference, and if this period had
elapsed when the bankruptcy proceeding
was instituted, there could be no recovery
under § 60, whether the transfer had, or
had not, been recorded. See Humpfirey t.
Tatman, 108 U. S. 01, 40 L. ed. 056, 25 Sup.
Ct. Rep. 567; Rogers v. Page, 72 C C A.
164, 140 Fed. 506, 500. But a different rule
was established for computing the time
within which a petition in bankruptcy
might be filed. In § 3b, it was provided
that the four months* period should not
expire "until four months after (1) the dat*
of the recording or registering of the trans-
fer .. . when the act consists in hav-
ing made a transfer ... for the pur-
pose of giving a preference . . . if bj
[436] law such recording or registering U
required or permitted, or, if it is not, from
the date when the beneficiary takes notori-
ous, exclusive, or continuous possession of
the property imless the petitioning creditors
have received actual notice of such trans-
fer." 30 Stat, at L. 546, 547, chap 541,
Comp. SUt. 1018, S 0587. This distinction
between the test of the right to institute
banluruptcy proceedings and the test of the
right to recover from one who had received
a transfer alleged to be a preference lay in
the terms of the act and could not rightly
be ignored. It was urged that the result
240 V. 8«.
1916.
CAREY v. DOKOHUE.
43e-438
was to encourage secret preferential trans-
actions; but the wisdom of the prescribed
condition of recovery from the preferred
creditor, and the advisability of conforming
the provision of § 60 to that of § 3b was a
matter for legislative, not judicial, consid-
eration. To secure this conformity, an
amendment to § 60 was proposed in Con-
gress in the year 1903. As passed by the
House of Representatives, it added to § 60a
the following clause: "Where the prefer-
ence consists in a transfer, such period of
four months shall not expire until four
montha after the date of the recording or
registering of the transfer, if by law such
recording or registering is required or per-
mitted, or if not, from the date when the
beneficiary takes notorious, exclusive, or
continuous' possession of the property trans-
ferred." Cong. Rec. 57th Cong. 1st Sess.
vol. 36, pt. 7, pp. 6938, 6943. The Senate
struck from this proposed amendment all
that follows the words, "if by law such re-
cording or registering is required," and as
thus limited the amendment was adopted by
Congress. Cong. Rec. 67th Cong. 2d Sess.
vol. 36, pt. 1, p. 1036; act of Feb. 5, 1903,
chap. 487, 32 SUt. at L. 797, 799, 800,
Comp. Stat. 1913, § 9644; Re Hunt, 139
Fed. p. 286. There is no basis for the as-
sumption that the words which the House
of Representatives had desired to add were
ultimately deemed to be surplusage, for
these words had an obviously distinct sig-
nificance and they had been included in § 3b,
which in this respect remained unchanged.
[437] We cannot but regard the action
of Congress as a deliberate refusal to con-
form the requirements of § 60 to those of
S 3b, and we are not at liberty to supply
by construction what Congress has clearly
shown its intention to omit. It should also
be observed that § 60 was again under con- j
sideration by Congress in the year 1910,
and it was again amended [36 Stat, at L.
842, chap. 412, § 11, Comp. Stat. 1913,
§ 9644] ; but the last sentence of § 60a, as
inserted in 1903, was left unaltered. And
the same conditional clause — ''if by law re-
cording or registering thereof is required" —
was used in the amended subdivision b
(ante, 727, note). Whatever argument is
made for an extension of the clause, in or-
der more completely to conform it to the
language of § 3b, we must disregard as ad-
dressed to a matter solely of legislative
policy.
As Congress did not undertake in § 60
to hit all preferential transfers (otherwise
▼alid) merely because they were not dis-
closed, either by record or possession, more
than four months before the bankruptcy
proceeding, the inquiry is simply as to the
nature of the requirement of recording to
•0 li. ed.
which Congress referred. The character of
the transfer itself, both with respect to
what should constitute a transfer and its
preferential effect, had been carefully de-
fined. It is plain that the words are not
limited to cases where recording is re-
quired for the purpose of giving validity to
the transaction as between the parties. For
that purpose, no amendment of the original
act was needed, as in such a case there could
be no giving of a preference without record-
ing. But in dealing with a transfer, as
defined, which, though valid as between the
parties, was one which was "required" to
be recorded, the reference was necessarily to
a requirement in the interest of others who
were in the contemplation of Congress in
enacting the provision. The natural, and,
we think, the intended, meaning, was to em-
brace those cases in which recording was
necessary in order to make the transfer
valid as against those concerned in the dis-
tribution of [438] the insolvent estate;
that is, as against creditors, including those
whose position the trustee was entitled to
take. This gives effect to the amendment
and interprets it in consonance with the
spirit and purpose of the bankruptcy act.
See Senate Report, No. 691, Sixty-first (Ik>ng.
2d Sess., p. 8. In the present case, there
was no requirement of recording in favor of
creditors, either general creditors or lien
creditors. The requirement of the applica-
ble law was solely in favor of subsequent
bona fide purchasers without notice. These
subsequent purchasers are entirely outside
of the purview of the bankruptcy act. The
proceeding in bankruptcy is not, in any
sense, in their interest, and the trustee does
not represent them. We can find no ground
for the conclusion that the clause "if by
law recording or registering thereof is re-
quired" had any reference to requirements
in the interest of persons of this descrip-
tion. The limitation of the provision to
those transfers which are "required" to be
recorded under the applicable law is not to
be taken to be an artificial one by which
the rights of creditors are made to depend
upon the presence or absence of local restric-
tions adopted, alio intuitu, in the interest
of others. Rather, as we have said, we
deem the reference to be to requirements of
registry or record which have been estab-
lished for the protection of creditors, — the
persona interested in the bankrupt estate,
and in whose behalf, or in whose place, the
trustee is entitled to act. And where, as
in this case, there is no such requirement,
and the transfer was made more than four
months before the filing of the petition in
bankruptcy, there can be no recovery under
S 60.
In this view, the decree must be reversed
438-441
SUPREME COURT OF THE UNITED STATES.
Got. Tkuf,
and the cause remanded for further proceed'
inga in conformity with this opinion.
It ia so ordered.
[439] PECOS & NORTHERN TEXAS
RAILWAY COMPANY, Plff. in Err.,
V.
MRS. M. A. ROSENBLOOM, for Herself and
in Behalf of Milton Rosenbloom et al.
(See 8. C. Reporter's ed. 439-441.)
Trial — sufficiency of evidence to s:o to
Jury — employment in interstate com-
merce — employers* liability.
Evidence that a railway ticket clerk,
when killed in the switching yard by a
moving car, was, in pursuance of his duty,
taking the numbers of the cars in a freight
train which were, with one exception, mov-
inff in interstate commerce, is sufficient to
take to the jury the question whether or
not he was then engaged in interstate com-
merce.
[For other cases, see Trial, VI. b, in Digest
Bop. 1908.]
[No. 613.]
Submitted February 24, 1916. Decided
March 13, 1916.
IN ERROR to the Supreme Court of the
State of Texas to review a judgment
which affirmed a judgment of the Court of
Civil Appeals of that state, affirming a
judgment of the District Court of Potter
County in favor of plaintifif in an action for
death. Reversed and remanded for further
proceedings.
See same case below in court of civil ap-
peals, — Tex. Civ. App. — , 141 S. W. 175 ;
in supreme court, — Tex. — , 173 S. W. 216,
on rehearing 177 S. W. 952.
Messrs. J. W. Terry, Gardiner liath-
ropv A. H. Culwell, Alexander Britton,
and Evans Browne submitted the cause
for plaintiff in error.
Mr. James D. Williamson submitted
the cause for defendants in error. Messrs.
J. A. Stanford and H. H. Cooper were on
the brief.
Memorandum opinion by Mr. Justice Mc-
Reynolds, by direction of the court:
In November, 1909, M. A. Rosenbloom was
instantly killed by a ballast car being
pushed by an engine along track No. 5 in the
NOTB. — On the constitutionality, applica-
tion, and effect of the Federal employers*
liability act — see notes to Lamphere v. Ore-
Sn R. ft Nav. Co. 47 L.R.A.(N.S.) 38, and
aboard Air Line R. Co. v. Horton, h^JL,
1916C, 47.
7M0
railway company's switch yard at [440]
Amarillo, Texas: Proceeding in behalf of
herself, as next friend for her two minor
children, and for the use and benefit of his
parents, the deceased's widow instituted this
suit for damages in the district court. Pot-
ter county, Texas. The jury returned a
verdict for $7,000 — apportioned $2,000 re-
spectively to the the widow and each child,
and $500 to each parent; judgment thereon
was sustained by the court of civil appeals
(141 S. W. 175) and by the state supreme
court, — Tex. — , 173 S. W. 215.
Among other things the amended petition
alleges: That Rosenbloom was employed by
the railway as ticket clerk snd required to
be in and at the switch yard in order to take
and preserve a record of numbers on outgo-
ing cars and to seal those which needed it.
That when the accident occurred a long
freight train was leaving the yard on its
regular run along switch track No. 4; as
required by his duties, Rosenbloom was
walking between tracks 4 and 5, and near
the train, observing and noting car num-
bers; while so engaged and exercising due
care a ballast car, negligently pushed along
track No. 5, struck him with great violence
and caused his death.
It conclusively appears from the evidence
that the freight train on track 4 consisted
of thirty odd cars moving, with one excep-
tion, in interstate commerce. The petition
declares that, in pursuance of his duty, de
ceased was taking the numbers of these
cars; there was some direct evidence to the
same effect; and certainly enough had been
shown to support a finding that when killed
he was engaged in interstate commerce. The
trial court refused the following instruc-
tion:
"If M. A. Rosenbloom, at the time of his
death, was engaged in examining seals and
making record of seals on cars being trans-
ported interstate over the line of defendant
and other Tines of connecting carriers, and
if such work was a necessary part and cus-
tomary work, reasonably [441] carried on
by defendant as a part of its business,
transporting freight interstate over its line,
or if he had then just completed such inspec-
tion of said train and had not yet completed
his record and placed it in the place where
usually kept, then you will return a verdict
for the defendant on its special plea that
plaintiff has no right to maintain this suit
in the capacity in which she sues."
Upon a clearly erroneous assumption that
there was nothing on which to base such re-
quest, the supreme court approved its re-
fusal. The record discloses no proper reason
for thus denying plaintiff in error a right
claimed under the Federal employers^ Ha-
' bility act. If when struck deceased was em-
940 U. 8.
ISIS.
UNITED STATES t. UNITED STATES STEEL CORP.
Ml-«4a
pti>7ed in inUnUte commeree, the right of mod the requiBite Dumber of copie* b«i]iB on
TuetntTj depended upon tliHt act; and it band, digesti and full indexei having been
only permits suit by a personal representa- prepared, and all references to the testl-
ti»e for the benefit of surviving widow or ""o"? "'''=*' **>* """'^ ''^1™ ™«iie In its
ImsUnd and children If there be such. ??'"'"" being to the testimony a< conUined
(Chap, 149. 35 Stat, at L. 85, Comp. Stat, [por otS^r e.,^°, Z^ippeal and Brror. V. L
1013, I 8667} chap. 143, 36 Stat, at L. 2S1, in Dlxeat Bap. Ct. IBOB.]
Comp. Stat. 1913, j S662). It is unnecessary Appeal — flUnc record — ext«iuion <rf
to take up other pointa preaented by coun- time.
•ell tlie purpowi and elTect of the Federal 2. The Federal Supreme Court wiU «-
legislation has been much discusaed in our *="f "[" *'T*u7i, u^^.""* ?*°*^ "." *?"
-JL._» «^' i_ . o^^..^ fv.1 T P6*' where it thinks that such extension ia
recent_opmions. _Pederi«. V. Del.ware, I. Sesirable in order that ample opportunitj
~ "'- a record which shall b«
A W. R. Co, 1
B U. S, 148, 57 L. ed. 1125, 33 ^"afforfeTt
Sup. Ct Bep. 649, Ann. Cas. ini4C, 153,
N. C. C. A. 77fl; St. Louis, S. F. & T. R. Co.
V. Seale, £29 U. S. 156, 67 L. ed. 1129, 33
Sup. Ct. Rep. 861, Ann. Cas. 1914C, 158;
North Carolina R. Co. v. Zachary, 232 U. S.
248, 68 L. ed. 691, 34 Sup. Ct. Bep. 305,
.\nn. Cas. 1914C, 159, 9 N. C. C. A. 109;
Illinoie C. R. Co. v. Behrens, 233 U. S. 473,
68 L. ed. 1051, 34 Sup, Ct. Rep. 648, Ann.
Cas. 1D14C, ]63; Seaboard Air Line R. Co.
V. Horton, 233 U. S. 492, 58 L. ed. 1062,
L.R.A.1915C, 1, 34 Sup. Ct. Rep. 835, Ann.
Gas. 1915B, 475, 8 N. C. C. A. 834; New
York C. t H. B. B. Co. t. Carr, 238 U. S.
2U0, 59 L. ed. 121)8, 35 Sup. Ct. Bep. T80,
9 N. C. C. A. 1 ; Pennsylvania Co v. Donat,
239 U. S. 50, ante, 139', 36 Sup. Ct. Rep. i;
Southern R. Co. v. Lloyd, 239 U. S. 496,
ante, 402, 38 Sup. Ct. Bep. 210; Shanks v
Delaware, L. A W. R. Co. 839 U. S. 566,
ante, 436, 38 Sup. Ct. Rep. 188.
The judgment below ie reversed and the
MUM remanded to th« Supreme Court of
Texas for further proceedings not inconsist-
ent with thia opinion. Beveraed.
made up conformably to the court's viewa.
[For other
In DlKCSt Bup. Ct.
»,"'
Decided March
UNITED STATES STEEL CORPORATION
(See 6. 0. Reporter's ed. 442-444.)
Appeal — record — testimony In nnrra-
live form.
1. The requirement of equity rule 76,
that the testimony be reduced to narrative
form, will not be enforced on an appeal to
the Federal Supreme Court, where the tes-
timon; embraces thirty voliimea, contain-
ing more than 12,000 pages, of which about
one half are devoted to tegtimony taken be-
fore the rule became operative, the testi-
mony, by agreement of the parties, having
been printed and bound as it was talcen.
Note.— On the practice and procedure
governing the transfer of causes to the Fed-
eral Supreme Court on writ of error or ap-
C«l — tee note to Wedding v. lleyler, 66
F.A. 833.
•0 L. «d.
order extending tha
d file the rao-
ord on an appeal from the Diatrict Court
of the United States for the District of
New JsTSey. Time extended lixty daya
from March 16, 1918.
Solicitor GeneraJ Ditvla for the appllc*-
Messrs. Richard V. Iilndabnry and
I DKTld A. Reed opposed.
Hr. Chief Justice White dellrered Um
opinion of the court:
The United States applied to the court
twlow to extend the time for filing the
record from March 19th, 1918, the existing
date, to Jul; Ist, to give it time to complete
the reduction of the testimony te a narra-
tive form, conformably to equity rule 76.1
[443] The defendant opposed the request
on the ground that there was doubt as te tlie
posaibility of adequately reducing the testi-
mony, and on the further ground that it de-
sired the testimony brought up in original
shape, and because, under all the circum-
atencea of the case, it should not be goT-
enied by equity rule 7G. ^le court de-
clined to pass upon the application, but sug*
gested that the parties submit to this oourt
the question whether equity rule 75 was,
under the circumBt«ncea, imperatively ap-
plicable, stating, however, that it had found
great advantage in disposing of the case
from "having the original testimony befora
it, and was of the opinion that a like ad-
vantage would be experienced by this court
it the original testimony was brought up.
Tlie application before us waa then madi^
[Equity rule 76 deals with the reduction
and preparation of the record on appeal.
See ^6 U. S. 671, 07 L. ed. 1650.— Ed.]
443,444
SUPREME COURT OF THE UNITED STATES.
Got. Ikm,
and is resisted on the grounds which were
urged against it below.
The facts are these: The testimony was
taken before an examiner and embraces 30
volumes, containing 12,151 pages. Of these,
14 volumes, or about 6,900 pages, embrace
testimony taken before equity rule 75 be-
came operative. By agreement between the
parties, aa the testimony was taken it was
printed and bound, and the requisite number
of copies of the volumes are on hand to
serve as part of the record in this court on
the appeal. To facilitate the court below,
digests and full indexes were prepared by
counsel, and all the references to the testi-
mony made by the court below in its opin-
ion are directed to the testimony as con-
tained in the bound volumes.
Under the facts which we have stated, we
are of opinion that the case is an exception
to equity rule 75, and should not be con-
trolled by it, and hence that the testimony
in its original form as contained in the
volumes already printed should constitute a
part of the record on appeal, and therefore
there is no reason to grant the request for
time based upon the contrary assumption.
While this is true, however, in order that
there may be ample opportunity [444] to
file the record made up conformably to the
views which we have just stated, the time
for filing the record, which was extended by
this court on March 15th, pending this
application, will be now extended sixty days
from that date.
And it is so ordered.
caboose and was killed *there when a paaaoi'
ger train, which he knew was closely fol*
lowing, ran into the standing train, ainei
his was the causal negligence, even if n^-
ligence could be imput^ to the carrier fron
the pulling out of the drawbar which caused
the train to break in two, there being nc
claim that the passenger train was n^^*
gently run.
[For other cases, see Master and Servant. It
c: Proximate Cause, in Digest Sup. Ct
Submitted
[No. 196.]
January 26, 1016.
March 20, 1016.
Decided
GREAT NORTHERN RAILWAY COM-
PANY, Plff. in Err.,
V.
J. H. WILES, as Administrator of the Es-
tate of Dennis E. Wiles, Deceased.
(See S. C. Reporter's ed. 444-448.)
Master and servant — employers' lia-
bility — comparative negligence —
proximate cause.
There is no room for the application
of the rule of comparative negligence estab-
lished by the employers' liability act of
April 22, 1908 (35 Stat, at L. 05, chap. 149,
Comp. Stat. 1913, § 8657), where the rear
brakeman of a parted freight train, disre-
garding his duty to protect the rear of his
train by going back a short distance and
giving the warning signals which the car-
rier's rules required, remained in the
NOTV. — On the constitutionality, applica-
tion, and effect of the Federal employers'
liability act — see iiotes to Lamphere v. Ore-
fon R. & Nav. Co. 47 L.R.A.(N.S.) 38, and
eaboard Air Line R. Co. v. Horton, L.RJL.
1016C, 47.
782
IN ERROR to the Supreme Court of the
State of Minnesota to review a judg-
ment which, reversing a judgment of tht
District Court for the County of Ottertail,
directed the entry of judgment for plaintiff
in an action brought under the Federal em-
ployers' liability act. Reversed and t^
manded for further proceedings.
See same case below, 125 Minn. 348, 147
N. W. 427, 5 N. C. C. A. 60.
The facts are stated in the opinion.
Mr. E. C. Llndley submitted the came
for plaintiff in error. Mr. M. L. Country-
man was on the brief:
The undisputed facts show that the sole
proximate cause of the collision and the
death of plaintiff's decedent was his failure
to perform his duty as a flagman The pull-
ing out of a drawbar, and the stopping of
the train, caused thereby, merely created
a condition out of which arose his duty to
act.
Louisiana Mut. Ins. Co. v. Tweed, 7
Wall. 44, 19 L. ed. 65; Washington & G. R.
Co. V. Hickey, 166 U. S. 621, 41 L. ed. 1101,
17 Sup. Ct. Rep. 661, 1 Am. Neg. Rep. 661 ;
Memphis & C. R. Co. v. Reeves, 10 WalL
176, 19 L. ed. 909; Fezler v. Williams & 8.
F. R. Co. 85 Minn. 252, 88 N. W. 746;
Schreiner v. Great Northern R. Co. 86 Minn.
245, 58 L.R.A. 75, 90 N. W. 400; Ellington
v. Great Northern R. Co. 96 Minn. 176,
104 N. W. 827, 19 Am. Neg. Rep. 342;
Mehalek v. Minneapolis St. P. & S. Ste. M.
R. Co. 105 Minn. 128, 117 N. W. 250;
Nelson v. Chicago, M. & St. P. R. Co. 30
Minn. 74, 14 N. W. 360; Groff v. Duluth
Imperial Mill Co. 58 Minn. 333, 50 N. W.
1049; Johanson v. Howells, 55 Minn. 61,
56 N. W. 460 ; Weisel v. Eastern R. Co. 79
Minn. 245, 82 N. W. 576, 7 Am. Neg. Hep.
635; Ohristianson v. Chicago, St. P. M. A
O.' R. Co. 67 Minn. 94, 69 N. W. 640, M
Am. Neg. Cas. 314; Strobeck v. Bren, OS
Minn. 428, 101 N. W. 795; Russell v. Ger-
man F. Ins. Co. 100 Minn. 528, 10 L.R.A.
(N.S.) 326, 111 N. W. 400; Cooley, Torts, M
940 U. S.
J915.
GREAT NORTHERN R. CX). v. WILES.
445, 446
ed. pp. 73-76; Scheffer t. Washington City,
v. M. & O. S. R. Co. 105 U. S. 249, 26 L. ed.
1070; St. Louis & S. F. R. Co. v. Conarty,
238 U. S. 243, 50 L. ed. 1290, 35 Sup. Ct.
Rep. 785.
Uhe evidence wholly fails to establish
negligence in the pulling out of the draw-
bar. Under the Federal liability act, negli-
gence must be afl&rmatively proven, and the
doctrine of ret ipsa loquitur cannot be in-
voked.
Texas & P. R. Co. y. Barrett, 166 U. S.
617, 41 L. ed. 1136, 17 Sup. Ct Rep. 707, 1
Am. Neg. Rep. 745; Patton v. Tocas & P. R.
Co. 179 U. S. 658, 45 L. ed. 361, 21 Sup.
Ct. Rep. 275; Looney v. Metropolitan R.
Co. 200 U. S. 480, 50 L. ed. 564, 26 Sup.
Ct. Rep. 303, 19 Am. Neg. Rep. 627; Sea-
board Air Line R. Co. v. Moore, 228 U. S.
433, 57 L. ed. 907, 33 Sup. Ct. Rep. 580;
Southern Railway Carolina Div. v. Bennett,
233 U. 8. 80, 58 L. ed. 860, 34 Sup. Ct.
Rep. 566; Central Vermont R. Co. v. White,
238 U. S. 507, 59 L. ed. 1433, 35 Sup. Ct.
Rep. 865, 9 N. C. C. A. 265; Peirce v. Kile,
26 0. C. A. 201, 53 U. S. App. 291, 80 Fed.
865; Bowes v. Hopkins, 28 C. C. A. 524, 56
U. S. App. 217, 84 Fed. 767; Hodges v.
Kimball, 44 C. C. A. 193, 104 Fed. 745;
Mexican C. R. Co. v. Townsend, 52 C. C. A.
369, 114 Fed. 737; O'Connell v. Pennsyl-
vania Co. 55 C. 0. A. 483, 118 Fed. 989;
Mountain Copper Co. v. Van Buren, 59
C. C. A. 279, 123 Fed. 61; Chicago & N. W.
R. Co. V. O'Brien, 67 C. C. A. 421, 132 Fed.
593; Shandrew v. Chicago, St. P. M. & 0.
R. Co. 73 C. C. A. 430, 142 Fed. 320; North-
ern P. R. Co, V, Dixon, 71 C. C. A. 555, 139
Fed. 737, 19 Am. Neg. Rep. 637; Butler v.
Frazee, 25 App. D. C. 392.
Mr. W. R. Duxbnry submitted the cause
for defendant in error. Mr. Lyle Pettijohn
was on the brief:
This court will not scrutinize the whole
record for the purpose of discovering
whether it may not be possible, by a minute
analysis of the evidence, to draw therefrom
inferences which may possibly conflict with
the conclusion of the courts below as to the
tendencies of the proof.
Chicago Jimction R. C6. v. King, 222 U.
8. 222, 56 L. ed. 173, 32 Sup. Ct. Rep. 79.
Hie application of the doctrine rea ipsa
loquitur depends upon and is determined by
the circumstances; and, the circumstances
warranting, it applies as well in cases be-
tween employer and employee as in other
relations.
Byers t. Carnegie Steel Co. 16 L.RJl.
(N.S.) 214, 86 C. C. A. 347, 159 Fed. 347;
Lucid V. B, I. DuPont De Nemours Powder
Co. L.R.A. — . — , 118 C. C. A. 61, 199 Fed.
377; Southern Railway-Carolina Div. v.
•0 L. ed.
Bennett, 233 U. S. 80, 58 L. ed. 860, 34 Sup.
Ct. Rep. 566; Sweeney v. Erving, 228 U. S.
233, 57 L. ed. 815, 33 Sup. Ct. Rep. 416, Ann.
Cas. 1914D, 905.
Mr. Justice McKenna delivered the opin-
ion of the court:
Action for damages for the killing of one
Dennis E. Wiles, brought by the adminis-
trator of his estate, who is also his father
and next of kin. It was brought under the
employers' liability act of April 22, 1908
(35 Stat, at L. 65, chap. 149), as amended
April 5, 1910 (36 Stat, at L. 291, chap. 143,
Comp. Stat. 1913, § 8662).
Wiles was a freight brakeman in the em-
ploy of the railway company in interstate
commerce, the company being an interstate
common carrier.
There was a verdict for plaintiff in the
sum of $650. Upon motion of defendant the
court» expressing the view that Wiles's
negligence was the proximate cause of the
accident which resulted in his death, ren-
dered judgment that, notwithstanding the
verdict, plaintiff tske nothing by his action,
that the same be dismissed, and thst the
railway company recover of plaintiff $36.52
costs.
The judgment was reversed by the su-
preme court of the state and judgment
ordered to be entered on the verdict.
The only issue is as to the negligence of
the railway company and the contributory
negligence of the deceased, and the causal
relation, if either existed, to the death of
the deceased.
The determining facts of the case are as
follows :
Deceased was a rear brakeman on a
freight train of the railway company pro-
ceeding easterly between Grotto and [446]
Skykomish, Washington. After having passed
a curve in the road the train broke in two
by the drawbar pulling out of the sixth car
from the engine, which caused the train to
stop instantly. It was run into shortly
after (from 3 to 5 minutes, it was testi-
fied) by a passenger train drawn by two
engines. The night was pretty dark and thb
weather a little misty. At the place of col-
lision the track was obstructed by a very
sharp curve and a bluff on the right-hand
side for about five box-car lengths, and the
rear end of the freight train at that place
could not be seen more than five box-car
lengths away. On the left-hand side of the
engine, which is the fireman's side, the
track could not be seen more than a car
length ahead because that would be on the
outside Of the curve. The engineer of the
passenger train did not know of the exist-
ence of the freight train ahead and no negli-
gence is attributed to him. The deceased
788
44^-448
SUPREME COURT OF THE UNITED STATES.
Got. TwaM,
and the conductor of the freight train were
in the caboose and both were killed. What
caused the pulling out of the drawbar was
not shown, nor was there proof that it was
defective, or that the company was negli-
gent in the care or use of it.
The head brakeman of the freight train
testified that the train stopped immediate-
ly upon the pulling out of the drawbar, that
he descended from the train and hastened
back to the caboose for a chain, and that he
saw the headlight of the passenger train
as it came around the curve. He further
testified that it was Wiles's duty to have
gone back to protect the rear end of his
train at the time the passenger train was
due out of the station in the rear, and that
this applied whether the delayed inferior
train which was ahead was running or
standinig still; that it was the duty of
Wiles to have gone back a sufficient dis-
tance to guarantee full protection U> the
rear of his train, and that the engineer of
the freight train, at the time the train
broke in two, signaled the rear brakeman to
go back and protect the rear end of his train.
The same testimony as [447] to the duty of
Wiles was given by another witness. It ap-
peared also from the testimony that the
freight train was losing time by slipping,
and that Wiles knew the time that the pas-
senger train was due to leave Grotto station,
and he should have dropped off or dropped
fuses on the track to notify the engineer
of the passenger train that the freight was
running slow. The fuses are of red and
yellow lights ; the red means to stop for ten
minutes, the yellow means to bring the
train under control and keep it under con-
trol until the next station is reached.
The rules of the railway company were
put in evidence as follows:
''Rule 99. When a train stops or is de-
layed by any circumstance under which it
may be overtaken by another train, the flag-
man must go back immediately with stop
signals a sufficient distance to insure full
protection. When recalled he may return to
his train, first placing two torpedoes on the
rail six rail lengths apart, or a lighted
fusee in the center of the track when condi-
tions require."
"Ride 100. If the train should part
while in motion trainmen must, if possible,
prevent damage to the detached portions.
The signals prescribed by 13D and 15F must
be given."
18D is the lantern signal or hand signal,
either one; 15F is the whistle signal. Rule
100 applied to what should be done by the
members of the train crew for the protection
{^ tbiB aepMrated portions of the train itself.
TS4
Rule 99 applied to what should be done for
the protection of other trains approaching.
The supreme court applied the rule of res
ipsa loquitur and justified a submission to
the jury of the negligence of the railway
company as a deduction from the pulling
out of the drawbar, and the proportion of
its causal relation to the death of Wiles to
the amount of n^ligence attributable to
him, and reversed the action of the trial
court, entering judgment for the company
notwitlistanding the verdict.
[448] The application of the doctrine to
cases like that at bar is disputable. Patton
V. Texas k P. R, Co. 179 U. S. 658, 45 L. ed.
361, 21 Sup. Ct. Rep. 276 ; Looney v. Metro-
politan R. Co. 200 U. S. 480, 486, 50 L. ed.
564, 568, 26 Sup. Ct. Rep. 303, 19 Am. Neg.
Rep. 627. We, however, do not have to go
farther than to indicate the dispute. The
ease at bar is not solved bv the doctrine.
There is no justification for a comparison
of negligences or the apportioning of their
effect. The pulling out of the drawbar pro-
duced a condition which demanded an in-
stant performance of duty by Wiles, — a duty
not only to himself, but to others. The rules
of the company were devised for such con-
dition and provided for its emergency.
Wiles knew them, and he was prompted to
the performance of the duty they enjoined
(the circumstances would seem to have
needed no prompting) by signals from the
engineer when tlie train stopped. He dis-
regarded both. His fate gives pause to
blame, but we cannot help pointing out that
the tragedy of the collision miglit have been
appalling. He brought death to himself and
to the conductor of his train. His neglect
might have extended the catastrophe to the
destruction of passengers in the colliding
train. How imperative his duty was is
manifest. To excuse its neglect in any way
would cast immeasurable liability upon the
railroads, and, what is of greater concern,
remove security from the lives of those who
travel upon them ; and therefore all who are
concerned with their operation, however
high or low in function, should have a full
and an anxious sense of responsibility.
In the present case there was nothing to
extenuate Wiles's negligence; there was
nothing to confuse his judgment or cause
hesitation. His duty was as clear as ita per-
formance was easy. He knew the danger of
the situation and that it was imminent;
to avert it he had only to descend from his
train, run back a short distance, and give
the signals that the rules directed.
Judgment reversed and cause remanded
for further proceedings not inoonsistent
with this opinion.
940 V. 8.
CHICAGO, E. I. ft F. B. CO. «. BOND.
[M«] CHICAQO, SOCK ISLAND, &, PA-
CIFIC RAILWAY COMPANY, Flfl. in
Kit.,
(Sm S. a Bepoiter'a ed. 449-407.)
Hxsler and aerTRnt — when relntloo
exists — Independent contractor —
employers' Unblllty.
1. A oontToI OT«r resulU only, which ii
inetmsiHtent with the existence of anj rela-
tion of master and aervant to which the
Federal employers' iiabilitj' act of April 22,
1008 (3fi Stat, at L. 65, chap. 149, Comp.
Stat. 1913, 3 aSS7), could apply, ii what
was reserved to an int«Titate railway car-
rier in a contract with a peraan oalled the
original contractor, b; which he is to han-
dle at the railway compsjiy's coal chutes
the coal required for ita engines, furnish-
ing the necessary labor for that purpoae, is
to break the coal ijt suitable sizes, is to un-
load wood from car to storage piles, and
is to load cinders on cars and unload aand,
where the manner of the work is under hU
control, to be done by him and his em-
ployees, and be Is made reaponaible for the
faithful performance of bia agreement, in-
curring the penalty of inatant termination
of the contract tor nonperformance, the con-
tract providing for payment on the baaia
of tons, cords, or yards, and the "con-
tractor" expressly assuming all liability for
injuries to himself or to his property, or
to his employees or third persons, and there
being an explicit provision that the carrier
"reeervea and holds no control over him in
the doing of such work other than as to the
results to be accomplished."
[For Dtber cbhi, see Master and Servant, I.
■, Id Dlsest Sup. Ct. IBOS.]
Master and servant — emplofera* lia-
bility — contract exemption.
2. No evasion of the provision of the
employers' liability act of April 22, 1008
(35 SUt. at L. 86, chap. 140, Comp SUt.
1013, % B6611, g S, that "any contract,
rule, regulation, or device whatsoever, the
purpose and intent of which shall be to en-
able any common carrier to exempt itself
from any liability created by this act shall
to that extent be void," results from the
making of a contract by an interstate rail-
way carrier under which the work of han-
dling at the railway company's coal chutes
the coal required for its engines, and of
breaking the coal into auitable aizea, and
of unloading wood from cars to atorage
piles, and of loading cinders from right of
way on cars, and of unloading aand from
ears at designated points, is to be per-
formed by an Independent contractor who
Non. — On the constitutionality, appliea-
ti<m, and effect of the Federal employers'
liability act — see notes to Lamphere t. Ore-
gon R. & Nav. Co. 47 L.RA.(N.8.) 38, and
Seaboard Air Line R. Co. v. Horton, LJLA.
M15C. 47.
•• L. ed.
expressly aianmes all liability for injnry
to himself or hia property, or to .bia em*
floyees or to third parsons.
For other caaea, see Uaster and SB^van^ II.
a. in DlBcst Sap. Ct. 1»08.1
[No. 466.]
IN ERROR to the Supreme Conrt of the
State of Oklahoma to review a judgment
which afRrmed a judgment of the District
Court for Oarfleld County, in that aUte, in
favor of plaintiff in an action brought un-
der the Federal employers' liability act.
Reversed and remanded for further proeeed-
See same eas« below; — Okla. — , 148
Pac. 103.
The facts are stated in the opinion.
Mr. B. J. Roberts argued the cause, and,
with Measrs. J. O. Gamble, M. L. Bell, C.
0. Blake, W. H. Moore, and K. W. SharUI,
flied a brief for plaintiff in error:
The deceased was an independent con-
Nsw Orleans, M. A C. R. Co. t. Hauning,
IS Wall. 640, 660, 21 L. ed. 220, 222, 7 Am.
Neg. Cas. 300; Singer Ut^. Oo. v. Rahn,
182 U. S. 518, 38 L. ed. 440, 10 Sup. Ct
Rep. 176; Casement v. Brown, 148 U. S.
61B. 3T L ed, 562, 13 Sup. Ct. Rep. 672-.
Weinman v. De Pahna, 232 U. S. S71, &S
L. ed. 733, 34 Bup. Ct. Rep, 370; Arthur v.
Texas A P. R, Co. 71 C. C. A. 301, 139 Fed.
127; Fuller t. Citizens' Nat. Bank, 16 Fed.
876; Cox r. PhiladelphU, 166 Fed. 650;
Riedel v. Moran, Fitzaimmons Co. 103 Mich.
202, 61 N. W. 609; Euehn v. Milwaukee, 92
WU. 263, 65 N. W, 1030; Voabeck v. Kel-
logg, 78 Hinn. 176, 80 N. W. «67, 7 Am.
Neg. Rep. ii; LouiaTilte t N. R. Oo. t.
Smith, 134 Ky. 47, 110 S. W. 241; Salliotta
T. King Bridge Co. S6 L.R.A. 620, 5B C. C.
A. 468, 122 Fed. 3T8; Morning v. Cramp,
170 Fed. 364; United Oas Impror. Co. v.
Larsen, 105 C, C. A. 486, 182 Fed. 620;
Boardman v, Crelghton, OS Me. 1G4, 40 Atl.
663; Pioneer Fireproof Constr, Ca v. Han-
sen, 176 ni. 100, 62 N. E. 17; Sullivan v.
New Bedford Oas A Ediaon Light Co. 100
Mass. 288, 76 N. E. 1048; Porter v. Tenn-
essee Coal, Iron A R. Co. 177 Ala. 400, 60 So.
265; Texas Traction Co. t. Qeorge, — Tex.
Civ. App. — , 149 S. W. 438; Chicago, R, I.
A P. R. Co. V. Bennett, 36 Okla. 368, LRJl.
— , — , 128 Pac. 706; Chas. T, Derr Constr.
Co. T. Oebuth, 20 Okla. S38, 120 Pac. 26S;
Branstrator ' T. Kednik A W. R. Co. 108
Iowa, 877, 70 N. W. 130; Atchison T. A U.
F. R. Co. V. Dickens, 7 Ind. Terr. 16, 103 S.
W. 760; Richmond t. Sltterding, 66 LJtA.
446, note; CoAran v. Rlea, AnluG«».\«\3A.,
460-452
SUPREME COURT OF THE UNITED STATES.
Oct. Tbsm,
573, note; Messmer v. Bell & C. Co. 10 Ann.
Cas. 3, note; Foster v. Chicago, 197 111. 264,
64 N. E. 322; Good v. Johnson, 38 Colo. 440,
8 L.RJL.(N.S.) 896, 88 Pac. 439; Larsen v.
Home Teleph. Co. 164 Mich. 295, 129 N. W.
894; Perkins ▼. Blauth, 163 Cal. 782, 127
Pac. 50; Qiacomini v. Pacific Lumber Co. 5
Cal. App. 218, 89 Pac 1059; Toomey v.
Donovan, 158 Mass. 232. 33 N. £. 396;
Omaha Bridge & Terminal R. Co. v. Harga-
dine, 5 Neb. Unof. 418, 98 N. W. 1071, 76
Neb. 729, 107 N. W. 864 ; Dublin v. Taylor,
B. & H. R. Co. 92 Tex. 535, 50 S. W. 120;
Vickers v. Kanawha & W. V. R. Co. 64 W.
Va. 474, 20 L.R.A.(N.S.) 793, 131 Am. St.
Rep. 929, 63 S. E. 367.
Messrs. J. G. Gamble, R. J. Roberts, M. L.
BeU, C. 0. Blake, W. H. Moore, K. W.
Shartel, and T. P. Littlepage also tiled a
brief for plaintiff in error.
Mr. John O. Moore submitted the cause
for defendant in error:
Turner was an employee, and not an in-
dependent contractor.
Atlantic Transport Co. v. Coneys, 28 C. C.
A. 388, 51 U. S. App. 570, 82 Fed. 177; 4
Words k Phrases, title "Independent Con-
tractors;" Moll, Independent Contractors, 77.
[450] Mr. Justice McKenna delivered
the opinion of the court:
Action for damages caused by the railway
company by the killing of the deceased,
William L. Turner, through the negligence,
it is alleged, of the company. It was
brought in the district court of Garfield
county, Oklahoma, and invoked the benefits
of the employers' liability act of Congress
of April 22, 1908 (35 SUt. at L. 65. chap.
149), as amended April 5, 1010 (36 Stat, at
L. 291, chap. 143, Comp. Stat. 191^, § 8662).
The case was removed on petition of the
railway company to the United States dis-
trict court for the western district of Okla-
homa, and remanded by that court to the
state court. There an amended petition
was filed by plaintiff in the action, to which
an answer was filed.
After answer the case was tried to a jury,
which returned a verdict for the sum of
$7,583, distributed in certain proportions
among those dependent upon the deceased.
Judgment was entered upon the verdict and
sustained by the supreme court of the state.
The case went to the jury upon the effect
of certain contracts between deceased and
the company, whether he was the com-
pany's servant or a contractor with it, and
whether, if he was the eervanl^ of the com-
pany, it was guilty of negligence, or whether
he was guilty of contributory negligence.
The facts are not much in dispute. The
company is an interstate oonunon carrier
78C
I and its line runs through the limits of the
I city of Enid, Garfield county, state of Okla-
homa. Within the city there are six
parallel tracks which run nearly from the
north to the south, bearing as they proceed a
little to the west. At the south end, near
their termination, are located coal diutes,
into the pockets or tipples of which coal Is
shoveled from cars set on the chutes lor the
use of all engines, local and interstate. The
city of Enid has the power to establish and
[451] did establish by ordinance a speed
limit of 10 miles an hour for all trains
within its limits, beyond which it was un-
lawful to proceed.
The relation of Turner to the railroad
company was under two contracts, one
dated November 1, 1910, the other October
1, 1911. In the first contract the railroad
company is party of the first part and Turn-
er party of the second part and is called
"contractor." The covenants of one are
made the consideration for the covenants of
the other, and Turner, as contractor, agrees
first "to furnish all the labor required and
necessary to handle; and (a) to handle all
the coal required by the company at Enid,
from either open or closed cars, or both,
and to place the same in coal-chute pockets
of the company; to gather up all coal that
falls from the coal-chute pockets to the
ground, and place the same on cars or en-
gines, as desired by the company, (b) To
break all coal to the size of 4-inch cubes or
less before delivery to chutes for engine use,
and to imload all coal for stationary boilers,
(c) To unload wood from cars to storage
piles located on company's right of way in
Enid, (d) To load cinders from the right
of way to cars at points designated by the
company, (e) To unload sand from cars
furnished by the company at points desig-
nated by it.
2d. The company agrees to pay for the
services enumerated in certain designated
numbers of cents per ton, or eord,^or yard,
as the case may be, to be paid upon esti-
mates and records of the company.
3d. Contractor agrees to maintain a suf-
ficient supply of coal in the coal chutes and
break or crack all coal to suitable sizes.
4th. Contractor expressly assumes all lia-
bility for injuries to or death of persons in
his employ, or loss or injury to his prop-
erty, whether caused by the negligence ot
the company, its agents or employees, and he
covenants to save the company harmless on
account thereof, or for [452] or on account
of any injury to or death of any person em-
ployed by him when and while such persons
may be in or about the cars, engines, and
tracks of the company, "and any injury to
said contractor while performing any serv-
ices under this contract which might be or
S40 U. 8.
1915.
CHICAGO, R. I. & P. K. CO. t. BOND.
462-464
hMY% been delegated to his agent or em-
pli^ees." And the contractor expresslj at-
■nmea all liability for injury to or death of
third persons, including the employees of
the company, occasioned by any of his acts,
and the company shall not be liable to him
in case of his death or injury while em-
ployed in the work set forth.
5th. Punctuality of performance is stipu-
lated for; (6th) the contract to continue
until terminated, as it may be by either
party upon fifteen days' notice; (7th) or
upon failure of contractor to* perform his
duties, at the option of the company, with-
out being liable in damages therefor, of
which failure the company shall be the sole
judge; (8th) the company to furnish r the
necessary tools for the performance of the
stipulated services.
9th. It is "agreed and understood that
the contractor shall be deemed and held as
the original contractor, and the railway
company reserves and holds no control over
him in the doing of such work other than
as to the results to be accomplished."
10th. The company shall keep a record of
all coal delivered, and shall make settle-
ments and pay the contractor for handling
the coal upon the basis of such handling,
and the contractor shall make daily reports
of the ears unloaded by him, and shall re-
ceive, collect, and deliver to the duly
authorized representative of the company a
ticket from each engineman, hostler, or
other employee, showing the number of tons
of coal delivered to any engine; (11th) pay-
ment of the work to be made monthly ; and
(12th) the contract and all the terms and
conditions, rights and obligations thereof,
to inure to the heirs, administrators, ex-
ecutors, legal representatives, [453] as-
signs, and lessees of both parties, but as-
signing or subletting shall not be without
the written consent of the company.
Under the other contract Turner was re-
quired to cooper all cars which the round-
house foreman directed him to prepare to
fit the cars to hold grain in transit, the
foreman to be the sole judge whether the
preparation was in accordance with the con-
tract. The manner of preparation is de-
tailed and the price to be paid therefor in
cents, the company to f umi^ the materials.
There are provisions as in the other con-
tract to save the company from liability to
persons or property. The contract was to
continue until terminated upon thirty days'
notice.
This contract is pertinent only for illus-
tration, and otherwise may .be put out of
view. The deceased waa killed, it is the
contention, while performing services un-
der the first contract.
Turner had a contract with the Enid Mill
•0 Ij. ed.
A. Elevator Company to unload coal, and,
directly after 4 o'clock on the day he was
killed, having finished a particular service
at which he and one of his employees had
been engaged, remarked that he would "go
down and gather up the tickets and order a
car of coal for the morning," and started
down the tracks toward the chutes.
He next appeared about 6:25 o'clock at
the cinder pile of the Enid Mill & Elevator
Company at what is designated as the
"^Vhite Mill," and there had a conversation
with en employee of that company, and
asked him, the employee, if he thought he
would have enough coal for the boiler room
to run until Monday night. While they
were talking a passenger train signaled its
approach to the station and Turner said,
"That is 24; I must take my coal tickets
to the freight house and turn them in and
order coal for the chutes." He then started
towards the freight house.
[454] The trial court thought the testi-
mony was indefinite of Turner's intention
and hesitated to decide that he was engaged
in services to the railway company rather
than to the Enid Mill k Elevator Company,
but finally left it to the jury to decide.
From the "White Mill" Turner passed
along the tracks of the railroad and was
seen by a witness walking between tracks
3 and 4 with his hands behind him, and
while so walking, and when he was at a
point east of the north end of the freight
house, an engine and two box cars and a
flat car, backing on the track to his left in
the direction in which he was going, and
running at about 25 miles an hour, and in
excess of the speed limit prescribed in the
ordinance, ran over and killed him. It is a
reasonable conjecture that the character of
the day and the noise and confusion of the
approaching passenger train so distrscted
his attention that he did not hear the ap-
proach of the backing cars and warning
yells of the brakeman, and apprehended no
danger.
Besides excessive speed there were other
elements of negligence by the company
which the plaintiff relied upon.
We may pass by the assignments of error
based on the rulings upon the evidence and
in giving and refusing instructions. The
determining consideration is the relation in
which Turner stood to the company, wheth-
er he was an employee of it or an independ-
ent contractor.
The trial court submitted the question to
the decision of the jury; the supreme courts
considering the contract of November 1,
1910, hereinbefore set out, and certain testi-
mony, decided that Turner was an employee
of the company. The court said: "Not
only did the contract reserve to tha oom-
47
454-467
8UPREME COURT OF THE UNITED STATEa
Oct. Temu,
pany the right to control and direct deceased
in his work, but it might be well to know,
although we are only passing on the face
o^ the contract, that the company, pursuant
to the power therein reserved, did that very
thing, which confirms us in our opinion,
gathered [455] from the face of the contract,
that the same was not capable of execution
without such direction and control. Such
amounts to a practical construction of the
contract by the company. Mr. Bowman,
station agent and yardmaster of defendant,
testified:
" 'Q. From whom did Turner get instruc-
tions about handling work performed by
him?
'"A. Under his contract from us.
'"Q. You directed him what to do 7
** 'A. Yes, either me or my chief clerk.
"'Q. So that he was under your super-
vision and control all the time?
" 'A. In so far as his contracts were con-
cerned, yes, sir.
'*'Q. He performed his duties in accord-
ance with what you directed him to do 7
" 'A. Yes, sir.
"'Q. I wiU ask you if all this coal he
handled for the chutes, if that was Rock
Island coal?
« 'A. Yes. sir.' " [— Okla. — , 148 Pac
107.]
To which testimony this must be added:
'"Q. Did you have anything to do with
directing him in detail as to how he per-
formed the terms x>f his contract 7
« <
A. No, sir,"*
We are unable to concur with the learned
court in its conclusion. There was, it is
true, and necessarily, a certain direction to
be given by the company, or rather, we
should say, information given to Tumw.
But the manner of the work was under his
control, to be done by him and those em-
ployed by him. He was responsible for its
faithful performance and incurred the
penalty of the instant termination of the
contract for nonperformance. This was
only a prudent precaution, indeed, neces-
sary in view of the purpose of his con-
tract, which was to make provision for a
daily supply of coal for the operation of
the railroad. The power given was one of
control in a sense, but it was not a detailed
control of the actions of Turner or those
of [456] his employees. It was a judgment
only over results and a necessary sanction
of the obligations which he had incurred.
It was not tantamount to the control of
an employee and a remedy against his in-
competency or neglect.
The whole instrument shows ifystem and
Its
particular care. It is not the engagement
of a servant submitting to subordination
and subject momentarily to superintendence,
but of one capable of independent action, to
be judged of by its results. And the cove-
nants were suitable for the purpose, only
consistent with it, not consistent with a
temporary employment. This is manifest
from the provision for payment, from the
careful ^assignment of liabilities, and the
explicit provision that Turner "shall be
deemed and held as the original contractor,,
and the raflroad company reserves and
holds no control over him in the doing of
such work other than as to the results to
be accomplished."
The railroad company, therefore, did not
retain the right to direct the manner in
which the business should be done, as well
as the results to be accomplished, or, in
other words, did not retain control not only
of what should be done, but how it should be
done. Singer Mfg. Co. v. Rahn, 132 U. S.
518, 33 L. ed. 440, 10 Sup. Ct. Rep. 175;
New Orleans M. & C. R. Co. v. Hanning, 15
Wall. 649, 656, 21 L. ed. 220, 222, 7 Am.
Ncg. Gas. 309; Standard Oil Co. v. Ander-
son, 212 U. S. 215, 227, 53 L. ed. 480, 486,
29 Sup. Ct. Rep. 252.
The case falls, therefore, under the ruling
in Casement v. Brown, 148 U. S. 615, 622,
37 L. ed. 582, 585, 13 Sup. Ct. Rep. 672.
We do not think that the contract can be
regarded as an evasion of § 5 of the employ-
ers' liability act, which provides "that any
contract, rule, regulation or device what-
soever, the purpose or intent of which shall
be to enable any common carrier to exempt
itself from any liability created by this act»
shall to that extent be void: . . ." [35-
Stat. at L. 66, chap. 149, Comp. Stat 1913,
§ 8601.]
Turner was something more than a mere
shoveler Of coal under a superior's com-
mand. He was an independent employer of
labor, conscious of his own power to direct
[457] and willing to assume the responsi-
bility of direction and to be judged by its re-
sults. This is manifest from the contract un-
der review and from the cooperage contract;
it is also manifest from his contracts with the
other companies to whose industries the
railroad company's tracks extended. We
certainly cannot say that he was incompe-
tent to assume such relation and incur its
consequences.
Hius, being of opinion that Turner waa
not an employee of the company, but an
independent contractor, it is not material ta
consider whether the services in which he
was engaged were in interstate commerce.
Judgment reversed and case remanded for
further proceedings not inconsistent with
this opinion.
940 U. 8*
19U.
SOUTHERN WISOONSIN R. CX). v. MADISON.
SOUTHERN WISCONSIN RAILWAY
qOMPANY, Plff. in Err.,
V.
CITY OF MADISON.
(See S. 0. Reporter's ed. 457-462.)
Error to state court — Federal question
— Impairing (x>ntract obligations.
1. Whether a municipal ordinance may
be upheld without impairmg the obligations
of an admitted contract is a Federal ques-
tion for the puipose of sustaining the ap-
pellate juris^ction of the Supreme Court
over a state court, although the answer to
the question depends upon the construction
of the contract.
[For other cases, see Appeal and Error» 167S-
1716, In Digest Sup. Ct 1908.) .,
Error to state court — decision on non-
Federal ground.
2. A decision of the highest state court,
upholding the imposition of a paving obliga-
tion upon a street railway company, is re-
viewable in the Federal Supreme Court on
writ of error, where a municipal ordinance
requiring a street railwav company, imder
a penalty, to do the work, was set up and
attacked as impairing contract obligations,
and was expressly upheld by the state court,
even though the state court's opinion be
read as asserting that the duty existed un-
der the street railway company's franchise
alone, irrespective of the later ordinance,
since such ordinance was present, impelling,
so far as might be, the decision reached,
and was given effect by the decision.
[For other cases, see Appeal and Error, 1465--
1628, In Digest Sup. Ct. 1908.]
Srror to state court — following deci-
sion below ^ impairing contract ob-
ligations.
3. The Federal Supreme Court will not
disturb a decision of the hig)iest state court
that a municipal ordinance requiring a
street railway company to bear the cost of
an asphalt pavement between its rails and
for a distance of 1 foot outside does not im-
pair the obligations of its chai:^r, which
re(|uires it to keep such space in proper re-
pair, so as not to interfere with travel over
the same, and which makes the grant sub-
ject to such reasonable rules and regula-
tions respecting the streets and highways
and operation of cars as the common council
may enact, where the state court found that
the designated space needed repairs, and
that the crushed stone then used was not
suitable for the purpose, and would have
interfered with the asphalt laid by the city
in the rest of the street.
[For other cases, see Appeal and Error, VIII.
m, 1, In Digest Sup. Ct. 1908.]
[No. 260.]
Argued March 6 and 7, 1916. Decided
March 20, 1916.
IN ERROR to the Supreme Court of the
State of Wisconsin to review a judgment
which affirmed a judgment of the Circuit
Court for Dane County, in that state, in
favor of a municipality in a suit to recover
the cost of paving from a street railway
company. Affirmed.
See same case below, 166 Wis. 362,
L.R.A.— , — , 146 N. W. 492.
The facts are stated in the opinion.
Mr. Burr W. Jones argued the cause,
and, with Mr. B. J. B. Schubring, filed a
brief for plaintiff in error:
A municipal by-law or ordinance, enacted
by virtue « of power for that purpose, dele-
gated by the legislature of the state, is a
state law within the meaning of the Fed*
eral Constitution.
Atlantic Coast Line R..Co. v. Goldsboro,
232 U. S. 649, 665, 58 L. ed. 721, 725, 34
Sup. Ct. Rep. 364; St. Paul Gaslight Co. v.
St. Paul, 181 U. S. 142, 148, 45 L. ed. 788,
791» 21 Sup. Ct. Rep. 575; aty R. Co. v.
Citizens' Street R. Co. 166 U. S. 557, 563, 41
L. ed. 1114, 1116, 17 Sup. Ct. Rep. 653;
New Orleans Waterworks Co. v. Louisiana,
185 U. S. 336, 350, 46 L. ed. 936, 943, 22
Sup. Ct. Rep. 691; Davis A F. Mfg. Co. t.
Los Angeles, 189 U. S. 207, 216, 47 L. ed.
778, 780, 23 Sup. Ct. Rep. 498; Hamilton
Gaslight A Coke Co. v. Hamilton, 146 U. S.
258, 266, 36 L. ed. 963, 967, 18 Sup. Ct. Rep.
90; Ross Y. Oregon, 227 U. S. 150, 162, 57
L. ed. 468, 463, 33 Sup. Ct. Rep. 2X0, Ann.
Note. — On the general subject of writs of
error from United States Supreme Court to
state courts — see notes to Martin v. Hunter,
4 L. ed. U. S. 97, Hamblin v. Western Land
Co. 37 L. ed. U. S. 267; Re Buchanan, 39
Li. ed. U. S. 884; and Kipley v. Illinois, 42
Xi. ed. U. S. 998.
On what adjudications of state courts
can be brought up for review in the Su-
preme Court of the United States by writ
of error to those courts — see note to Apex
Transp. Co. v. Garbade, 62 L.RJL. 513.
On how and when questions must be
raised and decided in a state court in order
to make a case for a writ of error from
the Supreme Court of the United States —
see note to Mutual L. Ins. Co. ▼• McGrew,
03 LJLA. 33.
60 Ii. ed.
On what the record must show respect-
ing the presentation and decision of a Fed-
eral question in order to confer jurisdiction
on the Supreme Court of the United States
on a writ of error to a state court — see
note to Hooker v. Los Angeles, 63 L.R.A.
471.
As to what is the record for the purpose
of showing the jurisdiction of the Supreme
Court of the United States of a writ of
error to a state court— see note to Home
for Incurables t. New York, 63 L.RA.. 329.
On error to state courts in cases present-
ing questions of impairment of contract
obligations — see note to Osborne ▼. Clarke,
51 L. ed. U. S. §19.
7^^
SUPREME COURT OF THE UNITED STATES.
Oct. Ibsu,
Cm. 1914C, 224; Cleveland v. Cleve-
land City R. Co. 194 U. S. 517, 636, 48
L. ed. 1102, 1109, 24 Sup. Ct. Rep. 756;
Northern P. R. Co. v. Minnesota, 208 U. S.
583, 590, 52 L. ed. 630, 633, 28 Sup. Ct. Repi
341; Mercantile Trust & D. Co. v. Colum-
bus, 203 U. S. 311, 320, 51 L. ed. 198, 202,
27 Sup. Ct. Rep. 83; Vicksburg Water-
works Co. V. Vicksburg, 185 U. S. 65, 81, 46
L. ed. 808, 815, 22 Sup. Ct. Rep. 585; South-
west Missouri Light Co. v. Joplin, 101 Fed.
23.
The passage of the ordinance of June 11,
1910, was such state legislation as impaired
the obligation of the contract and raised a
Federal question when properly presented
in the record.
St. Paul Gaslight Co. v. St. Paul, 181 U.
8. 142, 147, 45 L. ed. 788, 791, 21 Sup. Ct.
Rep. 575; Houston & T. C. R. Co. v. Texas,
177 U. S. 66, 74, 77, 44 L. ed. 673, 679, 680,
20 Sup. Ct. Rep. 545; McCullough v. Vir-
ginia, 172 U. S. 104, 117, 43 L. ed. 382, 387,
19 Sup. Ct. Rep. 134; Northwestern Uni-
versity Y. Illinois, 99 U. S. 309, 313 25 L.
ed. 387 ; Walla Walla v. Walla Walla Water
Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. a.
Rep. 77; Mobile & 0. R. Co. v. Tennessee,
153 U. S. 486, 405, 38 L. ed. 793, 796, 14
Sup. Ct. Rep. 068.
The state court by its decision gives ef-
fect to the ordinance.
Bridge Proprietors v. Hoboken Land &
Improv. Co. 1 Wall 116, 140-147, 17 L. ed.
671, 575-577; Houston & T. C. R. Co. v.
Texas, 177 U. S. 66, 74-77, 44 L. ed. 673,
679, 680, 20 Sup. Ct. Rep. 545; McCullough
▼. Virginia, 172 U. S. 102, 116, 117, 43 L. ed.
882, 387, 388, 19 Sup. Ct. Rep. 134; North-
western University v. Illinois, 99 U. S. 300,
820, 25 L. ed. 387, 388; Given v. Wright,
117 U. S. 648 29 L. ed. 1021, 6 Sup. Ct.
Rep. 907; West Chicago Street R. Co. v.
Illinois, 201 U. S. 506, 519, 50 L. ed. 845,
850, 26 Sup. Ct. Rep. 518; Mercantile Trust
& D. Co. V. Collins Park & Belt R. Co. 09
Fed. 812.
The city cannot assail its own ordinance
to defeat jurisdiction.
Cleveland v. Cleveland City R. Co. 194 U.
S. 517, 48 L. ed. 1102, 24 Sup. Ct. Rep. 756.
At common law the duty to repair and
repave streets rests upon the municipality.
Hammond v. Mukwa, 40 Wis. 41; Klatt
T. Milwaukee, 53 Wis. 201, 40 Am. Rep.
769, 10 N. W. 162.
The obligation to repair or repave can
therefore not rest upon the plaintiff in error
unless such duty is expressly imposed by
the franchise.
Chicago Union Traction Co. v. Case, 120
ni. App. 466; New York v. Bleecker Street
ft F. Ferry R. Co. 130 App. Div. 830, 115
Jf. Y, Supp, 592; Western Paving ft Supply
740
Co. Y. Citizens' Street R. Co. 128 Ind. 525,
10 L.RJ^. 770, 25 Am. St. Rep. 462, 26 N. £.
188, 28 N. E. 88.
The franchise does not impose upon the
street railway company the duty to pave
or repave the railway zone, but simply to
keep the same in such repair as not to in-
terfere with travel over the same, and to
keep the same in proper order and cleanli-
ness.
Blount Y. JanesYille, 31 Wis. 648.
The franchise should be construed as if
the rule of the Blount Case, supra, was
stated in the text.
Ennis Waterworks y. Ennis, 233 U. S.
652, 58 L. ed. 1139, 34 Sup. Ct. Rep. 767.
With the franchise ordinance which re-
quired paving, before their eyes, the council
deliberately omitted that provision in the
new ordinance.
Smith V. Eau Qaire, 78 Wis. 457, 47 N.
W. 830; Indianapolis ft E. L R. Co. y. New
Castle, 43 Ind. App. 467, 87 N. E. 1067.
The obligation to repair does not require
repaving.
Chicago Y. Sheldon, 9 Wall. 60, 64, 19 L.
ed. 594, 596; Dili Mun. Corp. 6th ed. §
1276; State ex rel. Kansas City y. Corrigan
Consol. Street R. Co. 85 Mo. 263, 66 Am. Rep.
361, 86 Mo. 67; Williamsport ▼. Williams
port Pass. R. Co. 206 Pa. 66, 66 Atl. 836;
Western Paving ft Supply Co. y. Citizens'
Street R. Co. 128 Ind. 525, 10 LJtA. 770,
25 Am. St. Rep. 462, 26 N. E. 188, 28 N. E.
88; Philadelphia ▼. Hestonville, M. ft F.
Pass. R. Co. 177 Pa. 871, 86 AtL 718;
United R. ft Electric Co. y. Baltimore, 121
Md. 558, 88 Atl. 617 ; Baltimore ▼. Scharf ,
54 Md. 499 ; Hurley y. Trenton, 66 K. J. L.
538, 49 Atl. 518.
A charter granted to a street railway
company to construct and operate a street
railway within the corporate limits of a
city constitutes a contract between the
railway company and the city.
Chicago Y. Sheldon, 9 WalL 60, 19 L. ed.
594; Western Paving ft Supply Co. ▼. Citi-
zens' Street R. Co. 128 Ind. 626, 10 L.RA.
772, 25 Am. St. Rep. 462, 26 N. E. 188, 28
N. E. 88.
The liability of the street railway com-
pany being fixed by its charter, neither ths
city council nor the state leg^alature can
alter it without the consent of the oom*
pany.
Western Paving ft Supply Co. t. Otlzens'
Street R. Co. supra; Coast-Line R. Go. y.
Savannah, 30 Fed. 646; Chicago t. Sheldon,
supra.
Mr. William Ryan argued the cauae and
filed a brief for defendant in error:
The contention made and passed upon in
the state courts cannot be enlarged by as-
14« V. 6.
1916.
SOUTHERN WISOONSIN R. GO. v. MADISON.
ngnments of error to bring the case to this
eourt.
Clereland & P. R. Co. ▼. Cleveland, 235
U. S. 50, 59 L. ed. 127, 36 Sup. Ct. Rep. 21.
The ordinance is administrativei and not
legislative in character, and the city could
have, with • the same force and effect,
dUrected the mayor or street superintendent
to order and direct the street railway com-
pany to do the work in question.
New Orleans Waterworks Co. ▼. Louisi-
ana Sugar Ref. Co. 125 U. S. 18, 32, 31 L.
ed. 607, 612, 8 Sup. Ct. Rep. 741; Ross v.
Oregon, 227 U. S. 150, 163, 67 L. ed. 458,
463, 33 Sup. Ct. Rep. 220, Ann. Cas. 1014C,
The franchise of 1892 requires the street
ilway company to pave the railway zone
when the city repairs the remainder of the
street, under the facts found by the trial
court in this case.
Central Land Co. v. Laidley, 159 U. S.
103, 110, 40 L. ed. 91, 04, 10 Sup. Ct. Rep.
80; State ex rel. Milwaukee v. Milwaukee
Electric R. & Light Co. 151 Wis. 520, 139
N. W. 396, Ann. Cas. 1914B, 123; Blair v.
Chicago, 201 U. S. 400, 472, 60 L. ed. 801,
831, 26 Sup. Ct. Rep. 427; Knoxville Water
Go. ▼. Knoxville, 200 U. S. 22, 50 L. ed. 353,
26 Sup. Ct. Rep. 224; Elliott, Roads &
Streets, 3d ed. §§ 987, 988; Madison ▼.
Southern Wisconsin R. Co. 150 Wis. 368,
LJtJ^. — , — , 146 N. W. 492; New York ▼.
Harlem Bridge, M. &, F. R. Co. 186 N. Y.
304, 78 N. E. 1072; Danville v. Danville R.
& Electric Co. 114 Va. 382, 43 L.RA.(N.S.)
463, 76 S. E. 913; Norfolk & P. Traction Co.
V. Norfolk, 116 Va. 169, 78 S. E. 545, Ann.
Gas. 1914D, 1067; State ex rel. Jacksonville
V. Jacksonville Street R. Co. 29 Fla. 590, 10
So. 590; Columbus Street R. &. Light Co.
V. Colximbus, 43 Ind. App. 265, 86 N. E. 88;
Conway ▼. Rochester, 157 N. Y. 33, 51 N. E.
395; Mechanicville v. Stillwater &, M. Street
R Co. 35 Misc. 513, 71 N. Y. Supp. 1102;
Binninger ▼. New York, 177 N. Y. 199, 69
N. E. 300; State ex rel. Roundtree ▼. Gib-
son County, 80 Ind. 478, 41 Am. Rep. 821.
To give § 3 of the franchise of 1892 the
meaning contended for by plaintiff in error
would render its inclusion in the franchise
of no value whatever, for the reason that it
is a common -law duty of a street railway
company to make such repairs irrespective
of ordinance or franchise provision to that
effect.
Reading ▼. United Traction Co. 215 Pa.
250, 64 Atl. 446, 7 Ann. Cas. 380; Reading
T. United Traction Co. 202 Pa. 571, 52 Atl.
106; Memphis, P. P. & Belt R. Co. v. State,
87 Tenn. 746, 11 S. W. 946; Harrisburg v.
Harrisburg Pass. R. Co. 1 Pearson (Pa.)
298; atizens' Street R. Co. v. Ballard, 22
Ind. App. 151, 52 N. £. 729; Western Pav-
•0 li. ed.
ing & Supply Co. ▼. Citizens' Street R. Cc».
128 Ind. 535, 10 L.RA. 770, 25 Am. St. Rep.
462, 26 N. E. 188, 28 N. £. 88; Montgomery
Street R. Co. v. Smith, 146 Ala. 316, 39 So.
757.
The Pennsylvania decisions go further
and hold that this common-law duty re-
quires the railway company to pave or re-
pave the railway zone when it is in fact out
of repair and the city improves the rest of
the street.
Reading v. United Traction Co. 215 Pa.
255, 64 Atl. 446, 7 Ann. Cas. 380; Reading
V. United Traction Co. 202 Pa. 573, 52 Atl.
106; Gallagher v. Philadelphia Rapid Tran-
sit Co. 51 Pa. Super. Ct. 488; McKeesport
V. Pittsburg, M. ft C. R. Co. 55 Pa. Super.
Ct. 47.
The provisions of the earlier franchise
granted by the city to a differtot party
from the grantee of the franchise of 1892
are not to be considered in determining the
meaning of the provisions of the later fran-
chise.
Oberbeck ▼. Sportsman's Park ft Club
Asso. 17 Mo. App. 310; Charles River
Bridge v. Warren Bridge, 11 Pet. 420, 543,
9 L. ed. 773, 822.
The street railway company has not met
its obligations under the franchise.
Brooklyn v. Brooklyn City R. Co. 47 N.
Y. 475, 7 Am. Rep. 469; Binninger v. New
York, 177 N. Y. 199, 69 N. E. 390; Phila-
delphia V. Ridge Ave. Pass. R. Co. 143 Pa.
472, 22 Atl. 695.
The city acted within its authority under
the power expressly reserved in the fran-
chise to make reasonable rules and regula-
tions respecting the streets and highways,
and consequently the ordinance of June 11,
1910, does not impair the obligation of the
contract, nor take the property of the com-
pany without due process of law.
Detroit v. Detroit Citizens' Street R. C6.
184 U. S. 368, 397, 46 L. ed. 502, 611, 22
Sup. Ct. Rep. 410.
The enactment of the ordinance of June
11, 1910, under the reservation contained
in the franchise and statute, invaded no
contract rights of the plaintiff in error, but
dealt only with matters which are the sub-
ject of police regulation.
Chicago, B. ft Q. R. Co. v. Illinois, 200
U. S. 561, 592, 50 L. ed. 596, 600, 26 Sup.
Ct. Rep. 341, 4 Ann. Cas. 1175; Chicago ft
A. R. Co. V. Tranbarger, 238 U. S. 67, 77»
59 L. ed. 1204, 1211, 35 Sup. Ct. Rep. 678;
Atlantic Coast Line R. Co. ▼. Goldsboro,
232 U. S. 548, 561, 58 L. ed. 721, 727, 34
Sup. Ct. Rep. 364; Detroit ▼. Detroit United
R. Co. 172 Mich. 496, 138 N. W. 215; St.
Helena v. San Francisco, N. ft C. R. Co. 24
Cal. App. 71, 140 Pac. 600, 605; Fair Haven
ft W. R. Co. T. New Haven, 75 Coiudl. AA^
46»-461
SUPREME COURT OF THE UNITED STATES.
Oct. Xbm,
63 Ail. 960, 203 U. S. 379, 51 L. ed. 237, 27
Sup. Gt. Rep. 74; MisBouri P. R. Go. t.
Omaha, 236 U. S. 121, 127, 59 L. ed. 157,
160, 35 Sup. Ct. Rep. 82; Chicago, B. & Q.
R. Co. v. Nebraska, 170 U. S. 57, 42 L. ed.
048, 18 Sup. Ct. Rep. 513; Chicago, M. &
St. P. R. Co. Y. Minneapolis, 232 U. S. 430,
58 L. ed. 671, 34 Sup. Ct. Rep. 400; Balti-
more T. Baltimore Trust & 0. Co. 166 U. S.
673, 684, 41 L. ed. 1160, 1164, 17 Sup. Ct.
Rep. 696.
[450] Mr. Justice Holmes delivered the
opinion of the court:
This is a suit brought by the city of Madi-
son to recover the cost of asphalt pavement
between the rails of the defendant's track
and 1 foot on the outside of them, for a
certain distance along University avenue in
that city. The declaration, after stating the
ordinances under which the defendant and
its predecessors had built and operated the
street railway concerned, sets out an ordi-
nance of June 11, 1910, requiring the de-
fendant, under a penalty, to do the work
above described. The defendant answered
that to make it pay the cost would deprive
it of its property and contract rights under
its franchise without due process of law and
the equal protection of the laws, contrary
to the Constitution of the United States.
The judge before whom the case was tried
found that the designated space had become
so out of repair as to interfere with travel,
and that the crushed stone then u^ed was
not a proper pavement, and would inter-
fere with the asphalt laid down by the city,
and gave judgment for the plaintiff. The
supreme court accepted the defendant's po-
sition, that its charter was a contract,
but met the argument based upon it by a
construction that warranted the later ordi-
nance, and judgment for the plaintiff was
affirmed. 156 Wis. 352, L.R.A.— , — , 146
N. W. 492.
As our opinion is that the judgment
should be affirmed, we shall not dwell upon
a motion to dismiss made by the defendant
in error. The court expressly upheld the
later ordinance, and whether that ordinance
can be upheld without impairing the obliga-
tiqn of the admitted contract of the charter
is a Federal question none the lens that tlie
answer depends upon the construction of the
instrument. Even if the opinion below be
vead as asserting that the duty existed by
the charter alone, irrespective of the later
ordinance, still as the ordinance was set up
and relied upon in the declaration and was
present impelling, [460] so far as might be,
the decision reached, and was given effect
by that decision, we should not dismiss the
case. Terre Haute & I. R. Co. v. Indiana,
jn4 U. 8. 579, 48 L. ed. 1124, 24 Sup. Ct.
T4M
Rep. 767. We lay on one side a laggcation
that runs counter to the opinion below and
to common sense, that the later ordinance,
when it requires the defendant to do the
work under a penalty of not exceeding $50 a
day, is not a legislative command, but mere-
ly a notice to perform a duty already in
force.
Up to 1892 the defendant's franchise was
held under a charter that, after providing
for the disposition to be made of snow on
the track, continued: "And said company
shall keep the space between the rails and
for the distance of 1 foot on the outside side
of the rails in proper repair so as not to
interfere with travel over the same, and
shall keep the same in proper order as to
cleanliness at its own cost and expense.*'
The charter then went on to provide tliat
whenever a street in which were tracks
should be paved or macadamized, the rail-
way company should pave or macadamize
the above-mentioned space and keep it in-
equally good and corresponding condition.
In 1892, a new ordinance was passed author-
izing the company to build and operate a
road in the city and to use electricity as a
motive power upon its tracks then or there-
after authorized and constructed. It had
the above-quoted provision as to keeping the
space in repair, and the grant was made
''subject to such reasonable rules snd regu-
lations respecting such streets and high-
ways and operation of cars as the said coun-
cil may from time to time enact," but the
ordinance did not repeat the provision as
to paving. The supreme court held that the
requirement to keep the space in repair was
enough, and, by a diminished majority, that
the ordinance of 1910 fell within the reason-
able rules and regulations thai the company
was bound to obey.
If there had been no ordinance of 1910,
but the suit [461] had been brought sim-
ply upon the alleged duty under the charter
of 1892, and the city had recovered, as it
might have upon the present interpretation
of that instrument, t!.ere would have been
no question for this court. Fisher ▼. Kew
Orleans, 218 U. S. 438, 440, 54 L. ed. 1099,
1100, 31 Sup. Ct. Rep. 57. WhUe this con-
sideration has not required us to dismiss
the writ of error, it suggests reasons of
more than usual force for following that in-
terpretation. Althou^ we all agree that in
this class of cases it is our duty to see that
parties are not deprived of their oonatitu-
tional rights under the guise of oonatmc-
tion, still the mere fact that without the
state decision we might have hesitated is
not enough to lead us to overrule that deci-
sion upon a fairly doubtful point. Tampa
Waterworks Co. v. Tampa, 199 U. S. 241,
243, 244, 50 L. ed. 170, 173, 174, 26 Bap. Ct
140 V. S.
UU. CDYAHOQA BIVEB POWBB CO. t. AKBOK. 4«1, 4M
I«Pl n. W« ftppndftta tha Argnment to b« waten of k atremm, where tbe bill, Kftcr
dnwn from Um omlaslon of the [wring Kttlog out T»rioua paaaagea from the atata
dMiM In the charter of 1892, and tha poa- ■tatntM and Conatitution. and ftTerring that
aiUe rcMon for iU omi.iioo in the fact ^ eity ha* no oonatitutionij power to tak.
tt.t the experim^t of .ub.UUtin, e,^ ZTT^," CT^J^'^X"^:^
tiicity for bora, power then waa relatlyely uj[t 5„Vity doM Dot eontempUto inatitSt-
■ew. But it k abo poasible that the ing proceedlnsa againat the company, but
claoae waa deemed auperfluoua. If, indeed, intenda to take the Istter'a proper^ and
the omiaaloD ahould be oonaidered at right* without OMupenaatlon ; that it to
*IL Charlea River Bridge y. Warren building a dam and haa taken atepa that
Bridge, 11 Pet. 420, M3. 6*4, 9 U ad. 778, ""1 dwtroy the eompauj'a right*) that U
822, 823. It la to b« remembered that thi. »• !n«>i»«iti that the purpoae of the ordi-
_ . i , ,, > ... nance and Katute* referred to ia to appn>>
requirenwnt U a widespread one with regard j^j, ^^ j^„ ^^^ ^^^^^ without
to atreet railwiye. Reading t. United Trao- eompenaation : and that In ao aettng It t1».
tioa Co. 202 Fa. 571, 673, 62 Atl. 106, 21B Pa. l.tei the contract and due proc«aa of law
SSO, 26S, S4 Atl. 446, 7 Ann. Cas. 380. There elauaea of the Federal Conatitution.
are perenaaire declalona that tlie obligation l^or otter caM aa* Conrta, V. e. In Dlfaat
to keep the Epaee "in proper repair •« a* •»»•". Itras.)
not to interfere with travel over the aame" [Ho. 46S.]
•xtenda to what Waa demanded of the da-
fmdant in thia caae. New York v. Harlem Argued October 20, 1910. Decided Hard
Bridge, M. k F. R. Co. 186 N. Y. 304, 78 20, 1916.
K. E. 1072; SUte ex rel. Milwaukee t. MII-
tvaukee Electric R. A Light Co. 161 Wla i PPEAL from the Diatrlct Court of tha
020, 139 N. W. 396, Ann. Cae 1914B, 123. j\. United SUtea for the Northern DiatrM
TThe reaaona for construing auch ordinancea of Ohio to review a decree dlamiaaing, for
■trietly in favor of the public are reiterated want of juriadictlon, a bill by a bydroeleo*
in the present caae. Knoxville Water Co. trie power company to prevent a munialpal*
v. Knoxville, ZOO U. 8. 22, 33, 34, GO L. ed. ity from appropriating the watera of ft
353, 350, 20 Sup. Ct. Rep. 224 1 Blslr *. itream. Reversed
Chicago, 201 U. S. 400, 472, 473. GO L. ed. See same caae below, 210 Fed. 624.
«01, S3I, 832, 26 Sup. a. Rep. 427. Both of The fact* are aUted in the opinion.
"tho grounda taken by tha court below get
Carroll O, Wall«r argued the
-wmc support from [482] decisions of this ^„^; ,„j ^jy, j,;^, ^^^ H EtUs, R.
*'*""^;o,?,"i^V,"^ir^«T^''T™''^V Golden Donaldson, and Charlea A. Collin.
-•■«», 203 U. B. 378, 389, 51 L. ed 287, 241, .,., . k.i.# «„. - ii.„*
27 Sup. Ct. Hep. 74 ; Delrolt v. Detroit Citi: ""^ * '*'"' '" "PP"""*-
xens' Street H. Co. 184 U. S. 388, 397, 48 Mr. Jphn L. Wrtto alao argued tha
r., ed. a»2, 611, 22 Sup. Ct. Rep. 410. In cauae for appellant.
Yiaw of the finding that the pavement need-
«il repair and that crushed atone would not Mr. Charlea A. Collin also filed a separata
bave been suitable for the purpoae and brief for appellant:
Would have been additionall* unsuitable The claim that the action of the appellee
when the rest of the street waa paved with in diverting the waUr* of the Cuyahoga
«aphalt, wa do not feel prepared to declare river la the action of the atate, and, II or-
th« judgment wrong. ried out, would violate ^he proTiaiona of tbt
Judgment afBrmed. 14th Amendment to the Constitution of
the United States by stalling the property
of the appellant without due proceaa of law,
OIYAHOOA RIVEE POWER COMPANY, """"S ,'/S'"' '1^"°^ ^ ^ m
. . ' Consolidated Tump. Co, v. Norfolk ft O.
%• ■' V. B. Co. 228 U. S. 826, 330, 57 L. ed. 857,
CITY OF AKRON ^^^' ^ ^"P' ^- ^°P' ^^^'- Chicago, B. A Q.
R. Co. V. Chicago. 166 U. S. 226. 41 L. ed.
(Sea a a Reporter'* ed. 462-464.) 079, 17 Sup. a. Hep. 681; Appleby v. Buf-
falo. 221 U. S. 524, G5 L. ed. 838, 31 Sup.
Fedaa«l conrM — inriadlction — Fed- Ct. Rep. 609; United States v. Keynolda,
erml qnestton. 236 U. S. 133, 140, G9 L. ed. 102. 168. 36
A Federal diatrlct court has Juris- Sup. Ct. Rep. 86; McCabe v. Atchison, T. A
'^^ ^'^* ^""'?..°' fl""°»^'P "' S. F. H. Co. 235 U. S. 151, 160, 60 L. ed.
!L-^„iT^Jl**.^,;^it^; ^™ "». "3. 35 S"P- «■ R«P- M; Yick Wo v.
s^a^''S£:'^mp»Txii5 X •^°p'^-- "« V r- h'^'- '"■ ^-
mount righU through the enforcement of 22^, 6 Sup. Ct. Rep. 1064; Home Teleph. A
an ordlnaaoa for tha appropriation of the leleg. Co. v. Los Angelea, 227 D. S.278,&n,
•t Zb ed. 1^%
463-464
SUPKSMB COURT OF THB UKITSD STATEa
Oor. Tbbic»
288, 57 L. ed. 510, 515, 33 Sup. Ct Bep. 312;
Baymond ▼. Qiicago Union Tractum Co. 207
U. S. 20, 35, 52 L. ed. 78, 87, 28 Sup. Ct
Rep. 7, 12 Amh Cas. 757; £x parte Toung,
209 U. S. 123, 155, 52 L. ed. 714, 727, 13
LJLA.(N.S.) 932, 28 Sup. Ct Rep. 441, 14
Ann. Cas. 764; Portland R. Light ft P. Co.
T. Portland, 210 Fed. 669.
The bin having presented a Federal <iue8-
tion, the district court was under a duty to
take jurisdiction of the case and decide all
questions in the case, regardless of Which
way those questions should ultimately be
determined.
SiHr T. LouisviUe ft N. R. Co. 213 U. 6.
175, 191, 53 L. ed. 753, 757, 29 Sup. Ct. Rep.
451; Willcox v. Consolidated Gas Co. 212
U. S. 19, 39, 40, 53 L. ed. 382, 394, 395, 4
L.RJL(N.S.) 1134, 29 Sup. Ct. Rep. 192, 15
Ann. Cas. 1034; Mercantile Trust ft D. Co.
T. Columbus, 203 U. 8. 311, 319, 322, 51 L.
ed. 198, 202, 203, 27 Sup. Ct. Rep. 83; Knox-
ville Water Co. ▼. Knoxville, 200 U. 8. 22,
32, 50 L. ed. 353, 358, 26 Sup. Ct. Rep. 224;
Vicksburg Waterworks Co. ▼. Vicksburg,
185 U. S. 65, 82, 46 L. ed. 808, 815, 22 Sup.
Ct. Rep. 58^; The Fair ▼. Kohler Die ft
Specialty Co. 228 U. S. 22, 57 L. ed. 716, 33
Sup. Ct. Rep. 410.
Mr. Charles F. Cboate, Jr., argued the
cause, and, with Mr. Jonathan Taylor, filed
a brief for appellee:
The bill of complaint is the sole source
to which the court may look for jurisdic-
tional allegations.
Memphis ▼. Cumberland Teleph, ft Teleg.
Co. 218 U. S. 624, 54 L. ed. 1185, 31 Sup.
Ct. Rep. 115; Arkansas ▼. Kansas ft T. Coal
Co. 183 U. S. 185, 188, 46 L. ed. 144, 146, 22
Sup. Ct. Rep. 47; Bienville Water Supply
Co. V. MobUe, 175 U. S. 109, 44 L. ed. 92,
20 Sup. Ct. Rep. 40.
Only those allegations which make up the
plaintiff's case, and 'which are not mere an-
ticipations of the defense to be offered by
the defendant, may be looked to.
Florida, C. ft P. R. Co. v. BeU, 176 U. S.
321, 44 L. ed. 486, 20 Sup. Ct. Rep. 399;
Metcalf T. Watertown, 128 U. S. 586, 32 L.
ed. 543, 9 Sup. Ct. Rep. 173; Tennessee v.
Union ft Planters' Bank, 152 U. S. 454, 38
L. ed. 511, 14 Sup. Ct. Rep. 654.
The allegations of the bill are, in brief,
that the state statutes under which the
plaintiff purports to act have been repealed,
and that therefore the defendant is acting
without any authority whatever. On this
ground alone the district court was justi-
fied in refusing to entertain jurisdiction.
Barney y. New York, 193 U. S. 430, 48
L. ad. 737, 24 Sup. Ct. Rep. 502.
744
Mr. Justice 'Holmes delivered the opin-
ion of the court:
This is a bill in equity, brought by an
Ohio corporation against a city of Ohio, to
prevent the latter from appropriating the
waters of the Cuyahoga river and its tribu-
taries above a certain point. It alleges that
the plaintiff was incorporated under the laws
of Ohio for the purpose of generating hydro-
electric power by means of dams and canals
upon the said river, and of disposing of the
same; that it has adopted surveys, maps,
plans, and profiles to that end, has entered
upon, located, and defined the property
rights required, has instituted condemnaticHt
proceedings to acquire a part at least of
such property, has sold bonds and qpent large
sums and has gained a paramount right to
the water and necessary land. The bill also
alleges that the city has passed an ordinance
appropriating the water, and directing its
solicitor to take proceedings in court
for the assessment of the compensation to be
paid. The district court dismissed the bill
for want of jurisdiction on the ground tliat
it presented no Federal question, because, if
the plaintiff had any rights, they could be
appropriated only by paying for them in
pursuance of the verdict of a jury and a
judgment of a court. It made the statutory
certificate, and the case comes here by
direct appeal. 210 Fed. 524.
It appears to us that sufficient attention
was not paid to other allegations of the bilL
After setting out various passages from the
statutes and Constitution of Ohio, and con-
cluding that the city has no constitutional
power to take the property and franchises
that the plaintiff is alleged to own, or any
property for a water supply, it alleges that
the city does not intend to institute any
proceedings against the plaintiff, but in-
tends to take its property [464] and rights
without compensation; that it is building a
dam and has taken steps that will destroy
the plaintiff's rights; that it is insolvent;
that the purpose of the ordinance and cer-
tain statutes referred to is to appropriate
and destroy those rights without compensa-
tion; that the defendant purports to be act-
ing imder the ordinance, and that in so act-
ing it violates art. L, § 10, and the 14th
Amendment • of the Constitution of the
United States. It is established that such
action is to be regarded as the action of the
state. Raymond v. Chicago Union Traction
Co. 207 U. S. 20, 52 L. ed. 78, 28 Sup. Ct
Rep. 7, 12 Ann. Cas. 757; Home Teleph. ft
Teleg. Co. V. Los Angeles, 227 U. S. 278, 57
L. ed. 510, 33 Sup. Ct. Rep. 312. Whether
the plaintiff has any rights that the city is
bound to respect can be decided only by
taking jurisdiction of the case; and the
same is true of other questions raised.
240 U. fiU
191S.
GREAT NORTHERN R. CO. ▼. KNAPP.
464
Therefore it will be necessary for the Dis
trict Court to deal with the merits, and to
that end the decree must be reverted.
Decree reversed.
GREAT NORTHERN RAILWAY COM-
PANY, Plff. In Err.,
▼.
O. B. KNAPP.
(See S. C. Reporter's ed. 464^66.)
Error to state court — following ded-
slon below — qaestlon for J[arjr.
Only in case of palpable error should
the Federal Supreme Court disturb, on writ
of error to a state court, a judgment in an
action brought under the Federal emptojert*
liability act of April 22, 1908 (35 Stat, at
L. 65, chap. 140, Comp. Stat. 1913, § 8657),
which presents no question as to the inter*
pretation of any provision of that statute,
or as to the definition of le^l principle in
its application, but simply mvolves an ap-
preciation of all the facts and admissible
inferences in the particular case for the
purpose of determining whether there were
matters for the consideration of the jury,
the state courts, trial and appellate, hav-
ing held that there were.
[For other casei, see Appeal end Error, VIII.
m, 6, in Digest Sup. Ct. 1908.]
[No. 690.]
Argued February 24, 1916. Decided March
20, 1916.
Nor. — On the constitutionality, applica-
tion, and effect of the Federal employers'
liability act — see notes to Lamphere v. Ore-
gon R. ft Nav. Co. 47 LJl.A.(N.S.) 88, and
Seaboard Air Line R. Co. ▼. Horton, L.RJ^.
1915C, 47.
On the general subject of writs of error
from the United States Supreme Court to
state courts — see notes to Martin ▼. Hun-
ter, 4 L. ed. U. S. 97; Hamblin v. Western
Land Co. 37 L. ed. U. S. 267; Re Buchanan,
39 L. ed. U. S. 884, and Kipley v. Illinois,
42 L. ed. U. S. 998.
On what adjudications of state courts
can be brought up for review in the Su-
preme Court of the United States by writ
of error to those ^urts— see note to Apex
Transp. Co. y. Oarbade, 62 L.R.A. 513.
On how and when questions must be
raised and decided in a state court in order
to make a case for a writ of error from
the Supreme Court of the United States —
see note to Mutual L. Lis. Co. v. McGrew,
63 L.RJ^. 33.
On what questions the Federal Supreme
Court will consider in reviewing the judg-
ments of state courts— see note to Missouri
«x rel. Hill V. Dockery, 63 L.R.A. 571.
Jlrror to state court in cases arising under
the Federal employers' liability act.
A contention in a state court in an action
based solely upon a Federal statute, like
the employer's liability act, that there was
no evidence tending to show liability under
that statute, presents a Federal question
which, when denied, will support a writ of
error from the Federal Supreme Court to
the highest state court. St. Louis, I. M.
& S. R. Co. ▼. McWhirter, 229 U. S. 265, 57
L. ed. 1179, 33 Sup. Ct. Rep. 858.
Federal questions which will give juris-
diction to the Federal Supreme Court of a
writ of error to a state court in a case
arising under the Federal employers' liabil-
ity act of April 22, 1908, are presented by
contentions that the trial court erred in
refusing to instruct a verdict on the ground
that there was no evidence tending to show
either negligeoioe or that the carrier or the
• 0 li. 6d.
deceased, at the time of the particular
transaction from which the injury arose,
was engaged in interstate commerce, and
in further refusing to instruct the jury that
a state statute limiting the amount of re-
covery was controlling. Chicago, R. I. & P.
R. Co. V. Devine, 239 U. S. 52, ante, 140, 36
Sup. Ct. Rep. 27.
A decision of a state court adverse to
plaintiff in error's contention that, by the
true construction of the Federal employers'
liability and safety appliance acts, it could
rely upon the common-law defense of as-
sumption of risk, is reviewable in the Fed-
eral Supreme Court. Southern R. Co. ▼.
Crockett, 234 U. S. 725, 68 L. ed. 1564, 34
Sup. Ct. Rep. 897.
A writ of error will lie from the Federal
Supreme Court to review a decision of the
highest state court, which sustained the
action of the trial court in overruling cer-
tain contentions made by the plaintiff in
error, asserting a construction of the Fed-
eral employers' liability act of April 22,
1908, which, if acceded to, would presum-
ably have produced a verdict in favor of
plaintiff in error, and consequent immu-
nity from the action. Seaboard Air Line R.
Co. ▼. Horton, 233 U. S. 492, 58 L. ed. 1062,
L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, 8 N.
C. C. A. 834, Ann. Cas. 1915B, 475.
The contentions of the defendant railway
company, sued in the state courts under a
state statute, for the death of an em-
ployee, that the injuries which caused the
death were received while the company was
engaged, and while he was employed by it,
in interstate commerce; that its liability
for his death was exclusively regulated and
controlled by the employers' liability act
of April 22, 1908, and that, if liable, it was
liable only to his personal representatives,
and not to the plaintiffs, — present Federal
questions which, when decided by the state
court, will support a writ of error from
the Federal Supreme Court. St. Louis, S. F.
A T. R. Co. y. Scale, 229 U. 8. 156, 67 L.
ed. 1129, 83 Sup. Ct Rep. 651, Ann. Gas.
1914C, 156.
Whether or not the two years' limita-
tion prescribed by the employers' UA.bViSAr|
SUPREME COURT OF THE UNITED STATES.
Oct. Tesm»
IN ERROR to the Supreme Court of the
State of Minnesota to review a judgment
which, on a second appeal, affirmed a judg-
ment of the District Court for Meeker Coun-
ty, in that state, in favor of plaintiff in an
action under the Federal employers' liabil-
ity act. Affirmed.
See same case below, on first appeal, 130
Minn. 405, 153 N. W. 848.
The facts are stated in the opinion.
Mr. A. li. Janes argued the cause, and,
with Messrs. M. I*. Countryman and E. C.
Lindley, filed a brief for plaintiff in error:
The master is not bound to see that his
instrumentalities are absolutely safe and
suitable, nor to see that they are as safe
as human skill and foresight can make
them, nor to provide appliances which maka
accidents impossible. He fulfils hia duty to
his employee when he provides machinery
reasonably safe and suitable for the work
being done.
Washington ft O. R. Co. ▼. McDade, 135
U. S. 554, 34 L. ed. 235, 10 Sup. Ct Rep.
1044; Reese v. Philadelphia & R. R. Co. 239
U. S. 463, ante, 384, 36 Sup. Ct. Rep. 134.
Even assuming negligence in failing to
guard the set screws, such failure cannot be
held to be a proximate cause of the acci-
dent.
Mississippi River Logging Co. y. Schnei-
der, 20 C. C. A. 300, 34 U. S. App. 743, 74
Fed. 195.
The undisputed facts in this case present
a particularly clear case of assumption of
act of April 22, 1908, for actions under that
act, was in effect disregarded b^ permitting
the amendment of the oomplamt so as to
state distinctly that, at the time of the
injury, the defendant was engaged and the
plaintiff employed in interstate commerce,
is a Federal question subject to re-examina-
tion by writ of error to a state court, how-
ever much the allowance of the amendment
otherwise might have rested in discretion,
or have been a matter of local procedure.
Seaboard Air Line R. Co. v. Renn, 241 U. S.
291, post, 1006, 36 Sup. Ct. Rep. 567.
No question under the laws of the United
States which may be reviewed by writ of
error to a state court majr be based upon
the fact that the applicability of the Fed-
eral employers' liability act of April 22,
1908, first appeared from an amendment to
the declaration, which alleged the same
facts except that it did not allege, as did
the amendment, that plaintiff was injured
on an interstate trip. Kansas City West-
em R. Co. V. McAdow, 240 U. S. 51, ante,
520. 36 Sup. Ct. Rep. 252.
The contention in a suit in a state court
based upon the Federal employers' liability
act of April 22, 1908, that the jury was
misled concerning the doctrine of assump-
tion of risk b^ two statements by the court,
which, standing alone, may be confusing,
may have sufficient strength to serve as the
basis of a writ of error from the Federal
Supreme Court, although that court may
agree with the state court in thinking that
the statements in question could not have
produced a mistaken conception in the
minds of the jury, when considered with
the express instruction concerning the
doctrine of assumption of risk as applied
to the case at bar. Seaboard Air Line R.
Co. V. Padgett, 236 U. S. 668, 69 L. ed. 777,
35 Sup. Ct. Rep. 481.
The contention that a right or immunity
under the Federal employers' liability act
of April 22, 1908, was denied by the ruling
of a state court that a declaration stating
a good cause of action under that act could
serve as the basis of recovery under the
state law after first eliminatins the alle-
^tion that the injury occurred in inter-
740
I state commerce, which the proof demon-
strated was unwarranted, is so lacking in
merit as not to serve as the basis for a
writ of error from the Federal Supreme
Court to the state court. Wabash R. Co.
v.- Hayes, 234 U. S. 86, 58 L. ed. 1226, 34
Sup. Ct. Rep. 720, 6 N. C. C. A. 224.
The want of merit in the contention that
a state statute limiting the amount of re-
covery is controlling in a suit arising under
the Federal emplovers' liability act of April
22, 1908, is so well established by previous
decisions of the Federal Supreme Court con-
cerning the exclusive operation and effect
of that statute over the subject with whidi
it deals that the presence of such question
in the case will not prevent the Federal
Supreme Court from granting a motion to
affirm the judgment on a writ of error to
a state court. Chicago, R. I. & P. R. Co. v.
Devine, 239 U. S. 52, ante, 140, 36 Sup. Ct
Rep. 27.
The contention on a writ of error to a
state court in a case arising under the em-
ployers' liability act of April 22, 1908, that
the trial court should have instructed a ver-
dict in favor of the railway company, on
the ground that there was no evidence tend-
ing to show either negligence or that the
company or the deceased, at the time of the
particular transaction from which the in-
jury arose, was encaged in interstate com-
merce,— is too lackme in substance to pre-
vent the granting of a motion to aflarm,
where what is really involved is a mere dis-
pute concerning the weight of conflicting
tendencies of proof. Ibid.
The Federal question presented by the
contention that error was committed by the
state trial court in not takins from the
jury a case based upon the Federal em-
ployers' liability act of April 22, 1908, and
in n^ instructing the jury to render a
verdict for the defendant, upon the as-
sumption that there was no evidence suf-
ficient to justify the submission of the case
to the jury for its consideration, manifestly
cannot be said to be so frivolous as not to
serve as the basis of a writ of error from
the Federal Supreme Court, where ths
highest state court was divided on the ques*
240 U. 8.
1915.
GREAT NORTHERN R. 00. t. KNAPP.
risk as that defense existed at oommen law
and is interpreted by the Federal courts.
ChocUw, 0. & G. R. Co. y. McDade, 191
U. S. 64, 65, 68, 48 L. ed. 96, 99, 100, 24
Sup. Ct. Rep. 24, 15 Am. Ncj. Rep. 230;
Butler T. Frazee, 211 U. S. 459, 466, 53 L.
ed. 281, 285, 29 Sup. Ct. Rep. 136; Kirk-
patrick v. St. Louis A S. F. R. Co. 87 C. C.
A. 35, 159 Fed. 855; St. Louis Cordage Co.
V. Miller, 68 L.RA. 551, 61 C. C. A. 477,
126 Fed. 495, 15 Am. Neg. Rep. 476; Chi-
cago, B. & Q. R. Co. Y. Shalstrom, 45 L.Rji.
(N.8.) 387, 115 C. C. A. 515, 195 Fed. 725;
Brown ▼. Hitrits, 113 C. C. A. 84, 192 Fed.
528; Cudahy Packing Co. y. Marcan, 54
LJtA. 258, 45 0. C. A. 515, 106 Fed. 645,
9 Am. Neg. Rep. 670; Murphy v. American
Rubber Co. 159 Mass. 266, 34 N. B. 268;
Shea y. Kansas dtj, Ft. S. & M. R. Co. 76
Mo. App. 29; Mclntire y. White, 171 Mass.
170, 50 N. £. 524; Feely y. Pearson Cordage
Co. 161 Mass. 426, 37 N. E. 368; Stonrs y.
Michigan Starch Co. 126 Mich. 666, 86 N.
W. 134; Disano y. New England Steam
Brick Co. 20 R. L 452, 40 Atl. 7, 4 Am. Neg.
Rep. 219; Omaha Packing Co. y. Sanduski,
19 L.RJL(N.S.) 355, 84 C. C. A. 89, 155.
Fed. 807; Balle y. Detroit Leather Co. 73
Mich. 158, 41 N. W 216; Goudie y. Foster,
202 Mass. 226, 88 N. E. 663; Sayersnick y.
Schwarzschild ft S. Co. 141 Mo. App. 509,
125 S. W. 1192; Schultz y. Chicago, R. I. ft
P. R. Co. 145 Mo. App. 262, 129 S. W. 1051;
Wilson V. Chess ft W. Co. 117 K7. 567, 78
S. W. 453; M. Rumely Co. y. Myer, 40 Ind.
App. 460, 82 N. E. 97; Steffen y. Illinois
tion, and some members of the Federal Su-
preme Court consider that the proposition
affords adequate ground for reversal. Sea-
board Air Line R. Co. y. Padgett, supra.
A controUinff Federal question is neces-
sarily involved in a judgment of a state
court refusing to measure the liability of
the defendant interstate railway carrier in
an action by an employee to recover dam-
ages for personal injuries, by the employ-
ers' liability act of April 22, 1908, where,
although the pleadings contained no refer-
ence to that .act, evidence was admitted
over the plaintiff's objection which showed
that the train on which he was riding at
the time of the injury was engaged in in-
terstate commerce, whereupon the defend-
ant carrier insisted that the case was gov-
erned by that statute, and that its applica-
tion and enforcement would defeat any re-
covery. Toledo, St. L. ft W. R. Co. v. Slav-
in, 236 U. S. 454, 59 L. ed. 671, 35 Sup. Ct.
Rep. 306.
A decision of the highest court of a state,
which affirmed a judgment in favor of
plaintiff in an action in which the riffht to
relief was exclusively based upon the liours
of service act of March 4, 1007, and the
employers' liability act of April 22, 1908,
and in which, at the close of the evidence,
defendant had requested the court to in-
struct thenury to find in its favor, neces-
sarily involves an adverse determination
of a Federal question, «. e., defendant's
right to be shielded from responsibility un-
der those statutes when properly applied,
and a writ of error will therefore lie from
the Federal Supreme Court to the state
court. St. Louis, L M. ft S. R. Co. y. Mc-
Whirter, 229 U. a 265, 57 L. ed. 1179, 57
6up. Ct. Rep. 858.
A mere rulinff by the highest state court
fai a suit based solely upon the hours of
service act of March 4, 1907, and the em-
ployers' liability act of April 22, 1908, that
there was testimony tendmg to show negli-
gence, affords no basis for the contention
that the Judgment, which affirmed a judg-
ment below in favor of plaintiff, was rested
upon that ground, so as to deprive the Fed-
eral Supreme Court of Jurisdiction of a
60 li. ad.
writ of error to the state court, on the the-
ory that the case was decided on an inde-
pendent non-Federal ground. Ibid.
An immunity from liability under the
employers' liability act of April 22, 1908,
must be regarded as sufficiently asserted
for the purpose of sustaining a writ of
error from the Federal Supreme Court to
the highest court of a state, whether the
question was properly raised in the trial
court, aocordins to uie local practice, or
not, where suok immunity was expressly
claimed, and the highest court of the state
either decided or assumed that the record
sufficiently presented a question of Fed-
eral right, and decided asainst the party
asserting that right. North Carolina R. Co.
V. Zachary, 232 U. S. 248, 58 L. ed. 591,
34 Sup. Ct. Rep. 305, 9 N. C C. A. 109, Ann.
Cas. 1914C, 159.
An objection by an interstate railway
carrier, sued for the death of an employee,
that, if liable at all, it was, under the Fed-
eral employers' liability act of April 22,
1908, liable only to personal representatives
of the deceased, and not to the plaintiffs,
who were his widow and parents, was in-
terposed in time, so that the state courts
erred in overruling it, where the petition
stated a case under the state statute, and
the carrier, having called attention to the
Federal statute by special exceptions, and
having su^ested that the state statute
might not M the applicable one, made the
spMifie objection, grounded on the Federal
statute, after the evidence disclosed that
the real ease was controlled by such stat-
ute. St. Louis, 8. F. ft T. R. Co. y. Scale,
229 U. S. 156, 57 L. ed. 1129, 33 Sup. Ct.
Rep. 651, Ann. Gas. 1914C, 156.
The objection that a carrier sued for the
death of an employee was estopped to rely
upon the Federal employers' liability act
of April 22, 1908, by having pleaded con-
tributory negligence, and thus having re*
lied upon the state law, is not available to
defeat a writ of error from the Federal
Supreme Court to a state court, where the
latter court held that the Federal question
was sufficiently raised, and decided it. St.
Louis, L M. ft & R. Co. y. Hesterly, 228
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Steel Co. 140 HL App. 661; Swift & Co. ▼.
Campbell, 97 IlL App. 360; Scharenbroich v.
St. Cloud Fiber- Ware Co. 69 Minn. 116, 60
N. W. 1093; Kyner v. Portland Gold Min
Co. 106 C. C. A. 246, 184 Fed. 43; Haines v.
Spencer 92 C. C. A. 668, 167 Fed. 266; Glen-
mont Lumber Co. ▼. R07, 61 C. C. A. 606,
126 Fed. 624, 16 Am. Neg. Rep. 483; E. S.
Higginfl Carpet Co. v. CKeefe, 26 C. C. A.
220, 61 U. S. App. 74, 79 Fed. 900; Amer-
ican Dredging Co. ▼. Walls, 28 C. C. A. 441,
66 U. S. App. 460, 84 Fed. 428; Ford ▼. Mt.
Tom Sulphite Pulp Co. 172 Mass. 644, 48
L.RJl. 96, 62 N. E. 1066; Connelly y. Ham-
ilton Woolen Co. 163 Mass. 166, 39 N. E.
787 ; Brown v. Tabor Mill Co. 22 Wash. 317,
60 Pac. 1126; Archibald v. Cygolf Shoe Co.
186 Mass. 213, 71 N. E. 316; Labatt, Mast.
,& S. 2d ed. § 1313, p. 3687; Mississippi
River Logging Co. v. Schneider, 20 C C. A.
390, 34 U. S. App. 743, 74 Fed. 201.
The defense of assumption of risk was
applied by the supreme court of the state
of Minnesota to the facts of this case as
that court had modified this defense when
applied to cases arising under the safety
appliance acts of that state.
Snyder ▼. Waldorf Box Board Co. 110
Minn. 42, 124 N. W. 460; Glockner v. Hard-
wood Mfg. Co. 109 Minn. 32, 122 K. W.
466, 123 N. W. 807, 18 Ann. Cas. 130; Fal-
coner y. Sherwood, 118 Minn. 361, 136 N. W.
1039.
The supreme court of the state of Minne-
sota confused the defense of assumption
of risk and of contributory negligence.
U. S. 702, 67 L. ed. 1031, 33 Sup. Ct. Rep.
703.
A decision of a state court, having sub-
stantial support in the record, that the
pleadings and evidence in an action for
death against an interstate railway com-
pany demonstrate that the deceased was in
the employ of an express company rather
than of the railway company, and that
therefore the defendant's liability was not
controlled by the Federal employers' lia-
bility act of April 22, 1908, involves no
denial of any asserted Fedend right, and
is not reviewable in the Federal Supreme
Court. Missouri, K. & T. R. Co. v. West,
232 U. S. 682, 68 L. ed. 796, 34 Sup. Ct.
Rep. 471.
The contention that an agreement by a
railway employee that his acceptance of
''benefits for injury" from a railway com-
pany's relief department shall release the
company from all liability for damages
growing out of such injury, although it may
be invalid as to such company under the
Federal employers' liability act of April
22, 1008, § 6, operates to discharge another
railway company as a joint tort feasor from
its common -law liability, presents no Fed-
eral question which may be reviewed by the
Federal Supreme Court on writ of error to
a state court, where the latter court held
that the release, being invalid as to the em-
ploying company, was not available as a
defense to the other company. Chicago &
A. R. Co. ▼. Wagner, 239 U. S. 462, ante,
379, 36 Sup. Ct. Rep. 136.
Questions of general law, raised in an
action under the Federal employers' lia-
bility act of April 22, 1908, which involve
no construction of the Federal statute, and
neither directly nor indirectly affect any
Federal right, will not be reviewed on a
writ of exroT from the Federal Supreme
Court to a state court. Central Vermont
R. Co. ▼. White, 238 U. S. 607, 69 L. ed.
1433, 36 Sup. Ct. Rep. 866, Ann. Cas. 1916B,
262, 9 N. C. C. A. 266.
The Federal Supreme Court, when re-
viewing a judgment of a state court in an
action in which the riffht to recover was
based upon the Federal employers' liabil-
74S
ity act of April 22, 1908, cannot consider
merely incidental questions, not Federal in
character, «. e., those which do not in their
essence involve the existence of the right
in the plaintifif to recover under the Federal
statute to which his recourse by the plead-
ings was exclusively confined, or the con-
verse, the right of the defendant to be
shielded from responsibility under that
statute, because, when properly applied, no
liability on his part from the statute
would result. SeacM>ard Air Line R. Co. v.
Padgett, 236 U. S. 668, 69 L. ed. 777, 35
Sup. Ct. Rep. 481.
Questions in a suit under the Federal
employers' liability act of April 22, 1908,
which relate to matters of pleading, to the
admissibility of evidence, to the sufficiency
of exceptions, and to various rulings of the
trial courts, involving no construction of
the Federal statute, cannot be considered
on a writ of error from the Federal Su-
preme Court to a state court. Central Ver-
mont R. Co. V. White, supra.
The excessiveness of an award for pain
and sufi'ering of a deceased railway em-
ployee in an action brought under tfoe em-
ployers' liability act of April 22, 1908, as
amended bv the act of April 6, 1910, is a
question of fact which is not open to re-
vision in the Federal Supreme Court on
writ of error to a state court. St. Louis,
I. M. & S. R. Co. V. Craft, 237 U. S. 648.
69 L. ed. 1160, 36 Sup. Ct. Rep. 704, 9
N. C. C. A. 764.
The question whether the declaration in
an action against a railway company for
the wrongful killing of an employee per-
mitted a recovery at common law is one of
local law in the absence of any showing
bringing the injury within the Federal' em-
ployers^ liability act of April 22, 1908, and
is, therefore, not open for review in the
Federal Supreme Court on writ of error to
a state court. Osborne v. Gray, 241 U. S.
16, post, 86.5, 36 Sup. Ct. Rep. 486.
The ruling of the highest court of a state
that the failure of the original declaration
in a suit under the Federal employers' lia-
biUty act of AprU 22, 1908, to show that
the employee was engaged in interstate
240 U. S.
1916.
GREAT NORTHERN R, CO. v. KNAPP.
Waflhingion & G. R. Co. v. McDade, 135
U. S. 554, 34 L. ed. 235, 10 Sup. Ct. Rep.
1044; St. Louis Cordage Co. v. Miller, 63
L.R.A. 651, 61 a C. A. 477, 126 Fed. 495,
15 Am. Neg. Rep. 476; Seaboard Air Line
R. Co. y. Horton, 233 U. S. 402. 58 L. ed.
1062, L.RA.1915C, 1, 34 Sup. Ct. Rep. 635,
Ann. Caa. 1015B, 475, 8 N. C. C. A. 834;
Chicago, B. & Q. R. Co. v. Shalstrom, 45
L.RJ^.(N.S.) 387, 116 C. C. A. 515, 195 Ked.
725.
Plaintiff in error in this case was entitled
to a directed verdict.
Chicago, B. & Q. R. Co. v. Shalstrom, 45
X.RJ^.(N.S.) 389, 115 C. C. A. 515, 195 Fed.
730; Cudahy Packing Co. v. Marcan, 64
I.JLA. 258, 45 C. C. A. 515, 106 Fed. 648,
9 Am. Neg. Rep. 670; Morse v. Minneapolis
& St. L. R. Co. 30 Minn. 465, 16 N. W. 358;
Manore v. Kilgore-Peteler Co. 107 Minn.
347, 120 N. W. 340; Mattson t. Chicago, St.
P. M. & 0. R. Co. 103 Minn. 239, 114 N. W.
759; OT^eil v. Great Northern R, Co. 101
Minn. 467, 112 N. W. 625.
Mr. Tom Davis argued the cause, and,
with Messrs. Ernest A. Michel and John I.
Davis, filed a brief for defendant in error:
Assumption of risk is a waiver of defects
and dangers by an employee, and a consent
under an express or implied contract to as-
sume them, whether he is careful or negli-
gent in his conduct; the doctrine being
based on the maxim Volenti non fit injuria.
Miller v. White Bronze Monument Co.
commerce at the time of his injury, was
cured by a charge in the plea and ad mis*
Bion in the replication that he was so em-
ployed, is binding on the Federal Supreme
Court on writ of error to the state court.
Central Vermont R. Co. v. White, supra.
The objection that an instruction, in an
action under the Federal employers' liabil-
ity act of April 22, 1908, on the assumption
of risk, did not state as an element the
appreciation by the employee of the danger
of the situation as necessary to his assump-
tion of risk, is not available on , writ of
error from the Federal Supreme Court to
a state court, where the objection made at
the trial was the general one that the in-
struction did not correctly state the com-
mon-law doctrine of assumption of risk,
and in the state court of last resort the at-
tack was based upon the sole ground that
assumption of risk was not available as a
defense under the Federal statute. Jacobs
V. Southern R. Co. 241 U. S. 229, post, 970,
36 Sup. Ct. Rep. 588.
Whether state or congressional legisla-
tion governs a personal-injury action
brought by an employee against an electric
railway company need not be determined
by the Federal Supreme Court on writ of
error to a state court to review a judgment
in favor of the employee, where the state
and Federal statutes are so similar that the
railway company's liabilitv does not appear
to be affected by the Question which of them
governed the case. Kansas City Western
R. Co. V. McAdow, 240 U. S. 51, ante, 520,
36 Sup. Ct. Rep. 252.
The refusal of a state trial court, sus-
tained by the state court of last resort, to
take from the jury an action imder the Fed-
eral employers' liability act of April 22,
1908, by directing a verdict for defendant,
will not be disturbed by the Federal Su-
preme Court on writ of error unless clearly
erroneous. Louisville & N. R. Co. v. Stew-
art, 241 U. S. 261, post, 989, 36 Sup. Ct. Rep.
686.
Without a clear conviction of error, the
Federal Supreme Court will not reverse, on
writ of error to a atate court, the ruling
of both courts below that there was evi-
•0 li. ed.
dence tending to show that the "next of
kin," for whose benefit an action under the
Federal employers' liability act of April 22,
1908, as amended by the act of April 5,
1910, was brought to recover damages for
the negligent killing of their intestate by
his interstate railway employer, were so
dependent on the deceased as to justify a
recovery imder the Federal statute. Sea-
board Air Line R. Co. v. Kenney, 240 U. 8.
489, post, 762, 36 Sup. Ct. Rep. 458.
The concurrent determination of the state
trial and appellate courts that the evidence
showed that a deceased railway employee,
for whose death an action was brought
under the Federal employers' liability act
of April 22, 1908, as amended by the act of
April 5, 1910, assumed the risk of danger
which resulted in his injury and death, will
not be disturbed by the Federal Supreme
Court on writ of error unless clearly
erroneous. Baugham v. New York, P. &
N. R. Co. 241 U. S. 237, post, 977, 36 Sup.
Ct. Rep. 592.
A judgment under the Federal employers'
liability act of April 22, 1908, as amended
by the act of April 6, 1910, which includes a
recovery both for the decedent's conscious
pain and suffering and for the pecuniary
loss sustained by the relatives or next of
kin for whose benefit the action was
brought, will not be reversed by the Federal
Supreme Court on writ of error to a state
court because the jury was not required to
specify in its verdict the amount awarded
on account of each distinct liability, where
the verdict seems in harmony with local
practice, and has been approved by the
courts below. E^ansas City Southern R. Co.
V. Leslie, 238 U. S. 599, 59 L. ed. 1478, 35
Sup. Ct. Rep. 844.
Reversible error is committed by the high-
est court of a state in ruling that evidence
of contributory negligence in an action
under the Federal employers' liability act
of April 22, 1908, as amended by the act of
April 5, 1910, which it found that the trial
court had rejected for a wrong reason, vig.,
because contributory negligence was not
pleaded, was nevertheless properly excluded
because it was not offerea lot ^<^ «^\^^
1V^
SUPR£ME COURT OF THE UNITED STATES.
Got. TtMM,
141 Iowa, 701, 118 N. W. 618, 18 Ann. Gas.
957; Words & Phrases, 2d series, 324-327.
TIm general definition as given by most
of the courts is that assumption of risk
rests on contract, either express or implied.
However, some of the courts hold that as-
sumption of risk is based, not upon the
contract, but on the principle expressed by
the maxim Volenti non fit injuria.
Rase Y. Minneapolis, St. P. & S. Ste. M.
R. Co. 107 Minn. 260, 21 L.RA.(N.S.). 138,
120 N. W. 360.
Hie maxim Volenti non fit injuria means
that he who consents cannot receive an in-
jury.
Rigsby ▼. Oil Well Supply Co. 116 Mo.
App. 207, 91 S. W. 460; 4 Words & Phrases,
2d ed. 1200.
Whether assumption of risk is based on
the contract, voluntary or implied, as most
of the courts seem to hold, or whether it is
based on the maxim Volenti non fit injuria,
the deducible rule, from all the decisions,
seems to be that assumption of risk is the
▼oluntary contract or consent of a servant
to take the chances of the known or obvious
dangers of his employment, and to relieve
his master from liability therefor. And the
meaning of the doctrine is that the em-
ployee has waived his right to hold his em-
ployer responsible for the risk.
Wood V. Victor Mfg. Co. 66 S. C. 482, 45
S. £. 81, 14 Am. Neg. Rep. 620; 1 Words k
Phrases, 2d series, 328.
And, in assumption of risk there is an
election deliberately to assume the risk of
injury or danger likely to result, in the
ordinary course of employment.
Yaioo A M. Valley R. Co. v. Wright, 235
U. 8. 876, 50 L. ed. 277, 35 Sup. Ct. Rep.
130.
The distinction between assumption of
risk and contributory negligence has been
pointed out in a large number of cases,
and the two defenses are entirely separate
and distinct.
Rase ▼. Minneapolis, St P. ft S. Ste. M
R. Co. 107 Minn. 260, 21 L.RJL(N.S.) 138,
120 N. W. 360; Hooper v. Columbia & G.
R. Co. 21 S. C. 547, 63 Am. Rep. 691; Wood
T. Victor Mfg. Co. 66 S. C. 482, 45 S. E. 81,
14 Am. Neg. Rep. 629; Bodie ▼. Charles-
ton & W. C. R. Co. 61 S. C. 478, 39 S. E.
715, 10 Am. Neg. Rep. 473; 1 Words &
Phrases, 2d series, 328, 329; Seaboard Air
Line R. Co. ▼. Horton, 233 U. S. 492, 58
L.*ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct. Rep.
635, Ann. Cas. 1015B, 475, 8 N. C. a A.
834; Schlemmer v. Buffak>, R. ft P. R. Co.
205 U. S. 1, 51 L. ed. 681, 27 Sup. Ct. Rep.
407; Yasoo ft M. Valley R. Co. v. Wright,
235 U. S. 376, 60 L. ed. 277, 35 Sup. Ct.
Rep. 130.
Whether his act be assumption of risk or
contributory negligence, it was for the jury
to determine whether it would bar a recov-
ery, and not for the court. And where the
trial court upheld the verdict of the jury,
and the supreme court of Minnesota unani-
mously affirmed the trial court, there should
be an affirmance by the United States Su-
preme Court.
Texas ft P. R. Co. ▼. Swearingen, 196 U.
S. 51, 49 L. ed. 382, 25 Sup. Ct. Rep. 164, 17
Am. Neg. Rep. 422; Sioux City ft P. R. Co.
V. Stout, 17 Wall. 657, 21 L. ed. 745; Jone
v. East Tennessee, V. ft G. R. Co. 128 U. S
443, 32 L. ed. 478, 9 Sup. Ct. Rep. 118; Dun
lap y. Northeastern R. Co. 130 U. S. 649, .3!
L. ed. 1058, 9 Sup. Ct. Rep. 647; Louisvill
ft N. R. Co. v. Woodson, 134 U. S. 614, 3S
L. ed. 1032, 10 Sup. Ct. Rep. 628; Washing
ton ft G. R. Co. Y. McDade, 136 U. S.
34 L. ed. 235, 10 Sup. Ct. Rep. 1044; Dale^
V. American Printing Co. 150 Mass. 77, 2'
N. E. 439; Texas ft P. R. Co. v. Cox, 14
U. S. 503, 36 L. ed. 829, 12 Sup. Ct. Re|
905; Kreigh v. Westinghouse, C. K. ft
214 U. S. 258, 53 L. ed. 989, 29 Sup.
Rep. 619; Richmond ft D. R. Co. ▼. Powci
149 U. S. 43, 37 L. ed. 642, 13 Sup. Ct. Re:
748, 7 Am. Neg. Cas. 369; Union P. R. Co.
purpose of mitigating the damages, where
there was no settled local rule requiring
counsel, without inquiry by the court, to an-
nounce in advance the purpose for which
evidence is tendered, iuinpas City South-
ern R. Co. Y. Jones, 241 U. S. 181, post, 943,
36 Sup. Ct. Rep. 513.
A verdict found on the first trial of an
action for death imder the Federal em-
ployers' liability act of April 22, 1908, upon
an instruction that the jury should find, if
anything, "such a sum as will fairly com-
pensate his estate for his death," cannot be
reinatated by the Federal Supreme Court
on a cross writ of error to a state court of
last resort, which, having set aside a verdict
for plaintiff, rendered on the first trial, and
the judgment based upon it, affirmed, on a
second Appeal, a judgment for plaintiff in a
750
lesser amount, rendered on the second tri(
Louisville ft N. R. Co. v. Stewart, supra.
Ten per cent damages may be added by
state court of last resort in affirming
judgment for plaintiff in an action un
the Federal employers' liability act of An
22, 1908, where the defendant obtainea
supersedeas, and the local law makes 10 ,
cent the cost of it to all persons il the juc — ^'
ment is affirmed. Ibid.
Interest may be allowed bj a state up-^^
a judgment for plaintiff nnoer the Fede^W
employers' liability act of April 22, 19€^
from the time when it was retidered, if it
provides appellate proceedinn and it*
judgment is affirmed, as, but for sneh pro-
ceedingB, interest would run as of ooum
until Uie judgment was paid. Ibid.
14« V. 8.
1915.
GREAT NORTHERN U. CO. ▼. KNAPP.
465, 4M
McDonald, 152 U. S. 262, 38 L. ed. 434, 14
Sup. Ct. Rep. 610; Patton ▼. Texas & P. R.
Go. 179 U. S. 658, 45 L. ed. 361, 21 Sup. Ct
Rep. 275; Supreme Lodge, K. P. ▼. Beck,
181 U. 8. 50, 45 L. ed. 741, 21 Sup. Ct. Rep.
532; Marande ▼. Texas & P. R. Co. 184 U.
S. 173, 46 L. ed. 487, 22 Sup. Ct. Rep. 340;
Reese ▼. Philadelphia ft R. R. Co. 239 U. S.
463, ante, 384, 36 Sup. Ct. Rep. 134; Leach
▼. Burr, 188 U. S. 510, 47 L. ed. 567, 23 Sup.
Ct. Rep. 393.
The employee assumes the ordinary and
usual risk of the unployment, but not the
risk of the negligence of his employer.
Schkmmer y. Buffalo, R. ft P. R. Co. 205
U. S. 1, 51 L. ed. 681, 27 Sup. Ct. Rep. 407.
In the present appeal there is nothing
which appears as n^ligenoe per te, and it
is undoubtedly a question of fact whether
the employee assumed the risk, even though
the evidence is undisputed. It was for the
jury to make a proper deduction from the
testimony.
Davidson S. S. Co. ▼. United States, 205
U. S. 187, 51 L. ed. 764, 27 Sup. Ct. Rep.
480; Sioux City ft P. R. Co. v. Stout, 17
Wall. 657, 21 L. ed. 746; Butler v. Frasee,
211 U. S. 459, 53 L. ed. 281, 29 Sup. Ct.
Rep. 136.
The common-law rule of assumption of
risk has not been modified or in any way
changed by the safety appliance act of the
state of Minnesota, relative to guarding
dangerous machinery.
Anderson v. C. N. Nelson Lumber Co. 67
Minn. 79,^9 N. W. 630; Qlookner v. Hard-
wood Mfg. Co. 109 Minn. 30, 122 N. W. 465,
123 N. W. 807, 18 Ann. Cas. 130; SohuU v.
Adair, 09 Minn. 7, 108 N. W. 8U, 20 Am.
Neg. Rep. 598.
Mr. Justice Hughes delivered the opinion
of the court:
This action was brought under the Feder-
al employers' liability act. The plaintiff
(defendant in error) was the station agent
at Dassel, Minnesota. It was a part of hi3
duty to attend the pump house some dis-
tance from the station, once or twice a day,
and keep filled the water tank for locomo-
tives. The water was pumped by means of a
gasolene engine, and the pump and engine
were in a small room. In proceeding to
start the pump at the time in question, the
•plaintiff's arm was eaught in the elatch of
the engine and cut off. As the supreme
court of the state put it, the plaintiff
claimed that 'Hie lost his balance, oitiier
through a slip upon the greasy floor or a
jerk by his coat being drawn into the fly
wheel or shaft, and in striking out to cateh
«0 Ii. ed.
himself his hand and part of the arm came
between ^e crank of the shaft and top of
the hood which partially * but inadequately
guarded it." The state court deemed the
evidence to be "very clear" that it was prac-
tioable to interpose safeguards "so as to
fully protect from danger those who had
to pass by." The plaintiff alleged negli-
gence in his employer, in failing to provide
suitable [466] protection; the company de-
nied negligence and insisted upon the de-
fense of assumption 6f risk. The trial court
held that upon the evidence these questions
were for the jury, and there was a verdict
for the plaintiff. On motion, a new trial
was ordered imless the plaintiff should re-
mit a portion of the damages, and, this
being done, judgment was entered, which
was affirmed by the supreme court of the
state. 130 Minn. 405, 153 N. W. 848.
It was conceded that when the injury was
received, plaintiff was engaged in work per-
taining to the defendant's business as a
common carrier in interstate commerce, and
that the Federal act applied. The court
recognized that, if assumption of risk by the
plaintiff was made out, it would bar recovery
under the act. Seaboard Air Line R. Co.
V. Horton, 233 U. S. 492, 58 L. ed. 1062,
L.RJk.l915C, 1, 34 Sup. Ct. Rep. 635, 8 N.
C. C. A. 834, Ann. Cas. 1915B, 475. The
court charged the jury accordingly, and
there was no exception by the defendant to
the charge, or request on its part for any
additional instructions, — the defendant con-
tenting itself with its motion for dismis-
sal or for a direction of a verdict in its
favor. The case, then, is one in which there
is no question as to the interpretation of
any provision of the Federal act, or
as to the definition of legal princi-
ple in its application, but simply
involves an appreciation of all the facts
and admissible inferences in the particular
case for the purpose of determining whether
there were matters for the consideration of
the jury. The state courts, trial and appel-
late, held that there were. Having regard
to the appropriate exercise of the jurisdic-
tion of this court, we should not disturb the
decision upon a question of this sort unless
error is pafpable. The present case is not
of this exceptional character, and we confine
ourselves to an announ<*ement of our con-
clusion. Seaboard Air Line R. Co. v. Pad-
gett, 236 U. S. 668, 673, 59 L. ed. 777, 781,
35 Sup. Ct. Rep. 481; Seaboard Air Line
R. Co. V. Koenneeke, 239 U. S. 852, 355,
ante, 824, 327, 36 Sup. Ct. Rep. 126.
Judgment affirmed.
4e7
SUPREME COURT OF THE UNITED STATES.
Oct. Temu,
[467] E. B. JOHNSON, H. B. Johnson, and
First National Bank Building Company,
Plffg. in Err., .
V.
F. E. RIDDLE.
(See S. C. Reporter's ed. 467-483.)
Coarta — condnslTeness of decisions of
Land Department.
1. The findings of the Indian inspector
assigned to the Indian Territory respecting
matters of fact in a contest over the pref-
erential right to purchase a Chickasaw
town-site lot, affirmed on appeal by the
Secretary of the Interior, are binding upon
the courts, in the abscDce of gross mistake
or fraud.
[For otber csRei, see Courts, I. e, 6, in Digest
Sup. Ct. 1008.]
Pnblic lands — town sites — preferen-
tial right to purchase — rights of oc-
cupancy.
2. Any existing rights of occupancy of
a Chicka^a town-site lot, except such as
coincided with the ownei;8hip of permanent
improvements thereon, terminatea upon the
taking effect of the provisions of the Atoka
Agreement of April 23, 1897, embraced in
the Curtis act of June 28, 1898 (30 Stat.
at L. 495, chap. 517), § 29, conferring a
preferential rignt of purchase upon owners
of such improvements on Choctaw and
Chickasaw town-site lots—or, at least, when
its town-site provisions were put in opera-
tion at Chickasha.
[For other cases, see Public Lands, I. d, in
Digest Sap. Ct. 1908.]
Estoppel — by tenant — landlord's title.
3. A tenant is not estopped to show
that his landlord's title has expired or has
been terminated by operation of law.
[For other cases, see Estoppel, III. e, in Di-
gest Sap. Ct. 1908.1
Pnblic lands — charging patentee as
trustee for equitable owner.
4. A title acquired by the exercise of
the preferential right of purchase conferred
by the Atoka Agreement of April 23, 1897,
embraced in the Curtis act of June 28, 1898
(30 Stat, at L. 496, ^ap. 517), § 29, upon
the owners of permanent improvements
upon Choctaw and Chickasaw town-site lots,
will not be impressed with a trust in favor
of the lessor of such lots or those claiming
under him because the purchaser's owner-
ship of the improvements was derived from
the lessee's transferee, who, by withholding
possession from the lessor, after refusing to
pay the rent, deprived the latter of any op-
portunity to enter and erect improvements
himself, both lessor and lessee being tres-
passers in disregard of Indian rights.
[For other cases, see Pobltc Lands, 1005-
1074, In Digest Sup. Ct. 1908.]
Judgment — ree Judicata — title.
6. The legal or equitable title to the
soil wks not involved in an action of unlaw-
Note. — On the ri^ht of tenant to show
that landlord parted with or lost his title
to a third person durins tenancy — see note
to Raines t. Hindman, 38 L.Rji.(KJ3.) 803.
75S
ful detainer which oonosmed only the right
of possession as between landlord and ten-
ant.
[For other cases, see Judgment, IIL 1, 4. b,
in Digest Sup. Ct. 1908.]
[No. 161.]
Argued January 12, 1916. Decided March
20, 1916.
IN ERROR to the Supreme Court of the
State of Oklahoma to review a judg-
ment which affirmed a judgment of the Dis-
trict Court of Carter County, in that State,
in favor of plaintiff in a suit over the title
to a Chickasaw town-site lot. Affirmed.
See same case below, 41 Okla. 759, 139
Pac. 1143.
The facts are stated in the opinion.
Mr. C. B. Ames argued the cause, and,
with Mr. Alger Melton, filed a brief for
plaintiffs in error:
The decision of the town-site board, as
approved by the Secretary of the Interior,
was based on an erroneous proposition; to
wit, that the effect of the Atoka Agreement
was to terminate the relation of landlord
and tenant.
Ellis V. Fitzpatrick, 3 Ind. Terr. 656, 64
S. W. 567, 55 C. C. A. 260, 118 Fed. 430;
Fraer v. Washington, 60 0. 0. A. 194, 125
Fed. 280; Shy v. Brockhause, 7 Okla. 35, 54
Pac 306; G. W. Walker Trading Co. v.
Grady Trading Co. 1 Ind. Terr. 191, 39 S.
W. 354; Kelly v. Johnson, 1 Ind. Terr. 184,
39 S. W. 352; Williams ▼. Works, 4 Ind.
Terr. 587, 76 S. W. 246.
Under the Atoka Agreement aa> embodied
in the Curtis act, which provides that the
owner of the improvements shall have the
right to buy one residence and one business
lot at 50 per cent of the appraised value, a
tenant who has wrongfully withheld posses-
sion of such a lot from his landlord, thereby
preventing his landlord from erecting im-
provements thereon, cannot acquire title to
the lot as against the landlord.
Rector v. Gibbon, 111 U. S. 276, 28 L. ed.
427, 4 Sup. Ct. Rep. 605; Lamb v. Daven-
port, 18 WaU. 307, 21 L. ed. 759; Atherton
V. Fowler, 96 U. S. 513, 24 L. ed. 732;
Ricks V. Reed, 19 Cal. 551; Goode y. Gaines,
145 U. S. 141, 36 L. ed. 654, 12 Sup. Ct. Rep.
839; Trenouth ▼. San Francisco, 100 U. S.
251, 25 L. ed. 626; Hagar v. Wikoff, 2 Okla.
580, 39 Pac. 281; Downmaa t. Saunders, S
Okla. 227, 41 Pac 104.
The tenant, having acquired a deed in
violation of the rights of his landlord, holds
the title as trustee for his landlord.
Rector ▼. Gibbon, 111 U. S. 876, 88 L. ed.
427, 4 Sup. Ct. Rep. 606; Baldwin ▼. Stark,
107 U. a 463, 27 L. ed. 626, 8 Sup. Ct. Rep.
473; Wallace v. Adams, 74 C. 0. A. 540, 143
840 V. S.
JOHNSON T. BIDDIX
F«d. 710; JftinM v. GermanU Iron Co. 4S
a C. A. 476, 107 F«d. 697; Trice t. Com-
■tM^, 61 URA. 176, B7 C. a A. 6«, 121
F«d. 420; B«rtnm t. Cook, 82 Mioh. 918.
Mr. Joseph W. Bkllejr argued the otiwe,
and McMra. C. B. Stiuut, A. C. Cnice,
ud W. A. Ledb«tter filed a brief for d«leud-
The floal deciiion of the Land Depart-
ment on a queetion of fact between contest-
anta over public landa, and the deduction
drawn by aaid officer*, and the final con-
cliuion reached upon tbe evidence, are oon-
clneive and binding upon the court.
Greenameyer v. Coate, 212 U. S. 434, 03
L. ed. 687, 29 Sup. Ct. Rep. 345; Potter t.
HaU, 18S U. S. 292, 4B L. ed. 817, 23 Sup.
Ct Bep. 645; Marquez v. Frisbie, 101 U. S.
473, 479, 25 L. ed. eoO. g02; Lee t. Johtteon,
116 U. S. 48, 29 L. ed. 670, 6 Sup. Ct. Rep.
249i Johneon v. Towsley, 13 WalL 72, 20
L. ed. 48S; Warren v. Van Brunt, 19 Wall.
•««, 22 L. ed. 21B; United States v. Minor,
114 U. S. 233, 29 L. ed. 110, 6 Sup. a. Bep.
836; Baldwin y. SUrkH, 107 U. S. 403. 27 L.
ed. 626, 2 Sup. Ot. Rep. 473; Gardner t.
Boneetell, ISO U. S. 302, 364, 46 L. ad. G74,
676, 21 Sup. Ct. Rep. 390; Johnson v. Drew,
171 U. S. 100, 43 L. ed. 91, 18 Sup. Ct. Rep.
800.
The Supreme Court, In the review of
caaee from the state courta, will follow the
^dings of (acts of those courts.
Gardner t. Boneetell, 180 U. S. 362, 46
X. ed. 674, 21 Sup. Ot. Rep. 399; Chrisman
T. Miller, 197 U. S. 313, 49 L. ed. 770, 26
Sup. Ct. Rep. 468; Chapman & D. Land Co.
T. Bigelow, 206 U. 8. 41, 61 L. ed. B63, 27
Sup. Ct. Rep. 679; Clipper Min. Co, v. Eli
Mia. t Land Co. 194 U. S. 220, 48 L. ed.
«44, 24 8np. Ct. Rep. 632.
Neither defendanta nor their predecessors
In interest had any legal or equitable right,
»• against the Chickasaw and Choctaw Na-
tioDS and the government, or any claim
preventing the government from disposing
of the property in any way it might see
proper, since they did not own the improve-
menta.
Gontalea v. French, 164 U. S. 347, 41 L.
ed. 461, IT Sup. Ct. Rep. 102; Frisbie v.
Whitaey, 8 Wall. 187, ]0 L. ed. B68; Yose-
mite Valley Case (Hutchings t. Low) 16
WaU. 77. 21 L. ed. 82; Shepley v. Cowan,
81 n. 6. SSI, 23 L. ed. 424; Campbell v.
Weyerhaeuser, 88 C. C. A. 412, 161 Fed.
SS2i Norton v. Evans, 27 C C, A. 168, 49
U. S. App. 669, 82 Fed. 604; Burke t.
Bontbem P. R. Co. 234 U. S. 669, 68 L. ed.
UST, 34 Snp. Ct. Rep, 907.
A eonrt of chancery doe* not make titlea
where there are none, but only will oompel
paraoBS who obtained the legal title nn-
«0 lb ed. 1
I Justly and by fraud to reatore It to thoM
who, under the law, are entitled tiiereto.
WUlet r. Ovoton, S Root, 33B, 1 Aa. Dm.
1 72.
In equi^ aa wall aa b law the plaintiff
must recover on the strength of his own
title, and not on the weakness of hia ad-
venary; and a oomplete eqni table title
must be shown to entitle the plaintiff to
recover, aa in law a complete legal title
most be shown.
Grand Gulf B. & Bkg. Co. ▼. Bryan, 8
SmedM ft M. 234; Bode r. Perkins, 139 U.
S. 628, SS L. ed. 814, 11 Sup. Ct. Bep. 677.
The general rule that the tenant la
estopped from queatloning and disputing
his landlord's title haa ezec^looa whkh an
aa well founded as the rule Itself.
Welder t. MeComb, 10 Tax. Civ. App. BS,
30 S. W. 822) McKie v. Anderaon, 78 Tex.
207, 14 8. W. 676; Wood v. Chamber*. 3
Bicb. L. 160; Ounp v. Camp, S Conn, 291,
13 Am. Dee. 40; Dodge v. Fhelan, 2 Tex.
Civ. App. 441, 21 S. W. 309; Wild v. Serpetl,
10 Qratt. 406; Ryder t. Uansell, 66 Me.
167; Bigler v. Furman, 68 Barb. 645; Me-
Guffie V. Carter, 42 Mich. 497, 4 N. W. 211;
Jackson ex dem. Rusaell t. Rowland, 6
Wend. 686, 22 Am. Dec. 667; Rhyne «. Gue-
vara, 67 Hisa. 139, 6 Sa 736; Devacht v.
Newsam, 3 Ohio, 67; Harvey v. Harvey, 26
S. C. 608, 2 S. E. 3; BartUjr *. McKinney,
28 Cratt 760; Willson v. Cleaveland, 30
Cal. 192;TewkaburyT.Magraff,33Cal.237'.
Page V. Kinsman, 43 N. H. 32S; lowne t.
Butterfield, 97 Mass. 106; Wolf v. Johnson,
30 Miss. 613; McAueland v. Pundt, 1 Neb.
211, 93 Am. Dec. 358; Martin v. Reynold*,
9 Dana, 328; Farrie v. Houston, 74 Ala.
162; Bobertwn t. Biddell, 32 Fla. 304, 13
So. 358; Winn t. Strickland, 34 Fla. 610, 16
So. 606; Tilghman v. Little, 13 111. 239; St.
John V. Qultiow, 72 nl. 334; Kinney t. Doe,
8 Blaekf. 350; Casey v. Gregory, 13 B. Mon.
606, 66 Am. Dec. 581; Giles v. Ebiwortb, 10
Md. 333; Robinson v. Troup Min. Co. 66
Mo. App. 662; Russell v. Allard, 18 N. H.
222; Den ex dem. Howell v. Ashmore, 22
N. J. L. 261; Horner v. Den, 26 N. J. L. 106;
Lawrence v. Miller, 1 Sandf. 616; HULon v.
Bender, 4 Thomp. k C. 270; Franklin v.
Hurlbert, 1 Tex. App. Gv. Cae. (White ft
W.) 466, 18 Am. ft Eng. Enc Law, 2d ed.
pp. 421, 422; Peyton v. Stith, 6 Pet. 486, 8
L. ed. 200; Smith v. Mundy, 18 Ala. 182,
62 Am. Dec. 221; Bishop *. Blair, 36 Ala.
80; Hugbee v. Watt, 28 Ark. 163; Arnold
V. Woodward, 14 Colo. 164, 23 Fac 444;
Wellborn t. Hood, 68 Oa. 824; Wykoff «.
MiUer, 48 I^ Ann. 476, 19 So. 478; Heath
T. WiUiams, 25 Me. 209, 48 Am. Dec 266;
MoCreary t. McCreary, 90 Mich. 478, 61 N.
W. 646; Crockett v. Althouse, 36 Mo. -App.
404; Hattia t. Robertson, 1 Nab. 1; Utioa.
,8 t**
469, 470
SUPREME COURT OF THE UNITED STATES.
Oct. Teuc^
Bank v. Mersereau, 3 Barb. Ch. 528, 49 Am. i
Dec. 189; Benton v. Benton, 95 N. C. 559;
Henning v. Warner, 109 N. C. 406, 14 S. E.
317; Doe ex dem. Smart v. Smith, 13 N. C.
(2 Dev. L.) 258; Boyer v. Smith, 3 Watts,
449; Juneman t. Franklin, 67 Tex. 4ll, 3
S. W. 562; Hillock y. Sutton, 2 Ont. Rep.
648; Adams v. Binkley, 4 Colo. 247; Clarke
T. Clarke, 51 Ala. 498; Otis ▼. McMillan,
70 Ala. 46; Caldwell v. Smith, 77 Ala. 157;
Randolph v. Carlton, 8 Ala. 606; Pope v.
Harkins, 16 Ala. 321; McDcvitt v. Sullivan,
8 Cal. 592; Wheelock v. Warschauer, 21
Cal. 309; Rodgers v. Palmer, '33 Conn. 156;
Wells Y. Mason, 5 111. 84; Stout ▼. Merrill,
35 Iowa, 47; Swann ▼. Wilson, 1 A. K.
Marsh. 99; Gregory v. Crab, 2 B. Mon. 234;
Logan V. Steele, 7 T. B. Mon. 104; Elms y.
Randall, 2 Dana, 100; Presstman v. Sill-
jacks, 52 Md. 647; Lamson v. Clarkson, 113
Mass. 348, 18 Am. Rep. 498; Emmes v. Fee-
ley, 132 Mass. 346; Hilbourn t. Fogg, 99
Mass. 11 ; Indian Land & Trust Co. t. Clem-
ent, 22 Okla. 40, 109 Pac. 1089; Dale v. Par-
ker, 143 Mo. App. 492, 128 S. W. 510; Qrun-
din y. Carter, 99 Mass. 15; Miles y. Rans-
ford, 1 Mich. 338, 51 Am. Dec. 95; Jones y.
Madison County, 72 Miss. 777, 18 So. 87;
Barclay v. Pickles, 38 Mo. 143; Stagg v.
Eureka Tanning &, Curring Co. 56 Mo. 317;
State use of Meier y. Thiemann, 15 Mo.
App. 307; Hoag v. Hoag, 35 N. Y. 469;
Ryerss y. Farwell, 9 Barb. 615; Lane y.
Young, 66 Hun, 563, 21 N. Y. Supp. 838;
Van Etten y. Van Etten, 69 Hun, 499, 23
N. Y. Supp. 711; Lodge y. Martin, 31 App.
Diy. 13, 52 N. Y. Supp. 385; Boyd y. Sam-
etE, 17 Misc. 728, 40 N. Y. Supp. 1070; Lan-
eashire y. Mason, 75 N. C. 455; West Shore
Mills Co. y. Edwards, 24 Or. 475, 38 Pac.
987; Newell y. Gibbs, 1 Watts & S. 496;
Sparks y. Walton, 4 Phila. 72; HiU y. Mil-
ler, 5 Serg. & R. 355; Smith y. Crosland,
106 Pa. 413; Bowser y. Bowser, 8 Humph.
28; Orleans County Granunar School v. Par-
ker, 25 Vt. 696; Pierce y. Brown, 24 Vt.
165; Bright y. Boyd, 1 Story, 478, Fed. Cas.
Kg. 1,875; Hodgen v. Guttery, 58 HI. 431;
Green y. Dietrich, 114 HI. 636, 3 N. E. 800;
Carson y. Crigler, 9 111. App. 83; Hodges
T. Shields, 18 B. Mon. 831; Kelley y. Kelley,
28 Me. 193; Walker y. Harrison, 75 Miss.
666, 23 So. 392; Pickett y. Ferguson, 86
Tenn. 642, 8 S. W. 386; Lang y. Carothers,
«1 Tex. Ciy. App. 118, 51 S. W. 271.
Can the defendants now, in a court of
equity, be heard to complain of not secur-
ing their asserted rights under the law be-
fore the proper authorities authorized to
hear and determine their claim T
Bassett y. Mitchell, 3 Okla. 177, 41 Pac.
601; Roberts y. Hughes, 81 HI. 130,*25 Am.
Rep. 270; Marshall y. Means, 12 Ga. 61, 56
Am. Dec. 444; Rose y. Singleton^ 1 DeL Ch.
754
149, 12 Am. Dec 86; Magniae y. Thomson^
15 How. 281, 304, 14 L. ed. 696, 705; Roea
y. Stewart, 22 Okla. 611, 106 Pac. 870, 227
U. S. 532, 57 L. ed. 627, 33 Sup. Ot. Rep.
345.
Mr. Justice Pitney deliyered the opin-
ion of the court:
This was an action of ejectment, com-
menced before the admission of Oklahoma as-
a state, in the United States court for the
southern district of the Indian Territory,
and brought to a conclusion in the state
courts. There have been many changes of
interest pendente lite, and corresponding
changes of parties. The original plaintiffa
were Riddle, now defendant in error, and
one Cook, whose interest Riddle has since
acquired. The interests of the original de-
fendants have been acquired by plaintiffs in
error through mesne conveyances that will
be stated below. The subject of the action
is a town lot in the town of Chickasha, in
the Chickasaw district of the Choctaw Na-
tion, to which plaintiff claimed title by pur-
chase under the town-site provisions of the
Atoka Agreement with the Choctaw and
Chickasaw tribes, found in the act of* Con-
gress known as the Curtis act (June 28,
1898, chap. 517, 30 Stat, at L. 495, 505,
508), followed by a patent executed, after
the commencement of the action, in accord-
ance with the supplemental agreement with
the same tribes (act of July 1, 1902, chap.
1362, § 51, 32 Stat, at L. 641, 653), and
[470] set up in a supplemental complaint.
The defendants admitted the legal title to
be in Riddle, but by cross complaint sought
to have him declared a trustee for their ben-
efit and decreed to convey the title to them.
A judgment refusing to declare such a trust,
and awarding the lot to Riddle, was affirmed
by the supreme court of Oklahoma (41 Okla.
759, 139 Pac. 1143), and the case is brought
here, under § 237, Judicial Ck)de [36 Stat,
at L. 1156, chap. 231, Comp. Stat. 1913, §
1214], upon the ground that the decision
was against rights set up by plaintiffs in
error under the provisions of the Agree-
ment.
The facts are as follows: Some years
prior to the making of the Agreement, one
Fitzpatrick, a white man not entitled to
citizenship in any Indian tribe, made a
lease of the lot in controversy, tt^en yacant
and unimproved, to one Bamhart, who went
into possession and erected a substantial
house and other improvements, which were
to belong to him, subject to the payment of
a ground rent to Fitzpatrick. There is noth-
ing to show what right Fitzpatrick claimed,
or that in fact he had any right to seise
upon vacant tribal lands and contract con-
cerning them as he did. In the year 1897»
S40 V. S.
1915.
JOHNSON V. RIDDLE.
470-473
Bamhart sold the improTements and trans-
ferred the possession of the lot to one Ellis,
who entered into possession and made furth-
er improvements. About April 1, 1808, EU
lis refused to pay rent, and on July 7, in
the same year, Fitzpatrick brought a suit
for unlawful detainer against him in the
United States court, alleging, in an amend-
ed complaint filed in February, 1890, that
he desired possession for the purpose of be-
ing able to place upon the lot such improve-
ments as would protect his right to the
land under the provisions of the Agreement.
Fitzpatrick prevailed in the United States
court, and, on appeal, in the court of ap-
peals for the Indian Territory (Ellis v.
Fitzpatrick, 3 Ind. Terr. 656, 64 S. W. 567),
and also in the circuit court of appeals for
the eighth circuit, whose decision was ren-
dered October 27, 1002 (55 CCA. 260, 118
Fed. 430). [471] Meanwhile Ellis retained
possession by means of a supersedeas bond.
In February, 1002, the town-site commis-
sion for the Chickasaw Nation, organized
pursuant to the provisions of the Atoka
Agreement, visited Chickasha for the pur-
pose of i^praising town lots and awarding
them to person* having the preferential
right to purchase under the terms of the
Agreement Ellis having conveyed his rights
to Riddle and Cook, the lot was scheduled
to them, and on June 12, 1002, they were
notified that they had the right to purchase
it. A week later they availed themselves of
this right by paying to the United States
Indian agent the proper percentage of the
appraised value to make up the full pur-
chase price of the lot, and took from him
a proper receipt.
Pending the unlawful detainer suit, Fitz-
patrick conveyed whatever interest he had
in the lot to a Mrs. Cross, and she conveyed
an undivided half interest to one Bourland.
In January, 1003, after the decision of the
circuit oourt of appeals, Bourland and Cross
obtained possession of the lot with the im-
provements, and in the following month the
present action of ejectment was commenced
by Riddle and Cook against Fitzpatrick and
the persons in possession. Thereafter Bour-
land and Cross conveyed their interest to
E. B. and H. B. Johnson, the present plain-
tiffs in error, and they were substituted as
defendants. Riddle bought the interest of
Cook, and thus became the sole plaintiff.
Pending the action, a contest was instituted,
either by Bourland and Cross or by the
Johnsons, against Riddle and Cook, ooncem-
ing the award and scheduling of the lot to
the latter. The town-site commission hav-
ing been abolished by the Secretary of the
Interior pursuant to act of March 3, 1005,
ehap. 1470, 38 Stat, at L. 1048, 1050, the
•0 Ii. ed.
contest was heard before the United States
Indian inspector assigned to the Indian Ter-
ritory, upon whom this duty was imposed
by regulations approved [472] by the Sec-
rotary. Rep. Ind. Inspec. 1005, pp. 5, 22, 23;
House Doc. No. 5, 59th Cong. Ist Sess. voL
10, pp. 705, 722, 723. The inspector made
fuH findings of fact, and in an elaborate
opinion decided in favor of contestees. Upon
appeal this decision was affirmed by the
Ciommissioner of Indian Affairs, and upon
appeal to the Secretary of the Interior it
was iigain affirmed. These decisions pro-
ceeded upon findings to the effect that, at the
time of the ratification of the Atoka Agree-
ment and at the time the town site of
Chickasha was laid out by the town-site
commission, and when the plats prepared by
the commission were finally approved by the
Secretary of the IntericNr, Ellis was the
owner of permanent, substantial, and valu-
able improvements, other than fences, til-
lage, and temporary houses, on said lot;
that none of these improvements was in any
way in issue in the unlawful detainer suit,
and Ellis's ownership of them was not de-
nied or disputed, but, on the contrary, was
admitted by Fitzpatrick in his pleadings,
and they were in no way adjudicated upon
in that suit; that Riddle and Cook after-
wards purchased the improvements from
Ellis, and having received notice from the
townsite commission, as already mentioned,
of their right to purchase the lot under the
provisions of the Atoka Agreement, they
forwarded to the United States Indian agent
the proper percentage of the appraisement
to make up the full purchase price of the
lot, and received his receipt for the same.
After the final determination of the contest
before the Department of the Interior, a
patent was issued to Riddle and his associ-
ate, dated in May, 1007.
. The Atoka Agreement between the United
States and the Choctaw and Chickasaw
tribes, negotiated April 23, 1807, amended
by S 20 of the Curtis act (June 28, 1808,
chap. 517, 30 Stat, at L. 405, 505), and
thereby submitted for ratification by the
members of the tribes, was ratified by a
majority of votes at a special election held
on August 24, 1808, [473] the result of
which was ascertained and proclaimed on
August 30th by a board of commissioners
for that purpose, designated by the act, and
the agreement thus became effective. (See
6th Ann. Rep. Dawes Comm., September 1,
1800, House Doc. No. 5, 56th Cong. 1st Sess.
vol. 10, p. 0; Homer's Const, and Laws of
I Chickasaw Nation, 1800, p. 420.) It con-
tains provisions respecting town sites (30
>SUt. at L. 508, ehap. 517), of wh^
47»-476
SUPREME COURT OF THE UNITED STATEa
Oor. TwMM,,
pcrtineiit portions are set forth in the
margin.!
Regulatory provisions, embodied in an
act of May 31, 1900 (chap. 598, 31 SUt. at<
L. 221, 237, 238), [474] were assented to
by the Choctaws and Chickasaws in the
supplemental agreement (act of July 1,
1902, chap. 1362, 32 Stat, at L. 641, 652),
and other regulations were thereby added.
Authority to appraise town lots, improved
or unimproved, to ascertain the ownership
and value of the improvements, and to dis-
pose of the lots in conformity to the provi- 1
sions of the Agreement, was thereby con-
ferred upon the town-site oonmiission, sub-
ject to the supervision of the Secretary of
the Interior. (See Ross v. Stewart, 227 U.
8. 630, 534, 57 L. ed. 626, 628, 33 Sup. Ct.
Rep. 345.) Their unfinished duties were
devolved upon the Secretary by the act of
1905, under whose authority the Indian
inspector acted, as already shown. The
supreme court of Oklahoma therefore was
correct in holding that the findings of the
inspector respecting matters of fact, af-
firmed on final appeal by the Secretary, were
binding upon the courts, in the absence of
gross mistake or fraud (neither of which is
here present), and that the judicial inquiry
is limited to determining whether there was
clear error of law that resulted in award-
ing the preferential right of purchase, and
ultimately issuing the patent, to the wrong
party. Johnson v. Towsley, 13 Wall. 72, 86,
20 L. ed. 485, 487 ; Shepley v. Cowan, 91 U.
S. 330, 340, 23 L. ed. 424* 427 ; Marquez v.
Frisbie, 101 U. S. 473, 476, 25 L. ed. 800,
801 ; Gonzales v. French, 164 U. S. 338, 342,
41 L. ed. 458, 460, 17 Sup. Ct. Rep. 102;
Ross V. Day, 232 U. S. 110, 116, 58 L. ed.
528, 529, 34 Sup. Ct. Rep. 233.
Since the findings are to the effect that |
the improvements upon the lot wera owned
by Ellis, and by defendant in error through
a purchase from him, the oontentloiia of the
plaintiffs in error are reduced to these:
that the decision of the Indian inspector,
approved by the Secretary of the Interior,
to the effect that the Atoka Agreement
terminated the relation of landlord and
tenant, was based upon an erroneous con-
struction of the Agreement, and ignored the
equities of the landlord as against the
tenant; that under a correct construction
of the provisions permitting the owner of
the improvements to buy a town lot [475]
at a fraction of the appraised value, a
tenant who wrongfully withheld possession
of such a lot from his landlord, thereby
preventing him from erecting improvements
thereon, could not acquire title to the lot
as against the landlord; and that a tenant
who, under the provisions of the Agreement,
but in violation of the rights of his landlord,
has acquired a deed for such a lot, holds the
title as trustee for the landlord.
The Atoka Agreement of course is to be
read in the light of the conditions out of
which it arose. The Choctaw Indians ac-
quired the territory in question under a
treaty with the United States made at
Dancing Rabbit Creek in the year 1830 (7
Stat, at L. 333). In accordance with the
provisions of the treaty, and pursuant to
authority conferred by act of May 28, 1830
(chap. 148, § 3, 4 Stat, at L. 412), a patent
was issued by the President of the United
States, March 23, 1842, granting the land
to the Choctaw Nation, "in fee simple to
them and their descendants, to inure to
them, while they shall exist as a nation and
live on it, liable to no transfer or aliena-
tion, except to the United States, or with
their consent." ( Durant's Const, k Laws of
f'Town Sites. It is further agreed that
there shall be appointed a commission for
each of the two nations. . . . Each of
said commissions shall lay out town sites,
to be restricted as far as possible to their
S resent limits, where towns are now located
1 the nation for which said commission is
appointed. . . . When said towns are so
laid out, each lot on which permanent, sub-
stantial and valuable improvements, other
than fences, tillage, and temporarv houses,
have been made, shall be valued by the
commission provided for the nation in which
the town is located at the price a fee-simple
title to the same would brmg in the market
at the time the valuation is made, but not
to include in such value the improvements
thereon. The owner of the improvements on
each lot shall have the riffht to buy one
residence and one business lot at fiftv per
centum of the appraised value of such im-
proved property, and the remainder of such
unproved property at sixty-two and one half
per centum of the said market' value within
sixty days from date of notice served on
him that such lot is for sale, and if he pur-
chases the same he shall, within ten days
from his purchase, pay into the treasury
of the United States one fourth of the pur-
chase price, and the balance in three equal
annual instalments, and when the entire
sum is paid shall be entitled to a patent for
the same. ... If such owner of the
improvements on any lot fails within sixty
days to purchase and make the first pay-
ment on same, such lot, with the improve-
ments thereon, shall be sold at nublio
auction to the highest bidder, under tae di-
rection of the aforesaid commission, and the
purchaser at such sale shall pa7 to the own-
er of the improvements the price for which
said lot shall be sold, less dztv-two and
one half per cent of said appraised value
of the lot and shall pay the siztv-two and
one half per cent of said appraiMd value
into the United States Treasury. . . .
All lots not so appraised shall be sold from
time to time at public auction. . . ."
140 U. 8.
1915.
JOHNSON ▼. RIDDLE.
475-478
ChoeUw Nation, 1894, p. 31.) In 1837 tbe
OhoetawB entered into a treaty with the
Ghiekmeawe, by which the latter were privil-
edged to form a district within the limits
of the Ohoctaw country, ''to be held on the
same terms that the Choctaws now hold it,
except the right of disposing of it, which
is held in common with the Choctaws and
Cliickasaws." This received the approval
of the President and Senate of the United
States. 11 SUt. at L. 573, 675. In the
year 1855 a new treaty was made between
the United States and these tribes (11 Stat,
at L. 611), by which the boundaries of tlieir
eonntry were defined and the United States
guaranteed the lands embraced within the
specified limits "to the members of the
Choctaw and Chickasaw tribes, their heirs
and successors, to be held in common; so
that [476] each and every member of
either tribe shall have an equal, undivided
interest in the whole; Provided, however, no
part thereof shall ever be sold without the
consent of both tribes; and that said land
shall revert to the United States if said
Indians and their heirs become extinct, or
abandon the same." The westerly part of
the country was established as a district
/or the Chickasaws, the easterly part for
the Choctaws.' After the Civil War, and
in the year 1866, a new treaty was made, by
the 11th article of which it was recited that
the land described in the treaty of 1855 "is
now held by the members of said nations in
common, under the provisions of the said
treaty." 14 Stat, at L. 769, 774. A plan
for a survey, division, and allotment of the
land was proposed by the same article, but
this came to naught because of the non-
assent of the Choctaw people. Woodward
T. DeGraffenried, 238 U. S. 284, 294, 59 L.
ed. 1810, 1318, 35 Sup. Ct. Rep. 764. Thus
matters remained until, in the course of
time, the infiux of white people into this
and other parts of the Indian Territory
created a new situation of great complexity,
calling for a readjustment of the affairs of
the Five Civilised Tribes. In 1893 the
Dawes Commission was appointed, under
authority of an act of Congress (chap. 209,
I 16, 27 Stat, at L. 645), to enter into
negotiations with those tribes for the pur-
pose of extinguishing the tribal titles to
lands. The annual reports of the Commis-
sion, a reference list of which is printed in
238 U. S. 296, give a complete and instruc-
tive account of its labors. The first of these
reports, dated November 20, 1894, shows
that among the original propositions sub-
mitted to the several tribes as a basis of
negotiations it was -suggested that town
sites should be the siibject of special agree-
ments, such as would secure to the Indians
and to investors "$l Just protection and ad*
•9 Ii. ed.
Justment of their respective rights." In ex-
planation it was stated: "There are towns
in the Territory ranging in population from
a few people to 5,000 inhabitants. Nearly
all of [477] them are noncitizens. • . .
Biany large and valuable stone, brick, and
wooden buildings have been erected by non-
citizens of these towns, and the lots on
which they stand are worth many thousands
of dollars. These town sites are not sus-
ceptible of division* among the Indians, and
the only practicable method of adjusting the
equities between the tribes who own the
sites and those who constructed the build-
ings is to appraise the lots without the im-
provements and the improvements without
the lots and allow the owners of the im-
provements to purchase the lots at the ap-
praised value, or to sell lot and improve-
ments, and divide the money according to
the appraisement." House £x. Doc. pt. 5,
53d C<mg. 3d Sess. vol. 14, pp. Ixii., Ixv.
The first agreement to be negotiated by
the Commission was with the Choctaws un-
der date December 18, 1800, but the Chicka-
saws refused to concur in this, and another
was negotiated at Atoka, April 23, 1897,
with both tribes. In its original form it is
appended to the Fourth Report of the Com-
mission, dated October 11, 1897 (House Doc.
No. 5, 55th Cong. 2d Sess. vol. 12, pp. cxvii.,
cxxii.). It provided that a town-site com-
mission should be appointed for each of the
two nations; that each existing town site
should be laid out and platted, and that
"each lot on which permanent, substantial,
and valuable improvements, other than
fences, tillage, and temporary houses, have
been made, shall be valued by the Commis-
sion ... at the price a fee-simple title
to the same would bring in the market at
the time the valuation is made, but not to
include in. such value the improvements
thereon. The owner of the improvements
on each lot shall have the right to buy the
same at 02} per cent of the said market
value, within sixty days from date of notice
served on him that such lot is for sale." It
further provided that if the owner of the
improvements should fail to purchase, the
lot with improvements should be sold at
auction, the [478] purchaser to pay the
price to the owner of the improvements, less
62i per cent of the appraised value of the
lot, which was to be paid into the Unit*
ed States Treasury for the benefit of the
Indians. This agreement, with some amend-
ments, was ratified by Congress in S 29
of the Curtis act, and afterwards rati-
fied by the voters of the two tribes, as.
already mentioned. The provision as to*
purchase of town lots was amended only
by giring to the owner of .the improve-
ments the right to buy one residelice and
478-480
SUPREME CX)URT OF THE UNITED STATES.
Cot. TkBM,
one business lot at 50 per centum and the
remainder of such improved property at 62^
per centum, of the appraised market value.
The same act contained, in its 16th sec-
tion (30 Stat, at L. 500, chap. 517) a pro-
vision for the appointment of a town-site
commission for each of the Chickasaw, Choc-
taw, Creek, and Cherokee tribes; allowing
"the owner of the improvements upon any
town lot, other than fencing, tillage, or tem-
porary buildings," to deposit in the United
States Treasury one half of the appraised
value •of the lot, excluding improvementa,
as a tender to the tribe of the purchase mon-
ey for the lot; and permitting improved lots
to be sold at auction if the owner of the
improvements thereon failed to deposit the
purchase-money within a limited time, in
which case the purchaser at auction might,
by appropriate proceedings in the United
States court, require the owner of the im-
provements to either accept their appraised
value or remove the improvements from the
lot. The same section provided for the sale
of unimproved lots, the purchase-money to
be deposited with like eflTect as in the case
of improved lots; and authorized the tribes
to make deeds to the purchasers conveying
the title to suph town lots, whereupon the
purchase-money was to become the property
of the tribe. These provisions would ap-
pear to have been superseded, as to the
Choctaw and Chickasaw tribes, by their ac-
ceptance [470] of the Atoka Agreement,
and are mentioned only to show that in §
15, as in the Agreement, it was the owner
of the improvements, and he alone, who was
recognized as entitled to be considered in
the sale of the town lots.
It is not necessary to say that the Agree-
ment, when thus ratified by Congress and
by the tribes, became the law of the land,
and superseded all customs, if such there
were, that had sanctioned the making of
leases to noncitizens. By its terms towns,
so far as they had been established within
the domain of the tribes, were recognized,
and provision was made for platting them,
i^nd for selling the lots, both improved and
unimproved, the proceeds to become the
property of the tribes. It was recognized
that the money expended by white men in
constructing the buildings and other perma-
noit improvements had increased the value
not only of the improved lots, but of all
lands within the town; and hence a prefer-
ential right of purchase was conferred upon
"the owner of the improvements on each lot."
But there is nothing in the history of the
matter, any more than in the language
employed, to give the least countenance to
the suggestion that prior rights of occu-
pancy were intended to be recognized in
thiB Agreement. Ownership of improve-
758
ments actually upon the soil was adopted
as the sole foundation of the newly oon-
ferred right to acquire title to the soil it-
self. And these improvementa must be
''permanent, substantial, and valuable im-
provements, other than fences, tillage, and
temporary houses." The exclusion of these
latter, indicative merely of occupancy, is
highly significant.
The provisions of the Agreement respect-
ing the sale of town lots could not be car-
ried into effect without terminating exist-
ing rights of occupancy, if such there were,
saving as these coincided with the owner-
ship of permanent improvements. Henoe>»
if Fitzpatrick had any right to the soil, it
came to an end either when the Agreement
took effect in August, 1898, or, at latest,
when its town-site provisions [480] were
put in operation at Chickaaha. It ia inaisted
that Ellis, as tenant, was estopped to deny
his landlord's title, and that Riddle ia in no
better case. Blight v. Rochester, 7 Wheat
535, 547, 6 L. ed. 516, 519. But a tenant is
not estopped to show that hia iMidlord's
title has expired or has been terminated by
operation of law. England ex dem. Syburn
V. Slade, 4 T. R. 682; Blake v. Foster, 8
T. R. 487, 5 Revised Rep. 419; Neave v.
Moss, 1 Bing. 360, 8 J. B. Moore, 389, 2
L. J. C. P. 25; Hopcroft v. Keys, 9 Bing.
613, 2 Moore & S. 760; Doe ex dem. Higgin-
botham v. Barton, 11 Ad. & EL 307; Den
ex dem. Howell v. Ashmore, 22 N. J. L.
^61, 265; Shields v. Lozear, 34 N. J. L.
496, 500, 3 Am. Rep. 256; Uill^Qm v. Fogg,
99 Mass. 11 ; Lamson v. Clarkaon, 118 Maas.
348, 18 Am. Rep. 498.
The argument that Ellis, by withholding'
possession of the lot from Fitzpatrick, pre-
vented him from erecting improvements
such as would have satisfied the require-
ments of the Atoka Agreement so as to con^
fer upon Fitzpatrick the preferential righ^
to purchase the lot, and hence that Ellis
and those claiming under him are eatoppeJ.
to purchase the land for themaelvea, and
must be held to have acquired it in trusts
for Fitzpatrick and those alalmlng under
him, cannot prevail. The facta do not ahow^
that Ellis's refusal to pay rent, and hla re-
sistance to the forcible entry and detainer
suit, were other than bona flde. Nor doea
it appear that Fitzpatrick, eren before the
Atoka Agreement, had any right of poaies
sion of the land aa against the Indiana. So
far as the facts appear, he had no righta at
all, except aa against the tenant, and
against him only because of the eatoppsL
In order to show that the tenant, by with-
holding possession, deprived tha ItadUnd
of the opportunity of exercising a yahiablt
right, it must be made to appear that, with
the tenant out of the way, tiie right would
140 V. 8.
1919,
JOHNSON y, RIDDLE.
<480-48S
liaTV ezifltod. Bvt» if Bllii had giveii up
poMctrion, Fitzpatrick would have had no
more right than any other white man to
«nter and erect improTements* — ^that is to
say, none at alL At most, he would have
iiad a mere opportunity, without right,
[481] and the deprivation of this cannot
f Ornish a foundation tcr impressing a trust
upon the title afterwards acquired by Ellis's
.grantee by direct purchase from the owners
of the paramount title. . Even were it made
to appear that there was error in adjudging
the title to the patentee, this would not
Taise a trust in favor of the contestant un-
less he oould show that by the law, properly
4u)ministered, the title ought to have been
awarded to him. Bohall v. Dilla, 114 U.
S, 47, 51, 29 L. ed. 61, 63, 6 Sup. Ct. Rep.
782; Sparks v. Pierce, 116 U. S. 408, 413,
20 L. ed. 428, 429,' 6 Sup. Ct. Rep. 102.
What, then, was the nature of Fitzpat-
Tick's equity? Under the facts found, both
he and Ellis were trespassers upon the lands
•of the Indians, in disregard of rights se-
cured to the latter by treaty with the (Jnit-
•ed States, and in violation of § 2118, Rev.
Stat. (Comp. SUt. 1913, f 4108). The
lease created a mere estoppel between
trespassers. The rights, if th^ may be
called rights, of lessor and lessee alike,
-were terminated by the force of the Agree-
-ment. Individual ownership of the land orig-
inated with that instrument, and can be
<mly such as by its terms was created. It
was competent for Congress, or for the
Indian tribes, with the concurrence of Con*
gress, to deal as they deemed proper with
the practical situation resulting from the
'building of towns by white men within their
"borders. They chose to confer a preferen-
tial right of purchase, at a discount from
-the appraised value, not upon the "occu-
pant," or "possessor," or "landlord," or
'"tenant," but upon "the owner of the im-
provements" other than those of a tempo-
rary nature. This did not cut off any per-
-tinent equity, but it rendered all equities
Impertinent except such as related to the
•ownership of the improvements.
The Atoka Agreement, while accepting
•existing improvements of a substantial na^
tnre as part consideration lor the purchase
of town lots, contained no recognition of
legitimacy in the previous occupation of the
-soil by white men, nor any official ratiflca-
"tion of their intrusion upon the Indian
lands. It laid aside, as immaterial, ths
^iMStion [4M] whether improvements had
been constmeted with or without rightful
possession of the land. In this respect it
4iffsTtd from the Original Creek Agrsemsnt
of March 8, 1900 (act of ICareh 1, 1901,
•diap. 676, 31 Stat, at L. 861, 866), the pro-
iwsed Cherokee agreement of AprU 9, liKM)
^60 Ii. ed;
(act ^ March 1, 1901, ehap. 676, 31 Stat,
at U 848, 863), which failed of ratification
by the tribe (8th Ann. Rep. Dawes Comm.
Oct 1, 1901; House Doc. No. 5, 67th Cong.
1st Sess. vol. 24, p. 11), and the Cherc^ee
sgreement of July 1, 1902 (diap. 1376, 82
Stat, at L. 716, 723), which was ratified
by the tribe ( 10th Ann. Rep. Dawes Coma.
Sept. 30, 1903; House Doo. No. 6, 68th
Cong. 2d Sess. vol. 20, p. 116).
If Fitspatrick had had any equitable right
or interest in the improvements upon the ki
in controversy, a very different question
would be presented. But he had none.
We are referred to two decisions of the
United States court of appeals for ths In-
dian Territory that are said to uphold the
legal validity of grants of leasehold inter-
ests in lands in the CHioctaw and Chickasaw
country prior to the Atoka Agreement.
Kelly V. Johnson (1897) 1 Ind. Terr. 184,
189, 39 S. W. 362, 364; G. W. Walker Trad-
ing Co. V. Grady Trading Co. (1807) 1 Ind.
Terr. 191, 196-198, 39 S. W. 364, 366.
These cases, however, go no further than
to hold that a possessory right might pass
by transfer from a citisen of one of the
Indian tribes to a noncitizen, and would
protect the latter against forcible entry by
others not showing a better right to the
possession, nor acting under authority of
the tribe, and that a lease of such lands
with improvements estopped the lessee to
question the lessor's title. See also Wilson
V. Owens (1897) 1 Ind. Terr. 163, 38 S. W.
976, affirmed in 30 C. C. A. 267, 67 U. S.
App. 500, 86 Fed. 571 ; Hockett v. Alston, 49
C. C. A. 180, 110 Fed. 910, reversing s. e. 8
Ind. Terr. 432, 58 S. W. 675; Williams v.
Works, 4 Ind. Terr. 587, 76 a W. 246;
Fraer v. Washington, 60 C. C. A. 194, 125
Fed. 280. These decisions leave untouched
the authority of Congress, with [483] or
without the consent of the tribe, to termi-
nate all possessory interests and dispose of
the fee in any manner deemed proper.
Much reliance is placed upon the decision
of this court in Rector v. Gibbon, 111 U. &
276, 28 L. ed. 427, 4 Sup. Ct. Rep. 605,
which turned upon the effect of an act of
Congress in relation to the Hot Springs
Reservation in the state of Arkansas (act
of March 3, 1877, chap. 108, 19 Stat, at
L. 377). The statute was passed to relieve
the peculiar hardship resulting from a de-
cision of the court of claims, affirmed by
this court (Hot Springs Cases, 92 U. 8.
698, 713, 716, 716, 23 L. ed. 690, 696, 697),
holding invalid, for reasons more or less
technical, certain land titles set tip against
the United States, some of them under
claims of pre-emption and one under a New
Madrid location, followed in each .case by
long yean of possession. Rsetdr v. Gibbon
7»»
488-A8&
8UPR£M£ COURT OF THE UNITED SXATSa
Got. Term,
construed the legislation in the light of
the circumstances out of which it arose,
and so as to rdieve those who had made im-
provements or claimed possession under the
titles that had been found defective. It has
no proper bearing upon the questions pre-
sented in the case at bar. Lsmb ▼. Daven-
port, 18 Wall. 307, 21 L. ed. 760; Atherton
T. Fowler, 96 U. 8. 613, 24 L. ed. 732; and
Trenouth v. San Francisco, 100 U. S. 261,
26 L. ed. 626, cited by plaintiffs in error,
are likewise aside from the point.
It is, perhaps, unnecessary to mention
that the matter at issue here is not con-
cluded by the decision in Ellis ▼. Fitzpat-
rick, 3 Ind. Terr. 666, 64 8. W. 567, s. c
affirmed in 66 C. C. A. 260, 118 Fed. 430,
for that case concerned only the right of
possession as between landlord and tenant,
and Ellis's ownership of the improvements
was admitted in the pleadings. The legal
or equitable title to the soil was not in-
volved.
From the views above expressed, it re-
sults that the judgment of the Supreme
Court of Oklahoma must be affirmed.
[484] HARRIET A. BARLOW, Plff. in
Err.,
V.
NORTHERN PACIFIC RAILWAY COM-
PANY.
(See 8. C. Reporter's ed. 484-489.)
Public lands — railroad land grant —
wlien grant attaches — completion of
grade — filing map.
A definite location of the right of
way of a railway company which entitles it
to the benefit of the act of March 3, 1875
(18 Stat, at L. 482, chap. 152, Comp. Stat
1913, § 4921), granting to railroads a
right of way through the public lands, is
made by the completion of the grading
ready for the ties and rails, although a pro-
file map of the road has not been filed in
the appropriate local land office.
[For other cases, see Public Lands, I. & 2, c,
In Digest Sup. Ct. 1908.] ^ f ^
[No. 267.]
Argued March 8, 1916. Decided April 3,
1916.
IN ERROR to the Supreme Court of the
State of North Dakota to review a judg-
ment which affirmed a judgment of the Dis-
trict Court of Foster County, in that state,
in favor of plaintiff in a suit to quiet title.
Affirmed.
(
Non. — ^As to land grants to railroads —
see nota to Kansas P. R. Co. v. Atchison.
T. 4 & f . R. Co. 28 L. ad. U. a 794.
See same case below, 26 N. D. 159^ 14S
N. W. 903.
The facts are stated in the opinion.
Mr. 8. B. BUsvrorth argued the cause,
and, with Mr. John Knauf, filed a brief for
plaintiff in error.
Mr. Gluurlea Donnelly argued the cause,
and Messrs. Gharlea W. Bunn and Bmerson
Hadley filed a brief for defendant in error.
Mr. Chief Justice White delivered the
opinion of the court:
In Jamestown A N. R. Co. v. Jones, 177
U. 8. 125, 44 L. ed. 698, 20 Sup. Ct. Rep.
568, there came under consideration the
construction of the act of Congress of March
3, 1875, entitled, "An Act Granting to RaU-
roads the Right of Way through the Publio
Lands [485] of the United States," chap.
152, 18 SUt. at L. 482, Comp. Stat. 1913, g
4921. The case involved a controversy be-
tweoi the railroad which was entitled to the
benefit of the act and Jones, a homestead en*
tryman holding a patent of the United States
in consequence of rights initiated after the
railroad had constructed its line, but before
it had filed a map of its right of way in
the appropriate local land office. The rail-
road claimed that its right of way across
the land covered by Jones's patent was para-
mount, and Jones asserted that his right
under the patent was dominant. Giving
sanction to a previous course of administra-
tive construction dealing with unsurveyed
public land, it was held that an appropria-
tion of the right of way by a construction
of the road under the statute gave tiie rail-
road the paramount right, and that the
provision of the statute concerning the filing
of a map and profile in the local land office
was intended not to deprive of the power to
Ax. and secure the right of way by construc-
tion in advance of filing such map and pro-
file, but simply to afford the means of se-
curing the right of way in advance of con-
struction. The two methods of securing the
right, the one by construction of the road,
and the other in anticipation of constmo-
tion by filing a mi^, were decided to in no
wise conflict the one with the other, as both
afforded a means of securing the ri^^t which
the statute gave. The opinion pointed out
that although the previous administrative
rulings w^re concerned only with unsur-
veyed lands, they were equally applicable
under the statute to surveyed lands, and it
was thus^conduded: *^t follows frooi these
views that the grant to plaintiff in error
(the railroad company) by the aet of 1876
became definitely fixed by the actual eon-
stmetion of its road, and that the entry of
the defendant in error (Jones) was sobjeet
thereto.**
14« V. B.
101 o.
BARLOW ▼. NORTHERN P. R. CO.
486-488
In Minneapolii, St P. & 8. SU. M. R.
06. T. Doughty, 208 U. S. 261, 62 L. ed. 474,
28 Sup. Ct. Rep. 281, the oontroyeny was
between the railway company and a settler
holding a patent of the United [486] States
whose right had been initiated before the
oonstruction of the railroad, but after a pre-
liminary survey which had been made by
the railroad as a means of ultimately de-
termining upon what line it would build
its road, the stakes of such survey being,
at the time the settler initiated his right,
acroBS the land in question. The claim of
the settler was that a mere entry of the
railroad for the purpose stated was not a
construction within the meaning of the
Jones Case, while that of the railroad was
"that an entry upon the land to locate the
road is as necessary as an entry on the land
to build the road, and, being there, the rail-
road 'could not become a trespasser, either
as to the government or as to the plaintiff.' "
It was decided that as a mere preliminary
step for the purpose of determining where
the road should be located was not, in and
of itself, the equivalent of a definite loca-
tion of the line and a permanent appropria-
tion of the right of way, the case was not
covered by the rule of the Jones Case and
the right of the settler was paramount.
Which of these rulings is here controlling
is the single question sirising for decision
on this record, as will be at once seen by
the following statement of the case:
The suit was commenced by the railroad
to quiet its title to its right of way across
a quarter section of land which had been
patented by the United States to the defend-
ant. The latter not only by answer, but by
counterclaim, asserted the paramount nature
of his right. The court below, affirming the
action of the trial court, held that the rights
of the railroad were paramount upon the
conclusion that the facta found dearly
brought the case within the rule established
in the Jones Case. 26 N. D. 169, 143 N.
W. 908. The facta as thus established were
these:
" 'On the said 22d day of July, a. d. 1883,
intending to make entry of the said land
herein described when the same was sur-
▼eyed* and to aequire title to the same by
[487] Tiitne of compliance with the pre-
emption laws of the United States, said
Frederick G. Barlow [the predecessor in title
of the plaintiff in error] settled upon said
land and took up his residence thereon. At
the time of sneh settlonent there was not a
railroad track or line of railroad in opera-
tloB aeroaa said land at any place, nor had
plat or profile of the section of railroad ex-
tending across said land hereinbefore re-
ferred to been filed in the United States
district land office at Fargo.' We find from
•0 li. ed.
the evidence that although Barlow entered
upon the land upon the 22d day of July
A. o. 1883, the grading of the road across
said land was completed prior to May 31,
1883; that is to say, nearly two months
before his settlement. We also find the
rails were laid upon the grade between Au-
gust 10 and 16, 1883, and that trains were
operated on said road and across said land
soon after."
That under these facts the court below
was right in holding that the controversy
was foreclosed by the ruling in the Jones
Case we think is too clear for anything but
statement. The contention that the case is
controlled by the Doughty, and not the
Jones Case, because the road was not com-
plete and operating when the entryman in-
itiated his rights, although it was then
graded and was virtually ready for the ties
and rails, if acceded to, would render the
statute inefficacious, and dominate the sub-
stance of things by the mere shadow. The
first, because as it is impossible to conceive
of the completion of the road by the placing
of ties and the laying of rails without pre-
supposing the prior doing of the work of
grading, it would follow that the recogni-
tion of the right of an entryinan to appro-
priate adversely to the railroad after the
grading had been done, and before the lay-
ing of the ties and rails, would render the
performance of the latter useless, and would
deprive the railroad, therefore, of all prac-
tical power to appropriate. Tbe second, be-
cause, as pointed out in Stalker v. Oregon
[488] Short Line R. Co. 226 U. S. 142, 56 L.
ed. 1027, 32 Sup. Ct. Rep. 636, the decision in
the Jones Case rested not upon the ground
that the work of construction had reached
the absolutely completed stage so as to en-
able the road to be operated, but on the
fact that the work was of such a character
as to manifest that the railroad company
had exercised its judgment as to where its
line was to be established, and had done
such work of construction as "necessarily
fixes the position of the route and consum-
mates the purpose for which the grant of
a right of way is given." (p. 160.) And
it is obvious tiiat tiis standard, when com-
plied with, would serve not only to demon-
strate the fixed intention of the railroad to
appropriate, but also to give tangible and
indubitable evidence to others of the right
of way appropriated, thus preventing injury
to iimocent persons which might result
from their selection of land in igaorance of
the faet of its prior impropriation. The
distinction between the doctrine of the Jones
Case and that of the Doughty Case is there-
fore that which necessarily must obtain be-
tween permanent work of construction of a
railroad on a line definitely selected and
781
488, 480
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
fixed by it, and mere tentative work of sur-
veying, done by a railroad for the purpoee
of enabling the line which it was proposed
to construct to be ultimately selected The
broad distinction between this case and the
Doughty Case, both as to the fundamental
rights given by the statute and the protec-
tion to innocent parties, was thus lucidly
pointed out by the court below in its opin-
ion:
"There can be no doubt, indeed, that the
route was fixed, both on account of the
physical construction and the difficulty of a
subsequent removal, . . . The entryman
in this case can have no more grounds
for complaint than could the entryman
in the case of Stalker v. Oregon Short Line
R. Co*, supra. It would be absurd to hold
fchat one who enters upon land and sees up-
on it a railroad grade which is only eighteen
days from physical completion, and, as we
have a right to believe, but a link in miles
of [480] road stretching across the same
prairie, was not aware of this prior railroad
occupation."
We have not stopped to consider an in-
timation contained in the argument that
the court erred in its finding of fact as to
the state of construction of the road at the
time the entry by Barlow was made, because
without at all questioning our power to re-
view the facts in so far as necessary to dis-
pose of the Federal contention, we consider
the suggestion wholly without merit, first,
because we would not in any event disregard
the finding of fact of the court below ex-
cept upon conviction of clear error commit-
ted, for which the record here affords no
ground whatever; and second, because as
the finding of the court below was also the
finding of the trial court, the request in-
vites us to disregard the findings of both
courts on a matter of fact in the absence of
any ground for a conviction that error of
fact was clearly committed.
Affirmed.
SEABOARD AIR. LINE RAILWAY, Plff.
in Err.,
V.
8. W. KENNEY, Administrator of Beb
Isaac Ci^ehart, alias Beb Isaac Eason.
(See 8. C. Reporter's ed. 489-497.)
Death — action under Federal employ-
ers' liability act — beneficiaries —
next of kin.
1. The "next of kin," for whose benefit
an action under the Federal employers' lia-
bility act of April 22, 1908 (36 Stat, at L.
65, chap. 149), as amended by the act of
April 6, 1910 .(36 Stat, at L. 291, chap.
7M
143, Comp. Stat. 1913, i 8662), may be
maintained to recover damages for the neg-
ligent killing of their intestate by his inter-
state railway employer, are those who are
the next of kin under the local law.
[For other cases, see Death, IL b, In Digest
Sup.. Ct 1908.1
Judgment — res judicata — questions
necessarily InToWed.
2. A ruling of a state oourt that the
"next of kin," for whose benefit an action
under the Federal employers' liability act
of April 22, 1908 (35 Stat at L. 65, chap.
149), as amended by the act of April 5,
1910 (36 Stat, at L. 291, chap. 143, Comp.
SUt. 1913, § 8662), may be maintained to
recover damages for the negligent killing
of an illegitimate child by his interstate
railway employer, are, under the local law,
the legitimate children of the same mother,
she being dead, negatives the existence of
any right to trace the parentage of the
illegitimate child so as to make the asserted
father the parent under the Federal statute.
[For other cases, see Judgment, III. J, 2, la
Digest Sup. Ct. 1908.]
Error to state court — following deci-
sion below.
3. Without a clear conviction of error,
the Federal Supreme Court will not reverse,
on writ of error to a state court, the ruling
of both courts below that there was evi-
dence tending to show that the "next of
kin,*' for whose benefit an action under the
Federal employers' liability act of April
22, 1008 (35 Stat, at L. 65, chap, 149),
as amended by the act of April 5, 1910 (36
Stat, at L. 291, chap. 143, Comp. Stat. 1913,
§ 8662), was brought to recover damages
for the negligent killing of their intestate
by his intersUite railway employer, were so
dependent on the deceased as to justify a
recovery under the Federal statute.
[For other cases, see Appeal and Error, VIII.
m, 1, in Digest Sup. Ct. 1908.]
[No. 269.]
Argued March 10, 1916. Decided April 8,
1916.
Note.— On the constitutionality, applica-
tion, and effect of the Federal employers'
liability act — see notes to Lamphere v. Ore-
gon R. k Nav. Co. 47 L.RJk.(N.8.) 38, and
SMboard Air Line R. Co. ▼. Horton, L.RJL.
1915C, 47.
On conclusiveness of Judgments, gener-
ally— see notes to Sharon v. Terry, 1 L.R.A.
572; Bollong v. Schuyler Nat. Bank, 3
L.R.A. 142; Wiese v. San Francisco Musical
Fund Soc. 7 L.R.A. 577 ; M'>rriU v. Morrill,
11 L.R.A. 156 ; Shores ▼. Hooper, 11 L.RJL
308; Bank of United States v. Beverly, 11
Lw ed. U. 8. 76 ; Johnson Steel Street R. Co.
V. Wharton, 38 L. ed. U. S. 429; and South-
em P. R. Co. ▼. United States, 42 L. ed.
U. S. 355.
On error to state court in cases arising
under the Federal employers' liability act —
see note to Great Northern R. Co. ▼. Knapp,
ante, 745.
S40 U. 8*
1910.
S£ABOARD A. L. R. 00. ▼. KENNEY.
IN ERROR to the Supreme Court of the
State of North Cftrolina to review a judg-
ment whidi affirmed a judgment of the Su-
perior Court of Bertie County, in that state,
In favor of plaintiff in an action for death,
brought under the Federal employers' liabil-
ity act. Affirmed.
See same case below, 167 N. C. 14, L.R.A.
^, — , 82 S. E. 968.
The facts are stated in the opinion.
Mr. Mnimy Allen argued the cause and
filed a brief for plaintiff in error:
Allegation and proof of the existence of
beneficiaries, as defined by the Federal em-
ployers' liability act, are essential to a
ri^t to recover damages for the death of
an employee.
Michigan C. R. Co. v. Vreeland, 227 U. S.
59, 57 L. ed. 417, 33 Sup. Ct. Rep. 192, Ann.
Cas. 1914C, 176; Garrett v. Louisville & N.
R. Co. 236 U. S. 308, 59 L. ed. 242, 35 Sup.
Ct. Rep. 32; Melzner v. Northern P. R. Co.
46 Mont. 277, 127 Pac. 1002; Illinois C. R.
Co. V. Doherty, 153 Ky. 363, 47 L.KA.(N.S.)
31, 155 S. W. 1119; Thornton. Federal Em-
ployers' Liability Act, § 113; Tiffany, Death
by Wrongful Act, § 182; Serensen v. North-
ern P. R. Co. 45 Fed. 407; Southern R. Co.
V. Maxwell, 113 Tenr. 464, 82 S. W. 1137;
Foster v. St. Luke's HospiUl, 191 IlL 94, 60
N. £. 803.
The expression ''next of kin," as used in
the Federal employers' liability act, is to be
construed in the light of the common law.
State V. Engle, 21 N. J. L. 360; Kitchen v.
Tyson, 7 N. C. (3 Murph.) 314; Adams v
Turrentine, 80 N. C. (8 Ired. L.) 147; Me-
Cool V. Smith, 1 Black, 459, 17 L. ed. 218;
Rice V. Minnesota & N. W. R. Co. 1 Black,
374, 17 L. ed. 161; United States v. Sanges,
144 U. S. 311, 36 L. ed. 445, 12 Sup. Ct.
Rep. 609; United States v. Wong Kim Ark,
169 U. S. 654, 42 L. ed. 892, 18 Sup. Ct. Rep.
456; Charles River Bridge v. Warren Bridge,
11 Pet. 420, 9 L. ed. 773; Standard Oil Co.
v. United States, 221 U. S. 1, 69, 65 L. ed.
619, 644, 34 L.RJ^.(N.S.) 834, 31 Sup. Ct.
Rep. 502, Ann. Oss. 1912D, 734; United
States T. American Tobacco Co. 221 U. S.
106, 55 L. ed. 663, 31 Sup. Ct Rep. 632;
Western U. Teleg. Co. v. Call Pub. Co. 181
U. S. 92, 103, 45 L. ed. 765, 771, 21 Sup.
Ct Rep. 561; Capital Traction Co. v. Hof,
174 U. S. 8, 43 L. ed. 875, 19 Sup. Ct. Rep.
580; Murray ▼. Chicago & N. W. R. Co, 62
Fed. 24; Truelove v. Truek>ve, 172 Ind.
444, 27 LJLA.(N.S.) 220, 139 Am. St Rep.
404, 86 N. E. 1018, 88 N. £. 616; Michigan
0. R. Co. ▼. Vreeland, 227 U. S. 59, 57 L. ed.
417, 33 Sup. Ct Rep. 192, Ann. Cas. 1914C,
176; Garrett v. Louisville & N. R. Co. 235
U. S. 308, 59 L. ed. 242, 35 Sup. Ct. Rep.
32; Seaboard Air Line R. Co. v. Horton, 233
•0 li. ed.
U. S. 492, 58 L. ed. 1062, LJLA.1915C, 1,
34 Sup. Ct. Rep. 636, 8 N. C. C. A. 834, Ann.
Cas. 1915B, 475; Missouri, K. & T. R. Co. v.
Harriman, 227 U. S. 667, 67 L. ed. 690, 33
Sup. Ct. Rep. 397; Adams Exp. Co. v.
Croninger, 226 U. S. 491, 57.L. ed. 814, 44
LJtA.(N.S.) 257, 33 Sup. Ct Rep. 148.
Where a statute of anotiier state or
country ia mainly adopted, thou^^ not en-
tirely, and unchanged, the prior decisions of
the foreign court interpreting the statute
are entitled to great weight
2 Lewis's Sutherland, Stat. Constr. § 404;
11 Enc. U. S. Sup. Ct. Rep. 153; Cathcart v.
Robinson, 5 Pet. 264, 8 L. ed. 120; Robinson
V. Belt, 187 U. S. 47, 47 L. ed. 68, 23 Sup.
Ct. Rep. 16.
The Federal act has as the basis of its
enactment Lord Campbell's act.
Michigan C. R. Co. v. Vreeland, 227 U. S.
59, 67 L. ed. 417, 33 Sup. Ct. Rep. 192, Ann.
Cas. 1914C, 176.
The English courts have held that a bas-
tard is not a ''child" within the provisions
of Lord Campbell's act.
Dickinson v. North Eastern R. Co. 2
Hurlst. & C. 735, 33 L. J. Exch. N. S. 91, 9
L. T. N. S. 209, 12 Week. Rep. 62.
At common law the words "parent,"
''child," "next of kin," and words of simi-
lar import, were held to relate only to those
who are legitimate.
McCool V. Smith, 1 BUck, 459, 17 L. ed.
218; Jones v. Jones, 234 U. S. 615, 58 L. ed.
1600, 34 Sup. Ct. Rep. 937; Coor v. Starling,
54 N. C. (1 Jones, Eq.) 243.
Words of kindred, when used in a statute
creatihg a right of action for death by
wrongful act, refer solely to legitimates.
Lynch v. Knoop, 118 La. 611, 8 LJIJL
(N.S.) 480, 118 Am. St. Rep. 391, 43 So. 252,
10 Ann. Cas. 807; Dickinson v. North East-
em 'R. Co. supra; Gibson v. Midland R. Co.
2 Ont. Rep. 658; Clarke v. Carfin Coal Co.
[1891] A. C. 412; McDonald v.* Southern R.
Co. 71 S. C. 352, 2 L.RJl.(N.S.) 640, 110
Am. St. Rep. 576, 51 S. E. 188; Robinson v.
Georgia R. & Bkg. Co. 117 Ga. 168, 60
L.RJL. 555, 97 Am. St Rep. 156, 43 S. E.
452; Illinois C. R. Co. v. Johnson, 77 Miss.
727, 51 L.RJL. 837, 28 So. 753; Runt ▼.
Illinois C. R. Co. 88 Miss. 575, 41 So. 1 ; Mo-
Donald V. Pittsburgh, C. C. & St L. R. Co.
144 Ind. 459, 32 L.R.A. 309, 55 Am. St. Rep.
185, 43 N. E. 447; Tiffany, Death by
Wrongful Act, 2d ed. § 85.
In its sphere the Federal act is complete,
and in matters of substance it is not to be
added to or changed by state regulatioiis.
Michigan C. R. Co. v. Vreeland, supra;
Southern R. Co. v. Jacobs, 116 Va. 189, 81
S. E. 99; Doherty, Liability of Railroads to
Interstate Employees, p. 241; Taylor v.
Tayk>r, 232 U. & 363, 58 L. ed. 638, 34 Sup.
7%^
491,942
SUPRE^fE COURT OF THE UNITED STATEa
Cor. TkiM,
Ct Rep. 860, e N. C. 0. A. 436; Second Em-
ployers' Liability Cases (Mondou v. New
York, N. H. & H. R. Co.) 223 U. S. 1, 66
L. ed. 327, 38 LJIA.(N.S.) 44, 32 Sup. Ct.
Rep. 169, 1 N. C. C. A. 876; Seaboard Air
Line R. Co. ▼. Horton, 233 U. S. 492, 68 L.
ed. 1062, L.RJL1915C, 1, 34 Sup. Ct Rep.
636, 8 N. 0. C. A. 834, Ann. Cas. 1916B, 476;
McGovern v. Philadelphia &, R. R. Co. 236
U. S. 389, 69 L. ed. 283, 36 Sup. Ct. Rep.
127, 8 N. C. C. A. 67; Norton v. Erie R. Co.
163 App. Diy. 468, 148 N. Y. Supp. 771.
Uniformity in the application of the
Federal employers' liability act will be en-
tirely destroyed if the expression ''next of
kin" is to be defined in accordance with the
legislation and judicial decisions of the
various states.
Butler V. Elyton Land Co. 84 Ala. 384, 4
So. 676; Bent ▼. St. Vrain, 30 Mo. 268;
Woodward v. Duncan, 1 Coldw. 662; Bacon
t; McBride, 32 Vt. 686; Woltemate's Appeal,
86 Pa. 219; Remington y. Lewis, 8 B. Mon.
606; McBryde ▼. Patterson, 78 N. C. 412;
Croan ▼. Phelps, 23 L.RA. 763, note; Smith
▼. Howard, 41 Am. St. Rep. 637, and note,
86 Me. 203, 29 Atl. 1008; Leake t. Gilchrist,
13 N. C. (2 Dey. L.) 76; Alyany y. Powell,
66 N. C. (2 Jones, Eq.) 61; Medley v. Dun-
lap, 90 N. C. 627; 14 Cyc 24.
If Sills Hardy, Joe Hardy, and Nettie
Hardy are the next of kin of the deceased
employee, plaintiff has failed to show that
they were dependent upon such employee.
Illinois C. R. Co. y. Doherty, 163 Ky. 363,
47 LJUIl.(N.S.) 31, 166 S. W. 1119; Jones
y. Charleston & W. C. R. Co. 98 S. C. 197,
82 S. E. 415; Dooley y. Seaboard Air Line
R. Co. 163 N. C. 464, L.R.A.1916E, — , 79
S. E. 970; Cincinnati, N. 0. & T. P. R. Co.
y. Wilson (Cincinnati, N. 0. & T. P. R. Co.
y. Stephens) 157 Ky. 460, 61 L.R.A.(N.S.)
308, 163 S. W. 403; Garrett y. Louisville' &
N. R. Co. 117 C. C. A. 109, 197 Fed. 715, 3
N. C. C. A. 769, affirmed in 285 U. S. 308, 59
L. ed. 242, 36 Sup. Ct. Rep. 32; Gulf, C. &
S. P. R. Co. v. McGinnis, 228 U. S. 173, 67 L.
ed. 786, 33 Sup. Ct. Rep. 426, 3 N. C. C. A.
806; Mchigan 0. R. Co. v. Vreeland, 227
U. S. 69, 67 L. ad. 417, 33 Sup. Ct. Rep. 192,
Ann. Gas. 1914C, 176; Little v. Caldwell, 158
N. C. 351, 39 L.RA.(N.S.) 460, 74 S. E. 10;
Stimpson y. Wood, 67 L. J. Q. B. N. S. 486,
69 L. T. N. S. 218, 36 Week. Rep. 734, 52
J. P. 822; Standard Forgings Co. v. Hohn-
strom, 68 Ind. App. 306, 104 N. E. 872, 7
N. C. C. A. 713; 13 Cye. 861; Sedgw. Dam-
ages, 9th ed. § 170.
Mr. Francis D. Wlnaton argued the
cause, and, with Mr. J. H. Matthews, filed
a brief for defendant in error:
The question of relationship between the
beneflciariea in this oaae and tbair iUegiti-
7«4
mate half brother by the same mother is to
be determined by the laws of North Caro-
lina, where they live.
Re Burms, 136 U. & 680, 84 L. ed. 601,
10 Sup. Ct. Rep. 860; Cope y. Cope, 137 U.
S. 686, 34 L. ed. 833, 11 Sup. Ct Rep. 222;
Hutchinson Invest. Co. v. Caldwell, 162 U.
S. 66, 38 L. ed. 366, 14 Sup. Ct Rep. 604;
United SUtes v. Fox, 04 U. S. 316, 320, 24
L. ed. 192, 193; Cade v. Davis, 96 N. a 147,
2 S. E. 226; Lamar v. Micou, 112 U. S. 462,
28 L. ed. 761, 6 Sup. Ct. Rep. 221; Knights
Templars & M. Mut. Aid Asso. y. Greene,
79 Fed. 461.
The next of kin were dependent upon de-
ceased within the meaning of the act.
Dooley v. Seaboard Air Line R. Co. 163
N. C. 464, L.ILA.1916E, — , 79 S. E. 970;
Michigan C. R. Co. v. Vreeland, 227 U. S.
59, 67 L. ed. 417, 33 Sup. Ct Rep. 192, Ann.
Cas. 1914C, 176; American R. Co. v.
Didricksen, 227 U. S. 146, 57 L. ed. 466, 33
Sup. Ct. Rep. 224; Gulf, C. k S. F. R. Co. v.
McGinnis, 228 U. S. 173, 67 L. ed. 786, 33
Sup. Ct. Rep. 426, 3 N. C. a A. 806.
Mr. Chief Justice White delivered .the
opinion of the court:
The trial court on the verdict of a jury
entered judgment against the plaintiff in
error for the sum of $800 for the negligent
killing of Capehart, who was one of its
employees, and this writ of error is prose-
cuted to reverse the action of the court be-
low, affirming such judgment. 167 N. C. 14,
L.RJ^.— , — , 82 S. E. 968. At the time of
his death Capehart was a minor and was
employed by the defendant company as a
switchman. The accident occurred in North
Carolina on an interstate freight train
moving from a point in North Carolina to
one in Virginia. The suit to recover was
specifically based on the employers' liabil-
ity act of April 22, 1908, 35 Stat at L. 65,
chap. 149, as amended April 6, 1910, 36
Stat at L. 291, chap. 143, Comp. Stat 1913,
§ 8662, and as both parties concede that
that act was applicable, that subject may be
put out of view.
[402] The deceased was a natural
or illegitimate child, bom in North Caro-
lina, and the next of kin for whose
benefit the administrator sued, he having
been qualified at the alleged domidl
of the deceased in North Cut>lina, were
three minor children of the deceased's
mother, the issue of a marriage by
her contracted after his birth, she, the
mother, being dead at the time of the acci-
dent. There was no question in the court
below as to nonliability because of an ab-
sence of negligence, since, as pointed out by
the court, the sole contention pressed upoa
it for reversal was that the tbunages for the
140 V. B.
101S.
8KAB0ABD A. L. R. 00. ▼. KENNEY.
40&-404
death had bceo awarded to peraons who wert
not entitled to the recovery as next of kin
vnder the act of Congress, even although
they were the next of kin by the law of the
•tate. Thus the court said: "The solo con-
tention of the defendant requiring our con-
sideration is that the expression 'next of
kin,' as used in f 1 of this act [the act of
Congress], is to be construed by the common
law, disregarding the state law defining
those words." After then quoting from the
%tate statute on the subject, the court fur-
ther said: "It is very clear that in North
Carolina the two half brothers and the sister
of the intestate are his next of kin. It seems
to us immaterial whether it were formerly
otherwise in this state, either by statute or
the common law before any statute. The
question is. Who was the 'next of kin' at
the time of such death in the state where
the wrongful death occurred?" Proceeding
to examine and decide this question, it was
held that next of kin for the purpose of the
recovery under the act of Congress were the
next of kin as established by the law of the
state where the right to recover obtained.
And it is the correctness of this ruling
which we are alone called upon to consider,
since, despite the great number of assign-
ments of error which are made, they all
in last analysis depend upon that question.
We need not stop to review the assignments
to demonstrate this fact, since in argument
they are all stated as embracing the solution
of three [403] inquiries, which, as we shall
see when we oonsifder them, will be virtually
disposed of by deciding the single question
concerning the correctness of the ruling of
the court below as to the next of kin under
the statute. The three questions thus stated
are in substance as follows: First, whether
the minor children, who, under the law of
North Carolina, were the next of kin of
their natural or illegitimate brother, be-
cause of their common motherhood, were the
the next of kin under the act of Congress?
Second, if, in the absence of a parent, they
were so, would the proof of the existence of
an asserted father of the deceased make
such person his parent within the act of
Congress, excluding the right of the next of
kin to recover the damages? Third, if the
minor brothers and sister were next of kin
under the act of Congress, had they such
dependency on the deceased as gave them
any right to recover under the act?
We consider the questions separately.
1. There can be now no question that the
mtt of Congresa in so far as it deals with
the subjects to which It relates is paramount
and ezehisive. It is therefore not dispu-
table that recovery under the act can be
had alone in the mode and by and for the
persons or class of persons in whose favor
•0 li. ed.
the law creates and bestows a right of ac-
tion. Second Employers' Liability Cases
(Mondou T. New York N. H. k H. R. Co.)
223 U. S. 1, 56 L. ed. 327, 38 L.R.A.(N.S.)
44, 82 Sup. Ct Rep. 160, 1 N. a C. A. 875;
Michigan C. R. Co. v. Vreeland, 227 U. S.
69, 67 L. ed. 417, 33 Sup. Ct Rep. 192,
Ann. Cas. 1914C, 176; Taylor v. Taylor,
232 U. S. 363, 58 L. ed. 638, 34 Sup. Ct.
Rep. 350, 6 N. C. C. A. 436; Seaboard Air
Line R. Co. v. Horton, 233 U. S. 492, 601,
58 L. ed. 1062, 1068, L.RJk.l915C, 1, 34
Sup. Ct Rep. 635, Ann. Cas. 1915B, 475,
8 N. C. C. A. 834. But this is irrelevant,
since the controversy concerns only the
meaning of the act, which it is conceded,
when rightly interpreted, is entitled to ex-
clusive operation.
Plainly the statute contains no defini-
tion of who are to constitute the next of
kin to whom a right of recovery is granted.
But, as speaking generally under our dual
system of government, who are next of kin
is determined by the legislation of the vari-
ous states to whose authority that subject
is normally committed, it would seem to be
clear that the absence of a definition in the
act of Congress [404] plainly indicates the
purpose of Congress to leave the determina-
tion of that question to the state law. But,
it is urged, as next of kin was a term well
known at common law, it is to be presumed
that the words were used as having their
common-law significance, and therefore as
excluding all persons not included in the
term under the common law; meaning, of
course, the law of England as it existed at
the time of the separation from the motht,r
country. Leaving aside the misapplication
of the rule of construction relied upon, it
is obvious that the contention amounts to
saying that Congress, by the mere state-
ment of a class, that is, next of kin, with-
out defining whom the class embraces, must
be assumed to have overthrown the local
law of the states, and substituted another
law for it; when conceding that there was
power in Congress to do so, it is clear that
no such extreme result could possibly be
attributed to the act of Congress without
express and unambiguous provisions render-
ing such conclusion necessary. The truth
of this view will be made at once additional-
ly apparent by considering the far-reaching
consequence of the proposition, since, if it
be well founded, it would apply equally to
the other requirements of the statute,*-to
the provisions as to the surviving widow,
the husband and children, and to parents,
thus, for the purposes of the enforcement
of the act, overthrowing the legislation of
the states on subjects of the most intimate
domestic character, and substituting for it
the common law as stereotyped at the time
7«5
494-497
SUPREME COURT OF THE UNITED STATES.
Oor. TtMH,
of the leparationi The argument that such
result must have been intended, since it is
to be asirumed that Congress contemplated
imiformity, that is, that the next of kin
entitled to take under the statute should be
uniformly applied in all the states, after all
comes to saying that it must be assumed
that Congress intended to create a uniform-
ity on one subject by producing discord and
want of uniformity as to many others.
But we need go no further, since the want
of merit in the [405] contention is fully
demonstrated by authority. In Hutchinson
Invest. Go. y. Caldwell, 152 U. S. 65, 38 L.
ed. 356, 14 Sup. Ct Rep. 504, the matter
under consideration was § 2269, Revised
Statutes, giving to the heirs of a deceased
pre-emptor who had died before completing
his entry the right to perfect the same, the
statute providing: "But the entry in such
cases shall b^ made in favor of the heirs of
the deceased pre-emptor, and a patent there-
on shall cause the title to inure to such
heirs, as if their names had been specially
mentioned." The controversy was whether
the word "heirs" under the statute should
be taken in its common-law meaning, and
therefore not to give a right to complete
the entry to illegitimate children who had
been recognized by their father, the pre-
emptor, and who were his heirs under the
"law of the state of Kansas, where the land
was stipulated and where the deceased pre-
emptor was domiciled. The court said:
"We are unable to concur with counsel for
plaintiflTs in error that the intention should
be ascribed to Congress of limiting the
words 'heirs of the deceased pre-emptor' as
used in the section to persons who would
be heirs at common law (children not born
in lawful matrimony being, therefore, ex-
cluded), rather than those who might be
such according to the lex rei Htae, by which,
generally speaking, the question of the de-
scent and heirship of real estate is exclusive-
ly governed. If such had been the inten-
tion, it seems clear that a definition of the
word 'heirs' would have been given, so as to
withdraw patents issued under this section
from the operation of the settled rule upon
the subject. . . . But it is contended that
the word 'heirs' was used in its oommon-law
sense, and it is true that technical legal
terms are usually taken, in the absence of
a countervailing intent, in their established
eommon-law signification; but that consid-
eration has no controlling weight in the
construction of this statute. Undoubtedly
the word 'heirs' was used as meaning, as at
.oommon law, those capable of inheriting, but
it does not follow that the question as [406]
to who possessed that capability was there-
by designed to be determined otherwise than
bjr the Jaw of the state which was both the
70e
situs of the land and the domieil of the
owner." pp. 68, 60. And there is no
ground for taking this case out of the rule
thus announced upon the theory that the
controversy involved the title to real estate,
contracts concerning which are governed by
the law of the situs, since we are dealing
here with the subject of next of kin, which,
so far as legislative power is concerned, un-
der our constitutional system of govern-
ment, is inherently local and to ie deter-
mined by the rules of the local law. And
this is well illustrated by Blagge v. Blach,
162 U. S. 439, 40 L. ed. 1032, 16 Sup. Ct
Rep. 853, which involved a controversy as
to the distribution of French spoliation
claims awarded under an act of Congress
providing "that in all cases where the origi-
nal sufferers were adjudicated bankrupts
the awards shall be made on behalf of the
next of kin instead of to assignees in bank-
ruptcy. ..." [26 Stat, at L. 908,
chap. 540.] Without going into detail con-
cerning the controversy in that case it suf-
fices to say that if the next of kin entitled
to take under the act of Congress had been
ascertained under the rule of the common
law, there would have been one result, and
if determined by the law of the state con-
trolling distributions, another and different
result followed. Coming to determine the
significance of the words "next of kin" from
the act itself and its context, the court said :
"And we are of opinion that Congress, in
order to reach the next of kin of the origi-
nal sufferers, capable of ^king at the time
of distribution, on principles universally ac-
cepted as most just and equitable, intended
next of kin according to the statutes of dis-
tribution of the respective states of the dom-
ieil of the original sufferers."
2 and 3. The suggestion rather than con-
tention that if the state law be held appli-
cable to determine next of kin, the right
should have been recognized to seek to trace
the paternity of the illegitimate child, so
as to make the [407] asserted father
the parent under the statute, might well
be disposed of by saying that no such
contention seems to have been urged in
either of the courts below. But, aside
from this, the entire want of merit of
the proposition is at once demonstrable
from a twofold point of view: (a) Be-
cause it was necessarily foreclosed 1^ the
ruling of the court below as to the state
law concerning the next of kin and the right
of the brothers and sister of the illegitimate
child to inherit from him solely because ci
a common motherhood, — a ruling which ex-
cluded by necessary implication the right
now contended for. (b) Because aa no pro-
vision, either of the state law or of the
common law, supporting the asserted rights
140 U. 8*
1915.
FARMERS' 4 M. NAT. BANK t. RIDQB AVE. BANK.
497, 498
is rgf erred to, the suggestion may be taken
as simply a typical illustration of the con-
Insioii oi thought involved in the main
proposition relied upon which we have pre-
viously adversely disposed of.
In so far as it is suggested that there
was no proof tending to show a dq>endent
relation between the next of kin who were
recognised and the deceased, so as to justi-
fy recovery under the statute, it suiBoes to
say that it was expressly foreclosed by the
finding of the jury, sanctioned by the trial
court, and was not questioned in the court
below, and at all events involves but a con-
troversy as to the tendencies of all the
proof, foreclosed by the action of both
courts, which we would not reverse without
a clear conviction of error, which, after an
examination of the record on the subject,
we do not entertain. Great Northern R.
Oo. V. Knapp, 240 U. B. 464, ante, 745, 36
Sup. Ct Rep. 399.
Affirmed.
[408] FARMERS' & MECHANICS' NA-
TIONAL BANK OF PHILADELPHIA
V.
RIDOE AVENUE BANK et al.
(See S. C. Reporter's ed. 498-509.)
Bankruptcy — distribution — priorities
— partnership and individual credi-
tors.
The lack of any partnership assets
and of any solvent partner does not disen-
title a creditor of an individual partner in
a bankrupt firm to be paid out of ^at part-
ner's individual estate to the exclusion, if
necessary, of the creditors of the partner-
ship estate, upon the theory that such con-
ditions create an exception to the general
rule for the distribution of partnen^ip
and individual estates in iMinla'uptcy, ex-
pressed in the bankrupt act of July «1, 1898
(80 Stat, at L. 548, diap. 541, Comp. Stat.
1913, i 9589), f 5, i^., that partnership
creditors shall, in the first instance, be
satisfied from the net proceeds of the part-
nership estate, and creditors of an inoivid-
ual partner from the net proceeds of that
partner's individual estate, since such an ex-
ception is not compatible with the other
provisions of that section which empower
courts of bankrupt^ to adjudge a partner-
ship a bankrupt^ and to administer the part-
nership estate so far as possible as any
other estate, and authorize them to permit
the proof of the claim of the partnership
estate against the individual estates, and
viae versa, and to marshal the assets of ^e
NoTBd — On adjudication of bankruptcy of
member of firm as affecting rights of firm
creditors against firm property — see note to
American Steel A Wire Co. v. Coover, 80
L.R.A.(N.S.) 787.
•9 Ii. ed.
partnership estate and individual estates so
as to prevent preferences and secure the
equitable distribution of the property of the
several estates.
^^inuSJ's. M^"*^*^'' ^ ^ '' *-
[No. 291.]
Argued March 15, 1916. Decided April 8,
1916.
ON A CERTIFICATE from the United
States Circuit Court of Appeals for the
Third Circuit, presenting the question as to
the right of a creditor of an individual part-
ner in a bankrupt firm to be paid out of
that partner's individual estate to the ex-
clusion, if necessary, of the creditors of the
partnership estate. Answered in the af-
firmative.
The facts are stated in the opinion.
Mr. J. Frank Staley argued the cause
and filed a brief for the Farmers' A Me-
chanics' National Bank:
Clause "f of S 5 of the bankruptcy act
lays down a positive and direct rule of dis-
tribution, and requires the appropriation of
the net proceeds of the individual estate of
each partner to the payment of such indi-
vidual debts, and partnership creditors are
entitled to share therein only after such in-
dividual debts have been paid in fulL The
existence or nonexistence of firm assets for
distribution cannot affect or vary the rule.
Re Janes, 67 C. C. A. 216, 133 Fed. 912;
Euclid Nat. Bank v. Union Trust A D. Co.
79 C. C. A. 485, 149 Fed. 975; Mills v.
Fisher, 16 L.RJk.(N.S.) 656, 87 C. C. A. 77,
159 Fed. 897; Re Wilcox, 94 Fed. 84; Re
Daniels, 110 Fed. 745; Re Hull, 224 Fed.
796; Re Mills, 95 Fed. 269.
Historically, the rule of distribution pro-
vided by clause "f" is the re-enactment of
the rule in equity governing the adminis-
tration of the estates of insolvent partners,
which has been in practice from the begin-
ning of our judicial history.
Murrin v. Neill, 8 How. 414, 12 L. ed.
1135.
Mr. Frank R. Sarldge argued the cause
and filed a brief for the Ridge Avenue Bank
ct al.:
The equitable principle, commonly called
an exception to tiie general rule, that firm
creditors share equally with separate
creditors of the partners In individual as-
sets, where there are no firm assets and no
living solvent partner, is supported by the
best authority.
lindley, Partn. 8th ed. p. 811, note, p.
855; Gilniore, Partn. pp. 438, 439; Parsons,
Partn. 2d ed. p. 500; Collyer, Partn. 6th ed.
p. 1459; Story, Partn. 7th ed. i 380. See
787
601, 502
SUPREME COURT OF THE UNITED STATSa
Oor. Tbu,
Also LoveUnd, Bankr. 1012, S 273; Bispham,
Eq. 0th ed. § 517; Rd Carpenter, 7 Morrell,
270; Ex parte Taitt, 16 Yes. Jr. 103.
Under the bankruptcy act of 1867 the
weight of authority, following the English
doctrine, supported this principle as a part
of the long-established equitable method
of distribution, and allowed firm crediton
to participate in separate assets where there
was no partnership fund for distribution;
and this, regardless of whether the partner-
ship was in bankruptcy or not. This
method of diBtribution, the courts held,
tended to produce the equality which it
was the manifest purpose of the act to
secure. Cases supporting it are:
Re Jewctt, 1 Nat. Bankr. Reg. 401, Fed.
Cas. No. 7,304; Re Knight, 2 Biss. 518, 8
Nat. Bankr. Reg. 436, Fed. Cas. No. 7,880;
Re Downing, 1 Dill. 33, 3 Nat. Bankr. Reg.
748, Fed. Cas. No. 4,044; Re Rice, 0 Nat.
Bankr. Reg. 373, Fed. Cas. No. 11,750; Re
McEwen, 6 Biss. 204, 12 Nat. Bankr. Reg.
11, Fed. Cas. No. 8,783; Re Collier, 12
Nat. Bankr. Reg. 266, Fed. Cas. No. 3,002.
Under the bankruptcy act of 1808, al-
though there is a conflict in the decisions
among circuit courts of appeals and the
lower Federal courts, it is submitted that
the courts which have considered the
matter, as should be done, in the light of
its equitable foundation and development,
and have kept in mind the intent and pur-
pose of the bankruptcy act, have sustained
the exception where the facts were substan-
tially as in this case.
Re Green, 116 Fed. 118, 8 Am. Bankr.
Rep. 553; Conrader v. Cohen, 58 C. C. A.
240, 121 Fed. 801, affirming 118 Fed. 676; Re
Gray, 208 Fed. 050.
The courts which adopt the narrow view,
as in the Wilcox Case and those following
it, disregard not only the equitable princi-
ples underlying the bankruptcy act, but
also the fact that a bankruptcy court is one
of equity, administering the law, not merely
according to the letter, or as read literally,
but according to its spirit, and lose sight of
the fact that the act is not antagonistic to,
but is in support of, the equitable principle
aforesaid.
Re Kane, 11 Am. Bankr. Rep. 533.
The great majority of the states of the
Union sustain the exception in distributing
insolvent partnership and individual estates
in equity. Among the states allowing it
are Alabama (Smith v. Mallory, 24 Ala.
628) ; New Jersey (Davis v. Howell, 33 N. J.
Eq. 72) ; Missouri (Level v. Farris, 24 Mo.
App. 445; Hundley v. Farris, 103 Mo. 78, 12
L.RJk. 254, 23 Am. St. Rep. 863, 15 S. W.
812); Rhode Island (Colwell v. Weybosset
Nat Bank, 16 R. I. 288, 15 Atl. 80, 17 Atl.
•913); Wiaconam (ThAyer ▼. Humphrey, 01
res
Wis. 276, 30 L.RJL 549, 51 Am« St Rep.
887, 64 N. W. 1007); Maine (Harris ▼.
Peabody, 73 Me. 262); Ohio (Rodgen ▼.
Meranda, 7 Ohio St 170).
The so-called exception is instained by
reason and equity.
Gilmore, Partn. p. 430; Re Knight, 8 Nat
Bankr. R^. 436, Fed. Gas. No. 7,880; B«
Green, 116 Fed. 118.
Mr. Chief Justice White dellTered the
opinion of the court:
The essential facts stated in the certifi-
cate of the court below are these: The firm
of William Qray k Sons and its three part-
ners, William J. Gray, Peter Gray, and
Alexander J. Gray, were adjudged bank-
rupts. The same person was appointed
trustee of the four estates. It resulted from
charging separately against each estate the
mere necessary and unquestioned expenses
of administration that there was nothing
whatever in the estate either of the partner-
ship, of that of William J. Gray or of Peter
Gray, — indeed in the latter there was noth-
ing to defray the expenses of administra-
tion. As to the estate of Alexander J. Gray,
after charging the expenses of administra-
tion there ren&ained $1,507.26. Creditors
of the ffrm proved their debts against it,
the Ridge Avenue Bank of Philadelphia be-
ing among the number, while only one cred-
itor, the Farmers' k Mechanics' National
Bank of Philadelphia, proved a debt against
the individual estate of Alexander J. Gray,
that debt exceeding the total sum of the
estate. No creditor proved against the in-
dividual estate of William J. Gray or that
of Peter [502] Qray. Under these condi-
tions the dispute which arose was whether
the estate of Alexander J. Gray was to go
wholly to the Farmers' & Mechanics' Na-
tional Bank, the individual creditor, or was
to be proportionately applied to the indi-
vidual and firm creditors because of the
absence of any firm estate for distribution.
The district court directed the fund to be
distributed between the Farmers' 4 Me-
chanics' National Bank, the creditor of the
individual estate, and the creditors of the
firm, and the question of law which the
court below propounds to enable it to re-
view this action of the district court, fcs as
follows:
"When a partnership as such is luolysBty
and when each individual member is also
insolvent, and when the only fund for dis-
tribution is produced by the indiTldaal es-
tate of one member, are the individual cred-
itors of such member entitled to priority
in the distribution of the fundf*
The solution of this question primarily
depends upon an interpretation of subsec-
tion f of § 5 of the bankrupt^ aot of 1808»
140 U. B.
1915.
FARMBRS' k M. NAT. BANK ▼. RIDQE AVE. BANK.
602^605
•nd leoondmrily upon a consideration of all
tlie pertinent subsections of the section;
indeed, of all the relevant provisions of the
context of the act. Subsection f is as fol-
lows:
"f" The net proceeds of the partnership
property shall be appropriated to the pay-
ment of the partnership debts, and the net
proceeds of the individual estate of each
partner to the payment of his individual
debts. Should any surplus remain of the
property of any partner after paying his
individual debts, such surplus shall be add-
«d to the parUiership assets and be ap-
plied to the payment of the partnership
debts. Should any surplus of the partner-
ship property remain after paying the part-
nership debts, such surplus shall be added
to the assets of the individual partners in
the proportion of their respective interests
in the partnership." [30 Stat, at L. 648,
«hap. 541, Comp. Stat. 1913, § 9589.]
[503] Let us first sift the respective
contentions so as to reach the ultimate
proposition required to be decided. In the
first place, in favor of the right of the
•creditor of the individual partner to be
paid, under the facts stated, out of the
individual estate, to the entire exclusion,
if necessary, of the creditors of the part-
nership estate, it is urged that such result
is so unambiguously commanded by the
rule of distribution established by the
text of subsection f that there is no room
for oonstruction, but the simple duty
arises to enforce the text, as to do
otherwise would amount to judicial legis-
lation. It is undoubted that this proposi-
tion is supported by largely the greater
weight of opinion of the courts of the Unit-
ed States in enforcing subsection f. Re
Wilcox, 94 Fed. 84 (1899); Re Mills, 95
Fed. 26d (1899) ; Re Daniels, 110 Fed. 745
(1901); Re Janes, 67 C. C. A. 216, 133
Fed. 912 (1904), reversing 128 Fed. 527;
Re Henderson, 142 Fed. 688 (1906); £u-
-did Nat. Bank v. Union Trust & D. Co. 79
C. C. A. 485, 149 Fed. 976 (1906), affirm-
ing Re Henderson, supra; Mills v. Fisher,
16 L.R.A.(N.S.) 656, 87 C. C. A. 77, 159
Fed. 897 (1908); Re Hull, 224 Fed. 796
(1915).
On the other hand, to refute the proposi-
tion and to avoid the effect of the authori-
ties sustaining it just referred to three^ con-
tentions are relied upon, (a) It is said
the absence of ambiguity in the general rule
as stated in subsection f is conceded and the
aoondness of the authorities cited recog-
nising that faet is not disputed, but these
concessions, it is declared, are negligible,
since the fact that there were no- partner-
ship assets and no solvent partner causes
this case to be an sxception to the rule sx-
pressed in subsection f, hence not governed
by it, and therefore makes it clear that the
authorities cited are inapposite because they
mistakenly applied the general rule to an
exceptional case which that rule did not
govern, (b) That this is demonstrated first
by the fact that the general rule [604]
was as unambiguously expressed in the
previous bankruptcy acts (§ 14 of the act of
1841 [6 Stat, at L. 448, chap. 9] and § 36
of the act of 1867 [14 Stat, at L. 534, chi^p.
176] ) , and yet, under those acts, the excep-
tion stated, which unquestionably governed
in bankruptcy in England, where the gener-
al rule was the same, was also held to be
controlling by judicial decisions in this
country. This being true, the argument
insists the inference is that Congress, in
adopting the act 1898 without any expres-
sion excluding the continued operation of
the exception which prevailed imder the pre-
vious acts, must be considered as having
impliedly recognized the continued force of
that exception; that is, must be held to
have substantially made that exception a
part of the rule established under the act
of 1898. And this view, it is insisted, is
expressly sustained by the following decid-
ed cases imder the act of 1898: Re Green,
116 Fed. 118 (1902); Re Conrader, 118
Fed. 676 (1902); Conrader v. Cohen, 58
C. C. A. 249, 121 Fed. 801 (1903), affirming
Re Conrader, supra; Re Janes, 128 Fed.
527 (1904), reversed in 67 C. C. A. 216,
133 Fed. 912; and by the present case. Re
Gray, 208 Fed. 969 (1913), and is in rea-
son supported by the adjudged cases which
upheld the asserted exception under the
prior acts.
(c) That even if this be held to be not
the case, as there is nothing in the act of
1898 repudiating the application and exist-
ence of the exception which prevailed un-
der the previous acts, therefore, as a ques-
tion of original investigation, that excep-
tion should be held to be equally applicable
and controlling under the act now in force
as it was imder the previous bankruptcy
acts, since the general rule was as clearly
stated in those acts as it is in this.
A twofold reply is made to these conten-
tions: First, although admitting that the
alleged exception prevailed in England, it
is denied that it was authoritatively rec-
ognized in this country under the previous
acts, and second, by insisting that even if
it was, it is not applicable under [505] the
act of 1898 because the terms of that act
make manifest that it was drawn for the
purpose of preventing the method of dis-
tribution provided in subsection f from be-
ing subject to the exception relied upon.
As we are of opinion that it is to be con-
' ceded that if, under the prior acts, it was
49 7 ft
006-607
SUPREME COURT OF THE UNITED STATES.
Ooi. Temm,
fettled authoritatiTely and oonelusiYely that
the exception relied upon obtained and waa
fully recognized in practice, it would follow
that the enactment of the eame general
rule without anything indicating a depart-
ure from the exception would justify the
conduaion that it waa the legislative in-
tent to continue the exception, it reeulta
that, in order to answer the question pro-
pounded, the whole case comes to two in-
quiries: Was there such an authoritative
exception to the general rule under the pri-
or laws, and, if not, was the continued ex-
istence of such exception compatible with
the rule of distribution established by sub-
section f of the present act as considered
in the light of the context of f 6 of which
it forms a part, and of the scope and opera-
tion of the act of 1898?
1. Undoubtedly in Englsnd, with the de-
velopment of the general rule for the dis-
tribution of partnership and individual
estates in bankruptcy as now formulated in
subsection f of the present bankruptcy act,
there also was evolved in practice the so-
called exception here relied upon which
was applicsble in cases where there was no
partnership estate to distribute and no
solvent partner. We content ourselves with
this statement, and do not refer to the ad-
judged cases in England establishing the
rule, and those from which the alleged ex-
ception came to be evolved, since they were
quite fully referred to in Murrill v. Neill, 8
How. 414, 12 L. ed. 1135, and will all be
found stated in the fullest degree in the
opinion of Lowell, Judge, in Re Wilcox, 94
Fed. 84. It is also true that this asserted
exception came to be recognized and applied
in adjudged cases in this country under the
prior bankruptcy acts. [606] The cases on
this subject again are not referred to be-
cause they will also be found stated
in the opinion in the Wilcox Case. But,
while this is true, we think there is
no ground for saying that the asserted
exception had become so authoritative-
ly established prior to the adoption of
the present law as to cause it to be in effect
a part of the rule, since on the contrary,
as will be seen by the references already
made, its applicability was constantly dis-
puted and its enforcement challenged.
Nothing more is required to demonstrate
this statement than a recurrence to Mur-
rill V. Neill, supra, since in the opinion in
that case, after considering the general rule
of distribution as now stated in subsection
f, and the alleged exception here under re-
idew, it was said: '^t may be proper in
this place to mention the two departures
permitted by the 'court of ehaneery in Eng-
land from the general rule pursued by that
oourt» whitth departures were adverted to
770
in a previous part of this opinion." After
then stating the first exception, the one now
in question was referred to as follows:
"The second is that in which there are no
joint effects at all. In this last instance it
is said that the joint creditors may come in
for dividends pari pa99u on the separata
effects; though if there be Joint effects,
though of the smallest possible amount, thia
privilege would not be allowed. These ex-
ceptions it seems difficult to reconcile with
the reason or equity on which the general
rule is founded; they are but exceptional
however, and cannot impair that rule.
They do not, for aught we have seen, appear
to have been recognized by the courts of thia
country.** p. 427.
2. Although the alleged exception waa
thi^refore clearly not so authoritatively es-
tablished as to cauie it to become a part
of the rule by the enactment of the bank-
ruptcy act of 1898, it yet remains to con-
sider whether its existence is compatible
with that act; that is, whether to permit
it would be in accord with the rights which
the act gave and the duty which it imposed
to enforce them. In the first [607] place
it is to be observed that the act of 1898 in
the opening subsections of § 5 confers the
power on courts of bankruptcy to adjudge a
partnership a bankrupt and to administer
the partnership estate so far as possible aa
any other estate, — an authority not con-
ferred by the previous bankruptcy acts. In
the second place, subsection f, establishing
the rule of distribution, is immediately fol-
lowed by subsection g, which provides aa
follows:
"The court may permit the proof of the
claim of the partnership estate against the
individual estates, and vice verta, and may
marshal the assets of the partnership estato
and individual estates so as to prevent pref-
erences and secure the equitable distribu-
tion of the property of the several eetatea.'*
The legislative mind must therefore havo
been immediately and directly concerned
with the enforcement of the rule of distri-
bution expressed in subsection f, since that
subject was thus immediately considered
and provided for. And the significance of
this provision and its effect upon the con-
tinued existence of the supposed authority
to depart from the rule expressly provided
for by permitting the alleged exception now
relied upon will become quite dear by the
briefest possible outline of some of the prin-
cipal considerations involved in the origin
and development of that assumed exception.
As pointed out in the opinion in Murrill
V. Neill, supra, and as fully shown by tha
raview of the English cases so carefully
stated in Re Wilcox, supra, to which wa
again refer, that origin and davelopmsnt
S4« V. M.
1916.
ABMOUB & 00. ▼. NOBTH DAKOTA.
607-610
WM thlat It eame to pais in Bngland at
an anetont data that with the eatabliahment
of tha rula of distribution substantially as
formulated in subsection f, it was recog-
nized that a creditor of the joint or partner-
ship estate would be permitted, if no ob-
jection was made, to prove his claim in a
bankruptcy proceeding against an individu-
al partner. This resulted from the fact that
the power of the court over the [508] sep-
arate or individual estate extended not only
to the individual assets, but to the share of
the individual bankrupt in the partnership
assets, the court having power upon appli-
cation, by ordering separate accounts to be
kept, to protect the rights of all and secure
a distribution conformably to the settled
rule. While there is obscurity and conse-
quent'contrariety of opinion as to the rea-
son upon which it was placed, it no doubt
came to pass in a further state of evolution
that both joint and separate creditors were
allowed to prove their claims in bankruptcy
against the separate estate, the practice of
protecting the rights of each by an order
requiring separate accounts disappearing
and the creditors being relegated for the ac-
complishment of that result to a bill in
equity to enforce and secure the distribu-
tion as provided in the rule. It is further
certain that as in every case where an order
was made allowing the joint creditor to
prove against the separate estate of a part-
ner such right would be frustrated by chan-
cery proceedings, it came to pass that joint
creditors were only allowed to prove against
the separate estate upon condition that dis-
tribution would be made conformably with
the general rule in every case where that
course could be compelled by chancery pro-
ceedings. As it came further, however, to
be appreciated that chancery could not af-
ford relief in a case where there was no
joint estate and no solvent partner, it re-
sulted that in such a case the limitation as
to distribution was treated as not applica-
ble, and therefore the alleged exception to
the general rule arose, — an exception which,
as pointd out by this court in Murrill v.
Neill, supra, was but a failure to give effect
to the rule, not because of the absence of
right of the creditors to enjoy its benefit,
but alone because the judicial power had
at its command no remedy which it could
apply to give effect to the legal right whidi
undoubtedly existed.
When the origin and source of the so-
called exception is thus appreciated and the
comprehensive delegation of [500] author-
ity for the first time conferred by subsec-
tion g iB considered, it would seem to be
fairly inferable that at the very moment of
the re-expression of the ancient rule in sub-
section f in terms free from ambiguity, the
•0 Ii. ed.
means of preventing its frustration in the
guise of an exception or otherwise because
of an assumed absence of judicial remedy
to enforce the rule was provided for. And
this being true, it of course results that no
possible reason can be found for refusing to
give effect to the law by permitting the suc-
cessful operation of the so-called exception
now relied upon. In fact, irrespective of the
considerations derived from the origin of
such assumed exception, to which we have
referred, when the positive commands of the
statute are considered and the new power
conferred by the act as to partnership
estates is borne in mind, we see no escape
from the conclusion that the powers con-
ferred by subsection g are coincident with
the duties which the act imposes, and amply
efficient to secure and give effect to their
performance. This, indeed, was the view
hitherto indicated in Miller v. New Orleans
Acid A Fertiliser Co. 211 U. 8. 406, 68 L.
ed. 300, 20 Sup. Ct Rep. 176, where, after
quoting subsection f of the act, it was said:
"To enforce these provisions the act com-
pels (subdiv. d) the keeping of separate ac-
counts of the partnership property and of
the property belonging to the individual
partners; the payment (subdiv. e) of the
bankrupt expenses as to the partnership
and as to the individual property propor-
tionately; and permits (subdiv. g) the proof
of the claim of the partnership estate
against the individual estate, and iHce verso,
and directs the marshaling of the assets of
the partnership estate and the individual
estates 'so as to prevent preferences and se-
cure the equitable distribution of the prop-
erty of the several estates/" p. 604.
It follows that the question propounded
will be answered, Yes.
And it is so ordered.
[510] ARMOUR k COMPANY, Plff. in
Err.,
v.
STATE OP NORTH DAKOTA.
(See S. C. Reporter's ed. 610-617.)
ConstltiiHonal law — due process of law
— regulating net weight of retail
packages.
1. Prohibiting the sale of lard other-
wise than in bulk unless put up in 1, 3, or
NoTK. — As to what constitutes due process
of law, generally — see notes to People v.
CKBrien, 2 L.R.A. 266; Kuntz v. Sumption,.
2 LJUL. 666; Re Oannon, 6 L.R.A. 360;
Ulman ▼. Baltimore, 11 L.RJk. 224; Oilman
V. Tucker, 13 L.R.A. 304; Pearson v. Yew*
dall, 24 L. ed. U. S. 430; and Wilson v.
North Carolina, 42 L. ed. U. S. 866.
Aa to the validity of class legislation^
771
SUPRBME COURT OF THE UNITED STATES.
Oct. Tebm,
5-poiiiid packagesy net weight, or some mul-
tiple of these numbers, as is done by N.
D. Laws 1911, p. 355, does not render the
statute repugnant to U. S. Const., 14th
Amend., as denying due process of law.
[For other cases, see Constitational Law, IV.
b, 7, in Direst Sap. Ct. 1908.]
Constitutional law — equal protection of
the laws — regulatlni; net wel^rlit of
packages of lard.
2. Singling out lard from other food
nroducts, as is done by the prohibition of
N. D. Laws 1911, p. 355, against the sale
of lard otherwise tnan in bulk unless put
up in 1, 3, or 5-pound packages, net weight,
or some multiple of these numbers, does not
make the statute repugnant to U. S. Const.,
14th Amend., as denying the equal protec-
tion of the laws.
[Fer other cases, see Constitutional Law, IV.
b, 7, in Digest Sup. Ct. 1908.]
Commerce — state regulation — retail
sales.
3. As applied to retail sales not in the
package of importation, the oonuneros clause
of the Federal Constitution is not violated
by the prohibition of N. D. Laws 1911, p.
855, against the sale of lard otherwise than
in bulk unless put up in 1, 3, or 5-pound
packages, net weight, or some multiple of
these numbers.
[For other cases, see Commerce, IV. b, in
Digest Sup. Ct. 1908.]
Commerce — conflicting state and Fed-
eral regulations — net weii^t of re-
tall packages.
4. There is no repugnancy between the
pure food and drugs act of June 30, 1906
(34 Stat, at L. 768, chap. 3915, Comp. Stat.
1913, S 8717), which is directed against the
adulteration and misbranding of articles of
food transported in intersUite commerce,
and the prohibition of N. D. Laws 1911, p.
355, against retail sales of lard otherwise
than in bulk, unless put up in 1, 3, or 6-
Ssund packages, net weight, or some mul-
ple of these numbers.
[No. 258.]
Argued March 3 and 6, 1916. Decided April
3, 1916.
IN ERROR to the Supreme Court of the
State of North Dakota to review a Judg-
ment which affirmed a conviction in the Dis-
trict Court of Cass County, in that state,
for selling lard not put up in 1, 3, or 5-
pound packages, net weight, or some mul«
tiple of these numbers. Afflbrmed.
See came case below, 27 N. D. 177» L.RJL
— , — , 145 N. W. 1033.
The facts are stated in the opinion.
Mr. N. C. Young argued the cause, and,
with Messrs. J. 8, Watscm, Abram S. Strai-
ton, and Alfred R. Urion, filed a brief for
plain tifi^ in error.:
This statute arbitrarily and without rea-
sonable ground therefor singles out lard
from all food products, and is therefore
void.
Connolly t. Union Sewer Pipe Co. 184
U. S. 540, 558-561, 46 L. ed. 679, 689, 690,
22 Sup. Ct. Rep. 431.
This statute is arbitrary and has no rea-
sonable relation to a purpose which it is
competent for the government to effect.
Chicago, B. & Q. R. Co. v. McGuire, 219
U. S. 563, 55 L. ed. 337, 31 Sup. Ct. Rep.
259.
As applied to the sale of the lard in ques-
tion, this statute conflicts with the labeling
provision of the Federal food and drug act
and the commerce clause of the Federal
Constitution.
Savage v. Jones, 225 U. S. 501, 56 L. ed.
1182, 32 Sup. Ct. Rep. 715; McDermott v.
Wisconsin, 228 U. S. 115, 57 L. ed. 754, 47
LJRJl.(N.S.) 984, 33 Sup. Ct. Rep. 431, Ann.
Cas. 1915A, 39; Com Products Ref. Co. v.
Wei^e, 221 Fed. 988.
Mr. Andrew Miller argued the cause,
and, with Mr. Henry J. Linde» Attorney
General of North Dakota, and Messrs. Fran-
cis J. Murphy, H. R. Bitidng, Alfred Zuger,
and B. F. Tillotson, filed a brief for defend-
ant in error:
One who invites the confidence of the
public may be compelled to submit to such
regulations as will guard the public as far
as possible against misapprehension and
possible imposition and fraud.
Freund, PoL Power. fS 274, 275; Tiede-
man, Pol. Power, § 89; People v. Wagner,
86 Mich. 594, 13 LJEtA. 286, 24 Am. St. Rep.
141, 49 N. W. 609; McLean v. Arkansas, 211
U. S. 539, 53 L. ed. 315, 29 Sup. Ct. Rep. 206.
Where the legislative action is arbitrary
and has no reasonable relation to a purpose
rierally, — see notes to State v. Goodwill,
L.RJL. 621; and State v. Loomis, 21
L.RJL 789.
As to constitutional equality of privileges,
immunities, and protection, generally — see
note to Louisville Safety VaiUt k T. Co. v.
Louisville ft N. R. Co. 14 L.R.A. 579.
On state regulation of interstate or for-
eign commerce — see notes to Norfolk ft W.
R. Co.' V. Com. 13 L.R.A. 107, and Gloucester
Ferry Co. ▼. Pennsylvania, 29 L. ed. U. S.
158.
On the power to prescribe the manner or
T7t
method of determining quantity or amount
of conmiodity — see note to Ex parte Steube,
L.R.A.1916E, — .
On validity of regulations as to weight of
loaf of bread — see note to Chicago v.
Schmidinger, 44 L.RJL(NJ3.) 632.
As to what constitutes an original or un-
broken package — see note to State v. Maire,
39 L.R.A.(N.S.) 1051.
As to state regulations of interstate com-
merce as affected by Federal pure food
laws — see note to McDermott ▼. State, 47
L.R.A.(NJ3.) 984.
S40 V. 8.
1915.
ABMOUR & 00. ▼. NORTH DAKOTA.
§11
which it is eompetc-'t for the government
to effect, the legislature transcends the lim-
its of its power in interfering with the lib-
erty of contract; but where there is reason-
able relation to an object within the gov-
ernmental authority, the exercise of the
legislative inquiry is not subject to judi-
cial review.
Chicago, B. A, Q. R. Co. v. McQuire, 219
U. S. 549, 55 L. ed. 328, 31 Sup. Ot. Rep.
259. See also McLean v. Arkansas, 211 U.
S. 539, 53 L. ed. 315, 29 Sup. Ct. Rep. 206;
Sinking Fund Cases, 99 U. S. 718, 25 L. ed.
501.
For the purpose of preventing fraud and
imposition upon consumers, made possible
by ignorance or thoughtlessness, it is with-
in the police power to standardize the pack-
age in which a commodity is sold, when it
is not sold in bulk, and the price agreed
upon according to actual weight or meas-
ure.
State V. Cooperative Store Co. 123 Tenn.
399, 131 8. W. 867, Ann. Cas. 1912C, 248;
State V. Aslesen, 50 Minn. 5, 36 Am. St.
Hep. 620, 52 N. W. 21U); Turner v. Mary-
land, 107 U. 8. 38, 39, 43, 27 L. ed. 370-372,
S Sup. Ct. Rep. 44; Wheeler, v. Rus-
aell, 17 Mass. 258; Eaton v. Kegan, 114
Ifass. 433; State v. Pittsburg A S. Coal Co.
41 La. Ann. 465, 6 So. 220, 156 U. S. 590, 39
Xf. ed. 544, 6 Inters. Com. Rep. 18, 15 Sup.
Ct. Rep. 459; Levy v. Gowdy, 2 Allen, 320;
«Janie8 v. Josselyn, 65 Me. 138; Richmond v.
Fo88, 77 Me. 590, 1 Atl. 830; Williams v.
Tappan, 23 N. H. 385; McLean v. State, 81
Ark. 304, 126 Am. St. Rep. 1037, 98 S. W.
729, 11 Ann. Cas, 72, 211 U. S. 539, 53 L. ed.
316, 29 Sup. Ct. Rep. 206; Gibbons v. Ogden,
9 Wheat. 1, 6 L. ed. 23; Coul v. McArthur,
162 Mass. 522, 25 N. £. 836; Mobile v.
Yuille, 3 Ala. 137, 36 Am. Dec. 441; People
V. Wagner, 86 Mich. 594, 13 L.R.A. 286, 24
Am. St. Rep. 141, 49 N. W. 609; Chicago
V. Schmidinger, 243 Dl. 167, 44 L.RJ^.(N.S.)
632, 90 N. E. 369, 17 Ann. Cas. 614, 245
m. 317, 92 N. E. 244, 226 U. S. 578, 57 L.
ed. 364, 33 Sup. Ct. Rep. 182, Ann. Cas.
1914B, 284; State v. McCool, 83 Kan. 428,
111 Pac. 477; People v. Girard, 145 N. Y.
105, 45 Am. St. Rep. 595, 39 N. E. 823;
John P. Squire A Co. v. Tellier, 185 Mass.
18, 102 Am. St. Rep. 322, 69 N. E. 312;
State V. Campbell, 64 N. H. 402, 10 Am.
St. Rep. 419, 13 Atl. 585; Neas v. Borches,
109 Tenn. 398, 97 Am. St. Rep. 851, 71 S.
W. 60; People v. Luhrs, 195 N. Y. 377, 25
LJLA.(N.S.) 473, 89 N. E. 171; Lemieux v.
Young, 211 U. S. 489, 53 L. ed. 295, 29 Sup.
Ct. Rep. 174; State v. Fourcade, 45 La.
Ann. 717, 40 Aul St. Rep. 249, 13 So. 187 ;
Butler V. Chambers, 36 Minn. 69, 1 Am. St.
Rep. 638, 30 N. W. 308; State, Waterbui^,
Prosecutor, v. Newton, 50 N. J. L. 534, 2
•0 li. ed.
Inters. Com. Rep. 63, 14 Atl. 604; Frenad^
Pol. Power, §§ 272, 275; Tiedeman, Limita-
tion of Pol. Power, § 89, p. 207.
So far as the actual handling, sale, and
distribution of Armour A Company's good%
including lard, in this state, is concerned,
it is the same as if the packing plant were
located and the products put up in North
Dakota. As to the particular pail involved
in this case, for the sale of which the plain-
tiff in error was convicted, the evidence is
undisputed that it was found in its ware-
house at Fargo in a crate, and that the
crate, was broken by the agent of plaintiff
in error, and the pail sold. Hence, the
plaintiff in error cannot successfully con-
tend that it was convicted without due
process of law, and in the absence of a
statute authorizing the conviction.
Austin V. Tennessee, 179 U. S. 343, 46
L. ed. 224, 21 Sup. Ct. Rep. 132; Guckea-
heimer v. Sellers, 81 Fed. 997; Re Harmon,
43 Fed. 372; Cook v. Marshall County, 196
U. S. 261, 49 L. ed. 471, 25 Sup. Ot. Rep.
233.
The legislature of the state of North Da-
kota, being familiar with the lard trade
for many years, and acquainted with local
conditions, was best able to judge of the
necessity for the statute in question. The
fact that the courts may not agree with
the legislature in its views as to the neoes-
city or propriety of this legislation consti-
tutes no ground for judicial interferenos^
unless the act is clearly in violation of con-
stitutional guaranties of equal protection;
and this statute is not so clearly and un-
mistakably in excess of the power of the
legislature that it should be held for
naught.
American Sugar Ref. Co. v. Louisiana,
179 U. S. 89, 45 L. ed. 102, 21 Sup. Ct. Rep.
43; Powell v. Pennsylvania, 127 U. S. 678,
32 L. ed. 253, 8 Sup. Ct. Rep. 992, 1257;
Sinking Fund Cases, 99 U. S. 718, 727, 26
L. ed. 601, 504; Chicago, B. 4t Q. R. Co. v.
McGuire, 219 U. 8. 563, 55 L. ed. 887, SI
Sup. Ct. Rep. 259.
[611] Mr. Justice McKenna delivered
the opinion of the court:
A statute of the state requires (§1) that
"every article of food or beverage as de-
fined in the statutes of this state shall be
sold by weight, measure or numerical count
and as now generally recognized by trade
custom, and shall be labeled in accordance
with the provisions of the food and bever-
age laws of this state. . . .
"Section 2 (Weight of Lard). Bvery lot
of lard compound or of lard substitute, un*
less sold in bulk, shall be put up. in paila
or other containers holding one (1), thre^
(3), or five (5), pounds net weight, or
611-613
SUPREME COURT OF THE UNITED STATES.
Oor. TklM»
■ome whole multiple of these niimherf,.and
not any fractions thereof. If the container
be found deficient in weight additional lard,
compound, or substitute, shall be furnished
to the purchaser to malce up the legal
weight. The face label shall show the true
name and grade of the product, the true
net weight together with the true name and
address of the producer or jobber. If other
than leaf lard is used then the label shall
show the kind, as 'Back Lard,' or 'Intes-
tinal Lard.' Every lard substitute or lard
compound shall also show, in a manner to
be prescribed by the food commissioner,
the ingredients of which it is composed, and
eaeh and every article shall be in conform-
ity with, and further labeled in accord-
ance with the requirements Under the food
laws of this state." [Laws 1911, p. 355.]
Violations of the act are made misde-
meanors with a minimum and a maximum
fine increased for subsequent offenses.
In pursuance of the statute the state's
attorney for the county of Cass filed an in-
formation against plaintiff in error for un-
lawfully offering for sale and selling to one
E. F. Ladd a quantity of lard not in bulk,
which was put up by the company and sold*
and delivered to Ladd in a pail which held
more than 2 pounds and less than 3 [512]
pounds net weight of lard, to wit, 2 pounds
and 6 ounces, which pail or container did
not have or display on the face label there-
of the true net weight of the lard in even
pounds or whole multiples thereof, but ex-
pressed the weight of the lard in pounds
and ounces.
A demurrer to the information was over-
ruled and the Armour Company pleaded not
guilty. A stipulation was entered into waiv-
ing a jury trial and that the issues be tried
by the court.
Hie company was found guilty and ad-
judged to pay a fine of $100. The judgment
was affirmed by the supreme court of the
state and this writ of error was then al-
lowed by its chief justice.
The assignments of error attack the valid-
ity of the statute, specifying as grounds of
the attack that the statute offends the due
process and equal protection clauses of the
14th Amendment of the Constitution of the
United States and also the commerce clause
of the Constitution.
Armour k Company is a New Jersey cor-
poration. It is a packer of certain pork
products and has packing plants where it
produces lard as an incident to its busi-
Bess in Illinois, Missouri, Iowa, and Nebras-
ka. It has no plant in North Dakota, but
has a branch oflSce establishment in the
city of Fargo, in that state, to which its
good! are shipped in carload lots to be dis-
774
tributed therefrom. The braiicb at Ftirgo is
under the charge of a local manager.
In October, 1011, the state food commis-
sioner went to the company's establishment
at Fargo and asked to purchase 3 pounds
of lard. He was sold a pail containing 2
pounds and 6 ounces. It was upon this
sale as a violation of the statute that the
information was filed, and for which the
Armour Company was convicted and sen-
tenced.
The supreme court considered the statute
as but a development of other laws passed
in the exercise of the [513] police power of
the state to secure to its inhabitants pure
food and honest weights, questions which
the court thought were "inseparably allied
and any argument advanced upon one ap-
plies equally to the other." And the court
said the law was drafted by the Pure Food
Conunission, it might be reasofiably as-
sumed, "after twelve years of observation
and study," and, further, that "the expert
who drafted tha law, the legislature who
passed it, and the governor who approved it,
all thought necessity existed for such a
measure. If we did not agree with all
those, we might well hesitate to say that
there was absolutely no doubt upon the
question, but in fact a majority of this
court believes the law not only reasonablr,
but necessary, and this belief is founded
upon the evidence in this case and upon
facts of which this court can take judicial
cognizance."!
The court, by these remarks, expressed
the test of a judicial review of legislation
enacted in the exercise of the police power,
and in view of very recent decisions it is
hardly necessary to enlarge upon it. We
said but a few days ago that if a belief of
evils is not arbitrary, we cannot measure
their extent against the estimate of the leg-
islature, and there is no impeachment of
such estimate in differences of opinion, how-
ever strongly sustained. And by evils, it
was said, there was not necessarily meant
some definite injury, but obstacles to a
greater public welfare. Nor do the courts
have to be sure of the precise reasons for
the legislation, or certainly know them, or
be convinced of the wisdom or adequacy of
the laws. Rast v. Van Deman & L. Co. 240
U. S. 842, ante, 679, 36 Sup. Ct. Rep. 370 ^
Tanner v. Little, 240 U. S. 360, ante, 691, 36
Sup. Ct. Rep. 379. It only remains to ap-
I [This quotation is taken from the orig-
inal opinion of the state court in this case.
Following the denial of a petition for re-
hearing a substituted opinion was filed, this
latter opinion being the one reported in 27
N. D. 177, L.RJL— , — , 145 N. W. 1033.
—Ed.]
S40 U. 8.
191S.
ARMOUR k 00. ▼. NORTH DAKOTA.
61S-616
p\j to thA present case the principles so
Announced.
Lard is a verj useful product and its
many purposes are set forth in the testi-
mony. It was originally sold in the state
only in tierces and tubs; that is, in bulk.
A demand arose for smaller and more con-
venient packages and the [614] Armour
Company and other packers responded to
that demand and put their lard in 3, 5, and
10-pound pails, gross weight, the net weight
of lard at first having no indication, but
subsequently, in obedience to the state laws,
being indicated by labels, and in the present
case by a small label at 2 pounds and 6
ounces. The practice of selling by gross
weight is a continuation of the practice of
selling by bulk.
The Armour Company asserts an in-
violable right in the practice as convenient
and useful and free from deception. But
experience does not justify such unqualified
praise. The practice has its advantages, no
doubt, but it is the observation of the of-
ficers of the state that it conceals from
buyers their exact purchases, — there is con-
fusion as to what the price paid compen-
sates, whether lard or tin container.
The Armour Company contests this con-
clusion and contends that the label upon
the package, put on in observance of a law
of the state passed in 1907,^ shows the net
weight of the lard, and protects the con-
sumer from imposition while it preserves
to the company a useful method of pack-
ing and a necessary freedom of business
with the public. To this we reply the law
of 1007 was deemed necessary to protect
the purchaser against the concealment in
the method of the packers, the amount of
lard not being indicated. Supposedly the re-
<quirement was not adequate, and the law of
1911 was passed. However, with a compari-
son of the laws we have nothing to [515]
<lo, nor need we even consider, as the su-
preme court considered, with some reluct-
ance, that the label used by the company
was a scant compliance with the law of
1007, if not an evasion of it. We need
only deal with the law under review and
the justification for its adoption. Evils
mtiended the method of the company which
1 The law of 1907, p. 316, reproducing the
provision of a law passed in 1905, provided
%U follows:
"Ninth. If every package, bottle or con-
tainer does not bear the true net weight,
the name of the real manufacturer or job-
bers, and the true grade or class of the
product, the same to be expressed on the
face of the principal label in clear and dis-
tinct English woras in black type on a white
baekground, said type to be in size uniform
with that used to name the brand or pro-
ducer. . . ."
#0 li. ed.
the Food Oommission of the state thought
should be redressed, and which the legisla-
ture reasonably believed were definite, and
not fanciful, and in this belief passed the
law. And the belief being of that character
removes the law, as we have already said,
from judicial condemnation; and besides,
there is nothing in the testimony incon-
sistent with it.
The testimony of the company was di-
rected at great length to show Uie advan-
tages of selling in containers over selling
in bulk, and the expense to the compa-
ny of the former, and the additional ex-
pense which the law would require. And
meeting the objection that the company
fixed the price of the lard by the gross
weight of the package, — ^in other words, as
though there were 3 pounds instead of 2
pounds, 6 ounces, it was replied that by so
doing there was no profit to the company
and only a reimbursement of the cost of the
tin container and extra cost of putting up
the lard in that style of package.
But this does not justify the practice of
the company nor establish the invalidity of
the law of the state. The advantages are
in a sense made a snare, and the testimony
means no more than that the packer has
built up a trade on a system of gross weight
which enables it to practice a kind of de-
ception on the purchaser that he is getting
3 pounds of lard when he is only getting 2
pounds, 6 ounces, and enables the packer to
pay for the container. The evil of the
transaction is not in the latter, but in the
former, — that is, in the deception. The
correction of the statute is that the lard
and the container shall be unequivocally
distinguished, and the purchaser have the
[516] direct assurance of the quantity of
lard he is receiving, knowledge of its price
and the cost of the container to him, — a
means of estimating his purchase free from
disguises or the necessity of an arithmeti-
cal estimate of what he is getting or pay-
ing for upon the market fiuctuations of
lard and tin. This may involve a change
of packing by the company and the cost of
that change, but this is a sacrifice the law
can require to protect from the deception
of the old method. The law is allied in
principle, as the supreme court of the state
observed, to regulations in the interest of
honest weights and measures. It involves
no giving up of what the company has a
right to retain, and the cost of the con-
tainer as well after change as now can be
cast upon the purchaser, he, however, be-
ing able to determine if it is worth the
price he has to pay for it.
There are advantages undoubtedly in
packing lard in pails, — advantages to the
616-518
8UPREMB COURT OF THE UNITED STATES.
Ooi. Tbbk,
packer And the consumer; but the advan-
tages are not on account of selling by groM
instead of by net weight. In other words,
all of the advantages will be retained by
a compliance with the provisions of the
law; that is, by putting up the lard in 1,
3, or 5-pound packages, net weight, or some
multiple of those numbers. It is in the
testimony that the packing company fur-
nishes lard in net-weight pails to Park k
Tilford, of New York city; that is, in
weights of 3, 5, and 10 pounds, and has
been doing so for a few years.
The equal protection clause of the 14th
Amendment is invoked by the Armour Com-
pany and the specification is that the law
under review "arbitrarily and without rea-
sonable ground therefor singles out lard
from all food products" which are sold in
packages, such as "prints of butter, pack-
ages of coffee, boxes of crackers, and the
endless number of other products sold in
package form are not included, and no nat-
ural and reasonable [517] ground for ex-
cluding them and in singling out lard has
been suggested.**
The range of discretion that a state pos-
sesses in classifying objects of legislation
we may be excused from expressing, in view
of very recent decisions. The power may
be determined by degrees of evil, or exer-
cised in cases where detriment is specially
experienced. Carroll ▼. Greenwich Ins. Co.
199 U. S. 401, 411, 50 L. ed. 246, 250, 26
Sup. Ct. Rep. 66; Central Lumber Co. t.
South Dakota, 226 U. S. 157, 161, 57 L. ed.
164, 169, 33 Sup. Ct. Rep. 66. The law of
North Dakota does not exceed this power.
It is objected that the law violates the
commerce clause of the Constitution. This
is certainly not true of the sale to Ladd.
It was distinctly by retail and in the pack-
age of retail, not in the package of im-
portation. And it is to such retail sales
the statute is directed. It does not attempt
to regulate the transportation to the state.
Nor do we think that the law is repug-
nant to the pure food and drugs act of June
30, 1906 (34 SUt. at L. 768, chi^). 3915,
Comp. SUt. 1918, S 8717). That act is di-
rected against ti&e adulteration and mis-
branding of articles of food transported in
interstate commerce. The state statute has
no such purpose; it is directed to the man-
ner of selling at retail, which is in no way
repugnant to the Federal law (Rast v. Van
Deman ft L. Co. 240 U. S. 842, ante, 679, 86
Sup. Ct. Rep. 370), and the operation of
that law is in no way displaced or inter-
fered with.
Judgment affirmed*
77«
[618] ST. LOUIS, IRON MOUNTAIN. &
SOUTHERN RAILWAY COMPANY,
Plff. in Err.,
T.
STATE OF ARKANSAS.
(See S. C. Reporter's ed. 518-521.)
Constitutional law — due process of law
— full switching crew.
1. Railway companies with yards or
terminals in cities of the state may, con-
sistently with due process of law, be for-
bidden by a state statute to conduct switch-
ing operations across public crossings in
cities of the first and second class with a
switching crew of less than one engineer,
a fireman, a foreman, and three helpers.
[For other cases, see Constitutional Law. IV.
b, 5, In Digest Sup. Ct. 1908.]
Constitutional law — equal protection
of the laws — classification — fnll
switching crew.
2. The exemption in favor of railways
less than 100 miles in length, made by a
state statute forbidding railway companies
with yards or terminals in cities of the
state to conduct switching operations across
public crossings in cities of the first or sec-
ond class with a switching crew of less than
one engineer, a fireman, a foreman, and
three helpers, does not render the statute
repugnant to U. S. Const., 14th Amend., as
denying the equal protection of the laws to
a railway company coming within its pro-
visions, althouig^ certain terminal compa-
nies which do switching for connecting
trunk lines, being less than 100 miles in
length, are not covered hy the statute, and
one of such companies may do switching
over some of the same crossings that the
railway company in question does.
[For other cases, see Constltotlonal Law, IV.
a, 8. b, in Digest Sup. Ct. 1908.]
Commerce — state regulation •* fnll
switching crew.
3. Interstate commerce is not uncon-
stitutionally interfered with by a state stat-
ute which forbids railway companies with
NoTB. — As to constitutionality of full-
crew acts — see note to Pennsylvania R. Co.
V. Ewing, 49 L.RJL(N.S.) 978.
On excessive penalty as denial of due
ftrocess of law — see note to State v. Craw-
ord, 46 L.R.A.(N.S.) 1039.
As to what constitutes due process of law,
generally — see notes to People v. O'Brien, 2
L.R.A. 255; Kuntz v. Sumption, 2 L.R.A.
655; Re Gannon, 5 L.RJL. 359; Ulman v.
Baltimore, 11 LJLA. 224; Oilman v.
Tucker, 13 L.R.A. 304; Pearson v. Yewdall,
24 L. ed. U. S. 436; and Wilson v. North
Carolina, 42 L. ed. U. S. 865.
As to the validity of class legislation,
generally — see notes to State v. Goodwill, 6
LrJL 621, and State ▼. Loomis, 21 L.R.A.
789.
As to constitutional equality of privileges,
immunities, and protection, generally — see
note to Louisville Safety Vault ft T. Co. v.
Louisville ft N. R. Co. 14 LJLA. 579.
240 U. 8.
1915.
ST. LOUIS, I. M. ft S. R. CO. v. ARKANSAS.
Tarda or terminals in cities of the state
to conduct switching operations across pub-
He crossings in cities of the first or second
daw with a switching crew of less than one
Miffineer, a fireman, a foreman, and three
li^>er8.
[For other cases, see Commerce, III., in Di-
gest Sap. Ct. 1908.]
Ctonstitntional law — equal protection
of the laws — excesalTe penal tiefi.
4. A state statute forbidding railway
eompanies with yards or terminals in cities
of the state to conduct switching operations
across public crossing in cities of the
first or second class with a switching crew
of less than one engineer, a fireman, a fore-
man, and three helpers, under penalty of
$&0 fine for each separate offense, is not
repugnant to U. S. Const., 14th Amend., on
the theory that it prevents a contest of its
validity by the excess of its penalties.
[For other cases, see Constitutional Law, IV.
a, 8, b, in Digest Sop. Ct. 1908.]
[No. 302.]
Argued March 17, 1916. Decided April 3,
1916.
IN ERROR to the Supreme Court of the
State of Arkansas to review a judgment
which affirmed a conviction in the Circuit
Court of Garland County, in that state, of
a violation of the full switching crew act.
Affirmed.
See same case below, 114 Ark. 486, 170
8. W. 680.
The facts are stated in the opinion.
Mr. Robert E. Wiley argued the cause,
and, with Messrs. E. B. Kinsworthy and
Edward J. White, filed a brief for plaintiff
In error:
The statute in question is discrimina-
tory, and denies to plaintiff in error the
equal protection of the laws.
Soon Hing v. Crowley, 113 U. S. 709, 28
L. ed. 1147, 5 Sup. Ct. Rep. 730; Gulf, C. &
S. F. R. Co. V. Ellis, 166 U. S. 160, 41 L. ed.
666, 17 Sup. Ct. Rep. 255; Yick Wo v. Hop-
kins, 118 U. fi. 356-369, 30 L. ed. 220-222,
6 Sup. Ct. Rep. 1064; Southern R. Co. v.
Greene, 216 U. S. 400, 64 L. ed. 636, 80 Sup.
Ct. Rep. 287, 17 Ann. Cas. 1247; Connolly
▼. Union Sewer Pipe Co. 184 U. S. 640, 46
L. ed. 679, 22 Sup. Ct. Rep. 431 ; 1 Suther-
land, Stat. Constr. 2d ed. p. 366; Cotting
▼. Kansas City Stock Yards Co. (Cotting v.
Godard) 183 U. S. 79, 46 L. ed. 92, 22 Sup.
Ct Rep. 30.
It is also arbitrary and unreasonable and
repugnant to the due process clause of the
14th Amendment of the Constitution of the
United States.
Adair v. United States, 208 U. S. 161, 62
L. ed. 436, 28 Sup. Ct. Rep. 277, 13 Ann.
Gas. 764; Mugler v. Kansas, 123 U. S. 623,
81 L. ed. 205, 8 Sup. Ct. Rep. 273; Qiicago,
•0 li. ed.
M. A St. P. R. Co. V. Tompkins, 176 U. S.
167, 44 L. ed. 417, 20 Sup. Ct. Rep. 336;
Missouri P. R. Co. ▼. Nebraska, 217 U. S.
196, 64 L. ed. 727, 30 Sup. Ct. Rep. 461, 18
Ann. Cas. 989; Washington ex rel. Oregon
R. & Nav. Co. V. Fairchild, 224 U. S. 610,
66 L. ed. 863, 32 Sup. Ct. Rep. 635; Louis-
iana & A. R. Co. ▼. State, 86 Ark. 12, 106
S. W. 960.
The act is void because judicial review to
test its constitutionality can be had only
at the risk of excessive penalties.
Rider v. Leatherman, 86 Ark. 230, 107
S. W. 996; De Queen v. Fenton, 98 Ark.
624; 136 S. W. 946; State v. Lindsay, 34
Ark. 372; Ex parte Young, 209 U. S. 123,
62 L. ed. 714, 13 L.R.A.(N.S.) 932, 28 Sup.
Ct. Rep. 441, 14 Ann. Cas. 764; Wadley
Southern R. Co. v. Georgia, 236 U. S. 651,
69 L. ed. 406, P.U.R.1916A, 106, 35 Sup.
Ct. Rep. 214.
The requirements of the act operate as
a regulation of and an interference with
interstate commerce.
Minnesota Rate Cases (Simpson v. Shep-
ard) 230 U. S. 862, 67 L. ed. 1511, 48
L.R.A.(N.S.) 1161, 33 Sup. Ct. Rep. 729,
Ann. Cas. 191 6A, 18; South Covington & C.
Street R. Co. v. Covington, 236 U. S. 637,
69 L. ed. 360, L.R.A.1916F, 792, P.U.K.
1915A, 231, 36 Sup. Ct. Rep. 168.
Mr. Henry M. Armistead argued the
cause, and, with Messrs, Ashley Cockrill,
Hamilton Moses, W. D. Jackson, Gus K.
Jones, and Mr. Wallace Davis, Attorney
General of Arkansas, filed a brief for de-
fendant in error:
The act is not unconstitutional as inter-
fering with interstate commerce.
Chicago, R. I. & P. R. Co. v. Arkansas,
219 U. S. 463, 65 L. ed. 290, 31 Sup. Ct.
Rep. 276; Pittoburgh, C. C. A St. L. R. Co.
V. Indiana, 223 U. S. 713, 66 L. ed. 626, 32
Sup. Ct. Rep. 620; Savage v. Jones, 225
U. 6. 623, 66 L. ed. 1190, 32 Sup. Ct. Rep.
716; Chesapeake A 0. R. Co. v. Conley, 230
U. S. 613, 67 L. ed. 1697, 33 Sup. a. Rep.
985; Atlantic Coast Line R. Co. v. Georgia,
234 U. S. 280, 68 L. ed. 1312, 34 Sup. Ct.
Rep. 829.
The classification of railways affected is
not so arbitrary as to make the act uncon-
stitutional.
Lindaley ▼. Natural Carbonic Gas Co.
220 U. S. 61, 66 L. ed. 369, 81 Sup. Ct. Rep.
837, Ann. Cas. 1912C, 160; Atchison, T.
A S. P. R. Co. V. Matthews, 174 U. S. 104,
43 L. ed. 912, 19 Sup. Ct. Rep. 609; Price
y. Illinois, 238 U. S. 446, 69 L. ed. 1400, 36
Sup. Ct. Rep. 892; Minnesota Iron Co. v.
Kline, 199 U. S. 693, 60 L.. ed. 822, 26 Sup.
Ct. Rep. 159, 19 Am. Neg. Rep. 626; Steven-
son Iron Min. Co. ▼. Kibbe, 205 U. 6* 537^
111
510, 520
SUPREME COURT OF THE UNITED STATES.
Oor. TteM,
51 L. ed 020, 27 Sup. Ct. Rep. 700; South
Carolina ex rel. Phoenix Mut. L. Ins. Co. v.
McMaster, 237 U. S. 68, 50 L. ed. 830, 35
Sup. Ot. Rep. 504; Booth t. Indiana, 237 U.
S. 301, 50 L. ed. 1011, 35 Sup. a. Rep. 617 ;
MiUer y. Wilson, 236 U. S. 373, 50 L. ed.
628, LJLA.1015F, 820, 35 Sup. a. Rep. 342;
Keokee ConsoL Coke Co. v. Taylor, 234 U.
S. 224, 58 L. ed. 1288, 34 Sup. Ct. Rep.
856; Chicago, R. I. 4t P. R. Co. ▼. Arkansas,
210 U. S. 453, 55 L. ed. 200, 31 Sup. Ct. Rep.
275; Chesap^e & 0. R. Co. ▼. Conley, 230
U. S. 513, 57 L. ed. 1507, 33 Sup. a. Rep.
085; Dow t. Beidleman, 125 U. S. 680, 31 L.
ed. 841, 2 Inters. Com. Rep. 56, 8 Sup. Ct.
Rep. 1028; New York, N. H. & H. R. Co. v.
New York. 165 U. S. 628, 41 L. ed. 863, 17
Sup. Ct. Rep. 418; Easterling Lumber Co.
▼. Pierce, 235 U. S. 380, 50 L. ed. 270, 35
Sup. Ct. Rep. 133; Jeffrey Mfg. Co. ▼. Blagg,
235 U. S. 571, 50 L. ed. 364, 35 Sup. Ct.
Rep. 167, 7 N. C. C. A. 570; Hendrick v.
Maryland, 235 U. S. 610, 50 L. ed. 385, 35
Sup. Ct. Rep. 140; Northwestern Laundry
y. Des Moines, 230 U. S. 486, ante, 306, 36
Sup. Ct. Rep. 206.
The act is not unreasonable as a measure
of safety.
McLean y. Arkansas, 211 U. S. 530, 53 L.
ed. 315, 20 Sup. Ct. Rep. 206; Jacobson y.
MassachusetU, 107 U. S. 11, 40 L. ed. 643,
25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765; Mug-
ler y. Kansas, 123 U. S. 623, 31 L. ed. 205,
8 Sup. Ct. Rep. 273; Minnesota y. Barber,
136 U. S. 313, 34 L. ed. 466, 3 Inters. Com.
Rep. 186, 10 Sup. Ct. Rep. 862; Atkin y.
Kansas, 101 U. S. 207, 48 L. ed. 148, 24 Sup.
Ct Rep. 124; Williams y. Arkansas, 217
U. S. 70, 54 L. ed. 673, 30 Sup. Ct. Rep.
403, 18 Ann. Cas. 866; Sheylin-Carpenter
Co. y. Minnesota, 218 U. S. 57, 54 L. ed.
030, 30 Sup. Ct. Rep. 663; Qiicago, B. A,
Q. R. Co. y. McGuire, 210 U. S. 640, 55 L.
•d. 328, 31 Sup. Ct. Rep. 260; Chicago, R.
L & P. R. Co. y. Arkansas, 210 U. S. 463,
55 L. ed. 200, 31 Sup. Ct. Rep. 275; Atchi-
son, T. & S. F. R. Co. y. Matthews, 174 U.
S. 06, 43 L. ed. 000, 10 Sup. Ct. Rep. 600;
Florida C. & P. R. Co. y. Reynolds, 183 U.
S. 471, 46 L. ed. 283, 22 Sup. Ct. Rep. 176;
Missouri, K. A T. R. Co. y. Cade, 233 U. S.
642, 58 L. ed. 1135, 34 Sup. Ct. Rep. 678;
Noble State Bank y. Haskell, 210 U. S. 104,
55 L. ed. 112, 32 LJlJl.(N.S.) 1062, 31 Sup.
Ct Rep. 186, Ann. Cas. 1012A, 487.
If there was really a fear of the penalties
in the case at bar, injunctiye protection
would haye been sought.
Wadley Southern R. Co. y. Georgia, 235
U. S. 651, 50 L. ed. 405, P.UJL1015A, 106,
35 Sup. Ct. Rep. 214.
, The objection made seems to be that no .
maximum limit is fixed for the penalty.
778
This is not required either in this oovntry
or England.
12 Cyc 066, and cases cited; 1014 Qyc.
Ann. 1518.
But the question is not really before the
court. The penalty assessed is not unrea-
sonable. The proyision for penalties is
separable, and not inyoWed.
Willcox y. Consolidated Gas Co. 212 U.
S. 10, 63 L. ed. 382, 48 L.RJL(NJ3.) 1134,
20 Sup. Ct Rep. 102, 15 Ann. Cas. 1034;
Louisyille ft N. R. Co. y. Garrett 231 U. S.
208, 58 L. ed. 220, 34 Sup. Ct Rep. 48;
Grand Trunk R. Co. y. Michigan R. Commis-
sion, 231 U. S. 467, 68 L. ed. 310, 34 Sup. Ct
Rep. 162; Flint y. Stone Tracy Co. 220 U.
S. 107, 56 L. ed. 380, 31 Sup. Ct. Rep. 342,
Ann. Cas. 1012A, 1312; Ohio Tax Cases,
232 U. S. 576, 58 L. ed. 738, 34 Sup. Ot
Rep. 372.
Mr. Justice McKenna deliyered the opin-
ion of the court:
An act of the state of Arkansas, entitled,
''An Act for the Better Protection and
Safety of the Public," proyides as follows:
"Section 1. That no railroad company or
corporation owning or operating any yards
or terminals in the cities within this state,
where switching, pushing or transferring of
cars are made across public crossings with-
in the city limits of the cities, shall operate
their switch crew or crews with less than
one engineer, a fireman, a foreman and three
helpers.
"Section 2. It beipg the purpose of this
act to require all railroad companies or
corporations who operate any yards or ter-
minals within this state who do switching,
pushing or transferring of cars across pub-
lic crossings within the city limits of the
cities to operate said switch crew or crews
with not less than one engineer, a fireman,
a foreman and three helpers, but nothing in
this act shall be so construed as to preyent
any railroad company or corporation [620]
from adding to or increasing their switch
crew or crews beyond the niunber set out
in this act.
"Section 3. The proyisions of this act
shall only apply to cities of the first and
second class, and shall not apply to rail-
road companies or corporations operating
railroads less than 100 miles in length.
"Section 4. Any railroad company or cor-
poration yiolating the proyisions of this act
shall be fined for each separate offense not
less than $60 and each crew so illegally
operated shall constitute a separate offense."
[Acts 1013, pp. 211, 212.]
The railroad company yiolated the terms
of the statute for a day in the city of Hot
Springs, and, being conyicted thereof, was
sentenced to pay the minimum fine imposed
S40 U. B.
1915. INDIAN TERRITORY ILLUMINATING OIL 00. ▼. OKLAHOMA. 620-682
bj the statute. The judgment whieh was
entered upon the sentence was affirmed by
the flupreme court of the state. This writ
of error was then granted.
The railroad company contends that the
atatute Tiolates (1) the due process and
equality clauses of the 14th Amendment of
the Constitution of the United SUtes, (2)
that it operates as an interference with in-
terstate commerce, and (8) prevents a con-
test of its validity by the excess of its pen-
alties. Of the last ground it may be imme-
diately said that it is without merit.
The other grounds are in effect disposed
of by prior decisions.
In the case of Chicago, R. I. ft P. R. Co.
T. Arkansas, 219 U. S. 453, 55 L. ed. 290,
31 Sup. Ct. Rep. 275, k statute of Arkansas
was considered which required freight trains
to be equipped with crews consisting of an
engineer, a foreman, a conductor, and three
brakemen, "regardless of any modem equip-
ment or automatic couplings and air brakes.
. . ." The statute did not 4pply to rail-
roads whose line or lines did not exceed
60 miles in length, nor to any railroad,
regardless of length of its line, where the
freight train should consist of less than
twenty-five cars. The statute was sustained
on the authority of prior cases against
charges of conflict [621] with the 14th
Amendment and the commerce clause of the
Constitution. We need not cite the cases re-
lied on or repeat the argument of the court.
In that case, as in this, there was contro-
versy in the testimony and the contentions
of the parties as to the necessity of the
statute. It was held, however, that the
controversy did not establish that the stat-
ute was an arbitrary exercise of power.
Armour ft Co. v. North Dakota, this day
decided [240 U. 6. 610, ante, 771, 36 Sup. Ct.
Rep. 440].
A distinction is asserted between that
ease and this, and it is urged that the opera-
tion of freight trains of more than twenty-
five cars on the trunk lines may require
different provision than the movement of
•witching operations within terminals. But
the basis of both is safety to the public,
though the urgency in one may not be as
great as the urgency in the other.
A more serious objection is that certain
terminal companies, one at the city of
Helena and one at Fort Smith, do switch-
ing for asrtain connecting trunk lines, and
jet, by reason of their length being less
thaii 100 miles, are not covered by the act.
Indeed, it is said that one of them, that at
Fort Smith, does switching over some of
the same crossings that plaintiff in error
does. The distinction seems arbitrary if
we regard only its letter, but there may I
have been considerations which determined
«• L. ed.
it, and the record does not show the con-
timry. We have recognized the impossibil-
ity of legislation being all-comprehensive,
and that there may be practical groupings
of objects which will as a whole fairly pre-
sent a class of itself, althou^ there may
be exceptions in which the evil aimed at is
deemed not so fiagrant. Armour ft Co. v.
North Dakota, supra; Miller v. Wilson, 236
U. S. 373, 382, 383, 50 L. ed. 628, 631,
632, L.R.A.1015F, 829, 35 Sup. Ct Rep.
342.
Judgment affirmed.
[622] INDIAN TERRITORY ILLUMI-
NATINQ OIL COMPANY, Plff. in Err.,
V.
STATE OF OKLAHOMA.
(See S. C. Reporter's ed. 622-531.)
Taxes — Federal agency — oil and gas
lease of Indian lands.
A state may not, when assessing for
purposes of taxation the corporate as-
signee of an oil and gas lease of Osage
lands, made under the authority of the act
of February 28, 1891 (26 SUt. at L. 794,
chap. 383, Comp. SUt. 1913, § 4195), and
extended by the act of March 3, 1905 (33
F^tat. at L. 1049, chap. 1479, Comp. Stat.
1913, S 3986), which recognized the assign-
ment, include in such assessment the lease
and rights thereunder, either as separate
objects of taxation, or as represented or
valued by the stock of the corporation.
[For other cases, see Taxes, I. c, 2, in Digest
8np. Ct 1908.J
[No. 283.]
Argued and submitted March 14, 1916. De-
cided AprU 3, 1916.
IN ERROR to the Supreme Court of the
State of Oklahoma to review a judgment
that the property of a corporation be as-
sessed as recommended by a referee. Re-
versed and remanded for further proceed-
ings.
See same case below on rehearing, 43
Okla. 307, 142 Pac 997.
The facts are stated in the opinion.
Mr. Preston O. Weat argued the cause,
and, with Mr. John H. Brennan, filed a
brief for plaintiff in error:
The plenary power of Congress over all
the lands and property of the Osage Indian
Tribe will be admitted. Congress has un-
questionably the power to administer the
property of Indians, and Congress posses-
ses a paramount power over their property
by reason of the exercise of guardianship
over their interests. Such authority may
77t
522-624
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tebm,
be implied, even though opposed to the
Btrict letter of a treaty with iht Indiana.
Lone Wolf ▼. Hitchcoek, 187 U. a 653, 47
L. ed. 299, 23 Sup. Ct. Rep. 216; Choctaw
Nation t. United SUtes, 119 U. S. 1, 30 L.
ed. 306. 7 Sup. Ct. Rep. 75; Stephens v.
Cherokee Nation, 174 U. S. 445, 43 L. ed.
1041, 19 Sup. Ct. Rep. 722; United SUtes
y. Aaron, 183 Fed. 347; United States t.
Allen, 103 C. C. A. 1, 179 Fed. 13; Marchie
Tiger ▼. Western Invest. Co. 221 U. S. 286,
55 L. ed. 738, 31 Sup. Ct. Rep. 578; Anicker
y. Gunsburg, 141 C. C. A. 174, 226 Fed. 176;
United States v. Osage County, 193 Fed.
485; Gleason v. Wood, 28 Okla. 502, 114
Pac. 703; Jefferson v. Winkler, 26 Okla.
653, 110 Pac. 755.
In any event, the right, license, or privi-
lege possessed by the Indian Territory Illu-
minating Oil Company and its sublessees to
enter upon tribal property and drill for oil
cannot be taxed. If any part of the prop-
erty of said lessees is taxable, it would
only be its physical properties, its pipe
lines, casing, derricks, etc., employed in
the oil and gas business. The company,
being a Federal agent under the lease, and
transacting business between the govern-
ment and the Osage Tribe of Indians, is
charged with the burden of a high Federal
policy or business. Such business, license,
privilege, or franchise is not the subject of
state taxation.
California v. Central P. R. Co. 127 U. S.
1, 32 L. ed. 150, 2 Inters. Com. Rep. 153,
8 Sup. Ct. Rep. 1073; Union P. R. Co. y.
Peniston, 18 Wall. 5, 21 L. ed. 787; West-
em U. Teleg. Co. v. Texas, 105 U. S. 460,
26 L. ed. 1067; Farmers' A M. Say. Bank
V. Minnesota, 232 U. S. 616, 58 L. ed. 706,
34 Sup. Ct. Rep. 354; Choctaw, O. & G. R. Co.
y. Harrison, 235 U. S. 292, 59 L. ed. 234, 35
Sup. Ct. Rep. 27; Missouri, K. & T. R. Co.
y. Meyer, 204 Fed. 140; McAIester-Edwards
Coal Co. y. Trapp, 43 Okla. 510, 141 Pac
794; Thomas y. Gay, 169 U. S. 264, 42 L.
ed. 740, 18 Sup. Ct. Rep. 340.
If the court intended to assess the stock
of the company at its full value of $500,000,
such valuation would comprise all the
leases and privileges belonging to it, as
well as the good will and business, thus
bringing the case squarely within the con-
demnation of this court.
California y. Central P. R. Oo. 127 U. S.
1, 2 Inters. Com. Rep. 153, 32 L. ed. 160, 8
Sup. Ct. Rep. 1073.
Mr. John B. Harrison submitted the
cause for defendant in error. Mr. S. P.
Freeling, Attorney General of Oklahoma,
and Mr. J. H. Miley were on the brief.
780
Mr. Justice McKenna delivered the opin-
ion of the court:
The question in the ease is whether a
certain assignment of a lease and rights
thereunder, made by the Osage Tri^ [523]
of Indians, which lease conferred the priv-
ilege of prospecting, drilling wells and min-
ing and producing petroleum and natural
gas upon lands in Oklahoma territory, are
subject to a tax assessed under the laws of
Oklahoma as the property of plaintiff in er-
ror in its capacity of a public service cor-
poration.!
Plaintiff in error, herein designated aa
the oil company, is assignee of the lease, and
asserts the negative of the question, con-
tending that under the lease and the assign-
ment of the lease it became ''a Federal
agent, acting under a Federal appointment
and authorization, in the development of
lands belonging to the Osage Tribe of In-
dians in the Osage Reservation, and that
its business, license, or permit as such can-
not be taxed by the state government, al-
though its physical properties are alwaya
subject to taxation." It rests its conten-
tion upon an act of Congress of February
28, 1891 (26 SUt. at L. 794, 795, chap. 383,
Comp. Stat. 1913, § 4195), and an act of
Congress of March 3, 1905 (33 Stat, at L.
1049, 1061, chap. 1479, Comp. Stat. 1913, §
3986), which extended the lease to the ex-
tent of such portion of .the lands as had been
subleased, namely, 680,000 acres.
By the act of 1891 it was provided:
"That where lands are occupied by Indians
who have bought and paid for the same,,
and which lands are not needed for farm-
ing or agricultural purposes, and are not
desired for individual allotments, the same
may be leased by authority of [524] the
council speaking for such Indians, for a
period not to exceed five years for grazing^
or ten years for mining purposes in such
quantities and upon such terms and condi-
tions as the agent in charge of such reser-
vation may recommend, subject to the ap-
proval of the Secretary of the Interior.'^
Comp. SUt. 1913, § 4218.
The act of 1905 recognized the oil com*
1 It is provided by § 7338, Revised Lawa
of 1910, that "ever^ public service corpora-
tion organized, existing or doing business
in this state shall on or before the last day
of February of each year return sworn list*
or schedules of its taxable property aa
hereinafter provided, or as may be required
by the State Board of Equalization, and
such property shall be listed with reference
to amount, kind and value on the first day
of February of the year in which it la
listed; and said property shall be subject
to taxation for state, county, municipal,
public school and other purposes, to the
same extent as the real and personal prop-
erty of private persons."
240 U. 8.
ins.
INDIAN TERRITORY ILLUMINATING OIL CO. ▼. OKLAHOMA. 624-626
pany as the owner by aBsignment of the
lease, which assignment was approved by
the Secretary of the Interior, and extended
the lease for a period of ten years from
March 16, 1906, with all the conditions of
the original lease except that from and aft-
er that date the royalty to be paid on gas
should be $100 per annum on each gas well
instead of $60, as provided in. the lease,
and except that the President of the United
States should determine the amount of roy-
alty to be paid to alL
The state opposes the contentions of the
oil company and asserts that the lease was
"not a grant of any authority, franchise,
or privilege to any particular person or cor-
poration, and is merely a permit 'to the
Osage Tribe, authorizing such tribe to lease
to any person or any number of persons
upon the approval of such lease contract by
the Secretary of the Interior." It further
asserts that the oil company merely occu-
pied "the position of an independent con-
tractor, acting for itself and in its own be-
half, in a contract with the Osage Indian
Tribe," and that therefore the relation of
principal and agent between it and the gov-
ernment did not exist.
A statement of the case is as follows:
The oil company made a sworn return of
what it considered the fair cash value of
that part of its property engaged in the
public service at $63,836.10. The State
Board of Equalization, after a hearing, in-
creased the valuation to $638,360, the basis
of the order of the Board being that the
oil company was not protected from taxa-
tion by the lease from the Indians. Under
the procedure of the state, the [525] oil
company appealed from that order to the
supreme court of the state.
In the latter court a referee was appoint-
ed to take testimony and report his find-
ings of fact and conclusions of law. He
duly reported the facts and from them al-
so reported as a conclusion of law that the
oil company was "liable to taxation by the
state of Oklahoma for the full value of its
property, tangible and intangible, — that is,
for the sum of $600,000;" and that it was
"not exempt from taxation upon the theory
that it is a Federal agent, or that it holds '
a franchise from the Federal government."
And he recommended that judgment be en-
tered fixing the assessment of the oil com-
pany's property for taxation for the year
1011 at $447,169.98, this being the differ-
ence between the total value of all the prop-
erty and the amount ($62,830.02) locally
assessed.
The report was confirmed, the court ad-
judging that the property of the oil com-
pany be assessed aa recommefided by the
referee.
•• L. ed.
The question in the case seems to be a
simple one. It is g^ven some complexity
by the opinions of the court on the hearing
and rehearing, which require some recon-
ciliation. It appears from the findings of
the referee that on March 16, 1896, the
Osage Nation of Indians in Oklahoma ter-
ritory entered into a contract with one Ed-
win B. Foster, by the terms of which Fos-
ter had a blanket lease upon the Osage In-
dian Reservation for the sole purpose of
prospecting and drilling wells and mining
and producing petroleum and natural gas
only. The lease was for a term of ten years,
and was approved by the Secretary of the
Interior. By an act passed March 3, 1906,
Congress extended the lease as to 680,000
acres for ten years. The lease has therefore
expired. Prior to its extension in 1906, the
lease was assigned to the oil company.
The oil company has sublet to more than
one hundred persons and corporations and
the operations upon most [526] of the
lands covered by the lease have been and
are conducted by sublessees. A small por-
tion, the amount not appearing, is oper-
ated by the company.
By the terms of the lease as extended, the
sublessees are required to pay a royalty of
I of the oil produced upon the property,
of which A goeB to the company and A to
the Indians, the payments on behalf of the
latter being made to the Indian Agency
under and by virtue of the rules and regu-
lations of the Department of the Interior.
The oil company has laid pipe lines upon
the leased lands for conveying natural gas,
and it has been its practice to furnish gas to
the sublessee for use as fuel for their drill-
ing and pumping operations at a flat rate,
the amount of which is not disclosed. The
company also furnished gas during 1911
for domestic consumption to the residents
of Bigheaxt and Avant, two small towns in
which it had no franchise, in the Osage Na-
tion, adjacent to the pipe lines of the com-
pany. It also furnished gas to a local cor-
poration in the city of Bartlesville, which
company held a franchise for and was en-
gaged in the business of selling gas to the
residents of that city, and also to a local
distributing company at the town of Oche-
lata for use in the business of the latter
company in selling gas to the inhabitants
of that town.
By the terms of the contract with the
Osage Indians the company was required
to furnish gas free to the Osage citizens
for use in the public institutions of the
Osages under certain conditions named.
The oil company is primarily engaged in
the business of oil production, and its oper-
ations in the gas business are conducted as
an incident to the development of the oil
781
626-620
SUPREME COURT OF THE UNITED STATES.
Ooi. Temm^
territoiy and the production of oil, and,
to aome extent, as a matter of accommoda-
tion to the citizens of Bigheart and Avant,
and other persons residing along the com-
pany's pipe lines.
[527] In 1911 the company made a
sworn return of $63,835.10 as the actual
cash value of that part of its property en-
gaged in the public service by reason of
the gas business transacted by the com-
pany. This valuation was raised by the
Board of Equalization to $538,350. Cer-
tain of the company's property was re-
turned to local assessors and assessed at
$52,830.02. All of its property is situated
in Osage and Washington counties, Okla-
homa, and the total value of its stock, in-
cluding all its property, tangible and intan-
gible, on February 1, 1011, was $500,000.
The property returned to the Board of
Equalization and to the local assessors did
not include the lease, subleases, contracts,
and franchises of the company, but only
its physical property, it being contended
by the company that such lease, subleases,
contracts, and franchises were not subject
to taxation.
The total value of the company's property
of every kind located in Oklahoma over and
above the amount locally assessed was
$447,169.08 on February 1, 1911.
The gas business of the company has not
been profitable, but has been and is valu-
able as an adjunct to its oil operations.
Against the confirmation of the report of
the referee the court said that the dil com-
pany made four contentions: (1) That it
was not a public service corporation and
that the Board of Equalization was without
authority to assess its property. (2) That
its oil and gas leases were not property used
in any public service rendered by it. (3)
That the leases were not subject to taxa-
tion in the hands of the lessee or his as-
signs. (4) That in exercising rights under
the laws and by the act of Congress extend-
ing the lease the oil company was a Feder-
al agency, or exercised a privilege or fran-
chise granted by the Federal government,
and that the lease, therefore, was not sub-
ject to taxation.
The court held: (1) that the company
was a public service corporation; (2) that
the Board of Equalization [628] had the
power to assess to the company other
property than that used in connection with
public service; (3) that the oil and gas
lease was property and must be assessed
in the name of the owner of the lease, and
not in the name of the lessor; and (4) that
by reason of the act of Congress of 1005
the gas, oil, and other minerala under the
lands remained the property of the Osage
Tribe, and that the power of Congresa over
782
the property oould not be questioned. And^
distinguishing between the property of a
Federal agent and the operations of such
agent, it was held "that the tax sought to
be levied was not invalid because sought to
be levied upon a Federal agency or upon a
franchise granted by the Federal govern-
ment; or because it interferes with the
power of Congress to regulate commerce
between the Indian Tribes."
On rehearing the court modified or
changed its view. The changes and the
reasons for them are not easy to represent.
In the first opinion the report of the referee
was confirmed and it was adjudged "that
the property of appellant [oil company] be
assessed as recommended by the referee in
his report." In the second opinion the re-
port of the referee is again confirmed and
the estimate of the property of the company
at $500,000 held to be sustained by the tes-
timony taken by the referee; but the rea-
soning of the opinions is quite different.
For a statement of the difference we may
adopt for convenience that of the Attorney
General of the state. He says: "...
the essential difference between the original
opinion and the opinion on rehearing being
that in the original opinion it was held
that oil and gas leases, as such, constitute
property as defined by the Constitution and
statutes of the state of Oklahoma, and as
such was subject to taxation by said state»
while the opinion on rehearing held that
oil and gas leases, as such, were not de-
fined as personal property subject to taxa-
tion under the statutes of Oklahoma, nor
by the Constitution of said state, and, there-
fore, oould not [529] be taxed as personal
property; but that under the statutes the
market value of the capital stock of said
corporation oould be taken into considera-
tion by the State Board of Equalization in
assessing the properties of said company*
and could be properly considered as an ele-
ment of vakie in assessing said properties,
and that the evidence taken before the ref-
eree as to the amount of the capital stock
of said company and the market value
thereof, togeUier with its tangible assets,
was sufficient to sustain the assessment
made by the State Board of Equalization."
It is clear that the Board of Equaliza-
tion and the referee sustaining its action
proceeded upon the consideration that the
leases constituted taxable property, and the
first opinion of the court, confirming
the report of the referee, had its basis in the
same consideration. That consideration
was regarded as untenable in the second
opinion, but the court adhered to its for-
mer conclusion; that is, that the report of
the referee should be confirmed. The Board
of Equalization, the referee, and the court
240 V. 8.
1015.
AGKERLIND t. UNITED STATES.
62fr-581
in its first opinion^ regarded the leases as
taxable entities. In the second opinion it
was held that thej could not be so regarded
onder the Constitution of the state, but the
court gaTS them effective representation in
the capital stoclc of the company, and the
latter then was taken as evidence that the
value of the property of the oil company
was $500,000. Whether the Ck)nstitution of
the state permits this accommodation we
are not called upon to say. We are clear
it cannot be permitted to relieve from the
restraints upon the power of the state to
tax property under the protection of the
Federal government. That the leases have
the immunity of such protection we have
decided.
In Choctaw, O. k. O. R. Co. ▼. Harrison,
235 U. S. 292, 59 L. ed. 234, 35 Sup. Ct.
Rep. 27, the railroad company was the les-
see of certain coal mines, obligating itself
to take out annually specified amounts of
coal and to pay a stipulated royalty. It
proceeded actively [630] to develop the
mines, either directly or through its agent,
and took therefrom large quantities of coal
and fully complied with the obligations as-
sumed. The state of Oklahoma attempted
to tax the company under the law of the
state requiring every person engaged in the
mining or production of coal to make a re-
port of the kind and amount produced and
the actual cash value thereof, and at the
same time pay to the state treasurer a
gross revenue tax in addition to the taxes
levied upon an ad valorem basis upon such
mining property, equal to 2 per cent of the
gross receipts from the total production.
The law was held to be invalid as attempt-
ing to tax an instrumentality through
which the United States was performing
its duty to the Indians.
The application of the case to that at bar
needs no assisting comment. A tax upon
the leases is a tax upon the power to make
them, could be used to destroy the power to
make them. If they cannot be taxed as en-
tities they cannot be taxed vicariously by
taxing the stock, whose only value is their
value, or by taking the stock as an evidence
or measure of their value, rather than by
directly estimating them as the Board of
Equalisation and the referee did. The as-
sessment by the Board was of the leases as
objects of taxation, having no immunity
under Federal law. This was repeated by
the referee, and he made it clear that the
asBsasment was so constituted. There was,
he reports, a local assessment by the as-
sessors of Osage and Washington counties
of $52,830.02, and that the total value of
the oil company's "property of every kind
located in Oklahoma, over and above the
amount locally assessed, was $447,159.98, on
«0 Ii. ed.
February 1, 1911,** and he recommended a
judgment for the latter amount. And, we
repeat, there is no doubt of what elements
it was composed. The gas business, he re-
ports, was not "of itself profitable," but
was "valuable as an adjunct to the compar
ny's oil operations." He was explicit as to
what [531] the stodc of the company rep-
resented, saying that "the total value of
said company's stodc, including all its prop-
erty, tangible and intangible, on the first
day of February, 1911, was $500,000." It is
manifest, therefore, wh^i the court took
the stock as evidence of the value of the
property of the company the court took it
as evidence of the value of the leases, and
thereby justified their assessment and taxa-
tion. This, for the reasons we have stated,
was error.
It follows from these views that the as-
sessment against the oil company, so far
as it included the leases, whether as sepa-
rate objects of taxation or as represented
or valued by the stock of the company, is
invalid.
Judgment reversed and case remanded
for further proceedings not inconsistent
with this opinion.
CARL U. ACKERLIND, Administrator of
Erik O. Lind, Deceased, Appt.,
V.
UNITED STATES.
<6ee S. C. Reporter's ed. 531-537.)
Reformation of Imttmments — mistake
— contract with government.
1. A contract with the United States,
formally prepared by the Bureau of Supplies
and Accounts, conformably to U. 6 Rev.
SUt. S 3744, Comp. Stat. 1913, § 6895, upon
a requisition by the Bureau of Equipment,
should be reformed by the court of claims
bv striking out a clause which the Bureau
01 Equipment, in settling the terms of the
contract, had agreed uiould be omitted
from the specifications, but which, through
a clerical inadvertence, was left in the reoui-
sition and embodied in the contract as for-
mally drawn and signed, — although the
contractor may have signed without care-
ful reading.
[For other cases, see Reformation of Instrn-
ments, II. e., in Digest Snp. Ct 1908.]
Appeal •* from court of claims •* re-
manding for further proceedings.
2. The failure of the court of claims
to find in terms certain facts which it has
assumed to be true in the decision that it
delivered does not necessitate sending the
case back for further proeeedings, where
such facts, if material, are not controverted.
[For other eases, see Appeal and Brror, IZ.
1, in Digest Sup. Ct 1908.]
78S
533
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
Appeal — from court of claimfl — ne-
cessity of finding of fact.
3. A fact which the court of claims
states that it does not find stands unproved
in the Federal Supreme Court on appeal.
[For other cases, see Appeal and Brror, V. o,
in Digest Sup. Ct. 1908.]
Commerce — tonnage dues — exemp-
tion.
4. Vessels used by a contractor in the
performance of his contract with the Unit-
ed States for the transportation of coal to
Manila bay are not "employed in the serv-
ice of the government" within the meaning
of the provision of the Philippine Islands
tariff act of March 3, 1005 (33 Stat, at L.
076, chap. 1408), § 15, exempting vessels
80 employed from the payment of tonnage
dues.
[For other casen* see Commerce* VII. a. In
Digest Sup. Ct. 1008.]
[No 203.]
Argued March 15, 1016. Decided April 3,
1016.
APPEAL from the Court of Claims to re-
view a judgment granting a portion of
the relief demanded under a contract with
the United States for the transportation of
coal to Manila bay. Reversed.
See same case below, 40 Ct. CI. 635.
The facts are stated in the opinion.
Mr. George A. King argued the cause,
and, with Mr. William B. King, filed a brief
for appellant:
U. S. Bev. Stat. § 3744, Comp. Stat. 1013,
§ 6805, requiring written contracts, does
not prevent the reformation of a contract
where a clear mistake has been made.
Walden v. Skinner, 101 U. S. 577, 25 L.
ed. 063; Harvey v. United States, 105 U. S. !
671, 26 L. ed. 1206; ^Etna Constr. Co. v.
United States, 46 Ct. CI. 113; McManus v.
Philadelphia, 211 Pa. 304, 60 Ail. 1001.
Where the agreement as reduced to writ- j
ing omits or contains terms or stipulations
contrary to the common intention of the
parties, the instrument will be corrected so
as to make it conform to their real intent.
The parties will be placed as thej would
have stood if the mistake had not occurred.
Hearne v. New England Mut. M. Ins. Co.
20 WaU. 488, 400, 401, 22 L. ed. 305, 306,
307; Snell ▼. Atlantic F. A. M. Ins. Co. 08
U. S. 85, 25 L. ed. 52; Griswold v. Hazard,
141 U. 8. 260, 35 L. ed. 678, 11 Sup. Ct. Bep.
972, 900; Walden v. Skinner, 101 U. S.
677, 25 L. ed. 063; Thompson v. Phenix Ins.
Go. 186 U. S. 287, 34 L. ed. 408, 10 Sup. Ct.
Bep. 1010.
Belief is not barred in such a case, either
hj failure to read the contract (Equitable
Safety Ins. Co. v. Hearne, 20 Wall. 404,
496, 22 L. ed. 808, 300; West ▼. Suda, 60
Conn. 62, $6 AtL 1015, 1 Am. Keg. Rep.
f34
578), or by reading it with misunderstand-
ing of its purport (Penfield ▼. New Rochelle,
18 App. Div. 86, 45 N. Y. Supp. 460,
affirmed in 160 N. T. 697, 65 N. £. 1098).
It is sufficient that the contract as written
departed from the mutual intention of the
parties.
The vessel was employed in the servios
of the government of the United States.
United States v. Morris, 14 Pet. 464, 10
L. ed. 543; The Alexander, 8 Mason, 176,
Fed. Cas. No. 165.
Assistant Attorney General Thompson
argued the cause and filed a brief for ap-
pellee :
The contract should not be reformed, as
the alleged oral agreement was merged In
the written instrument.
Dermott v. Jones, 2 Wall. 1, 7, 17 L. sd.
762, 764; New Orleans-Belize, Boyal Mail k
C. A. 6. S. Co. ▼. United SUtes, 289 U. &
202, ante, 227, 36 Sup. Ct Bep. 76.
The reformation desired would maks a
different contract from the one executed,
and hence is contrary to U. 8. Bst. Stat
§ 3744, Comp. Stat 1913, f 8896.
United SUtes v. New York ft P. B. & &
Co. 239 U. S. 88, ante, 161, 86 Sup. Ct Bsp.
41 ; Clark v. United States, 96 U. & 639, 2A
L. ed. 518.
The vessels employed, being in the servies
of appellant, were not exempt from ton-
nage dues.
New Orleans-Belize Boyal Mail ft a A 6.
S. Co. V. United States, 239 U. S. 202, 2M»
ante, 227, 220, 36 Sup. Ct Bep. 76.
Mr. Justice Holmes delivered the opin-
ion of the court:
llie main point at issue in this ease ii s
claim for the reformation of a contraet for
the imnsportation of coal from certain
ports in the United States to Manila bajr*
It is demanded by the claimant upon tlie
following facts : The terms of such contraeti
are settled by the Bureau of Equipment
A requisition embodying the trannetion
is then sent to the Bureau of Suppliei
and Accounts, , which prepares a fonul
contract in writing in accordance with Ber.
Stat. § 3744, Comp. Stat 1918, f 6896. Ikii
section makes it the duty of the Seeretaritf
of War, of the Navy, and of tht laterior
"to cause and require every oontraefc w^
by them severally on behalf of thi gov*
ernment, or by their offioers undsr then
appointed to niake such oontzmeti^ to be zt-
duced to writing, and signed Igr tht cos*
tracting parties." In the present case tki
printed specifications up<m whieh. pnposili
were asked contained the elause: "^
further that in the event of a eargo arriv-
ing before the preosAiflig saigo is dit-
i49 V. 8>
1915.
ACKERLIND v. UNITED STATES.
533-536
charged, twenty-four (24) hours' notice of
arrival shall be given after discharge of
each cargo before lay days oommenoe in
case of that next arriTing." The contractor
[534] objected to this clause upon satis-
factory grounds, and it was , agreed
that it should be omitted. Through a
clerical inadvertence, however, the clause
w|ts left in the requisition sent to
the Bureau of Supplies and Accounts,
and the contract was drawn embody-
ing it,' and signed by the contractor on
March 2, 1905, without careful reading, the
precise form having been settled, as we have
said. This mistake was discovered upon
the arrival of several vessels at Cavite, on
June 17, 1905, the attention of the Bureau
of Equipment was called to it, and the
Bureau of Supplies and Accounts was re-
quested to make the necessary change, on
June 23. That Bureau notified the con-
tractor that the contract was amended by
the omission of the clause. The govern-
ment refuses to recognize the amendment,
the court of claims dismissed the claim for
reformation (49 Ct. CI. 635), and the claim-
ant appealed to this court.
It hardly is denied and cannot be denied
successfully that in a proper case reforma-
tion of a contract may be required against
the United States notwithstanding the stat-
ute that we have quoted, as it may be re-
quired notwithstanding the provisions of
the statute of frauds. William Cramp k
Sons Ship &, Engine Bldg. Co. v. United
States, 239 U. S. 221, 230, ante, 238, 242, 36
Sup. Ct. Rep. 70. It is the contract that has
been made through the agent authorized to
make it that is to be reduced to writing,
and if a clerk or some other agent makes a
mistake we perceive no reason why the writ-
ing should not be made to conform to the
fact. The contract is not unlawful in the
preliminary stage, or even void in a strict
sense, but simply not to be enforced against
the United States. United States v. New
York A P. R. 8. S. Co. 239 U. S. 88, ante,
161, 36 Sup. Ct. Rep. 41. The contract is
made with the principal and the several
steps are to be regarded as if they all had
been taken by him. Here the United States
made the contract by the Bureau of Equip-
ment, and by its mouth requested the Bureau
of Supplies and Accounts to put it on paper
and sign it. [535] What the Bureau of Sup-
plies and Accoimts understood is immaterial;
it simply followed the requisition of the Bu-
reau of Equipment. There was a mistake
made by a clerk in not striking out a
printed clause from that requisition. It
is as if a principal, after making the agree-
ment, had taken a printed form and for-
gottoi to draw his pen through the words.
The failure of the contractor to read before
•0 li. ed.
I signing an instrument the terms of which
he had seen in print is not enough to debar
him from seeking relief. Equitable Safety
Ins. Co. V. Heame, 20 WalL 494, 22 L. ed.
398.
The only ground for hesitation is the
purely technical one that the court of claims,
acting before the decision of William Cramp
& Sons Ship & Engine Bldg. Co. v. United
States, 239 U. S. 221, 232, ante, 238, 242, 36
Sup. Ct. Rep. 70, and probably uncertain
whether to send up facts or evidence, has
not found in terms certain of the facts that
we have stated. It has found that the act-
ing chief of the Bureau of Equipment wrote
an official letter stating them, and it has
assumed them to be true in the decision that
it delivered. We understand that they are
not controverted if material, and therefore
think it unnecessary to send the case back
for further findings. The decree of the court
of claims upon this part of the case will
be reversed.
The next question that arises concerns the
amount of demurrage to be allowed under
the contract as reformed. Undisputed
terms of the instrument were: "6. The
government guarantees but twenty (20) feet
of water at coaling wharf, Sangley Point.
7. Cargo to be discharged at the rate of
four hundred (400) tons per day for shch
part, of cargo as may be necessary to dis-
charge in the bay to enable a vessel of deep
draft to go to the wharf, and six hundred
(600) tons per day at wharf, Sundays and
legal holidays excepted in each instance, or
the government pays demurrage at the rate
of eight (8) cents per ton per day on the
net registered tonnage of the vessel for any
detention caused by the government (through
fault of [536] its own) not dis-
charging at the above-named rates, it
being understood that twenty-four (24)
hours' notice of arrival of each cargo
under this charter shall be given the
conunandant before lay days commence."
(Then followed the clause stricken out by
reformation.) "13. While an average daily
discharge of four hundred (400) tons in the
stream and six hundred (600) tons at the
wharf is guaranteed, the conunandant will
be instructed to discharge the cargo as ex-
peditiously as practicable with a view of
exceeding these rates without working over-
time." It is found that one vessel went to
the wharf drawing 22 feet and 6 inches, and
it is argued that if one could, another could,
and that, under paragraph 13, just quoted,
the other vessels should have been docked
at that draft, and thus have been enabled
to deliver 200 tons more a day, — that being
the difference between wharf and stream.
If the argument is correct, it would give the
claimant $2,217.44 demurra|[e under the
50
785
636-IMI8
SUPREME CX)URT OF THE UNITED STATES.
Oct. Temm,
oontraet as refonned. But at to thia, it ia
enough to lay that the court of elaima
atated that it did not find the fact of gen-
erally ayailable depth of over 20 feet, and
therefore it gtanda unproved in this court.
The only other point argued ia that the
veiaela ooncemed ahould not have heen re-
quired to pay tonnage dues becauae the
Philippine Tariff act of March 3, 1905, chap.
1408, I 15, 33 Stat, at L. 928, 976, exempts
from them "a vessel belonging to or em-
ployed in the service of the government of
the United States." But it is a sufficient
answer that the words do not mean every
vessel that carries a ton or a cargo of ooal
for the government, but only one that is
under the control of the United States, as
explained in New Orleans-Belize Royal Mail
k C. A. S. S. Co. V. United States, 239 U. S.
202, 206, ante, 227, 220, 36 Sup. Ct Rep. 76.
The ground of the exemption is to prevent
interference with government agencies. But
an ind^endent carrier, such as the con-
tractor was in this case, is not such an
agency, and is not employed in the service of
the [537] government within the meaning
of the law. See Baltimore Shipbuilding &
Dry Dock Go. v. Baltimore, 195 U. S. 375,
382, 49 L. ed. 242, 244, 25 Sup. Ct. Rep. 50.
Upon the last two points the Judgment of
the' Court of Claims is affirmed.
Judgment reversed.
Mr. Justice McReynolds took no part in
the oonsideration and decision of this case.
FRANK O. FARNHAM, Appt.,
V.
UNITED STATES.
(See S. 0. Rq>orter's ed. 537-540.)
Claims •— implied oontraet— use of pat-
ented invention.
No undertaking on the part of the
United States to pay the patentee of an
improvement in stamp books or holders for
the alleged use of his invention can be im-
plied so as to be within the cognizance of
the oourt of daima, where the government
expressly rejected the patentee's suggestion
that it adopt his device, and instead be-
ffan the manufacture and sale of a stamp
bode designed by a postal official, claiming
that such book was not covered by any
previous patent.
[For otber cases, see Claims, 122-127: United
States, VL c in Digest 8a». Ct. 1008.]
[No. 107.]
Argued Maieh 2, 1916. Deeided April 8,
1818.
788
APPEAL from the Court of Claima to re-
view a Judgment dismissing the peti-
tion of a patentee to recover upon the baaia
of an implied contract for the alleged uae
by the government of hia patented inven-
tion. Modified by directing that the Judg-
ment be without prejudice, and, as so modi-
fied, affirmed.
See same caae below, 49 Ct. CL 19.
The facts are stated in the opinion.
Messrs. George W. Ramsey siid Hosea
B. Moulton argued the cause and filed a
brief for appellant:
There was an implied contract on the
part of the government to pay for the use
of appellant's invention.
Boyden v. Burke, 14 How. 575, 14 L. ed.
548 ; United Stotes v. RusseN, 13 Wall. 823»
20 L. ed. 474; United States v. Great Falls
Mfg. Co. 112 U. S. 645, 28 L. ed. 848, 5 Sup.
Ct. Rep. 306; Cammeyer v. Newton, 94 U. S.
225, 24 L. ed. 72; Seymour v. Osborne, 11
Wall. 516, 20 L. ed. 33; United States v.
Bums, 12 Wall. 246, 20 L. ed. 388; James v.
Campbell, 104 U. S. 356, 26 L. ed. 786;
Hollister v. Benedict & B. Mfg. Co. 113 U.
S. 59, 28 L. ed. 901, 5 Sup. Ct. Rep. 717;
United States v. Palmer, 128 U. S. 262, 32
L. ed. 442, 9 Sup. Ct. Rep. 104; McKeever v.
United States, 14 Ct. Q. 396; United States
V. Berdan Firearms Mfg. Co. 156 U. S. 552,
39 L. ed. 580, 15 Sup. Ct. Rep. 420; United
States V. Soci^ Anonyme des Anciens
Etablissements Call, 224 U. S. 309, 56 L. ed.
778, 32 Sup. Ct. Rep. 479.
Assistant Attorney General Tbompson
argued the cause and filed a brief for ap-
pellee:
There was no implied contract.
Russell V. United States, 182 U. S. 516-
530, 45 L. ed. 1210-1215, 21 Sup. Ct. Rep.
899 ; Schillinger v. United States, 155 U. S.
169, 39 L. ed. 110, 15 Sup. Ct. Rep. 85.
Mr. Justice Hughes delivered the opin-
ion of the court:
The claimant, in the year 1906, brought
his petition to recover upon the basis of an
implied contract for the alleged use by the
government of his patented invention, con-
sisting of a stamp holder. The claim waa
for profits alleged to have been made be-
tween April 16, 1900, and June 30, 1905.
Another petition waa filed, in 1911, upon
the same basis, to recover profits for the
period between June 30, 1905, and June
30, 1910. Motion to consolidate the two
suits, aa involving the same iasues, waa
granted. Upon hearing, the court made
findings of ^ct, and held that the plaintiif
waa not entitled to recover. 49 Ct. CI. 19.
840 U. S.
1915.
FARKHAH ▼. UNITED STATES.
53»-5iO
The court found that, under date of Jan-
nary 4, 1808, Letters Patent No. 606,666
had been issued to the claimant for improve-
ment in stamp holders. Models of the pro-
posed stamp book and an explanatory
pamphlet were submitted to the Third As-
sistant Postmaster-General with the sug-
gestion that the Postoffice Department
should adopt this method of handling and
selling stamps. That officer, on June 17,
1808, returned the books to the claimant,
saying: "The Department does not deem it
expedient to sell stamps in this way." The
claimant, on July 14, 1808, replied, stating
that the descriptive pamphlet and the model
stamp books formerly transmitted did not
fully show the invention, and that he re-
quested a personal interview. Two days
later the government responded as follows:
"Your plan for booking and selling stamps
is well understood; your explanation of it
could not be clearer; but, as stated in a
former letter to you, the [530] Department
does not wish to suiopt it." In June, 1800, the
adoption of the claimant's device was again
suggested to the Postoffice Department, and
the Department replied that it adhered to
its former decision. On July 1, 1800, Ed-
win C. Madden was appointed Third Assist-
ant Postmaster -General, and he held office
until March, 1007. Soon after his appoint-
ment he took under consideration the manu-
facture and sale of postage stamp books.
He designed, without actual knowledge of
the existence of the claimant's patent or of
the correspondence with the Department
relating to it, the stamp book now in de-
partmental use. This stamp book was
transmitted by Mr. Madden to the Bureau
of Printing and Engraving with an inquiry
as to the possibility of its manufacture, the
details of manufacture being left to that
Bureau. It prepared plans accordingly.
After the public announcement that the De-
partment would begin the public sale of
two-cent stamps in book form, Mr. Madden
learned for the first time that it was
claimed that there were letters patent cover-
ing the proposed stamp book, and before
iasuing the same to the public he requested
the Assistant Attorney General for the De-
partment to examine all such claims and
letters patent, and to advise him whether
hia book would constitute an infringement.
The Assistant Attorney General advised
him to proceed with the public sale as con-
templated; that the stamp book to be is-
•aed was not ooTered by any previous pat-
vnta. Both he and Mr. Madden examined
•0 l4. ed.
the patents of the claimant, and Mr. Mad-
den also examined the correspondence oa
file. From the beginning the latter insisted
that the invention of the stamp book issued
by the Department was his own, being in-
dependent of the claimant's patent. In
March, 1000, the Third Assistant Postnuuh
ter-General addressed a letter to the claim-
ant's attorney, expressly asserting that the
Department's stamp book was not an in-
fringement. It was in these circumstances
that the government [540] commenced the
manufacture of its stamp books on March
26, 1000.
It is apparent that these facts furnished
no basis for a finding of implied contract
on the part of the government to pay for
the use of the invention, — ^the only ground
upon which the petitions were cognizable hi
the court of claims. Schillinger v. United
States, 155 U. S. 163, 170, 30 L. ed. 108,
111, 15 Sup. Ct. Rep. 85; United States t.
Berdan Fire-Arms Mfg. Co. 156 U. S. 552»
556, 30 L. ed. 530, 531, 15 Sup. Ct. Rep.
420; Russell v. United States, 182 U. S.
516, 530, 45 L. ed. 1210, 1215, 21 Sup. Ct.
Rep. 800 ; Crozier v. Fried. Krupp Aktienge-
sellschaft, 224 U. 6. 200, 303, 304, 56 U
ed. 771, 775, 776, 32 Sup. Ct. Rep. 488;
United States v. Soci4t4 Anonyme dea
Anciens Etablissements Call, 224 U. S. 300,
311, 56 L. ed. 778, 780, 32 Sup. Ct. Rep.
470. In this view, the consolidated peti-
tion was properly dismissed and it is un-
necessary to consider the questions whieh
have been argued with respect to actual nae
and the validity of the claimant's patent.
The second petition related to a period ex-
tending to June 30, 1010, thus embracing
five days after the approval of the act of
June 25, 1010, chap. 423, 36 Stat, at L. 851,
Comp. Stat. 1013, § 0465, permitting the re-
covery from the government of reasonable
compensation in cases of infringement.
Crozier v. Fried. Krupp Aktiengesellschi^t^
224 U. S. 200, 303, 304, 56 L. ed. 771, 775,
776, 32 Sup. Ct. Rep. 488. This petition,
however, like the first, did not purport to
present a case within this act, but waa
rested solely upon implied contract. Tho
judgment, however, should be without preju-
dice to the presentation of any claim the
petitioner may have under the statute; and
with this modification the judgment is at*
firmed.
It is So ordered.
Mr. Justice McReynolds took no part la
the oonsideration and decision of this 'ease.
7S7
541
SUPREME COURT OF THE UNITED STATES.
Oct. TBBMf
[541] JONES NATIONAL BANK, Plff. in
Err.,
V.
CHARLES E. YATES, D. E. Thompson, and
Louisa Hamer, Administratrix of the Es-
tate of Ellis P. Hamer, Deceased. (No.
163.)
BANK OF STAPLEHURST, Plff. in Err.,
V.
CHARLES E. TATES, D. E. Thompson, and
Louisa Hamer, Administratrix of the Es-
tate of Ellis P. Hamer, Deceased. (No.
164.)
UnCA BANK, Plff. in Err.,
V.
CHARLES E. YATES and Louisa Hamer,
Administratrix of the Estate of Ellis P.
Hamer, Deceased. (No. 165.)
THOMAS BAILEY, Plff. in Err.,
T.
CHARLES E. YATES and Louisa Hamer,
Administratrix of the EsUte of Ellis P.
Hamer, Deceased. (No. 166.)
(See S. C. Reporter's ed. 541-563.)
JSrror to state ooart — decision in faTor
of Federal right.
1. The theory that plaintiffs in the
state court sought to enforce defendants'
alleged liability on non-Federal grounds,
and that the Federal question was raised
exclusively by the defendants, cannot sac-
cessfully be urged to defeat the appellate
jarisdiction of the Federal Supreme Court
over a judgment of the highest state court,
which, upon the ground that a case was not
made out, under U. S. Rev. Stat. § 5239,
Comp. Stat. 1913, § 9831, as construed by
the Federal Supreme Court, reversed a judg-
NoTB. — On the general subject of writs
of error from United States Supreme Court
to state courts — see notes to Martin v.
Hunter, 4 L. ed. U. S. 97; Hamblin v. West-
ern Land Co. 37 L. ed. U. S. 267; Re
Buchanan, 39 L. ed. U. S. 884, and Kipley
▼. Illinois, 42 L. ed. U. S. 998.
On what adjudications of state courts
can be brought up for review in the Supreme
Court of the United States by writ of
error to those isourts — see note to Apex
Transp. Co. v. Garbade, 62 L.R.A. 513.
On how and when questions must be
raised and decided in a state court in order
to make a case for a writ of error from the
Supreme Court of the United States — see
note to Mutual L. Ins. Co. v. McGrew, 63
L.R.A. 33.
On what questions the Federal Supreme
Court will consider in reviewing the judg-
ments of state courts — see note to Missouri
«x rel. Hill v. Dockery, 63 L.R.A. 571.
On review of questions of fact on writ of
error to a state court-rsee note to Smiley v.
Kansas, 49 L. ed. U. S. 546.
788
ment holding the directors in a national
bank civilly liable to depositors suffering
damage beotuse of false representations as
to the bank's financial condition, contained
in the published oflBcial reports to the Comp-
troller of the Current, even though plain-
tiffs' petition did not refer in terms to the
Federal statute, and defendants alleged in
their answer that, if any liability attached
to them as directors, it was determined by
the Federal statute, since, if the plaintiffs'
cause of action required the application of
the Federal statute in defining the liabilitv
of the directors with respect to the acts al-
leged and proved, plaintiffs were entitled
to its correct application.
[For other cases, see Appeal and Jirtot, 1431-
1460, in Digest Sop. Ct. 1908.]
EIrror to state court — review of facta.
2. The Federal Supreme Courts when
reviewing on writ of error a judgment of
the highest court of a state, which, upon the
ground that a case had not been made out,
under U. S. Rev. Stat. | 5239, Cump. Stat.
1913, § 9831, reversed a judfiment holding
directors in a national bank civilly liable to
depositors suffering damage because of false
representations as to the bank's financial
condition, contained in the published official
reports to the Comptroller of the Currency,
will determine whether the facts found by
the trial court justified a recovery under
the Federal law, and, if so, whether there
was substantial evidence to support tnese
findings.
[For otber cases, see Appeal and Brror, 2175-
2208. in Digest Sup. Ct. 1908.]
National banks — liability of directors
•» false official reports "^ knowing
participation or assent.
3. Directors in a national bank, who,
with knowledge of the falsity of the repre-
sentations as to the bank's financial condi-
tion, contained in oflBcial reports to the
Comptroller of the Currency, made and pub-
lished conformably to U. S. Rev. Stat. |
5211, Comp. Stat. 1913, § 9774, either
formally attested such reports, or know-
ingly permitted, assented to, and allowed
the same to be made and published, must
be deemed knowingly to have participated
in or assented to a violation of the national
banking laws, within the meaning of U. S.
Rev. Stat. § 5239, Comp. Stat. 1913, § 9831,
which provides that, in case of ^uch viola-
tion, or permitted violation, every director
participating in, or assenting thereto, shall
be civilly liable to any person suffering
damage in consequence thereof.
[For otber cases, see Banks, IV. e, 8, in Digest
Sup. Ct. 1908.1
Evidence — sufficiency ^ knowledge of
national bank directors — falsity of
ofHcial reports.
4. A finding that the directors in a
national bank, who participated in or as-
sented to the official reports of the bank's
financial condition to uie Comptroller of
the Currency, made and published conform-
ably to U. S. Rev. Stat, g 5211, Comp. Stat.
1913, S 9774, did so with knowledge of the
gross and easily discoverable falsi^ of the
representations therein that the capital
S40 U. S.
1015.
JONES NATIONAL BANK t. YATES.
stoek was intact, and that there were un-
divided profits and a surplus, is sustained
tnr evidence of the deliberate assertions of
the directors themselves, made prior to such
reports, in response to oflScial complaint,
that they were examining the condition of
the bank, were considering the losses sus-
tained and the expenses incurred, and the
basis of the last declared dividend.
[For other cases, see Brldence XII. t, in
Diffest Sup. Ct. 1908.]
[Nos. 163, 164, 165, and 166.]
Argued April 5 and 6, 1915. Kestored to
docket for reargument June 21, 1915. Re-
argued January 12 and 13, 1916. Decided
April 8, 1916.
FOUR WRITS OF ERROR to the Su-
preme Court of the State of Nebraska
to review judgments which reversed judg-
ments of the District Court of Seward Coun-
ty, in that state, holding the directors of a
national bank civilly liable to depositors
suffering damage because of false represen-
tations as to the bank's financial condition,
oontained in the published official reports to
the Comptroller of the Currency. Reversed
and remanded, with instructions to rein-
state the judgments entered in the District
Court.
See same case below, first i^peal, 74 Neb.
734, 105 N. W. 287 ; second appeal, 93 Neb.
121, 139 N. W. 844, 1135.
The facts are stated in the opinion.
Mr. John Jacob Thomas argued the
cause, and, with Mr. Lionel C. Burr, filed
a brief for plaintiffs in error:
Plaintiffs' petitions state a cause of ac-
tion, whether tested by U. S. Rev. Stat.
S 5230, Comp. Stat. 1913, § 9831, or the
common law.
Thomas v. Taylor, 224 U. S. 78, 56 L. ed.
678, 32 Sup. Ct. Rep. 403; Davis v. Central
Land Co. (Davis v. Trent) 162 Iowa, 269,
40 L.R.A.(N.S.) 1219, 143 S. W. 1073.
The provisions of U. S. Rev. Stat. § 5239,
requiring a knowing violation in order to
subject a director to the liability therein
imposed, do not demand proof of an inten-
tional violation, but a violation in effect in-
tentional. And there is in effect an inten-
tional violation of the statute when a di-
rector deliberately fails or refuses to exam-
ine that which it is his duty to examine.
Thomas v. Taylor, supra.
While bank directors may delegate the
performance of ministerial duties to subor-
dinate officers, agents, or servants under
their supervision and direction, they may
not abdicate their trust as directors by
committing the management of the affairs
of the association to others, and thus avoid
responsibility and liability. It is their duty
to actually, actively, and diligently manage
its affairs, and from this obligation they
cannot absolve themselves; and they will
be held to such knowledge as the perform-
ance of that duty wovid give; or, con-
versely, they will not be absolved from
liability on account of ignorance which
could only result from gross negligence,
wilful recklessness, or deliberate refusal to
perform their duty.
First Nat. Bank v. Drake, 29 Kan. 311,
44 Am. Rep. 646; Hall v. Henderson, 126
Ala. 495, 61 L.RJI. 621, 85 Am. St. Rep.
53, 28 So. 544; United Soc. v. Underwood,
0 Bush, 609, 15 Am. Rep. 731; Rankin v.
Cooper, 149 Fed. 1010; Warren v. Robison,
19 Utah, 289, 75 Am. St. Rep. 734, 57 Pac.
287; Auten ▼. United States Nat. Bank,
174 U. S. 147, 43 L. ed. 928, 19 Sup. Ct.
Rep. 637; McQure v. People, 27 Colo. 371,
61 Pac. 617; Henry v. Dennis, 85 Am. St.
388, note; Solomon v. Bates, 118 N. C. 311,
54 Am. St. Rep. 725, 24 S. £. 478; Houston
V. Thornton, 122 N. C. 365, 65 Am. St. Rep.
699, 29 S. £. 827; Marshall v. Farmers' &
M Sav. Bank, 85 Va. 676, 2 L.R.A. 534, 8
S. E. 586, 17 Am. St. Rep. 84, note, p. 100;
Fletcher v. Eagle, 74 Ark. 585, 109 Am. St.
Rep. 100, 86 S. W. 810; Martin v. Webb,
110 U. S. 7, 28 L. ed. 49, 3 Sup. Ct. Rep.
428; Savings Bank v. Caperton, 87 Ky. 306,
12 Am. St. Rep. 488, 8 S. W. 885; Williams
V. McKay, 40 N. J. Eq. 190, 53 Am. Rep.
775; Delano v. Case, 121 HI 247, 2 Am. St.
Rep. 81, 12 N. E. 676; Scale v. Baker, 70
Tex. 283, 8 Am. St. Rep. 502, 7 S. W. 742;
Hun V. Oury, 82 N. Y. 71, 37 Am. Rep. 646;
Huntington v. Attrill, 118 N. Y. 365, 23
N. E. 544; Utley v. Hill, 165 Mo. 232, 4»
L.RA. 323, 78 Am. St. Rep. 569, 55 S. W.
1091; Briggs v. Spaulding, 141 U. S. 132,.
35 L. ed. 662, 11 Sup. Ct. Rep. 924; Gemer
V. Mosher, 58 Neb. 135, 46 L.R.A. 244, 78^
N. W. 384.
By the act of attesting as correct an offi-
cial report of the financial condition of a
national bank, directors thereby affirm and
represent that they have actual knowledge
of the bank's condition and of the truthful-
ness of the report, as distinguished from
mere opinion or belief. If they make or
attest untrue statements without knowl-
edge of whether they are true or false, they
are guilty of false representation in effect
knowingly made. If they make or attest
such statement recklessly, without knowl-
edge of its truth or falsity, or are oonsciouB
that they have no actual knowledge of its.
truthfulness, they are guilty of a false-
representation knowingly made. Where di-
rectors who, through gross neglect of duty
or reckless inattention, have not partici-
pated in the management of the bank's
affairs, and are ignorant of its financial
78»
SUPREME CX)URT OF THE UNFIED STATES.
Oct. TkBM,
oondition, make * representation of such
oondition, and they do not know whether it
be true or false, and it is actually untrue,
they are guilty of a false representation,
knowingly made.
Boyd V. Schneider, 65 C. C. A. 209, 131
Fed. 223; Vincent v. Corbett, 94 Miss. 46,
21 L.RJk.(N.S.) 85, 47 So. 641; 20 Gyc.
24-29; Cooper t. Schlesinger, 111 U. S. 148,
28 L. ed. 382, 4 Sup. Ct. Rep. 360; Lehigh
Zinc & I. Co. V. Bamford, 150 U. S. 665, 37
L. ed. 1215, 14 Sup. Ct. Rep. 219; Hindman
T. First Nat. Bank, 57 LJUk. 108, 50 C. C.
A. 623, 112 Fed. 934; Taylor v. Commercial
Bank, 68 App. Div. 460, 73 N. Y. Supp.
024; Hadcock v. Osmer, 153 N. T. 604, 47
N. E. 923; Rothschild v. Mack, 115 N. Y.
7, 21 N. E. 726; Cole v. Cassidy, 138 Mass.
437, 52 Am. Rep. 284; Chatham Furnace
Co. T. Moffatt, 147 Mass. 403, 9 Am. St.
Rep. 727, 18 N., £. 168, 16 Mor. Min. Rep.
103; John Gund Brewing Co. t. Peterson,
130 Iowa, 301, 106 N. W. 741; Thomas ▼.
Taylor, 224 U. S. 73, 56 L. ed. 673, 32 Sup.
Ct. Rep. 403; Joines v. Combs, 38 Okla.
380, 132 Pac. 1115; Arrowsmith v. Nelson,
73 Wash. 658, 132 Pac. 743; Grant y. Led-
widge, 109 Ark. 297, 160 S. W. 200; Pate
▼. BUdes, 163 N. C. 267, 79 S. E. 608; Davis
T. Central Land Co. (Davis v. Trent) 162
Iowa, 269, 49 L.RA..(N.S.) 1219, 143 N. W.
1073; Gemer v. Mosher, 5*8 Neb. 135, 46
LJIA. 244, 78 N. W. 384; Morse, Banks ^
Bkg. §§ 132, 133.
After receiving the letters from the
Comptroller of the Currency, shown by the
record, it was directors' duty to enter upon
the exercise of their functions and acquaint
themselves with the affairs of the associa-
tion, and their failure to do so was gross
negligence and recklessness, or a deliberate
refusal to perform their duty, and consti-
tuted an intentional violation, actionable
under U. S. Rev. Stat. § 5239, Comp. Stat.
1913, § 9831. And if, thereafter, directors
make or attest statements of the associa-
tion's financial condition, or permit its offi-
cers, agents, or servants to do so, and such
statements are in fact false and untrue,
vhey are liable in their personal and indi-
vidual capacity for all damages which a de-
positor may have suffered in consequence of
such false representation, regardless of
whether or not the directors had actual per-
sonal knowledge of the falsity. Upon re-
ceipt of the letters aforesaid it was the
duty of the directors to acquaint them-
selves with the affairs of the association,
and they are presumed to have such knowl-
edge of its condition as a performance of
their duty would have given them.
Thomas v. Taylor, 224 C. S. 73, 56 L. ed.
673^ 32 Sup. Ct. Rep. 403; Chesbrough v.
Woodwortb, 116 C. C. A. 465, 195 Fed. 875;
Chicago, St. L. & P. R. Co. ▼. Nash, 1 Ind.
App. 298, 27 N. E. 564.
It follows that the state court erred in
deciding that, to entail liability under
§ 5239, for the publication of false official
reports of the bank's condition, it must be
shown that the directors had actual knowl-
edge of its falsity, — ^that knowledge must
be brought home to the directors that they
are deceiving the individual wronged, and
may thereby occasion a loss to him,— or
that they personally participated in the act
complained of.
The state court, in testing the sufficiency
of the evidence to sustain recovery, having
weighed it under an erroneous interpretation
of § 5239, and a misconception of the de-
cision of this court in these cases, it follows
that its conclusions in that regard are
erroneous. Measured by the correct rule
of responsibility, the evidence establishes
undoubted liability, and the finding and
judgment of the trial court should be
affirmed.
Jones Nat. Bank v. Yates, 93 Neb. 137,
139 N. W. 844, 1135; Black v. Epstein, 221
Mo. 286, 120 S. W. 754; Stuart v. Hayden,
169 U. S. 1, 42 L. ed. 639, 18 Sup. Ct. Rep.
274; Farmers' & M. Nat. Bank v. Mosher,
68 Neb. 724, 94 N. W. 1003, 100 N. W. 133.
Messrs. John Jacob Thomas, Lionel C.
Burr, and Arthur B. Hayes also filed a
brief for plaintiffs in error:
The findings of the state supreme court
are subject to review.
Carlson v. Washington, 234 U. S. 103, 58
L. ed. 1237, 34 Sup. Ct. Rep. 717; Southern
P. Co. V. Schuyler, 227 U. S. 601, 57 L. ed.
662, 43 L.R.A.(N.S.) 901, 33 Sup. Ct. Rep.
277; Creswill v. Grand Lodge, K. P. 225 U.
S. 246, 56 L. ed 1074, 32 Sup. Ct. Rep. 822;
North Carolina R. Co. v. Zachary, 232 U. S.
248, 58 L. ed. 591, 34 Sup. Ct. Rep. 305,
Ann. Cas. 1914C, 159, 9 N. a C. A. 109;
Kansas City Southern R. Co. v. C. H. Albers
Commission Co. 223 U. S. 573, 56 L. ed. 556,
32 Sup. Ct. Rep. 316; Rector v. City Deposit
Bank Co. 200 U. S. 405, 412, 50 L. ed. 527,
529, 26 Sup. Ct. Rep. 289; Washington
ex rel. Oregon R. & Nav. Co. v. FairdUld,
224 U. S. 510, 56 L. ed. 863, 32 Sup. Ct
Rep. 535.
Mr. John Jacob Thomas filed a supple-
mental brief for plaintiffs in error:
The state supreme court reviewed the
cases for errors of law, and did not assume
to try them de novo,
Roode V. Dunbar, 9 Neb. 95, 2 N. W. 345;
State ex rel. Miller v. Lancaster Go. 13 Neb^
223, 13 N. W. 212; Prentice Brownstone Co.
▼. King, 39 Neb. 816, 58 N. W. 277; SUts
ex rel. McMullen v. Aflholder, 44 Neb. 497,
62 N. W. 871 ; CampbeU r. Farmers' 4 M.
240 V. 8.
1016.
JONES NATIONAL BANK r. YATES.
Bank, 40 Neb. 143, 68 N. W. 844; Nebraska
Wesleyan UnWenity r. Craig, 54 Neb. 178,
74 N. W. 605; Lowe r. Riley, 57 Neb. 262,
77 N. W. 758; Gary r. Kearney Nat. Bank,
60 Neb. 160, 80 N. W. 484; Van Doren r.
Bmpkie-Shugart Co. 2 Neb. (Unof.) 818, 00
N. W. 220.
The scope of review, as well as the pro-
cedure, is inoonsistent with any other
theory.
Uni<m P. R. Co. ▼. Rassmussen, 25 Neb.
810, 13 Am. St. Rep. 627, 41 N. W. 778;
Jones V. Edwards, 1 Neb. 170; Blackburn t.
Ostrander, 6 Neb. 210; Conner t. Draper, 34
Neb. 870, 52 N. W. 720; Storz y. Riley, 41
Neb. 822, 60 N. W. 06; Douglas y. Smith,
75 Neb. 160, 106 N. W. 173; O^den y. Sover-
eign Camp, W. W. 78 Neb. 804, 111 N. W.
707, 113 N. W. 524; H. F. Cady Lumber Co.
Y. Wilson Steam Boiler Co. 80 Neb. 607.
114 N. W. 774; High v. Merchants' Bank, 6
Neb. 156; Angle v. BUby, 25 Neb. 595, 41
N. W. 397; Carmack v. Erdenberger, 77
Neb. 592, 110 N. W. 315; Waxham v. Fink,
86 Neb. 180, 28 L.RJk.(N.S.) 367, 125 N. W.
145, 21 Ann. Cas. 301; State ex rel. Mc-
Donald v. Farrington, 86 Neb. 658, 126
N. W. 91; Tait v. Reed, 91 Neb. 235, 136
N. W. 89; Lowe v. Keens, 00 Neb. 565, 133
N. W. 1127; Ann. Cas. 1913B, 430; Ham-
mond V. Edwards, 56 Neb. 631, 77 N. W. 75;
Ogden V. Garrison, 82 Neb. 302, 17 KRJL
(N.:.) 1135, 117 N. W. 714; Lion Bonding
A Surety Co. v. Capital F. Ins. Co. 06 Neb.
61, 146 N. W. 1051 ; BhoS v. Ash, 05 Neb.
266, 146 N. W. 271 ; Lau v. Lindsey, 3 Neb.
(Unof.) 681, 02 N. W. 642; First Nat. Bank
▼. Crawford, 78 Neb. 666, 111 N. W. 687;
Western Cornice & Mfg. Works v. Leaven-
worth, 52 Neb. 418, 72 N. W. 502; Bishop
y. Huff, 81 Neb. 720, 116 N. W. 665; Haight
V. Omaha & C. B. Street R. Co. 07 Neb. 203,
140 N. W. 778; Kohl v. Munson, 07 Neb.
170, 140 N. W. 314; De Noon v. Lincoln
Traction Co. 07 Neb. 4, 149 N. W. 48; Cal-
breath v. Bamford, 97 Neb. 832, 151 N. W.
057; Davis v. Manning, 97 Neb. 663, 150
N. W. 1019; Wenquist v. Omaha & C. B.
Street R. Co. 97 Neb. 660, 150 N. W. 637;
Langdon v. Withnell, 97 Neb. 335, 149 N. W.
781; Omaha F. Ins. Co. v. Thompson, 50
Neb. 584, 70 N. W. 30; Risse v. Gasch, 43
Neb. 288, 61 N. W. 616; Flanigan v. Gug-
genheim Smelting Co. 63 N. J. L. 647, 44
AtL 762, 7 Am. Neg. Rep. 113; Hopkins v.
Washington County, 56 Neb. 596, 77 N. W.
68; Rand v. King, 134 Pa. 641, 19 AtL 806;
Porter v. Sherman County, 40 Neb. 274, 68
N. W. 721; American Surety Co. v. Mussel-
man, 00 Neb. 62, 132 N. W. 720; Slocum ▼.
New York L. Ins. Co. 228 U. S. 364, 57
L ed. 870, 83 Sup. Ct. Rep. 523, 528, 680,
Ann. Cas. 1014D, 1020.
A jury having been waived, the findings
40 L. ed.
of fact of the trial court have the same
foree and effect in law as the verdict of a
jury.
Madison Nat. Bank v. Gross, 08 Neb. 684,
164 N. W. 207; Powers v. Bohuslav, 84 Neb.
170, 120 N. W. 042; Dorsey v. Wellman, 86
Neb. 262, 122 N. W. 080; Darr & Spencer v.
Kansas City Hay Co. 85 Neb. 666, 124 N.
W. 103; Tyng v. Grinnell, 02 U. S. 467, 23
L. ed. 733.
Granting, for the sake of argument, that
the state supreme court decided that the
findings of fact were insufficient to sustain
the judgments, this court will go no further
than to examine those findings to determine
that question. It vrill not weigh the evi-
dence to ascertain if it supports the findings
of ultimate fact.
Tyng V. Grinnell, supra.
And if we were to go further still, and
assume that Judge Letton decided that the
evidence did not sustain the findings, this
would not be a finding of fact, but a con-
clusion of law as to the legal effect of the
evidence, and this court would not weigh
the evidence to determine its preponder-
ance, but would look to the record to see
only if the evidence, with all the inferences
that could justifiably be drawn from it, was
sufficient to support the findings. In other
words, it would re-examine the matter ac-
cording to the rules of the common law.
' 2 Enc. PL & Pr. 404.
A refusal to find a fact which is sup-
ported by undisputed evidence, or a finding
of fact imsupported by any evidence tend-
ing to establish it, is also reviewable as a
question of law.
2 Enc PI. & Pr. 407; The City of New
York (Alexandre v. Machan) 147 U. S. 72,
37 L. ed. 84, 13 Sup. Ct. Rep. 211; Bedlow
V. New York Floating Dry Dock Co. 112
N. Y. 263, 2 L.ILA. 620, 10 N. £. 800;
Phenix Ins. Co. v. Kerr, 66 L.ILA. 560, 64
C. C. A. 251, 120 Fed. 723; Walker v. New
Mexico & S. P. R. Co. 165 U. S. 503, 506, 41
L. ed. 837, 841, 17 Sup. a. Rep. 421, 1 Am.
Neg. Rep. 768; Slocum v. New York L. Ins.
Co. 228 U. S. 364, 57 L. ed. 870, 33 Sup. Ct.
Rep. 523, 520, Ann. Cas. 1014D, 1020.
This court will accept the findings of fact
of the trial court and review the cases solely
for errors of law.
Supreme Justices v. Murray (Supreme
Justices V. United States) 0 Wall. 274, 10
L. ed. 658; Maxwell v. Dow, 176 U. S. 681,
44 L. ed. 507, 20 Sup. a. Rep. 448, 494;
Craig V. Missouri, 4 Pet. 410, 7 L. ed. 903;
Republican River Bridge Co. v. Kansas P. R.
Co. 92 U. S. 316, 23 L. ed. 616; Parsons v.
Bedford, 3 Pet. 441, 448, 7 L. ed. 786, 787;
Merced Min. Co. v. Boggs, 8 WalL 804, 18
L. ed. 246; Chicago, B. & Q. R. Co. v. Chi-
cago, 166 U. S. 226, 41 L. ed. 070, 17 Sup.
SUPREME COURT OF THE UNITED STATSa OoT. Tbm,
Ct. R«p. 681; Smiley t. Kan«U, 190 U. S. - S 9B3I, requires m knowing violation of iU
447, 49 L. wL MS, SO Sup. Ct. Rep. 280 proviiion in order U> eaUbUsh liability.
MiMouri, K. & T. R. Co. T. Haber, 169 U. S McDonald v. WiUiuua, 174 U. S. 897, U
S13, 42 L. ed. 878, IS Sup. Ct. Rap. 488-498 L. ed. 1022, 19 Sup. Ct. Bep. 743; Utley t.
Standard Oil Co. v. Brown, 218 U. S. 78, 64 HiU, 166 Mo. 232, 40 LJL&. 328, 78 Am. St.
L. ed. 939, 30 Sup. Ct. Rep. 969; Capita Rep. 669, 65 S. W. 1091; Uarcn t. Moor^
Traction Co. v. Hot, IT4 U. S. 1, 43 L. ed 73 Ohio St. 276, 4 L.RA.{N.6.) 597, 70 N.
873, 19 Sup. Ct. Rep. 680. E. 932, 4 Ann. Cat. 240; Spuir *. Uoitad
Mr. Frank E. Bishop argued the c.u« ^tate^ 174 US 788, 43 K ei IISO U.
«.d. with Mr. Frank M HaH^ filed a briel ?:?f-,5\«*P- "?' f^ ^«"^^^*'»**'
:^d J:;rHii.*""' *='•"" '• "•" '^I'^m.f-Z'brtz^'^^r^.t^
"i.^n.Srorthe .tate ^urt are no, fZ^lT^.^- '^^'^' ^ V^ !i "'i''
•ubject to ^iew in thi, court. ^ "^.^ ' tu •*■ "' ^''- . V« ^f 'b^
Itewer ,. RichanU, 161 U. S. 868. 38 L !^P: "f'„J^"" '■ ^^^^'' ^^t^' ^- "'
ed. 306, 14 Sup. Ct. Rep. 462. 17 Mor. Min ^^^ «^; "3. 32 Sup. Ct. Rep. 403.
Hep. 704; Mi^ich » LaueneUin. 232 U Jhe directors of a national bank are not
S. 236. SB L. ed. 6B4, 34 Sup. Ct. Rep. 309 "^"^^ **» manage, but to admiaiater. ,U
The printed bill of exce^ions do^ noi *^»»''v """ *" not re.pon«ble for the
contain all of the evidence, and cannot b* «'« "{ '*• '^"^ and agent- which ther
re-examined to change the finding, of fact f ** »*' knowmgly participate in or aMU>t
YatM V. Jonei Nat. Bank. 206 U. S. 168 "■ . „ ... ,., - a i«o ..
61 L. ed. 1002, 27 Sup. «. Rep. 838; Kansai , ^'S*;/- ^f "^^^ "^ii' ^- ^"^ "
City Southern R. Co v. C. H Alb^ra Com- ^i?" «].*■ " ^up. «. Rep 924
miBBion Co. 223 U. S. 673, 66 L. ed. 656, 3S ^he dir«t<.r does not attest the official
Sup. Ct. Rep. 318; Creewiilv. Grand Lodg«, report at hi. risk of its b«ng fabe. He «
K. P. 225 U S. 248, 66 L. ed. 1074, 32Snp "°* "«P<>»"*»le without knowledge »f ita
Ct. Rep. 822; Southern P. Co. v. Schuyler, '*'''*/■ ^ »t . t. , «„« r, a .,«
227 U. S. 801, 67 L. ed. 662, 43 L.Rjl.(N.S. „^»**; 'V^"" '^"- ^"^ "*^„ "■ t ""•
901, 33 Sup. Ct. Rep. 277; CarUon t. Waeh- " J^ **^,''"*' '! ^^"■J^^^f'^^^T'J"^
ington, 23^1 U. S. 103, 68 L. ed. 1237. 34 '; SP""''^'''^"^ ^o. "' ^^ ^ «*" «^
Sup. Ct Rep. 717; United SUtes v. Copper ^^.^''P" " ,P' ""' _, ,.
<JnUn Con.ii. Min. Co. 1S6 U. S. 495: 48 ^^/'^'IT ,'"^Tw,? « .?*!!!"^'
L. ed. 1008, 22 Sup. Ct. Rep. 781; United «°der.tood the rule of liabiLty of directory
State, ex reL Kinney v. United State. Fidel- '^'^"'f, fr™ tie Mt.onal bank act. and
ity ft O. Co. 222 U. S. 283, 66 L. ed. 200, ""^'ctlJ' "PPl'«l 't to the •vid«ice.
32 Sup. a. Rep. 101: Orank Trunk S. Co. „^"-J'*i:/"f^ '* ^**^ " ^'^ "^•
T. Cununing., 108 U. S. 700. 27 L. ed. 266, 1 "'' "• ^- *■**• "''°'
Sup. Ct. Rep. 649. Mr. Halleck F. lUMe argued the caua.^
The judgment of the state supreme court and, with Mesars. John F. Stout and Arthur
upon the vote of the four judges does not R. Wells, filed a brief for defendant In er-
deny the plaintiffs any Federal right, and ror David E. Thompaon:
the motion for rehearing with only three A single creditor cannot maintain an ae-
judjea in its favor muat fall for lack of a tion against the directon of a corporation
majority of the court, and Is not reviewble for recovery of damage, for neglect or mis-
in thi. conrt, management whereby the corporation sns-
Shumway v. State, 82 Neb. 152, 117 N. tain. loiw. and becomes inaolvent. Such
W. 407, 119 N. W. 617; Conaolldated cauH of action ia for a wrong done to tba
Turnp. Co. v. Norfolk ft 0. Valley R. Co. Knrporation and the whole body of the cor-
228 U. S. 326, 57 L. ed. 867, 33 Sup. Ct porate creditors, and can only be maintained
Rep. 610; Iowa C. R. Co. v. Iowa, 160 U. S. by the corporation or it. receiver.
380, 40 L. ed. 467, 16 Sup. Ct. Rep. 344; Homor v. Henning, 93 U. S. 228, 23 L. ed.
West T. Louisiana, 194 U. 8. 258, 4B L. ed. g79; Bailey v. Moaher, 11 C. C. A. 304, 87
06S, 24 Sup. Ct. Rep. 660; King v. West tJ. S. App. 339, 63 Fed. 491; Yates t. Bailey,
TirginU, 216 U. & 02, 54 L. ed. 396, 30 VK U. S. 181-185, 61 L. ed. lOlS-1017, 87
Sup. Ct. Rep. 226; Carmichsel V. Eberle, 177 Sup. Ot. Rep. 64S; Tatea T. JonM Nit.
U. S. 63, 44 L. ed. 672. 20 Sup. Ct. Hep. Bank, 74 Neb. 739, 100 N. W. 287; United
071. SUte. Fidelity & G. Co. t. Ooming State
The petitions do not state a cause of 3av. Bank, IM Iowa, 68B, 46 LJtA.(N.S.)
action againrt the defendant.. 121, 134 N. W. 867 ; Conway t. Halsey, 44
Tate. V. Jone. Nat Bank, 206 U. B. 168, !f. J. L. 46S; Kennedy v. GibMm, 8 WalL
01 L. ed. 1002, 27 Sup. Ct Rep. 638. >06, 10 L. ed. 470; Cockrfll v. Coopw, S>
U. B. S»v. Stat I 0289, Oomp. Stat lOU, CL C A. £29, 07 U. S. App. S76, 86 Fed. U;
r»M 140 U. 8.
1916.
JONES NATIONAL BANK t. YATES.
Davis V. Elmira Sav. Bank, 161 U. S. 284,
40 L. ed. 701, 16 Sup. Ct. Rep. 502; First
Nat. Bank v. Colby, 21 WalL 609, 613, 22
L. ed. 687, 688.
The decision of the state supreme court
rests, exclusively, on a finding of fact that
the evidence in the record is not sufficient
to show that defendants knovnngly made
or knowingly permitted the making and
publishing of false official reports. Upon
that issue plaintiffs had the burden of
proof; and upon a finding of pure fact de-
pends the applicability of U. S. Rev. Stat.
§ 6230, Comp. Stat. 1913, i 9831, and the
Federal right now asserted thereunder.
Jones Nat. Bank v. Yates, 93 Neb. 127,
139 N. W. 844, 1136.
On error to a state court of last resort,
this court regards the findings of fact of
the state court as binding upon it. This
court, therefore, refuses to review issues of
fact determined by the state court; and
whatever was a question of fact in the
state court is a question of fact on a writ
of error from this court to tbe state court.
Dower v. Richards, 161 U. S. 668, 663, 38
L. ed. 306, 307, 14 Sup. Ct. Rep. 462, 17
Mor. Min. Rep. 704; Waters-Pierce Oil Co.
V. Texas, 212 U. S. 86, 97, 98, 63 L. ed. 417,
424, 426, 29 Sup. Ct Rep. 220; Rankin v.
Emigh, 218 U. S. 27, 32, 64 L. ed. 916, 920,
30 Sup. Ct. Rep. 672; Kerfoot v. Farmers'
4 M. Bank, 218 U. S. 281, 288, 64 L. ed.
1042, 1044, 31 Sup. Ct. Rep. 14; Miedreich T.
Lauenstein, 232 U. S. 236, 243, 68 L. ed. 684,
689, 34 Sup. Ct. Rep. 309; Eastern Bldg. &
L. Asso. V. Ebaugh, 186 U. S. 114, 121, 46
L. ed. 830, 833, 22 Sup. Ct. Rep. 666; Chi-
cago & A. R. Co. V. Wiggins Ferry Co. 119
U. S. 616, 622, 623, 30 L. ed. 619, 622, 623,
7 Sup. Ct. Rep. 398.
It is, of course, conceded that cases in
which the finding is not strictly one of
fact, but is, in itself, a legal conclusion on
the Federal right claimed, — cases where
there is a complete failure of evidence to
support a conclusion announced upon a
Federal question, and cases where the facts
on which the application of the Federal
ri^t depends have not been determined, —
do not come within the purview of the rule
Just stated. In cases of these excepted
classes it is the conceded duty of this court
to ezamine the evidence in order to deter-
mine what facts might reasonably be foimd
therefrom, and whidi would furnish a basis
for the asserted Federal rights.
Carlson r. Washington, 234 U. S. 103, 106,
68 L. ed. 1237, 1238, 34 Sup. a. Rep. 717;
Miedreich r. Lauenstein, 232 U. 6. 236, 68
L. ed. 684, 84 Sup. Ct Rep. 309.
The finding of the state court on an issue
that determines whether the Federal right
asserted is applicable will not in any case
eo li. ed.
be disturbed if there is sufficient evidence
in the record to sustain it
German Sav. & L. Soc v. Dormitzer, 192
U. S. 126, 128, 129, 48 L. ed. 373, 376, 377,
24 Sup. Ct Rep. 221.
Proof of a scienter is indispensable to
maintenance of the present suits.
Yates V. Jones Nat. Bank, 206 U. S. 168,
179, 180, 61 L. ed. 1002, 1014, 1016, 27 Sup.
Ct Rep. 638; McDonald v. Williams, 174
U. S. 397, 43 L. ed. 1022, 19 Sup. Ct. Rep.
743; Potter v. United States, 156 U. S. 438,
39 L. ed. 214, 16 Sup. Ct. Rep. 144 ; Felton
V. United States, l»6 U. S. 600, 702, 24 L. ed.
876, 876; Utley v. HiU, 165 Mo. 232, 49
LJEIA. 323, 78 Am. St. Rep. 660, 66 S. W.
1091; Mason v. Moore, 73 Ohio St. 276, 4
LJl.A.(NJS.) 697, 76 N. E. 932, 4 Ann. Cas.
240; Briggs v. Spaulding, 141 U. S.
132-174, 36 L. ed. 662-678, 11 Sup. Ct. Rep.
924; Crofton v. State, 26 Ohio St. 240, 2
Am. Crim. Rep. 378; State v. Stafford, 67
Me. 126; Gregory v. United States, 17
Blatchf. 326, Fed. Cas. No. 6,803; Rosen v.
United SUtes, 161 V. S. 33, 40 L. ed. 607,
16 Sup. Ct. Rep. 434, 480, 1 Am. Crim. Rep.
261; Price v. United States, 166 U. S. 311,
41 L. ed. 727, 17 Sup. Ct Rep. 366; Mc-
Guire v. State, 7 Humph. 66; Pier v. Han-
more, 86 N. Y. 102.
A director is not liable for the tort of a
fellow director.
Briggs V. Spaulding, 141 U. S. 132-174, 35
L. ed. 662-678, 11 Sup. Ct. Rep. 924; Gemer
V. Mosher, 68 Neb. 144, 46 LJUL. 244, 78
N. W. 384.
The issue of whether, upon the whole
case, the evidence justified or required a
finding in favor of the defendants, is not
presented to this court by the printed
record. A large part of the evidence is not
printed, and since this court only examines
the printed record, it must presume, in
favor of the finding of the state supreme
court, that the evidence before the state
court, which is omitted from the printed
record, justified and required a finding upon
the vrhole case in favor of defendants.
Grand Trunk R. Co. v. Cummings, 106
U. S. 701, 27 L. ed. 267, 1 Sup. Ct. Rep. '493;
United States v. Copper Queen Consol. Min.
Co. 186 U. S. 497, 46 L. ed. 1009, 22 Sup. Ct.
Rep. 761.
The mere fact of attestation does not
foreclose the issue of knowledge against
the attesting director.
Yates V. Jones Nat. Bank, 206 U. 8. 171,
172, 61 L. ed. 1011, 1012, 27 SuJ). Ct. Rep.
638; Gemer v. Mosher, 68 Neb. 136, 46
LJIA. 244, 78 N. W. 384.
Where the question of good faith is in
issue, as it necessarily is in issue imder the
statute requiring proof of a scienter, the
79^
543, 644
SUPREB£E COURT OF THE UNITED STATES.
Oct. Tjbm,
onus of proving knowledge and bad faith is
upon the plaintiff.
Ripley t. United States, 220 U. S. 491, 55
L. ed. 557, 31 Sup. Ct. Rep. 478.
To maintain a writ of error under § 237
of the Judicial Oode (36 Stat, at L. 1156,
chap. 231, Comp. Stat. 19l3, § 1214), the
Federal right must have been claimed by
the plaintiff in error in the state court in
the manner therein prescribed.
F. G. Oxley Stave Co. v. Butler County,
166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct.
Rep. 709; Green Bay & M. Canal Co. v.
Patten Paper Co. 172 U. S. 58, 43 L. ed. 364,
19 Sup. Ct. Rep. 97; Michigan Sugar Co. v.
Michigan (Michigan Sugar Co. v. Dix) 185
U. S. 112, 46 L. ed. 829, 22 Sup. a. Rep.
581.
It must appear from the face of the
record that the plaintiff in error asserted
his Federal right.
Maxwell v. Newbold, 18 How. 511, 15 L.
ed. 506.
It is not sufficient that a Federal claim
was made in argument.
Yesler v. Washington Harbor Line, 146
U. S. 646, 36 L. ed. 1119, 13 Sup. a. Rep.
190.
The Federal question must be raised be-
fore the entry of the final judgment in the
highest state court.
Simmerman ▼. Nebraska, 116 U. S. 54, 29
L. ed. 535, 6 Sup. Ct. Rep. 333; Bobb v.
Jamison, 155 U. S. 416, 39 L. ed. 206, 15
Sup. Ct. Rep. 357; Morrison v. Watson, 154
U. S. Ill, 38 L. ed. 927, 14 Sup. Ct. Rep.
995; Winona & St. P. Land Co. v. MinuA-
sota, 159 U. S. 540, 40 L. ed. 252, 16 Sup.
Ct. Rep. 88; California Nat. Bank v. Thom-
as, 171 U. S. 441, 43 L. ed. 231, 19 Sup. a.
Rep. 4; Scudder v. The Comptroller (Scud-
der V. Coler) 175 U. S. 32, 44 L. ed. 62, 20
Sup. Ct. Rep. 26.
A number of the cases last cited hold
that the Federal question cannot be intro-
duced into the record by petition for re-
hearing, filed in the highest court of the
state after the rendition by that court of
final judgment. Obviously the suitor's
only means of throwing upon the court the
burden of deciding a Federal claim is to
present his Federal right before the entry
of final judgment. The denial of a motion
or petition for rehearing may well be
based on the ground that the party pre-
senting the motion or petition for rehear-
ing has no standing to litigate issues not
presented to the court for decision before
his case had passed to final judgment. The
settled rule of this court is that the mere |
denial of a motion or petition for rehear-
ing, in which the plaintiff in error for the I
first time asserts a Federal claim, does not I
constitute an advene decision entitling the
794
moving party in that proceeding to review
the Federal question in this court.
McCorquodale v. Texas, 211 U. S. 438,
53 L. ed. 269, 29 Sup. Ct. Rep. 146; Waters-
Pierce Oil Co. V. Texas, 212 U. S. 118,* 68
L. ed. 434, 29 Sup. Ct. Rep. 227; Chicago,
L & L. R. Co. V. McGuire, 196 U. S. 129,
49 L. ed. 413, 25 Sup. Ct. Rep. 200; Cleve-
land & P. R. Co. V. Cleveland, 235 U. S.
50, 59 L. ed. 127, 35 Sup. a. Rep. 21; MU-
ler V. Texas, 153 U. S. 535, 38 L. ed. 818,
14 Sup. Ct. Rep. 874; Capital Nat. Bank
V. First Nat. Bank, 172 U. S. 426, 43 L. ed.
502, 19 Sup. Ct. Rep. 202.
Mr. Justice Hughes delivered the opin-
ion of the court:
The Capital National Bank of Lincoln,
Nebraska, suspended payment on January
21, 1803. The plaintiffs in error were un*
paid depositors and brought these actions
against directors of the bank to recover
damages attributed to false representations
of the bank's condition. With their denials
of breach of duty, the defendants averred
that their liability, if any, was to be de-
termined [544] by the provisions of the
national bank act. Judgment in favor of the
plaintiffs, upon the verdict of a jury, was
affirmed by the supreme court of the state.
Yates V. Jones Nat. Bank, 74 Neb. 734,
105 N. W. 287. It was held that the ac-
tions were for deceit, at common law, and
the judgments were sustained upon that
ground. Upon writ of error the judgments
were reversed. 206 U. S. 158, 181, 61 L.
ed. 1002, 1015, 27 Sup. Ct. Rep. 638. It
was the view of the court, even if it were
conceded "that there was some evidenct
tending to show the making of alleged writ-
ten representations other than those con-
tained in the official reports made by the
association to the Comptroller of the Cur-
rency, and published in conformity to the
national bank act, that such latter state-
ments were coimted upon in the amended
petition and were, if not exclusively, cer-
tainly principally, the grounds of the al-
leged false representations covered by th«
proof." Id. p. 171. It was therefore con-
cluded that the recovery had been based upoo
conduct of the defendants in the discharge
of duties imposed by the Federal statnte;
that, with respect to such conduct, the stat-
ute (Rev. Stat. § 5239, Comp. Stat. 191S,
§ 9831) furnished an exclusive test of lia-
bility; and that this test had not been ap-
plied. It was held that responsibility, 1^
the terms of the statute, arose ffom its vio-
lation "Icnowingly,'' and hence that ''sonis-
thing more than negligence is required;
that is, that the violation must in effect be
intentional.'' Id. pp. 179, 180.
Upon remand, the petitions were amend-
840 U. 8.
1016.
JONES NATIONAL BANK ▼. TATEa
644-547
td, but there was no material change in the
nature of the causes of action. By agree-
ment, the several cases were tried together,
and trial was had by the oourt without a
jury. Official reports, as published, of the
condition of the bank, were introduced in
evidence. Two of these (of December 28,
1886, and December 9, 1892) had been an-
nexed to the petition, and the allegations
were broad enough to embrace others. It
appeared that the official reports of Decem-
ber 28, 1886, December 12, 1888, September
30, 1889, [545] July 9, 1891, December 2,
1891, and December 9, 1892, had been at-
tested by the defendant Yates; those of
September 26, 1891, and September 30,
1892, by Ellis P. Earner, the intestate of the
defendant, Louisa Hamer; and those of De-
cember 28, 1886, August 1, 1887, October 2,
1890, December 19, 1890, and July 9, 1891,
by the defendant, David £. Thompson. Each
of these statements showed the capital
stock intact and also surplus and undivided
profits.
On behalf of the defendants Yates and
Hamer, the following special findings among
others were requested:
"III. That neither the defendant Charles
E. Yates nor Ellis P. Hamer, the deceased,
knowingly violated or knowingly permitted
any of the officers, agents, or servants of
the Capital National Bank to violate any
of the provisions of the national banking
act under which said bank operated.
<TV. That neither the defendant Charles
£. Yates nor the deceased, Ellis P. Hamer,
knowingly participated in or assented to
any violation of any of the provisions of
said national 'banking act by «ny of the
officers, agents, or servants of said Capital
National Bank.**
"IX. That the defendant Charles E.
Yates, in attesting said reports of date
December 28, 1886, and December 9, 1892,
did not, with actual knowledge thereof or
intentionally, make an untrue statement or
representation of the assets or liabilities of
said Capital National Bank, nor of any of
the items of either its assets or liabilities.
'*^. That neither the defendant Charles
E. Yates nor the deceased Ellis P. Hamer,
with actual knowledge or intentionally,
made any untrue statement or representa-
tion of any or all of the assets of the Capi-
tal National Bank in any or all of the
statements or reports made to the Comp-
troller of the Currency and published by
said bank, as retjuired by the national bank-
ing act, which reports are shown in the
testimony in this case."
[646] The trial court found "against
each of the defendants and in favor of the
plaintiff^ respecting the third and fourth re-
quests. On the ninth request^ the oourt
40 Ii« ed.
answered "in the negative" as to the report
of December 28, 1886, and "in the affirma-
tive" as to the report of December 9, 1892;
and on the tenth request, the court found
"in the affirmative." These rulings "in the
afilrmative" were taken to be findings against
these defendants, each of whom at once (on
a motion to set aside the findings and for
a new trial) filed exceptions, — ^the defend-
ant Yates stating that the court "erred in
finding against pendant on the ninth re-
quest as to report Deo. 9, 1892," and each
of the defendants Yates and Hamer stating
that the oourt "erred in finding against de-
fendant on the tenth request." »
Among the requests for findings submitted
by the defendant Thompson were the fol-
lowing:
"4. Whether this defendant at any time
prior to its failure or suspension had ac-
tual personal knowledge that any of the
official statements made by the Capital Na-
tional Bank to the Comptroller of the Cur-
rency, and referred to in the petition or the
evidence, were in any material respect false
and untrue.
"6. Whether this defendant in fact par-
ticipated in any of the official reports made
by the Capital National Bank to the Comp-
troller of the Currency other than the five
several reports dated respectively, Decem-
ber 28, 1886, August 1, 1887, October 2,
1890, and December 19, 1890, and July 9,
1891.
"6. Whether in attesting such of the of*
ficial reports of the Capital National Bank
to the Comptroller of the Currency as are
shown to have been attested by him, the
defendant acted in good faith.
"7. Whether in attesting such of the of-
ficial reports of the Capital National Bank
to the ComptroUer of the Currency as are
shown to have been attested by him, the
defendant acted fraudulently and with ac-
tual personal [547] knowledge that such
reports or any one of them were in any
material respect false and untrue."
As to the fourth request, the trial oourt
found "in the affirmative," and the defend-
ant Thompson filed his objection that the
finding was "not' sustained by sufficient evi-
dence" and was "not oonsistent with the
findings made in response to the sixth and
seventh requests." As to the fifth request,
the trial oourt found "that the defendant
attested only five reports mentioned in said
request." As to the sixth and seventh re-
quests, it was found:
"Respecting the sixth and seventh re-
quests of the def endanty the oourt finds that
the defendant had no actual personal knowl-
edge of the truth or falsity of the reports
made to the ComptroUer, attested by him,
but in attesting such reports tlie oourt finds
647-660
SUPREME COURT OF THE UNITED STATES.
Oct. Tibm,
that the defendant relied upon the state-
ments made to him by the president and
cashier of the bank, and without any in-
vestigation, and that at the time of attest-
ing such statements the defendant knew
that he had no personal knowledge of the
truth or falsity of such reports, and that
the same were attested recklessly and with-
out performing his duties as a director to
ascertain the truth or falsity of such re-
ports before the same were attested by him,
and in this respect the court finds that the
same were not made in good faith."
The trial court, upon its own motion,
found in each case, as to all the defendants,
at follows:
"The Capital National Bank, at the time
it assumed that name and at the time it
increased its capital stock to $300,000, had
sustained losses greatly in excess of its
purported capital stock, and that it never,
in fact, had any capital stock, undivided
profits, or surplus, and that it was at all
times insolvent and so continued up to the
time it ceased to do business, on January
21, 1803, at which time its liabilities ex-
ceeded its assets by more than a million
dollars.
. [648] "The court finds that from and
after September, 1801, the said Ellis P.
Hamer, and the defendants Yates and
Thompson, and each of them, had knowl-
edge and knew that the statements, adver-
tisements, and representations of the bank's
financial condition and capital stock, both
oflicial and unofficial and voluntary, shown
by the evidence, were being published in the
newspapers and sent to the plaintiff, by the
oflicers of the bank, as alleged in the amend-
ed petition, and that they contained the
names of all the directors, including said
Ellis P. Hamer, and the defendants Yates
and Thompson, and purported to be made
and published under and by their authority,
in their names, and with their sanction and
consent.
"The court further finds that the said
Ellis P. Hamer and the defendants Yates
and Thompson, and each of them, from and
after September, 1801, had knowledge and
knew said statements, representations, and
advertisements aforesaid contained material
false representations of the financial condi-
tion of said bank, and were in fact false
and untrue, as in plaintiff's amended peti-
tion alleged, and with knowledge of all of
the matters and facts aforesaid they and
each of them knowingly permitted, assented
to» and allowed the same to be nmde, pub-
lished, advertised, and sent to plaintiff, as
aforesaid, as in the amended petition al-
leged. That said statements and advertise-
ments aforesaid showed and represented the
bank to be in a sound, solvent, and pros-
796
perous financial condition when in fact it
was at all times wholly insolvent and un-
able to pay its liabilities."
It was further found "that the allega-
tions of plaintiff's amended petition are
true." The trial court, as to each of the
defendants, also set forth its conclusion that
the plaintiffs were entitled to recover "in
an action of deceit under the principles of
the common law exclusive of the require-
ments of the national banking act," and
fixed the damages sustained. Motion for a
new trial was denied.
[540] Upon appeal, the judgments in tlie
several cases were reversed by the supreme
court of the state, and the actions were dis-
missed. 03 Neb. 121, 130 N. W. 844, 1135.
The appeals were heard by six judges, two
of whom dissented from the conclusion
reached. Three judges concurred in one
opinion (delivered by Hamer, J.), taking
the view that the amended petitions con-
tained "no material additional statement
of facts," that they "still charge the de-
fendants with making false statements to
the Comptroller of the Currency as to the
condition of the Capital National Bank, and
this is the main foundation or basis for
recovery," and that the plaintiffs "having
failed to allege and prove that the defend*
ants personally knew of, or personally par-
ticipated in, the acts of the oflicers of the
bank of which they now complain," were
not entitled to recover under the decision
of this court as to the rule of liability
established by the Federal act. Id. pp. 123,
130. The remaining judge (Letton, J.),
whose concurrence was essential to the re-
versal, stated his views in a separate
opinion. After pointing out that the issues
were the same as when the case was pre-
sented to this court on the former writ of
error, and that this court had held that a
Federal question was involved, he said:
"I agree with the former judgment of
this court and that of the several inferior
Federal tribunals before which the question
was presented that the petitions state a
cause of action at common law for deceit,
but tiiink this court is bound by the opinion
of the Supreme Court of the United States.
I am also inclined to the view that the evi-
dence would support a judgment upon auch
a theory of the case. The findings of the
district court are to that effect. I am not
satisfied they are unsustained by the evi-
dence. The presumption is that they are
so sustained; but I have not examined the
evidence so critically as would be necessary
to determine this, for the reason that> un-
der the holding of the Supreme Court of the
United States as to the measure [550] of
duty and of liability of directors under the
banking laws of the Unitegd States, I think
940 U. S.
1915.
JONES NATIONAL BANK v. YATES.
650-552
a case has not been made. For that reason
alone, I concur in the conclusion." Id. p.
131.
The appellees moved for a rehearing, con-
tending, in part, that the court had erred
in denying to them **the right to recover
under the national bank laws." On this
motion the court was equally divided and
the motion wa| denied. And these writs of
error to review the judgments of reversal
and dismissal have been prosecuted.
1. It is insisted that the writs should be
dismissed in the view that the plaintiffs in
error sought to enforce liability upon non-
Federal grounds and that the Federal ques-
tion was raised exclusively by the defend-
ants in error. But this objection ignores
the nature of the plaintiffs' case. The fact
that their petitions did not refer, in terms,
to the Federal statute, is not controlling.
Thomas v. Taylor, 224 U. S. 73, 78, 70, 56
L. ed. 673, 676, 677, 32 Sup. Ct. Rep. 403;
Grand Trunk Western R. Co. v. Lindsay,
233 U. S. 42, 48, 58 K ed. 838, 842, 34 Sup.
Ct Rep. 581, Ann. Cas. 1914C, 168. It was
alleged that statements published by the de-
fendants, acting as directors and officers of
the bank, with respect to its financial con-
dition, were false, and were known to be
false, and were made with intent to deceive
plaintiffs and others. Two of these state-
ments— pffidal reports formally attested —
were, as we have said, annexed to the peti-
tions. The proof of representations chiefly
concerned these reports and others of a
similar sort. In contemplation of law, the
question upon the case made by the plain-
tiffs was essentially one as to the liability
of these directors for conduct governed by
the Federal act. The conclusion of the
trial court that there could be a recovery
at common law, independent of the Federal
statute, did not alter, the inherent character
of the actions. Recognizing that these must
be deemed to rest upon transactions falling
within the purview of that statute, and that
the plaintiffs' rights must be measured ac-
cordingly, the supreme court of the state re-
versed the judgments [551] and dismissed
the actions. Although the defendants al-
leged in their answers that, if any liability
attached to them as directors, it was deter-
mined by the Federal act, the construction
of which was necessarily involved, this was
not, properly speaking, a matter of affirma-
tive defense. What is called the defendants'
assertion of Federal right was simply their
contention as to the essential elements of the
plaintiffs' cause of action. In Thomas v.
Taylor, supra, the case was framed in de-
ceit under the oonmion law, but the appel-
late courts of the state decided "that it was
the facts pleaded, and not the technical des-
ignation of the action, which constituted
60 Jj. ed.
grounds of recovery." We accepted that de-
cision, saying: ''There is nothing in the
national banking laws which precludes such
view. Those laws are not concerned with
the form of pleadings. They only require
that the rule of responsibility declared by
them shall be satisfied." If the pUintiffs'
cause of action required the application of
the Federal statute in defining the liability
of these directors with respect to the acts
alleged and proved, the plaintiffs were en-
titled to its correct application. Their
case, as made by their pleadings and proofs,
is not to be treated as of one character for
the purpose of dismissing it in the state
court, and as of another sort for the pur-
pose of denying their right to complain of
the dismissal. We conclude that this court
has jurisdiction.
2. It is apparent that there were no find-
ings of fact by the supreme court of the
state. The actions being at law and trial
by jury being waived, the findings of fact
made by the trial court — as we understand
the local practice — had "the same force and
effect" as the verdict of a jury. Citizens Ins.
Co. V. Herpolsheimer, 77 Neb. 232, 100 N. W.
160; Dorsey v. Wellman, 85 Neb. 262, 122
N. W. 980; Darr v. Kansas City Hay Co.
85 Neb. 665, 124 N. W. 103; Madison Nat.
Bank v. Gross, 98 Neb. 684, 154 N. W. 207.
It was not a case of a trial de novo upon
appeal, as in an equity suit. First Nat.
Bank v. Crawford, 78 [552] Neb. 665, 111
N. W. 587. But, apart from these consid-
erations, findings of fact by the supreme
court would necessarily require the action of
a majority of that court, and it is plain
that the opinion of thie three judges, un-
aided by the concurrence of the fourth,
could not be regarded as embodying such
findings. Justice Letton, whose concur-
rence in the result made the reversal pos-
sible, stated specifically the sole ground of
his action, and his statement did not pur-
port to be the resolving questions of fact.
After saying that he was inclined to the
view that the evidence would support a
judgment upon a cause of action at oonmion
law for deceit, and that "the findings of
the district court" were "to that effect,"
he added that he was not satisfied that
these findings were "unsustained by the evi-
dence." He considered the presumption to
be that they were "so sustained," but he
had "not examined the evidence so critic-
ally as would be necessary to determine
this," for the reason that, in view of the
holding of this court "as to the measure
of duty and of liability of directors" under
the Federal act, he thought that "a case
had not been made." "For that reason
alone" he concurred in the conclusion.
It is manifest that this was simply the
797
662-664
SUPREME CX)URT OF THE UNFIED STATES.
Oct. Twmm.,
eocpression of an opinion with respect to the
legal sufficiency of the plaintiffs' case. That
is, the deciaiye ruling — upon which the re-
Tarsal rested — ^was that, as matter of Inyf,
Implying the Federal statute, the plaintiffs
were not entitled to their recovery. And
the Judgment as entered upon appeal sim-
ply set forth that the court, finding "error
apparent in the record of the proceedings
and judgment," reversed and dismissed.
In this state of the record, for the pur-
pose of determining whether, in thus revers-
ing the judgments and depriving the plain-
tiffs of their recovery, the Federal question
was wrongly decided, there are two questions
to be considered: (a) whether the facts
found \}j the trial court [553] Justified a
recovery under the Federal law, and, if so,
(b) whether there was substantial evidence
to support these findings, as the duty to de-
cide the Federal question in its very nature
involves this further inquiry. Dower v.
Richards, 151 U. S. 668, 667, 38 L. ed. 305,
308, 14 Sup. Ct. Rep. 452, 17 Mor. Min.
Rep. 704; Stanley v. Schwalby, 162 U. S.
256, 277, 278, 40 L. ed. 060, 067, 968, 16
. Sup. Ct. Rep. 754; Kansas City Southern
R. Co. /v. C. H. Albers Commission Co. 223
U. S. 573, 591, 592, 56 L. ed. 556, 565, 566,
82 Sup. Ct. Rep. 316; Creswill v. Grand
Lodge, K. P. 225 U. S. 246, 261, 56 L. ed.
1074, 1080, 32 Sup. Ct. Rep. 822; Southern
P. Co. V. Schuyler, 227 U. S. 601, 611, 57
L. ed. 662, 669, 43 L.RJl.(N.S.) 901, 33
Sup. Ct. Rep. 277; North Carolina R. Co.
T. Zachary, 232 U. S. 248, 259, 58 L. ed.
691, 595, 34 Sup. Ct Rep. 305, Ann. Cas.
1914C, 159; Carlson v. Washington, 234
U. S. 103, 106, 58 L. ed. 1237, 1238, 34 Sup.
Ct. Rep. 717.
8. In addition to the general finding in
each case that the allegations of plaintiffs'
amended petition were true, we have noted
that the court found specially that the bank
had sustained losses greatly in excess of
its purported capital stock; that it never
"had any capital stock, undivided profits
or surplus;" that it "was at all times in-
solvent and so continued up to the time it
ceased to do business on January 21, 1893,"
when. "its liabilities exceeded its assets by
more than a million dollars;" and that the
published statements shown by the evidence,
embracing the official reports to which ref-
erence has been made, represented the bank
to be "in a sound, solvent, and prosperous
financial condition" when in fact it was
"wholly insolvent 8;nd unable to pay its
liabilities." The official reports covered by
the findings were those made to the Comp-
troller of the Currency and published at the
times we have mentioned, in pursuance of
/ 5211 of the BeriMed Statutes (Comp. Stat.
1913, i 9774 ).i [554] While, as pointed out
on the former writ of error, the act did not
expressly require that these reports "should
contain a 'true' statement of the condition
of. the association," yet "by necessary im-
plication, such is the character of the state-
ment required to be made, and by the like
implication the making and publishing of
a false report is prohibited." 206 U. S.
p. 177. And as it is plain that the making
of these official reports, found to be false,
was a violation of the statute, the question
is whether, the findings made a case within
§ 5239 of the Revised SUtutes (Comp. Stat.
1913, § 9831), which provides that where
the statute is "knowingly" violated or is
"knowingly" permitted to be violated, as
stated, "every director who participated in
or assented to" such violation shall be lia-
ble individually for all damages thereby
sustained by ''the association, its share-
holders, or any other person," — a civil lia-
bility which may be enforced in the state
court. Id. pp. 180, 181.
As to the directors Yates and Hamer
(the former having attested an official re-
port to the Comptroller of the Currency as
late as December 9, 1892, and the latter
having attested an official report of Sep-
tember 30, 1892), the trial court not only
found "against each of the defendants and
in favor of the plaintiff" upon the special
requests for findings that these directors
did not knowingly participate in the viola-
tion of the act, but the trial court also
found explicitly that each of these direct-
^ "Sec. 5211. Every association shall
make to the Comptroller of the dhirrency
not less than five reports during each year,
according to the form which may be pre-
scribed by him, verified by the oath or af-
firmation of the president or cashier of such
association, and attested by the signature
of at least three of the directors. Each
such report shall exhibit, in detail and un-
der appropriate heads, the resources and
liabilities of the [associations] [associa-
tion] at the close of business on any -past
day by him specified; and shall be trans-
mitted to the Comptroller within five days
after the receipt of a request or requisi-
tion therefor from him, and in the same
form in which it is made to the Comptroller
shall be published in a new^aper published
in the place where such association is es-
tablished, or if there is no newspaper in the
place, then in the one publisned nearest
thereto in the same county, at the expense
of the association; and such proof of publi-
cation shall be furnished as may be required
bv the Comptroller. The Comptroller shall
also have power to call for special reports
from any particular association whenever in
his judgment the same are necessary in
order to a full and complete knowledge of
its condition."
140 U. t»
1915.
JONES NATIONAL BANK t. YATES.
654-567
on "from [555] and after September,
1801," knew that the official statements as
to the bank's financial condition, which
were shown hj the evidence to have been
published, "contained material false repre-
sentations of the financial condition of said
bank, and were in fact false and untrue,"
and that these directors, with knowledge
"of all the matters and facts aforesaid,"
had "knowingly permitted, assented to, and
allowed the same" to be made and pub-
lished. The findings as to each of these
directors abundantly supported the plain-
tiffs' recovery within the established rule
of liability.
With respect to the defendant Thompson
(the latest official report attested by him
being the one of July 9, 1891 ) , we have seen
that the court found that he had "no actual
personal knowledge of the truth or falsity"
of the reports wiich he attested, but that
in attesting them he "relied upon the state-
ments made to him by the president and
cashier" of tlie bank "without any investiga-
tion," and that "at the time of attesting such
statements" he "knew that he had no per-
sonal knowledge" of their truth or falsity,
and that they "were attested recklessly and
without performing his duties as a director"
to ascertain their truth or falsity before at-
testation, and in this respect that these re-
ports "were not made in good faith." If
this finding, fairly construed, did not im-
port more than mere neglect or inattention,
it would not be sufficient to sustain a re-
covery; for Congress did not make negli-
gence the test of liability, but the fact that
the act was violated knowingly, although
there may be a violation "in effect ' inten-
tional," and therefore within the statute,
"when one deliberately refuses to examine
that which it is his duty to examine."
Thomas v. Taylor, 224 U. S. 73, 78, 79, 66
L. ed. 673, 676, 677, 32 Sup. Ct. Rep. 403.
In that case the directors, having been
warned by the bank examiner and Comp-
troller of the doubtful character of certain
assets, still represented them to be good;
and their reckless report, in disregard of
the official direction, was foimd to have the
[556] quality of an intentional breach of
the defined duty. But in the present case,
w^e are not called upon to determine what
should be deemed to be involved in the find-
ing that the attestation of the earlier re-
ports, which were attested by this defend-
ant, was made ''without any investigation"
and ''recklessly." For there were later re-
ports made on behalf of the bank, and the
defendant is not excused simply by the
fact that he did not attest them. His lia-
bility was not merely with respect to at-
testation, but for knowingly "participating
in" or "a:3senting to" the violation of the
•0 Ij. ad.
act. 206 U. S. pp. 177-179. U the defend-
ant Thompson participated in or assented
to the making and publication of the official
reports to the Comptroller of the Currency,
which were made in the year 1892, know-
ing that they were false reports, he was lia-
ble to the plaintiffs deceived and damaged
thereby imder the express terms of the stat-
ute; and he could not escape this liability
simply because, while he thus participated
or assented, other directors gave the formal
attestation. And the trial court found, not
only with respect to Yates and Hamer, but
as to the defendant Thompson, that each of
them after September, 1891, knew that the
official statements as to the condition of the
bank, shown by the evidence, were in fact
false, and that with knowledge of the facts
stated in the findings with respect to the
condition of the bank, the defendant Thomp-
son, as well as the others, "knowingly per-
mitted, assented to, and allowed" the same
to be made and published. This was a suf-
ficient finding of the ultimate fact of partic-
ipation or assent, and constituted an ade-
quate basis for recovery.
We conclude that the findings of the trial
court, in the light of the Federal statute,
supported the judgments it. entered.
4. The plaintiffs in error, however, are
not entitled to complain of the reversal as
a denial of Federal right, even though the
judgments were supported by the findings of
[557] fact made by the trial court, if
these findings themselves were not sup-
ported by substantial evidence.
As to the financial condition of the bank,
there is no room for controversy. It would
be difficult to conceive of a case of more
scandalous maladministration than that
which the testimony portrays. There was
evidence of manipulation of accounts, of
fictitious and falsified entries, of fraudulent
concealments. It cannot be said that there
was serious effort to meet this evidence.
There was no attempt to palliate the of-
fenses which it appeared had been commit-
ted by the executive officers in the conduct of
the bank's affairs. But these directors were
not accountants; presumably they relied up-
on the books as containing accurate items,
and there is no basis for the conclusion that
they had knowledge of fictitious or falsified
entries in the books, or of the fraudulent
transactions which such entries were intend-
ed to conceal, and which were revealed after
the bank failed. With respect to such con-
cealed transactions, we find nothing to show
that the directors knowin^y participated
in, or assented to, a violation of the statute.
We pass, therefore, to matters of a dif-
ferent sort which lay easily within the ken
of the directors. The bank had been in-
corporated as the Marsh HiJtona3L'&issi&L«>aDi
557-^60
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
the year 1883, with a capital stock of $100,-
000. The assets and liabilities of a preced-
ing concern, Marsh Brothers, Mosher, &
Company, were transferred to the bank and
became its assets and liabilities. In 1884,
the name was changed to the Capital Na-
tional Bank of Lincoln; the capital stock
was then increased to $200,000, and in
1886 there was a further increase, making
the total capital stock $300,000. Yates,
Hamer, and Thompson became directors in
1884, and continued as such until the fail-
ure of the bank in January, 1803. There
were seven directors in all, including C. W.
Mosher, the president. It appears that, at
the time of the failure, the bank's assets at
their face [558] value, as shown by the
books, were about $1,031,000. The liabili-
ties, as shown by the books, including cap-
ital stock, amounted to about $1,017,000;
these seem to have been in fact (including
liabilities on rediscounts) about $1,760,000.
Included in the assets above stated, the
amount of $850,059.86 (in face value) was
in bills receivable of which $155,560.84 were
classed by the receiver as doubtful and
$307,073.63 as worthless. The actual show-
ing on liquidation appears to have been
even worse; the total amount realized from
the bills receivable (aggregating $850,-
050.86) was $229,520.82, and the total
amount realized from all the assets of the
bank (including rediscounted items placed
in the hands of the receiver for collection,
and excluding stock assessments) seems to
have been less than $400,000.
The evidence was tliat at the time of the
failure there were on hand worthless notes
of C. W. Mosher, the president, amounting
to $85,281.67; of the cashier, R. C. Outcalt,
$54,166.90 (less an offset of $570.99) ; and
of the Western Manufacturing Company
(signed by E. Hurlburt, Jr., manager),
$235,000. This concern was apparently but
another name for C. W. Mosher; the testi-
mony is that it had no assets and ceased
to do an active business in 1889. There
were also notes in the name of E. W. Mosher
aggregating $107,085.45, which it' was testi-
fied were worthless, save for a collection on
collateral of less than $10,000. According
to the schedules in evidence these worthless
notes had been taken since June 1, 1892,
that is, within a period of seven months
before the failure. And while the totals of
these accounts, respectively, were much
larger than they had been formerly, the
same accoimts embracing loans to a con-
siderable amount had long been carried and
were included in the published reports.
There was evidence that there had been
about $200,000 of worthless notes in these
accounts in January, 1892. While it is not
necessary for the present purpose to [550]
800
go further back, the testimony supports the
finding of the trial court that the bank in
fact not only had no surplus or undivided
profits, but that its actual condition waa
one of insolvency.
In the fourteen months before the failure
the evidence shows three of the official re-
ports made to the Comptroller of the Cur-
rency and published in the newspapers in
Lincoln ; those of December 2, 1891, Septem-
ber 30, 1892, and December 9, 1892. The
total resources in these reports are stated,
respectively, as $1,143,946.88, $1,033,561.11,
and $1,074,867.37. Each of these reports
shows the capital stock unimpaired. As of
December 2, 1891, the surplus is stated to
be $32,000, and the undivided profits, $23,-
276.89; as of September 30, 1892, these
items are $6,000 and $11,978, respectively;
and as of December 9, 1892, $6,000 and
$21,180.75. In January, 1892, the directors
declared a dividend of 5 per cent, and in
July, 1892, a further dividend of 4 per cent.
There was evidence of serious discrepancies
between the items in the published official
reports and corresponding items as shown
by the books. Without attempting to state
the details disclosed by the voluminous rec-
ord, it is sufficient to say that it was clear-
ly shown by evidence . substantially undis-
puted that these reports constituted grossly
false representations of the bank's financial
condition upon which the plaintiffs were in-
vited to rely and did rely.
There was also substantial basis for the
finding that the directors assented to the
making and publication of these reports;
for, as we have said, whether this or that
director attested a particular report is not
controlling upon the question of assent.
The official reports required by law are the
reports of the bank, and not simply of those
signing and attesting. As the reports of
the bank, they are made under its author-
ity and presumably with the assent of the
board of directors! Ttfking the proved cir-
cumstances into consideration, and particu-
larly in the light of the [560] activity of
these directors, to which we shall presently
refer, it is hardly conceivable that they did
not know of the last-mentioned official re-
ports which were made on behalf of the
bank and published in Lincoln. Certainly,
the fact of such knowledge on the part of
each of them could properly be found.
There is no suggestion that they made the
slightest objection to the making or publi-
cation of these reports, and the evidence
was unquestionably sufficient to show their
assent to this action on behalf of the bank.
The remaining question is with respect
to the evidence of the knowledge of tliese
directors of the falsity of these official re-
ports, or of such reckless disregard of the
S40 U. S.
1915.
JOKES NATIONAL BANK ▼. YATSS.
660-503
truth or falsity of their contents as would
show that the participation in, or assent to,
the violation of the statute, was "in efifect
intentional.'' Under date of September 8,
1891, the Comptroller of the Currency ad-
dressed a letter to President Mosher, re-
ferring to a report of an examination of
the bank, and criticizing various matters.
It was evidently in view of this communi-
cation that the trial court took September,
1891, as the time after which the directors
had knowledge of facts showing the falsity
of the reports. Without reciting the letter
in full, it is sufficient to note that the Comp-
troller called attention to two loans (one
being that of £. W. Mosher) exceeding the
statutory limit; to the fact that at the time
of the last report of the bank the over-
drafts shown by the books largely exceeded
those stated in the report; to overdue paper,
with the statement that such of it as was
good should be collected or made active by
renewal with satisfactory security; to the
excess of current expenses over undivided
profits; and to the fact that the bank had
a large liability on account of rediscounted
paper, said to be caused by the falling ofif
in deposits. It was suggested that some of
the loans should be called in as soon as
practicable, and the letter closed with the
statement that, [561] according to the ex-
aminer's report, the board of directors had
held only two meetings during the past
year, and that there was "no record of
their having examined or approved of the
loans and discounts." It was pointed out
"that the conduct of affairs of a national
bank is by law devolved upon the board of
directors, and that regular and frequent
meetings are therefore very desirable."
The defendants insist that they were not
apprised of this letter until i|iter the fail-
are. There was evidence tending to show
that it was considered at a meeting of the
board in September, 1891, but, in addition
to explicit denials, there was testimony to
impeach the credit of the witness so
testifying. There was, however,, another
letter from the Comptroller of the Cur-
rency under date of February 16, 1892,
whidi admittedly was brought to the
attention of the directors. This letter,
in substance, repeated several of the
criticisms which had been made in the ear-
lier letter; it referred to the desirability of
collecting as soon as practicable loans that
had been carried for a number of years, and
to the agreement of Mosher and Outcalt to
reduce their liabilities and to close "the
bulk of their outside interests," owing to
which the business of the bank had suffered;
it again emphasised the duty of the direct-
ors with respect to the conduct of the
bank's affairs; and it concluded with a re*
60 li. ed.
f quest for a reply over the directors' "in-
dividual signatures." The directors, in-
cluding those whose liability is now in ques-
tion, accordingly signed a reply, under date
of February 19, 1892, which purported to
furnish explanations an<f promised improve-
ment It was stated that the bank had al-
ways had a discount committee, and that a
vacancy caused by the death of a former
member had been filled by the appointment
of £. P. Hamer. The last-mentioned di-
rector also wrote to the Comptroller on
February 23, 1892, to the effect that the
manner of conducting the bank had not been
satisfactory to him, and, promising better
management, [562] he added: "Your letter
is a move in the right direction, it indicates
that we the directors should take a more
positive position in the management which
I for one shall do."
Apparoitly the Comptroller of the Cur-
rency was not satisfied. For it appears that
he wrote another letter under date of Au-
gust 31, 1892, which, having been lost, was
not introduced in evidence. But the letter
in r^ly, which the directors, including
Yates, Hamer, and Thompson signed indi-
vidually (under date of September 19, 1892,
as stated by defendants' counsel), is in evi-
dence and its significance cannot be over-
looked. Among other things, it stated:
"The dividend of July 1st was |dl right;
the expenses since then have exceeded in-
come by reason of having paid taxes & in-
terest on certificates of deposits to an un-
expected amount during July. The item of
$8,000 losses referred to was an estimate
of contingent losses k not any particular
loss already incurred, but referred to some
matters or process of liquidation, all items
mentioned by you shall receive prompt at-
tention."
There was thus sufficient evidence from
these directors themselves that they were
scrutinizing the affairs ot the bank; that
prior to the published official report of Sep-
tember 30, 1892, which was followed by the
published official report of December 9, 1892,
these directors were examining the condi-
tion of the bank, that they were consider-
ing the losses sustained, the expenses in-
curred, and the basis of the dividend de-
clared in July. These were not casual state-
ments, but deliberate assertions of activity
of supervision in response to official com-
plaint. It was plainly permissible, despite
their disclaimers and denials, to attribute
to these directors the knowledge which men
of ordinary intelligence- would readily have
obtained with respect to the financial condi-
tion of the bank in the course of the super-
vision which they professed [563] to be
actively exercising. Assuming that they
were ignorant of the frauds that had
51 801
663, 504
SUPREME COURT OF THE UNITED STATES.
Oct. Temm^
been committed and concealed by falsi-
fied entries, there was warrant for the
oonclusion that they could not have failed
to acquire sufficient information to be
aware that the representations in the
official reports of 'the latter part of the
year 1892 were materially false and cal-
culated to deceive. The questions of fact, so
far as they arose upon a substantial conflict
in evidence, were for the trial court. Citi-
zens Ins. Co. V. Herpolsheimer, 77 Neb. 232,
109 N. W. 160; Madison Nat. Bank ▼. Gross,
98 Neb. 684, 154 N. W. 207. It is not neces-
sary for us to review the evidence in detail.
It is sufficient to say that our examination
of it has convinced us that the findings of
the trial court, at least with respect to the
last-mentioned reports, had substantial sup-
port; and, in this view, we must conclude
that the reversal of the judgments, as en-
tered in the trial court, upon the ground
of the legal insufficiency of the plaintiffs'
case when tested by the Federal statute, was
error.
The judgments of the Supreme Court of
the State are reversed and the cases are re-
manded with instructions to reinstate the
judgments entered in the District Court,
which are affirmed. Stanley v. Schwalby,
162 U. S. 255, 279-283, 40 L. ed. 960, 968-
970, 16 Sup. Ct. Rep. 754.
It is sp ordered.
[664] DETROIT & MACKINAC RAIL-
WAY COMPANY, Plff. in Err.,
V.
MICHIGAN RAILROAD COMMISSION
and Fletcher Paper Company.
(See S. C. Reporter's ed. 564-572.)
Error to state court — - final Jadgment *
mandamus.
1. A jud^ent of the highest court of a
state, awardmg a writ of mandamus to
enforce obedience by a railway company to
an order of a State Railway Commission
directing it to relay i mile of rails removed
by it from a 5-mile logging spur, and to re-
sume service thereon on condition that a
suitable bond be siven to indemnify the
railway company ^ould the Commission's
order ultimatelpr be vacated in a pending
suit in equitv, is '*final" in the sense of the
Judicial Code, § 237, governing writs of
error from the Federal Supreme Court to
state courts.
[For other cases, see Appeal and Error. I. d.
13, in Digest Sup. Ct. 1908.]
Constitutional law — - due process of law
— - mandamus.
2. Requiring obedience by mandamus to
an order of a Sto,te Railway Commission di-
recting « railway company to relay i mile
of rails removed by it from a 5-mile logging
spur, and to resume service thereon pend-
ing the determination of a suit in equity
to vacate such order on the ground that
such logging spur was only a private con-
venience, not a part of the railway sys-
tem, and that the Commission had denied
the railway company an adequate oppor-
tunity to be heard on that question,--does
not deprive the railway company of the due
process of law guaranteed by U. S. Const.,
14th Amend., where the grant of the man-
damus writ was conditioned upon the giv-
ing of a suitable bond to indemnify the rail-
way company should the Commission's order
ultimately be vacated in the equity suit.
[For other cases, see CoDstltutiooal Law, IV.
b. 8, in Digest Sup. Ct. 1908.1
[No. 68.)
Argued and submitted November 10, 191&
Decided AprU 3, 1916.
IN ERROR to the Supreme Court of the
State of Michigan to review a judgment
awarding a writ of mandamus to enforce
obedience by a railway company to an order
of the Railway Commission, directing it to*
relay rails removed by it from a logging
spur, and to resume service thereon. Af*
firmed.
Note. — On the general subject of writs of
error from the United States Supreme Court
to state courts — see notes to Martin v.
Hunter, 4 L. ed. U. S. 97; Hamblin v. West-
em Land Co. 37 L. ed. U. S. 267; Re
Buchanan, 39 L. ed. U. S. 884, and Kipley
T. Illinois, 42 L. ed. U. S. 998.
On what adjudications of state courts can
be brought up for review in the Supreme
Court of the United States by writ of error
to those courts — see note to Apex Transp.
Co. V. Garbade, 62 L.R.A. 513.
As to what constitutes due process of
law, generaly— see notes to People v.
O'Brien, 2 L.RAl. 255; Kuntz ▼. Sumption,
2 L.R.A. 655; Re Gannon, 5 L.R.A. 359;
Ulman ▼. Baltimore, 11 L.R.A. 224; Oilman
T. Tucker, 13 URJk. 304; Pearson v. Yew-
dBJl 24 L, ed. U. S. 436, and Wilson v.
North Carolina, 42 L. ed. t. 8. 865.
What judgments of state courts are final
for the purpose of a review in the Su<
preme Court of the United States.
This question is discussed in a note to
Schlosser v. Hemphill, 49 L. ed. U. S. 1001,
and only the cases decided since the pub-
lication of that note are here considers.
The finality of the judgment of the high*
est court of a state is to be tested by the
form of the judgment, and the Federal Su-
preme Court cannot, for the purpose of de-
termining whether its reviewing power ex-
ists, resort to the state law for the purpose
of converting a judgment not on its face
final into one final in character. Louisiana
Nav. Co. V. Ovster Commission, 226 U. 8. 99,
57 L. ed. 138', 33 Sup. Ct. Rep. 78.
Any judgment which determines the par-
ticular cause is finaL Hence a jud^pnent of
the highest court of a state, finally dispos*
140 U. 8.
1915.
DETROIT ft M. R. 00. ▼. MICHIGAN R. COM.
See same case below, 178 Mich. 230, 144
N. VV r« 0.
The facts are stated in the opinion.
Messrs. Fred A. Baker and James Mc-
Nfunara submitted the cause for plaintiff
in error:
It was not competent for the supreme
court of Michigan, while the case in the
.Wayne circuit was pending and undeter-
mined, to order the railroad company to
restore the Tubbs branch and to resume
service thereon.
McKechnie, Magna Charta, p. 434; De
Lima v. BidweU, 182 U. S. 1, 45 L. ed. 1041,
21 Sup. Ct. Rep. 743; Wadley Southern R.
Co. y. Georgia, 235 U. S. 651, 59 L. ed. 405,
P. U. R. 1915A, 106, 35 Sup. Ct. Rep. 214.
The failure of the Michigan Railroad
Commission to carry out its agreement to
ing of a writ of prohibition sued out under
Ala. Code 1907. §§ 4864-4867, 4872, to pre-
vent an inlerior court from taking jurisdic-
tion of an action, is a final judgment, with-
in the meaning of the Judicial Code, § 237,
36 Stat, at L. 1156, chap. 231, Comp. Stat.
1913, § 1214, governing writs of error to
state courts, although such judgment does
not determine the merits of the principal
suit. Mt. Vernon Wood berry Cotton Duck
Co. V. Alabama Interstate Power Co. 240
U. S. 30, ante, 607, 36 Sup. Ct. Rep. 234.
And a judgment of a state court ordering I
the delivery to the state by a canal company
of the waterway in its entirety, and all
appurtenant property and its improvements,
including the roadways upon the sides,
which cumprisc practically all the property
sued for, such judgment involving and dis
posing of the Federal right asserted by the
canal company, possesses the requisite final-
ity to sustain a writ of error from the Fed-
eral Supreme Court, although there is re-
served for further adjudication a small
Siece^of ground as to which there was a
ispute as to whether it was appurtenant
to the canal, and although an accounting of
certain receipts and disbursements is or-
dered. Carondelet Canal & Nav. Co. v.
Xouisi^na, 233 U. S. 362, 58 L. ed. 1001, 34
Sup. Ct. Rep. 627.
A jud^ent of the highest court of a
state, which reversed a judgment below dis-
missing a petition because it stated no cause
of action, and remanded the cause for fur-
'thcr proceedings, is not final for the purpose
of a writ of error from the Federal Supreme
Court. Louisiana Nav. Co. v. Oyster Com
iXniBsion, supra.
A judrnmcnt of the highest court of a
citnte, afHrming, without directing a dis-
^niasal, the judgment of the court below,
^^rhich had sustained a demurrer to the
petition in a civil suit upon the ground
'^hat it did not state facts sufficient to con-
stitute a cause of action, but had not dis-
1X1 iss^ the suit, lacks the finality requisite
'to sustain a writ of error from the Federal
Supreme Court. Missouri ft K. I. R. Co. v.
Olathe, 222 U. S. 1S5, 56 L. ed. 155, 32 Sup.
Ct. Rep. 46.
But where the cause will be determined by
the judgment which the highest state court
directs the court below to enter, there is a
final judgment. Hence a judgment of the
highest state court, which reversed a judg-
ment below in favor of defendants |n a suit
by a railway company to quiet title to a
strip of land claimed and used by it as a
right of way under the act of March 3, 1875,
•0 li. ed.
and to which defendants asserted title imder
a patent to a placer mining claim, and re-
manded the cause with a direction to *'enter
a judgment awarding to the plaintiff title
to a right of way over the lanas in question
100 feet wide on each side of the center of
the track," is a final judgment within the
meaning of the Judicial Code, § 237, gov*
erning writs of error from the Federal Su>
preme Court to state courts. Rio Grande
Western R. Co. v. Stringham, 239 U. S. 44,.
ante, 136, 36 Sup. Ct. Rep. 5.
Until the judgment rendered by the state
trial court pursuant -to the mandate from the
state court of last resort, which, on revers*
ing a prior judgment, remanded the cause
for further proceedings, had been afi&rmed
by the latter court upon a second writ of
error, there was no final judgment in that
court such as might be brought up to the
Federal Supreme Court under the Judicial
Code, § 237, for review. Coe v. Armour Fer-
tilizer Works, 237 U. S. 413, 59 L. ed. 1027,
35 Sup. Ct. Rep. 625.
The judgment of the highest court of a
state affirming, on a third appeal, a judg-
ment of the trial court entercKi on a verdict
in favor of plaintiff, is the first final judg-
ment in the action which is the subject of
review in the Federal Supreme Court, where
the highest state court, on the first appeal,
reversed the order of the lower court, grant-
ing a petition for the removal of the action
to a Federal circuit court, and remanded
the case for trial, and, on the second appeal,
reversed a judgment entered on a directed
verdict in favor of defendant, although the
court, on such third appeal, regarded itself
as bound by its prior decision as the law
of the case, and declined again to consider
the Federal question. Chesapeake & O. R.
Co. V. McCabe, 213 U. S. 207, 53 L. ed. 765^
29 Sup. Ct. Rep. 430.
The rule which excludes the right to re-
view questions arising in a cause depending
in a state court until a final judgment is
rendered by such court involves as a neces-
sarv correlative the power and the duty
in ihe Federal Supreme Court, when a final
judgment in form in rendered and the cause
is brought there for review, to consider and
pass upon all the Federal controversies in*
the cause, irrespective of how far it may be
that by the state law such questions were
concluded during the litigation, and before
a final judgment susceptible of review waa
rendered. Louisiana Nav. Co. v. Oyster
Commission, 226 U. S. 99, 57 L. ed.*138,.
33 Sup. Ct. Rep. 78.
SUPREME COURT OF THE UNITED STATES.
Cot. Tduc,
gire a further hearing and an opportunity
to introduce eyidenoe, and the refusal of
the supreme court of Michigan to give any
Buch opportunity, was a deprivation of
property without due process of law, and
a denial pf the equal protection of the laws.
Washington ex ret Oregon R. & Nav. Co.
T. Fairohild, 224 U. S. 610, 66 L. ed. 863,
82 Sup. a. Rep. 636; RoUer v. HoUy, 176
U. S. 398, 409, 44 L. ed. 620, 624, 20 Sup.
Ct. Rep. 410; biterstate Commerce Commis-
sion V. Louisville & N. R. Co. 227 U. S.
88, 91, 67 Lb ed. 431, 433, 33 Sup. Ct.
Rep. 186; Coe t. Armour Fertiliser Works,
237 U. S. 413, 69 K ed. 1027, 36 Sup. a.
Rep. 626.
If the proposed use is public, the ques-
tion of necessity, in the absence of any-
thing in the state Constitution to the con-
trary, may be determined by the legisla-
ture, or by executive or administrative
officers, or a court by authority of the legis-
lature, and without any notice or hearing.
People ex rel. Herrick v. Smith, 21 N. Y.
698; Ford v. Chicago & N. W. R. Co. 14 Wis.
610, 80 Am. Dec. 791; Sholl v. German Coal
Co. 118 ni. 427, 69 Am. Rep. 379, 10 N. E.
199; Waterworks Co. v. Burkhart, 41 Ind.
364; Cooley, Const. Lim. 7th ed. 777, 778.
But it must appear that the purpose is
public, and not private, for taking prop-
erty for a private purpose is a deprivation
of property without due process of law.
Missouri P. R. Co. v. Nebraska, 164 U. S.
403, 41 L. ed. 489, 17 Sup. Ct. Rep. 130; Re
Tuthill, 163 N. Y. 138, 49 LJ^A. 781, 79
Am. St. Rep. 674, 67 N. E. 303; Fallsburg
Power A Mfg. Co. v. Alexander, 101 Va. 98,
61 L.ILA. 129, 99 Am. St. Rep. 866, 43 S. E.
194; Berrien Springs Water Power Co. v.
Berrien Circuit Judge, 133 Mich. 48, 103
Am. St. Rep. 438, 94 N. W. 379.
The indemnity bond of $10,000 filed by
the Fletcher Paper Company by direction
of the supreme court of Michigan, as a
condition precedent to the issuing of the
writ of mandamus, does not cure the error
of that coiurt in awarding the mandamus.
Foule v. Mann, 63 Iowa, 42, 3 N. W. 814.
On the answers of the railroad company
the Tubbs branch has always been, and, as
proposed to be restored, will certainly be,
private, and not public
Pipe Line Cases (United States r. Ohio
Oil Co.) 234 U. S. 648, 68 L. ed. 1469, 34
Sup. Ct. Rep. 966.
It is settled law in Michigan that re-
quiring railroad companies to construct at
their own expense, highway crossings, farm
crossings, or drainage culverts, is a taking
without compensation, and forbidden by
the due process of law clause.
Chicago & G. T. R. Co. v. Chappell, 124
Mich. 72, 82 N. W. 800; People v. Detroit,
804
|6. H. ft M. R. Co. 79 Mich. 471, 7 L.R.A.
1 717, 44 N. W. 934; Chicago & G. T. R. 06.
I V. Hough, 61 Mich. 607, 28 N. W. 632; Peo-
ple V. Lake Shore &'M. S. R. Co. 62 Ifidi.
277, 17 N. W. 841.
And this court has held that a serious
interruption to the common and necessary
use of property is a taking of it.
Pumpelly v. Green Bay & M. Canal Co.
13 WalL 168, 20 L. ed. 667.
Mr. DaTld H. Crowley argued the
cause, and, with Mr. Grant Fellows, At-
torney General of Michigan, filed a brief for
defendant in error, the Michigan Railroad
Commission :
The order of the Michigan Railroad Onn-
mission could not, even if viewed from the
standpoint of plaintiff in error, be consid-
ered void.
Cooley, Const. Lim. 7th ed. pp. 687, 688;
White V. Grow, 110 U. S. 183, 28 L. ed.
113, 4 Sup. Ct. Rep. 71; Lent v. Tillson,
140 U. S. 316, 36 L. ed. 419, 11 Sup. Ct.
Rep. 826.
The necessary rules bf procedure, vis.,
notice, hearing, etc., and the distinction
between those errors that render a judg-
ment void and those resulting simply in
irregular procedure have been pointed out
many times by this court in reviewing
judgments of state courts. The rules of
procedure should be construed even more
liberally when applied to the Mtehigan
Railroad Commission, whose proceedings
are administrative or ministerial, and not
judicial (Bfichigan C. R. Co. v. Michigan R.
Commission, 160 Mich. 366, 126 N. W- 649).
And, again, the findings of such Commis-
sion are not, under the Michigan statutes,
conclusive, but are only prima fade until
modified by the Commission or set aside
by the court.
Michigan R. Commission v. Michigan C.
R. Co. 169 Mich. 680, 124 N. W. 664; De-
troit & M. R. Co. V. Michigan R. Commis*
sion, 171 Mich. 346, 137 N. W. 329.
As a general rule, mandamus will not lie
where another suit involving the same sub-
ject-matter is pending, but this rule does
not apply where the pending litigation
will be ineffective, or where irreparable
loss or damage will result from delay.
Petaluma Sav. Bank v. Superior Ct. Ill
Cal. 488, 44 Pac. 177; Southern P. Co. v.
Siemens, — Or. — , 150 Pac. 290; State ex
reL Oshkosh, A. ft *B. W. R. Co. v. Bumell,
104 Wis. 246, 80 N. W. 460; Michigan R
Commission v. Michigan C. R. Co. 169 Mich.
680, 124 N. W. 664.
Mr. Grant Fellows, Attorney General of
Michigan, and Mr. I. S. Canfield also filed
a separate brief for defendants in error:
No final judgment or decree has been
S40 U. S.
101&
DETROIT k M. R. CO. v. MICHIGAN R. COM.
566
mdered by the supreme court of Michi-
gan.
Mower v. Fletcher, 114 U. S. 127, 29 L.
ed. 117, 6 Sup. Ct. Rep. 799; Bostwick v.
Brinkerhoff, 106 U. S. 3, 27 L. ed. 73, 1 Sup.
Ct. Rep. 15; St. Clair County ▼. Lovingston,
18 WaU. 628, 21 L. ed. 813; Missouri &
K. I. R. Co. T. Olathe, 222 U. S. 185, 56 L.
ed. 155, 32 Sup. Ct Rep. 46; Miners' Bank
▼. United States, 5 How. 213, 12 L. ed. 121;
McComb T. Knox County, 91 U. S. 1, 23 L.
ed. 185; Great Western Teleg. Co. t. Bum-
ham, 162 U. S. 339, 40 L. ed. 991, 16 Sup.
Ct Rep. 850; Louisiana Net. Co. v. Oyster
Commission, 226 U. S. 99, 57 L. ed. 138, 33
Sup. Ct Rep. 78; Parcels ▼. Johnson, 20
WaU. 653, 22 L. ed. 410.
The order here involved, and which the
oourt enforced by the writ of mandamus, is
administrative in its nature.
2 Elliott, Railroads, 2d ed. f 675; Reagan
T. Farmers' Loan A T. Co. 154 U. S. 362, 38
L. ed. 1014, 4 Inters. Com. Rep. 560, 14
Sup. Ct. Rep. 1047; Railroad Commission
Cases, 116 U. S. 307, 29 K ed. 636, 6 Sup.
Ct. Rep. 334, 388, 1191; Atlantic Coast
Line R. Co. v. North Carolina Corp. Com-
mission, 206 U. S. 1, 51 L. ed. 933, 27 Sup.
Ct Rep. 585, 11 Ann. Cas. 398; Michigan
C. R. Co. V. Michigan R. Commission, 160
Mich. 355, 125 N. W. 549; Michigan R.
Commission v. Michigan C. R. Co. 159 Mich.
580, 124 N. W. 564; Detroit & M. R. Co. v.
Michigan R. Commission, 171 Mich. 346, 137
N. W. 329.
A writ of error will not issue to the order
of a state court which is administrative or
ininisterial in its nature.
Barton v. Forsyth, 5 Wall. 190, 18 L. ed.
545; Dredge v. Forsyth, 2 Black, 563, 17 L.
ed. 253; Smith v. Trabue, 9 Pet. 4, 9 L. ed.
30; New York Secur. & T. Co. v. Illinois
Transfer R. Co. 44 C. C. A. 161, 104 Fed.
710; Capital Nat. Bank v. First Nat. Bank,
172 U. S. 425, 43 L. ed. 502, 19 Sup. a.
Rep. 202; Hand v. Hagood, 131 U. S.
CLXXXI, Appx. and 26 L. ed. 301.
No Federal question has been passed upon
by the supreme court of Michigan.
Rogers v. Clark Iron Co. 217 U. S. 589,
54 L. ed. 895, 30* Sup. Ct. Rep. 693; Santa
Cruz County v. Santa Cruz R. Co. Ill U. S.
361, 28 L. ed. 456, 4 Sup. Ct. Rep. 474;
Southern R. Co. v. Carson, 104 U. S. 136,
48 Ji. ed. 907, 24 Sup. Ct. Rep. 609; Christ
Church V. Philadelphia County, 20 How. 26,
15 L. ed. 802; Armstrong v. Athens County,
16 Pet. 281, 10 L. ed. 965; Smith v. Hunter,
7 How. 738-743, 12 L. ed. 894-896; Cro-
well V. Randell, 10 Pet. 392, 9 L. ed. 467;
MlCinney v. Carroll, 12 Pet. 66, 9 L. ed.
1002; Coons v. Gallagher, 15 Pet. 18, 10
L. ed. 645; Fulton v. M'Affee, 16 Pet. 149,
10 L. ed. 018.
#0 lu ed.
Mandamus lies to put into effect the oi^
ders of the Commission, pending proceed-
ings in equity to set them aside.
Michigan R. Commission v. Michigan C.
R. Co. 159 Mich. 580, 124 N. W. 564; Mich-
igan R. Commission v. Detroit & M. R. Co.
178 Mich. 230, 144 N. W. 696; Knoxville
V. Knoxville Water Co. 212 U. S. 1, 53 L.
ed. 371, 29 Sup. Ct Rep. 148; 26 Cyc
372; Atlantic Coast Line R. Co. v. Florida,
203 U. S. 256, 51 L. ed. 174, 27 Sup. Ct.
Rep. lt)8; Seaboard Air Line R. Co. v.
Fk>rida, 203 U. S. 261, 51 L. ed. 175, 27
Sup. Ct. Rep. 109.
The relator in the court below made out
such a clear legal right that it was entitled
to have its order enforced by mandamus for
the benefit of the complainant before the
Commission, defendant in error here, the
Fletcher Paper Company.
State ex rel. Wisconsin Teleph. Co. t.
JanesvUle R. Co. 87 Wis. 72, 22 L.R.A. 759,
41 Am. St. Rep. 23, 57 N. W. 970 ; Marbury
V. Madison, 1 Cranch, 137, 2 L. ed. 60;
Union P. R. Co. v. Hall, 91 U. S. 343, 23
L. ed. 428; People ex rel. Hunt v. Chicago
& A. R. Co. 130 ni. 175, 22 N. E. 857; 2
Elliott, Raihroads, % 698.
Mr. Justice Van Devanter delivered the
opinion of the court:
This was a petition to the supreme court
of Michigan by the Railroad Commission of
that state, for a writ of mandamus to en-
force obedience to an order of the Commis-
sion, directing the Detroit & Mackinac
Railway Company to re-lay i mile of rails
removed by it from a 5-mile logging spur,
called Tubbs branch, and to resume service
thereon. The railroad company answered,
and, after a hearing, the court granted the
writ, subject to a condition presently to be
stated. 178 Mich. 230, 144 N. W. 696.
The Commission's action was invoked by
a complaint presented by the Fletcher Paper
Company, of which the railway company
had due notice. Before the Commission the
railway company insisted that the logging
spur was not a part of its railroad system,
and that its use had been only that of a
private convenience; but the Commission
concluded from the pleadings and evidence
that the fact was otherwise, and made the
order with the purpose of correcting what
it deemed an unreasonable and unjust dis-
crimination and an inadequate service with-
in the meaning of the local statute (3
Howell's Anno. Stat. 2d ed. §§ 6526, 6537,
6545). Thereupon the railway company
filed a bill in equity in the circuit court of
Wayne county, praying that the order be
vacated, and asking that its enforcement
be temporarily and permanently enjoined.
In the bill the railway company Tev^^\ft&\\.%
067-560
SUPKEMB OOUET OF THE UNITED STATES.
Oct. Tebm,
InsiBtence [567] that the logging spur was
npt a part of its railroad BTstem, but only a
private convenience, and charged that an
adequate hearing was denied by the Com-
mission in that the issues were determined
upon the evidence presented by the paper
company, and in contravention of an under-
standing, assented to by the Commission,
that if an objection of the railway company
in the nature of a plea of res judicata
should be overruled, as it afterward was,
the company would be afforded a further
opportunity to present evidence in opposi-
tion to that of the paper company. The
bill invoked the due process of law clause
of the 14th Amendment. Apparently the
prayer for a temporary injunction was not
insisted upon.
It was during the pendency of that suit
that the mandamus proceeding was begun
and carried to judgment in the SMprama
court. In this proceeding the railway com-
pany again asserted that the logging spur
was only a private convenience, and not a
part of the railroad system used by it as
a common carrier, and that the Commis-
sion had denied it an adequate opportunity
to be heard upon that question, and further
insisted that to require it to give effect to
the Commission's order in advance of a
hearing and decision uppn that question in
the suit in -equity would deprive it of the
due process of law guaranteed by the 14th
Amendment.
In the course of its opinion* the supreme
court said, pp. 243-246:
"We are not called upon to consider and
determine the merits of the controversy be-
tween the Fletcher Paper Company and re-
•pendent railway company upon the order
of August 3, 1011. Such questions are in
volved in the case now pending before the
circuit court for the county of Wayne, in
chancery, wherein the respondent railway
company seeks to review, annul, and set
aside said order. The sole question before
this court in this proceeding is whether the
order of the Railroad Commission shall
{568] take effect and become operative
pending the hearing and determinatibn of
that chancery cause. . . .
"Relative to an order made by this Com-
mission, this court has said: '• . . Its
orders stand until modified or set aside by
it or by the courts. . . . Presumptive-
ly, the findings and orders of the Commis-
sion are right. If attacked, the complain-
ant has the burden of showing "by clear
and satisfactory evidence that the order of
the Commission complained of is unlawful
or unreasonable, as the case may be." ' De-
troit & M. R. Co. T. Michigan R. Commis-
sion, 171 Mich. 335, 846, 137 N. W. 829.
606
"The petitioner in the instant case be-
fore the Railroad Commission offered, and
upon this hearing before this court keeps
such offer good« to indunmify respondent for
all costs and expenses incurred in re-laying
the track taken up by it, with interest;
and to pay all rates that may be fixed or
charged by the railway company and ap-
proved by the Commission, in case this or-
der is vacated and set aside by the Wayne
circuit court in chancery, or by this court,
if an appeal is taken. This indemnity
would save respondent harmless from any
possible loss in complying with the order,
and save petitioner from claimed irrepara-
ble damage to 21,000,000 fuet of forest
products during the probable term of years
occupied in this litigation.
"It has been held by tliis court that an
order of the Railroad Commission is en-
forceable by mandamus, although a proceed-
ing in equity to review it is pending. Michi-
gan R. Commission v. Michigan C. R. C6.
159 Mich. 580, 124 N. W. 504.
"This order is prima facie not unreason-
able. There is no question but that the
legislative intent, clearly expressed in this
statute, was that the orders of the Commis-
sion should be and continue in force during
all subsequent proceedings until modified
or set aside by the Commission or by the
courts.
"The statute provides a remedy by man-
damus to enforce [560] the orders of the
Commission, and this couit has . granted
such writs. Upon the facts presented, the
writ should be granted in this case.
"Upon furnishing bond by the petitioner
before the Railroad Commission, th6 Fletch-
er Paper Company, in the penal sum of
$10,000 to indemnify respondent in manner
and form as herein stated, with two sure-
ties, to be agreed upon between the parties,
or approved by the clerk of this court, a
writ of mandamus will issue as prayed."
And in the course of a separate opinion
one of the justices said, p. 248:
"So long as the respondent was operating
the spur, accepting thereon and teansport-
ing over it freight for those who offered it,
and so long as it published tariffs affect-
ing such service, it was undoubtedly, as to
such operations, within the scope of the act
in question, and this we held in Detroit ft
M. R. Co. V. Michigan R. Commission, 171
Mich. 335, 137 N. W. 329. But whether
the Michigan Railroad Commission has
power under the statute to require respond-
ent to continue to operate such a spur, or
branch, against its will, and in face of its
efforts to abai^don it, is quite a different
question. It is a question which we assume
is presented in the pending chancery pro-
ceeding to set aside the order which in
S40 U. 8.
1915.
DETROIT ft M. B. CX). y. MICHIOAN R. OOM.
669-67S
thii proceeding is sought to be enforced.
It need not be answered now."
The local statute, 3 Howell's Anno. Stat.
2d ed., provides: (§ 6545) Orders of the
Commission shall talce effect and become
operative twenty days after service; (9
6547) the Commission may, upon applica-
tion, rescind or alter any order; (§ 6648)
all rc<^ulations, practices, and services pre-
scribed by the Commission shall be in force
and be prima facie lawful and reasonable
until finally held otherwise in a suit
brought for the purpose under § 6549, or
until rescinded or altered by the Commis-
sion under § 6547; (§ 6549) a carrier may,
within thirty days after notice of an order,
commence a suit in equity to vacate [570]
H, the burden being upon the carrier to
show that the order is unlawful or unrea-
sonable. In such a suit original evidence
may be introduced in addition to the tran-
script of that presented before the Com-
mission; and if evidence be introduced by
the carrier which is different from or in
mddition to that presented before the Com-
mission, the court, unless the parties stipu-
late to the contrary, shall transmit a copy
thereof to the Commission and stay further
proceedings for the time being. The Com-
mission shall consider the evidence trans-
mitted, and may alter or rescind its order,
«.nd shall report its action to the court. If
the Commission rescind its order, the suit
shall be dismissed; if it alter the order, the
same in its changed form shall take the
place of the original, and judgment shall be
rendered thereon as though the last action
of the Commission had been taken at first;
(§ 6570) in addition to all other remedies,
the Commission, and likewise any party in
interest, may compel compliance with an
order of the Commission by a proceeding in
mandamus, injunction, or other appropriate
civil remedy.
It will be perceived that the supreme
court, applying the statute, held that the
"sole question" for decision was whether
the Commission's order should be given ef-
fect pending the determination of the
equity suit; and then, coming to dispose
of that question, held that due regard for
the provisions of the statute, especially
IS 6545, 6548, and 6549, and for the
relative consequences of enforcing or re-
fusing to enforce the order, required that
it be enforced by mandamus, if a suitable
bond was given to indemnify the railway
company for any resulting loss in the event
the order ultimately should be vacated in
the equity suit.
Our jurisdiction is called in question
upon the ground that the judgment is not
final in the sense of § 237, Judicial Code
[36 Stat, at L. 1156, chap. 231, Comp. Stat.
#0 li. ed.
1913, § 1214], upon which our power to
review depends, because the judgment does
not determine the merits and end the
[571] litigation. But, as this court has
said, ''all judgments and decrees which de-
termine the particular cause" are final
in the sense of the statute. Weston
▼. Charleston, 2 Pet. 449, 463-^65, 7 L.
ed. 481, 486, 487; Central Transp. Co. t.
Pullman's Car Co. 139 U. S. 24, 40, 35 L.
ed. 55, 61, 11 Sup. Ct. Rep. 478; Mi.
Vemon-Woodberry Ootton Duck Co. t.
Alabama Interstate Power Co. 240 U. 8.
30, ante, 507, 36 Sup. Ct. Rep. 234.
This view has prevailed through a cen-
tury of practice in reviewing judgments
and decrees dismissing causes for want of
jurisdiction or for other reasons not deci-
sive of the merits. And it is settled that
a proceeding in mandamus is an independ-
ent adversary suit, and a judgment award-
ing or refusing the writ is a final judgment
within the meaning of the statute. Daviea
V. Corbin, 112 U. S. 36, 40, 28 L. ed. 627,
629, 5 Sup. Ct. Rep. 4; McPherson v. Black-
er, 146 U. S. 1, 24, 36 L. ed. 869, 873, 18
Sup. Ct. Rep. 3; American Exp. Co. v. Mich-
igan (American Exp. Co. v. Maynard) 177
U. S. 404, 406, 44 Lb ed. 823, 824, 20 Sup.
Ct. Rep. 695.
Under the local statutes, as interpreted
by the supreme court of the state, whether
the logging spur was merely a private con-
venience or was so used and operated by
the railway company that the latter was
not free to discontinue service thereon, in
the circumstances existing when the rails
were removed, was primarily a question for
the Commission and secondarily for the
Wayne circuit court, wherein the Commis-
sion's order was sought to be vacated. By
the order the Commission resolved this
question against the railway company. The
order was valid upon its face and recited
that it was made after a hearing and due
consideration of the proofs and briefs of
the parties. Whether the hearing was ade-
quate and whether the facts relating to the
logging spur were such as to sustain the
order were matters which were in issue in
the suit in the Wayne circuit court, where
the railway company was at liberty to pro-
duce any evidence legitimately bearing upon
the propriety of the order. It was in this
situation that the supreme court, having re-
gard to the statutory requirement that the
order be given effect and treated as prima
facie lawful and reasonable until adjudged
otherwise in [572] the suit brought to
vacate it, and also having regard to the
comparative consequences of enforcing or
refusing to enforce it while that suit was
undetermined, held that it ought to be en-
forced by mandamus, if a suitable bond
807
672
SUPREME COURT OF THE UNITED STATES.
Oct. Tknc,
was given to indemnify the railway com-
pany should the order ultimately be va-
cated. In this we perceive no deprivation
of due process. The granting of an order
or writ to maintain or restore the status
quo pending the outcome of existing litiga-
tion, which really is what was done here,
has been practised by the courts of the
country since before the Constitution was
adopted; and the claim that relief of this
nature cannot be granted, even upon con-
dition that ample security be given to make
good any loss that may be sustained there-
by, without encroaching upon the due
process of law secured by the Constitution,
is manifestly without merit.
Judgment affirmed.
Mr. Justice McReynolds is of opinion
that the Judgment is not final within the
meaning of § 237, Judicial Code [36 Stat
at L. 1166, chap. 231, Comp. Stat. 1913,
S 1214], and therefore that the writ of er-
ror should be dismissed.
JENNIE A. WnXINK, Executrix, etc.,
Appt.,
V.
UNITED STATES.
(See S. C. Reporter's ed. 572-681.)
Bminent domain — what Is a taking —
location of harbor line.
L Something more than the location
of a harbor line across the land of a ri-
parian owner on a navigable and tidal
stoeam Is essential in order to amount to a
tiJcing of his property and its appropria-
tion to a public use.
[For other cases, see Bmlnent Domain, T., In
Digest Sap. Ct 1908.]
Bmlnent domain — what Is a taking —
preventing renewal of wharf and pil-
ing.
2. The property of a riparian owner on
a navigable and tidal stream was not taken
so as to entitle him to compensation there-
for because he was prevented l^ the engi-
neer officer in charge of harbor improve-
ments there, and by the United States
attorney for the district, acting under the
authority of the river and harbor act of
September 19, 1890 (26 Stat, at L. 455,
chap. 907, Comp. Stat. 1913, % 9923), §§ 11,
12, from renewing the sheet pilins which
protected his marme railway, or rebuilding
Nan. — ^As to what constitutes a taking
of propertnr by eminent domain — see notes
to Memphis & C. R. Co. v. Birmingham, S.
ft T. R. R. Co. 18 LJI.A. 166, and Sweet
V. Rechel, 40 L. ed. U. S. 188.
On distinction between taking or dam-
aging properly and consequential injuries —
see note to Gordon v. Ellenville « K. R.
Co. 47 IJELA.(NJ3.) 462.
808
his wharf, where both piling and wharf were
not only below the mean high-water line,
but were within the harbor area as defined
conformably to the act of August 11, 1888
(25 SUt. at L« 425, chap. 860), § 12, by
the Secretary of War.
[For other cases, see Eminent Domain, V., In
Digest Sup. Ct 1008.1
[No. 180.]
Argued January 21, 1916. Decided April
3, 1916.
APPEAL from the Court of Claims to re-
view a judgment which, on a second
trial, denied a recovery from the United
States by a riparian owner for an alleged
taking of his property in the improvement
of a harbor. Affirmed.
See same case below, first trial, 88 Ct. CI.
693; second trM, 49 Ct CI. 701.
The facts are stated in the opinion.
Mr. George A. King, argued the cause,
and, with Mr. William B. King, filed a brief
for appellant:
There could hardly be a clearer case of
the taking of private property for public
use.
Pumpelly v. Green Bay & M. Canal Co.
13 WalL 166, 20 L. ed. 557; United States
V. Great F^ili Mfg. Co. 112 U. S. 645, 28
L. ed. 646, 5 Sup. Ct. Rep. 306; United
States r. Alexander, 148 U. S. 186, 37 L.
ed. 415, 13 Sup. a. Rep. 529; United States
V. Lynah, 188 U. S. 445, 465, 466, 47 L. ed.
539, 546, 547, 23 Sup. Ct Rep. 349; United
States V. Welch, 217 U. S. 333, 338, 339,
54 L. ed. 787, 789, 790, 28 UR.A.(N.S.)
385, 30 Sup. Ct. Rep. 527, 19 Ann.
Cas. 680; United States v. Grizzard, 219
U. S. 180, 184, 185, 55 L. ed. 165,
166, 167 81 LJIJ^.(N.S.) 1135 31 Sup.
Ct. Rep. 162; Richards v. Washington Ter-
minal Co. 233 U. S. 546, 58 L. ed. 1P88,
LJLAaOlSA, 887, 34 Sup. Ct Rep. . 654 ;
Greenleaf-Johnson Lumber Co. v. Garrison,
237 U. S. 251, 59 L. ed. 939, 35 Sup. Ct. Rep.
551.
There is no foundation for the view that
the acts of the officers of the United States
stopped short of a taking of the claimant's
property. Everything was done under full
sanction of the Secretary of War. He in
turn acted under the authority of an act of
Congress. Surely, the claimant was not
obliged to submit to the indignity of arrest
and prosecution, in order to test his rights.
On the contrary, he acted as a good citizen,
in conforming to the desires of the officers
of the government, who were carrying out
the directions of the Secretary of War, and
in suffering the damage inflicted upon him,
relying upon the oourts for redress in
awarding him the "just compensation" aa-
S40 V. 8.
1115.
WILUNE V. UNITED STATES.
877, 678
tared bj tb« OonstUutioti for tb« Uking I
of hiB propertr.
Pearaall v. Ekton County, 74 Mich. 659,
4 UB-A. 193, 42 N. W. 77 ; JsneHville v. |
Cvpenter, 77 Wu. 301, 8 L.B.A. SOS, 20
Am. St. Rep. 123, 48 N. W. 128; Forster
T. Scott, 136 N. T.-677, IB L.RA. 543, 32
N. E. 976; St. Louis v. Hill, 116 Mo. 527,
634, 21 L.HA..228, 22 S. W. 881.
AssistRnt Attorney Qeneral TIiompM>ii
argued the Ckue and flled a brief for ap-
pellee:
CoDgma acted vitbin its constitutional
powers m authorising the Secretary of War
to establtsli the harbor lines in the Savan-
nah river.
Qreenleaf-Jofa&eon Lumber Co. v. Garri-
son, 237 U. S. 261-258, 50 L. ed. 939-943,
36 Sup. Ct. Rep. 661; Union Bridge Co. v.
United SUtes, 204 U. S. 364, 51 L. ed. 623,
27 Sup. Ct Rep. 367; Scranton ». Wheeler,
170 U. S. 141, 162, 45 L. ed. 126, 137, 21
Sup. Ct. Rep. 48; United States t. Chand-
ler Dunbar Water Co. 229 U. S- 64, 57 L.
ed. 1076, S3 Sup. Ct. Rep. 667; Mononga-
hela Bridge Co. v. UniUd States, 216 U. S.
177, 194, 51 L. ed. 436, 442, 30 Sup. Ct. Rep.
366; Philadelphia Co. v. Stimson, 223 U. S.
«05, 638, 66 L. ed. 570, 664, 32 Sup. Ct. Rep.
340.
The premisea directly affected ww« vith-
in hi^ water and harbor lines of a navi-
gable trtream, and therefore the 6th Amend-
ment cannot be invoked.
Union Bridge Co. t. United SUtee, 204
XT. S. 364, 61 L.. ed. 623, 27 Sup. Ct. Rep.
367; United States v. Chandler- Dunbai
Water Power Co. 229 U. 8. 64, 67 L. ed.
1076, 33 Sup. Ct. Rep. 667.
The damagea complained at were not tbc
result of direct invasion by the government,
but the incidental consequence of • lawful
exerdee of governmental power.
ProBser v. Northern P. R. Co. 162 U. S,
69, 38 L. ed. 352, 14 Sup. Ct. Rep. 628.
Appellant's contention being predicateii
upon tortious acts of government officials
the court of claims was without jurisdic-
lAngford T. United States, 101 U. S. 341-
3«e. 26 L. ed. 1010-1012) Bigby v. Unitec
SUtes, 188 U. 8. 400, 410, 47 L. ed. 619, 626
23 Sup. Ct. Rep. 468; Hill t. United States
149 U. 8. 603, 699, 37 L. ed. 862, 864, 11
6up. Ct. Rep. lOlI.
Hr. Justice Tan Deranter delivered thi
opinion of the court:
Henry P. Williuk med to recover es npor
an implied contract for an alleged taking
*f his property in the improvement of thi
harbor in the Savannah river at Savannah
Georgia. A recovery was denied (38 Ct.
«0 Ih Cd.
a. 693; 49 Ct CI. 701), and the claim*
ant's executrix prosecutes this appeal.
The material facts disclosed by the lad-
ings are these: At Savannah the river is
lavlgable and within the ebb end flow of
the tide. Opposite the city is Hutchinson's
island, a strip of which on the side towards
the city was owned by the clalmanL He
there eondaeted a plant for repairing vea-
mIs. Among his facilities used in the busi-
nesa were a marine railway and a wharf.
The former extended into the river and was
protected by sheet piling "where in the
water." A substantial portion of it lay
below the mean high-water line, and the
wharf seems also to have been below that
line, although its location is not precisely
stated. In the conduct of the claimant's
business the vessels subjected to repair were
drawn out of the river and lowered into it
by means of the railway, and to prevent
Its lower end, "which was under water at
bigh tide," from becoming seriously ob-
structed by deposits of mud the piling was
driven on both sides. The piling was ef-
fectual for the purpose, but decayed in tlnw
and had to be replaced.
Prior to 1887 many improvements had
been made in the harbor, and In that year
a plan for further and extensive improve-
ments was submitted to Congress, but was
not approved. Among other changes this
plan contemplated [S78] a widening of the
river by cutting away a portion of Hutch-
inson's island, including that whereon the
claimant's facilities were situate. On May
4, 1889, the harbor line, which theretofore
had not reached the island or the claimant's
facilities, was re-established by the Secre-
tary of War, under J 12 of the act of Au-
gust 11, 1688, chap. 960, 25 SUt. at L. 400,
426,^ such manner that a part of the claim-
ant's land and all of his facilities were
brought within the harbor area. In I8(M>
another extended project, retaining the
earlier propoaal to widen the river by cut-
ting away a portion of the island, was sub-
mitted to Congress and was approved. The
estimated cost of this project was $3,500,-
000, which included $49,000 for "possible
land damages" to the island. A part of
the larger sum was appropriated each year
until the appropriations equaled the full
estimate, which woe in 1696. The appro-
priation of July IS, 1892, diap. 168, 27
Stat, at L. 88, 92, was accompanied by a
provision that "contracts may be entered
into by the Secretary of War for such ma-
terials and work as may be necessary to
complete the present project of Improve-
ment, to be paid for as appropriaflons may
from time to time be msjle by law, not to
exceed in the oggr^ate" so much of the
estimate as remained unappropriated. A
80*
578-681
SUPREME COURT OF THE UNITED STATES.
Oct. Tebic,
contract was then made for cutting away
a portion of the island, including that
whereon the claimant's facilities were situ-
ate, but this work never was done or un-
dertaken, and the appropriations were
otherwise exhausted and the project treated
as completed.
In the summer of 1892 the condition of
the claimant's wharf and piling became such
that it was necessary to rebuild the one
and to renew the other. While he was so
engaged the engineer officer in charge of
the harbor improvements requested him to
desist and to remove all of his facilities
that were within the harbor area as de-
fined by the Secretary of War in 1889. The
request was followed by a letter from the
United States attorney for [570] that dis-
trict, notifying the claimant that in driving
the piling he was obstructing navigation
contrary to the act of September 19, 1890,
chap. 907, 26 Stat, at L. 426, 454, 455, and
that unless he desisted and "all piling out-
side of the bulkhead line'' was removed, he
would be prosecuted. Because of this re-
quest and notice he ceased work upon the
piling and wharf, but did not remove any of
his facilities or surrender them or his land
to the United States or any of its officers.
On the contrary, he continued to operate his
plant and use his marine railway and other
facilities as best he could. Theretofore he
was able to haul up on the railway and
repair vessels of considerable draft, and
the chief profit in his business came from
that work; but thereafter, the renewal of
the piling being prevented, deposits of mud
filled up the entrance to the , railway to
such an extent that he was obliged to con-
fine his work to smaller vessels. Even then
it was necessary to be almost constantly
dredging the entrance. This condition con-
tinued until December, 1897, when the
Secretary of War re-established the harbor
line as it was prior to May 4, 1889. The
expense incurred by the claimant in dredg-
ing was $7,607, and the loss consequent
upon his inability to handle the larger ves-
sels was $12,500.
Upon these facts, as before indicated, the
«ourt held that he was not entitled to re-
cover.
We reach the same conclusion, and for
the following reasons:
There was no actual taking of any of the
claimant's property, nor any invasion or
occupation of any of his land. As respects
his upland, he was not in any wise excluded
from its use, nor was his possession dis-
turbed. Something more than the location
of a harbor line across the land was re-
quired to take it from him and appropriate
it to public use. Yesler v. Washington Har-
bor Line, 146 U. S. 646, 656, 86 L. ed. 1110,
1122, 18 Sup. Ct Rep. 100; Prosser t.
Northern P. R. Co. 152 U. S. 59, 65, 38 L.
ed. 352, 356, 14 Sup. Ct Rep. 528; Phila-
delphia Co. V. Stimson, 223 U. S. 605, 623,
56 L. ed. 570,' 578, 32 Sup. Ct. Rep. 340.
[580] No taking resulted from the request
that he remove his facilities, for it was nei-
ther acceded to nor enforced. And the con-
tract for cutting away a part of the land
was also without effect, because there was
no attempt at performance. Thus, at best,
the asserted taking rested upon the acts of
the engineer officer and the district attorney
in preventing the claimant from renewing
his piling and rebuilding his wharf? But in
this no right of his was infringed. The
river being navigable and tidal, whatever
rights he possessed in the land below the
mean high-water line were subordinate to
the public right of navigation and to the
power of Congress to employ all appropriate
means to keep the river open and its navi-
gation unobstructed. Gibson v. United
SUtes, 166 U. S. 269, 271, 41 L. ed. 99G,
998, 17 Sup. Ct. Rep. 578; Scranton v.
Wheeler, 179 U. S. 141, 163, 45 L. ed. 126,
137, 21 Sup. Ct. Rep. 48; Philadelphia Co.
V. Stimson, 223 U. S. 605, 634, 638, 56 L.
ed. 570, 582, 584, 32 Sup. Ct. Rep. 340;
United States v. Chandler-Dunbar Water
Power Co. 229 U. S. 53, 62, 57 L. ed. 1063,
1075, 33 Sup. Ct. Rep. 667; Lewis Blue Point
Oyster Cultivation Co. v. Briggs, 229 U. S.
82, 88, 57 L. ed. 1083, 1085, 33 Sup. Ct. Rep.
679, Ann. Cas. 1915A, 232; Greenleaf John-
son Lumber Co. ▼. Garrison, 237 U. S. 251,
263, 59 L. ed. 939, 945, 35 Sup. Ct. Rep. 651.
The piling and wharf were below the mean
high-water line, and so, if navigation was
likely to be injuriously affected by their
presence, Congress could prevent their re-
newal without entitling him to compensa-
tion therefor. See cases supra. By the
legislation in force at the time. Congress
not only authorized the Secretary of War
to establish the harbor lines, but made it
unlawful to extend any wharf or other
works, or to make any deposits, within the
harbor area as so defined, except under
such regulations as the Secretary might
prescribe, and laid upon the district attor-
ney and the officer in charge of the harbor
improvements the duty of giving attention
to the enforcement of its prohibitive and
punitive provisions (chap. 860, § 12, 25
Stat, at Jm 400, 425; chi^). 007, §§ 11, 12,
26 Stat, at L. 426, 455, Comp. Stat. 1913,
S 9923). When the claimant attempted to
renew the piling and rebuild the wharf, they
were not only below the mean high-water
line, but [581] within the harbor area as
defined under this legislation. Consistently
with its prohibitions he cpuld not proceed
* with the work, except under a permissible
S40 U. 8.
1915.
CENTRAL TRUST 00. v. CHICAGO AUDITORIUM ASSO.
581
reflation of the Secretarj of War. It is
not contended that the work was thus made
permissible, and so the conclusion is un-
avoidable that the claimant was proceeding
in violation of the statute, and that the
engineer officer and the district attorney
•rightly requested, him to desist. Such in-
•convenience and damage as he sustained
resulted not from a taking of his property,
hut from the lawful exercUe of a power to
which it had always been subject. Gibson
IT. United States, 166 U. S. 276, 41 L. ed.
1002, 17 Sup. Ot. Rep. 678; Bedford v.
United States, 192 U. S. 217, 224, 48 L. ed.
414, 417, 24 Sup. Ct Rep. 238.
Judgment affirmed.
Mr. Justice MoReynolds took no part in
the consideration and decision of this case.
CENTRAL TRUST COMPANY OP ILLI-
NOIS, Trustee of the Estate of Frank E.
Scott Transfer Company, Bankrupt,
Appt.,
V.
CHICAGO AUDITORIUM ASSOCIATION.
(No. 162.)
CHICAGO AUDITORIUM ASSOCIATION,
Appt. and Petitioner,
V.
CENTRAL TRUST COMPANY OP ILLI-
NOIS, Trustee of the Estate of Frank E.
Scott Transfer Company, Bankrupt. (No.
174.)
(See S. C. Reporter's ed. 581-694.)
Appeal — from circuit court of appeals
— bankruptcy case -» Federal ques-
tion.
1. A decision of a circuit court of ap-
peals that a claim against a bankrupt
estate for damages growing out of the an-
ticipatoiT breach of an executory contract,
while allowable as a provable debt for the
term during which that court thought that
the contract was mutually obligatory,
should not be allowed beyond that period,
is not reyiewable in the Federal Supreme
Court under the bankrupt act of July 1,
1898 (30 SUt. at L. 653, chap. 541, Comp.
Stat. 1913, S 9609), § 26b-l, as presenting
a Federal question which would sustain a
writ of error to a state court.
[For other cases, see Appeal and Error, 790-
807, in Digest Sup. Ct. 190&]
Note. — On the appellate jurisdiction of
the Federal Supreme Court over circuit
eourts of appeab— see notes to Bagley y.
Oeneral Fire Extinguisher Co. 63 U ed.
U. & 605, and St. Anthony's Church v.
Pennsylyania R. 0>. 59 L. ed. U. S. 1119.
On the appellate jurisdiction of Federal
Supreme Court in bankruptcy cases— see
note to James t. Stone, 67 L. ed. U. S. 678.
«0 lu ed.
Bankruptcy — provable debt — damages
for anticipatory breach of contract.
2. The tiling of an involuntary petition
in bankruptcy against a baggage transfer
and livery corporation, followed by an ad-
judication of bankruptcy, is the equivalent
of an anticipatory breach of its executory
contract with a hotel company for the
latter's baggage and livery business, where
the trustee in bankruptcy does' not elect to
assume performance, and gives rise to a
claim provable in the bankruptcy proceed-
ings, as one ''founded", within the mean-
ing of the act of July 1, 1898 (30 Stat,
at L. 5G3, chap. 541, Comp. Stat 1913, §
9647), S 63a-4, "upon a contract, express
or implied."
[For other cases, see Bankmptcy, Z. a. In Di-
gest Sap. Ct. 1908.1
Bankruptcy — provable debt — damages
for anticipatory breacli of contract —
term.
3. A bankruptcy court, in allowing as a
provable debt a claim for damages arising
out of the anticipatory breach by the bank-
rupt of its executory Contract with a hotel
company for the latter's baggage and livery
business, should not limit it to the damages
for the six months following such breach,
although the contract reserved to the hotel
company an option to revoke the privileges
by givinj^ six months' notice in writing of
its election so to do, in which case both
parties were to be released from further
liability at the expiration of the six monthn.
[For other cases, see Bankruptcy, X. a, in Di-
gest Sup. Ct. 1908.1
[Nos. 162 and 174.]
Argued January 12, 1916. Decided April 3,
1916.
CPPEAL from the United SUtes Circuit
Court of Appeals for the Seventh Cir-
cuit to review a decree which, reversing a
decree of the District Court for the North-
em District of Illinois, Eastern Division,
allowed, as a provable debt against the
bankrupt estate, a part of the damages
growing out of the bankrupt's anticipatory
breach of an executory contract. Affirmed.
Also a
A ROSS APPEAL from, and Certiorari to,
the United States Circuit Court of Ap-
peals for the Seventh Circuit on behalf of
the creditors to review the same decree.
Appeal dismissed, and decree reversed on
certiorari.
See same case below, 132 C. C. A. 452,
216 Fed. 308.
The facts are stated in the opinion.
Mr. Bdwin O. Brandenburg argued the
cause, and, with Messrs. Frederick D. Sil-
her and Clarence J. Silber, filed a brief for
the Central Trust Company of Illinois:
Subdivisions 1 and 4, of § 63a, of the
bankrupt act, must be construed together,
and the words, ''absolutely owing at the
811
SUPKEHE COURT OF THE UNITED STATES. Oct. inx,
time of the filing of the petition," etc, vp- ISO; Cottisg v. Hooper, 34 Am. Bankr. lUp.
peering in RubdiTision 1, ue to be read 23; Re D. Lev^ ft Soub Co. 208 Fed. 479, SI
into and construed ta a part of eubdivi- Am. Bankr. Rep. 26; Re American Vacuum
■ion 4. Cleaner Co. 102 Fed. 939, 26 Am. Bankr. Rep.
Zavelo T. Reeves, 227 U. S. S2S, 67 L. ed. 621; WUliams v. United SUtes Fidelity
076, 33 Sup. Ct. Rep. 366, Ann. Caa. I914D, ft G. Co. 236 U. S. 649, 6S L. ed. 713, 3ft
664; 2b Am. Bankr. Rep. 493; Re Roth, 31 Sup. Ct. Rep. 289, 34 Am. Bankr. Rep. 181.
LJl.A.(N.S.) 270, 104 C. C. A. 649, 161 Fed. For the aame reason, as applied to leaae-
087, 24 Am. Bankr. Rep. 688; Cobnan Co. hold contracta, aubsequent inetalm'enta of
T. Witboft, IIS C, 0. A. 222, ISB Fed. 260, rent or damage! for alleged breach throu|^
28 Am. Bankr. Rep. 329. bankniptcy of one of the partiea are not
Anticipatory breach of an executory con- prorable in bankruptcy.
tract resultii from a poaitive, unconditional, Wataon t. Merrill, OB L.R.A. 719, 69 C. C
and unequivocal declaration by a party A. 186, 136 Fed. 359, 14 Am. Bankr. Rep.
thereto, of a fixed purpose not to perform 453; Colman Co. *. Withoft, 116 C. C. A.
the contract, in any event or at any time. 222, 196 Fed. 250, 28 Am. Bankr. Rep. 328;
Dingley v. Oler, 117 U. S. 490, 29 L. ed. Re Roth, 31 L.RA.(N.S.) 270, 104 C. C. A.
984, « Sup. Ct. Rep. 860; Roehm v. Horst, 649, 161 Fed. 667, 24 Am. Bankr. Rep. 6S8;
178 U. S. 1, 44 L, ed. 053, 20 Sup. a. Rep. Slocum v. Soliday, 108 C. 0. A. 5«, 183
780; Lake Shore ft M. S. R. Co. v. Richards, Fed. 410, 26 Am. Bankr. Rep. 460.
152 III. 59, 30 L.RA. 33, 38 N. E. 773; Zuck The contract involved pasacd by opera-
T. McClure, 99 Fa. 641; Johnstone v. Hill- tion of law as part of the bankrupt's estate
ing. L. R. 16 Q. B. Div. 400. 66 L. J. Q. B. to the appellant as its trustee.
N. S. 162, 64 L. T. N. S. 629, 34 Week. Rep. Gazlay v. Williams, 210 U. S. 41, 62 L.
238, 50 J. P. 694 ; Dalrymple v. Scott, 10 cd. 960, 28 Sup. Ct. Rep. 687, 20 Am. Bankr.
Ont. App. Rep. 477; People v. Globe Mut. Rep. 18.
L. Ins. Co. Bl N. Y. 174; Lovell v. St. Louis And as such, the appellant had a reason-
Mut. L. Ins. Co. Ill U. S. 264, 28 L. ed. 423, able length of time after iU election and
4 Sup. Ct. Rep. 3B0; Carr v. Hamilton, 129 qualification as trustee, to either assume or
U. S. 252, 32 L. ed. 06B, B Sup. Ct. Rep. 2B6; renounce performance of the contract.
Pennsylvania Steel Co. t. New York City Sparhawk v. Yerkes, 142 U. 8. 1, 13, 3&
R. Co. 117 C. C. A. 603, 198 Fed. 736. L. ed. 915, 918, 12 Sup. Ct. Rep. 10*; Sea-
Keither insolvency nor the filing of an aions v. Romadka, 145 U. 8, 29, 36 L. ed.
involunUry petition in bankruptcy, fol- 609, 12 Sup. Ct Rep. 7B9; Atchiaon, T. A
lowed by adjudication, constitutes a breach S. F. R. Co. v. Hurley, 82 C. C. A. 463, 163
of an executory contract, to which the in- Fed. 603, 18 Am. Bankr. Rep. 3B6.
solvent or bankrupt is a party, and from The cross appeal should be dismissed,
which a provable debt accrues. Chapman v. Bowen, 207 U. 8. 89, C2 L.
Phenix Nat. Bank t. Waterbury, 1B7 N. rf. ]ifl_ 28 Sup. Ct. Rep. 32; Kenney v,
T. 181, 90 N. E. 436, 23 Am. Bankr. Rep. Craven, 215 U. S. 125, 54 L. ed. 122," 30
Re Agra Bank, L. R. 6 Eq, J60, 37 gup. Ct. Rep. 64; Blake r. Openhym, 21»
L. J. Oh. N. S. 121, 16 Week. Rep. 270;
. 322, 64 L. ed. 499, 30 Sup. Ct. Rep.
Malcomson vWappoo Mills, 88 Fed 880; ^'g ^ew' Jersey City ft B. R. Co. v. Mor-
R« Inman, 171 Fed. 186, 22 Am. Bankr. _ ,.„ ,, j, ' o ak i ^ Atn -la a
Rep. 624, 175 Fed. 312, 23 Am. Bankr. Rep, 8^' J"" ^'f- !!?' " ^- ^- *?"' " ^"J"-
666; Lesser v. Gray, 9 Ga. App. 806, 70 "■ ^^P" f,t\,"L"Z' ,*.\"L ^.Tf J «
S. E, 104, affirmed in 238 U. S. 70. 59 L. ed. Andnjmo, 138 U. 8. 4B7, 34 L. ed. 1013, U
471, 35 Sup. Ct. Rep. 227, 34 Am. Bankr. ^"P- ^- ^P- ^86.
Rep. 8; Re Imperial Brewing Co. 143 Fed. Mr. WllIlMU D. Bangs argued the eftuse,
570, 16 Am. Bankr. Bep. 110; Re Montague, ^nd, with Messrs. Rudolph Mate and John
32 Am. Bankr. Rep. 108; Re Swift, 60 C. C. q, Mechem, filed a brief for the Chleac»
A. 264, 112 Fed. 315, 7 Am. Bankr. Rep. Aujjtorium Association:
"\" /'.,*■ ""■ "' """• "• " ^° ™rbT.z "t. p.„.»„» .. .
Bankr. Rep. 23. . i. . ^ i .
The resulting claim for damages, if bank- ''^^'* *>' «•"*'«'■ „„,,,, ^
mptcy is in fact a breach7«n«titutes K«»"° "■ ^orst, 178 U. S. 1, 44 L ad.
nothing more than a contingent cUim, "^3, 20 Sup. a. Rep. 780.
whicli is nonprovable under the present B. Insolvency is often a disablement.
bankruptcy act, 5 63a. Chemical Nat. Bank v. World's Colnm-
1 Remington, Bankr. 2d ed. 5 641; Dun- bian Exposition, 170 DI. 82, 48 N. E. 331;
bar V. Dunbar. 100 U. 8. 340, 47 L. ed. 1084, Bank Comrs. v. New Hampshire Trust On*
03 Sap. Ct. Sep. 767, 10 Am. Bankr. Bep. 89 N. H. 021, 44 Atl. 130.
SJ» 140 V. ••
191 o.
CENTRAL TRUST CO. v. CHICAGO AUDITORIUM ASSO.
586, 586
C. And similarly, the appointment of a
receiver.
Pennsylvania Steel Co. v. New York City
R. Co. 117 C. C. A. 503, 198 Fed. 721.
D. Or proceedings for liquidation under
s]>ccial statutes.
Lovell V. St. Louis Mut. L. Ins. Co. Ill
U. S. 2G4, 28 L. ed. 423, 4 Sup. Ct. Rep. 390;
Carr v. Hamilton, 120 U. S. 252, 32 L. ed.
669, 9 Sup. Ct. Rep. 295.
£. Bankruptcy is a complete disablement
Re Swift, 50 C. C. A. 264, 112 Fed. 315;
Re PettingiU, 137 Fed. 143; Re NeflT, 28
LJIJL(N.S.) 349, 84 C. C. A. 561, 157 Fed.
hi ; Re Duquesne Incandescent Light Co. 176
Fed. 785; Re Dr. Voorhees Awning Hood
Co. 187 Fed. 611.
A claim for damages for a material
lireach of an executory contract caused by
bankruptcy constitutes a provable debt.
Zavelo y. Reeves, 227 tl. S. 625, 57 L. ed.
676, 33 Sup. Ct. Rep. 365, Ann. Cas. 1914D,
664; Ex parte Pollard, 2 Low. Dec 411, Fed.
Cas. No. 11,252; Re Swift, 50 C. C. A. 264,
112 Fed. 315; Re PettingiU, 137 Fed. 143;
Re Neff, 28 L.RJL(N.S.) 349, 84 C. C. A.
^1, 157 Fed. 57; Re Duquesne Incandes-
cent Light Co. 176 Fed. 785; Re Dr Voor-
hees Awning Hood Co. 187 Fed. 611; Penn-
sylvania Steel Co. v. New York City R.
Co. 117 C. C. A. 503, 198 Fed. 721; Lesser
▼. Gray, 236 U. S. 70, 59 L. ed. 471, 35 Sup.
Ct Rep. 227; Frederic L. Qrant Shoe Co.
T. W. M. Laird Co. 212 U. S. 445, 53 L. ed.
591, 29 Sup. Ct. Rep. 332.
The present case does not involve an
anticipatory breach of contract.
WilUston, Wald's PoUock, Contr. pp. 362,
363; Lowe v. Harwood, 139 Mass. 135, 29
N. E. 53d.
The claim is provable, although the dam-
ages are unliquidated and the trustee has
an option to continue the performance of
executory contracts.
Frederic L. Grant Shoe Co. v. W. M.
Laird Co. 212 U. S. 445, 53 U ed. 591, 29
Sup. Ct. Rep. 332; Re Swift, 50 C. C. A.
264, 112 Fed. 315; Dunbar v. Dunbar, 190
U. S. 340, 47 L. ed. 1084, 23 Sup. Ct. Rep.
757; Cobb v. Overman, 54 LJIA. 369, 48
0. C. A. 223, 109 Fed. 65.
The rule as to the material breach of a
covenant to pay rent does not apply to the
material breach of executory contracts.
Co. Litt. p. 292b, §§ 512, 513; Re Roth,
31 L.RJk.(N.S.) 270, 104 C. C. A. 649, 181
Fed. 667 ; Watson v. Merrill, 69 L.R.A. 719,
69 C. C. A. 185, 136 Fed. 359; Slocum v.
Soliday, 106 0. C. A. 56, 183 Fed. 410.
An option in one party of cancelation
upon stipulated contingencies does not,
after material breach by the other party,
affect the recovery of damages for breach
60 li. ed.
of contract by that party for whose benefit
the option was inserted.
Dunbar v. Dunbar, 190 U. S. 340, 47 L.
ed. 1084, 23 Sup. Ct. Rep. 757.
The general policy of the bankruptcy
act favors the provability of claims for
damages upon executory contracts matured
by bankruptcy.
Williams v. United SUtes Fidelity & G.
Co. 236 U. S. 549, 59 L. ed. 713, 35 Sup. a.
Rep. 289.
Mr. Justice Pitney delivered the opinion
of the court:
On July 22, 1911, a creditors' petition
in bankruptcy was filed against the Frank
E. Scott Transfer Company, an Illinois cor-
poration, and it was adjudged a bankrupt
on August 7. The act of bankruptcy
charged and adjudicated does not appear.
When the proceedings were commenced, the
bankrupt held contract relations with the
Chicago Auditorium Association under a
written agreement made between them Feb-
ruary 1, 1911, which had been partially
[586] performed. By its terms the Asso-
ciation granted to the Transfer Company,
for a term of five years from the date of
the contract, the baggage and livery privi-
lege of the Auditorium Hotel, in the city of
Chicago; that is to say, the sole and exclu-
sive right, so far as it was within the legal
capacity of the Association to grant the
same, to transfer baggage and carry pas-
sengers to and from the hotel and to furnish
livery to its guests and patrons. For the
baggage privilege the Transfer Company
agreed to pay to the Association the sum
of $6,000, in monthly instalments of $100
each, and for the livery privilege the siun
of $15,000, in monthly instalments of $250
each, and also agreed to furnish to the hotel
and its guests and patrons prompt and efil-
cient baggage and livery service at reason-
able rates at all times during the continu-
ance of the privileges. It was further
agreed as follows:
"The party of the first part [Chicago
Auditorium Association], however, f'eserves
the right, which is an express condition of
the foregoing grants, to cancel and revoke
either or both of said privileges, by giving
six months' notice in writing of its election
so to do, whenever the service is not, in the
opinion of the party of the first part, satis-
factory, or in the event of any change in
management of said hotel; and in case of
the termination of either or both of said
privileges by exercise of the right and op-
tion reserved by this paragraph, such privi-
lege or privileges shall cease and determine
at the expiration of the six months' notice
aforesaid, and both parties hereto shall in
that case be released from further liability
8^
68(^89
SUPRElktE COURT OF THE UNITED STATES.
Cot. Tdm,
respecting the concession so canceled and
revoked.
"Said rights and concessions shall not be
assignable witliout the express written con-
sent of the party of the first part, nor shall
the assignment of the same, with Huch writ-
ten consent, relieve the party of the second
part [Scott Transfer Company] from lia-
bility on the covenants and agreements of
this instrument."
[587] The contract authorized the Asso-
ciation, in the event of default by the
Transfer Company in the payment of any
instalment of money due, or in the per-
formance of any other covenant, if contin-
ued for thirty days, to terminate the privi-
leges at its option, without releasing the
Transfer Company from liability upon its
covenants. Should either or both of the
privileges be thus terminated before Jan-
uary 31, 191G, the Association was to be
at liberty to sell the privileges, or make a
new or diiTerent contract for the remainder
of the term, but was not to be obliged to
do this, and the Transfer Company, unless
released in writing, was to remain liable for
the entire amount agreed to be paid by it.
Up to the time of the bankruptcy this
contract remained in force, and neither
party had violated any of its covenants.
The trustee in bankruptcy did not elect to
assume its performance, and the Associa-
tion entered into a contract with other par-
ties for the performance of the baggage and
livery service, and obtained therefrom the
sum of $234.69 monthly as compensation
for those privileges. On February 28, 1912,
it exhibited its proof against the bankrupt
ettate, claiming an indebtedness of $6,-
537.94, of which $311.20 had accrued prior
to the bankruptcy proceedings, and the re-
mainder was claimed as unliquidated dam-
ages arising under the contract for alleged
breach thereof on the part of the bankrupt
through the bankruptcy proceedings. Of
this amount $691.86 represented the loss
incurred during the first six months of
bankruptcy. Objections filed by the trustee
were sustained by the referee, except as to
that portion of the claim which had ac-
crued prior to the bankruptcy proceedings.
On review, the district court sustained this
decision. On appeal to the circuit court of
appeals, the order of the district court was
reversed, and the cause remanded with di-
rection to allow $691.86 upon the claim, and
to disallow the remaining portion. 132 C.
C. A. 452, 216 Fed. 308.
[588] An appeal to this court by the
trustee in bankruptcy was allowed, under
§ 26b-2 of the bankruptcy act (of July 1,
1898, ohap. 541, 30 Stat, at L. 544, 553,
Comp. Stat. 1913, §§ 9585, 9609), upon a
certiic&te by a justice of this court that the
314
determination of the questions involved was
essential to a uniform construction of the
act throughout the United States. This is
No. 162. Thereafter a cross appeal by the
Auditorium Association was allowed by one
of the judges of the circuit court of appeals.
This is No. 174.
A motion is made to dismiss the cross
appeal, and this must be granted. In the
absence of the certificate prescribed by
§ 25b-2, the sole authority for an appeal
from a decision of the circuit court of ap-
peals, allowing or rejecting a claim, is
found in § 25b-l : *'Where the amount in
controversy exceeds the sum of two thou-
sand dollars, and the question involved is
one which might have been taken on appeal
or writ of error from the highest court of a
state to the Supreme Court of the United
States." This limits such appeals to cases
where Federal questions are involved, of the
kind described in § 237, Judicial Code (36
Stat, at L. 1156, chap. 231, Comp. Stat.
1913, 9 1214) . The motion to dismiss is re-
sisted upon the ground that the claim of the
Association to damages beyond a period of
six months was denied by the court of ap-
peals as not constituting a provable debt in
bankruptcy, and that a Federal question is
thus necessarily presented, provability de-
pending upon a construction of the bank-
ruptcy act. An examination of the opinion
of that court, however, shows that while it
held that damages for anticipatory breach
of the contract were provable, it held that
the contract itself, because of the option
reserved to the Auditorium Association to
cancel it on six months' notice, was mu-
tually obligatory for that term only, and
hence no damages beyond that period were
allowable. This involved no Federal ques-
tion. Chapman v. Bowen, 207 U. S. 89, 92,
52 L. ed. 116, 117, 28 Sup. Ct. Rep. 32.
But, in view of the general importance
of the question of the amount allowable in
its relation to the questions [580] involved
in the trustee's appeal, we have concluded
that a certiorari should be allowed in lieu
of the cross appeal.
Coming to the merits: It is no longer
open to question in this court that, as a
rule, where a party bound by an executory
contract repudiates his obligations or dis-
ables himself from performing them before
the time for performance, the promisee has
the option to treat the contract as ended,
so far as further performance is concerned^
and maintain an action at once for the dam-
ages occasioned by such anticipatory breach,
llie rule has its exceptions, but none that
now concerns us. Roehm ▼. Horst, 178 U.
S. 1, 18, 10, 44 L. ed. 953, 960, 961, 20
Sup. Ct. Rep. 780. And see O'Neill t. Su-
preme Council, A. L. H. 70 N. J. L. 41 0».
140 17. 8.
IMS.
CENTRAL TRUST CO. v. CBICAGO AUDITORIUM AS80.
412, 67 AU. 403, 1 Ann. Cu. 422.
u DO doubt that the Bame rule taut
plied where ft lunilar repudiation
oblemetit oeeura during perfc
Wbetilier the interrention ot btu
constitutes HUch a breach and givei
a claim provable in the bankruptcy
isgt ii k queition not covered by i
vioui dcciaion of thia court, and upo
the otiier Federal courts ore
flict. It was, however, held in I
St. I^uis :Mnt. L. int. Co. Ill U.
274, 28 L. ed. 423, 428, 4 Sup. (
390, where a lile Iniurance comp
came Inaolvent and transferred it
to another company, that ■ polic]
woa entitled to regard bis contract
minated uid demand whatever dan
luid snitained thereby. And see
Hamilton, 129 U. S. 252, 250, 32 L,
C70, 9 Sup. Ct. Rep. 295. In suppoi
provability of the claim in controvi
port* Pollard, 2 Low. Dec. 411, F
No. 11,252; Re Swift (C. C. A. 1st
C. A. 2S4, 112 Fed. 315, 319, 321; I
(C. C. A. 2d) 54 C. C. A. 60, 116 F
Be Pettingitt {D. C. Moaa.) 137 f
146, 147; Re Nelf (C. C. A. 6th } 21
<N.S.) 3ie. 84 C. C. A. 561. 157
01, ore referred to; and see Penm
Steel Co. V. New York City R. Co. (
2d) 117 C. C. A. 603, 1B8 Fed. 7
744. To the contrary, Re Imperial
Co. (D. C. Mo.) 143 Fed. 670; R<
(O. C. Go.) 171 Fed. 185, s.c. 1
812; [S90] beaidee which a nui
eases arising out of the relation of
and tenant are cited: Re Ella, 98 F
Re Peonewell, SG C. C. A. 671, 119 F
Watson V. Merrill, 69 L.R.A. 719, I
A. 185, 136 Fed. 359; Re Roth, 31
(N.S.) 270, 104 C. C. A. 640, 181 F
Colman Co. v. Withoft, 115 C. C.
I9S Fed. 260. Cases of the Utter c
diatinguiihable because of tbe "i
betweene duties which touch the res
the meere personalty." Co. Litt.
I 613.
The contract with which we have
waa not a contract of personal serv
ply, but was of such a nature as e
to require a considerable amount of
in tbv abape of equipment, etc.,
proper performance by tbe Tranifi
pany. The immediate effect ot boo
waa to atrip the company of its ass
thus disable it from performing,
be conceded that tbe contract waa
able, and passed to the trustee und(
(SO SUt. at L. 666, chap. 641, Com
1913, g 9664), to the extent that it
t^tion to perform it in the place
bankrupt (aee Sparhawk t. Yerkea,
8. 1, IS, 36 L. ed. 015, 918, 12 Sup. Ct. Rep.
«0 L. ed.
104; Sunflower dil Co. t. Wilson, 142 U. 8.
313. 322, 35 L. ed. 1026, 1038, 12 Sup. Ct.
Rep. 235) ; for although there waa a atipu-
lation against aBSignment without consent
of tbe Auditorium Association, it may be
assumed that this did not prevent an as-
signment by operation of law. Still, the
trustee in bankruptcy did not elect to aa-
iume performance, end so the matter is
left as if the law had conferred no such
election.
It ia argued that there can be no antici-
patory breach of a contract except it result
from the voluntary act of one of the par-
ties, and that the filing of an involuntaij
petition in bankruptcy, with adjudication
thereon, is but the act ot the law reaulting
from an adverse proceeding instituted by
creditors. This view . waa taken, with re-
spect to the effect of a state proceeding re-
straining a corporation from tlie further
prosecution of its buiineaa or the Gxvrcisc
of its corporate franchiaes, appointing a re-
ceiver, and [6S1] disaolving the corpora-
tion, in People v. Globe Mut. L. Ins. Co. 91
N. Y. 174, cited with approval in some of
the Federal court decisions above referred
to. In that case, it did not appear that the
company was the responsible cause of the
action of the state, so as to make the dis-
solution its own act; but, irrespective of
this, we cannot accept tlie reasoning. A*
was said in Roehm v. Horst, 178 U, S. 19, 44
L. ed. 960, 20 Sup. Ct. Rep, 780: "The par-
ties to a contract which is wholly executory
have a right to the maintenance of the con-
tractual relations up to tbe time tor per-
formance,, as well aa to a performance of
the contract when due." Commercial cred-
its are, to a large extent, based upon the
reasonable expectation that pending con-
tracta of acknowledged validity will be per-
formed in due course; and the same prin-
ciple that entitles the promisee to continued
willlngneai entitles him to continued ability
on the part of the promiaor. In abort, it
must be deemed an implied term of every
contract that the promisor will not permit
himself, through insolvency or acts of bank-
ruptcy, to be disabled from making per-
formance; and, in this view, bankrupb^
proceedings ore but tbe natural and legal
consequence of something done or omitted
to be done by the bankrupt, in violation
of his engagement. It it the purpose of tha
bankruptcy act, generally speaking, to per-
mit all creditora to ahare in the diitrfbn-
tion of the assets of the bankrupt, and to
leave the honest debtor thereafter free from
liability upon previous obtlgatiooa. Wil-
liams v. United SUtes Fidelity k 0. Co.
236 U. 8. 540, 664, 60 L. ed. 713, 716, S6
Sup. Ot. Rep. 289. Executory •4p%ei&K«te
591^94
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbm»
play 80 important a part In the commercial
world that it would lead to most unfortu-
nate results if, by interpreting the act in
a narrow sense, persons entitled to per-
formance of such agreements on the part
of bankrupts were excluded from partici-
pation in bankrupt estates, while the bank-
rupts themselves, as a necessary corollary,
were left still subject to action for nonper-
formance in the future, although without
the property or credit often necessary to
enable them to perform. [502] We con-
clude that proceedings, whether voluntary
or involuntaJry, resulting in an adjudication
of bankruptcy, are the equivalent of an
anticipatory breach of an executory agree-
ment within the doctrine of Roehm v. Horst,
supra.
The claim for damages by reason of such
a breach is "founded upon a contract, ex-
press or implied," within the meaning of
% 63a-4, and the damages may be liqui-
dated under § 63b. Frederic L. Grant Shoe
Co. V. W. M. Laird Co. 212 U. S. 445, 448,
4» L. ed. 691, 503, 29 Sup. Ct. Rep. 332.
It is true that in Zavelo v. Reeves, 227 U.
8. 625, 631, 57 L. ed. 676, 678, 33 Sup. Ct.
Rep. 365, Ann. Cas. 1914D, 664, we held
that the debts provable under § 63a-4 in-
clude only such as existed at the time of
the filing of the petition. But we agree
with what was said in Ex parte Pollard,
2 Low. Dec. 411, Fed. Cas. No. 11,252, that
it would be "an unnecessary and false
nicety" to hold that because it was the act
of filing the petition that wrought the
breach, therefore there was no breach at
the time of the petition. As was held by
the same learned judge in Re Pettingill,
137 Fed. 143, 147 ; "The test of provability
under the act of 1898 may be stated thus:
If the bankrupt, at the time of bankruptcy,
by disenabling himself from performing the
contract in question, and by repudiating its
obligation, could give the proving creditor
the right to maintain at once a suit in which
damages could be assessed at law or in
equity, then the creditor can prove in bank-
ruptcy on the ground that bankruptcy is
the equivalent of disenablement and repudia-
tion. For the assessment of damages pro-
ceedings may be directed by the court under
I 63b (80 Stat, at L. 563, chap. 541, Comp.
Stat. 1913, § 9647 ) ." It was in effect so ruled
by this court in Lesser v. Gray, 236 U. S.
70, 75, 59 L. ed. 471, 475, 35 Sup. Ct. Rep.
227, where it was said: "If, as both the
bankruptcy and state courts concluded, the
contract was terminated by the involuntary
bankruptcy proceeding, no legal injury re-
sulted. If, on the other hand, that view
of the law was erroneous, then there was a
breach and defendant Gray became liable
for Muy ivtiulting damage; but he was re-
leased therefrom by his [503] discharge."
Of course, he could not be released unless
the debt was provable.
We therefore conclude that the circuit
court of appeals was correct in holding t&at
the intervention of bankruptcy eonstituted
such a breach of the contract in question
as entitled the Auditorium Association to
prove its claim.
The denial of all damages except such as
accrued within six months after the filing
of the petition was based upon the ground
that the contract reserved to the Associa-
tion an option to revoke the privileges by
giving six months' notice in writing of Its
election so to do, in which case both parties
were to be released from further liability
at the expiration of the six months. It
was held that because of this the contract
was mutually obligatory for that term onlj,
and uncertain and without force for any
longer term of service in future, within the
ruling of this court in Dunbar v. Dunbar«
190 U. S. 340, 47 L. ed. 1084, 23 Sup. Ct
Rep. 757. In that case the contract was
to pay to a divorced wife "during her life,
or until she marries, for her maintenanee
and support, yearly, the sum of $500;" and
it was held that for instalments falling
due after bankruptcy the husband remained
liable, notwithstanding his discharge, on
the ground that the wife's claim for such
payments was not provable because of the
impossibility of calculating the oontinuanee
of widowhood so as to base a valuation up-
on it. The court referred to the 1903 amend-
ment of § 17 of the bankruptcy act (32
Stat, at L. 797, chap. 487, Comp. SUt. 191S,
§ 9601 ) , relating to debts not affected by a
discharge, and including among these a lia-
bility for alimony due or to become due
for maintenance or support of wife or child.
This, while enacted after the Dunbar suit
was begun, and not applicable to it, was
cited as showing the legislative trend in
the direction of not discharging an obliga-
tion of the bankrupt for the support of his
wife or children. The authority of that de-
cision cannot be extended to cover [594]
such a case as the present. Here the obliga-
tion of the bankrupt was clear and uncondi-
tional. The right reserved to the Auditori-
um Association to cancel and revoke the
privileges was reserved for its beneflty not
that of the grantee of those privilfges. It
does not lie in the mouth of the latter, or of
its trustee, to say that its service would not
be satisfactory, and there is no presumption
that otherwise it would have been advan-
tageous to the Association to exercise the
option. It results that the decree, in so
far as it limits the provable claim to a
period of six months after the bankrupt^,
must be reversed, and the cause remanded
940 U. 8.
1915.
PINEL V. PINEL.
694
for further proceedings in conformitj with
this opinion.
No. 162. Decree affirmed.
No. 174. Appeal dismissed, certiorari al-
lowed, and decree reversed.
HERMAN H. PINEL and Sarah Slyfield,
Appts.,
T.
THOMAS F. PINEL, Thomas F. Pinel as
Special Administrator of the Estate of
Edgar O. Pinel, Deceased, and Baehael
PineL
(See S. C. Reporter's ed. 694-598.)
Fejderal courts — Jurisdictional amount
^ uniting claims — distinct demands.
1. The amount in controversy essential
to the jurisdiction of a Federal district
eourt is not involved in a suit by two chil-
dren to establish their alleged title to an
undivided interest in their deceased father's
real property, based upon his omission,
through accident or mistake, to provide for
them in his will, where the value of the in-
terest of neither complainant, taken sep-
arately, equals the jurisdictional amount.
[For other cases, see Courts, 908-911, in Di-
test Sup. Ct. 1908.]
Pleading « averring Jurisdictional
amount.
2. The averment in the bill in a suit to
establish title to land that one of the two
complainants is entitled to an imdivided
one-eighth interest, and the other to an im-
divid^ two-eighths interest, making to-
getlier an undivided three-eighths interest
in the property, "which said interests are
of the value of $4,500 and upwards over and
above all encumbrances," is not the legal
equivalent of saying that the interest of
either complainant was of the value of more
than the $3,000 which must be involved in
order to give a Federal district court juris-
diction.
(For other cases, see Pleading, 331-836, In
Digest Sap. Ct. 1908.]
[No. 181.]
Argued January 17, 1916. Decided April 3,
1916.
APPEAL from the District Court of the
United States for the Eastern District
of Michigan to review a decree dismissing,
for want of jurisdiction, the bill in a suit
to establish title to land. Affirmed.
The facts are stated in the opinion.
Mr. XZmll W. Snyder argued the cause,
and, with Mr. Frank E. Robson, filed a brief
for appellants:
The amount in controversy is sufficient to
give the district court jurisdiction.
Kilgore t. Norman, 119 Fed. 1008;
Smithers v. Smith, 204 U. a 642, 61 L. ed.
•0 L. ed.
660, 27 Sup. Ct. Rep. 297; North American
Cold Storage Co. ▼. Chicago, 151 Fed. 120;
Clay ▼. Field, 138 U. S. 464, 479, 34 L. ed.
1044, 1949, 11 Sup. Ct. Rep. 419; Lehigh
Zinc & L Co. ▼. New Jersey Zinc & L Co.
43 Fed. 545; Woodside ▼. Ooeroni, 35
C. C. A. 177, 93 Fed. 1; Greenfield ▼. United
States Mortg. Co. 133 Fed. 788; Lovett v.
Prentice, 44 Fed. 459; Bates ▼. Carpentier,
98 Fed. 452; Shields ▼. Thomas, 17 How.
3-6, 15 L. ed. 93, 94.
The limit of the jurisdictional amount in
this case is not $3,000, but $2,000, for the
reason that the statutory amount at the
time the cause of action arose governs, and
not the amount at the time of bringing the
suit.
Taylor ▼. Midland Valley R. Co. 197 Fed.
323.
It has been held that the fact of a valid
defense to a cause of action, although ap-
parent on the face of the petition, does not
diminish the amoimt that is claimed, nor
determine what is the matter in dispute;
for who can say, in advance, that the de-
fense will be presented by the defendant, or,
if presented, sustained by the court?
Schunk ▼. Moline, M. & S. Co. 147 U. S.
500, 37 L. ed. 255, 13 Sup. Ct. Rep. 416;
Jones V. Rowley, 73 Fed. 286.
It has been several times decided by this
court that a suit cannot properly be dis-
missed by a circuit court when not involv-
ing an amount sufficient to come within its
jurisdiction, unless the facts, when made to
appear on the record, create a legal cer-
tainty of that conclusion. The mere denial
by affidavit does not deprive the court of
jurisdiction.
Put-in-Bay Waterworks, Light & R. Co.
Y. Ryan, 181 U. S. 431, 45 L. ed. 937, 21
iSup. Ct. Rep. 709; Wetmore v. Rymer, 169
U. S. 115, 42 L. ed. 682, 18 Sup. a. Rep.
293.
Mr. Lynn M. Johnston argued the
cause, and, with Mr. I* C. Stanley, filed 'a
brief for appellees:
The record does not show the necessary
jurisdictional amount in dispute.
Walter ▼. Northeastern R. Co. 147 U. S.
370, 37 L. ed. 206, 13 Sup. Ct. Rep. 348;
The Connemara (Sinclair v. Cooper) 103
U. S. 754, 26 L. ed. 322; Clay v. Field, 138
U. S. 479, 34 L. ed. 1049, 11 Sup. Ct. Rep.
419; Bowman ▼. Chicago & N. W. R. Co. 115
U. S. 611, 29 L. ed. 502, 6 Sup. Ct. Rep. 192;
Hilton Y. Dickinson, 108 U. S. 174, 27 L. ed.
691, 2 Sup. Ct. Rep. 424 ; €k>rdon y. Longest,
16 Pet. 97, 10 L. ed. 900; Auer y.
Lombard, 19 C. C. A. 72, 33 U. S.
App. 438, 72 Fed. 209; Peper y. Fordyce,
119 U. S. 469, 30 L. ed. 435, 7 Sup. Ct. Rep.
287; Wetherby y. Stinson, 10 C. C. A. 243,
52 Slf
MS-697
SUPREME COURT OF THE UNITED STATES.
Cor. Temm,
18 U. S. App. 714, 62 Fed. 173; Henderson ▼.
Wadiworth, 115 U. S. 264, 29 L. ed. 877, 6
Sup. Ct. Rep. 140; Gibson v. Shufeldt, 122
U. S. 30, 30 L. ed. 1084, 7 Sup. Ct. Rep.
1066; Bowman v. Bowman, 30 Fed. 849;
Rich V. Bray, 2 L.RJ^. 225, 37 Fed. 273;
King V. Wilson, 1 Dill. 556, Fed. Cas.
No. 7,810; Massa v. Cutting, 30 Fed. 1;
Woodman v. Latimer, 2 Fed. 842; Seaver v.
Bigelow, 5 Wall. 208, 18 L. ed. 595; Terry
V. Hatch (Terry v. Bank of Commerce) 93
U. S. 44, 23 L. ed. 796; Chatfield y. Boyle,
105 U. S. 231-234, 26 L. ed. 944, 945; Bland
▼. Fleeman, 29 Fed. 669; Busey ▼. Smith, 67
Fed. 15; Walter v. Northeastern R. Co. 147
U. S. 370, 37 L. ed. 206, 13 Sup. Ct. Rep.
348; McDaniel v. Tray lor, 196 U. S. 415, 49
L. ed. 533, 25 Sup. Ct. Rep. 369.
The ipatter in dispute is determined by
the whole record.
Bowman ▼. Chicago ft N. W. R. Co. 115 U.
8. 611, 29 L. ed. 502, 6 Sup. Ct. Rep. 192;
Hilton V. Dickinson, 108 U. S. 174, 27 L. ed.
691, 2 Sup. Ct. Rep. 424; Gordon v. Longest,
16 Pet. 97, 10 L. ed. 900; Lehigh Min. &
Mfg. Co. V. Kelly, 160 U. S. 327, 40 L. ed.
444, 16 Sup. Ct. Rep. 307; Bowman v. Bow-
man, 30 Fed. 849.
Mr. Justice Pitney delivered the opin-
ion of the court:
This is a direct appeal under § 238, Judi-
cial Code (36 Stat, at L. 1157, chap. 231,
Comp. Stat. 1913, | 1215), from an order
dismissing a bill of complaint for want of
Jurisdiction. There are two complainants,
and the jurisdictional questions certified
are, ( 1 ) whether the amount in controversy
ii aufflcient to give the court jurisdiction,
and (2) whether the parties are oollusive-
ly joined.
It is averred in the bill that complainants
and defendants are the children of one
Charles T. Pinel, a resident of the state of
Michigan, who died June 26, 1888, possessed
in fee simple of a tract of land situate in
that state, and leaving a last will and testa-
ment which was afterwards duly admitted
to probate there, by which he left his en-
tire estate to the defendants, failing to
provide for complainants, who are two of
his children, and for another child, Charles
W. Pinel; that their. omission from the will
was not intentional on the part of the
•aid Charles T. Pinel, but was made by a
mistake or accident; that the laws of the
state of Michigan (Comp. Laws 1897, |
9286) [506] provide that when any testator
■hall omit to provide in his will for any of
hit children, and it shall appear that such
omission was not intentional and was made
by mistake or accident, such child shall
haTS the same share in the estate of the
tettMtor as if he had died intestate; that
S10
by virtue of the statute complainants and
the said Charles W. Pinel were severally
entitled to the same shares in the estate of
Charles T. Pinel, deceased, as if he had died
intestate; that testator left a widow and
nine children, one of whom is since dect^ased;
that after testator's death Charles W. Pinel
conveyed all his interest in the estate to
the complainant Sarah Slyfield; and that»
by reason of the premises, "complainant
Herman Pinel is entitled to an undivided
one-eighth interest, and complainant Sarah
SlyfieJd to an undivided two-eighths interest,
or in all both complainants together to an
undivided three-eighths interest in the afore-
said property, which said interests are of
the value of $4,50U and upwards over and
above all encumbrances." The prayer is,
in effect, that the title of complainants to
an undivided three-eighths interest in the
land may be established.
The settled rule is that when two or more
plaintiffs having separate and distinct de-
mands unite in a single suit, it is essential
that the demand of each be of the requisite
jurisdictional amount; but when several
plaintiffs unite to enforce a single title or
right in which they have a common and
undivided interest, it is enough if their in-
terests collectively equal the jurisdictional
amount. Clay v. Field, 138 U. S. 464, 479,
34 L. ed. 1044, 1049, 11 Sup. Ct. Rep. 419;
Troy Bank v. Q. A. Whitehead k Co. 222
U. S. 39, 56 L. ed. 81, 32 Sup. Ct. Rep.
9. This case comes within the former class,
since the title of each complainant is sepa-
rate and distinct from that of the other; it
being evident that the testator's omission to
provide for one of his children by will, based
upon mistake or accident, is independent
of the question whether a like mistake was
made with respect to another child.
[507] The action having been brought in
the district court under the first paragraph
of I 24, Judicial Code (act of March 3, 1011,
chap. 231, 36 Stat, at L. 1087, 1091, Comp.
Stat. 1913, S 991), on the ground of diver-
sity of citizenship, it is necessary that the
matter in controversy exceed the sum or
value of $3,000, and that this shall appear
by distinct averment upon the face of the
bill, or otherwise from the proofs. The
averment that complainant Pinel is entitled
to an undivided one-eighth interest, and
complainant Slyfield to an undivided two-
eighths interest, making together an undi-
vided three-eighths interest in the property
in question, "which said interests are of
the value of $4,500 and upwards over and
above all encumbrances," is not the legal
equivalent of paying that the interest of
either complainant is of the value of more
than $3,000. It is not neoessarily to be
inferred that the value of an nndividsd tvo-
940 U. 8.
1916.
UTERHART v. UNITED STAISS.
597-698
eighths if two-thirds of the value of an un-
divided three-eightht. The probable cost
and difficulty of partition, and other like
eonaiderations, prevent the application of
a mere rule of proportion. Affidavits were
submitted pro and con upon the motion to
dismiss, but th^ do not help matters. Cknn-
plainants submitted five affidavits, all in a
stereotyped form and based on information
and belief, stating that the value of the
farm as a whole is $16,000 and upwards,
but saying nothing about encumbrances,
nor stating distinoUy the value of an im-
divided one-eighth or two-eighths interest.
Defendants submitted four affidavits valu-
ing the farm at not more than $9,000 if
free and clear of encumbrances, but showing
it encumbered to an amount upwards of
$3,600. Were we to accept the highest valu-
ation stated by anybody ($16,000) and de-
duct from it the amount of undisputed
encumbrances, we should have a net valua-
tion less than $11,600. Assuming undivid-
ed shares to be of proportionate value, a
two-eighths interest would be worth less
than $3,000.
Upon the whole, it does not satisfactorily
appear that [598] the interest claimed by
either complainant is sufficient in value to
confer jurisdiction, and hence the bill was
properly dismissed. It is obvious that, in the
view we take of the case, the question of
collusive joinder becomes immaterial.
Decree affirmed.
HENKY A. UTERHART and Emil Heuel,
as Trustees under the Last Will and Tes-
tament of. Conrad Stein, Deceased, Appts.,
V.
UNITED STATES.
(See S. 0. Reporter's ed. 698-606.)
FMeiml anooesrton tax — vested or con-
tingent Interest — refunding*
The interests which the residuary
legatees took by a will by which, as con-
strued by a state court of competent juris-
diction, the testator directed that the whole
of his residuary estate should, "so far as
necessary," be applied to the support and
Note. — On repeal of statute imposing
succession tax as affecting estate of one
who died before the repealing act took effect
— see note to Trippet v. State, 8 LJtJL
(N.8.) 1210.
As to taxes on succession and collateral
inheritance, generally — see notes to Re
Howe, 2 L.RJL 826; Wallace v. Myers, 4
LJtJk. 171; Com. v. Ferguson, 10 LJLA.
240; Re Romaine, 12 L.RJL 401; Hagoun v.
Illinois Trust k Sav. Bank, 42 L. ed. U. 8.
1037, and State ex reL Ise v. Cline, 60
LJLA.(N.S.) 9^1.
•0 li. ed.
education of his four minor children during
their minorities, if the youngest child sur-
vived that period, and that the trustees
should pay '*so much" of the rents and in-
come for that purpose "as riiall be reason-
able and proper," and bequeathed the resi-
due, upon the youngest child attaining
maiority or sooner dying, to seven named
children in equal ^shares, empowering the
trustees to pay over by way of advance to
the seven in equal amounts or shares "so
much of the capital of the testator's resid-
ual^ personal estate or the income thereof
as in their judgment they may deem rea-
sonable," and providing that they should
not be compelled to make distribution of
the principal of the estate or any part
thereof "except in the exercise of tiieir rea-
sonable discretion" until the said youngest
child attained his majority, — ^were con-
tingent, and not vested 4>rior to Julv 1,
1902, within the meaning of the provision
of the act of June 27, 1002 (32 Stat at L.
406, chap. 1160), | 3, for the refunding of
succession taxes collected on contingent
beneficial interests not so vested, where said
ypnngest child had not attained the age of
twenty-one years on that day— except with
respect to such amounts as were actually
advanced out of the trust funds by the trus-
tees in. the exercise of their discretion,
prior to that date.
[For other cases, see Internal Bevenne, III. h»
in Digest Sup. Ct 1908.]
[No. 214.]
Argued January 24, 1916. Decided April
3, 1916.
APPEAL from the Court of Claims to re-
view a judgment dismissing a petition
for the refund of Federal succession taxes.
Reversed and remanded, with direction to
enter judgment in favor of claimants.
See same case below, 49 Ct CI. 709.
The facts are stated in the opinion.
Mr. H. T. Newcomb argued the cause»
and, with Mr. Morris F. Frey, filed a brief
for appellants:
The judiciaf construction of the will binds
the government; in denying this the govern-
ment is making a collateral atta^ upon the
judgment of a court of competent jurisdic-
tion, this attack being supported by noth-
ing except suggestions of error.
Orr V. Oilman, 183 U. S. 278, 288, 46 L. ed.
196, 202, 22 Sup. Ct. Rep. 213; Chanler v.
Kelsey, 206 U. S. 466, 477, 61 L. ed.. 882,
888, 27 Sup. Ct. Rep. 660; Ingersoll v.
Coram, 211 U. 8. 336, 63 L. ed. 208, 29 Supw
Ct Rep. 92; Cooper v. Reynolds, 10 WalL
308, 19 L. ed. 931; Comett v. Williams, 87
U. S. 226, 22 L. ed. 264; Laing v. Rign^,
160 U. S. 631, 642, 40 L. ed. 626, 628, 16
I Sup. Ct. Rep. 366; Manson v. Duncanson,
166 U. S. 633, 646, 647, 41 L. ed. 1106, 1109,
' 1110, 17 Sup. Ct Rap. 647.
819
001 SUPREME COURT OF THE UNITED STATES. Ocr. l^EUC,
The universal test of the right of the vised Rep. 277, Re Williams [1007] 1 Ch.
government to have any tax assessed was 180, 76 L. J. Ch. N. S. 41, 06 L. T. N. S.
that, with respect to personal property pass- 760; Re Gossling [1003] 1 Ch. 448, 72 L. J.
ing by will or by intestate succession, from Ch. N. S. 433, 88 L. T. N. S. 270; Roper,
one dying on or after June 13, 1808, there Legacies, 2d Am. ed. p. 653; Jarman, Wills,
should be a right of succession which, prior 6th ed. p. 740; Bigelow, Bills, Notes ft
to July 1, 1002, should ripen into an abso- Cheques, pp. 704, 706 ; Theobald, Wills, Cana-
lute right of immediate possession or enjoy- dian ed. pp. 582, 588; Cropley v. Cooper, 10
ment. Wall. 167, 22 L. ed. 100 ; Potter ▼. Couch, 141
Vanderbilt v. Eidman, 106 U. S. 480, 40 U. S. 206, 313, 314, 36 L. ed. 721, 731, 11
L. ed. 563, 25 Sup. Ct. Rep. 331; United Sup. Ct. Rep. 1006; Johnson v. Washington
States v. Fidelity Trust Co. 222 U. S. 158, Loan & T. Co. 224 U. S. 224, 237, 238, 56
66 L. ed. 137, 32 Sup. Ct. Rep. 60; United L. ed. 741, 745, 746, 32 Sup. Ct. Rep. 421;
States V. Jones, 236 U. S. 106, 60 L. ed. 488, Shelton v. King, 220 U. S. 00, 03« 04, 57
35 Sup. Ct. Rep. 261, Ann. Cas. 1016A, 316; L. ed. 1086, 1087, 1088, 33 Sup. Ct. Rep.
McCoach v. Pratt, 236 U. S. 562, 60 L. ed. 686; Sanford v. Lackland, 2 Dill. 6, Fed.
720, 35 Sup. Ct. Rep. 421; Hertz ▼. Wood- Cas. No. 12,312; Traver v. Schell, 20 N. Y.
man, 218 U. S. 205, 210, 54 L. ed. 1001, 1007, 01; Lovett v. Gillender, 35 N. Y. 617;
30 Sup. Ct. Rep. 621. Manice v. Manice, 43 N. Y. 303; Warner v.
The rule that such discretionary power as Durant, 76 N. Y. 133; Smith v. Edwards, 88
that which Conrad Stein gave to his trus- N. Y. 02; Goebel v. Wolf, 113 N. Y. 405, 10
tees is not to be taken away or controlled, Am. St. Rep. 464, 21 N. E. 388; Burrill v.
while exercised in good faith, is firmly Shell, 2 Barb. 457; Re Cogswell, 4 Dem.
established. So, also, is the rule that leg^- 248.
tees, whose interests are subject to such A bequest in the form of a direction to
discretionary power, take nothing save pay at a future period vests in interest
when it is exercised and to the extent that immediately, if the payment be postponed
it is exercised. for the convenience of the estate or to let
2 Sugden, Powers, p. 161, 3d Am. ed; 2 in some other interest. In all such cases
Perry, Trusts, § 508, p. 817 ; 1 Jarman, Wills, it is presumed that the testator postponed
6th Am. ed. p. 308; Hill, Trustees, 4th Am. the time of enjoyment by the ultimate
ed. 767; Keyser ▼. Mitchell, 67 Pa. 473; legatee for the purpose of the prior devise
Buchar's Estate, 225 Pa. 427, 25 L.RA. or bequest.
(N. S.) 421, 74 Atl. 237; Lyman v. Parsons, Johnson v. Washington Loan k T. Co.
26 Conn. 403; Dandridge v. Washington, 2 224 U. S. 224, 56 L. ed. 741, 32 Sup. a.
Pet. 370, 7 L. ed. 454; Nichols v. Eaton, 01 Rep. 421; McArthur v. Scott, 113 U. S. 340,
U. S. 716, 23 L. ed. 254. 378, 380, 28 L. ed. 1016, 1026, 1027, 6 Sup.
The tax could lawfully have been collected Ct. Rep. 652; Cropley v. Cooper, 10 Wall
upon amounts awarded to these legatees, in 167, 22 L. ed. 100.
the exercise of the discretionary power pro- Unless some impossible standard of phy-
▼ided for in the will, only. sical control of personal property is to be
Ryle V. United States, 230 U. S. 658, ante, adopted, the interest of these legatees in
480, 36 Sup. Ct. Rep. 221 ; Muenter v. Union the whole residuary esUte must be con-
Trust Co. 115 C. C. A. 300, 106 Fed. 480; sidered to have vested in possession prior
Hanson, Death Duties, 6th ed. p. 36; Atty. to July 1, 1002. The case is really governed
Gen. ▼. Wade [1010] 1 K. B. 703, 70 L. J. by United Stetes v. Fidelity Trust Qo. 222
K. B. 560, 102 L. T. N. S. 404. U. S. 158, 56 L. ed. 137, 32 Sup. Ct. Rep. 60.
Assistant Attorney General Wallace ar- ,, ^ «.• •»«*-. j i: ^ au^ -.*!«
_ , ., / ... ,, T»7'ii' nt Mr. Justice Pitney delivered the opm-
gued the cause, and, with Mr. William C. j^^ ^^ ^^ ^^^^^, ' ^
Herron filed a brief for defendant in error: ^his was a suit to recover succesaion
The New York decree either (a) gave the ^^^ .^ ^ appellanto under the act of
residuary esUte absolutely to the diildren j^^^ ^g ^g^g ^^^ ^^g 3^ g^^^ ^^ j^ ^^^
by name, share and share alike postponing ^^ ^ gUt. 1013, § 6144), on account
payment merely until Carl died or reached ^^ interests in personal property passing to
majority; or (b) gave the residuary estate ^^ residuary legatees under the will of
absolutely to the children, share and share Conrad Stein, deceased. It was brought
alike, when Carl died or attained majority, ^^^^ ^jj^ j^^ ^f j^^e 27, 1002 (chap. 1160,
meantime giving each child the income of § 3, 32 SUt. at L. 406), which provides for
his or her proportionate share. refunding "so much of said tax as may have
In either case the authorities, without been collected on contingent beneflcial in-
dissent, so far as we are aware, hold the terests which shall not have become vested
interest vested. 1 prior to July first, nineteen hundred and
Embsod v. GrtLbam, 6 Ves. Jr. 230, 5 Re- * two." The testator was domiciled in the
SS0 %M V. S.
1015.
UTERHART v. UNITED STATES.
601-604
state of New York, and the will was pro-
bated and appellants were appointed exec-
utors and trustees in that jurisdiction.
The residuary legatees were seven of the
nine children of testator, and at the time
of his death on April 6, 1900, several of
them were minors. All of the seven were
living on July I, 1002. The youngest, Carl
Stein, had not attained the age of twenty-
one years on that date. The residuary es-
tate amounted to more than $1,000,000, and
the taxes collected with respect to it aggre-
gated $17,130.82, being based upon the
theory that each of these legatees took a
vested seventh interest at the death of the
testator. If the taxes had been assessed on
the advances actually made by appellants
as executors and trustees for the benefit of
the residuary legatees prior to July 1,
1002, they would have amounted to only
$746.12.
One of the clauses of the will contained
words bequeathing the residuary estate
outright to the seven children in equal
shares; but this was qualified by inconsist-
ent language in other clauses, and some time
prior to January 16, 1002, [602] one of t^e
executors brought suit in the supreme court
of the state of New York against his co-
executors and the beneficiaries for a judi-
cial construction of the will, and a decree
was made on the date mentioned, of which
the pertinent clauses are set forth in the
margin.l [603] Testator's personalty
passed under the will, and the executors and
trustees proceeded imder and complied
strictly with the directions contained in it,
as interpreted and construed by the decree.
The court of claims held (40 Ct. CI. 700)
that the interest bequeathed by the will to
the residuary legatees was a vested estate,
and not a contingent beneficial interest,
citing Vanderbilt v. Eidman, 106 U. S. 480,
40 L. ed. 563, 25 Sup. Ct. Rep. 331, and
United States ▼. Fidelity Trust Co. 222 U.
S. 158, 56 L. ed. 137, 32 Sup. Ct Rep. 50.
It is very properly admitted by the gov-
ernment that the New York decree is in
this proceeding binding with respect to the
meaning and effect of the will. The right
to succeed to the property of the decedent
depends upon and is regulated by state law
(Knowlton v. Moore, 178 U. S. 41, 57, 44
L. ed. 060, 076, 20 Sup. Ct. Rep. 747), and
it is obvious that a judicial constructum
of the will by a state court of competent
jurisdiction determines not only legally but
practically the extent and character of the
interests taken by the legatees.
It is, however, contended that the wilU
as thus construed, either gave the residuary
estate absolutely to the children by name»
share and share alike, postponing payment
[604] merely until Carl died or reached
majority, or that it gave the estate
to them absolutely when Carl died or
attained majority, meanwhile giving to
each child the income of his or her
proportionate share. With this view
we cannot concur. The decree declares
the true construction to be "that the whole
of his residuary estate, real and personal,
should, 80 far as neceeaary, be applied to
the support and education of his min6r
children, Josephine Stein, Paula Stein, Ella
Stein, and Carl Stein, during the minorities
if Carl Stein survive such period." Then
follows a clause to the effect that the trus-
tees should apply the income to the support
and education of the minor children until
they respectively attain the age of twenty-
one years, if Carl survive such period,
and that on his attaining the age of twenty-
one or sooner dying the testator gave, de-
vised, and bequeathed the residue to the
seven named (including Carl) in equal
shares. A subsequent clause directs the
executors and trustees "to apply eo mueh
1 ''It is further ordered, adjudged, and de-
creed: That it was the intention of the
said Conrad Stein, and such is the true
meaning and construction of his will, that
the whole of his residuary estate, real and
personal, should, so far as necessary, be ap-
plied to the support and education of his
minor children, Josephine Stein, Paula
Stein, Ella Stein and Carl Stein during the
minorities if Carl Stein survive such period.
To that end he gave, devised, and be-
queathed to Emil Heuel and Alexander
Stein, his executors and trustees, and to
Josephine Stein, his executrix and trustee,
all his residuary estate, both real and per-
sonal, upon trust to receive the rents, is-
sues, and profits and income thereof until
his son Carl Stein attains the age of twenty-
one years, and to apply the same to the
support and education of the testator's said
minor children, Josephine Stein, Paula
Stein, Ella Stein, and Carl Stein, until they
•0 li. ed.
respectively attain the age of twenty-one
years, if Carl Stein survive such period,
aud on Carl Stein attaining, the age of
twenty-one years, or sooner dying, the said
testator gave, devised, and bequeathed the
said residuary estate, both real and per-
sonal, to his children Charlotte Trueben-
bach, Wilhelmina Schneider, Elizabeth
Heuel, Josephine Stein, Paula Stein, Ella
Stein, and Carl Stein in equal shares and
parts.
"The said executors and executrix and
trustees are empowered by the said will to
let and lease the said residuary real estate-
and to make such repairs and improvements
upon said residuary real estate as in their
judgment may be necessary. After the pay-
ment of taxes and other expenses of the
administration of the estate, they are to
apply so much of the rents of the real es-
tate, and of the income of the personal es-
tate, as shall be reasonable and proper, to
604,606
SUPREME CX)URT OP THE UNITED STATES.
Oct. Tkbm,
of the rents of the real estate, and of the
income of the personal estate m thall he
reoaonabU and proper, to the support and
education of the testator's said minor chil-
dren during their respective minorities as
aforesaid." They are empowered, during
the minority of the minor children, "to pay
over by way of udvance" to the seven, "in
equal amounts or shares, §o much of the
capital of the testator's residuary personal
estate, or the income thereof, a§ im their
judgment they may deem reaeomable so to
pay over." And, finally, "the said executors
and executrix and trustees shall not be com-
pelled to make distribution of the principal
of the estate or any part thereof, exoept in
the exerciee of their reasonable dieoretionp
until the said Carl Stein attains the age of
twenty-one years."
It will be observed not only that the trust
continued until the youngest child reached
the age of twenty-one, but that no one of
the seven was entitled in the meantime to
receive anything of either principal or in-
come except [605] on the affirmative exer-
cise of a discretion conferred upon the exec-
utors and trustees.
This having been authoritatively decided
to be the true effect and meaning of the will,
we are of opinion that the interests to which
the residuary legatees succeeded were con-
tingent, and not vested prior to July 1,
1002, within the meaning of the refunding
act as construed in previous decisions of
this court upon the subject (Vanderbilt v.
Eidman, 196 U. S. 480, 600, 40 L. ed. 563,
570, 25 Sup. Ct. Rep. 331; United SUtes
Y. Jones, 236 U. S. 106, 111, 50 L. ed. 488,
400, 35 Sup. Ct. Rep. 261; McCoach v.
Pratt, 236 U. S. 562, 50 L. ed. 720, 35 Sup.
Ct. Rep. 421), except with respect to such
amounts as were actually paid out of the
trust fund by the trustees prior to that
date, in the exercise of their discretion;
the proper tax upon which, according to
the findings, would have been $745.12.
The judgment will be reversed, and the
cause remanded, with direction to enter
judgment in favor of appellants for the
tax collected in excess of that amount upon
the interests of the residuary legatees.
Judgment reversed.
Mr. Justice McReynolds took no part
in the consideration or decision of this case.
UNITED STATES OF AMERICA, Plff. in
Err.,
V.
UNION MANUFACTURING COMPANY
and J. T. Prince.
(See & C. Reporter's ed. 605-611.)
Federal courts « proper district for
suit « criminal prosecutions « false
representations by consignee.
1. This offense of fraudulently mis-
representing the weight of certain inter-
state shipments of lumber for the pur
pose of obtaining or attempting to obtain
the transportation of the property at less
than the established rates, which is con-
demned by the act of February 4, 1887 (24
Stat, at L. 370, chap. 104), § 10, as amend-
ed by the act of June 18, 1010 (36 Stat,
at L. 540, chap. 300, Comp. Stat. 1013,
§ 8574), may, when committed by the con-
signee, be prosecuted in the Federal dis-
trict in which the place of destination is
situated as having been "wholly or in part
committed" .in that district, within the
meaning of that section; and the fact that
the consignee was also the consignor is of
no significance.
[For other cases, see Courts, 070-007, In Di-
gest Sup. Ct. 1008.]
NoTB. — On proper Federal district for
suit — see note to Roberts v. Lewis, 36 L. ed.
U. S. 570.
the support and education of the testator's
said minor children during their respective
minorities as aforesaid. Ihe rents of the
real estate are to be applied first to the
uses aforesaid, and after makins such ap-
plication the said executors and executrix
and trustees are, from time to time, when-
ever tliey shall judge proper, to divide any
surplus rents smong the said testator's said
children, Charlotte Truebenbach, Wilhelmina
Schneider, EllKaheth Heuel, Josephine Stein,
Paula Stein, Ella Stein, and Carl Stein in
equal proportions, the shares of any minor
child to he paid to the guardian of that
child's estate.
"The said executors and executrix and
trustees are further empowered from time
to time during the' minor itv of the said
minor children to pay over by wav of ad-
vance to the said Charlotte, Wilhelmina,
Elizabeth, Josephine, Paula, Ella, and Carl,
In equal amounts or shares, so much of the
•92
capital of the testator's residuary personal
estate, or the income thereof, as in their
judgment they may deem reasonable so to
pa^ over, the shares going to any minor
children to be paid to the guardian of that
child's estate.
"It is further oi^ered, adjudged, and de-
creed: That the skid executors and execu-
trix are authorized and empowered, after
Carl Stein shall have attained the age of
twenty-one years, to sell and convey from
time to time all or any part of the trata-
tor's residuary real estate.
"And it is further adjudged and decreed:
That the said executors and executrix and
trustees shall not be compelled to make dis-
tribution of the principal of the estate or
any part thereof, except in the exercise of
their reasonable discretion, until the said
Carl Stein attains the age of twenty-one
years,"
940 V. 8.
1915.
UNITED STATES v. UNION MFG. CX).
006-908
[No. 628.]
Otfkrlers — obtaining transporUtion at circuit court of appeals for the sixth circuit
less than established rates — fraudu- in Davis ▼. United States, 43 C. C. A. 448»
lent misrepresentation by consignee. jo4 Fed. 136, requires the prosecution to
2. A consignee is none the less guilty ^j^^ ^^^ ^ ^Yie district where the. goods
iS;rte'?r4tS"i^1^.thrS! t - ""ed b, th. -.ipper. «., «., aelWery
Ublished rates, contrary to the prohibition '^ transportation Ukes place, which in
of the act of February 4, 1887 (24 Stat, at this instance was not in the southern dis-
I* 379, chap. 104), g 10, as amended by trict of Florida, but in Georgia,
the act of June 18, 1910 (36 Stat, at L. The indictment contains ten counts, charg-
649, chap. 309, Comp. SUt. 1913, § 8574), . ^ ^ diflferent oflfenses. 1 hey are
where he fraudulently understates the ,?. . . ' , _ « *i. ii *
weight of the shipment, with the effect ^'^^ "^ ^«'™' ^^ » summary of the first
of influencing the adjustment of the freight, will suffice. It recites that the South
because the transportation had been com- Georgia Railway Company was a C9mmon
Kleted and the shipment delivered to him carrier by rail, engaged in the interstate
frfore the fraudulent representations were transportation of yellow pine lumber for
■**de. „ ^ . . ^. hire from Baden, in the state of Georgia, to
**!?e'.r8Sp.'cri9"u sSroj"* ^ • Greenville, in the K>uthen> dietrict of Flor-
ida, and had filed and published schedules
and tariffs showing the rate and charge for
transportation of such lumber under 6
inches in thickness in carload lots between
Argued February 28, 1916. Decided April t^oae pointo to be $7 for each carload lot
S, l^"^^' of the weight of 24,000 pounds, excess in
1*^ «^^^« A ^^ *>. A 1 X /^ X * xt. proportion; that the schedules and tariffs
^r.^^^?- ** *?* ?'•*;''*.?'""* »'*?'! further provided th.t when the actual
United States for the Southern Dwtrict ^^j ^^ ,, , shipment was not aacertained
of Florida to review a judgment sustaining ,j j^j ^f shipment or at destination or
a demurrer to an indictment charging the j^ ^^^^i^ t,,, j,,igtt ^1,,,^^, ^„u,j be
eonaignee of an interstate shipment with ^aged upon an estimated weight of 6,000
fraudulently mureprescnting the weight in ^^^s for each 1.000 feet; that the Union
order to secure the transportation at less Manufacturing Company was and U a
fhan the carrier's established rates. Revers- corporation engaged in shipping said prop-
ed and remanded for further proceedings. „^y f,^^ B^^ ^ Greenville, and J. T.
Ihe facta are stated u the opinion. p^^ ^„ jj, ,g,„t^ jgogj having general
Mr. O. Carroll Todd, Assistant to the charge and control of the sUpmento and the
Attorney General, argued the cause and filed payment of freight charges therefor; that on
a brief for plaintiff in error. a data specified, and while said scliedules
-.1 nr ^ .. .. J Ai. uid tariffs were in effect, said railway com-
? «i Y' u' w*"?? Y^- "^"^ Pa»y transported from Baden to Greenville
and filed a brief for defendants in error. J-^^ ^^^ manufacturing company a specified
■»# -r ... «.^ J 1- J XI. . . carload of yellow pine lumber under 6
Mr. Justice Pitney delivered the opinion .„^^ j^ thickness, and delivered it at
J:?f ^^^^' , ^, . . 1 Greenville to the manufacturing company;
This IS a writ of error under the criminal ^^ ^^ ^^^^^^j ^.^^ ^, said carload lot
appeals act of March 2, 1907 (chap. 2564, ^^^ not. ascertained at Baden, or at Green-
34 Stat at I. 1246, Comp Stat 1913, § ^.^j ^^ ^ .^^^.^ ^^^ ^^ manufacturing
m4), to review a judgment of the district ^^^^ thereafter unloaded the lumbe?
court for the southern district of Flor- f^om the car and ascertained the number of
Ida, sustaining a demurrer to an in- ^^^ ^j^^^^, ^^^ ^^^^ ^1^^ ^^j^ company,
dictment for fraudulently misrepresenting ^^ p^^^ ^^^. „ j^ ^^ ^^U ,^„^^.
the weights of certain shipments of lumber, ^^ ^^ „„^ber of feet to be 9,074, then
in violation of the third paragraph of § ^^^ ^^^^6 falsely and fraudulently repre-
10 of the act to regulate commerce, as gented to the railway company that the
amended June 18, 1910 (cliap. 309, 36 Stat, number of feet was 7,200, la consequence
at L. 649, Comp. Stat. 1913, § 8574).! Ihe of which tlie railway company eiiarged and
demurrer [607] was sustained upon the the Union Lumber Company paid for the
ground that the statute, as construed by the transportation of said lumber less than the
1 "Any person, corporation, or company,
or any agent or officer thereof, who shall
deliver property for transportation to any
common carrier subject to the provisions
o( this act, or for whom, as consignor or
consignee, any such carrier shall transport
property, who shall knowingly and wilfully,
40 li. ed.
wKrectly or indirectly, himself or by em-
ploj^ee, agent, officer, or otherwise, bv false
billing, false classification, false weighing,
false representation of the contents of the
package or the substance of the property,
false report of weight, false statementy or
by any other device or meani« wti«tL«& "wNNXl
008-610
SUPREME COURT OF THE UNITED STATES.
Oct. Tebii.
lawful charge provided in the schedules and
tariffs, and at a less rate than the lawfully
established rate.
In our opinion, the court below misap-
plied the decision in Davis v. United States,
supra. In that case, which arose under the
act as it stood before the amendment of
1010 (25 Stat at L. 855, chap. 382, 1 Rev.
Stat. Supp. 687, Comp. Stat. 1013, § 8560),
the circumstances were very different from
those now presented. The acts charged were
misrepresentations by false billing and
classification of certain property delivered
by defendants to the railway company at
Cincinnati, Ohio, for transportation thence
to Dallas, Texas. The contract of carriage
was made at Cincinnati, where defendants
resided and carried on business, and the
bill of exceptions showed that everything
connected with the shipment of the goods
except the carriage and delivery took place
in Cincinnati. The (tourt said (p. 130) : ''We
think that false billing or other misrepre-
sentation of the goods, as stated in the act,
which [609] results in their being received
by the carrier under a contract of carriage
thus fraudulently obtained, is the obtaining
of transportation within the meaning of the
statute. Then the fraudulent conduct of
the shipper has borne its fruit, and every
act and intent which constitutes the offense
is complete.*' It was accordingly held that
the offense was indictable in the southern
district of Ohio, and not in the northern
district of Texas, within which was the des-
tination of the goods. We are not called
upon to either concede or question the pro-
priety of this decision upon the facts that
were there presented. General expressions
contained in the opinion are, of course, to
be interpreted in the light of those facts.
Another case of the' same kind is Re Bel-
knap, 06 Fed. 614. These cases are not in
point with the present. In each of them
the fraud was that of the consignor. Here
it is the consignee and its agent against
whom fraud is charged. (The fact that the
consignee was also the consignor is of no
significance, since the fraud alleged was
in what it did as consignee.) There the
fraud inhered in the making of the contract
of affreightment; here it had to do with the
liquidation of the amount payable for
freight at destination.
The act, by its very terms, applies to
consignees as well as to consignors. But
as it applies only to interstate transporta-
tion, the consignee is normally a resident
of a different state, and therefore of a dif-
ferent district, from that where the goods
are billed by the shipper and the delivery
for transportation takes place. To say»
therefore, that the act contemplates an in-
dictment only in the district where the
goods are billed by the shipper is in effect
to say that in most cases the consignee
either may not be indicted at all, or else
must be indicted in a district of which he
is not a resident, and which in many in-
stances he may never have visited. We hold
that the offenses charged ift this indictment
were "wholly or in [610] part committed**
in the southern district of Florida. See
United States v. Freeman, 230 U. 8. 117,
ante, 172, 36 Sup. Ct. Rep. 32.
It is insisted in behalf of defendants in
error that since the indictment shows that
the transportation had been completed and
the lumber delivered to the consignee be-
fore the alleged fraudulent representations
were made, it cannot be said that the fraud
charged amounted to cither obtaining or at-
tempting to obtain transportation for the
property at less than the established rates.
If the statute on which the indictment is
based were analogous to the familiar acta
rendering criminal the obtaining of money
or other property by false pretenses, the
argument would be cogent. Under such
statutes, it is commonly if not universally
held to be essential to criminality that the
false pretense shall precede the obtaining
of the property. People v. Haynes, 14 Wend.
546, 563, 564, 28 Am. Dec. 530, reversing
n Wend. 557; State v. Church, 43 Conn.
471, 470; State v. Moore, 111 N. C. 667,.
674, 16 S. £. 384; State v. Willard, 10»
Mo. 242, 247, 10 S. W. 180; Watson v.
People, 27 111. App. 403, 406.
The statutory provision with which we
are dealing has a very different purpose.
It is not designed especially to protect the
property rights of the carrier, for the of-
fense is made equally punishable whether
committed with or without the consent or
connivance of the carrier. It originated in
the 1880 amendment to the act to regulate
commerce (chap. .382, 25 Stat, at L. 855,.
858, 1 Rev. Stat. Supp. 684, 687, Comp. Stat
1013, §§ 8560, 8576), and is but one of
many provisions enacted by Congress with
the object of preventing discriminations and
or without the consent or connivance of tlft
carrier, its agent, or officer, obtain or at-
tempt to obtain transportation for such
property at less than the regular rates then
established and in force on the line of trans-
portation; . . . shall be deemed guilty
of fraud, which is hereby declared to be a
894
misdemeanor, and shall, upon conviction
thereof in anv court of the United States,
of competent jurisdiction within the district
in which such offense was wholly or in part
committed, be subject for each offense tq a
fine," etc.
940 U. 8.
1915.
SOUTHERK EXP. 00. ▼. BYERS.
eia-612
faToritism as between shippers by requiring
the publication of tariffs and prohibiting
any departure from them. The prohibi-
tions of the original act of February 4,
1887 (chap. ]04, §§ 2, 3, 6, 10, 24 Stat, at
L. 379, 1 Rev. Stat. Supp. 629, Oomp. Stat.
1913, §§ 8564, 8565, 8569, 8574), were ad-
dressed to the carrier alone. The 1889 amend-
ment brought shipper and consignee within
the scope of the law, both by enacting that
false billing, etc., should be punishable
criminally, [611] and by providing similar
punishment for inducing discriminations by
the payment of money or other thing of
value, solicitation, or otherwise. The 1910
amendment (chap. 309, § 10, 36 Stat, at L.
539, 549, Oomp. SUt. 1913, § 8574) ex-
tended the range of the prohibition to
eertaia other fraudulent practices by con-
flignors and consignees, committed for like
purposes.
In denouncing as criminal "false billing,
false classification, false weighing, false
representation of the contents of the pack-
age or the substance of the property, false
report of weight, false statement, or [by
any] other device or means" employed in
order to "obtain or attempt to obtain trans-
portation for such property at less than
the regular rates then established," the law-
maker regarded not merely the physical
transportation of the property, but the en-
tire transaction through which consignor
or consignee might seek to evade the policy
of the act to subject all interstate ship-
ments to uniform rates of charge prescribed
in published tariffs. In a case where for
any reason the payment of the freight is
not made prior to the delivery of the goods
to the consignee, but remains to be after-
wards adjusted, the effort to obtain an
advantage not permitted by the schedules
may still be exerted through fraudulent
representations influencing the adjustment
of the freight, with precisely the same effect
as if the representations had preceded de-
livery of the goods. When this is accom-
plished, there is a fraudulent obtaining of
tranq>ortation at less than the established
rate, within the meaning of the prohibition.
Thus it needs only that we interpret the
statute according to the plain meaning of
the terms employed, in the light of subject-
matter and context, in order to conclude,
as we do, that the acts set forth in this in-
dictment are punishable criminally under
the act.
The judgment of the District Oourt will
be reversed, and the cause remanded for
[612] SOUTHERN EXPRESS OOMPANY»
Plff. in Err.,
V.
JOHN BYERS,
(See S. 0. Reporter's ed. 612-616.)
EMdence — documentary — carrier's
rate schedules.
1. Rate schedules of an interstate car-
rier on file with the Interstate Commerce
Commission are admissible in evidence in
an action against it to recover damages for
delay in the deliverv of an interstate ship-
ment on the issue of the validity and effect
of a provision in the bill of lading by which
the carrier undertook to lipiit i& liability
to a specified sum.
[For other cases, see Evidence, IV. r, in Di-
gest Sup. Ct. 1908.]
Damages — mental anguish — carrier*8
liability.
2. Damages for mental suffering only
are not recoverable from a carrier on ac-
count of its delay in the delivery of an in-
terstate shipment.
[For other cases, see Damages, VI. q, in Di-
gest Sup. Ct. 1008.]
INo. 201.]
Submitted March 2, 1916. Decided April 3,
1916.
I
N ERROR to the Supreme Court of the
State of North Carolina to review a
judgment which affirmed a judgment of the
Superior Court of Buncombe County, in
that ^tate, awarding damages against a car-
rier for mental suffering only on account of
Note. — ^As to validity of agreement to re-
strict carrier's liability, generally, — see
notes to Deming v. Merchants' Cotton Press
ft Storage Co. 13 L.R.A. 518; Missouri P. R.
Co. V. Ivey, 1 L.RJ^. 600; Hartwell v.
Northern P. Exp. Co. 3 L.R.A. 342; Rich-
mond ft D. R. Co. V. Payne, 6 L.R.A. 841);
Adams £zp. Co. v. Harris, 7 L.R.A. 214;
Duntley v. Boston ft M. R. Co. 9 L.R.A.
452; Gulf, C. ft S. F. R. Co. v. Oatewood,
10 L.R.A. 419 ; Pacific Exp. Co. v. Foley, 12
L.RJ^. 799; Ballou v. Earle, 14 L.R.A. 433;
Little Rock ft Ft. S. R. Co. v. Cravens, 18
L.R.A. 527 ; Everett v. Norfolk ft S. R. Co.
1 L.RJL(N.S.) 985; New Jersey Steam
Nav. Co. V. Merchants' Bank, 12 L. ed. U. S.
466, and Chicago, M. ft St P. R. Co. v.
Solan, 42 L. ed. U. S. 688.
On the validity of stipulation limiting
carrier's liability to agreed valuation, as
affected by the Hepburn act — see note to
Bernard v. Adams ^p. Co. 28 L.R.A.(N.S.)
293.
On the Carmack amendment as affecting
state regulation as to stipulations lim-
iting liability of common carrier for loss or
^^ damage to ^oode— see notes to Adams Exp.
fnrtliArnr<^^Lul{Ti<Mi <» ^^f^^uSZtlZ 4>V7 ^o. V. Croumgcr, 44 L.R.A.(N.S.) 257, and
further proceedings in conformity with this LouigviUe &^. k Co. y. Miller. 50 LJLA.
^^^on. I (NJ3.) 819.
ei2, 613
SUPREME CX)URT OF THE UNITED STATES.
Oct. TkBMy
its delay in the deliyery of ap interstate
shipment. Reversed and remanded for
further proceedings.
See same case below, 165 K. C. 642, 81
S. E. 741.
The facts are stated in the opinion.
Messrs. Jalina O. Martin, Tbomas 8.
Rollins, George H. Wright, and Robert
O. Alston submitted the cause for plain-
tiff in error:
The liabilitj of a common carrier for
mental anguish growing out of loss, injury,
or delay of a shipment moving in Interstate
eommerce is to be controlled by the law as
ascertained and administered by the Federal
judiciary.
Adams Exp. Co. v. Croninger, 226 U. S.
491, 505, 57 L. ed. 314, 319, 44 L.R.A.(N.S.)
257, 33 Sup. Ct. Rep. 148; Kansas City
Southern R. Co. v. Carl, 227 U. S. 639, 640,
57 L. ed. 683, 687, 33 Sup. Ct. Rep. 301;
SUter ▼. Mexican Nat. R. Co. 194 U. S. 120,
126, 48 L. ed. 900, 902, 24 Sup. Ct. Rep. 581;
Western U. Teleg. Co. v. Brown, 234 U. S.
542, 58 L. ed. 1457, 34 Sup. Ct. Rep. 955, 5
N. C. C. A. 1024; Geveland, C. C. & St. L. R.
Co. ▼. Dettlebach, 239 U. S. 588, ante, 453,
36 Sup. Ct. Rep. 177.
That law does not permit recovery for
mental anguish under the conditions set out
in this record.
Western U. Teleg. Co. ▼. Wood, 21 L.R.A.
706, 6 C. C. A. 432, 13 U. S. App. 317, 57
Fed. 471; Western U. Teleg. Co. v. Cook, 9
C. C. A. 680, 15 U. S. App. 445, 61 'Fed.
624; Felton ▼. Bullard, 37 C. C. A. 1, 94 Fed.
781; Baltimore & 0. R. Co. v. Baugh, 149
U. S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep.
914; Byrne ▼. Kansas City, Ft. S. & M. R.
Co. 24 L.RJL 693, 9 C. C. A. 666, 22 U. S.
App. 220, 61 Fed. 605; Western U. Teleg.
Co. ▼. Sklar, 61 C. C. A. 281, 126 Fed. 295;
Western U. Teleg. Co. v. Burris, 102 C. C. A.
386, 179 Fed. 92; Western U. Teleg. Co. ▼.
Chouteau, 49 L.RJL(N.S.) 221, note; Chap-
man Y. Western U. Teleg. Co. 88 Ga. 767,
17 LJtA. 430, 30 Am. St. Rep. 183, 15 S. E.
901; Cbase v. Western U. Teleg. Co. 10
L.RJL 464, 44 Fed. 554; Crawson v.
Western U. Teleg. Co. 47 Fed. 544;
Kester ▼. Western U. Teleg. Co. 55 Fed.
603; Gahan ▼. Western U. Teleg. Co. 59
Fed. 433; Western U. Teleg. Co. v. Hill, 163
AU. 18, 23 L.RJ1.(N.S.) 648, 50 So. 248, 21
Am. Neg. Rep. 1, 19 Ann. Cas. 1058;
Kennon v. Gilmer, 131 U. S. 22, 26, 33 L. ed.
110, 112, 9 Sup. Ct. Rep. 696; McDermott ▼.
Severe, 202 U. 8. 600, 611. 50 L. ed. 1162,
1168, 26 Sup. Ct. Rep. 709; Tyler v. Western
U. Teleg. Co. 54 Fed. 634; Butner v. West-
em U. Teleg. Co. 2 Okla. 234, 4 Inters. ( om.
Rep. 770, 37 Pac. 1087 ; International Ocean
Teleg. Co. t. Saunders, 32 Fla. 434, 21
I L.RJL 810, 14 So. 148 ; Davis t. Western U.
Teleg. Co. 46 W. Va. 48, 32 8. E. 1026.
The contract of carriage is Inconsistent
with the conception that mental damages
may be allowed.
Adams Exp. Co. t. Croninger, 226 U. S.
491, 57 L. ed. 314, 44 L.RJi.(N.S.) 257, 83
Sup. 'ct. Rep. 148; George N. Pierce Co. T.
WelU, F. & Co. 236 U. S. 278, 286, 59 L.. ed.
576, 35 Sup. Ct. Rep. 351 ; Telfair County v.
Webb, 119 Ga. 916, 47 S. £. 218; Atlanta
Ice & Coal Co. v. Mixon, 126 Ga. 457, 55
S. E. 237.
No brief wiu filed for defendant in error.
Mr. Justice McReynoids delivered the
opinion of the court:
Claiming damages solely on account of
mental anguish occasioned by failure
promptly to deliver a casket and [6131 grave
clothes Intended for his wife's burial, and
accepted by plaintiff in error with knowl-
edge of the facts at AshevlUe, North Caro-
lina, for transportation to Hickory Grove,
South Carolina, Byers recovered a judgment
against it for $250, and this was allirmed
by the supreme court of North Carolina.
165 N. C. 542, 81 S. E. 741.
In defense the Express Company av(»rred:
That while engaged in Interstate commerce
It received the described articles at Ashe*
vlllo and transported them to Hickory
Grove; that, as required by act of Con-
gress approved June 29, 1006 [34 Stat, at
L. 584, chap. 3591, Comp. SUt. 1013,
§ 85C3], and amendments, it had filed a
schedule of rates with the Interstate Com-
merce Commission; that at time of ship-
ment it issued a bill of lading limiting lia-
bility to $50; that it had paid the shipper
the full amount expended by him in pur-
chasing the articles; that no present lia-
bility exists, and especially under the laws
of the United States it is not responsible
for such damages as those specified.
There was put In evidence a duly executed
receipt for $64.17, "being in full payment
for one coffin delivered to Southern Express
Company at Asheville, North Carolina, on
April Ist, 1912, by John Byers, to be
shipped to Sarah Moore, Hickory Grove,
South Carolina;" and Byers testified that
"the Southern Express Company paid him
for all the money he had paid out on the
casket and other things oontalned in the
shipment, but did not pay him anything for
damages." The bill of lading was also in-
troduced. It specified no value and under-
took to restrict the carrier's liability to
$50. Clause 1 is copied in the margin, i
1 1. In consideration of the rate charged
for carrying said property which is regu-
lated by the value and classification thereof
940 U. 8.
1916.
SOUTHERN EXP. CO. v. BYERS.
613-610
Objection was sustained to a seasonable
[614] offer by the company to prove its
sdiedules of rates on file with the Interstate
Commerce Commission.
Manifestly the shipment was interstate
commerce; and, under the settled doctrine
«atabli8hed by our former opinions, rights
and liabilities in connection therewith de-
pend upon acts of Congress, the bill of lad-
ing and common -law principles accepted
and enforced by the Federal courts. In
order to determine the validity and effect
of restrictions upon liability contained in
such bills, it is important, if not indeed
essential, to consider the applicable sched-
ules on file with the Commission. Adams
Exp. Co. V. Croninger, 226 U. S. 491, 67 L.
«d. 314, 44 L.R.A.(N.S.) 267, 33 Sup. Ct.
Rep. 148; Chicago, B. & Q. R. Co. v. Miller,
226 U. S. 613, 57 J^ ed. 323, 33 Sup. Ct.
Rep. 155; Chicago, St. P. M. ft 0. R. Co.
V. LatU, 226 U. S. 519, 57 L. ed. 328, 33
Sup. Ct. Rep. 155; Wells, F. & Co. v. Nei-
man-Marcus Co. 227 U. S. 469, 67 L. ed.
600, 33 Sup. Ct. Rep. 267; Kansas City
Southern R. Co. v. Carl, 227 U. S. 639, 67
X.. ed. 683, 33 Sup. Ct. Rep. 391 ; Missouri,
K. & T. R. Co. V. Harriman, 227 U. S. 657,
57 L. ed. 690, 33 Sup. Ct. Rep. 397; Chi-
<*ago, R. I. & P. R. Co. V. Cramer, 232 U.
S. 490, 58 L. ed. 697, 34 Sup. Ct. Rep. 383 ;
Boston & M. R. Co. v. Hooker, 233 U. S.
€7, 58 L. ed. 868, L.R.A.1915B, 450, Ann.
Cas! 1915D, 693; George M. Pierce Co. v.
Wells, F. & Co. 236 U. S. 278, 59 L. ed.
676, 35 Sup. Ct. Rep. 351 ; New York, P. &.
N. R. Co. V. Peninsula Produce Exch. 240
U. S. 34, ante, 511, 36 Sup. Ct. Rep. 230.
It was plain erroY to exclude the rate
flchedules.
[615] Having been requested in apt time,
the trial court refused to charge the jury as
follows: "As the shipment which is al-
leged to have been delayed was a shipment
in interstate commerce, and as the damage
claimed by the plaintiff is damage for men-
tal suffering only on account of the delay
of the delivery of said shipment, the court
instructs the jury that under the evidence
in this case the plaintiff is not entitled to
recover any such damage; the jury is there-
fore directed to render a verdict for the de-
fendant." This instruction should have
been given.
The action is based upon a claim for
mental suffering only, — ^nothing else was set
up and the proof discloses no other injury
for which compensation had not been made.
In such circumstances as those presented
here, the long-recognized common-law rule
permitted no recovery; the decisions to this
effect "rest upon the elementary principle
that mere mental pain and anxiety are toa
vague for legal redress where no injury is
done to person, property, health, or repu-
tation.'' Cooley, Torts, 3d ed. page 94.
The lower Federal courts, almost without
exception, have adhered to this doctrine,
and in so doing we think they were clearly
right upon principle and also in accord with
the great weight of authority. Chase v.
Western U. Teleg. Co. 10 L.RJl. 464, 44
Fed. 654; Crawson v. Western U. Teleg.
Co. 47 Fed. 644 ; Wilcox v. Richmond & D.
R. Co. 17 L.R.A. 804, 3 C. C. A. 73, 8 U.
S. App. 118, 62 Fed. 264 ; Tyler v. Western
U. Teleg. Co. 54 Fed. 634; Kester v. West-
ern U. Teleg. Co. 66 Fed. 603; Western U.
Teleg. Co. v. Wood, 21 L.R.A. 706, 6 C. C.
A. 432, 13 U. S. App. 317, 67 Fed. 471;
Gahan v. Western U. Teleg. Co. '69 Fed.
433 ; McBride v. Sunset Teleph. Co. 96 Fed.
81; SUnsell v. Western U. Teleg. Co. 107
Fed. 668; Western U. Teleg. Co. v. Sklar,
61 C. C. A. 281, 126 Fed. 296; Alexander v.
Western U. Teleg. Co. 126 Fed. 445; Rowan
V. Western U. Teleg. Co. 149 Fed. 550; West-
em U. Teleg. Co. v. Burr is, 102 C. C. A.
386, 179 Fed. 92; Kyle v. Chicago, R. I. &
P. R. Co. 105 C. C. A. 161, 182 Fed. 613.
But see Beasley v. Western U. Teleg. Co.
39 Fed. 181.
[616] In So Relle ▼. Western U. Teleg. Co.
(1881) 55 Tex. 308, 40 Am. Rep. 805, the
supreme court of Texas held the addressee
of a message might recover damages of a
telegraph company because of mere mental
suffering. Subsequently the courts of Ala-
bama, Iowa, Kentucky, Nevada, North Caro-
lina, and Tennessee approved and enforced
jund is based upon a valuation of not exceed-
ing $50 for any shipment of 100 pounds or
less, and not exceeding 50 cents per pound
lor any shipment in excess of 100 pounds,
unless a greater value is declared at time of
shipment, the shipper agrees that the com-
pany shall not be liable in any event for more
than fifty dollars ($50) on any shipment
of 100 pounds or less, and for not exceed-
ing 60 cents per pound on a shipment weigh-
ing more than 100 pounds, and said prop-
erty is valued at, and the liability of this
company is hereby limited to, the value
above stated, unless a greater value is de-
clared at the time of shipment, and the
60 li. ed.
charge for value paid or agreed to be paid
therefor ; and in case of partial loss or dam-
age the company shall not be liable for more
than such proportion of the same as $50
if 100 pounds or less in weight, or 60 cents
per pound if weight exceeds 100 pounds, or
the value declared bears to the actual value
if greater.
If the said property is offered for ship-
ment under the special rates named in sec-
tions "D" and **E" of the existing Official
Express ^Classification, it is agreed that
the value of the same does not exceed ten
dollars ($10) per package, said rates not
applying on packages of greater value.
610, 617, 619
SUPREME COURT OF THE UNITED STATES.
Oct. TkBMy
A like rule; those of Dakota, Florida, Geor-
gia, Xllinois, Indiana, Kansas, Minnesota,
Mississippi, Missouri, New York, Ohio,
Oklahoma, Virginia, and West Virginia defi-
nitely rejected the innovation. Many of
the pertinent cases are reviewed in Western
U. Teleg. Co. v. Chouteau (1911) 28 Okla.
664, 115 Pac. 879, Ann. Cas. 1912D, 824,
3 N. C. C. A. 879, 49 L.R.A.(N.S.) 206,
and note; the general subject is discussed
and the authorities cited in Sutherland on
Damages, 3d ed. §§ 975 et seq., Sedgwick on
"Damages, 9th ed. §§ 43 et seq., and Shear-
man & Redfield on Negligence, 6th ed. §§
756 et seq.
The judgment of the court below must be
reversed and the cause remanded for fur-
ther proceedings not inconsistent with this
opinion.
And it is so ordered.
Mr. Justice McKenna and Mr. Justice
Holmes concur in the result.
[617] G. F. VARNER and W. E. Marshall,
Partners, Doing Business as the Wichita
Lumber Company, Appts.,
V.
NEW HAMPSHIRE SAVINGS BANK and
P.J. Conklin.(No. 264.)
HAINES TILE k MANTEL COMPANY,
Appt.,
V.
NEW HAMPSHIRE SAVINGS BANK
and P. J. Conklin. (No. 265.)
JACKSON-WALKER COAL k MATERIAL
COMPANY, Appt.,
y.
NEW HAMPSHIRE SAVINGS BANK and
P. J. Conklin. (No. 266.)
(See S. C. Reporter's ed. 617-619.)
Appeal *• fl*oni oircnit coart of appeals
*• review of facts.
A decree of a circuit court of appeals
will be affirmed by the Federal Supreme
Court where the essential question is one of
fact, and the latter court thinks that the
evidence, though sharply conflicting and dis-
NoTE. — On the appellate jurisdiction of
the Federal Supreme Court over circuit
courts of appeals — tee notes to MtLf^ej v.
General Fire Extinguisher Co. 63 L. ed.
U. S. 603, and St. Anthony's Church v.
Pennsylvania R. Co. 59 L. ed. U. S. 1119.
828
closing substantial diffieulties» sustains ths
conclusion reached below.
[For other cases, see Appeal and Brror, VIIL.
1, 1, in Digest Sap. Ct. 1908.]
[Nos. 264, 266, 266.]
Argued March 8 and 9, 1916. Decided April
3, 1016.
THREE APPEALS from the United SUtea
Circuit Court of Appeals for the Eighth
Circuit to review decrees which, reversing
a decree of the District Court for the Dis-
trict of Kansas, adjudged that mortgage
creditors of the bankrupt were entitled ta
priority over mechanics' lienors. Affirmed.
See same case below, 132 C. C. A. 631,.
216 Fed. 721.
The facts are stated in the opinion.
Mr. Chester I. Long argued the cause,,
and, with Messrs. J. A. Brubacher, George
Gardner, and A. M. Cowan, filed a brief for
appellants.
Messrs. Kos Harris and Samael O.
Kastman argued the cause, and, witli
Messrs. V. Harris, R. L. Holmes, C. G. Yaa-
key, and W. E. Holmes, filed a brief for ap-
pellees.
Mr. Justice McReynolds delivered the
opinion of the court:
This is a contest for priority between
creditors of a bankrupt. Appellees claim
under mortgages upon certain real estate m
Wichita, alleged to have been recorded be-
fore building operations on the property
were commenced. Appellants maintain eon-
struction began prior to recordation, and
that they are secured by preferred me-
chanics' liens created by the Kansas stat-
ute. Disagreeing with the district courts
but in accord with the referee's opinion, the
circuit court of appeals (132 C. C. A. 631,
216 Fed. 721) held that no "such work as
amounted to the commencement of the build-
ing within the meaning of the Kansas stat-
ute" was performed prior to the time when
the mortgages were placed on record, and
"that what was done was but a mere pre-
tense at the commencement of a building,,
done to defeat bona fide prior liens." And
it accordingly adjudged the mortgage cred-
itors entitled to priority.
The essential question presented is one
of fact; and there is sharp dispute in the
testimony. Substantial difficulties are dis-
closed, but, after considering the evidence,,
we think it sustains the conclusions reached
by the Circuit Court of Appeals; and the
judgment entered there is accordingly af-
firmed.
940 V. 8.
1916.
BALTIMORE ft O: R. (X). v. HOSTEriER.
620, 622, 623
1620] BALTIMORE & OHIO RAILROAD
COMPANY, Plflf. in Err.,
V.
HARRY F. HOSTETTER.
(See 8. 0. Reporter's ed. 620-625.)
^adgment — jarlsdiction to ^amlsb
debt due to nonresident « full faith
and credit.
Jurisdiction in garnishment of a debt
•due from a railway company to a nonresi-
dent employee may be acquired without no-
tice to or servioe of process upon him (other
than an ertrajudicial notice given 1^ the
^[amishee), so as to make the judgment in
the gami^ment proceedings valid as to
bim, and entitle it to full faith and credit
in tiie state where he resides.
I For other cases, see Judgment. 281-240, 088-
1004, in Digest Sup. Ct. 1908.]
[No. 245.]
Submitted January 25, 1016. Decided April
10, 1016.
IN ERROR to the Circuit Court of Marion
County, in the state of West Virginia,
to review a judgment which affirmed a
judgment of the Intermediate Court of said
county, which, on a trial de novo on an ap-
peal from a justice's court judgment, re-
fused to enforce a judgment rendered in
another state in garnishment proceedings.
Reversed and remanded for further proceed-
ings.
The facts are stated in the opinion.
Mr. George £• Hamilton submitted the
eause for plaintiff in error. Messrs. Francis
R. Cross and A. Hunter Boyd, Jr., were on
the brief.
Mr. W. H. Gonaway submitted the cause
for defendant in error.
Mr. Chief Justice White delivered the
opinion of the court:
Hoetetter, the defendant in error, a resi-
dent of West Virginia, sued in a justice's
court in that state for wages due him by
the railroad company, now plaintiff in er-
ror. The defense was that the wages had
been paid by the railroad company as the
result of a garnishment proceeding taken
against it in the state of Virginia, where
it was suable, to enforce a judgment ren-
NoTE. — ^As to protection of a nonresident
•creditor against garnishment— see notes to
lUinois C. R. Co. ▼. Smith, 19 L.R.A. 577 ;
Ooodwin v. Claytor, 67 UIUL 209; Starkey
T. Cleveland, C. C. & St. L. R. Co. ImBJl,
1915F, 880; and King v. Cross, 44 L. ed.
211.
On the right of garnishee to attack judff-
liient against principal defendant for lack
of jurisdiction — see note to Atwood v. Roan,
61 L3J^.(NJ3.) 697.
«0 li. ed.
dered in Virginia against Hostetter when
he resided in that state, and after a domi-
ciliary service on him. The case went from
the justice's court for a de novo trial to the
intermediate court of Maricm county, where,
as the result of a verdict against the rail-
road company, it was condemned to pay
again, the court holding that the Virginia
garnishment proceeding was not entitled to
be enforced as against Hostetter under the
full faith and credit clause of the Consti-
tution of the United States because he was
not served with process in such proceeding,
he then residing in West Virginia, although
extrajudicial notice was given him by the
railroad company of the proceeding. The
case is here on writ of error to review the
judgment of the court below, affirmirfg that
of the intermediate court, and whether prop-
er force was given to the full faith and
credit clause is the question for decision.
It is true that in the argument for the
defendant in error various suggestions are
made as to the insufficiency of the record
concerning the existence of the Virginia
judgment upon which reliance on the full
faith and credit [623] clause was placed, on
the ground that the record contains mere re-
citals with reference to the judgment, etc.,
etc. For the sake of brevity we do not
stop to review these suggestions, although
we have considered them all, since we think
they are not only without merit, but many
of them are in effect frivolous, because in
our opinion the record suffices to establish
the facts which were stated by the court
below as the basis for its judgment, and
which we briefly recapitulate as follows:
The plaintiff in July, 1911, resided in
Clifton Forge, Virginia, and was indebted
to one Wagner in tlie sum of $35, for which
debt Wagner obtained a judgment against
him in a justice's court of Virginia, based
upon a summons served *'on said plaintiff
. . . by delivering a copy thereof to the
wife the plaintiff at his usual place of
abode. . . . Said record further shows
. . • that on the 17th day of September,
1912, a garnishee summons was issued by
H. H. Harlow, a justice of the peace in the
city of Staunton, Virginia, . . . which
garnishee summons was directed against the
said Baltimore ft Ohio Railroad Company
. . • charging that it had money, or
other personal estate, in its possession or
control belonging to the said Hostetter, and
requiring the said railroad company to ap-
pear ... to answer said garnishment
or suggestion; . . . and that on the 3d
day of October, 1912, said justice last above
named rendered a judgment against the said
Hostetter and the Baltimore ft Ohio Rail-
road Company in favor of the said Wagner
in the sum of $38.40, with interest . . •
In this garnishment or suggestion proceed-
89t
023-025
SUPREME COURT OF THt: UNITED STATES.
Cot. TkiM,
ing» no notice or process of any kind was
given to or served upon the said Hostetter,
he then being a resident of this state [West
Virginia], and had been such resident for
more than a year previous to the date of the
institution of the garnishment proceeding.
From this said last-named judgment the
Baltimore k Ohio Railroad Company [624]
i^ppealed to the corporation court of the
city of Slaunton, and this appeal was heard
and passed upon by said court on the 27th
day of February, 1913. So far as the rec-
ord shows, no notice of such proceeding in
the courts of Virginia was given to the de-
fendant until on or about the 14th day of
February, 1913, when the said railroad com-
pany* did notify, in writing, the said
Hostetter, of the pendency of the said gar-
nishment proceedings on appeal in said cor-
poration court. ... It is not contended
that any formal notice was given to said
Hostetter of the garnishment proceedings
for the reason that the statute of Virginia
under which said proceedings was instituted
does not require notice to be given a non-
resident of that state of the pendency of the
garnishment or suggestion."
Although the railroad had paid in virtue
of the judgment rendered in the garnish-
ment proceeding taken as above stated, the
eourt, agreeing in opinion, as we have said,
with the trial court, held that the garnish-
ment proceeding and the judgment in it
were no protection to the Railroad company
because there was no power in the Virginia
eourts to garnishee in that state in the hands
of the railroad a sum of money due by it
to an employee domiciled in another state
without service on such employee in Vir-
ginia, and that the full faith and credit
clause imposed no duty to enforce a judg-
ment in gamisliment proceedings affected
with the want of power stated.
In view of the decisions of this eourt deal-
ing with the exact situation here presented
and expressly holding that the principles
upon which the court below based its ac-
tion were erroneous and could not be up-
held consistently with the duty to apply
and enforce Uie full faith and credit clause,
we need do no more than cite the cases re-
ferred to. Chicago, R. I. & P. R. Co. v.
Sturm, 174 U. S. 710, 43 L. ed. 1144, 19 Sup.
Ct Rep. 797; Harris ▼. Balk, 198 U. S.
215, 49 L. ed. 1023, 25 Sup. Ct. Rep. 025,
3 Ann. Cas. 1084; Louisville & K. R. Co.
T. Deer, 200 U. S. 170, 50 L. ed. 420, 20
Sup. Ct. Rep. 207.
[625] As it follows that the judgment be-
low, in so far as it compelled the railroad to
pay the second time the sum which it had
discharged under the Virginia judgment,
w»f erroneous, it muat be reversed and the
sso
ease remanded for further prooeedingt not
inconsistent with this opinion.
And it is so ordered.
MARY LENORE BULLEN, George Bullen,
Jr., Richard Nixon Bullen, William
Graham Bullen, and John Nixon Bulleo^
Plffs. in Err.,
V.
STATE OF WISCONSIN.
(See S. C. Reporter's ed. 025-032.)
Constitntional law — dne process of law
— impairing contract obligations *
inheritance tax.
1. A fund represented by stocks, bonds,
and notes kept in a state other than that
where the decedent resided, which he con-
veyed upon certain trusts to a trust company
of such other state, reserving to himself an
absolute power of control, which he exer-
cised during his life by a revocation (fol-
lowed by a second conveyance to the trust
company upon the same terms), and by tak-
ing the whole income for himself, may be
subiected to an inheritance tax in the state
of his domicil, without violating the 14th
Amendment or the contract clause of the
Federal Constitution.
[For other cases, see CoDstltiitlonal Law, 554-
558, 1450-1474, ^ Digest Sup. Ct. 1908.]
Error to state oonrt — scope of review
— error not assigned below.
2. Errors not assi^ed on appeal to the
highest state court will not be considered
by the Federal Supreme Court on writ of
error.
[For other cases, see Appeal and Error, 2104-
2174, in Diffest Sup. Ct. 1008.]
[No. 202.]
Argued March 8, 1010. Decided April 10»
1010.
IN ERROR to the County Court of Wau-
kesha County, in the State of Wisconsin,
to review a judgment enforcing an inherit-
NoTK. — As to taxes on succession and col-
lateral inheritances — see notes to Re Howe^
2 L.R.A. 825; Wallace T. Myers, 4 LJtA.
171; Com. V. Ferguson, 10 LJtAu 240; Re
Romaine, 12 L.RJI. 401; Rodman v. Com.
33 L.RJl.(N.S.) 502; State ex rel. Ise v.
Cline, 50 L.RJl.(N.S.) 001; and Masoun
V. Illinois Trust & Sav. Bank, 42 L. ed. U.
S. 1037.
On succession tax upon gift in contempla-
tion of death — see note to Re Deaaert, 40
L.ILA.(N.S.) 700.
On physical presence or absence of per-
sonal property or evidence thereof as aflfeet-
ing liability to succession tax — see note to
Re Helena, 40 L.R.A.(N.S.) 1107.
On what questions the Federal Supreme
Court will consider in reviewing the judg-
ments of state courts — see note to Missouri
ex rel Hill v. Dockery, 03 hJELA. 571.
940 V. 8.
1915.
BULLEN ▼. WI800N8IN.
ance tax npon a trust fund held outside the
i^te, entered pursuant to the mandate of
the Supreme Court of that state, on an ap-
peal from the Circuit Court of said county.
AffirmtHl.
See same case below, 143 Wis. 512, 130
Am. St. Rep. Ill 4, 128 N. W. 100.
The facts are stated in the opinion.
Mr. John R. Montgomerj argued the
cause, and, with Messrs. Louis E. Hart,
Jaspersen Smith, and Lloyd R. Steere, filed
a brief for plaintiffs in error:
'The Wisconsin rule is that the tax is an
excise tax, or a tax on a privilege. The
thing or commodity upon which it is levied
is the transfer transaction, or right to re-
ceive property.
Nunnemacher t. State, 120 Wis. 100, 0
L.ILA.(N.S.) 121, 108 N. W. 827, 0 Ann.
Oas. 711; Reals ▼. State, 130 Wis. 544, 121
N. W. 347; State v. Pabst, 130 WU. 561,
121 N. W. 351.
This implies, however, the further qualifi-
cation that the transfer transaction occurs
under or by virtue of, or that the right to
receive property is derived through, the
laws of Wisconsin. That state has no ex*
trmterritorial jurisdiction.
Bliss V. Bliss, 221 Mass. 201, L.RA.
1016A, 880, 100 N. E. 148; Walker v. The
Treasurer, 221 Mass. 800, 100 N. B. 647;
State T. Brevard, 62 N. C. (Phill. Eq.) 141;
Alvany v. Powell, 55 N. C. (2 Jones, Eq.)
51 ; Bittinger's Estate, 120 Pa. 338, 18 Atl.
182; Re Joyslin, 76 Vt. 88, 56 Atl. 281; Re
Swift, 137 N. Y. 77, 18 LJlJl. 700, 82 N. B.
1006; aarke v. Clarke, 178 U. S. 186, 44
L. ed. 1028, 20 Sup. Ct. Rep. 873.
A decedent's personal property in a for-
eign jurisdiction will be subject, in a proper
case, to taxation both at home and in the
foreign state, if the laws of both states are
requisite to the legal transfer of the prop-
erty at the owner's death, and it does not
matter that the machinery of the law would
not need to be invoked in the particular
Blackstone r. Miller, 188 U. S. 180, 47 L.
ed. 430, 23 Sup. Ct. Sup. 277; Mann v.
Garter, 74 N. H. 345, 15 L.RJ1.(N.S.) 150,
68 Atl. 130; Hopkins's Appeal, 77 Conn.
644, 60 Atl. 657.
The inheritance tax laws of Wisconsin
and Illinois are both adopted from New
York. Both are, therefore, subj^ to the
Hune rules of interpretation.
People T. Grifilth, 245 HL 532, 02 N. E.
S13.
An inheritance tax cannot be levied by
lay state unless the operation of its laws
m necessary in order to effect the transfer.
Walker v. The Treasurer, 221 Mass. 600,
LOO N. E. 647; Be Clark, 37 Wash. 671, 80
!• U ed.
Pac 267; Clark v. The Treasurer, 218 Maaa.
202, 105 N. B. 1055; Eidman t. Blartinei,
184 U. S. 578, 46 L. ed. 607, 22 Sup. Ct
Rep. 515; Moore v. Ruckgaber, 184 U. S.
503, 46 L. ed. 705, 22 Sup. Ct. Rep. 521;
Woodruff T. Atty. Gen. [1008] A. C. 508, 24
Times L. R. 012; BUckwood v. Reg. L. R.
8 App. Cas. 82, 52 L. J. P. C. N. S. 10, 48
L. T. N. S. 441, 31 Week. Rep. 645; State v.
Brevard, 62 N. C. (PhilL Eq.) 141; Alvany
V. Powell, 55 N. C. (2 Jones, Eq.) 51; Re
Joyslin, 76 Vt 88, 56 AtL 281.
This is lu corollary to the entire line of
decisions by this court of questions relating
to inheritance taxes.
Mager v. Grima, 8 How. 400, 12 L. ed.
1168^ Carpenter v. Pennsylvania, 17 How.
456, 15 L. ed. 127 ; Scholey v. Rew, 23 Wall.
331, 23 L. ed. 00; United SUtes ▼.
Fox, 04 U. S. 315, 24 L. ed. 102; Clapp
V. Mason, 04 U. S. 580, 24 L. ed. 212; United
States T. Perkins, 163 U. S. 625, 41 L. ed.
287, 16 Sup. Ct. Rep. 1073; Magoun v. Illi-
nois Trust & Sav. Bank, 170 U. S. 283, 42
L. ed. 1037, 18 Sup. Ct. Rep. 504; Knowlton
T. Moore, 178 U. S. 41, 44 L. ed. 060, 20
Sup. Ct. Rep. 747; Plummer v. Coler, 17&
U. S. 115, 44 L. ed. 008, 20 Sup. Ct. Rep.
820; Murdock v. Ward, 178 U. S. 130, 44
L. ed. 1000, 20 Sup. Ct. Rep. 775; Orr r.
Gilman, 183 U. S. 278, 46 L. ed. 106, 22 Sup.
Ct Rep. 213; Eidman r. Martinez, 184 U. S.
578, 46 L. ed. 607, 22 Sup. Ct. Rep. 515;
Moore v. Ruckgaber, 184 U. S. 503, 46 L. ed.
705, 22 Sup. Ct. Rep. 521; Blackstone v.
Miller, 188 U. S. 180, 47 L. ed. 430, 23 Sup.
Ct. Rep. 277 ; Tilt v. Relsey, 207 U. S. 43,
52 L. ed. 05, 28 Sup. Ct. Rep. 1; Keeney v.
New York, 222 U. S. 525, 56 L. ed. 200, 38
LJIJI.(NJ3.) 1130, 32 Sup. Ct. Rep. 105.
An inheritance tax is a lawful exercise of
the taxing power only when some necessary
incident of the transfer transaction depends
for its efficacy upon the law of the state
levying the tax. Where the complete trans-
fer transaction may be accomplished with-
out invoking any privilege or sanction con-
ferred by the laws of the taxing state, and
where no prohibition of the laws of the
taxing state could prevent the accomplish-
ment of the transfer transaction, then the
inheritance tax is levied upon a right which
is purely imaginary, and which does not
exist in fact.
Walker v. The Treasurer, 221 Mass. 600,
100 N. E. 647 ; Tilt r. Kelsey, 207 U. S. 43,
52 L. ed. 05, 28 Sup. Ct Rep. 1; Re Howard,
80 Vt. 480, 68 AtL 513 ; Eidman v. Martines,
184 U. S. 578, 46 L. ed. 607, 22 Sup. Ct. Rep.
515.
The tests suggested in Blackstone v. Mill-
er and Eidman r. Martinet will determine
whether the laws of Wisoonsin apply to th*
present transfer tranaaction. Sm^^ma^
SUPREME COURT OF THE UNITED STATES.
Oct. Tebu,
consin had turned back the current of legis-
lation and forbidden such an assignment in
trust, or had denied the right to transfer at
death more than one third of one's prop-
erty. This could not have affected in any
manner whatsoever the transfer transaction
imder the Illinois assignment in trust, or
the right of the plaintiffs in error to re-
ceive the benefit of it. Hence, the Wiscon-
sin law accorded no privilege which the
state could tax.
Blackstone v. Miller, 188 U. S. 180, 47
L. ed. 439, 23 Sup. Ct. Rep. 277 ; Eidman v.
Martinez, 184 U. S. 578, 46 L. ed. 607, 22
Sup. Ct. Rep. 515; Moore v. Ruckgaber, 184
U. S. 593, 46 L. ed. 705, 22 Sup. Ct. Rep.
521.
Inasmuch as the transfer transaction in
this case could be carried to completion
without the aid of the Wisconsin law, there
was no transfer transaction or right to re-
ceive property under the Wisconsin law.
The right or privilege taxed by Wisconsin
did not exist, and a judgment against a
citizen of the United States for a tax on
something which does not exist deprives
him of his property without due process of
law and takes his private property for pub-
lic use without just compensation.
Union Refrigerator Transit Co. v. Ken-
tucky, 100 U. S. 194, 50 L. ed. 150, 26 Sup.
Ct. Rep. 36, 4 Ann. Cas. 493; Delaware, L
A W. R. Co. V. Pennsylvania, 108 U. S. 341,
40 L. ed. 1077, 25 Sup. Ct. Rep. 669; Louis-
ville & J. Ferry Co. v. Kentucky, 188 U. S.
385, 47 L. ed. 513, 23 Sup. Ct. Rep. 463;
Metropolitan L. Ins. Co. v. New Orleans, 205
U. S. 395, 51 L. ed. 853, 27 Sup. Ct. Rep.
409; State Tax on Foreign-held Bonds, 15
Wall. 300, 21 L. ed. 179; Com. v. West
India Oil Ref. Co. 138 Ky. 828, 36 L.R.A.
(N.S.) 295, 129 S. W. 301; Buck v. Beach,
206 U. S. 392, 51 L. ed. 1106, 27 Sup. a.
Rep. 712, 11 Ann. Cas. 732.
It is not sufficient to authorize an inherit-
ance tax, that the courts of a state are
open to the parties interested for the asser-
tion of their rights under the contract by
which the transfer transaction is effected at
the death of the assignor. This is a priv-
ilege which the laws of every state afford.
If the mere privilege of using the courts of
a state for the enforcement of the transfer
transaction authorizes an inheritance tax
thereon, every state could tax ^very inherit-
ance. If Wisconsin could tax this transfer
transaction, so could Maine and California
for the same reason. No necessary incident
of the transfer by the assignment in trust
depends for its efficacy upon the law of
any other state than Illinois. Hence, no
state other than Illinois can levy an in-
heritance tax on the transaction.
SZ2
Walker v. The Treasurer, 221 Mass. 600,
109 K E. 647.
The general rule that personalty in a
foreign state passes by the law of the dece-
dent's domicil, and is therefore subject to a
domiciliary tax, is held in California, sub-
ject to the limitation that there be no rule
to the contrary in the state where the per-
sonal property is actually located.
Re Hodges, 170 CaL 402, L.RJI. 1916A,
837, 150 Pac. 344.
Illinois has a rule to the contrary where
the situs of such personalty has been fixed
by placing it permanently in the state.
The imposition of the Illinois inheritance
tax on the foreign bonds and stocks here
involved proves the existence of such rule,
limiting the more general one of mohUia
sequuntur personam.
People V. Griffith, 245 HI. 532, 92 N. £.
313.
Real estate in a foreign jurisdiction is
never subject to an inheritance tax at the
domicil of its owner.
Re Swift, 137 N. Y. 77, 18 L.ILA. 709, 32
N. E. 1096; Bittinger's Estate, 129 Pa. 338,
18 Atl. 132; Council v. Crosby, 210 HI. 380,
71 N. E. 350; Orr v. Oilman, 183 U. S. 278,
46 L. ed. 196, 22 Sup. Ct. Rep. 213.
This is true, because (a) the title is
transferred by the law of the state wherein
the land lies; (b) the law of the state of
the owner's domicil does not furnish any
factor or incident necessary to the efficacy
of the transfer of title; (c) the law of one
state cannot control the transfer of land
situated in another state.
Clarke v. Clarke, 178 U. S. 186, 44 L. ed.
1028, 20 Sup. Ct. Rep. 873.
If the inheritance tax is upon the transfer
transaction or right to receive property,
then the situs of the thing taxed is the situs
of the right to receive the property, not the
situs of the property itself. The determin-
ing factor is not the location of the prop-
erty, but whether the beneficiary came into
possession of it through the exercise of a
privilege conferred by the state.
People V. Griffith, supra.
The maxim Mohilia sequuntur personam
may only be resorted to when convenience
and justice so require. It is not allowed to
obscure the facts when the facts become
important.
Blackstone t. MiUer, 188 U. S. 189, 47 L.
ed. 439, 23 Sup. Ct. Rep. 277; Metropolitan
L. Ins. Co. V. New Orleans, 205 U. S. 395, 51
L. ed. 853, 27 Sup. Ct. Rep. 499; Union Re-
frigerator Transit Co. v. Kentucky, 199 U.
S. 194, 50 L. ed. 150, 26 Sup. Ct. Rep. 36, 4
Ann. Cas. 493.
The right to impose an inheritance tax
does not depend directly upon the situs of
S40 U. 8.
1916.
BULLEN T. WISCONSIN.
the property, but upon the law under which | The levy of a tax by Wieeonein on the
it it tnnaiv^td. | amount already paid for the inheritance tax
Taxatkm;" "Situs of property/' 87 Cje.
1564.
The general rule aa to taxation is that
where personalty is out of the state of the
owner's domicil, that which is tangible is
taxable where it is located, and is not tax-
able at home. That which is intangible, and
therefore likely to escape foreign taxation,
has its situs at the owner's doinicil, and is
taxable there.
Union Beirigcrator Transit €k>. t. Ken-
tucky, 199 U. & 194, 60 L. ed. 160, 26 Sup.
Ot Rep. 86, 4 Ann. Cas. 493.
There is a well-recognised exception that
not only tangible property located in a state
foreign to the owner's domicil, but intangi-
ble property so located and held there for
permanent investment or use in business,
has its situs in the foreign jurisdiction, and
is taxable there, and not at the owner's
domidL
Metropolitan L. Ins. Go. v. New Orleans,
206 U. 8. 896, 61 L. ed. 863, 27 Sup. Ct. Bep.
499; Com. y. West India Oil Ref. Co. 138
Ky. 828, 36 L.BJL(NJ3.) 296, 129 & W. 301;
Lewis's EsUte, 203 Pa. 211, 62 AtL 206.
The situs of the intangible property held
by the 'Northern Trust Company was in
lUinois.
Union Befrigerator Transit Co. v. Ken-
tucky, supra; Delaware, L. & W. B. Co. v.
Pennsylvania, 198 U. S. 341, 49 L. ed. 1077,
26 Sup. Ct Bep. 669; Metropolitan L. Ins.
Co. T. New Orleans and Com. v. West India
Oil Bef . Co. supra.
It is within the power of any dtisen of
the United States to fix the situs of his
personal property at a place other than his
domidL
Delaware, L. ft W. B. Co. v. Pennsyl-
vania, 198 U. 8. 341, 49 L. ed. 1077, 26 Sup.
Ct. Biep. 669; Metropolitan L. Ins. Co. v.
New Orleans and Com. v. West India Oil
Bef. Co. supra.
The Judgment levying the Illinois inherit-
ance tax, being entitled to full faith and
credit, is condusive on the Wisconsin courts
as to the law under which the transfer
transaction became effeective.
Connell v. Crosby, 210 HL 380, 71 N. B.
360; Tilt v. Kdsey, 207 U. S. 43, 62 L. ed.
96, 28 Sup. Ct B^. 1; Be Clark, 37 ^^ash.
671, 80 Pac 267.
llie assignment in trust, having been
made upon an actual consideration, was not
a gift, but a valid contract, and the law
taxing it impairs the obligation of the oon-
tract.
Qelsthorpe v. Fumell, 20 Mont 299, 39
UELA. 170, 61 Pac 267 ; Chanler v. Kelsey,
206 U. S. 466, 61 L. ed. 882, 27 Sup. Ct Bep.
660.
«• Ii. ad.
in Illinois is erroneous, because the amount
so paid never passed to the plaintiffs in
error. A tax upon this deprives them of
their property without due process of law.
United States v. Perkins, 163 U. S. 626,
41 L. ed. 287, 16 Sup. Ct. Bep. 1073; People
V. Bicfaardson, 269 UL 276, 109 N. E. 1033.
Mr. Walter Drew argued the cause, and,
with Mr. Walter C. Owen, Attorney Gen-
eral of Wisconsin, filed a brief for defend-
ant in error:
The deddon of the highest court of a
state as to the construction and scope of a
state law is binding upon this court.
United States Exp. Co. v. Minnesota, 223
U. S. 336, 66 L. ed. 459, 32 Sup. Ct. Bep.
211; Jacobson v. Massachusetts, 197 U. S.
11, 24, 49 L. ed. 643, 649, 26 Sup. Ct. Bep.
358, 3 Ann. Cas. 765.
The determination of questions of fact
will not be reviewed here upon a writ of
error to the highest court of the state.
Illinois ex reL Dunne v. Economy Light
& P. Co. 234 U. S. 497, 523, 524, 58 L. ed
1429, 1439, 34 Sup. a. Bep. 973 ; Miedrdch
V. Lauenstein, 232 U. S. 236, 243, 68 L. ed.
684, 689, 34 Sup. Ot. Bep. 309.
This court will not examine the constitu-
tionality of a state statute as affecting par-
ties not before it.
GUes V. Little, 134 U. S. 646, 33 L. ed.
1002, 10 Sup. Ct. Bep. 623; McNulta v.
Lochridge, 141 U. S. 327, 36 L. ed. 796, 12
Sup. Ct. Bep. 11; Engel v. O'Malley, 219
U. S. 128, 135, 65 L. ed. 128, 135,
31 Sup. Ct. Bep. 190; Citizens' Teleph.
Co. V. Fuller, 229 U. S. 322, 332, 67
L. ed. 1206, 1214, 33 Sup. Ct. Bep. 833;
German Alliance Ins. Co. v. Lewis, 233 U.
S. 389, 418, 68 L. ed. 1011, 1024, L.BJL
19150, 1189, 34 Sup. a. Bep. 612.
It is the well-settled rule in this court
that errors not pressed and relied on below
are conclusively deemed to have been
waived, — ^that when the decision of the
highest court of a state is challenged in
error, only the propositions which have
been called to its attention and upon which
it has ruled are open to consideration, and
that the scope of review here cannot be en-
larged by assignments of error to include
questions not efficiently raised in the court
below.
Cleveland & P. B. Co. v. Cleveland, 235
U. S. 50, 53, 59 L. ed. 127, 128, 35 Sup. Ct.
Bep. 21; Dewey v. Des Moines, 173 U. S.
103, 199, 200, 43 L. ed. 665, 666, 667, 19
Sup. Ct. Bep. 379; Montana B. Co. v. War-
ren, 137 U. S. 348, 351, 34 L. ed. 681, 682,
11 Sup. Ct Bep. 96; Old Jordan Min. &
Mill. Co. V. Soci6t4 Anonyme des Mines, 164
68 8S
629
SUPREME COURT OF THE UNITED STATES.
OoT. Tkem,
U. S. 261, 264, 41 L. ed. 427, 428, 17 Sup.
Ct. Rep. 113; Gila Valley, G. ft N. R. Co. v.
HuU, 232 U. & 94, 68 L. ed. 521, 34 Sup. Ct.
Rep. 229; Erie R. Co. v. Purdy, 185 U. S.
148, 164, 46 L. ed. 847, 850, 22 Sup. Ct.
Rep. 606; Louieville & N. R. Co. v.
Woodford, 284 U. S. 46, 58 L. ed. 1202, 34
Sup. Ct. Rep. 739; Spies v. XUinoiB, 123 U.
S. 181, 181, 31 L. ed. 80, 91, 8 Sup. Ct. Rep.
21.
The state of Wisoonsin, in imposing this
tax, impaired no obligation of any contract.
Chanler y. Kelsey, 205 U. S. 466, 478, 479,
61 L. ed. 882, 888, 889, 27 Sup. Ct. Rep. 550;
Orr ▼. Gilman, 183 U. S. 278, 288, 289, 46
L. ed. 196, 202, 22 Sup. Ct. Rep. 213.
The ri^t of the owner to control the
devolution of his property after his death,
and of the legatee or heir to receive prop-
erty from his testator or ancestor, is not
a natural right, but one which is wholly
created and conferred by statute law, and
which the state may take away entirely or
conditionally as it may see fit.
Mager y. Grima, 8 How. 490, 493, 12 L.
ed. 1168, 1170; Magoun v. Hlinois Trust &
Sav. Bank, 170 U. S. 283, 288, 42 L. ed.
1037, 1040, 18 Sup. Ct. Rep. 594; United
States y. Perkins, 163 U. S. 625, 627, 628,
41 L. ed. 287, 288, 16 Sup. Ct. Rep. 1073;
Knowlton v. Moore, 178 U. S. 41, 55, 56, 44
L. ed. 969, 975, 976, 20 Sup. Ct. Rep. 747;
Plummer v. Coler, 178 U. S. 115, 137, 44 L.
ed. 998, 1009, 20 Sup. Ct. Rep. 829.
It must be conceded that, if this transfer
of intangible personal property, although
held in a foreign state, had been by will or
intestate law, it would have been subject
to an inheritance tax in the state of the
domicil upon the principle mobUia sequun-
tur personam,
Keeney v. New York, 222 U. S. 525, 56
L. ed. 299, 38 L.RA.(N.S.) 1139, 32 Sup.
Ct. Rep. 105, 194 N. Y. 281, 87 N. E. 428;
Re Swift, 137 N. Y. 77, 18 L.RJL, 709, 32
N. £. 1096; Re Coming, 3 Misc. 160, 23 N.
Y. Supp. 285; Re Cornell, 170 N. Y. 423,
63 N. E. 445; Re Dingman, 66 App. Div. 228,
72 N. Y. Supp. 694; Frothingham v. Shaw,
175 Mass. 59, 78 Am. St. Rep. 475, 55 N. £.
623; Gallup's Appeal, 76 Conn. 617, 57 Atl.
609; Hopkins's Appeal, 77 Conn. 644, 60
Atl. 657; Mann y. Carter, 74 N. H. 346, 15
L.RA.(N.S.) 160, 68 Atl. 130; Re Hartman,
70 N. J. Eq. 664, 62 Atl. 660; Lines's Estate,
155 Pa. 378, 26 Atl. 728; Milliken's Estate,
206 Pa. 149, 55 Pac 853; People y. Union
Trust Co. 255 HI. 168, L.R Jl.1915D, 450, 09
N. £. 377, Ann. Gas. 1913D, 514; Douglas
County y. Kountxe, 84 Neb. 506, 121 N. W.
593 ; Eidman v. Martinez, 184 U. S. 578, 46
L. ed. 697, 22 Sup. Ct. Rep. 515; Moore v.
Ruckgaber, 184 U. S. 593, 46 L. ed. 705, 22
Sup. Ct. Rep. 521 ; Buck v. Beach, 206 U. S.
8S4
392, 51 L. ed. 1106, 27 Sup. Ct Rep. 712, U
Ann. Cas. 732; Hawley y. Maiden, 232 U. S.
1, 11, 12, 58 L. ed. 477, 482, 483, 34 Sup. Ct.
Rep. 201.
The power to tax successions is not de-
rived solely from state grant of privilege or
state ri^t to regulate, but is fundamental.
Knowlton v. Moore, 178 U. S. 41, 56-61,
44 L. ed. 969, 97&-977, 20 Sup. Ct. Rep.
747.
While no case* is found precisely like the
instant case on all the facts, the decision
of the highest court of the state in this
case is in harmony with the court decisions
in similar cases in other jurisdictions, and
is supported in principle by the clear weight
of authority.
Keeney v. New York, 222 U. S. 525, 56 L.
ed. 299, 38 LJtA.(N.S.) 1139, 32 Sup. Ct.
Rep. 105, 194 N. Y. 281, 87 N. E. 428;
Countess de Noailles' Estate (Re Helena)
236 Pa. 213, 46 L.R.A.(N.S.) 1167, 84 AU.
665; Lines's Estate, 155 Pa. 378, 26 AU.
728; People v. Union Trust Co. 255 111. 168,
L.R.A.1915D, 450, 99 N. E. 377, Ann. Cas.
1913D, 514; Douglas Coimty v. Kountze, 84
Neb. 606, 121 N. W. 593; Frothingham v.
Shaw, 175 Mass. 59, 78 Am. St. Rep. 475, 55
N. £. 623; Gallup's Appeal, 76 Conn. 617,
57 Atl. 699; Hopkins's Appeal, 77 Conn. 644,
60 Atl. 657; Mann v. Carter, 74 N. H. 345,
15 L.RA.(N.S.) 150, 68 Atl 130; Re Hodges,
170 Cal. 492, LwR.A.1916A, 837, 160 Pac
344.
A reversal would invite wholesale eva-
sion of the inheritance tax.
Knoxville & 0. R. Co. v. Harris, 99 Tenn.
684, 53 LJI.A. 921, 43 S. W. 115; Re Palmer,
117 App. Div. 360, 102 N. Y. Supp. 236; Re
Birdsall, 22 Misc. 180, 49 N. Y. Supp. 450,
affirmed in 43 App. Div. 624, 60 N. Y. Supp.
1133; State Street Trust Co. v. The Treas-
urer, 209 Mass. 379, 95 N. £. 851.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is a proceeding to fix. the inheritance
tax upon the estate of George Bullen, de-
ceased, a resident of Wisconsin. The su-
preme court of the state afiirmed a judg-
ment for a tax upon a fund of nearly a
million dollars which the heirs and next of
kin say cannot be taxed in Wisconsin with-
out violating the 14th Amendment and the
contract clause of the Constitution of the
United States. 143 Wis. 512, 139 Am. St.
Rep. 1114, 128 N. W. 109.
The facts are simple. Bullen formerly
had lived in Chicago, and continued to do
some business there after moving to Wis-
consin, which he did in 1892. He kept in
Chicago the bonds, stocks, and notes con-
stituting the fund, and in 10U2 conveyed
them to the Northern Trust Company of
240 U. S.
1915.
BULLBN T. WISCONSIN.
629-632
that city upon oortain trusts. In 1904, by
▼irtue of powers reserved, he repossessed
himself of the fund, but in 1907 he con-
Teyed it to the company upon the former
trusts again. The limitations, so far as
material, were of relatively small sums to
a sister and niece residing in Massachusetts,
and, subject to those gifts of one third of
the income to his widow for life and the
rest of the income and the principal to his
four sons. But the instrument contained-
the following clause: "Fifth. I, the donor,
expressly reserve the right to direct and
control the disposition of the said trust
property and estate, to revoke and vacate
this trust at any time during my life, to
enter into and upon and take possession of
the same, or any part thereof, to require a
reconveyance to me of the said trust prop-
erty, or any part thereof, and to dispose of
it as I may see fit. During my lifetime the
principal and income shall be used for such
beneficiaries [630] and in such manner as
I may from time to time appoint, and in
default of any appointment during my life-
time, and at all events, after my death, the
said income and the said principal shall be
applied, paid over or held as herein pro-
vided." It also declared that no portion of
principal or income should be paid under
some of the leading clauses before Bullen's
death, unless by his direction. In fact, he
received the whole income during his life.
The supreme court held that an inheritance
tax was due in respect of the whole fimd
as upon a transfer intended to take effect
in enjoyment after the donor's death.
The deeds of trust were not a merely
simulated transaction. Bullen made a will
shortly after the first transfer, which was
of similar tenor, but which, it is found,
"has not been probated," perhaps because
the parties relied upon the deeds. The deeds
transferred title and they had « purpose.
Bullen at the time was suffering from loco-
motor ataxia, his wife also was in precari-
ous health, and the chief instrument con-
templated the possible disability of both.
The ultimate limitations would operate un-
less revoked, which they were not. But
Bullen, as has been seen, reserved an abso-
lute power of control over all of his gifts,
and exercised it during his life by a revo-
cation (followed, to be sure, by a reconvey-
ance upon the same terms), and by taking
all the income of the fund. The words of
liord St. Leonards apply with full force
to the present attempt to escape the Wis-
consin inheritance tax: "To take a dis-
tinction between a general power and a
limitation in fee is to grasp at a shadow
while the substance escapes." Sugden^ Pow-
ers, 8th ed. 396. See Oray, Perpetuities,
S 526b, 38t ed. pp. 334, 335. We do not'
60 li. ed.
speak of evasion, because, when the law
draws a line, a case is on one side of it
or the other, and if on the safe side is none
the worse legally that a party has availed
himself to the full of what the law permits.
When an act is condenmed at an evasion,
what is meant is that it [631] is on the
wrong side of the line indicated by the pol-
icy if not by the mere letter of the law.
What we do say is that the supreme court
of Wisconsin was fully justified in treating
Bullen's general power of disposition as
equivalent to a fee for the purposes of the
taxing statute, that there is no constitu-
tional objection to its doing so, and that
although Illinois also has taxed the fund^
as it might, we are not aware that it has
attempted to qualify the effect that Wis-
consin has given to the power, and do not
intimate that it could have done so, if it
had tried. See Hawley v. Maiden, 232 U.
S. 1, 13, 58 L. ed. 477, 483, 34 Sup. Ct.
Rep. 201.
The power to tax is not limited in the
same way as the power to affect the trans-
fer of property. If this fund had passed by
intestate succession, it would be recognized
that by the traditions of our law the prop-
erty is regarded as a univer8it€L9 the suc-
cession to which is incident to the succes-
sion to the pergona of the deceased. As the
states where the property is situated, if
governed by the common law, generally
recognize the law of the domicil as deter-
mining the succession, it may be said that,
in a practical sense at least, the law of the
domicil is needed to establish the inherit-
ance. Therefore the inheritance may be
taxed at the place of domicil, whatever the
limitations of power over the specific chat-
tels may be, as is especially plain in the
case of contracts and stock. Blackstone v.
MiUer, 188 U. S. 189, 204, 47 Lw ed. 439.
444, 23 Sup. Ct. Rep. 277; Eidman v. Mar-
tines, 184 U. S. 578, 586, 589, 590, 592, 46
L. ed. 697. 702-705, 22 Sup. Ct. Rep. 515;
Thomson t. Advocate General, 12 Clark &
F. 1, 18, 21, 13 Sim. 153, 9 Jur. 217; Froth-
ingham r. Shaw, 175 Mass. 59, 78 Am. St.
Rep. 475, 55 N. E. 623; Re Swift, 137 N. Y.
77, 88, 18 L.RJL. 709, 32 N. E. 1096; Mann
V. Carter, 74 N. H. 845, 15 L.RJ^..(N.S.)
150, 68 Atl. 130; Hopkins's Appeal, 77
Conn. 644, 60 Atl. 657; Hartman's Case, 70
K. J. £q. 664, 62 Atl. 560. The same would
be true of a universal succession established
by will, and the notion of privity or identity
of person that is recognized li^ these cases
has been carried over to more limited be-
quests and in some degree to 'deeds. Nor-
cross T. James, 140 Mass. 188, 2 N. E. 946.
The principle that allows the tax is to be^
[632] applied, if ever, to a disposition that
operates upon the great mass of the donor't.
SUPREME COUBI OF THE UNITED STATES.
MUte, Mid thftt t*kM effect onl^ npon hia
dMtli; at lewt, M> far aa concerna the p«r-
•ooa befora this court, the donor'a wldonr
utf aona. Llnea'a EaUte, 166 Fa. 3T8, 28
AtL 72S.
It ia Buggeatcd that there waa a aub-
ardfnate error In not deducting the amount
of the Illinoia inheritance tax. But thia
appeara not to Iultb been aaaigned in the
appeal to the Supreme Court o( the atate,
and therefore we need not inquire whether
there waa an; conatitutional obatacle to tht
atate of Wiaconain adopting the groaa fund
dlipoaed of rather than the net amount re-
ceived ai the meaaure ol the tax.
Judgment affirmed.
W. E. PEESCOTT.
(See 8. C. Beporter's ed. S32-641.)
Brror to state oourt — Federal qneatlon
— liability ot Interstate carrier.
1. Whether the arriral of an intersUte
■hlpmetit at destination, the pajfrnent of the
freight by the conaignee, hia aignature to a
receipt for the ahipment, and hia removal
of a part of the goods, leaving the rest, with
the carrier's permiaaion, to meet hia con-
venience in removal, diachareed the carrier'a
contract get forth in the bill of lading is-
aued purauant to the act of Febniarj 4,
1887 [24 SUt at L. 376, chap. 104), as
amended hj the act of June 29, 190G {34
Stat, at L. 6S4, chap. 3591, Comp. BUt.
1S13, $ 8S03), and created a new obligation
aa warebouaeman, governed bj the local bw,
which casta upon the wareh ouaeman, in ease
of a loea by Are. the burden of showing that
it was not negligent, — is a Federal question
which will support the appellate jurisdic-
tion of the Federal Supreme Court over a
aUte court.
Carriers — goTenunental control ^ ter-
minal service.
2. The retention of an Interstate ahip-
ment by a carrier aa warehouseman under
the bill of lading which, In accordance with
the published regulation a, provides that
every service to be performed under it shall
tie subject to the conditions apecifled, among
which is an expreea condition governing the
carrier's reaponsibility aa warehouseman
for property not removed within forty-eight
hours after notice of arrival, is a terminal
service forming a part of the transporta-
tion, in the sense of the act of February 4,
1887 (24 Stat, at L. 379, chap. 104), as
amended by the act of June 2S, 1000 (34
SUt. at L. 664, chap. 36S1, Comp. Stat
1913, J 8663), and le governed by that stat-
ute.
(For other eases, see Carrtera, III. a. In DInst
Sap. Ct IWB,]
Carriers — acreenient varjlng oondi-
Uona of published regalatlona — Urn-
bllltjr aa warehousemen.
8. The partlea to an interatata ship-
ment may not, by apecial agreement, alter
the conditiona specified in the bill of lading
governing the carrier's liability when a
shipment is not removed within forty-ei^t
hours after notice to the conaignee of iU
arrival, which conform to the oarrier's pub-
lished regulation*
'For otter
Dlsnt e
Oarrlera — llabllltj aa warehonaomea —
pnbllslied regnlatlona — local law.
4. The arrival of an interatata ship-
ment at destination, the payment of the
freight by the conaignee, his aignature to a
receipt for the shipment, and his removal
of a part thereof, leaving the rest, with the
carrier's permission, to await hia conven-
ience in removal, did not discharge the car-
rier'a liability under the bill of lading ia-
■ued purauant to the act of February 4,
1887 (24 SUt. at L. 379, chap. 104), as
amended by the act of June 29, 1904 (34
SUt. at L. 6S4, ehap. 3501, Comp Stat.
1913, g 8663), nor create a new obligation
as warebouaeman, governed by the loc^ law,
which casts upon the warehouseman, in case
of loss by fire, the burden of shawins that
it was not n^Iigent, where the bill of lad-
ing, in accordance with the published regu-
lations, provided that every service to be
performed under it should be subject to the
conditions specified, among which waa an
express condition governing the carrier's re-
sponsibility as warehouseman for property
not removed within forty-eight houra aitar
notice of arrival.
[For other cases, an Carrien, II. b, I, ta
Dlgeat Sup. Ct. 1908.]
Carriers — llabtlltj aa warelionaemen ^
pnbllahed regntattons — local law.
5. The meaaure of the carrier's liabil-
ity aa warehouseman under a bill of lading
for an interstate shipment, leaned pnrsnant
to the act of February 4, 1887 (24 Stat, at
Note. — On the general aubjeeta of writs
of error from United Statea Supreme Court
to atata court*— see notea to Martin v. Hun-
ter, 4 L. ed. U. S. 97; Hamhiin v. Western
Land Co. 37 L. ed. U. S. 267 ; Be Buchanan,
St L. ed. U. B. 884 i and Kipley r. Illinois,
•42 L. ed. U. S. 9SS.
On how and when questions must be
raised and decided in a atate court in order
to malce a case for a writ of error from the
Supreme Court of tba United SUtea — see
•t«
nota to Mutual L. Ins. Co. t. McOrew, 63
L.R.A. 33.
On right of carrier to termiaata its n-
»>onsibility as warehouseman — aee note to
Brunson v. Atlantic Coast Line B. Co. 9
L.BA.(N.S.) 577.
On burden of proof as to n^ligence where
property is destroyed while in Uie poaaea-
sion of a carrier holding as a waruouse-
man— see note to Yaioo ft M. Valley B.
Co. V. Hughea, 22 L.B.A.(N.S.) 976.
»49 V. 8.
1016.
SOUTHERN B. 00. t. PRESCOTT.
683, 634
L. 379» ehKp, 104), as amended by the act
of June 29, 1906 (34 SUt. at L. 584, chap.
3501, Comp. Stat. 1913, § 8503), which, in
accordance with the carrier's published reg-
ulations, provided that every service to be
performed under it should be subject to the
conditions specified, among which was an
express condition governing the carrier's re-
sponsibility as warehouseman for property
not removed within forty-eight hours lifter
notice of arrival, — is not to be tested by the
exceptional rule of the local law, placing
the burden upon a warehouseman, in case
of loss by Are, to show that it was not neg-
ligent.
[For other cases, see Carriers, II. h, 3, tn
Digest Bap. Ct 1908.]
[No. 358.]
Argued February 23, 1916. Decided April
10, 1916.
IN ERROR to the Supreme Court of the
State of South Carolina to review a judg-
ment which affirmed a judgment of the Cir-
cuit Court of Edgefield County, in that state,
in favor of plaintiff in a suit by a consignee
to recover for the loss of an interstate ship-
ment while in the possession of a carrier
After arrival at destination. Reversed.
See same case below, 99 S. C. 422, 83 S.
E. 781.
The facts are stated in the opinion.
Mr. Frank G. Tompkins argued the
eause, and, with Mr. Benjamin L. Abney,
IQed a brief for plaintiff in error :
The rules of the Federal statutes and
Federal decisions govern the liability of the
carrier to the consignee.
Charleston ft W. C. R. Co. v. Vamville
Furniture Co. 237 U. S. 597, 59 L. ed. 1137,
36 Sup. Ct. Rep. 715; Boston ft M. R. Co. v.
Hooker, 233 U. S. 97, 58 L. ed. 868, L.R.A.
1915B, 450, 34 Sup. Ct. Rep. 526, Ann. Cas.
1915D, 593; Heyman v. Southern R. Co. ^03
U. S. 271, 51 L. ed. 178, 27 Sup. Ct. Rep.
104, 7 Ann. Cas. 1130; Adams Exp. Co. v.
Kentucky, 206 U. S. 136, 51 L. ed. 991, 27
Sup. Ct. Rep. 606; Cleveland, C. C. ft St. L.
R. Co. V. Dettlebach, 239 U. S. 588, ante,
453, 36 Sup. Ct Rep. 177.
When the state courts attempted to try
the case under state laws as to where the
burden of proof rested, there was a contra-
vention of the right of the plaintiff in
error, under the Federal statutes and de-
cisions.
Memphis ft C. R. Co. t. Reeves, 10 Wall.
176, 19 L. ed. 909; Cau v. Texas ft P. R.
Co. 194 U. 8. 427, 48 L. ed. 1053, 24 Sup.
Ct Rep. 663, 16 Am. Neg. Rep. 659; Clark
V. Barnwell, 12 How. 272, 13 L. ed. 985;
Western Transp. Co. v. Downer, 11 WalL
129, 20 L. ed. 160; Central Vermont R. Co.
r. White, 238 U. S. 507, 59 L. ed. 1433, 36
«• Ii. ed.
Sup. Ct. Rep. 865, 9 N. C. C. A. 265; Story,
Bailm. § 410; Sweeney v. Erving, 228 U. S.
233, 57 L. ed. 815, 33 Sup. Ct. Rep. 416,
Ann. Cas. 19149, 905; Southern Railway-
Carolina Div. V. Bennett, 233 U. S. 80, 68
L. ed. 860, 34 Sup. Ct. Rep. 566; Schmidt v.
Blood, 24 Am. Dec. 153, note.
Mr. J. Willard Ragsdale argued the
cause, and Messrs. W. H. Townsend and
J. William Thurmond filed a brief for de-
fendant in error:
The findings of fact by the supreme court
of South Carolina will not be reviewed by
this court.
Egan V. Hart, 165 U. S. 188, 41 L. ed.
680, 17 Sup. Ct. Rep. 300; Clipper Min. Co.
V. £U Min. ft Land Co. 194 U. S. 220, 226,
48 L. ed. 944, 948, 24 Sup. Ct Rep. 632;
Dower v. Richards, 151 U. S. 658, 38 L. ed.
305, 14 Sup. Ct. Rep. 452, 17 Mor. Min. Rep.
704; Israel v. Arthur, 152 U. S. 355, 38 L.
ed. 474, 14 Sup. Ct. Rep. 586.
At the time of the fire the railway com-
pany held the freight as warehouseman un-
der a separate contract from that of trans-
portation. The consignee paid the trans-
portation charges and receipted in full for
the whole shipment, and actually removed
a part of the shipment.
Stewart v. Central R. Co. 3 Ga. App. 307,
60 S. E. 1; Kenny Co. v. Atlanta ft W. P.
R. Co. 122 Ga. 365, 50 S. E. 132. See also
to same effect, Lewis v. Louisville ft N. R.
Co. 26 LJLA.(NJS.) 038, and note, 135 Ky.
361, 122 8. W. 184, 21 Ann. Oks. 527.
Congress has no power to regulate purely
internal commerce of the states.
Howard v. Illinois S. R. Co. 207 U. S. 536,
52 L. ed. 324, 28 Sup. Ct. Rep. 141.
If a Federal question is involved, the judg-
ment should be affirmed.
Southern Railway-Carolina Div. t. Ben-
nett, 233 U. S. 80, 58 L. ed. 860, 34 Sup. Ct.
Rep. 566; Fleischman v. Southern R. Co. 76
S. C. 246, 0 LJtJl.(N.S.) 510, 66 S. E. 074;
Branson v. Atlantic Coast Line R. Co. 76
S. C. 0, 0 L.RJL(NJ3.) 577, 66 S. £. 538;
Sutton V. Southern R. Co. 82 S. C. 345, 64
S. E. 401; Wabash R. Co. v. Hayes, 234 U.
S. 01, 68 L. ed. 1230, 34 Sup. Ct. Rep. 720,
6 N. 0. C. A. 224.
Mr. Justice Hoglies delivered the opin-
ion of the court:
This action was brought to recover for
the loss of nine boxes of shoes which were
destroyed by fire, on July 4, 1013, [634]
while in the possession of the Southern Rail-
way Company, plaintiff in error. These
boxes were part of a lot of thirteen boxes
which had been shipped on June 21, 1013, at
Petersburg, Virginia, by the Seaboard Air
Line Railway and connections, consigned to'
6S4-6S6
SUFRHOB OOURT OF THK UNITED STATBS.
Oof. TkiM,
W. B. Pretootty defendant in error, at Edge-
Held, South Carolina, and had arrired at
Edgefield over the line of the Southern Rail-
way Company on June 23, 1913. The plain-
tiff alleged three causes of action against
the latter company: (1) as common-car-
rier, (2) as wardiouseman, and (3) for
penalty because of failure to adjust and pay
the claim, after notice, as provided by law.
The answer of the railway company, with a
general denial, set up Uiat the shipment
was interstate and governed by the act to
regulate commerce. At the close of the
plaintiff's case, the railway company moved
for a nonsuit and decision was reserved.
The railway company then put in evidence
the tariff rules, filed with the Interstate
Commerce Commission, which governed the
shipment. Thes$ provided that the reduced
rates specified would "apply on property
shipped subject to the condition of carrier's
bill of lading," and that otherwise there
would be an increased charge, as stated.
One of the stipulations of the bill of lading
was that "property not removed by the
party entitled to receive it within forty-
eight hours (exclusive of legal holidays)
after notice of its arrival" might be kept
in car, depot, or warehouse, "subject to rea-
sonable charge for storage and to carrier's
responsibility as warehouseman only." The
freight bill contained the provision: "De-
murrage and storage will be assessed at the
expiration of the free time provided by the
rules of this company."
The agent for the railway company (con-
firming what had been said by the plain-
tiff's witness) testified that after notice of
the arrival of the goods, the consignee had
paid the entire frei<i;ht charges, that he (the
company's agent) 'liad accepted the freight"
and had the consignee's [635] "receipt for
the goods." Four boxes were then taken
away, and the rest were permitted to re-
main to meet the consignee's convenience in
removal. The agent further testified: "Q.
What was the agreement with reference to
holding those goods? A. He just wanted to
know if it would be agreeable to leave them
there, and I said it would be. Q. You did
not make any charges for storing them f A.
No, sir. Q. And did not expect him to pay
anyT No. sir." The consignee's representa-
tive had testified that, while nothing had
been said on the point, he expected to pay
storage.
At the close of the testimony, the plain-
tiff withdrew his causes of action against [
the defendant as common carrier and for
the penalty, and the case went to the jury
solely with respect to the liability of the
defendant as warehouseman. The railway
company moved for a direction of a verdict
upon the ground that, under the Federal
act and the tariff regulations, the bill of
lading defined the rights of the parties.
The motion was denied. The trial court sub-
mitted to the jury' the question of liability
for the care of the goods as one arising un-
der the state law, which cast upon the de-
fendant the bnrdoi of showing that it was
not negligent. The position of the railway
company, as shown by its Requests for in-
structions which were denied, was that the
shipment had not lost its interstate char-
acter; that the provisions of the bill of
lading were controlling; that the defend-
ant's liability as warehouseman was gov-
erned by Federal law; and that the burden
was upon the plaintiff to show negligence
as a basis for recovery.
Judgment upon a verdict in favor of the
plaintiff was affirmed by the supreme court
of the state. 99 S. C. 422, 83 8. E. 781.
With respect to the Federal question, the
court said: "The defendant claims that,
inasmuch as this is an interstate shipment,
the Federal statute governs. This question
does not legitimately arise in this case for
the reason [636] that the appellant moved
for a nonsuit on the ground that the evi-
dence here shows that this freight arrived
here on the 23d of June and that the freight
was paid and receipted for by the agent of
Dr. Presoott. He came for it and paid the
freight, and I submit that where a commcm
carrier delivered freight in good order, and
has it in its depot and paid for, then its
liability as a common carrier ceases.' The
court reserved its decision on that question
and before it was announced, the plaintiff
withdrew the cause of action against de-
fendant as common carrier and also the
cause of action for the penalty. It there-
fore being conceded in the circuit court that
the contract of carriage was ended, and the
appellant held the goods by a separate con-
tract, the question as to appellant's liabil-
ity as common carrier and the Federal stat-
ute under which it might have arisen is not
before this court, and the only question
argued which we can consider is the ques-
tion as to warehouseman." The court then
applied the rule of liability as defined by
the state law. Id. p. 424. And this writ
of error has been prosecuted.
As the shipment was interstate, and the
bill of lading was issued pursuant to the
Federal act, the question whether the con-
tract thus set forth had been discharged was
necessarily a Federal question. The refer-
ence, above quoted, to the concession in the
trial court, cannot be taken to mean that
this Federal question was not raised, for,
as we have seen, it was distinctly presented
and pressed ; but we assume that the ruling;
in substance, was that there was ho dispute
as to the fsict that the goods had arrived^
S46 V. 6.
1916.
SOUTHERN R. CO. ▼. PRE6C0TX.
636-630
tiiat the coTKjgnee had paid tha freight and
aigned a reoeipt for the goods, and that the
Bine hoxea had remained in the poaeeasion
of the carrier under the permieeion gi^en,
as testified, by the carrier's agent. The
questicm ia whether this admitted transac-
tion had the legal effect of discharging the
contract governed by Federal law, and of
creating a new obligation gotemed by state
law.
[637] By the act to regulate commerce
(§1) the "transportation" it regulates is de-
fined as induding "all services in connecticm
with the receipt, delivery, elevation, and
tranafer in transit, ventilation, refrigeration
or icing, storage, and handling of property
transported." [34 Stat, at L. 684, chap.
3501, Oomp. SUt. 1913, § 8563.] It ia made
the duty of the carrier "to provide . . .
such transportation upon reasonable r^uest
therefor." All charges made for "any serv-
ice" rendered in such transportation must
be "just and reasonable." Section 6 re-
quires that the earrier's sdiedules, printed
as provided, "shall contain the classification
of freight in force, and shall also state
separately all terminal charges, storage
charges, icing charges, and all other charges
which the Commission may require, all priv-
ileges or facilities granted or allowed and
any rules or regulations which in any wise
change, affect, or determine any part or the
aggregate of such aforesaid rates, fares, and
charges, or the value of the service rendered
to the passenger, shipper, or consignee."
And it is further provided, in the same sec-
tion, that no carrier shall "extend to any
shipper or person any privileges or facilities
in the transportation" — that is, as defined —
"except such as are specified in such tariffs."
The bill of lading in accordance with the
published regulations provided that "every
service" to be performed under it, including
the service of the ccmnecting or terminal car-
rier, should be subject to the conditions
specified, and anumg these was the express
condition governing the company's responsi-
bility as warehouseman for property not re-
moved within forty-eight hours after notice
of arrivaL Such a retention of the goods
was undoubtedly a terminal service form-
ing a part of the "transportation" in the
seiiBe of the Federal act and governed by
that act. Thus, in the case of Cleveland,
0. C. & St. L. R. Co. V. Dettlebach, 239 U.
& 588,«ante, 453, 36 Sup. Ct. Rep. 177, it
was held, with respect to goods lost through
the negligence of the terminal carrier while
in possession as warehouseman under this
stipulation, that the provision [638] of the
bin of lading limiting liability to the de-
clared value of the goods waa applicable.
The eonrt deemed it to be evident "that
Oongreaa recognised that the duty of car*
•• I«. eO.
riers to the public included the perform-
ance of a variety of services that, accord-
ing to the theory of the common law, were
separable from the carrier's service as car-
ier, and. In order to prevent overcharges
and discriminations from being made un-
der the pretext of performing such addi-
tional services, it enacted that so far
as interstate carriers by rail were con-
cerned, the entire body of such services
riiould be included together under the
single term transportation,' and subjected
to the provisions of the act respecting rea-
sonable rates and the like." It is also clear
that, with respect to the service governed
by the Federal statute, the parties were not
at liberty to alter the terms of the service
aa fixed by the filed regulations. This has
repeatedly been held with respect to rates
(Texas & P. R. Co. v. Mugg, 202 U. 8. 242,
50 L. ed. 1011, 26 Sup. Ct. Rep. 628; Kan-
sas City Southern R. Co. v. Carl, 227 U.
S. 639, 652, 57 L. ed. 683, 688, 33 Sup. Ct.
Rep. 391 ; Boston &. M. R. Co. v. Hooker,
233 U. S. 97, 112, 58 L. ed. 868, 876, L.RA.
1915B, 450, 34 Sup. Ct. Rep. 526, Ann. Cas.
1915D, 593; Louisville & N. R. Co. v. Max-
weU, 237 U. S. 94, 59 L. ed. 853, L.R.A.
1915E, 665, P.U.R.1915C, 300, 35 Sup. Ct.
Rep. 494), and the established principle
applies equally to any stipulation attempt-
ing to alter the provisions aa fixed by tiie
published rules relating to any of the serv-
ices within the purview of the act. Chicago
& A. R. Co. V. Kirby, 225 U. S. 155, 166,
56 L. ed. 1033, 1038, 32 Sup. Ct. Rep. 648,
Ann. Cas. 191 4A, 501; Atchison, T. k S. F.
R. Co. V. Robinson, 233 U. S. 173, 181, 58
L. ed. 901, 905, 34 Sup. Ct. Rep. 556. This
is the plain purpose of the statute in order
to shut the door to all contrivances in viola-
tion of its provisions against preferences
and discriminations. No carrier may ex-
tend "any privileges or facilities," save as
these have been duly specified. And as the
terminal services incident to an interstate
shipment are within the Federal act, and the
ccmditions of liability while the goods are
retained after notice of arrival are stipulated
in the bill of lading under the filed regula-
tions, the conditions thus fixed are control-
ling, and the parties cannot substitute there-
for a special agreement.
[639] In determining, in this view,
whether the contract had been discharged,
and the case removed from the operation of
the Federal act, regard must, of course, be
had to the substance of the transaction. The
question is not one of form, but of actuality.
Texas & N. 0. R. Co. v. Sabine Tram Co. 227
U. S. Ill, 126, 57 L. ed. 442, 448, 33 Sup. Ct.
Rep. 229; Railroad Commission v. Texas
ft P. R. Co. 229 U. S. 336, 341, 57 L. ed.
1215^ 1218, 33 Sup. Ct Beg. 837; Illinois
639-641
SUPREME COURT OF THE UNITED STATES.
Oct. TkBM,
0. R. Co. T. De Faentes, 286 U. S. 167, 163,
59 L. ed. 617, 619, P.U.R.1916A, 840,
36 Sup. Ct. Rep. 276; PennByWaiiia R.
Co. T. Clark Bros. Coal Min. Co. 238
U. S. 466, 468, 59 L. ed. 1406, 1408,
36 Sup. Ct. Rep. 896. It is apparent that
there had been no actual delivery of the
nine boxes. The payment of the freight
had no greater efficacy than if it had been
made in advance of the transportation. The
giving of a receipt for the goods by the con-
signee did not alter the fact that they were
still held by the railway company, awaiting
actual delivery. The transaction at most
could not be deemed to accomplish more
than if the parties had agreed tliat, until
such delivery, the goods should be held un-
der a special contract, in lieu of the pre-
scribed conditions, and this they could not
effect without violating the act which gov-
erned the shipment. It could not be said,
for example, that while under the filed regu-
lations the railway company was to make
a "reasonable charge for storage" pending
delivery, that it could agree with a particu-
lar shipper, or consignee, to hold gratui-
tously; nor could it alter the terms of its
responsibility while the goods remained un-
delivered. The actual service in holding the
goods continued, and we must look to the
bill of lading to determine the legal obliga-
tion attaching to that service.
Viewing the contract set forth in the bill
of lading as still in force, the measure of
liability under it must also be regarded as
a Federal question. As it has often been
said, the statutory provisions manifest the
intent of Congress that the obligation of
the carrier with respect to the services with-
in the purview of the statute shall be gov-
erned by uniform rule in the place of the
diverse requirements [640] of state legisla-
tion and decisions. Adams Exp. Co. t. Cron-
inger, 226 U. S. 491, 606, 609, 610, 67 L. ed.
314, 320-322, 44 L.ILA.(N.S.) 267, 33 Sup.
Ct. Rep. 148; Missouri, K. & T. K. Co. v.
Harriman, 227 U. S. 667, 672, 67 L. ed. 600,
696, 33 Sup. Ct. Rep. 897; Boston & M. R.
Co. V. Hooker, 233 U. S. 97, 112, 68 L. ed.
868, 876, LJIA.1916B, 460, Ann. Oas. 1916D,
698; Missouri, K. ft T. R. Co. v. Harris,
234 U. S. 412, 420, 68 L. ed. 1377, 1382,
LJLA.1916E, 942, 34 Sup. Ct. lU^. 790;
Charleston k W. C. R. Co. t. Vamville
Furniture Co. 237 U. S. 697, 603, 69 Lw ed.
1137, 1139, 35 Sup. Ct. Rep. 716; Cleveland
C. C. ft St. L. R. Co. V. Dettlebach, supra;
New York P. ft N. R. Co. v. Peninsula Pro-
duce Ezch. 240 U. S. 84, ante, 611, 36 Sup.
Ct. Rep. 230. And the question as to the
responsibility under the bill of lading is
none the less a Federal one because it must
be resolved by the application of general
principles of tiie common law. Adams Exp.
S40
Co. T. Croninger and Missouri K. ft T. R.
Co. V. Harriman, supra. It was explicitly
provided that in case the property was not
removed within the specified time, it should
be kept, subject to liability "as warehouse-
man only." The railway company was
therefore liable only in case of negligence.
The plaintiff, asserting neglect, had the
burden of establishing it. This burden did
hoi shift. As it is the duty of the ware-
houseman to deliver upon proper demand,
his failure to do so, without excuse, has
been regarded as making a prima fade
case of negligence. If, however, it appears
that the loss is due to fire, that fact in it-
self, in the absence of circumstances per-
mitting the inference of lack of reasonable
precautions, does not suffice to show neglect,
and the plaintiff, having the affirmative of
the issue, must go forward with the evi-
dence. Cau V. Texas ft P. R. Co. 194 U.
S. 427, 432, 48 L. ed. 1063, 1067, 24 Sup.
Ct Rep. 663, 16 Am. Neg. Rep. 669; West-
em Transp. Co. v. Downer, 11 WalL 129,
136, 20 L. ed. 160, 161; DeGrau v. WUson,
17 Fed. 698, 700, 701, affirmed in 22 Fed.
560; Claflin v. Meyer, 76 N. Y. 260, 262,
263, 31 Am. Rep. 467; Whitworth v. Erie
R. Co. 87 N. Y. 413, 419, 420; Draper v.
Delaware ft H. Canal Co. 118 N. Y. 122,
123, 23 N. E. 131; St. Louis, I. M. ft & R.
Co. V. Bone, 52 Ark. 26, 11 S. W. 968;
Lyman v. Southern R. Co. 132 N. C. 721,
44 S. E. 660; Lancaster Mills v. Merchants'
Cotton-Press ft Storage Co. 89 Tenn. 1, 24
Am. St. Rep. 686, 14 S. W. 317; NaUonal
Line S. S. Co. v. Smart, 107 Pa. 492; Den-
ton V. Chicago, R. I. ft P. R. Co. 62
Iowa, 161, 36 Am. Rep. 263, 2 N.
W. 1093; [641] Cox v. Central Vermont R.
Co. 170 Mass. 129, 49 N. E. 97; Yasoo
ft M. Valley R. Co. ▼. Hughes, 94 Miss.
242, 22 L.ILA.(N.S.) 976, 47 So. 662;
24 Am. Dec 160-153, note; 22 L.RA.(NJ3.)
note, pp. 976-980. In the present case, it
is undisputed that the loss was due to fire
which destroyed the company's warehouse
with its contents, including the property
in question. The fire occurred in the early
morning when the depot and warehouse were
closed. The cause of the fire did not mp»
pear, and there was nothing in the circum-
stances to indicate neglect on the part of
the railway company. The trial court de-
nied the motion for a direction of a verdict^
and charged the jury that "the burden of
showing that there was no negligence is
on the defendant." Applying the rule es-
tablished by the state decisions (Brunaoa
V. Atlantic Coast Line R. Co. 76 S. C. 9, 9
LJt.A.(N.S.) 677, 66 S. E. 638; Fleisch-
man v. Southern R. Co. 76 S. C. 237, 9
L.RA..(N.S.) 619, 66 S. E. 974; see also
Wardlaw ▼. South Carolina R. Co. 11 Rich.
240 U. S.
1915.
FAIRBANKS STEAM SHOVEL CX). v. WILLS.
641, 642
L. S37)» the lupreme court of the itate
Ofvemiled the defendant's objection and iim-
taiaed the judgment. 99 S. C. p. 424. It
baa been recognized by the state court, as
WIS said in the Fleischman Case, supra,
that the rule it applies is a "somewhat ex-
flspticmal rule" to which the court adheres
''luytwithstanding the great number of op-
posing authorities in other jurisdictions."
7t S. C. p. 248.
For the reasons we have stated, we think
that the obligaticm of the railway company
WM not governed by the state law, and that,
in this View, the exceptions of the plaintiff
in error were well taken.
Judgment reyersed.
[642] FAIRBANKS STEAM SHOVEL
COMPANY, Appt.,
▼.
WILLIAM V. WILLS, Trustee in Bank-
ruptcy of Federal Contracting Company.
(See S. C. Reporter's ed. 642-649.)
Ohattol mortgmge — acknowledging and
recording — residence of mortgagor —
principal office of corporation.
1. The county in which the principal
office of the corporate mortgagor is located
by its certificate of incorporation is, un-
less changed by formal action, the residence
of the mortgagor within the meaning of the
requirement of Hurd's HI. Rev. Stat. 1909,
chap. 95, that a chattel mortgage, not ac-
conipanied by a change of possession, shall
bs invalid as against third persons unless
acknowledged and recorded m the county
where the mortgagor resides.
[For other csBes, see Chattel Mortgage, III.,
In Digest Sup. Ct. 1908.]
Estoppel — of trustee In bankruptcy —
.attacking chattel mortgage of bank-
mpt.
2. The equities, if any, arising out of
the representation by the corporate chattel
mortgagor, contrai^ to fact, that its prin-
cipal place of business was in a specified
county, or out of the fact that the mortsage
was given to secure a part of the purchase
price of the chattel covered by it» could not
operate to estop the mortgagor's trustee in
bankruptcy from asserting that the mort-
Ege was invalid as to him because not ac-
owledged or recorded in the county where
the mortffaffor resides, as is required by
Hurd's 111. Rev. Stat. 1909, chap. 95, when
not accompanied by a change of possession.
In order to be valid as a^^dnst third per-
sons.
[For other esses, see Bstoppel, HI. d, in Digest
8up. Ct. 1908.1
V^ederal courts — proper district for
•nit — consent to Jurisdiction.
8. The chattel mortgagee of a bank-
KOTK^ — As to proper Federal district for
suit— aee note to Roberts y. Lewis, 86 L.
sd. U. S. 579.
•• li. ed.
rupt corporation, by answering and making
defense upon the merits, consents to the
jurisdiction of a Federal bankruptcy court
of a district other than that of the bank-
rupt's residence to entertain a petition filed
in the bankruptcy proceedings, m which the
invalidity of the mortgage as against the
trustee in bankruptcy is asserted, because it
was not filed and recorded in the county
where the bankrupt resides.
[For other cases, see Courts, 988-941S, In
Digest Sap. Ct. 1908.]
Judgment — collateral attack — adjudi-
cation of bankruptcy.
4. An adjudication of bankruptcy is
not open to collateral attadc.
[For other esses, see Judgment, IIL L 2, in
Digest Sup. Ct 1908.)
Appeal — qnestlona waived below.
5. The question of the capacity of a
trustee in bankruptcy to sue in the bank-
ruptcy court to recover possession of prop-
erty taken by the mortgagee under a chat-
tel mortgage made by the buikrupt, upon
the ground that the mo]rtgage was not prop-
erly acknowledged and recorded, is waived
when not taken in the trial court.
[For other cases, see Appeal and Error, VIII.
j. In Digest Sup. Ct. l908.]
Bankruptcy — title of trustee — rela-
tion.
' 6. The title of the chattel mortgagee of
a bankrupt corporr.tion could not be per-
fected as against the trustee in bankruptcy,
who asserts the invalidity of the mortgage
as against him because not properly ac-
knowledged and recorded, by taking posses-
sion of the chattel under the mortgage after
the filing of the petition in iMinkruptcy and
before the adjudication, in view of the pro-
visions of the bankrupt act of July 1,
1898 (30 SUt. at L. 557, chi^. 541), S
47a-2, as amended by the act of June 25,
1910 (36 Stat, at L. 840, chap. 412, Comp.
Stat. 1913, S 9631), giving trustees in bank-
ruptcy the rights and remedies of a lien
creditor or a judgment creditor as against
an unrecorded transfer, the estate being
in cuatodia legis from the filing of the peti-
tion, and the title of the trustee relating
back to that date.
[For other cssest see Bsnkruptcy, YII., In
Digest Sup. Ct. 1908.]
[No. 82.]
Argued and submitted December 2 and 3,
1915. Decided AprU 10, 1916.
APPEAL from the United States Circuit
Court of Appeals for the Seventh Cir-
cuit to review a decree which affirmed a de-
cree of the District Court for the Southern
District of Illinois, confirming the report
of a referee in favor of a trustee in bank-
ruptcy who asserts the invalidity, as against
him, of a chattel mortgage made by the
bankrupt because not properly acknowl-
edged and recorded. Affirmed.
See same case below, 129 0. 0. A. 224,
212 Fed. 688.
The facts are stated in the opinion.
•41
H
SUPRBMS COUKT OF THE UNITED STATES.
Mr. BUflha B. Diirf ee argued the cause,
and, with Messrs. John A. Bellatti, Walter
Bellatti, and Qeorge B. Soofleld, filed a
brief for i^ppellant:
Even before the new equity rules, it was
not necessary to raise the defenses of want
of facts and the jurisdiction of the subject-
matter by plea. They would be noticed if
obvious.
Singer Sewing Mach. Co. v. Benedict, 229
U. S. 481, 57 L. ed. 1288, 33 Sup. Ct. Rep.
941.
There is a difference between the capacity
or competency to sue generally, or in the
particular action which they bring, and the
right and title and capacity to hold the
property.
Society for Propagation of the Gospel v.
Pawlet, 4 Pet. 480, 7 L. ed. 927.
Where possession of property is prociu'ed
by fraud or mistake by a person who is
afterwards adjudged bankrupt, it is true at
least that unless there are subsequent
creditors who could have given credit on the
faith of the ownership by the bankrupt,
the title is defeasible in the hands of the
trustee, and the burden is on whichever
party is plaintiff to show about this. This
court, in the case of Montgomery v. Bucy-
rus Mach. Works, 92 U. S. 257, 23 L. ed.
656, held that, as no creditors were deceived
into giving credit on the apparent ownership
of the property by the bankrupt, the de-
frauded vendor was entitled to the prop-
erty, as against the assignee in bankruptcy.
There was a like holding in Donaldson v.
Farwell, 93 U.S. 631, 23 L. ed. 993.
It is the law of Dlinois, that on a con-
ditional sale, if no creditor has given credit
to the vendee on the faith of the ownership
of the property while it is in his possession,
the vendor may reclaim the property, and
his rights are superior.
Ketchum t. Watson, 24 HL 592; Van
Duzor V. Allen, 90 HI. 499; Gilbert t. Na-
tional Gash Register Go. 176 lU. 288, 52 N.
Jbi. 22.
Since the bankrupt or trustee was plain-
tiff here, the burden should be on him to
show that there was at least one creditor
who could have given credit to the bank-
rupt while the dredge was in its possession.
Miller v. New Orleans Add ft Fertilizer
Go. 211 U. S. 496, 53 L. ed. 300, 29 Sup. Ct.
Rep. 176.
While the recording of a chattel mortgage
within four months, etc, under the amend-
ment of June 25, 1910, might constitute a
preference under certain circumstances, the
taking possession under the circumstances
here 'Would not. There must have been a
conveyance within four months to have that
effect, and here there was none whatever.
The title was retained.
S4S
Dot. Temm,
Thompson t. Fairbanks, 196 U. S. 616, 49
L. ed. 577, 25 Sup. Ct Rep. 306.
But the amendment of June 25, 1910, of
the bankruptcy act, can have no detrimental
effect on this transaction which occurred in
1907. It would impair the obligation of
the contract to make it void or its realiza-
ti<m more hazardous; and such an inten-
tion will not be imputed, if not expressed.
Holt V. Henley, 232 U. S. 637, 58 L. ed.
767, 34 Sup. Ct. Rep. 459.
Oorporations were required to locate in
their charters their principal place of busi-
ness, that there might be no difficulty in
determining their location or residence.
"Residence," "Domicil," Century Diet.;
Pelton V. Northern Transp. Co. 37 Ohio St.
450; Western Transp. Go. v. Scheu, 19 N. Y.
408; Ez parte Schollenberger, 96 U. S. 369,
24 L. ed. 853; Galveston, H. ft S. A. R. Co.
V. Gonzales, 151 U. S. 496, 38 L. ed. 248, 14
Sup. Ct. Rep. 401; Hewitt v. General Elec-
tric Co. 164 IlL 420, 45 N. E. 725; Jenkins
V. California Stage Co. 22 CaL 537.
In this way this court worked out the
citizenship of corporations for the purposes
of jurisdiction.
St. Louis & S. F. R. Co. v. James, 161
U. S. 545, 40 L. ed. 802, 16 Sup. Ct. Rep.
621; Southern R. Co. v. Allinson, 190 U. S.
326, 47 L. ed. 1078, 23 Sup. Ct. Rep. 713;
Galveston, H. A S. A. R. Co. v. Gonzales,
151 U. S. 496, 38 L. ed. 248, 14 Sup. a. Rep.
401.
A corporation must dwell in the place of
its creation, and cannot migrate to another
sovereignty, unless by virtue of legislation.
Bank of Augusta v. Earle, 13 Pet. 521,
588, 10 L. ed. 275, 307; Canada Southern R.
Co. V. Gebhard, 109 U. S. 527, 27 L. ed.
1020, 3 Sup. Ct. Rep. 363.
There has been much diversity of decision
in the lower courts on the question of what
court has jurisdiction to adjudge a corpora-
tion bankrupt. Some hold that only the
court in the district in which the principal
place of business has been fixed in the char-
ter of the corporation has jurisdiction, and
that courts elsewhere are without jurisdic-
tion. Others hold that wherever the cor-
poration does the larger part of its business,
even if in a state foreign to its domicil, it
may be adjudged bankrupt by a court there.
White Mountain Paper Co. v. Morse, 62
C. C. A. 369, 127 Fed. 643; Re Elmira Steel
Co. 5 Am. Bankr. Rep. 505, 109 Fed. 456;
Re United Button Co. 137 Fed. 668; Re Bos-
ton, H. ft E. R. Co. 9 Blatchf. 101, Fed. Gas.
No. 1,677; Re Alaska American Fish Co. 162
Fed. 498; Re Pennsylvania ConsoL Coal Co.
163 Fed. 579; Re Duplex Radiator Co. 142
Fed. 906; Re Marine Mach. A Conveyor Oo.
91 Fed. 630; Tiffany v. La Plume Cbn-
densed Milk Go. 141 Fed. 444; Dressel v.
S40 V. 8.
lau.
FAIBBANKS BTKAU SHOVKL CO. ▼. WIULS,
Horth 8Ut« Lnmber Oo. a N. B. N. Rep. MS,
lOT FmI. SfiS; Re Matthew* Consol. SIaU
Co. 75 C. C. A. COS, 144 F»d. 737; LouierUle
Tniat Co, t. Comingor, 184 U. S. SO, 4« L.
•d. 416, 22 Sup. Ct. Rsp. 293.
Ben the court below lacked tenitorUl
Jnriadictioii uid jnritdictiou of the aubject-
inatttr, and fouod »Dd itkted it on the
record. Where facta material to the iiaucs
appear, that show want of juriidiction, the
Mart must dlamlM, tua *po*t». Here the
fact that the principal place of bnaineaa of
the bankrupt waa in Chicago, Cook eonntj,
in Qie northern district, and not in Bearda-
town, Oaaa countf, Illinoia, in the aouthem
^strict af niiiiois, was the very queation
at iBBue on which both decisiona below were
founded.
Hartog T. Memory, 118 U. 8. 888, 28 L.
•d. 726, e Sup. Ot. Rep. 521.
The bankmpt court had no Jnriadiction of
thla independent proceeding on the facta de-
Teloped againit appellant.
HarrU v. First Nat. Bank, 21« U. 8. 382,
64 L.\ed. 628, 30 Sup. Ct. Rep. 206; Re
Rochford, 59 C. C. A. 391, 124 Fed. 162;
Hanslield, C. ft L. M. R. Go. v. Swan, 111
U. S. 379, 382, 28 L. ed. 462, 4«3, 4 Sup. Ct.
Bep. SIO; Morris v. Gilmer, 129 U. S. 315,
38 L. ed. 6D0, 9 Sup. Ct. Rep. 289; Lovell
* Newman, 227 U. S. 412, 67 L. ed. 677, S3
Sup. Ct. Rep. 376.
llie court, ma tponit, should have dis-
miaaed this proceeding in equity, when it
appeared quite obvious on the face of the
record that the plaintiff, on the facta, had a
plain, adequate, and complete remedy at
law to recover the specific personal property.
At most the injunction shauld not have been
continued beyond time for an officer to take
posaesBion ot the property on a writ of
replevin.
Singer Sewing Mach. Co. v. Benedict, 229
O. 8. 481, 67 L. ed. 1288, 33 Sup. Ct. Rep.
Ml; Mackall v. Casilear, 137 U. S. 666, 34
L. ed. 776, II Sup. Ct. Rep. 173; Scott t.
Neely, 140 U. S. 110, 36 L. ed. 360, 11 Sup.
Ct. Rep. 712; Parker v. Winnipiseogee Lake
Cotton A. Woollen Co. 2 Black, S46, 17 L.
»d. 333; Lewis v. Cocks. 23 Wall. 466, 23
L. ed. 70; Sullivan v. Portland ft E. E. Co.
M V. 8. 806, 24 L. ed. 324.
Since the controversy on this petition
•gainat appellant was carried on in the
buikrupfa^ cause, entitled therein, with all
pftrtiea participating, in full view of tlie
bankruptcy proceeding, which was still
open, the court was bound to consider its
jurisdiction in both proceedings on Ita find-
ing that the principal place of buainees ot
the alleged bankrupt always waa in another
district. And it ahould har^ mta »po»t9,
dlamiesed botli.
Butler T. Katon, 141 D. 8. 240, >fi L. ed.
713, 11 Sup. Ct. Rap. 686.
Mr. Elbert O. Ferpison aubmitted the
cause for appellee. Messrs. William Mom-
ford and John C. Burebard were on the
brief:
Our statute relating to the organisation
of corporations having been adopted from
the New York atatnte, it muat receive the
same construction given the same or similar
language by the New York courts.
Re Qua T. Graham, 187 El. 71, 68 LJLA.
041, 68 N. B. 867; Rboads v. Chicago ft A.
R Co. 227 m. 328, 11 LJLA.(N.8.) 623, 81
N. E. 371, 10 Ann. Ota. 111.
The charter or certificate of complete or-
ganization of the corporation fixes its resi-
dence, and thia cannot be changed except by
following tbe method provided by law.
Norfolk Bank For SaT. ft Tniata v. God-
win, 32 C. C. A. 31, 07 U. B. App. 286, 80
Fed. 726; People ex rel. Knickerbocker Press
V. Barker, 87 Hun, 341, 34 N. Y. Supp. 269;
Western Transp. Co. v. Scheu, 10 N. Y. 408;
Pelton V. Northern Transp. Co. 87 Ohio St.
460; Ex parte Schollenberger, 96 U. S. 360,
84 L. ed. 853; First Nat. Bank v. Wilcox, 72
Wash. 473, ISO Pac. 766, 131 Pac 203.
This mortgage, not having been acknowl-
edged or recorded according to law, ia void
as against the trustee.
Frank t. Miner, 60 lU. 444; Long t. Coc^-
em, 128 111. 29, 21 N. B. 201; Stephenson
T. Browning, 48 111. 78; Hatnmeis v. Dole,
81 nl. 307.
The dUtrict court of the United States
for tbe souUiem district of Illinoia had ju-
risdiction to entertain the petition filed De-
cember 30, 1912, and to determine tbe ques-
tion of its own Jurisdiction.
Firat Nat. Bank r. King, 180 U. 8. 202,
46 L. ed. 1127, £2 Sup. Ct. Rep. 899; Smith
T. McKay, 161 U. 8. 366, 40 L. ed. 731, 10
Sup. Ct. Rep. 490.
Tbe district court of tbe United States
for the southern district of lUinois, having
adjudicated the Federal Contracting Com-
pany to be a bankrupt, thia judgment ia
final and binding on that corporation and
ita creditors nntil vacated on appeal or
otherwise.
23 Cyc. 1090, and eases cited; Remington,
Bankr. | 460; Black, Jndgm. § 246; Chap-
man T. Brewer, 114 U. 8. 168, 29 L. ed. 83,
6 Sup. Ct. Rep. 799.
The district court had power to hear and
determine tbe questions inrolved In this
appeal.
Collier, Bankr. Oth ed. p. «78t Dressel V.
North State Lumber Co. fi Am. Bankr. Rep.
744, 107 Fed. 266.
The petition for bankruptflj waa filed In
tfas proper district.
tf4»-645
SUPREME COURT OF THE UNITED STATES.
Oct. Temm,
Dressel y. North State Lumber Co. supra;
Re Marine Mach. & Conveyor Co. 1 Am.
Bankr. Rep. 421, 91 Fed. 630; Collier, Bankr.
0th ed. 33.
All property of the bankrupt becomes,
by the filing of the petition, in ouatodia
legia.
Re Jules & F. Co. 27 Am. Bankr. Rep.
136; Everett v. Judson, 30 Am. Bankr. Rep.
1; Andrews ▼. Partridge, 30 Am. Bankr.
Rep. 4; Burlingham v. Crouse, 30 Am.
Bankr. Rep. 6; Toof v. City Nat. Bank, 30
Am. Bankr. Rep. 79.
The rights of the trustee are those of an
attaching or execution creditor, having an
unsatisfied execution at the date of the
institution of bankruptcy proceedings.
Collier, Bankr. 9th ed. pp. 650, 662.
Possession taken by the mortgagee after
the filing of the bankruptcy petition is of
no avail to perfect his title.
Re Jules & F. Co. 27 Am. Bankr. Rep.
136; Toof T. City Nat. Bank, 30 Am. Bankr.
Rep. 79.
Mr. Justice Pitney delivered the opinion
of the court:
This is a controversy arising in a bank-
ruptcy proceeding. On December 30, 1912,
a creditors' petition in bankruptcy was filed
in the United States district court for the
southern district of Illinois against the
Federal Contracting Company, a corpora-
tion of that state, and on March 25, 1913,
it was •adjudicated a bankrupt. Between
those dates, and on March 6, the Fairbanks
Steam Shovel Company, the present appel-
lant, without actual knowledge of the filing
of the petition, seized a certain floating
steam dredge, then in possession of the Con-
tracting Company at Beardstown, Cass
county, which is in the southern district of
Illinois; doing this by virtue of a chattel
mortgage given by the Contracting Company
to appellant on Jime 8, 1012, the dredge
then being in the possession of the mort-
gagor at Beardstown. After the adjudica-
tion of bankruptcy, but before the appoint-
ment of a trustee, the bankrupt filed a
petition against appellant in the bankruptcy
proceeding, setting up that the mortgage was
not acknowledged or recorded in Cook Coun-
ty, Illinois, where the principal office of
the bankrupt was located by its charter, and
for this reason was invalid . against the
trustee in bankruptcy to be appointed, and
praying that appellant might be restrained
from selling [644] the dredge, as it threat-
ened to do. The court entered a temporary
restraining order, which was served; appel-
lant, without questioning the jurisdiction of
the court, appeared and answered, admitting
that it had taken possession of the dredge
under the provisions of the mortgage, id-
844
I leging that the mortgage was duly exeeuted
and was given to secure a part of the pur-
chase price of the dredge, and that at the
I time of its execution the bankrupt, through
its officers, represented to appellant that
its principal place of business was at
Beardstown; and further, that, before the
adjudication of bankruptcy, appellant took
actual possession of the dredge, and thereby
perfected its title thereto; and asking that
the injunction be dissolved, etc. No trustee
having yet been appointed, it was ordered
by the court, upon a stipulation between
the parties, that the sale should proceed,,
imder an arrangement providing, among
other things, that if appellant purchased
the dredge, it should hold it subject to the
decision of the controversy. The sale was
held accordingly, and the dredge was pur-
chased by appellant. Thereafter appellee
was appointed trustee in bankruptcy, and
was substituted as a party to the contro-
versy in place of the bankrupt. .The matter
was heard before the referee, who reported
in favor of the trustee. The district court
overruled exceptions and confirmed the re-
port; and, on appeal, the circuit court of
appeals affirmed the decree. 120 C. C. A.
224, 212 Fed. 688. The appeal to thia
court antedated the act of January 28,
1015, chap. 22, §§ 4 and 6, 38 Stat, at L.
804.
The principal question is whether the
chattel mortgage was properly acknowl-
edged and recorded so as to be valid against
the trustee in bankruptcy.
The law of Illinois respecting chattel
mortgages may be found in chap. 95 of
Hurd's Rev. Stat. 1909. Par. 1 provides
that no such mortgage shall be valid as
against the rights and interests of any third
person unless possession shall be delivered
to and remain with the grantee, [645] or
the instrument shall provide for the posses-
sion of the property to remain with the
grantor, and the instnunent be acknowl-
edged and recorded as thereinafter directed.
Par. 2 provides that such instrument shall
be acknowledged before a specified ofiicer of
*'the county where the mortgagor resides,"
if a resident of the state, with a proviso
that in counties having a population of
more than 200,000 (this applies to Cook
county), such instrument, 'if the mortgagor
is a resident of the state," shall be acknowl-
edged before one of several designated officers
of the town, precinct, district, or county *in
which the mortgagor resides." By par. 4,
the mortgage, when so acknowledged, "shall
be admitted to record by the recorder of the
county in which the mortgagor shall reside
at the time when the instrument is executed
and recorded."
The bankrupt was incorporated in the
940 U. S.
1915.
FAIRBANKS STEAM SHOVEL CO. y. WILLS.
645-648
jear 1905 under a general act (Hurd'a Rev.
Stat. 1909, chap. 32), the second paragraph
ai which requires tiie organizers to make,
subscribe, and acknowledge a statement set-
ting forth the name of the proposed corpora-
tion, the object for which it is formed, its
capital stock, the location of the principal
office, etc., which is to be filed in the office
of the secretary of state. If the object of
the proposed corporation is clearly and defi-
nitely stated and is a lawful object, the
secretary of state issues to the corporators
a license as commissioners to open books for
subscription to the capital stock. After the
stock is subscribed, directors or managers
elected, etc., the secretary of state (^ 4)
issues a certificate of the complete ' organi-
sation oi the corporation. But, before this
is done, the corporaticm must "file with the
secretary of state a statement setting forth
the postoffice address of its business office,
giving street and number." (Act of May
10, 1901, Laws 1901, p. 124; Hurd's Rev.
Stat. 1909, chap. 32, par. 192.)
Other sections (chap. 32, ff 50 et seq.)
contain elaborate [646] provisions to be
complied with when the directors of any
corporation "may desire to change the name,
to change the place of business, to enlarge
or change the object for which such corpo-
ration was formed, to increase or decrease
the capital stock," etc. There is to be a
special meeting of the stockholders, called
on notice mailed to each stockholder and
published in a newspaper, and votes repre-
senting two-thirds of all the stock of the
coloration shall be necessary for the adop-
tion of the proposed change; an appropriate
certificate is to be filed in the office of the
secretary of state, and a like certificate
made a matter of record in the county
where the principal business office of tlM
corporation is located; and a notice of the
change is also to be published in a newspa-
per for three successive weeks.
The statement made by the organizers of
the bankrupt corporation declared: "The
location of the principal office is in the city
of Chicago, in the county of Cook, and
state of Illinois." A license was issued to
them as commissioners to open books for
subscription to the capital stock, and in
due course they made their report to the
secretary of state, in which it was stated:
"That the postoffice address of the business
office of said company is at No. — Park
Hotel, streets not numbered, in the city of
Beardstown, in the county of Cass, and state
of Illinois." Upon receipt of this, the sec-
retary of state issued a certificate of com-
plete organization, including in it the first
statement, the report of the commissioners,
and other papers filed in his office respect-
ing the organisation of the oorporation, as
60 L. ed.
required by the statute. The first meetings
of the stockholders were held in Chicago,
and another stockholders' meeting was held
there about two years later. All other re-
corded meetings of stockholders and direc-
tors were held in Beardstown. An office
was nominally maintained in Chicago, but
no records or books of account were kept
nor any business transacted [647] there.
So far as the practical conduct of the busi-
ness was concerned, and to all outward ap-
pearances, the principal office was in
Beardstown. But no change of "the place
of business" was made in the manner pre-
scribed by the statute.
The chattel mortgage was made, acknowl-
edged, and recorded in Cass county, and
was never either recorded or acknowledged
in Cook county.
The circuit court of appeals held, affirm-
ing the district court, that the "residence"
of the bankrupt was in Chicago, which is
in Cook county, and that therefore the mort-
gage, having never been properly acknowl-
edged or recorded, was invalid as against
the trustee in bankruptcy.
This, in our opinion, was a correct dis-
position of the question. The statutes of
Illinois recognize the propriety of a fixed
location for the principal office of a cor-
poration, requiring this to be specified in
Uie certificate of organization and to be
left unchanged except on formal action by
two thirds in interest of the stockholders.
Whether "principal office" and "business of-
fice" are synonymous is not entirely clear,
and we are referred to no decision by the
state courts throwing light upon this. But,
supposing them to be synonymous, it does
not seem to us that the report of the com-
missioners for stock subscriptions can have
the effect of establishing the office in Cass
county, for we find no authority in the com-
missioners to materially change the location
of the principal office as formally declared
by the organizers.
We are of opinion that a corporation or-
ganized under the laws of Illinois is to be
deemed a resident of the state within the
meaning of the chattel mortgage act, and
that tlie county of its residence must be
taken to be the county in which its princi-
pal office is located. So far as the decisions
of the state courts throw light upon the
question, they bear out this view. Bank of
North America v. Chicago, D. k V. R. Co.
82 HI. 493, 496; Hewitt v. General [648]
Electric Co. 164 HI. 420, 425, 45 N. £. 725.
And a similar view prevails in other juris-
dictions. In Ex parte Schollenberger, 96 U.
S. 369, 377, 24 L. ed. 863, 854, this court, by
Mr. Chief Justice Waits, said: "A corpora-
tion cannot change its residence or its dti-
lenship. It can have its legal home op*~ ~^
648-450
SUPREME COURT OF THE UNITED STATES.
Oct. TnM,
the place where it is located by or under
the authority of its charter; but it may by
its agents traniact business anywhere, un-
less prohibited by its. charter or excluded
by local laws." And in Galveston, H. k S.
A. R. Ck>. V. Ck>nEale8, 161 U. 8. 496, 504,
38 L. ed. 248, 251, 14 Sup. Ct. Rep. 401, the
court, by Mr. Justice Brown, said: "In
the case of a corporation the question of
inhabitancy must be determined, not by the
residence of any particular officer, but by
the principal offices of the corporation,
where its books are kept and its corporate
business is transacted, even though it may
transact its most important business in an-
other place." A case in point with the pres-
ent is First Nat. Bank v. Wilcox, 72 Wash.
473, 130 Pac. 756, 131 Pac. 203. And see
Western Transp. Ck>. v. Scheu, 10 N. Y.
408; Union S. B. Go. v. Buffalo, 82 N. Y.
851, 355; Pelton v. Northern Transp. Ck>.
37 Ohio St. 450; Jenkins v. California Stage
Co. 22 Cal. 537; Cohn v. Central P. R. Co.
71 Cal. 488, 12 Pao. 498.
It is hardly necessary to say that what-
ever equities, if any, arose out of the mort-
gagor's representation that its principal
place of business was at Beardstown, or out
of the fact that the mortgage was given to
secure a part of the purchase price of the
dredge, were confined in their effect to the
immediate parties, and could not operate to
estop the trustee in bankruptcy, representa-
tive of the interests of creditors, for whose
protection the recording act was passed.
It is objected by appellant that a deter-
mination ^at the bankrupt corporation had
its principal place of business and therefore
its residence in Cook county, which is in the
northern district, shows at the same time
that the United States district court for
the southern district of [040] Illinois had
no jurisdiction to entertain the proceeding
in bankruptcy under S 2 of the bankruptcy
act, and hence no jurisdiction over the pres-
ent controversy. (See Harris v. First Nat.
Bank, 216 U. S. 382, 54 L. ed. 528, 30 Sup.
Ct. Rep. 296.) As to this, the circuit court
of appeals correctly held that appellant, by
answering and making defense upon the
merits, consented to the jurisdiction, so that
whether, under §§ 23a and 23b, construed
together with § 70e, as amended, consent to
Uie jurisdiction of the district court was
required, need not be considered.
On like groimds, it is insisted that the
adjudication of bankruptcy was invalid, and
that the trustee had no capacity to sue. But
the adjudication is not open to collateral
attack, and the question of capacity was
waived because not raised in the trial court.
Appellant's title was not perfected, as
against the trustee in bankruptcy, by tak-
ing possession of the dredge under the
846
mortgage after the filing of the petition in
bankruptey, and before the adjudication.
Since the amendment of § 47a-2 of the bank-
ruptcy act by the act of June 25, 1910
(chap. 412, I 8, 36 Stat, at L. 838, 840,
Comp. Stat. 1913, §§ 9586, 9631), trustees
have the rights and remedies of a lien
creditor or a judgment creditor as against
an unrecorded transfer. The estate was in
ouMtodia Ugi§ from the filing of the peti-
tion, and the title of the trustee related
back to that date. Acme Harvester Co. v.
Beekman Lumber Co. 222 U. S. 300, 307, 56
L. ed. 208, 213, 32 Sup. Ct. Rep. 96; Everett
V. Judson, 228 U. S. 474, 478, 57 L. ed. 927,
929, 46 L.R.A.(N.S.) 154, 33 Sup. Ct. Rep.
568.
Other questions are raised, but they are
unsubstantial and require no particular
mention.
Decree affirmed.
[650] STATE OF GEORGIA, Complainant,
V.
TENNESSEE COPPER COMPANY and the
Ducktown Sulphur, Copper, k Iron Com-
pany, Limited.
(See S. C. Reporter's ed. 650, 651.)
Injunction -^ against pollution of air —
suit by state.
Injunctive relief to the state of
Georgia against the discharge of noxious
gases from copper smelters in Tennessee in
such quantities as are destructive to vegeta-
tion in Greorgia awarded by final decree.
[For other cases, see Injunction, II. b, in
DJcest Sop. Ct. 1908.]
[No. 1, Original.]
Submitted February 28, 1916. Final decree
entered April 3, 1916.
ORIGINAL SUIT in equity by the stat»
of Georgia to enjoin the discharge of
noxious gases from oopper smelters in Ten-
nessee so as to injure vegetation in Georgia.
Final decree entered.
Messrs. Lamar Hill, J. A. Drake, Clif-
ford Walker, and Mark Holding submitted'
on behalf of complainant a motion for final
decree of injimction.
Mr. George H. West, in behalf of Messrs.
W. B. Miller and J. A. Fowler, submitted
an application on behalf of defendant, the*
Ducktown Sulphur, Copper, k Iron Com-
pany, for final decree dismissing the bill aa
to it.
Messrs. J. A. Drake, Lamar Hill, aifford
Walker, and Mark Bolding submitted on
behalf of complainant objections to the mo-
tion to dismiss.
940 V. 8.
1916.
NORTH CABOUNA y. TBNNS88EE.
660-662
The Ghief Justice ftanounoed the follow-
ing order:
This cause coming on to be heard on the
report of the inspector heretofore appointed
to obserre operations of the plant and works
of defendant the Ducktown Sulphur, Copper,
ft Iron Ck>mpany, Limited, and upon oon-
sideration thereof
It is now here ordered, adjudged, and de*
creed (and all former decrees are aooord-
ingly modilied) as follows:
1. That defendant the Ducktown Sulphur,
Copper, ft Iron Company, Limited, here-
after shall not permit escape into the air
from its works of fumes carrying more than
45 per cent of the sulphur contained in
green ores subjected to smelting.
2. That it shall not hereafter from April
10th to October -1st in any year permit
escape into the air of gases the total sul-
phur content of which shall exceed 25 tons
during one day, and not more than 50
tons per day shall be permitted to escape
at other times.
8. That it shall keep a daily record of the
amount of green ores smelted, sulphur in
green ore, acid made, sulphur in acid, per
centum of sulphur recovered, sulphur es-
caping, and per oentum of sulphur escaping,
BO that statements may be compiled there-
from substantially the same as table 8, page
19, printed report of the inspector. [651]
It shall also keep a weather record showing
direction and velocity of wind, humidity,
temperature, and pressure at intervals of
six hours. These records, verified by the
oath of a responsible officer or employee of
the defendant, shall be reported to the clerk
of this court immediately after the end of
each calendar month.
4. That it shaU deposit with the clerk of
this court an additional sum of $125.40 to
cover expenses and compensation of in-
wpeetoT,
5. That the clerk shall pay to Dr. John
T. McOill, inspector heretofore appointed,
the sum of $8,875.40 — $8,000 being compen-
sation for services, and $375.40 to meet ex-
penses incurred in excess of payments here-
tofore made to him.
6. The costs of the proceedings in the
cause from February 24, 1914, to this date,
will be charged to defendant the Ducktown
Sulphur, Copper, ft Iron Company, Limited;
costs accruing prior to February 24, 1914,
will be divided equally between the Ten-
nessee Copper Company and the Ducktown
Sulphur, Copper, ft Iron Company, Limited.
7. The cause will be retained on the dock-
•t until further order of the oourt
April 8, 1916.
«0 Is. ed.
[668] STATE OF NORTH GABOLINA,
Complainant)
V.
STATE OF TENNESSEE.
(See S. C. Reporter's ed. 652-668.)
Bonndarles » between states.
The true boundary line between the
states of North Carolina and Tennessee
through the Slick Rock sad Tellioo basins
decreed to be as delineated in the report of
commissioners appointed for that purpose.
[For other cases, see Boundaries, IlL c» in
Digest Bop. Ct 1908.]
[No. 4» Original.]
April 8, 1916.
ORIGINAL Suit in Equity brought by
the State of North Carolina against
the State of Tennessee for the judicial es-
tablishment of a part of the boundary line
between the two states. The true bound-
ary decreed to be as delineated in the re-
port of commissioners appointed for that
purpose.
This cause coming on to be heard on the
motion of counsel for the complainant, con-
curred in by the counsel for tiie defendant,
to confirm the report of the commissioners
heretofore appointed by this court to ascer-
tain, retrace, remark, and reestablish the
real, certain, and true boundary line be-
tween the states of North Carolina and
Tennessee between certain points mentioned
in said report, which said report is in the
words and figures following, to wit:
Pursuant to a decree of the Supreme
Court of the United States, issued at the
October Term, 1914, which appointed D. B.
Burns of Asheville, N. C, W. D. Hale of
Maryville, Tenn., and Addison, Ky., and
Joseph Hyde Pratt of Chapel Hill, N. C,
Commissioners to permanently mark and set
Monuments on the line in dispute in said
controversy between said States, and which
set out in detail the duties of said Com-
missioners, we the said D. B. Bums, W. D.
Hale and Joseph Hyde Pratt, Commission-
ers, do herewith respectfully submit our re-
port.
We have, as ordered, reproduced on the
accompanying map. No. 1, the State Line
from Tree No. 1 — the same being the 59th
mile-tree marked by the Commissioners in
1821 — southwestwardly to the point where
the dispute, began which point is 15 feet
south 32 46' west from Tree No. 29 — ^the
hemlock fore and aft tree marked by the
NoTB. — On Judicial settlement of state
boundaries see note to Nebraska t. Iowa,
86 L. ed. U. S. 798.
A4T
662-664
SUPREME COURT OF THE UNITED STATES.
OoT. Temm,
CommissionerB in 1821 — ^jost north of Little
Tennessee river. The description of said
reproduced line is as follows, t^:
[653] BEGINNING at the 69th mUe tree,
a large red oak or mountain oak, marked on
the southeast side (Jf). This tree stands
in the Rich Gap of the Smoky Mountain and
260 feet North SO 47' East from the lowest
part of said gap, and runs with the mean-
ders of the mountain South 26 60' 00^
West 100 feet to a stake,
thence South 43 66' 36"" West 472 feet to
a stftke
thence South 60 68' 66"" West 212 feet to
a stake,
thence South 83 18' 42^ West 344 feet to
a stake
thence South 82 32' 00^ West 236 feet to
a stake,
thence South 66 06' 47"" West 661 feet to
a stake,
thence South 82 31' 36"" West 646 feet to
a stake
thence South 61 24' 26"" West 424 feet to
a stake,
thence South 43 68' 67"" West 284 feet to
a stake
thence South 40 20' 30^ West 620 feet to
a stake,
thence South 46 62' 47"" West 332 feet to
a stake
thence South 0 30' 10^ East 410 feet to
a stake
thence South 6 68' OO'' East 191 feet to
a stake,
thence South 2 26' 42^^ West, passing the
Dalton Gap at 667 feet — a very deep gap
through which the Old Tellassee Trail pass-
es, 1367.6 feet to a stake,
thence South 66 68' 00^ West 149 feet to
thence South 47 06' 06"" West 616 feet to
thence South 62 08' 16'' West 264 feet to
o stake
thence South 74 42' 16"" West 166 feet to
a stake
thence South 63 02' U"" West 679 feet to
a stake
thence South 26 22' 16"" West 134 feet to
a stake,
thence South 16 69' 16^ West 637 feet to
a stake
thence South 28 62' 30^ West 783 feet to
a stake,
thence South 33 4^ 6^ West 617 feet to
a stake
thence South 0 31' 61'' East 279.6 feet to
a stake,
then South 6 31' 67^ West^. passing a pUe
of rocks at the su|^posed location of the 61st
mile tree at 423 fcwi, 463 feet to a stake,
thence South 2 40' 30^ East 460 feet to
a stakes
848
thence South 17 21' 2Z'' West 461 feet to
a stake,
[654] thence South 41 01' 06" West 93
feet to a stake,
thence South 43 46' 39^ West 611 feet to
a stake,
thence South 17 49' 27"" West 437 feet to
a stake,
thence South 34 00' 30^ West 246 feet to
a stake,
the turnpike road in a deep gap,
thence South 73 30' 00^ West 380.2 feet
to a stake,
thence South 60 43' 30^ West 126.4 feel
to a stake,
thenoe South 62 18' 00"" West 1304.4 feet
to a stake,
thence North 72 19' 00^ West 490 feet to
a stake,
thenoe South 67 34' 00^ West 460 feet to
a stake,
thenoe North 63 18' 30" West 366 feet to
a stake,
thenoe North 72 23' West, passing the
Locust Gap, where the 62ad mile tree is said
to have stood, at 112 feet, 746 feet to a
stake,
thence South 83 42' West 639.7 feet to
a stake,
thence South 34 26' 30^ West 198.7 leet
to a stake,
thence South 82 62' 30^ West 631.6 feet
to a stake,
thenoe South 64 14' 00^ West 370 feet to
a stake,
thence North 76 17' 30^ West 660 feet to
a stake,
thence South 76 16' 30^ West 660 feet to
a stake,
thence South 69 28' 30'' West 200 feet to
a stake,
thenoe South 86 32' 00^ West 400 feet to
a stake,
thence South 71 86' 00^ West 670 feet to
a stake,
thence South 66 21' 00^ West, passing an
18^ hickory, supposed to be the 63rd mile
tree, at 344 feet, 600 feet to a stake,
thenoe South 10 69' 00^ West 200 feet to
a stake,
thenoe South 63 07' WT West 160 leet to
a stake,
thenoe South 27 44' 00^ West 460 feet to
the top of a high knob,
thenoe South 61 62' 00^ West 680 feet to
a stake,
thenoe South 66 Or 00^ West 260 feet to
a stake,
thenoe South 46 13' 30^ West 390 feet to
a stake,
thenoe South 66 48' 80^ West 160 leet to
a stake,
thence South 26 22' 00* West 220 leet to
a stake,
148 V. m.
NOETH CAROLINA T. TBinfESSKK.
SS4-dG7
ttoM ScHith 1« ir OC Eaat 2S0 fwt to
ftsteke,
[8SS] thaoM South 62 44' 30" Weit 3«0
feet to B •t«ke,
Umtdm South 17 48* W Eut 690 leet to
Pin* Knob,
75 47' 30* WMt 380 feet to
76 27' 30" WeBt 610 feet to
WSM SS 20' 30" Weit 460 fast to
Ifi 07' 30" Wert 860 feet to
6* SS* 30* Weit 680 feet to
67 61' 30* Wert 470 fert to
49 £4' 30' West pusing k
fore and aft hemlock oorth of Little Tennea-
■ee rivtf at 77S tc wheie the
di*ergG, we srt up a Rock
^^ inche.wide.'>M'^3£
of it N.
ii^r^ OD the
northeart aide 0+00 and on
aide 1915, and cut an X In the top of the
Bock. Thia ia Monument No. 1. From thla
point, on the 7th da? of August 1916, we be-
gan the survey and marking of the line,
marking side line trees with 3 hacks and
fore and aft treee with 2 backs above ■
blaze, as follows:
South 76 11' 00" West 136 feet to the
river bank, thence down the river on the
North bank North 38 2V 30* West 286
leet to a stake,
thence North 26 tr 00" West £66 fert to
a stake,
thence North 22 IS' SO" West 386 feet to
thence North 66 42' 00' West, passing the
■tump of tree No. 30 at 2GS feet, 619 feet to
78 65' 30' Wert 361 feet to
78 60* DO" West 242 fert to
86 II' 00- Weet 372.2 fart
76 28' 30" Wert 276.6 fert
on the North bank ot Iiittle
Tennessee river at low water mark, said
Boulder to 4 fert wide. 10 feet long and 8
fert high, and on it we cut an X and on the
■outheaat side of the X wa cut N. C. 1916
side TENN. £0+70.7.
This ia Monument No. 2 thence [656]
South 64 36' 00" West 313 feet crosalng
the river to a Boulder on the South bank of
the river and on the west bank of Slick
Boulder is 6 feet wide, 16
(Mt long and 4 feet high, and on it we cut
an Z and on the east side ol the X we cut
8« Ii. ed. M
N. C. on tlie west side TBHN. on the north '
side 1015 and on the south side 32+63.7.
This Boulder being "3 MonU'
ment No. 1. This No. 3.
Prom this point we ran up and with the
bed of Slide Rock Creek as follows:
South 30 13' 00' East 209.3 feet to a X
thence South 7 24' 00" Wert 494 fert to
a X on a roek,
thenoe Soutii 4 17' 00" Eaat 630 fert to
a X on a rock,
thence South 38 26' 00- Wert 360.7 fert
to a X on a rock,
thence South 60 21' OO" West 605.7 fert
thence South 2 36' 30" Eart 427.6 fert
to a X on a rock,
tbence South 21 ST 30* Eaat 306.6 fert
to a X on a rock, near Ravens Den,
thence North 82 29' 30" West 640.4 fert
to a X on a rock,
thence South 87 14' 30" Wert 173.6 feet
to a X on a rock,
thence South 19 21' 30" Wert 273.3 feet
t« a X on a rock,
thence South 39 36' 30" Eaat 171.0 feet
to a X on a rock,
tbence South 70 45' 00" Eart 320.3 feet
to a X on a rock,
thence South 2S 28' 00" East 177.9 fert
thence South 21 30' 30' West 28S.0 (crt
to a X on a rock,
thence North 69 17' 30" Wert 728.4 fert
to a X on a rock,
thence South 88 36' SO", Wert 868.0 fert
to a X on a rock,
thence North 70 01' 30* Wert 481.6 fert
to a X on a rock,
thence South 60 27' 30* Wert 413.0 fert
to a X on a rock,
thence South 3 19' 00' West 320.0 fert
to a X on a rook, at top of lower falls
thence South 47 27' 00" Bart 4S4.0 fert
to a X on a rock,
tlience South 47 16' 00" Wert 113.0 fert
to a X on a rock,
thence North 82 62' 00* Wert B81.4 fert
to a X on a rock,
thence South 38 42' 00" Wert 172.7 fert
to a X on a rock,
tbence South 14 00' 00" Eaat 634.6 fert
to a X on a rock,
thence South 6 09' 30' Wert 798.9 fert
to a X on a ixMk,
[eST] thence South IS IW SO" Eaat 257.7
feet to • X on a rock,
thence South 38 02' 80* Eaat S91.8 fert
to a X on a rock,
thence South 37 20' 30" Wert 230.0 fert
to a X on a roek, near the mouth of Slick
Rock Gap, branch,
S4t
657-669
SUPBBME COURT OF THE UNITED STATES.
Oct. TkBM,
thflooe North 57 W 3(r West 485.6 fM*
to a X on a rock,
thence N<nrth 85 41' W Wert 48241 feet
to a X on a rock,
thence South 17 IS' OCT West 43241 feet
to a rock in Slick Rock Creek near the west
bank and about '30 feet above where the
Belding Trail crosses the creek. This Rock
Ib 3 feet wide, 5 feet long and 2 feet high.
On it we cut an X and cut N. C. on the
southeast side, TENN. on the northwest
side, 1015 on the southwest side and 156+
60.8 on the northeast side of the cross. This
is Monument No. 4.
thence South 28 W ZO" West 189.9 feet
to a X on a rock,
thence North 75 04' 80^ West 279.8 feet
to a X on a rock,
thence North 47 01' 30^ West 870.5 feet
to a X on a rock,
thence North 72 23' 00^ West 8204^ feet
to a Ftake,
thence South 19 47' 30^ West passing the
mouth of Little Slick Rock Creek at 85 feet,
685.2 feet to a X on a rock,
thence South 41 03' 00^ West 4654^ feet
to a X on a rock,
thence South 24 22' 00^ West, passing the
mouth of Nichols Cove brandi at 140 feet,
622.8 feet to a X on a rock,
thence South 6 35' 80^ West 275.5 feet
to a X on a rock,
thence South 26 39' 00^ West 518.0 feet
to a X on a rock,
thence South 1 58' 00^ East 5074^ feet
to a X on a rock at the Panther Den,
thence South 58 02' 00^ West 276.7 feet
to a X on a rook,*
thence South 89 07' 30^ West 185.6 feet
to a X on a rock,
thoice South 82 52' 30^ West 287.2 feet
to a X on a rock,
thence North 56 19' 30^ West 885.0 feet
to a X on a rock,
thence North 52 35' 80^ West 304.0 feet
to a X on a rock,
thence South 84 13' 80^ West 281.8 feet
to a X on a rock,
thence South 43 16' 80^ West 254.8 feet
to a X on a rock,
thence South 9 07' 00^ East 154.4 feet
to a X on a rock,
[668] thence South 86 44' 00" East 179.6
feet to a X on a rock,
thence South 14 15' 00^ West 173.4 feet
to a X on a rock,
thence North 86 45' 80^ West 322.0 feet
to a X on a rock,
thence North 71 16' 00^ West 251.4 feet
to a X on a rock,
thence North 17 05' 80^ West 405.2 feet
to a X on a rock,
thenoe North 68 85' 00^ West 829.5 feet
to a X on a rock,
860
thence South 48 09' 00^ West 20741 feet
to a X on a rock,
thenoe South 23 56' 80^ West 869.9 feet
to a X on a rock,
thenoe South 44 30' 80^ West 82.0 feet
to a X on a rock,
thence South 4 47' 00* West 425.1 feet
to a X on a rock,
ihence South 8 51' 00* East 129.6 feet
to a X on a rock,
thenoe South 53 26' 00^ West 599.4 feet
to a X on. a rock,
thence South 2 30' 00^ East 254.6 feet
to a X on a rock,
thoioe South 16 07' 30^ East 168.6 feet
to a X on a rock,
thence South 35 12' 00* West 370.0 feet
to a X on a rock,
thence North 67 59' 30^ West 393.4 feet
to a X on a rock at the mouth of a small
branch,
thence South 14 36' 80^ West 494.0 feet
to a X on a rock,
thence South 70 54' 00^ West 160.5 feet
to a X on a rock,
thence North 66 12' 00^ West 561.2 feet
to a X on a rock,
thence South 68 50' 00^ West 197.3 feet
to a X on a rock,
thence South 18 18' 30^ West 350.1 feet
to a X on a rock,
thence South 45 16' 30^ East 241.9 feet
to a X on a rock,
thence South 50 11' 30^ East 281.8 feet
to a X on a rock,
thence South 43 40' 30^ West 316.2 feet
to a X on a rock,
thence South 11 19' 30^ West 238.6 feet
to a stake,
thenoe North 83 38' 80^ East 314.4 feet
to a X on a rock,
thenoe South 0 44' 00^ East 193.8 feet
to a X on a rock at the mouth of a small
branch,
thence South 84 02' 30^ West 240.0 feet
to a X on a rock,
tiience South 11 40' 00* East 206.7 feet
to a X on a rock,
tiienoe South 40 61' 00^ West 539.3 feet
to a X on a rock,
thenoe South 10 18' 30^ East passing the
foot of falls at 198 feet, 247.6 feet to a X
on a rock,
thenoe South 78 41' 00^ East 134.2 feet
to a X on a rock in the falls,
[659] thence South 12 37' 00" West 262.6
feet to a X on a rock in the falls,
thrace South 11 28' 30^ East passing the
top of falls at 20 feet, 224.2 feet to a X on
a rook,
thence South 23 21' 80" West 578.6 feel
to a X on a rock,
thrace Soutii 48 86' 80" West 428.6 feet
to aX on a rock,
646 U. 6.
KOBTH GABOUNA. t. IXNNEB8BE.
OeuM South 10 43' M* But 21TJ fast
to ■ Large Boulder oa the Weat bank ci
Slick Rock Creek neu the month of Big
Btkck rknch, and at the point of a
ridge Big
tain and near tree No. 4S.
t feet wide, 10 fret long and
It we cut an X and
the X we cut N. ;;N
■iile TENN. ^t^ 1916 and
en the nortbeaat ^ it being
SS,624.& feet from Monument No. 1. This U
Uonument No. 6.
nience up aaid ridge leading to the Big
South 2 46' 00'
a stake,
26 W 30* West Tei.l feet
72 fiO' 00" Weat 4B8.0 feet
72 41' 00* Weat S32.8 feet
3S 01' 80- Wert 160.7 feat
13 04' 00- Wert 487.0 feet
6& 34' 00" Wert 806.8 fert
SS^^ 14 or 00- Wert S1.4 feet
46 IV 00- Wert 127.7 fert
62 42' 30' Weet 626.8 fert
30 SO* OO" Wert 181.8 fert
29 60- 80- Weet S37.4 fert
62 64' SO' Wert SGB.3 fert
S OS' 30- Wert 17T.0 fert
ST 07' 30" Wert 184.0 fert
26 04' 30- West 302.7 fert
29 16' 00- Wert 336.0 fert
42 S3' 00- Wart 104.0 fert
68 21' 00- WMt 814.0 fert
[•eO] thence South 78 SV OV Weat 610.6
feet to a sUke,
thence North 73 26' 00- Wert 6SB.6 fart
iM^^ 63 08' 00' Wert 281.1 tert'
■Ji,9t}>M B6 21' 00- Wert 270,8 fert
78 10' 00- Wert 147.0 fert
B6 67' 00- Wert 207.4 fert
tiunee South <0 01' 00- Wert 342,8 fert
to the top of the Big
where wa art 'imfjim/^ '^
«a thick, 5fiS»M
high, and on it we ent on the
N. C. 427+26.0 D. B. B. P.
X in mWt 42726 fert
from Theoeo along Big
with Its meanders
:g^ 'Sib lines of D. B. Burn's former
14 29' 30- East 138.1 fert to
X South 8 6^ 30' Eaut 641.4
fert to a rtake, themce Sonth 28 16' 30"
Esat pasaing Harrison Gap at 11S6 feet,
1323.2 fert to a stoke,
thence South 11 12' 30" Wert 810.8 fert
34 60* 00" Eart SIO.T fert
20 38' 00' Sart 187.8 fert
23 80' 00- Eart 1083.0 fert
41 18' 80' East 311.1 fort
iS the Rock Staak,
60 38' 30' East 364.8 fert
mim 83 SS- 00" East 4G3.3 fert
00 02* 00" East 48S.4 fert
37 67' 30" Eart 208.0 fert
the top of a very high knoh,
10 00' 30- East 674.6 fert
» 06' SO- Bart 686.2 fert
21 84' 00' East 106.8 feet
2 41' 00~ Eart 444.7 fert
to Monument No. T, a Stona 6
10 inchea high, and cot
an X On the eart side we
[861] ^ C, 1016 and on the
Wert 608+06. This Stone
stands Gap and ia 60^96 fert
from Monument No. 1. Oontinuing on
same course 228.0 fert to a stake, thenea
South 47 60* 30- Eart 834.7 fert to ■
stake,
thence North 82 06' SO' Eart 160.7 fert
80 40* 30" I
67 14' ao- I
: SeSJ fert
•61,0 fert
40 sr 00- B«st 1S8.S fert
the Chestnut Knob,
6 27' 00- Eart 801.1 fert
20 U' 00- Wart 4SSJ fert
Wt
661-663
SUPREME COURT OF THE UNITED STATES.
Oct. Tesm,
thence South 33 46' 3(r Weet 352.4 feet
to a stake,
thenoe South 33 62' OCT West 460.6 feet
to a stake,
thence South 26 05' 00^ West 205.2 feet
to a stake,
tiience South 6 21' 30^ West 60.7 feet
to a stake,
thence South 17 37' 30'' West 515.8 feet
to a stake,
thence South 13 56' 00" West 139.0 feet
to a stake,
thence South 21 45' 00" East 325.2 feet
to a stake,
thence South 42 15' 00" East 324.9 feet
to a stake,
thence South 40 47' 30" East 327.4 feet
to a stake, in the Denton Gap,
thence South 7 15' 30" East 335.1 feet
to a stake,
thence South 22 31' 30" West 176.7 feet
to a stake,
thence South 14 59' 30" East 563.9 feet
to a stake,
thence South 14 33' 00" East 355.5 feet
to a stake, in the Cherry Log Gap,
thence South 4 38' 00" East 487.5 feet
to a stake,
thence South 0 16' 00" East 71.3 feet
to a stake,
thence South 4 01' 30" East 89.4 feet
to a stake,
thence South 16 01' 00" West 210.3 feet
to a stake,
thence South 0 30' 00" West 326.6 feet
to a stake,
thence South 5 30' 30" West 819.4 feet
to a stake,
thence South 40 32' 00" East 262.6 feet
to a stake,
thence South 41 19' 00" East 343.9 feet
to a stake,
thence South 29 48' 00" West 14.9 feet
to a Large Boulder [662] on the Stratton
Bald Mountain at its Junction with Big
Fodderstack Mountain and at the point
where the two lines of contention join.
This Boulder is Monument No. 8, and is 3
feet wide at its base, 10 feet long and 3
feet high. On the top of this Boulder we
cut an X on the southeast side N. C. 601-|-
40.7, and on the northwest side TENN.
1915. This Boulder stands 60,140.7 feet
from Monument no 1, thence along the top
of the main ridge that divides the* waters
of Citico creek, North Fork of Tellico river
and Sycamore creek from the waters of
Santeetlah and Snowbird creeks, as fol-
lows:
thence South 73 34' 00" West 194.0 feet
to a stake,
tiience South 50 84' 30" West 393.6 feet
to a stakfl^
85$
thence South 62 4^ 30" West 84.0 feet
to a stake,
thenoe South 50 65' 30" West 178.0 feet
to a stake,
thence South 31 43' 30" West 301.0 feet
to a stake,
thence South 32 02' 30" West 1575.8 feet
to a stake,
thence South 48 45' 30" West 631.2 feet
to a stake,
thence South 24 54' 30" West 113.6 feet
to a stake,
thaice South '25 23' 30" West 581.5 feet
to a stake,
thence South 34 27' 30" West 502.0 feet
to a stake,
thence South 31 55' 30" West 143.2 feet
to a stake,
thence South 35 18' 00" West 364.8 feet
to a stake,
thence South 35 39' 00" West 623.6 feet
to a stake,
thence South 8 68' 30" West 480.4 feet
to a stake,
thenoe South 40 20' 00" Wes^ 523.0 feet
to a stake,
thence South 59 35' 00" West 768.0 feet
to a stake,
thence South 12 45' 00" West crossing
the Tellico Trail at 297 feet, on top of the
Strawberry Knob,
639.3 feet to a stake,
thence South 71 42' 30" West 591.7 feet
to a stake,
thence South 86 36' 30" West 209.3 feet
to a stake,
thence South 68 49' 30" West 477.7 feet
to a stake,
thence North 71 42' 00" West 332.5 feet
to a stake,
thence South 79 01' 00" West 362.8 feet
to a stake,
thenoe South 70 ^57' 00" West 412.4 feet
to a stake,
[663] thence South 73 39' 00" West 383.9
feet to a stake at Rock Stop Bear Stand,
thence South 28 26' 00" West 389.1 feet
to a stake,
thence South 45 42' 00" West 281.3 feet
to a stake,
thence South 72 20' 30" West 490.3 feet
to a stake,
thence South 73 31' 30" West 352.7 feet
to a stake,
thence South 72 44' 30" West 227.3 fa^
to a stake,
thence South 26 09' 00" West 208.0 feet
to a stake,
thence South 26 31' 00" West 698.7 feek
to a stake, in Beech Gap,
thence South 11 01' 00" West 269.0 fas*
to a stake,
thence South 60 61' 30" East 403.0 feel
to a stake,
940 V. 8.
Uu, NOBTB CABOLDfA
Iknce South SS 65' 30" Eut ICl.O feet
30 Sr 30' BHt 360.0 feet
?4r3S 32 SB' 30" But UTZ.4 (eet
^^a 36 £4' OO' West 142.9 leet
37 42" 30* Weat sai.V (eet
47 63' 00" WMt 292.8 Iwt
rs
12 09* 30' West 608.7 feet
0 08' 00' Wert 031J feet
7« Sf 00- But 6B0.4 fMt
7C 12' 00" EMt 187.0 feet
81 49' 00" Eut 431.4 feet
66 09' 30" Eut pusiDg
the mouD-
■tske.
. TSNNJ
thence South IB SS' 00" West fil4.S fert
tos Btske,
thence South 1 00* 00" Eut 673.6 fert
to the top ol little Haw Knob,
theuM South 11 SI' SO" West 370.2 fert
IB 43' 30" Sut S02.2 (eet
SdC!
tain St 14B feet,
thence South 2S >m
John MesdowB Osp st 108 feet
to s stske,
19 13' 00" Esst 288.7
22 3S' 30" But 400Jf feet
25 04' 30" Esrt 144.0 fert
^^
18 23' 30" Wert 785.0 fert
'M- ipBf:; the top of John Knob,
t^^g 39 68' 00' West 148.4 ' fert
3B 22' 00" Wert 147.6 fart
48 28' 00" Wert 434.0 fert ^
[B64] thence South 16 40' 00" Wert 746.0
feet to a atkke,
thence South 0 it' DO* Wert 341.0 fert
2 47' 00* Esrt SB3.4 fsrt
17 49' 00* Weat 371.0 fert
20 38' GO" West 290.0 leet
IS 42' 30" West 384.6 fert
20 37' 30" West 317.0 fart
le 47' 00' Eut 312.0 fert
fie 10* 00" Wert SU.6 fart
17 IS' 00* Weat 248J fert
22 S3' 00' Wert 284.6 fart
30 8S' SO" Eut passing Mc-
■tone msrkad N. C. 78 at
[art to a rtske,
64 SB' 30* Eart Z43.6 fert
67 IS' 30' Eut 344.0 fert
79 08' 30" Eut 693.6 feet
BS sr 00- Eut 356.5 fert
86 S«' 80- East 302.6 feet
02 04' 30- But 7SSJ[ fert
t>''.'^$ the top of Haw Knob,
l|" 6 04' SO- Bart 302.7 fert
1 04' 30' Eart 103.1 fert
4 36' SO- Wert 321.7 fert
• 11' W Bart S26J> fert
;gS(m 32 sr so- Sart 121.0 fart
49 84' 00- Eart 478J fart
37 48' 00- Bart 943.1 fert
M lO* 00* Bart 71S.6 fert
66 03' so- Eart 206.3 fart
S7 47 SO" Eart fi8S.7 fert
71 16' 00" Eut 223.8 fert
[685] theooe South 5 23' 00" Weat 111.2
feet t« a itake,
thence South SO 09' 00- Wert 30G.O lert
40 46' 00' Wert 607.0 fert
21 14' 00- Wert 226.0 fert
6 8S' 00- Wert 170.0 fert
uorthweat end pf Lauiel Top^
21 2S' 30" Eart 466.4 fart.
■ontheart end of I«nral Top,
S« M' 00* Wert 206.4 faat.
4S ir SO" Wert 1101.9 fert.
44 Sr SO" Wart 178.8 fart
SDPBEia OODBT 07
thMwe Sonth 05 62' SO" WmI 140J( f«et
to ft tUke, on the top of Lcbo Eaab,
thence South 4S 01' SO" Wvt lOIIJ feet
tlWLM South 00 33' OC Wert UOJ feet
to ■ Rock Ledge projeoting out of the
grannd 2 fert high, 6 l«et laii( and 1 foot
thick ud marked
c. oo. I a. Co.
I
Thli le the place known aa the Connt^ Cor-
tiera and we naed thU rock for Monu-
ment No. 9, and on the top of It we cut
an X on the loutheart face N. C. 19IS and
4» TENN. 1003+90.0.
Thii Stone ii from Uonuinent
Ho. 1 and ii the point at which the Unea
of contention diverge; thence down the
n meandera South SI 21'
B!i the Hog Jaw Gap at 6U
tert, J!5!i^ a lUke,
K 8>' 30* Weet 311.4 feet
42 13' OO' Wcit 244.0 feet
72 04' OV Weit 337JJ feet
81 M' 00- Weat 47.7 feet
of Qraeay Top,
ihence South 00 SI' 00~ Weat 71.7 fart
to the Junction of the State Bfdge and
Rough Ridge, known aa Little Junethm,
thence South OS 81' 00* Wert 137.0 feet
[eee] thence South 24 14' 80~ Weat 271.1
feet to a eUke,
SI SV 00- Wert 3S1.4 feet
SO 01' 30* Weat 412.4 feet
n
23 40- 00" Weet 236.2 lert
n
'uWm 34 11' 30- W«t e7«.« fert
•t
WBISR U 08' 00* Wert 1486.2 feet
40 10* 30- Weat 628.* fert
61 27' SO- Wert 002.6 fert
28 Si' aO- Wert 208.6 fert
H 9V or Wert 4D8.7 fert
is W OV Wert 648.2 feet
IS 10' 00* Wert 870.1 fert
66 66' 80* Weat 260.8 fart
a» 04' 80- Wert 267a fert
THE innTBD STATES. Oor. Ton,
thence South S8 66' Sff' WMt UIZ fert
"'frHT!?' 88 68' 30- Wert 431.8 fert
r3
S8 SO* 30- Wert 700.1 feet
ZS 17' 00- Wert 831.7 feet
10 32* 00- Eart 888.1 fert
37 30* 00- Wert 17S.6 hrt
68 20' 00- Wert 8S8J[ fert
Gap where we act a Straw 6
7 luchM wide and 18 inchea
high, and on top of it we cut an X on the
■outheart aide N. C. 1016 on the northwert
on tiie northeart eide
■tone atanda 112,800 fert
•^^^ -^SS:^^M No. 1. and U Monument
07 29' 00- Wert 140.6 fert
46 20* 00* Wert 468.6 fert
aW*! 88 ' 13' 00- Wert S42.S fert
62 68' SO" Wert S81.6 fert
m
81 00* 30- Wrtt S94.S feet
70 48* 00' Wert 647.2 fert
83 56' 30* Wert 414JI fert
■iiSff* 70 30' 00- Wert 406.1 fert
1§ Rock, a large Boulder
over one a tree haa grown, aald
Rock ia
[667]
feet to a etake,
thence South 61 61' 30" West S34.7 fert
57 47' 00" Weet 498.6
68 58' 00" Wert 361.9 fert
77 16' 30' Weat 843.6 fert
65 66' 00" Wert 384.4 fert
iii^m 88 28' 00- Wert 132.0 fert
66 16' 00- Wcit 241.6 fert
68 43' 30- WMt 133.6 fert
66 05' 00- Wert 474.4 fert
■^^ 81 80* 80* Wert 308.0 fert
70 04' 80- WMt 601.0 (ert
57 66' 00- Weet 615.8 lert
take,
SM D. B.
1916.
NORTH CABOUNA t. TENKE88EK.
667, M8
thcnee South 79 41' W West 4U J ImI
to a stake,
thence South 69 40^ 0<r West 16S.7 feet
to a stake,
thence South 51 9r W West 878.4 feet
to a stake,
thence South 72 ir OCT West 282.4 feet
to Monument No. 11 — a Stone 6 inches
thick, 14 inches wide and 18 inches high.
On the top of it we cut an X on the south-
cast side N. C. on the southwest side 1916
on the northwest side TENN. on the north-
east Bide 1210+69.0
This Stone stands 121,069 feet from Monu-
ment No. 1 and 61 feet from the northeast
bank of Tellico river, thence crossing Tellico
river South 60 44' 30^ West 138.0 feet to
a stake,
thence South 36 48' 80^ West 107.7 feet
to a stake,
thence South 48 47' 80^ West 81.9 feet
to a stake,
thence South 80 17' 80^ West 120a feet
to a stake,
thence South 86 62* 30^ West 202.1 feet
to a stake,
thence South 48 47' 00" West passing the
86 Mile Tree, an 18 inch holly marked 86
M at 96 feet, 131.7 feet to a stake,
thence South 86 26' 00" West 396.4 feet
to a stake,
thence South 17 38' 30" West 147.4 feet
to a stake,
thence South 84 08' 80" East 489.7 feet
to a stake,
thence South 10 82' 00' East 242.6 feet
to a stake,
thence South 46 26' 00" West 416.8 feet
to a stake,
thence South 87 82' 00^ West 286.8 lest
to a stake,
[668] thence South 70 18' 00" Weet 864.0
feet to a stake,
60 li. ed.
thenoe South 86 87' 80" West 481.8 fast
to a stake,
thence South 68 28' 00^ West 472.4 feet
to a itfiVft.
thenoe South 6 00' 80" West 298.4 fest
to a stake,
thence South 76 17' SO" Weal 684.8 feet
to a stake,
thenoe South 24 87' SO" West 867.1 feet
to -a stake^
thence South 74 21' 80" West 809.8 feat
to a stake^
thoice South 21 48' 30" West 446.6 fest
to a stake^
thence South 88 11' 00" West 460JI feet
to a stake^
thence South 64 02' 00" West 261.6 feet
to the top of Jenks Knob at the point where
the two lines of contention Join. Here we
set up Monument No. 12-— a Stone 4 inches
thick, 8 inches wide and 18 inehes high on
top of which we cut an X on the southeast
side N. C on the southwest aide 1916 on
the northwest side TENN. and on the north-
east side 1277-f48.2. This Stone stands
127,748.2 feet from Monument No. 1 and at
the end of the contention in this cause.
Signed this the 20th day of October, 1916.
(Signed) D. B. Bums.
(Signed) W. D. Hala.
(Signed) Joseph Hyde Pratt,
Chairman.
On eonsideration whereof.
It is now here ordered, adjudged, and de-
creed bj this court that the real, certain,
and true boimdary line between the states of
North Carolina and Tennessee between said
certain points is as delineated in the said
report and on the map attached thereto and
made a part hereof.
It is further ordered, adjudged, and da-
creed that each party pay one half of the
costs in this eaaa.
855
CASES
ARGTJBD AND DECIDED
SUPREME COURT
OP THB
UNITED STATES
▲T
OCTOBER TEEM, 1915.
Vol 241.
k^
Xi. ed.
•67
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THE DECISIONS
QV THB
Supreme Court of the United States
IV
OCTOBER TERM, 1915.
CHIN FONG, Appt.,
V.
SAMUEL W. BACKUS, CommiBsioner of
Immigration for the Port of San Fran-
daoo.
(See S. C. Beporter's od. 1-6.)
Appeal ~ flrom district court ~ Feder-
al question — construction of treaty.
The contention on habeas corpus that
the immigration officers, by denying admis-
sion to a Chinaman as a returning mer-
chant because his original entry was
surreptitious, superadded qualifications for
re-entry to those prescribed oy the act of No-
▼ember 3, 1883 (28 Stat, at L. 7, chap. 14,
Comp. Stat. 1013, | 4324), | 2, and hence
infringed the obligations of the treaty of
November 17, 1880 (22 Stat, at L. 826),
between the United States and China, al-
lowing to Chinese merchants freedom of
Ingress and egress in the manner permitted
to citizens of the most favored nations, —
does not invohre the oonstmction of a treaty
within the meaning of the provisions of the
Judicial Code, | 238, authorizing direct ap-
peals from the district courts to the Fed-
eral Supreme Court.
(For other cases, see Appeal and Brror, 988-
080, In Digest Sap. Ct. 1908.]
[No. 664.]
Argued April 6 and 6, 1916. Decided April
17, 1016.
APPEAL from the District Court of the
United States for the Northern Dis-
triet of California to review an order
NoTB.-— On direct review in Federal Su-
preme Court of judgments of district or
cbeuit eourts — see notes to Qwin v. United
States, 46 L. ed. U. S. 741, and B. Altman
& Co. ▼. United States, 66 L. sd. U. S. 894. 1
•0 li. ed.
refusing relief by habeas corpus to a China-
man in custody pending deportation. Dis-
missed for want of jurisdiction.
See same case below, 213 Fed. 288.
The facts are stated in the opinion.
Mr. Jackson H. Ralston argued the
cause, and, with Mr. WiUiam £. Richardson,
filed a bri^ for appellaat.
Assistant Attorney General Wallace
argued the cause and filed a brief for ap-
pellee:
The Sppeal in this case should be dis-
missed for lack of jurisdiction.
Sloan V. United States, 103 U. S. 614,
620, 48 L. ed. 814, 817, 24 Sup. Ct. Rep.
570; Lau Ow Bew v. United States, 144
U. S. 47, 58, 36 L. ed. 340, 344, 12 Sup. Ct.
Rep. 517, 141 U. S. 583, 35 L. ed. 868, 12
Sup. Ct. Rep. 43; Low Wah Suey v. Backus,
225 U. S. 460, 468, 56 L. ed. 1165, 1167, 32
Sup. Ct. Rep. 734; Brolan v. United States,
236 U. S. 216, 218, 50 L. ed. 544, 547, 35
Sup. Ct. Rep. 285; Lamar v. United States,
240 U. S. 60, ante, 526, 36 Sup. Ct. Rep.
255; Norton v. Whiteside, 230 U. S. 144,
ante, 186, 36 Sup. Ct. Rep. 07.
[2] Mr. Justice McKenna delivered the
q>inion of the court:
Appeal from a judgment dismissing a
petition for habeas corpus and remanding
petitioner to the custody of the Commis-
sioner of Immigration for the Port of San
Francisco, in whose custody he was, pend-
ing petitioner's deportation.
A summaiy of the petition made by the
district court is as follows:
"Petitioner Chin Fong, who had been a
resident of the United States for a numb'
of years, dqiarted for China in Novem'
^-4
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
1012; tliat before he left he applied for a
pre-inTestigation as to his status as a mer-
chant» and a certificate was denied him on
the ground that his original entry into
this country was surreptitious; that not-
withstanding this denial the petitioner left
the country, and is now endeavoring to be-
enter as a returning Chinese merchant; that
he presents the affidavits of a member of
the New York firm to which he claims to be-
long and of two reputable Americans sup-
porting his claim; that notwithstanding
these facts he has been denied admission and
ordered deported on the same ground that
his pre-investigation certificate was denied,
that is to say, because his original entry
was surreptitious; that in so deciding the
immigration department has exceeded its
authority, as that question can only be de-
termined under the exclusion laws by a
justice, judge, or commissioner." [213 Fed.
288.]
A demurrer was interposed to the peti-
tion, which was sustained, the court say-
ing: "Had the petitioner been content to
remain in this country, he could have been
deported only after a hearing before a
justice, judge, or commissioner. But as he
left the country voluntarily, and even after
a preinvestigation certificate was denied
him, the question of his right to re-entry
lies peculiarly with the immigration depart-
ment, and as they have found [3] that he is
not entitled to re-enter, such finding can-
not be disturbed. A different rule prevails,
and a different tribunal determines, in the
case of a Chinese applying to enter, from
that of one already in this country whom
it is sought to deport, under the exclusion
laws."
The decision of the court is contested
and it is asserted (1) that the petition was
sufficient to entitle petitioner to a dis-
charge; (2) that the Commissioner of Im-
migration and Secretary of Labor could
not require a greater and different degree
of proof than that specified in § 2 of the
act of Congress of May 5, 1892, entitled,
"An Act to Prohibit the Coming of Chinese
Persons into the United States" [27 Stot.
at L. 25, chap. 60, Comp. Stat. 1913, §
4315]; (3) that petitioner furnished the
degree of proof required by the law; (4)
that the rights guaranteed petitioner un-
der the treaty between the United States
and China concerning immigration, Novem-
ber 17, 1880 [22 Stat, at L. 826], were un-
duly and unlawfully infringed; and (5)
that the decision of the Commissioner was
against the law and was an abuse of dis-
cretion.
The i^peal is direct from the district
court, and can only be sustained against
the motion of the United States to dismiss
MO
for want of jurisdiction in this court if
there is a substantial question under the
Constitution of the United States or a
treaty made under their authority, § 238
of the Judicial Code [36 Stat, at L. 1157,
chap. 231, Comp. Stat. 1913, % 1215] pcr<
mitting an appeal from a district cuurt
when a constitutional question is involved
and in any case "in which . . . the valid-
ity or construction of any treaty made un-
der its [United States] authority is drawn
in question."
It will be observed that appellant based
his right to land solely on the ground that
he had been a merchant in the United States
before his departure to China, and that,
therefore, it was not competent for the im-
migration officers to inquire or determine
whether his original entry into the United
States was open or surreptitious and his
stay therein legal or illegal. "The princi-
pal proposition that [4] we desire to main-
tain," counsel say, "and which has apparent-
ly been ignored l^ the Department of Labor,
is that when Congress has definitely fixed
the tests and qualifications attendant upon
the determination of a given act, it is not
within the power of an administrative of-
ficer to add to or subtract from the congres-
sional rule." The case of Lau Ow Bew v.
United SUtes, 144 U. S. 47, 36 L. ed. 340,
12 Sup. Ct. Rep. 517, is cited. For the
"congressional rule" counsel refer to § 2
of the act of November 3, 1803 (28 Stat, at
L. 7, chap. 14, Comp. SUt. 1013, § 4324),
which reads as follows:
"Where an application is made by a
Chinaman for entrance into the United
States on the ground that he was formerly
engaged in this country as a merchant, he
shall establish by the testimony of two
credible witnesses other than Chinese the
fact that he conducted such business as
hereinbefore defined for at least one year be-
fore his departure from the United States,
and that during such year he was not en-
gaged in the performance of any manual
labor, except such as was necessary in the
conduct of his business as such merchant,
and in default of such proof shall be refused
landing."
It is contended that the section requires
proof by a Chinaman seeking entrance into
the United States of two facts only — (1)
that he had been a merchant for one year
before his departure, and (2) that during
such time he had not engaged in manual
labor except such as was necessary in the
conduct of his business as such merchant.
These were the only conditions of the right
to enter, it is contended, and it was an ir-
relevant inquiry whether he "originally
entered as a laborer or even surreptitious-
ly." And in emphasis counsel say: The
141 V. 8.
1915.
]^SLLY ▼. GRIFFIN.
■umner of entry was entirely ignored hj
Congrean."
These being the conditions, it is hence
asserted that if the Department of Labor
may superadd one qualification, it may an-
other, "until the law becomes entirely un-
recognizable." So far manifestly there is
nothing but an appeal to the statute, but
the treaty is attempted to be invoked [6]
by the following: *'Such a course [the addi-
tion to the qualifications of the statute]
would be in plain derogation of the treaty
obligations between the United States and
China, allowing to Chinese merchants free-
doim of egress and ingress in the manner
permitted to citizens of the most favored
nations, the essential fact by law and treaty
being merely that of mercantile status."
No provision of the treaty is cited from
which the contention is an applicable de-
duction, nor are we disposed to quote and
comment on the entire treaty in answer to
the contention. See 22 Stat, at L. 826;
also I^u Ow Bew v. United States, supra.
The "merchant" defined by it does not in-
clude petitioner. It was the definition of
the status acquired in China, not acquired
in the United States, and, having been ac-
quired in China, gave access to the United
States, and after access freedom of move-
ment as citizens of the most favored nations.
And this privilege was given as well to
Chinese laborers then (1880) in the United
SUtes.
We think, therefore, there is no substan-
tial merit in the contention that the case
involves the construction of a treaty, and
that the rights of petitioner can rest
only upon the statutes regulating Chinese
immigration. So concluding, we are not
called upon to decide or express opin-
ion whether petitioner's original entry into
the United States and his subsequent resi-
dence therein were illegal, and whether he
eould acquire by either a status which the
immigration oflicers were without power to
disregard.
Dismissed.
Mr. Justice McReynolds took no part in
the consideration and decision of this case.
[6] THOMAS KELLY, Appt.,
V.
ELVIN J. GRIFFIN, Jailer of Lake County,
Illinois, and John J. Bradley, United
States Marshal for the Northern District
of Illinois.
(See S. C. Reporter's ed. 6-15.)
Habeas corpus — extradition — Illegal
arrest ^ release and rearrest.
1. The omission of any formal act of
•0 li. ed.
I release and rearrest of a person arrested by
' the local municipal police without a war-
rant, upon a tel^am from the authorities
of the foreign sovemment seeking his ex-
tradition, fumiuies no ground for his dis-
charge on habeas corpus from detention un-
der an extradition warrant subsequently
issued by the United States commissioner,
no matt^ how illegal such arrest may have
been.
[For other cases, see Habeas Corpos, II. b^ in
Digest Sup. Ct. 1008.]
Habeas corpus — extradition — soffl-
clency of complaint.
2. A eomplaint in foreign extradition
proceedinffs charging perjury is not insuffi-
cient on habeas corpus, where the alleged
false statements were in fact material, be-
cause, under the law of the demanding gov-
ernment, some possible false statements may
be perjury that, by reason of their imma-
teriality, would not constitute that offense
under the law of the surrendering state.
[For other cases, see Habeas Corpus, IL b. In
Digest Sup. Ct 1008.]
Habeas corpus — extradition — pre-
sumptions.
3. The regularity of proceedings be-
fore a foreign legislative conunittee engaged
in investigating frauds in the construction
of government buildings wiU.be presumed
when inquiring on habeas corpus into a de-
tention to await extradition on the charge
of perjury before such committee, in view
of the nature and purpose of the investiga-
tion, and the fact that the accused ap-
peared before it without* objection.
[For other cases, see Habeas Corpus, II. b, In
Digest Sup. Ct 1008.]
Habeas corpus ^ extradition — sufll-
dency of complaint — false pretenses.
4. A complaint in foreign extradition
proceedings charging the obtaining of money
from the demanding government by false
representations in bills or progress es-
timates as to the amounts of material used
in extra work on government buildings is
sufficient on habeas corpus, although the
amounts demanded by the bills were paid,
not upon the bills, but upon vouchers com-
NoTE. — On habeas corpus to review ex-
tradition proceedings — see notes to State
V. Jackson, 1 L.RJ^. 373; Ex parte Davis,
12 LJIJ^.(N.S.) 225; Com. ex. rel. Flower
V. Superintendent of County Prison, 21
LJIA.(N.S.) 030; Wisener v. Burrell, 34
LJtA.(K.S.) 755; and Oteisa y Cortes v.
Jacobus, 34 L. ed. U. S. 464.
As to what papers are necessary to ob-
tain surrender of fugitive from another
state — see note to £x parte Hart, 28 L.R.A.
804.
On the right of court of asylum state to
examine in interstate extradition proceed-
ings the sufficiency of papers charging the
of^se for which the return of the fugi-
tive is demanded— see note to Re Water-
man, 11 LJIA..(N.S.) 424.
On the right to try returned fugitive for
crime other than that for which ne is ex-
tradited—see note to Re Flacky 47 L.RA.
(N.S.) 807.
SUPREME COURT OF THE UNITED STATES.
Got. Tmmm,
log from the department of public works,
and although the government architect who
certified the bills was not deceived, where
the person who made out the certificates
relied upon the bills in good faith, and with-
out the bills the payments would not have
been made.
[For other cases, see Habeas Corpus, II. b, In
Digest Sup. Ct 1908.]
Habeas corpus — extradition — pre-
snraption.
5. The Federal courts will assume, when
inquiring on habeas corpus into the holding
of a person for extradition to Canada, that
the Canadian government will respect the
convention between the United States and
Great Britain, and will not try the accused
upon other charges than those upon which
the extradition was allowed.
[For other cases, see Habeas Corpus, II. b;
BxtradiUoD, V., in Digest Sup. Ct 1908.]
[No. 777.]
Argued April 6 and 7, 1916. Decided April
17, 1916.
APPEAL from the District Court of the
United States for the Northern Dis-
trict of Illinois to review an order refusing
to discharge on habeas corpus a person in
custody imder an extradition warrant. Af-
firmed.
The facts are stated in the opinion.
Mr. John 8. Bfiller argued the cause,
and, with Messrs. Edward Osgood Brown
and Pierce Butler, filed a brief for appel-
lant:
Appellant's arrest and detention without
warrant were unlawful.
Ex parte Oohen, 8 Can. Crim. Cas. 312;
Re Dickey, 8 Can. Crim. Cas. 318; State v.
Shelton, 79 N. C. 605 ; Malcolmson v. Scott,
66 Uietk, 469, 23 N. W. 166; Scott v. Eld-
ridge, 164 Mass. 25, 12 L.R.A. 379, 27 N. E.
677; Harris v. Louisville, N. O. k T. R. Co.
36 Fed. 116; Kurts v. Moffltt, 116 U. S.
487, 29 L. ed. 468, 6 Sup. Ct. Rep. 148.
He could not lawfully be turned over by
the Chicago police officers to, or be lawfully
taken from them by, the United States
marshal. He should have been set at lib-
erty from such illegal arrest and detention
before he could be lawfully arrested on the
commissioner's warrant.
Ex parte Cohen, 8 Can. Crim. Cas. 312;
Hooper v. Lane, 6 H. L. Gas. 443; Mande-
ville V. Guernsey, 61 Barb. 99.
The enactment by the Parliament of the
Dominion of Canada of a statute which
gives to a different moral offense, which is
not a crime in Illinois, or in the United
States, or at common law, the name of a
crime mentioned in an extradition treaty
with Great Britain, does not bring such
different moral offense within the provisions
of the tr^Ltj.
30M
Not only must an offense be named in ths
treaty as extraditable, it must also be con-
sidered a crime in both the demanding and
surrendering country.
Wright V. Henkel, 190 U. S. 68, 47 L. ed.
061, 23 Sup. Ct. Rep. 781, 12 Am. Crim.
Rep. 386.
If extradited for "perjury/' the petitioner
may be tried and condenmed in Canada
without proof, or in the face of disproof,
of that which constitutes "perjury" in the
United States. It is impossible to extra-
dite for "perjury" from the United States
to Canada and avoid this situation. Ex-
tradition from the United States to Can-
ada for this alleged crime is therefore not
permissible.
United SUtes v. Rauscher, 119 U. S. 407,
30 L. ed. 425, 7 Sup. Ct Rep. 234, 6 Am.
Crim. Rep. 222.
The tribunal must have had jurisdiction
of the cause in which the oath waa admin-
istered, and Manitoba assembly conunittee
lacked that jurisdiction.
Pankey v. People, 2 IlL 80; Maynard v.
People, 136 lU. 416, 26 N. E. 740; Hereford
▼. People, 197 111. 222, 64 N. £. 310.
The complaints and the competent evi-
dence before the commissioner did not show
probable cause that appellant was guilty of
the crime of obtaining mon^ by false prs-
tenses.
Jackson v. People, 126 lU. 139, 18 N. S.
286 ; Moore v. People, 190 111. 333, 60 N. E.
636.
Messrs. Almon W. Bnlkley and Henry
B. F. Macfarland argued the cause, and,
with Mr. Clair E. More, filed a brief for
appellees:
A treaty of this character is executory,
and the duty to perform is imposed upon
the executive, not the judicial, department.
Terlinden v. Ames, 184 U. S. 270, 46 L.
ed. 534, 22 Sup. Ct. Rep. 484, 12 Am. Crim.
Rep. 424.
Habeas corpus is to determine whether a
prisoner is lawfully detained.
Nishimura Ekiu v. United States, 142
U. S. 651, 35 L. ed. 1146, 12 Sap. Ot Rep.
336.
* If the committing magistrate has jurii-
diction, the offense charged is within the
treaty, and the magistrate has before him
competent legal evidence, his decision will
not be reviewed on habeas eorpus.
Terlinden ▼. Ames, 184 U. Q. 270, 46 L.
ed. 634, 22 Sup. Ct )tep. 484, 12 Am. Crim.
Rep. 424; Omelas ▼. Ruix, 161 U. 8. M,
608, 40 L. ed. 787, 789, 16 Sup. Ct. Rep-
689; Bryant t. United States, 167 U. S.
104, 42 L. ed. 94, 17 Sup. Ct. Rep. 744;
Yordi T. Nolte, 215 U. 6. 227, 64 L. ed. 170.
30 Sup. Ct R^. 90; Niabimiini Ekiu v.
141 V. S.
101&
KELLT T. GRIFFIN.
11, 12
United States, 142 U. 8. 651, 85 L. ed. 1146,
12 Sup. Ct. Rep. 336; McNamara y. Henkel,
226 U. S. 520, 57 Ix ed. 330, 33 Sup. Ct.
Rep. 146; Bz parte Tarbrough, 110 U. S.
651, 28 Lb ed. 274, 4 Sup. Ci. Rep. 152.
A preliminaiy complaint on inlormatioin
and belief is not unlawful.
Tordi T. Nolte, 215 U. 8. 2^7, 64 U ed.
170, 30 Sup. Ct. Rep. 90.
It is immaterial how the commiaaioner
obtains jurisdiction of the person.
Wright V. Henkel, 190 U. S. 40, 47 L. ed.
948, 23 Sup. Ct. Rep. 781, 12 Am. Crim.
Rep. 3S6 ; Nishimura Ekiu t. United States,
142 U. S. 651, 35 L. ed. 1146, 12 Sup. Ot.
Rep. 336; lasigi ▼. Van de Carr, 166 U. 8.
391, 41 L. ed. 1045, 17 Sup. Ct. Rep. 595 ;
Re Macdonnell, 11 Blatchf. 170, Fed. Cas.
No. 8,772; Kelley t. Thomas, 81 Mass. 192;
PeUibone t. Nichols, 203 U. S. 192, 51 L.
ed. 148, 27 Sup. Ct. Rep. Ill, 7 Ann. Cas.
1047; Mahon y. Justice, 127 U. S. 712, 32
L. ed. 287, 8 Sup. Ot. Rep. 1204; Ker t.
niinois, 119 U. 8. 437, 80 U ed. 421, 7
Sup. Ct. Rep. 225.
It is not material what the Canadian stat-
ute of perjury is, if the perjury charged
comes within the terms of the treaty and
United States law.
Qrin ▼. Shine, 187 U. 8. 181, 47 L. ed.
130, 23 Sup. Ct. Rep. 98, 12 Am. Crim. Rep.
366; Re Oteixa y Cortes, 136 U. S. 330,
34 L. ed. 464, 10 Sup. Ot. Rep. 1031, 8 Am.
Crim. Rep. 241; Bryant t. United States,
167 U. 8. 104, 42 L. ed. 94, 17 Sup. Ot. Rep.
744; Benson t. McMahon, 127 U. S. 457, 32
L. ed. 234, 8 Sup. Ot. Rep. 1240; Omelas t.
Ruiz, 161 U. S. 502-508, 40 L. ed. 787-789,
16 Sup. Ct. Rep. 689.
The Canadian Code !s the equivalent of
Illinois and United States statutes regard-
ing perjury.
22 Am. k Eng. Enc. Law, 684; 2 Whart.
Crim. Law, 9th ed. f 1244; United SUtes t.
Landsberg, 23 Fed. 585, 4 Am. Crim. Rep.
474; Reg. T. Overton, 2 Moody 0. 0. 263,
Car. k M. 655; State t. Rosenberg, 88 Vt.
223, 92 Atl. 145; Dilcher t. SUt^ 39 CMiio
St. 134.
The regularity of appointment or proced-
ure of the public accounts committee of the
Manitoba legislative assembly la not mate-
rial in this proceeding.
Maynard v. People, 135 111. 416, 25 N. S.
740; Greene t. People 182 111. 278, 65 N. E.
341.
The alleged defect was waived by Kelly's
appearing and testifying without objection
or protest.
Maynard t. People, 135 lU. 416, 25 N. E.
740.
Whether anyone was deceived, or relied
on all^fed false pretenses, is a question of
fact not reviewable here^
•• Ii. ed.
McNamara t. Henkel, 226 U. 6. 520, 57
Ix ed. 330, 33 Sup. Ot Rep. 146; Thomas v.
People, 113 IlL 531, 5 Am. Crim. Rep. 127;
K^es T. People, 197 IlL 641, 64 N. E. 730;
People T. Goodhart» 248 lU. 373, 94 N. E.
148.
Embezslement, larceny, receiving money
knowing it to have been embezzled, stolen,
or fraudulently obtained, is within the
treaty, and is a crime in both countries.
United States v. Greene, 146 Fed. 766;
Greene v. United States, 85 0. 0. A. 251, 154
Fed. 401, 207 U. 8. 596, 52 L. ed. 357, 28
Sup. Ct. Rep. 261.
Mr. Justice Holmes delivered the opin-
ion of the court:
The appellant was held for extradition to
Canada, and petitioned for and obtained a
writ of habeas corpus. After a hearing up-
on the returns to the writ and to a writ of
certiorari issued to the commissioner by
whose warrant the [12] petitioner was de-
tained, the district judge discharged the
writ. An appeal was allowed and several
objections have been pressed to the pro-
ceeding, which we will take up in turn.
The matter arises out of frauds in the con-
struction of the new Parliament buildings
at Winnipeg, in which Kelly, the contractor,
and a number of public men, are alleged
to have been involved.
First it is said that jurisdiction of the ap-
pellant's person has not been obtained legib-
ly. On October 1, 1915, he was arrested
without a warrant, on a telegram from Win-
nipeg. The next day a complaint was made
before the commissioner by the British Vice
Consul General in Chicago upon informa-
tion and belief, a warrant was issued, and
the petitioner was turned over to the United
States marshal by the Chicago police. On
October 15 a new complaint was filed by the
British Consul General, a new warrant was
placed in the hands of the marshal, and
the former complaint was dismissed.
Wright V. Henkel, 190 U. 8. 40, 42, 44, 63,
47 L. ed. 948, 949, 956, 23 Sup. Ct. Rep.
781, 12 Am. Crim. Rep. 386. llie conten-
tion is that the original arrest was illegal,
and that the appellant was entitled to be
set at liberty before the warrant of October
2 or that of October 15 could be executed
with effect.
But, however illegal the arrest by the
Chicago police, it does not follow that the
taking of the appellant's body by the mar-
shal under the warrant of October 2 was void.
The action of the officers of the state or city
did not affect the jurisdiction of the com-
missioner of the United States. Further-
more, the order dismissing the complaint
of October 2 was that the appellant be dis-
diarged forthwith from custody ; so tJbA^V
12-15
SUPREME COURT OF THE UNITED STATES.
Oct. IteM,
on the face of the reoord^ it would eeem
thftt before being held under the present
warrant the appellant had the moment of
freedom which he contends was his right.
It is urged that the Canadian authorities
are trying to take advantage of their own
wrong. But the appellant came within
reach of the commissioner's warrant l^ his
own choice, and the most that can be said
[13] is that the effective exercise of author-
itj was made easier by what had been done.
It was not even argued that the appellant
was entitled to a chance to escape before
either of the warrants could be executed.
This proceeding is not a fox hunt. But
merely to be declared free in a room with
the marshal standing at the door having
another warrant in his hand would be an
empty form. We are of opinion that, in the
circumstances of this case as we have stated
them, the omission of a formal act of re-
lease and a subsequent arrest, if they were
omitted, furnishes no ground for discharg-
ing the appellant upon habeas corpus. All
the intimations and decisions of this court
indicate that the detention of the appel-
ant cannot be declared void. Pettibone v.
Nichols, 203 U. S. 192, 51 L. ed. 148, 27
Sup. Ct. Rep. Ill, 7 Ann. Cas. 1047; lasigi
V. Van de Carr, 166 U. S. 391, 393, 394, 41
Lb ed. 1045, 17 Sup. Ct. Rep. 595; Nishi-
mura Ekiu v. United States, 142 U. S. 651/
662, 35 L. ed. 1146, 1150, 12 Sup. Ct. Rep.
336. If we were satisfied that a different
rule would be applied by the final author-
ity in Great Britain, other questions would
arise. Charlton v. Kelly, 229 U. S. 447,
57 L. ed. 1274, 46 L.RA.(N.S.) 397, 83
Sup. Ct. Rep. 945. But we are not con-
vinced by anything that we read in Hooper
V. Lane, 6 H. L. Cas. 443, 27 L. J. Q. B.
N. S. 75, 3 Jur. N. S. 1026, 6 Week. Rep.
146, that a different rule would be applied,
and we think it unnecessary to discuss the
differences in detail.
The complaint of October 15 charges per-
jury, obtaining money by false pretenses,
and, conjointly, stealing or embezzling and
unlawfully receiving money and other prop-
erty of the King which had been embezzled,
stolen, or fraudulently obtained by means
of a conspiracy as set forth. The perjury
alleged is swearing falsely to the proportion
of cement sand and broken stone put into
the caissons of the new Parliament buildings
at Winnipeg, in a judicial proceeding be-
fore the public accounts committee of the
legislative assembly of the province of Mani-
toba, the appellant knowing his statements
to be false. It is objected that although
perjury is mentioned as a ground for extra-
dition in the treaty, the appellant should
not be surrendered because the Canadian
Criminal Cod^ ( 170, [14] defines perjury
S64
as covering false evidence in a jodieial pro-
ceeding, "whether such evidence is matttlal
or not." As to this it is enough to say that
the assertions charged here were material
in a high degree, and that the treaty is not
to be made a dead letter because some pos-
sible false statements might fall within the
Canadian law that perhaps would not be
perjury by the law of Illinois. ''It is enough
if the particular variety was criminal in
both jurisdictions." Wright v. Henkel, 190
U. S. 40, 60, 61, 47 L. ed. 948, 955, 956, 23
Sup. Ct. Rep. 781, 12 Am. CrinL Rep. 386.
There is no attempt to go b^ond the prin-
ciple common to both places in the present
case. It is objected further that although
the above committee was authorized to ex-
amine witnesses upon oath, it was only io
''such matters and things as may be re-
ferred to them by the House." But even
if there were not some evidence and a find-
ing (Ornelas v. Ruiz, 161 U. S. 502, 509,
40 L. ed. 787, 789, 16 Sup. Ct. Rep. 689),
the nature of the investigation, the purposes
for which the committee was appointed, and
the fact that the appellant appeared before
it without objection, would warrant a pre-
sumption of regularity in a summary pro-
ceeding like this.
The plan for the foundations of the build*
ings was changed from piling called for
by the written contract to caissons filled
with concrete, and the false representations
all^^d concerning the amount of concrete,
lumber, iron rings, and bolts used in
the extra work. They consisted in bills
or "progress estimates" addressed to
the provincial government for "labor and
material supplied," setting forth the amount
of each item thus stated to have been sup-
plied. It is objected that the amounts die*
manded by the bills were paid not upon
the bills, but upon vouchers coming from the
department of public works, and that the
provincial architect who certified the bills
was not deceived. The person who made out
the certificates relied upon the bills in good
faith, and it appears that without the bills
the payments would not have been made.
The fact that there were other steps neces-
sary in addition [16] to sending in a false
account, or that other conspirators co-op-
erated in the fraud, does not affect the re-
sult that, on the evidence, Kelly obtained
the money from the provincial government
l^ fraudulent representations to which he
was a party, and that his false statement
was the foundation upon which the govern-
ment was deceived.
The last charge, stealing or embezzling
and receiving money fraudulently obtained,
needs a word of explanation. It may be as-
sumed that there is no evidence of larceny
or embezzlement as (commonly) defined,
141 U. 8.
1915.
OSBORNE V. QRAT.
16, 16
but the receiving of property known to have
been fraudulently obtained is a crime by the
laws of both Canada and Illinois. There
may be a doubt whether the appellant, if
a party to the fraud, received the money of
the government directly from it, or through
a third hand, so as to be guilty under this
count of the complaint. We are not pre-
pared to pronoimce his detention upon the
count unjustifiable, in view of the finding.
We assume, of course, that the government
in Canada will respect the convention be-
tween the United States and Great Britain,
and will not try the appellant upon other
charges than those upon which the extra-
dition is allowed. Therefore we do not
think it necessary to require a modification
of the complaint before the order discharg-
ing the writ of habeas corpus is affirmed.
Final order affirmed.
city, by taking judicial notice that the
fruit cars came from without the state, not-
withstanding the nearness of Chattanooga
and its suburb to the Georgia line.
[For other caseB, see Bvidence, L, in Digest
Sup. Ct. 1908.1
[No. 873.]
Argued April 3, 1916. Decided April 17,
1916.
tie] E. C. OSBORNE, Receiver of the Chat-
tanooga Southern Railroad Company,
V.
JENNIE B. GRAY.
(See S. C. Reporter's ed. 16-21.)
lError to state oouft — scope of review
— local law.
1. The question whether the declara-
tion in an action against a railway com-
pany for the wrongful killing of an employee
permitted a recovery at common law is one
of local law in the absence of any showing
bringing the injury within the Federal em-
ployers' liability act of April 22, 1908 (35
Stat, at L. 65, chap. 149, Comp. Stat. 1913,
I 8657), and is, therefore, not open for re-
view in the Federal Supreme Court on writ
•of error to a state court.
[For other cases, see Appeal and Error, 2079-
2226, in Digest Sup. Ct. 1908.]
Evidence — Judicial notice to supply
record.
2. The Federal Supreme Court cannot
supply the lack of any evidence in the record
showing the- interstate character of the em-
ployment of a railway employee, killed
while carrying out his instructions to de-
liver at Chattanooga, Tennessee, three car-
loads of peaches cut out of a passenger
train from the south at a suburb of that
Note. — On the general subject of writs
of error from United States Supreme Court
to state courts — see notes to Martin v.
Hunter, 4 L. ed. U. S. 97; Hamblin ▼.
Western Land Co. 37 L. ed. U. S. 267; Re
Buchanan, 39 L. ed. U. S. 884; and Kip-
ley Y. Illinois, 42 L. ed. U. S. 998.
On what questions the Federal Supreme
Court will consider when reviewing the
judgments of state courts — see note to Mis-
souri ex rel. Hill v. Dockery, 63 LJIA. 571.
On judicial notice, generally — see note to
Olive V. State, 4 LJl.A. 33.
49 li. ed.
IN ERROR to the Supreme Court of the
State of Tennessee to review a judg-
ment which affirmed a judgment of the
Court of Civil Appeals of that state, re-
versing a judgment of the Circuit Court of
Hamilton County in favor of defendants,
rendered on a second trial of an action for
the death of a railway employee, and rein-
stating a judgment of that court in favor
of plaintiff, rendered at the first trial.
Affirmed.
See same case below in Court of Civil
Appeals, 5 Tenn. C. C. A. 519.
The facts are stated in the opinion.
Mr. William li. Frierson argued the
cause, and, with Mr. Lewis M. Coleman,
filed a brief for plaintiff in error:
The writ of error rests upon the claim,
asserted by us, that the state court, in de-
ciding that the Federal employers' liability
act does not apply to a given state of facts
shown (1) in the declaration and (2) in
the proof, has failed to properly apply that
act, and has thus. deprived plaintiff in error
of the right to be shielded from responsi-
bility to anyone except a personal repre-
sentative of deceased. This clearly presents
a Federal question.
St. Louis, S. F. k T. R. Ck). t. Seale, 229
U. S. 156, 57 L. ed. 1129, 33 Sup. Ct. Rep.
651, Ann. Cas. 1914C, 156; St. Louis, I. M.
k S. R. Co. V. McWhirter, 229 U. S. 265, 57
L. ed. 1179, 33 Sup. Ot. Rep. 856; Seaboard
Air Line R. Co. v. Padgett, 236 U. S. 668,
59 L. ed. 777, 35 Sup. Ct. Rep. 481.
The question involved being clearly a Fed-
eral question, the motion to dismiss cannot
be sustained unless the right asserted is so
wanting in foundation and unsubstantial
as to be devoid of all merit and frivolous.
Seaboard Air Line R. Co. t. Padgett,
supra.
Where it appears either in the declara-
ti6n or in the proof that the accident oc-
curred in interstate commerce, the act of
Congress controls, and, in case of death, a
widow cannot recover in her own name.
Wabash R. Co. t. Hayes, 234 U. S. 86, 58
L. ed. 1226, 34 Sup. Ct. Rep. 729, 6 N. C.
C. A. 224; Toledo, St. L. & W. R. Co. ▼.
Slavin, 236 U. S. 454, 59 L. ed. 671, 35 Sap.
Ct. Rep. 306.
56
SUPBKMX COUKT OF THS UNITXD STATES. Oat. ItoM,
The Ti«w «zpreMcd br tlu itBla eonrt ClMrk, ISl IlL IBS, 3S N. X. es8; Pcvee t.
that 011I7 the wcond eount wu unended \a Luigflt, 101 Pa. 607, 47 Am. Hep. TST;
not condiuive on thk eonrt. Blumenthal r. Pacific Meat Go. 12 Waih.
Newport Lig^t Co. *. Newport, 161 U. S. Saz, 41 Pac. 47; Beigbert t. StUea. 39 WU.
687, 3B L. ed. 262, 14 Sup. Ct Bap. 429; G33; ChamberUjiie, £*. Til; Hobbe *.
Covington ft L. Tump. Road Co. v. Sandford, HemphU 4 C. R. Oo. B Heiak. ST4 ; SUte *.
164 U. 8. e»G, 41 L. ed. 666. IT Sup. Ct MlMouri P. H. Co. 212 Ho. 677, 111 S. W.
Sep. 198; MitcheU t. Clark, 110 U. B. 633, 600; Oolf, C. * 6. 7. R. Co. t. BUte, 72
eS L. ed. 27a, 4 Sup. Ct. Rep. ITO, 312; Tex. 404, 1 L.Rjl. 849, 2 Intera. Com. Rep.
Bo;d V. Nebraoka, 143 U. S. 13G, 36 L. ad. 336, 13 Am. St. Rep. 816, 10 & W. 81; 16
103, 12 Sup. Ct. Rep. 376; VaudalLa R. Co. Cfc 861; liUltt t. Texaa A N. O. R. Co. 81
T. Indiana, 207 U. S. 367, 62 L. ed. 24B, 28 Tex. SIS, 18 B. W. B64: Bmitha w. noumoy.
Sup. Ct. Rep. 130. 47 Ala. 34S.
TTie trial eonrt wae bound to know judi- j|, 3, j.. TKtom arned the eauae, and,
clally, and this court wiU know, that the ^m, jj^,,. p, h. Thach, Felix D. Lyneli,
Chattanooga Southern Railroad extends o^r„ w. Chamlee, and Joe V. WUliami,
from Chattanooga to the Georgia aUte line, ji^j ^ ^jj^ ,„, defendant inirror:
and then through the atate of Georgia and xhere U no Federal queation involvMl In
to Gadsden in Alabama; that Chattanooga this record. The polnta involved are qnea-
ia only about 4 or 6 mile* from the G«>rgia tloni of (1) (act pasaed upon adversely to
sUte hue. and its suburb of Alton Park, the pUintifT in error by the three courta of
immediately south of it, is almost on the Tennwiee. which is conclusive here (Dower
sUte lino. ^ Richards, 161 U. S, 6B8, 38 L. ed. 305, 14
Peyroux v. Howard. 7 Pet. 324, 8 L. ed. gnp. Ct. Rep. 458, 17 Mor. Min. Rep. 704;
TOO; United SUtes v. Ia Vengeance, 8 Dall. Miediaich v. I«uenitein, 232 U. S. 236, 6a
»7. 1 L. ed. 610; United SUtea v. Uw. l. ^_ ^^^ j^ g^. Ot. Rep. 300, and (B)
tOO,BHow.26,18L.ed.34; WatUv. Lind- the interpretation o( pleadings and the
w«y, T Wheat. 162, 6 L. ed. 424; McNitt v. effect of amendment, of pleading., which
Turner, 1« Wall. 362, 21 L. ed. 341; Penn. „, ,,„ binding upon thi. court,
•ylvanla v. Wheeling t B. Bridge On. 13 Central Vermont R. Co. v. White, 238 U.
How. 661, 14 L. ed. 287; United States v. 3, 607. 69 L. ed. 1433, 86 Bup. CL Rep. 866.
rhomton. 160 U. S. 068, 669, 40 I^ ad. g ]« c C A 265
672, 16 Snp. Ct. Rep. 410; WaUrs-Pierce xhe 'petition lot a writ of error, and
Oil Co. v. Deselms. 212 U. 8. 169, E3 I. ed. ^aignment of errors aeoompanying tha
463, 28 Sup. Ct. Rep. 270; Schollenberger v. ,^,, should be di.mi»ed for the rea«.n
Pennsylvania, 171 U. S. 9, 10, 43 L ed. thst neither of them shows that any title,
88, 63. 18 Sup. a. Hep. 767; New Mexico ,.igiit_ privilege, or immunity now claimed
ex Ml. McLean v. Denver t B. G, R. Co. by the plaintiff In error was eu>eeially Ht
203 U. S. 38. 81 U ed. 78. 27 Sup. Ct. Rep, ^ „ ^faimed in any of the eovJrt- of Tan-
1; Mcol V. Ames, 173 U. 8. 616, 617, 43 ^^^^ „d hence thU court ha. no jnria-
I* ad. 792, 19 Sup. Ct. Rep. 522; Gibson v. dietion of the cause (Seaboard Air U-e R.
Stevens, 8 How. 399. 12 L. ed. 1129; Brown (jo. v. Duvall, 226 U. 8. 477. 66 L. ed. 1171,
V. Spillman, 166 U. 8. 666, 39 L. ed. 304, IB 33 g^p. ct. Rep. 790) j and the aasignment
8np. Ct. Rep. 246; United State, v. Trans- ^, ,^„ nccompaoying the petition for a.
Hi.«>uri Freight Aaso. 166 U. S. 200. 41 L. ^^t of error should be disi^ased for th»
ed. 1007, 17 Sup. Ct. Rep. 540; Louisville reason that «iid assignment of error. no-
Trust Co. V. Louisville. N. A. A C. R. Co. „bere all<^ that in any of the decree, in
174 U. 8. 674, 43 L. ed. 1130, 19 Sup. Ct. the court, of Tennessee the pUlntifT In error
Rep. 827 ; Black Diamond Coal Min. Co. v. ^„ ^^nied any title, right, prlvUege, or Im-
Excelsior Coal Co. 166 U. S. 611, 39 L. ed. „„„ity rf^j^^ under the PedenTl Con.ti-
563. 16 Bup. Ct. Rep. 482; Bligh v. Kirk- tytion or any Federal sUtnte, it bring th*
wood, 287 U. 8. 62, GD h. ad. 836. 36 Sup. j^ty of the pUintiff In error, nndef the-
Ct Rep. 601, GreenL Bv. 15U. ed. | 6; p^j^^ fa, Tennessee and In this oourt. to-
Tborson t. PeUrson, 9 Fed. 517; Gilbert ». especially assign this as erKw in ordar to-
Holine Water Power A Mfg. Co. 19 Iowa, give this court jurisdiction.
818; Coover V. Davenport, 1 Heisk. 36S, 2 Cleveland & P. R. Co. V. Clevdand, 236-
Am. Rep. 708; St. Lonis, I. M. A B. R. Co. U. 8. 60. 60 L. ed. 127, 36 Sup. CL Rep.
▼. Magness, 68 Ark. 289, 67 8. W. 933; 21; Seaboard Air Line R. Co. v. Padgett,
Perry v. SUte, 113 Ga. 938, 39 B. E. 316; 236 U. B. 668. 69 L. ed. TTT, 86 Sup. Ct,
Harvey v. Territory, 11 Okla. 166, 66 Pac. Rep. 481; Seaboard Air Une |L Co. t. Db<
88T| HaiT^y T. WajM. T2 Me. 430; Baily viU, 22B U. S. 4TT, 66 L. ad. IITI, tt Sap.
Y. Birkhofer, 123 Iowa, OS, 98 N. W. 694; Ct. R^. 790; D. B. Lovenuw Go. v. B^I^
Bond V. Perkins, 4 Hriak. 364] Bnuoa t. 128 Tenn. 318, 180 8. W. 841, Ann. Caa.
««• %*l V. M,
Ifil5.
OSBORNE ▼. GRAY.
ia-20
19150, 187; Michaels t. Post, 21 WaU.
398, 22 L. ed. 620.
The practice of claiming dai^ages based
<m oonunon-law negligence in one count, and
damages based on a violation of the Federal
employers' liability act in another count, is
recognised and approved by this court.
Wabash K. Oa v. Hayes, 234 U. 8. 86, 58
L. ed. 1226, 84 Sup. Ct. Rep. 729, 6 N. C.
O. A. 224.
A writ of error will not lie where a state
decision is sustainable on non-Federal
grounds; hence, where the record shows a
Federal and a non-Federal question, and
the case was disposed of below on the lat^
Uar, this court will not take jurisdiction.
Allen T. Arguimbau, 198 U. S. 149, 49
L. ed. 990, 25 Sup. Ot. Rep. 622; Leonard v.
Vicksburg, S. k P. R. Oo. 198 U. S. 416, 49
L. ed. 1108, 25 Sup. Ct. Rep. 750; Giles
T. Teasley, 193 U. S. 146, 48 L. ed. 655, 24
Sup. Ct. Rep. 359 ; Hale v. Lewis, 181 U. S.
474, 45 L. ed. 960, 21 Sup. Ct. Rep. 677.
In Tennessee, where there are two or
more counts in a declaration on the same
cause of action, a general verdict in favor
of the plaintiff will be sustained if there
is evidence to sustain the allegations of any
count.
Shepherd v. Staten, 5 Heisk. 82.
There is no question of law involved in
the case, and the case having been brought
here manifestly for delay, the judgment of
the supreme court of Tennessee should be
affirmed, with 10 per cent as damages added.
Texas k P. R. Co. v. Prater, 229 U. S.
177, 57 L. ed. 1139, 33 Sup. Ct. Rep. 637.
Distances, locations, and matters of a
similar nature, may be judicially known to
the court, but they are not judicially known
in order to give the court jurisdiction.
Arkansas v. Kansas k T. Coal Co. 183
U. S. 185, 46 L. ed. 144, 22 Sup. Ct. Rep.
47 ; Thayer, Ev. chap. VII, p. 281.
Until the contrary is alleged or shown,
it will be presumed, in an action for in-
juries to a railroad employee through the
negligence of his employer in the use or
operation of its railway within the state,
that he was engaged in intrastate ccmi-
merce, and that he is seeking a remedy
under the laws of the state.
Erie R. Co. v. Welsh, 89 Ohio St. 81, 105
N. £. 189; Bradbury v. C»iicago, R. I. & P.
R. Co. 149 Iowa, 63, 40 L.RJL(K.S.) 684,
128 N. W. 1; Chicago, R. L k P. R. Co. v.
HcBee^ — Okla. — , 145 Pac. 331.
Mr. Justice Hughes delivered the opinion
of the court:
This suit was brought, in the year 1908,
by Jennie B. Gray to recover damages for
the death of her husband, who was employed
in the operation of the railroad of which
•• li. ed.
the plaintiff in error and another were re-
ceivers. The original declaration souf^t re-
covery for negligence, at common law, and
did not allege that the deceased was injured
while engaged in interstate commerce. The
plaintiff was permitted to file an addition-
al count, and this was subsequently amend-
ed so as to allege the interstate character
of the employment of the deceased at the
time of his injury. The action was first
tried in November, 1912; the jury rendered
a verdict in favor of the plaintiff of $10,-
000 and judgment was entered accordingly.
Thereupon, the trial judge granted a new
trial upon the ground that he had erred
in his instructions [19] to the jury with
respect to the burden of proof. At the sec-
ond trial, ir 1913, a verdict was directed
for the defendants (the plaintiffs in error)
and judgment in their favor was entered.
The 'court of civil appeals reversed this
judgment and reinstated the judgment en-
tered upon the verdict at the first trial.
The court of civil appeals did not consider
the record of the second trial, but was of
the opinion that the verdict first rendered
in favor of the plaintiff should not have
been set aside. This decision was affirmed
by the supreme court of the state, without
opinion.
The plaintiff in error presents for our con-
sideration these assignments of error : ( 1 )
That the court erred in not holding that
both counts of the declaration stated a case
controlled by the Federal employers' liabil-
ity act, and that, therefore, the widow could
not recover in a suit begun in her own
name; and (2) that the court erred in not
holding that the evidence on the first trial
made a case within the Federal act.
In support of the first assignment, it i»
insisted that the amendment inserting the
allegation that the injury was sustained
while the decedent was engaged in inter-
state commerce amended both counts of the
declaration. The state court treated it ae
sn amendment of the second count, and thus
the declaration on which the case was tried
was deemed to contain two counts, "one
under the common law of Tennessee and the
other charging negligence under tlie em-
ployers' liability act." From a Federal
standpoint, the question is not important,
for if it had been shown that the injury
had been received in interstate commerce^
the defendants would have been entitled
to insist upon the applicable Federal law
as the exclusive measure of their liability,,
and they would not have lost this rif^i
merely because the plaintiff had seen fit to-
present the claim ''in an alternative way,**
by means of separate counts. Wabash R.
Co. V. Hayes, 234 [20] U. S. 86, 90, 58 L.
ed. 1226» 1230, 84 Sup. Ct. R^. 729, 6 N.
8^7
90-22
SUPREME COURT OF THE UNITED STATES.
Oct. Temm,
C. C. A. 224. And in the ftbflenoe of a
showing bringing the injury within the
Federal act, the question whether the
declaration permitted a recoyery at com-
mon law was a state question.
It was distinctly stated by the court of
ciyil appeals that if the proof showed "that
the deceased was engaged in interstate com-
merce when he was injured/' the court
would "be compelled to hold that the trial
judge was not in error in setting aside the
▼erdict." But it was found that there was
no basis in the evidence for such a conclu-
sion, and the second assignment of error
challenges this ruling. The court of civil
appeals thus stated the facts:
"The proof indicates that the deceased
came into Alton Park on a passenger train,
and, as a part of this train, there were
three cars loaded with peaches. These .cars
were taken out of the passenger train at
Alton Park, when the train went on to the
Chattanooga depot. After these fruit cars
were taken out of the passenger train, the
deceased was directed by one of his superiors
to have them re-iced and then taken to
Cravens and delivered to the N., C. k St.
L. Railroad Company. The proof does not
show that the pkssenger train on which the
deceased came into Alton Park, and a part
of which the fruit cars were, came from
another state, and in fact fails to show
where it came from. The proof likewise
fails to show how far through or into what
part of Tennessee the railroad of defendant
company is located, and to what point it
operates trains. The fruit cars
which he was ordered to take and deliver to
the Nashville road, so far as his record dis-
closes, were taken out of a passenger train
in Alton Park. The proof does not indicate
where they came from, whether from an-
other state, or whether they were picked up
in Tennessee. . . . We do not know
where the passenger train came from, nor
where these fruit cars come from; all we
do know is, they were [21] cut out of the
passenger train at Alton Park, and the de-
ceased was ordered to take them down into
Chattanooga and deliver them to the N.,
C. k St. L. Railroad Company. That being
true, the deceased and these cars were en-
gaged in intrastate commerce when he re-
ceived his fatal injury, and not in inter-
state commerce." [6 Tenn. C. C. A. 524.]
The evidence has not been printed, but by
stipulation between the parties it is agreed
that the testimony also showed that the
passenger train in question had left Chat-
tanooga at 7 o'clock in the morning of the
day of the accident, and that it had come
Into Alton Park from the south, en its re-
turn trip, late in the afternoon. But this
still leaves undisclosed the origin and des-
ses
tination of the cars in the movement of
which the decedent was employed.
It is apparent that there was no evidence
requiring the conclusion that the deceased
was engaged in interstate commerce at the
time of his injury, and we are asked to
supply the deficiency by taking judicial
notice that the cars oame from without the
state. This contention we are unable to
sustain. The make-up of trains and the
movement of cars are not matters which
we may assume to know without evidence.
The state court, with its intimate knowledge
of the local situation, thought that such an
assumption on its part would be wholly
unwarranted and we cannot say that it
erred in this view. The fact that Chattan-
ooga and its suburb, Alton Park, were near
the state line, did not establish that the
cars had crossed it. The defendants knew
the actual movement of the cars, and, fail-
ing to inform the court upon this point,
cannot complain that they have been de-
prived of a Federal right.
Judgment affirmed.
[22] 6. k C. MERRIAM COMPANY, Appt.,
V.
ARTHUR J. SAALFIELD, Saalfield Pub-
lishing Company, and George W. Ogilvie.
(See S. C. Reporter's ed. 22-33.)
Appeal — from district coort — Juris-
diction below.
1. The jurisdiction of a Federal district
court as a Federal court is so involved as
to sustain a direct appeal to the Federal
Supreme Court, under the Judicial Code,
§ 238, in orders quashing service of process
against a nonresident by substituted service
upon persons said to represent him within
the district, and setting aside all proceed-
ings based thereon.
[For other cases, see Appeal and Brror, 008-
911, in Digest Sup. Ct. 1908.]
Note. — On direct review in Federal Su-
preme Court of judgments of district or cir-
cuit courts — see notes to Gwin v. United
States, 46 L. ed. U. S. 741, and B. Altman
k Co. V. United SUtes, 56 L. ed. U. S.
894.
On the conclusiveness of a Judgment as
between plaintiff and one not a party nor
privy, who voluntarily conducted the de*
fense— see note to Ludy t. Larsen, 37
L.RA.(N.S.) 957.
As to validity of personal judgments
rendered upon constructive service of pro-
cess— see note to Moyer v. Bucks, 16 L.RA.
231.
As to what service of process is sufficient,
generally, to constitute due process of law
— see note to Pinney v. Prondence Loan k
Invest. Co. 50 LILA. 677.
141 V. 8.
1916.
G. & C. MERRIAM CO. ▼. SAALFIELD.
Judgment — res Judicata — partlefl —
partldpatton in defense — final de-
2. A decree may not be rea judicata as
against a third party participating in the
defense unless it is so far final as to be
ret judicata against the defendant himself.
[For other cases, tee Judgment, 775-780, in
Digest Sap. Ct 1008.]
Jadgment — neceesltj of serYice of
process — nonresident — ancillary
proceeding.
3. A supplemental bill interposed for
the purpose of obtaining a decree in per-
sonam against a nonresident upon the
groiwd that by his participation in the de-
fense of the original action he had made
himself an actual, though not a nominal,
party, and was, therefore, imder.the doc-
trine of res judicata, bound by the decree
therein, is an original proceeding as against
him, not a dependent and ancillary one,
and jurisdiction thereof cannot be exerted
upon mere notice to him without service
of original process within the district.
(For other cases, see Judgment, III. c, 1 ;
Courts, V. c 9, in Digest Sup. Ct. 1008.J
[No. 178.]
Argued January 14 and 17, 1916. Decided
AprU 17, 1916.
APPBAL from the District Court of the
United SUtes for the Northern Dis-
trict of Ohio to review orders quashing the
service of process against a nonresident by
substituted service, and setting aside all
proceedings based thereon. Affirmed.
The facts are stated in the (pinion.
Mr. 'William B. Hale argued the cause,
and, with Mr. James A. Ford, filed a brief
for appellant:
Ogilvie was privy to the original suit,
and was an actual, although not an ostensi-
ble, party thereto, in such a real sense
that the decree will be res judioa4a against
him.
Stryker v. Goodnow (Stryker v. Crane)
123 U. S. 527, 31 L. ed. 104, 8 Sup. Ct.
Rep. 203; Litchfield v. Goodnow (Litch-
field V. Crane) 123 U. 8. 649, 551, 31 L.
ed. 190, 201, 8 Sup. Ct. Rep. 210; G. k C.
Merriam Co. v. Saalfield, 111 C. C. A. 617,
190 Fed. 932, 117 C. C. A. 245, 198 Fed.
371; Lovejoy v. Murray, 3 Wall. 1, 18,
18 L. ed/ 1^9, 134; Robbins v. Chicago, 4
Wall. 657, 672, 18 L. ed. 427, 430; Rum-
ford Chemical Works v. Hygienic Chemical
Co. 215 U. S. 156, 54 L. ed. 137, 30 Sup.
Ct. Rep. 45; Bigelow v. Old Dominion Cop-
per Min. & Smelting Co. 225 U. S. Ill,
56 L. ed. 1009, 82 Sup. Ct. Rep. 641, Ann.
Cas. 1913E, 875; David Bradley Mfg. Co.
V. Eagle Mfg. Co. 6 C. C. A. 661, 18 U. S.
App. 349, 57 Fed. 980; Hauke v. Cooper,
48 C. C. A. 144, 108 Fed. 922; Empire
•0 li. ed.
State Nail Co. t. American Solid Leather
Button Co. 71 Fed. 588; Claflin v. Fleteher»
7 Fed. 851; Bank of Commerce t. Louis-
ville, 88 Fed. 398; Castle v. Noyes, 14 N.
Y. 329; Carey v. Roosevelt, 91 Fed. 567,
83 Fed. 242; Theller v. Hershey, 89 Fed.
575; Tootle T. Coleman, 57 LJLA. 120, 46
C. C. A. 132, 107 Fed. 41.
If the actual defense of a suit by one
interested therein, but not named as a
party, becomes known to the plaintiff at
any time before the final decree, both par-
ties will be bound by it as res judicata.
Eagle Mfg. Co. v. Miller, 41 Fed. 357.
The district court for the northern dis-
trict of Ohio, eastern division, has juris-
diction* notwithstanding Ogilvie resides in
the southern district of New York, be-
cause: (a) He submitted to the jurisdic-
tion, and waived objections, by voluntarily
coming in and defending the suit.
Interior Constr. k Improv. Co. v. Gib-
ney, 160 U. S. 217, 40 L. ed. 401, 16 Sup.
Ct. Rep. 272; Re Keasbey k M. Co. 160 U.
S. 221, 40 Ix ed. 402, 16 Sup. Ct Rep.
273.
And (b) the supplemental bill is a de-
pendent and ancUlary proceeding.
Milwaukee 4 M. R. Co. t. Milwaukee k
St. P. R. Co. (Milwaukee & M. R. Co. ▼.
Soutter) 2 Wall. 609, 633, 17 L. ed. 886,.
895; Johnson T. Christian, 125 U. S. 642»
31 L. ed. 820, 8 Sup. Ct. Rep. 989, 1135;
Dewey v. West Fidrmont Gas Coal Co^
123 U. S. 329, 31 L. ed. 179, 8 Sup. Ot.
Rep. 148; Brun v. Mann, 12 L.RJL(N.S.>
154, 80 C. C. A. 513, 161 Fed. 145; Camp-
bell V. Golden Cycle Min. Co. 73 C. C. A.
260, 141 Fed. 610; Loy v. Alston, 96 C.
C. A. 578, 172 Fed. ^4; 2 Street, Fed. Eq.
Pr. §9 1228, 1238; O'Connor v. O'Connor,
146 Fed. 994; G. k C. Merriam Co. v. Saal-
field, 111 C. C. A. 517, 100 Fed. 932; West-
em Teleph. Mfg. Co. v. American Electric
Co. 141 Fed. 998.
Substituted service, or mere actual no-
tice, is sufficient to subject a party to the
jurisdiction of the court in any ancillary
proceeding, and sufficient service was had
in this case.
1 Street, Fed. Eq. Pr. pp. 382, 386, 388;
Milwaukee k M. R. Co. t. Milwaukee k StL
P. R. Co. (Milwaukee 4 M. R. Co. t. Sout^
ter) 2 Wall. 633, 634, 17 L. ed. 895; Dunn
V. Clarke, 8 Pet. 1, 3, 8 L. ed. 845, 846;
Gregory v. Pike, 26 C. C. A. 48, 60 U. 8.
App. 4, 70 Fed. 521; Gasquet t. Fidelity
Trust k S. V. Co. 6 0. C. A. 253, 13 U. CL
App. 564, 57 Fed. 84; Abraham t. North
German F. Ins. Co. 3 LJLA. 188, 87 Fed.
731; Crellin v. Ely, 13 Fed. 420; Cortes Co.
V. Thannhauser, 9 Fed. 226; Maitland t.
Gibson, 70 Fed. 136; Kelley v. T. L. Smitlft
Co. 116 C. C. A. 240, 196 Fed. 466.
2^26
SUPREME COURT OF THE UNITED STATES.
Oct. TkBMy
QgUrie's affidaTit in opposition to the
notion for an injunction upon the supple-
mental bill argues the case upon the merits,
and subjects him to the jurisdiction of
the court.
Ames ▼. Freeman, 83 Kan. 585, 112 Pac.
160; LiTingston y. Gibbons, 4 Johns. Gh.
IK; Cooley ▼. Lawrence, 12 How. Pr. 176;
Duncan t. Wickliffe, 4 Met. (Ky.) 118;
Commercial State Bank t. Rowley, 2 Neb.
(Unof.) 645, 89 N. W. 766.
Mr. Wade H. Skills argued the cause,
and, with Mr. Challen B. Ellis, filed a brief
for appellees:
Tbis case .was not appealable to this
court direct from the district court, and
this appeal should be dismissed.
Bache t. Hunt, 103 U. S. 523, 48 L. ed.
774, 24 Sup. Ct. Rep. 547; Courtney v.
Pradt, 106 U. S. 89, 40 L. ed. 398, 25 Sl^>.
Ct Rep. 208.
The theory that the estoppel of Ogilvie,
if any, could be used to take the place of
his being made a party of record, and be
the basis of a judgment against him in
the case, is fallacious and unsupported by
any authority.
Bidwell ▼. Toledo Consol. Street R. Co.
72 Fed. 10.
The facts shown would not constitute
even an estoppel against Ogilvie if prop-
erly sued in a subsequent case.
Bank of Commerce v. Louisville, 88 Fed.
308; Lane ▼. Welds, 30 C. C. A. 528, 99
Fed. 286; Bigelow ▼. Old Dominion Copper
Min. k Smelting Co. 225 U. S. Ill, 56 L.
ed. 1009, 32 Sup. Ct. Rep. 641, Ann. Cas.
1913E, 875.
Nothing is added to the right of the
complainant by the so-called substituted
senrioe.
Smith V. Woolfolk, 115 U. S. 148, 29 L.
ed. 359, 6 Sup. Ct. Rep. 1177.
Mr. Justice Pitney delivered the opinion
of the court:
This is a direct appeal from the district
court under § 238, Judicial Code [36 Stat.
at L. 1157, chap. 231, Comp. Stat. 1913,
I 1215], upon the sole question of the
jurisdiction [24] of that court to make
and enforce a final decree in personam
against appellee George W. Ogilvie. The
decree was foimded upon a supplemental
bill making Ogilvie a party to a suit al-
ready pending, and upon substituted service
of process on persons said to represent
him as attorneys in the state of Ohio, be
being a citizen and resident of the state
of New York, and not having been per-
■ooally served.
The facts are as follows: In December,
1908, appellant filed its original bill against
Saalfield in the then circuit court of the
United States for the northern district of
Ohio, for relief against unfair competition
in the business of publishing and selling
dictionaries. Saalfield was duly served with
process, appeared, and made defense. The
circuit court having dismissed Ihe bill, the
circuit court of appeals reversed the decree
(111 C. C. A. 517, 190 Fed. 927, 117 C. C.
A. 245, 198 Fed. 369), and remanded the
cause, with direction for an injunction and
an accounting in conformity with its opin-
ion. The district court made a decree in
accordance with the mandate September 11,
1912, with an order of reference for the ac-
counting. Thereafter and on December 16,
1912, the supplemental bill was filed, setting
up in substance that since the entry of the
decree of September 1 1 complainant had dis-
covered, and it charged the fact to be, that
Ogilvie had from the beginning actively con-
ducted, controlled, and directed the de-
fense of the suit, having selected, retained*
and paid, as solicitors and counsel for de-
fendant Saalfield, the firm of Weed, Miller,
k Nason, of Cleveland, Ohio, and Mr. George
F. Bean, of Boston, Massachusetts, who, in
pursuance of said retainer, appeared on be-
half of Saalfield, but acted for and under
instructions of Ogilvie; that in fact Ogilvie
was the proprietor of the dictionaries in-
volved in the suit, which were published and
sold for his benefit and profit by Saalfield
under a contract providing for the payment
of royalties to Ogilvie; that pending the
suit Saalfield had [26] transferred and
assigned to the Saalfield Publishing Com-
pany, a corporation, bis business of pub-
lishing and selling the dictionaries; that
the company, as successor of and claiming
through and under Saalfield, was bound by
all the proceedings in the suit, and that it
was then carrying on the business, under
contract with Ogilvie; and that, l^ reason
of the facts mentioned, Ogilvie haJ made
himself privy to the suit, and an actual
though not a nominal party thereto, and
was bound by the proceedings and decree
therein. Appropriate relief was prayed
against Saalfield, the Saalfield Publishing
Company, and Ogilvie.
Upon the filing of the supplemental bill
and an aflidavit setting forth that Ogilvie
was a nonresident of the northern district
of Ohio, and that, as alleged in the supple-
mental bill, tlie firm of Weed, Miller, k
Nason, of Cleveland, and Qeorge F. Bean,
of Boston, Massachusetts, who had ap-
peared respectively as solicitors and coun-
sel for defendant Saalfield in the defense
of the suit, were in fact retained and em-
ployed by Ogilvie for that purpose, and paid
by him and acted under his instructions
and directions, complainant moved for and
141 V. 8.
1916.
0. ft a MERRIAM CO. t. 8AALFISLD.
20^2a
obtained an ord«r authofiiing subttituted
service of prooeas againat Ogilvie, to be
made within the diatriet upon the Cleve-
land attorneya, and in the diatriet of Maaaa-
«hiiaetta upon George F. Bean. Service waa
made accordingly, and the procesa returned ;
and it appearing from an affidavit made by
defendant Ogilvie, and filed in the cause on
February 22, 1013, that he had had actual
notice of^ the supplemental bill, an inter-
locutory decree pro oanfesao was entered,
and this was followed, on October 16, 1913,
by a final decree for the recovery against
him of profits amounting, with interest, to
481,312.78, besides, costs. Thereafter Ogil-
vie, by solicitors, appearing specially for
the purpose, moved to quash the service of
the writ of subpoena issued against him,
and to set aside all proceedings based there-
on. The district court, having heard testi-
mony, granted the [26] motion, and at the
aame time denied a petition filed by com-
plainant for enforcement of the final de-
cree against Ogilvie; and from final orders
entered for carrying into effect this de-
cision, complainant has appealed to this
•court.
There is a motion to dismiss, based upon
the familiar ground that the "jurisdiction
of the court" referred to in S 238, Judicial
Code, means its jurisdiction aa a Federal
court, and not its general jurisdiction as a
Judicial tribunal; the insistence being that
the contention of complainant below pre-
aented no more than a general question of
procedure in equity, and not one peculiar
to the district court as a Federal court.
But the distinction referred to bears upon
the nature of the jurisdiction exercised or
refused to be exercised after a valid service
of process upon the defendant, and does not
affect the question whether the court has
Acquired jurisdiction over the person, which
is the one here involved. This question m&j
be reviewed on direct iippeal. Shepard v.
Adams, 168 U. 8. 618, 623, 42 L. ed. 602,
<t03, 18 Sup. Ct. Rep. 214; Remington v.
Central P. R. Co. 108 U. S. 96, 90, 49 L.
ed. 059, 963, 26 Sup. Ct. Rep. 677; Board of
Trade v. Hammond Elevator Co. 198 U. S.
424, 434k 49 L. ed. 1111, 1116, 26 Sup. Ct
Rep. 740; Commercial Mut. Acci. Co. v.
Davis, 213 U. S. 246, 266, 63 L. ed. 782, 787,
29 Sup. Ct. Rep. 446; Mechanical Appliance
Co. V. Castleman, 216 U. S. 437, 440, 64 L.
ed. 272, 276, 30 Sup. Ct. Rep. 125; Hemdon-
Carter Co. v. James K. Norris, Son k Co.
224 U. 8. 406, 498, 66 L. ed. 857, 868, 32
Sup. Ct. Rep. 660. In Bache t. Hunt, 193
U. 8. 623, 48 L. ed. 774, 24 Sup. Ct. Rep.
647, the decision that was held not review-
able on direct appeal waa rendered upon a
plea to the jurisdiction of the court over
the subject-matter. In Courtney t. Pradty
«0 Ij. ed.
196 U. S. 89, 49 L. ed. 898, 26 Sup. Ct Rep.
208, the suit had been removed from a Ken-
tucky state court to the United States cir-
cuit court, where Pradt filed a special de-
murrer, aaaigning aa causes that the court
had no jurisdiction of the person or of the
subject-matter. The court dismissed the
suit for want of jurisdiction, and it ap-
peared from its opinion that tiiia was done
because Pradt» who waa sued as executor,
waa appointed as such in Wisconsin, and a
suit against a Wisconsin [27] executor
could not be maintained in the Koitucky
state court, nor in the Federal court The
question of jurisdiction waa not certified
to thia court, and the appeal was therefore
dismissed. These cases are plainly dis-
tinguishable. The present motion to dis-
miss must be denied.
Appellant's case upon the merits is rested
upon the theory that Ogilvie' was privy to
the original suit against Saalfield, and an
actual though not an ostensible party there-
to, in such a real sense that the final de-
cree therein would be res judicaia against
him; that the district court had jurisdiction
to entertain the suit aa against him not-
withstanding he resided outside the dis-
trict, because by volimtarily coming in and
defending for. Saalfield, he had submitted to
the jurisdiction and waived the objection,
and because the supplemental bill was a
dependent and ancillary proceeding, and
therefore properly brought in the district
wherein the original proceeding was pend-
ing; and, finally, that because of its being
an ancillary proceeding, substituted service
upon the solicitors representing Ogilvie in
the original proceeding was sufficient to sub-
ject him to the jurisdiction for the purposes
of the supplemental bill. There is a faint
attempt to austain the jurisdiction on the
theory that Ogilvie's affidavit, filed Feb-
ruary 22, 1913, as mentioned in the inter-
locutory decree pro ctmfesao, amounted to a
general appearance, because it was sub-
mitted in opposition to a motion for in-
junction on the supplemental bill, and be-
cause it "argued the case upon the merits."
This may be overruled at once. The affi-
davit shows on its face that it was to be
used only as evidence for defendants Saal-
field and the Publishing Company, and was
not to be construed aa an appearance by
Ogilvie.
The district court, while raising some
question whether the solicitors and coun-
sel who had appeared for Saalfield at Ogil-
vie'a expense had not concluded their serv-
ices in [28] Ogilvie's behalf prior to the
filing of the supplemental bill, yet rested ita
decision substantially upon the ground that
complainant did not know that Ogilvie had
any ccmnection with Saalfield or the' Sr
88-80
8UPKXMB COURT OF THS UNITED STATES.
Oct. TkBM,
field Publiflhing Company until after the
making of tlie decree of September 11, 1012,
upon tlie going down of the mandate from
the circuit court of appeals; and that for
this reason Ogilvie could not have taken
advantage of that decree liad it been ad-
verse to complainant, and therefore was not
estopped by it, since estoppels must be
mutual.
In BO holding, the court applied the doc-
trine that has been laid down in a number
of cases, that a third party does not be-
oome bound by a decree because of his par-
ticipation in the defense unless his conduct
in that regard was open and avowed or
otherwise known to the opposite party, so
that the latter would have been concluded
by an adverse judgment. See Andrews v.
National Foundry & Pipe Works, 36 L.R.A.
139, 22 C. C. A. 110, 46 U. S. App. 281, 76
Fed. 166, 173; Lane v. Welds, 39 0. C. A.
628, 99 Fed. 286, 288. We need not con-
sider the soundness of the doctrine, for ap-
pellant does not question it, insisting only
that it is not applicable here because Ogil-
vie's control of the defense made in Saal-
fleld's name became known to appellant dur-
ing the progress of the suit, and before
final decree; it being contended that the
decree of September 11, 1912, was inter-
locutory, and not final.
But it' is familiar law that only a final
judgment is res judicata as between the
parties. And it is evident that a decree
cannot be rea judicata as against a third
party participating in the defense unless
it is so far final as to be ret judicata
against the defendant himself. Hence, if
the decree of September 11 was not final
as between appellant and Saalfield, it can-
not be res judicata as against Ogilvie; and
thus the fundamental groimd for proceed-
ing against the latter by supplemental bill
with substituted service of process disap-
pears. This sufficiently shows the weakness
of appellant's position, which, upon analy-
sis, is [20] found to be this: that upon the
theory that Ogilvie would be estopped, by a
final decree if and when made, it sought to
bring him into the suit, before final decree,
as if he were already estopped. However
convenient this might be to a complainant
in appellant's position, it is inconsistent
with elementary principles.
But, assuming for argument's sake that
the decree was final, and that Ogilvie was
fully estopped by it because of having taken
charge and exercised control of Saalfield's
defense through solicitors and counsel re-
tained and paid by himself; and assuming
that their employment had not been termi-
nated at the time the supplemental bill was
filed, — ^the question of the sufficiency of the
proceediDgB taken bj way of substituted
S72
service to bring Ogilvie within the juris*
diction of the court still remains, and this
depends upon whether the supplemental bill
is a dependent and ancillary proceeding,
jurisdiction of which follows jurisdiction
of the original cause, and may be exerted
upon mere notice to the party, without serv-
ice or original process within the district.
It seems to be thought that because Ogil-
vie was identified in interest ;with the
defendant in the original suit, and had and
exercised the right to make defense and
control the proceedings and appeal from the
decree, he may be treated for all purposes
as an actual party to the record. But this
by no means follows. The doctrine of re*
judicata furnishes a rule for the decision
of a subsequent case between the same par-
ties or their privies respecting the same
cause of action. Obviously, the rule for de*
cision applies only when the subsequent ac-
tion has been brought. So far as the sup-
plemental bill seeks to bring in Ogilvie as
a new party and obtain relief against him,
it is not, in any proper sense, dependent
upon or ancillary to the original suit
against Saalfield. It is not analogous to
a suit for an injunction against the prose-
cution of a previous suit or the enforcement
of a judgment therein. It has not [30] for
its object some further dealing with the
same subject-matter. Ogilvie is not in the
position of one who, pending a suit about
property, has acquired an interest in the
subject-matter. The object of the original
bill was to obtain an injunction and recover
profits from Saalfield; that of the supple-
mental bill is to obtain an injunction and
an accoimting of profits against Ogilvie
respecting the same transactions. But the
merits are not to be adjudicated against
him until he is brought into court, and as
against him the supplemental Mil is an
original, not an ancillary, proceeding. In
Dunn V. Clarke, 8 Pet. 1, 8 L. ed. 845, one
Graham had recovered a judgment at law
in an action of ejectment against the com-
plainants, Clarke and others, in the United
States circuit court, jurisdiction depend-
ing upon diversity of citizenship. Graham
having died, the defendant, Dunn, held the
land recovered in trust under his wiU.
Clarke and others filed their bill in the
same court, praying for an injunction
against the judgment and for a decree that
the land in controversy be reconveyed. All
the complainants and defendants were resi-
dents of the same state (Ohio). This court
said: ''No doubt is entertained by the
court that jurisdiction of the case may be
sustained, so far as to stay execution on
the judgment at law against Dunn. He is
the representative of Graham; and al-
though he is a citisen of Ohio, yet •this fact,
941 U. S.
1916.
G. k C. MERRIAM GO. t. SAALFIELD.
S0-8d
under the eircumBtances, will not deprive
this court of an equitable control OTer the
judgment. But beyond this, the decree of
this court cannot extend. Of the action at
law, the circuit court had jurisdiction; and
no change in the residence or condition of
the* parties can take awaj a jurisdiction
which has once attached. If Graham had
lived, the circuit court might have issued
an injunction to his judgment at law, with-
out a personal service of process, except
on his counsel; and as Dunn is his repre-
sentative, the court may do the same thing,
as against him. The injunction [31] bill
is not considered an original bill between
the same parties, as at law: but, if other
parties are made in the bill, and different
interests involved, it must be considered, to
that extent at least, an original bill; and
the jurisdiction of the circuit court must
depend upon the citizenship of the parties.
In the present case, several persons are
made defendants who were not parties or
privies to the suit at law, and no jurisdic-
tion as to them can be exercised by this or
the circuit court." So far as it shows the
distinction between an original bill and one
that is not to be so considered, the case is
in point upon the present question. The
reference to "privies" must be taken in con-
nection with the subject-matter, which in
that case was the ownership of land.
No case to which we are referred, nor any
other that we have found,^ goes to the ex-
tent of sustaining as an ancillary proceed-
ing a bill interposed for the purpose of
obtaining a decree in perBonam against a
party upon the ground that he had par-
ticipated in the defense of a previous action
against another party so as to become bound
upon the doctrine of ret judicata, Kelley v.
T. L. Smith Co. (0. C. A. 7th) 117 C. C. A.
240, 106 Fed. 466, is referred to. In that
case Kelley, a citizen of New York, and
McConnell, a citizen of Illinois, had com-
menced an action in a Wisconsin state court
to compel the secretary of the Smith [32]
Company to transfer certain shares of stock
standing in Kelley's name to McConnell,
as his assignee. A firm of Milwaukee at-
torneys brought the action, and an attor-
ney connected with that firm was in pos-
session of the certificate as agent of
McConnell. Thereupon the company and its
secretary filed in the United States circuit
court a bill asserting that the equitable
title to the shares was involved in a suit
already pending in that court, to which the
company was a party defendant; that thus
different parties, in different courts, were
insisting that complainants transfer the
same shares to each, and if complainants
should comply with the demand of either
they would be unable to transfer the shares
to the other if so ordered by a court decree,
and that they had no interest in the shares,
and were willing to transfer them to the
party found to be the owner. On the show-
ing that Kelley and McConnell were not
to be found in the district, and that the
stock oertificates was within the district,
in the hands of their attorneys and agent
having authority to assert and preserve
their rights, the court ordered the subpoena
and the notice of application for an inter-
locutory injunction to be served, and they
were served, upon said attorneys and agent.
The circuit court overruled a demurrer,
and the court of appeals sustained this de-
cree, not, however, upon the ground that
the suit was an ancillary proceeding in aid
of the court's jurisdiction in a pending suit,
but upon the ground that, as an independ-
ent and original bill, it presented a subject
cognizable in a circuit court of the United
States, and that although jurisdiction in
peraanam could not be acquired by service
of process under equity rule 13, because of
the absence of the defendants, substituted
service was permissible under the then
equity rule 90, by analogy to the English
practice. Without intimating any view as
to the correctness of this reasoning, it is
sufficient to say that the decision has no
p^inency to tiie question here presented.
[33] Upon these grounds, we are of
opinion that substituted service of process
1 See Milwaukee k M. R. Co. v. Milwau«
Itee k St. P. R. Co. 2 WalL 600, 633, 17 L.
ed. 886, 805; Freeman v. Howe, 24 How.
450, 460, 16 L. ed. 740, 752; Krippendorf
V. Hyde, 110 U. S. 276, 285, 28 L. ed. 146,
148, 4 Sup. Ct. Rep. 27; Clarke v. Mathew-
son, 12 Pet. 164, 171, 0 L. ed. 1041, 1043;
Webb V. Bamwall, 116 U. S. 103, 107, 20
L. ed. 606, 506, 6 Sup. Ct. Rep. 350; Covell
V. Heyman, 111 U. S. 176, 170, 28 L. ed.
300, 301, 4 Sup. Ct. Rep. 355; Dewey v.
West Fairmont Gas Coal Co. 123 U. S. 320,
833, 31 L. ed. 170, 181, 8 Sup. Ct. Rep.
148; Gumbsl v. Pitkin, 124 U. 8. 131, 144,
SI L. ed. 374, 378, 8 Sup. Ct. Rep. 370;
Morgan's L. ft T. R. ft S. S. Co. v. Texas
C. R. Co. 137 U. S. 171, 201, 34 Lw ed. 626,
60 li. ed.
635, 11 Sup. Ct. Rep. 61; Byers v. McAuIey,
140 U. S. 608, 614, ^7 L. ed. 867, 871, 13
Sup. Ct. Rep. 006; Root v. Wool worth, 150
U. S. 401, 413, 37 L. ed. 1123, 1126, 14 Sup.
Ct. Rep. 136; White v. Ewing, 150 U. S.
36, 30, 40 L. ed. 67, 68, 16 Sup. Ct Rep.
1018; Carey v. Houston ft T. C. R. Co. 161
U. S. 115, 130, 40 L. ed. 638, 643, 16 Sup.
Ct. Rep. 537; Wabash R. Co. v. Adelbert
CoUege, 208 U. 8. 38, 54, 62 L. ed. 370, 386,
28 Siu>. Ct. Rep. 182; Cortes Co. v. Thann-
hauser, 20 Blatdif. 50, 0 Fed. 226; CreUin
V. Ely, 7 Sawy. 532, 13 Fed. 420; Abraham
V. North German F. Ins. Co. 3 L.RJL 188,
37 Fed. 731; Gasquet v. FideUty Trust ft
S. V. Co. 6 a a A. 253, 13 U. B. App. 564,
67 Fed. 80.
f
3S
SUPREME COURT OF THE UNITED STATES.
Cot. TkiM,
mgainst Qgilvie was inadmissible, and that
the District Court did not err in quashing
the service and setting aside the proceed-
ings based thereon, nor in refusing appel-
lant's petition for enforcement ol the de-
cree against him.
Final orders affirmed.
TEXAS k PACIFIC RAILWAY COM-
PANY, Plflf. in Err.,
V.
A. R. RIGSBY.
(See S. C. Reporter's ed. 33-43.)
Master and servant — safety appliances
— defective ladder ^ employee not
coupling or uncoupling cars.
1. A switchman in the employ of an in-
terstate railway company who was injured
throuffh a defect in a hand hold or grab
iron forming one of the rungs of a ladder
on a box car which he was descending aft-
er having set a brake operated from the
roof of such car is withm the protection
afforded by the safetv appliance act of
March 2, 1803 (27 Stat, at L. 531, chap.
106, Comp. Stat. 1913, § 8605), as amended
by the act of April 14, 1010 (36 SUt. at
L. 298, chap. 160, Comp. Stat. 1013, § 8617),
I 2, which commands that all cars requiring
secure ladders shall be equipped with them.
[For other caseB, see Master and Servant, II.
a, 2. in Digest Sup. Ct. 1908.]
Master and servant — safety appliances
^ employee not engaged in interstate
commerce.
2. An employee of an interstate rail-
way company, though not himself engaged
in interstate commerce, is within the pro-
tection of the Federal safety appliance acts
of March 2, 1893 (27 Stat, at L. 531, chap.
196, Comp. Stat. 1913, § 8605), March 2,
1903 (32 Stat, at L. 943, chap. 976, Comp.
Stat. 1913, § 8613), and April 14, 1910
(36 SUt. at L. 298, chap. 160, Comp. Stat
1913, § 8617), which impliedly create a
private right of action in favor of an em-
ployee injured through a violation of the
commands of those statutes that certain
safety appliances be installed upon railway
cars used upon a highway of interstate
commerce.
[For other cases, see Master and Servant, II.
a, 2. In Digest Sup. Ct. 1008.]
Commerce — power of Congress — safe-
ty appliances.
3. Conmss could, under the commerce
clause of the Federal Constitution, create,
as it did by the safety appliance acts of
March 2, 1893 (27 Stat, at L. 531, chap.
196, Comp. Stat. 1913, § 8605 )« March 2,
1903 (32 Stat, at L. 943, chap. 976, Comp.
None — On duty and liability under Fed-
eral and state safety appliance acts — see
notes to Chicago, M. & St. P. R. Co. v.
United States, 20 L.RA.(N.S.) 473, and
X«lce Shore & M. S. R. Ck>. t. Benson, 41
L.JRji.(NJ3.) 49.
Stat. 1913, S 8613), and AprU 14, 1910
(36 Stat, at L. 298, chap. 16(5, Comp. Stat
1913, § 8617), a liability on the part of
an interstate railway company to an em-
ployee injured through a violation of the
commands of those statutes tliat certain
safety appliances be installed upon railwi^
cars used upon a highway of interstate com-
merce, even though the injured employee
was not himself engaged in interstate com-
merce.
[For other cases, see Commerce, 29-^6. Is
Digest Sup. Ct. 1908.]
Master and servant — safetj appliances
moving car for repairs.
4. The liability of an interstate rail-
way company under the Federal safety ap-
pliance acts of March 2, 1893 (27 Stat, at
L 531, chap. 196, Comp. SUt. 1913, g 8606),
March 2, 1903 (32 Stat, at L. 943, chap.
976, Comp. Stat. 1913, g 8613), and April
14, 1910 (36 Stat, at L. 298, ehap. 160,
Comp. Stat. 1913, § 8617), to an employes
injured through a violation of the oonunands
of those statutes that certain safety appli-
ances be installed upon railway cars used
upon a highway of interstate commerosu
exists, although the employee when injured
was engaged in taking the defective ear to
the shops for repairs.
[For other cases, see Master and Servant. IL
a, 2, in Digest Sup. Ct. 1908.]
Master and servant ^ safety appliances
— negligence.
5. Interstate railway companies are
charged with an absolute and unqualified
duty, irrespective of any question of negli-
gence, to maintain in proper condition the
safety appliances which, under the acta of
March 2, 1893 (27 SUt. at L. 531, chap.
196, Comp. Stat. 1913, § 8605), March 2,
1903 (32 SUt. at L. 943, chap. 976, Comp.
SUt. 1913, § 8613), and April 14, 1910 (M
Stat, at L. 298, chap. 160, Comp. SUt. 1013,
§ 8617), must be insUlled on railway cars
used on a highway of intorsUte commerce.
LFor other cuscs, see Master and Servant, IL
a, 2, In Digest Sup. Ct. 1908.]
Master and servant — safety appliances
— assumption of risk.
6. The railwJEiy employee's knowledge
of the defect does not bar his suit to recover
damages for injuries attribuUble to the
railway company's violation of the com-
mands of the safety appliance acts of Idareh
2, 1893 (27 SUt. at L. 531, chap. 196, Comp.
SUt. 1913, § 8605), March 2, 1903 (32
SUt. at L. 943, chap. 976, Comp. SUt. 1913,
§ 8613), and Aprilu, 1910 (36 SUt. at
L. 298, chap. 160, Comp. SUt. 1913, | 8617),
since by § 8 of the earliest act an employee
injured by any car in use contrary to iti
provisions is not to be deemed to have as-
sumed the risk, although continuing in the
employment of the carrier after the unlaw-
ful use of the car has been broi^ght to his
knowledge, and by { 5 of the latest act the
provisions of the earliest act are made ap-
plicable to it, with a qualification that does
not affect remedial actions by emploTees.
[For other cases, see Master and Servant. IL
b, 4, m Digest Sup. Ct. 1908.]
[No. 623.]
941 V. B.
1916.
TEXAS 4 P. R. CX). ▼. RIQSBY.
Argued February 21, 1916. Decided April
17, 1916.
IN ERROR to the United States Circuit
Court of Appeals for the Fifth Circuit
to review a judgment which affirmed a judg-
ment of the District Court for the Eastern
District of Texas in favor of plaintiff in
an action for damages based upon the Fed-
eral safety appliance acts. Affirmed.
See same case below, 188 C. C. A. 51, 222
Fed. 221.
The facts are stated in the opinion.
Mr. F. H. Prendergost argued the cause
and filed a brief for plaintiff in error:
To recover, Rigby must bring himself un-
der the safety appliance act and under the
employers' liability act. Both the car and
the man must be engaged in interstate
eonunerce.
Illinois C. R. Co. v. Behrens, 233 U. S.
474, 68 L. ed. 1051, 34 Sup. Ct. Rep. 646,
Ann. Gas. 1914C, 163; Pederson v. Dela-
ware, L. k W. R. Co. 229 U. S. 146, 57
L. ed. 1125, 33 Sup. Ct. Rep. 648, Ann.
Cas. 1914C, 153; Southern R. Go. v. United
States, 222 U. S. 27, 56 L. ed. 75, 32 Sup.
Ct Rep. 2, 3 N. C. C. A. 822.
The car was not under the safety appli-
ance act, bccai^se it had been withdrawn
from all service for several weeks.
Southern R. Co. v. United SUtes, 222
U. S. 27, 50 L. ed. 75, 32 Sup. Ct. Rep. 2,
3 N. C. C. A. 822; Southern R. Co. v.
Snyder, 124 C. C. A. 60, 205 Fed. 870.
The car was not under the safety appli-
ance act because it was not being used at
the time in any character of commerce,
but was being taken from the railroad yard
into the shops to be repaired.
Illinois C. R. Co. v. Behrens, 233 U. S.
474, 58 L. ed. 1051, 34 Sup. Ct. Rep. 646,
Ann. Cas. 1914C, 163; Southern R. Co. v.
Snyder, supra.
Rigsby was not under the protection of
"the safety appliance act because he was
not at the time engaged in interstate com-
merce.
Boyle T. Pennsylvania R. Co. 221 Fed.
455; Delaware, L. A W. R. Co. v. Yurkonis,
238 U. S. 439, 59 L. ed. 1397, 35 Sup. Ct.
^ep. 902; Employers' Liability Cases
(Howard ▼. Illinois C. R. Co.) 207 U. S.
490, 52 L. ed. 305, 28 Sup. Ct. Rep. 141;
Illinois C. R. Go. v. Behrens, 233 U. S. 474,
58 L. ed. 1051, 34 Sup. Ct Rep. 646, Ann.
Cas. 1914C, 163; Second Employers' Lia-
bility Cases (Mondou v. New York
4 N. H. R. Co.) 223 U. S. 51, 56 L. ed.
346, 32 Sup. Ct. Rep. 169; Pedersen v.
Delaware, L. & W. R. Co. 229 U. S. 146,
57 L. ed. 1125.. 33 Sup. Ct. Rep. 648, Ann.
Cas. 1914C, 153.
80 Jj. ed.
Rigsby was not under the protection of
the safety appliance act, because at the
time he was injured he was not coupling
or uncoupling cars.
Bishop, Non-Contract Law, 446; The
Eugene F. Moran v. New York O. ft H. R.
Co. 212 U. S. 472, 53 L. ed. 603, 29 Sup.
Ct. Rep. 339; Employers' Liability Cases
(Howard v. Illinois C. R. Co.) 207 U. S.
490, 52 L. ed. 306, 28 Sup. Ct. Rep. 141;
Second Employers' Liability Cases (Mon-
dou V. New York & N. H. R. Co.) 223 U. S.
51, 56 L. ed. 346, 32 Sup. Ct. Rep. 169;
Potter's Dwarr. Stat, k Constitutions, 128,
140; St. Louis & S. F. R. Co. v. Conarty,
238 U. S. 243, 59 L. ed. 1290, 35 Sup. Ct.
Rep. 785; Shearm. k Redf. Neg. § 8; Wil-
liams ▼. Chicago k A. R. Co. 135 111. 491,
11 L.R.A. 352, 25 Am. St. Rep. 397, 26*
N. E. 661.
There was no common-law negligence
giving Rigsby a right to recover damages.
Flanagan v. Chicago k N. W. R. Co. 45
Wis. 08, 50 Wis. 462, 7 N. W. 337; Wat-
son v. Houston k T. C. R. Co. 58 Tex. 439
Mr. S. P. Jones argued the cause and
filed a brief for defendant in error:
The car from which defendant in error
fell was in use on an interstate highway,
and the injury was caused by a defective
safety appliance.
Delk V. St. Louis & S. F. R. Co. 220 U. S.
580, 55 L. ed. 590, 31 Sup. Ct. Rep. 617;
New York C. & H. R. R. Co. v. Carr, 238
U. S. 260, 59 L. ed. 1298, 35 Sup. Ct. Rep.
780, 9 N. O. C. A. 1; Johnson v. Southern
P. Co. 196 U. S. 13, 49 L. ed. 367, 25 Sup.
Ct. Rep. 158, 17 Am. Neg. Rep. 412; South-
em R. Co. y. United SUtes, 222 U. S. 23,
56 L. ed. 73, 32 Sup. Ct. Rep. 2, 3 N. C. C.
A. 822.
The safety appliance laws give a cause
of action to employees injured by defects
while a car is in use on an interstate high-
way, though the employee is not engaged
at the time in interstate commerce.
Southern R. Co. v. United States, supra;
United SUtes ▼. Chicago, B. k Q. R. Co.
237 U. S. 410, 59 L. ed. 1023, 35 Su^. Ct.
Rep. 634; United SUtes v. Erie R. Co.
237 U. S. 402, 59 L. ed. 1019, 35 Sup. Ct.
Rep. 621.
Congress has the power to give to em-
ployees of an intersUU highway, who are
not at the time engaging in interstate
commerce, a right of recovery for a failure
of the railway company to equip the cars
that are being used on the intersUte high-
way with safety appliances.
Employers' Liability Cases (Howard y.
Illinois C. R. Co.) 207 U. S. 463, 62 L. ed.
297, 28 Sup. Ct. Rep. 141; Illinois C. R.
Co. y. Behrens, 233 U. S« 473, 68 L. ed.
36-88
SUPREME COURT OF THE UNITED STATES.
Oct. Tbkm,
1051, 34 Sup. Ct. Rep. 646, Ann. Gas. 1914C,
163; Great Northern R. Co. t. Otos, 239
U. S. 349, ante^ 322/ 36 Sup. Ct. Rep. 124.
[36] Mr. Justice Pitney delivered the
opinion of the court:
The defendant in error, Rigabj, while in
the employ of plaintiff in error as a switch-
man in its yard at Marshall, Texas, was
engaged, with others of the yard crew, in
taking some ''bad order" cars to the shops
there to be repaired. The switch engine
and crew went upon a spur track, hauled
out three cars, and switched them upon
the main line, intending to go back upon
the spur track for others, to be taken with
the three to the shops, which were on the
opposite side of the main line from the spur
track. Rigsby, in the course of his duties,
rode upon the top of one of the cars (a box
car) in order to set the brakes and stop
them and hold them upon the main line.
He did this, and while descending from the
car to return to the spur track he fell,
owing to a defect in one of the Jiand holds
or grab irons that formed the rungs of the
ladder, and sustained personal injuries.
This car had been out of service and wait-
ing on the spur track for some days, per-
haps a month. The occurrence took place
September 4, 1912. In an action for dam-
ages, based upon the Federal Safety Ap-
pliance acts,i the above facts appeared with-
out dispute, and it was admitted that the
main line of defendant's railroad was in
daily use for the passage of freight and
passenger trains in interstate commerce.
The trial court instructed the jury, as mat-
ter of law, that they should return a verdict
in favor of plaintiff, the only question sub-
mitted to them being the amount of Ihe
damages. The railway company excepted to
this charge, and requested certain specific
instructions based upon the theory that the
car was out of service and marked 'iMtd
order," which was notice to Rigsby of its
condition; that there was no evidence that
the condition of the car had resulted from
any [37] negligence of defendant; that it
was at the time being taken to the shop
for repairs; and that for these reasons
plaintiff could not recover. The instruc-
tions were refused, and exceptions taken.
The resulting judgmoit was affirmed by
the circuit court of appeals, 138 G. 0. A.
61, 222 Fed. 221.
It is insisted that Rigsby was not with-
lAct of March 2, 1893, chap. 196, 27
SUt. at L. 631, Comp. Stat. 1918, S 8606;
amendatory act of March 2, 1903, chap.
976, 32 Stat, at L. 943, Comp. Stat. 1913,
§ 8613; supplementary act of April 14, 1910,
chap. 160, 36 SUt. at L. 298, Comp. Stat.
1913, S 8617.
876
in the protection of the act because he was
not coupling or uncoupling cars at the time
he was injured. The reference is to S 4 of
the act of March 2, 1893, which requires
"secure grab irons or hand holds in the
ends and sides of each car for greater se-
curity to men in coupling and uncoupling
cars." This action was not based upon that
provision, however, but upon I 2 of the
amendment of 1910, which declares: "AU
cars must be equipped with secure sill steps
and efficient hand brakes; all cars requir-
ing secure ladders and secure running
boards shall be equipped with such lad-
ders and running boards, and all cars
having ladders shall also be equipped
with secure hand holds or grab irons
on their roofs at the tops of such lad-
ders." There can be no question that
a box car having a hand brake operated
from the roof requires also a secure ladder
to enable the employee to sufely ascend and
descend, and that the provision quoted was
intended for the especial protection of em-
ployees engaged in duties such as that which
plaintiff was performing.
It is earnestly insisted that Rigsby w^
•not under the protection of the safety ap-
pliance acts because, at the time he was
injured, he was not engaged in interstate
commerce. By § 1 of the 1903 amendment
its provisions and requirements and those
of the act of 1893 were made to apply *'to
all trains, locomotives, tenders, cars, and
similar vehicles used on any railroad en-
gaged in interstate commerce . . . and
to all other locomotives, tenders, cars, and
similar vehicles used in connection there-
with," subject to an exception not now per-
tinent. And by S 6 of the 1910 amendment
the provisions of the previous acts L38J
were made to apply to that act, with • a
qualification that does not affect the pres-
ent case. In Southern R. Co. v. United
States, 222 U. S. 20, 56 L. ed. 72, 32 Sup.
Ct. Rep. 2, 8 N. C. C. A. 822, which was an
action to recover penalties for a violation of
the acts with respect to cars some of which
were moved in intrastate traffic, and not in
connection with any car or cars used in in-
terstate commerce, but upon a railroad
which was a part of a through highway for
interstate traffic, it was held that the 1903
amendment enlarged the scope of the origi-
nal act so as to embrace all cars used on
any railway that is a highway of in**
terstate commerce, whether the particu-
lar ears are at the time employed in
such commerce or not. The; question
whether the legislation as thus construed
was within the power of Congress under
the oommeroe clause was answered in
the affirmative, the court saying (p. 27):
"Speaking only of railroads which are high*
241 U. 8*
1915.
TEXAS ft P. B. 00. y. RIGSBY.
8S-40
ways of both interstate and intrastate oom-
merce, these things are of common knowl-
edge: Both classes of traffic are at times
oarried in the same car, and when this is
not the case, the cars in which they are
carried are frequently commingled in the
same train and in the switching and other
movements at terminals. Cars are seldom
set apart for exclusive use in moving either
class of traffic, but generally are used inter-
changeably in moving both; and the situa-
tion is much the same with trainmen,
switchmen, and like employees, for they
usually, if not necessarily, have to do with
both classes of traffic. Besides, the several
trains on the same railroad are not inde-
pendent in point of movement and safety,
but are interdependent, for whatever brings
delay or disaster to one, or results in dis-
abling one of its operatives, is calculated
to impede the progress and imperil the safe-
ty of other trains. And so the absence of
appropriate safety appliances from any part
of any train is a menace not only to that
train, but to others."
It is argued that the authority of that
case goes no further than to sustain the penal
provisions of the act, [30] and doea not up-
hold a right of action by an employee in-
jured through a violation of its provisions,
unless he was engaged in interstate com-
merce. That the scope of the legislation is
broad enough to include all employees thus
injured, irrespective of the character of the
commerce in which they are engaged, is
plain. The title of the act, repeated in that
of each supplement, is general: "An Act
to Promote the Safety of Employees and
Travelers," etc.; and in the proviso to § 4
of the supplement of 1910 there is a reserva-
tion as to "liability in any remedial action
for the death or injury of any railroad em-
ployee." None of the acts, indeed, contains
express language conferring a right of ac-
tion for the death or injury of an employee;
but the safety of employees and travelers
is their principal object, and the right of
private action by an injured employee, even
without the employers' liability act, has
never been doubted. (See Johnson v. South-
em P. Co. 196 U. S. 1, 49 L. ed. 363, 25
Sup. Ct. Bep. 168, 17 Am. Neg. Bep. 412;
Schlemmer v. Buffalo, B. & P. B. Co. 205
U. S. 1, 8, 61 L. ed. 681, 684, 27 Sup. Ct.
Bep. 407, 220 U. S. 590, 692, 66 L. ed. 696,
698, 31 Sup. Ct. Bep. 561 ; St. Louis, I. M.
ft S. B. Co. V. Taylor, 210 U. S. 281, 284,
295, 52 L. ed. 1061, 1063, 1068, 28 Sup.
Ct. Bep. 616, 21 Am. Neg. Bep. 466; Delk
Y. St. Louis ft S. F. B. Co. 220 U. S. 580,
W Lb ed. 690, 31 Sup. Ct. Bep. 617; Cleve-
Umd, C. C. ft St. L. B. Co. v. Baker, 33 0.
a A. 468, 63 U. S. App. 653, 91 Fed. 224;
Denver ft B. G. B. Co. t. Arrighi» 63 0. 0.
•0 li. ed.
A. 649, 129 Fed. 347; Chicago, M. ft St.
P. B. Co. V. Voelker, 70 L.BAl. 264, 65
0. 0. A. 226, 129 Fed. 522; Chicago Junc-
tion B. Co. V. King, 94 C. C. A. 662, 169
Fed. 372.) A disregard of the command of
the statute is a wrongful act, and where it
results in damage to one of the class for
whose especial benefit the statute was en-
acted, the right to recover the damages from
the party in default is implied, according
to a doctrine of the common law expressed
in 1 Comyn's Dig. title, "Action upon Stat-
ute" (F), in these words: "So, in every
case, where a statute enacts or prohibits a
thing for the benefit of a person, he shall
have a remedy upon the same statute for
the thing enacted for his advantage, or for
the recompense of a wrong done to him con-
trary to the said law." (Per Holt, Ch. J.,
Anonymous, 6 Mod. 26, 27.) This is but
an application of the maxim, [40] Ubi jua
ibi remedium. See 3 Bl. Com. 51, 123;
Couch V. Steel, 3 El. ft Bl. 402, 411, 23 L.
J. Q. B. N. S. 121, 126, 2 C. L. B. 940, 18 Jur.
515, 2 Week. Bep. 170. The inference of a
private right of action in the present in-
stance is rendered irresistible by the provi-
sion of § 8 of the act of 1893 that an em-
ployee injured by any car, etc., in use con-
trary to the act, shall not be deemed to have
assiuned the risk, and by the language above
cited from the proviso in § 4 of the 1910
act.
Plaintiff's injury was directly attribut-
able to a defect in an appliance which, by
the 1910 amendment, was required to be
secure, and the act must therefore be deemed
to create a liability in his favor, unless it
be beyond the power of Congress under the
commerce clause of the Constitution to
create such a liability in favor of one not
employed in interstate commerce. In Illi-
nois 0. B. Co. v. Behrens, 233 U. S. 473, 477,
58 L. ed. 1051, 1054, 34 Sup. Ct. Bep. 646.
Ann. Cas. 19 140, 163, the court said, ar-
guendo, with reference to this topic: "Con-
sidering the status of the railroad as a high-
way for both interstate and intrastate com-
merce, the interdependence of the two classes
of traffic in point of movement and safety,
the practical difficulty in .separating' or di-
viding the general work of the switching
crew, and the nature and extent of the pow-
er confided to Congress by the commerce
clause of the Constitution, we entertain no
doubt that the liability of the carrier for
inji^ries suffered by a member of the crew
in the course of its general work was sub-
ject to regulation by Congress, whether the
particular service being performed at the
time of the injury, isolatedly considered,
was in interstate or intrastate commerce."
Judicial expressions in previous cases were
referred to« and the decision in Employers'
4(MS
SUPREME COURT OF THE UNITED STATES.
Cot. Tkuc*
Liability Cases (Howard v. Illinois C. R.
Co.) 207 U. S. 463, 52 L. ed. 297, 28 Sup.
Ct. Rep. 141, was distinguished because the
act of June 11, 1906 [34 Stat, at L. 232,
chap. 3073], there pronounced invalid, at-
tempted to regulate the liability of every
carrier in interstate commerce for any in-
jury to any employee, even though his em-
ployment had no relation whatever to in-
terstate commerce.
[41] The doing of plaintiff's work, and
his security while doing it, cannot be said
to have been wholly unrelated to the safety
of the main track as a highway of inter-
state commerce; for a failure to set the
brakes 'so as temporarily to hold the "bad
order" cars in place on that track would
have been obviously dangerous to through
traffic;, while an injury to the brakeman
had a tendency to cause delay in clearing
the main line for such traffic. Perhaps
upon the mere ground of the relation of
his work to the immediate safety of the
main track, plaintiff's right of action
might be sustained.
But we are unwilling to place the deci-
sion upon so narrow a ground, because we
are convinced that there is no constitution-
al obstacle in the way of giving to the act
in its remedial aspect as broad an applica-
tion as was accorded to its penal provisions
in Southern R. Co. v. United States, supra.
In addition to what has been quoted from
the opinions in that case and the Behrens
Case the following considerations are perti-
nent. In the exercise of its plenary power
to regulate commerce between the states.
Congress has deemed it proper, for the pro-
tection of employees and travelers, to re-
quire certain safety appliances to be in-
stalled upon railroad cars used upon a
highway of interstate commerce, irrespec-
tive of the use made of any particular car
at any particular time. Congress having
entered this field of regulation, it follows
from the paramount character of its author-
ity that state regulation of the subject-
matter is excluded. Southern R. Co. v.
Railroad Commission, 236 U. S. 439, 69 L.
ed. 661, 35 Sup. Ct. Rep. 304. Without the
express leave of Congress, it is not possible,
while the Federal l^slation stands, for the
states to make or enforce inconsistent laws
giving redress for injuries to workmen or
travelers occasioned by the absence or inse-
curity of such safety devices, any more than
laws prescribing the character of the appli-
ances that shall be maintained, or imposing
penalties for failure to maintain them; for
the consequences [42] that follow a breach
of the law are vital and integral to its effect
as a regulation of conduct, liability to pri-
vate suit is or may be as potent a deterrent
as liability to public prosecution, and in
878
this respect there is no distinction depend-
ent upon whether the suitor was injured
while employed or traveling in one kind of
conmierce rather than the other. Hence,
while it may be conceded, for the purposes
of the argument, that the mere question of
compensation to persons injured in intra-
state commerce is of no concern to Con-
gress, it must be held that the liability of
interstate carriers to pay such compensa-
tion because of their disregard of regula-
tions established primarily for s&feguarding
commerce between the states is a matter
within the control of Congress; for unless
persons injured in intrastate commerce are
to be excluded from the benefit of a
remedial action that is provided for per-
sons similarly injured in interstate com-
merce,— a discrimination certainly not re-
quired by anything in the Constitution, —
remedial actions in behalf of intrastate em-
ployees and travelers must either be gov-
erned by the acts of Congress or else be
left subject to regulation by the several
states, with probable differences in the law
material to its effect as regulatory of the
conduct of the carrier. We are there-
fore brought to the conclusion that the
right of private action by an employee in-
jured while engaged in duties unconnect-
ed with interstate eonunerce, but injured
through a defect in a safety appliance re-
quired by the act of Congress to be made
secure, has so intimate a relation to t)ie
operation of the act as a regulation of com-
merce between the states that it is with-
in the constitutional grant of authority over
that subject.
It is argued that the statute does not ap-
ply except where the car is in use in trans-
portation at the time of the injury to the
employee, and that since it does not appear
that the car in question was in bad order
because of any negligence on the part of
the railway company, [43] and it was be-
ing taken to the shop for repairs at the time
of the accident, there is no liability for in-
juries to an employee who had notice of
its bad condition, and was engaged in the
very duty of taking it to the shop. This
is sufficiently answered by our recent deci-
sion in Great Northern R. Co. v. Otos, 239 U.
S. 349, 351, ante, 322, 323, 36 Sup. Ct. Rep.
124, where it was pointed out that although
S 4 of the act of 1910 relieves the carrier
from the statutory penalties while a car is
being hauled to the nearest available point
for repairs, it expressly provides that it
shall not be construed to relieve a carrier
from liability in a remedial action for the
death or injury of an employee caused by
or in connection with the movement of a
car with defective equipment. The ques-
tion whether the defective condition of the
941 V. 8.
J916.
RICHARDSON ▼. FAJARDO SUGAR CO.
43, 44, 46, 47
ladder was due to defendant's negligence is
immaterial, since the statute imposes an
absolute and unqualified duty to maintain
the appliance in secure condition. St.
Louis, I. M. k S. R. Co. v. Taylor, 210 U.
& 281, 204, 205, 52 L. ed. 1061, 1068, 28
Sup. Ct. Rep. 616, 21 Am. Neg. Rep. 464;
Chicago, B. k Q. R. Co. v. United SUtes,
220 U. S. 559, 575, 56 L. ed. 582, 588, 31
Sup. Ct. Rep. 612; Delk v. St. Louis & S.
P. R. Co. 220 U. S. 580, 580, 56 L. ed. 590,
695, 31 Sup. Ct. Rep. 617.
Of course, the employee's knowledge of
the defect does not bar his suit, for by § 8
of the act of 1803 an employee injured by
any car in use contrary to the provisions
of the act is not to be deemed to have as-
sumed the risk, although continuing in the
employment of the carrier after the imlaw-
ful use of tlie car has been brought to his
knowledge; and by § 5 of the act of 1010
the provisions of the 1803 act are made
applicable to it, with a qualification that
does not affect remedial actions by em-
ployees.
The Circuit Court of Appeals correctly
disposed of the case, and its judgment is
ailirmed.
[44] ALLAN H. RIcJhARDSON, as Treas-
urer of Porto Rico, Plff. in Err.,
V.
FAJARDO SUGAR COMPANY.
(See S. C. Reporter's ed. 44-47.)
Porto Rloo — Immunity from salt —
oon^ent.
Any right of Porto Rico to invoke
immunity from suit without its consent to
defeat the jurisdiction of a Federal court
of an action against the treasurer of Porto
Rico to recover back a tax wrongfully as-
sessed was lost, where the treasurer, appear-
ing by the attorney general of Porto Rico,
made full answer to the original complaint,
a day for trial was fixed by stipulation,
amended and supplemental complaints were
filed and appropriately answered, and. the
court's jurisdiction was first challenged by
a motion to dismiss eight months after the
action was begim.
[No. 280.]
Argued March 18 and 14, 1916. Decided
April 17, 1916.
IN ERROR to the District Court of the
United States for Porto Rico to review
% Judgment for the recovery back of a tax
wrongfully assessed. Affirmed.
See same ease below, 6 Porto Rico Fed.
Bep. 224.
The facts are stated in the opinion.
•0 li. ed.
Mr. Samuel T. Ansel! argued the cause^
and, with Messrs. Howard L. Kern and
Lewis W. Call, filed a brief for plaintiff in
error:
Jurisdiction of this suit and of the de-
fendant was not conferred by the appear-
ance and answer of the attorney general
and the treasurer of Porto Rico, for con-
sent of the sovereign to suit can be granted,
and exemption from suit waived, only by
the act of the legislature.
Minnesota y. Hitchcock, 185 U. S. 373,
46 L. ed. 954, 22 Sup. Ct. Rep. 650; Reid
y. United States, 211 U. S. 529, 53 L. ed.
313, 20 Sup. Ct. Rep. 171; Adams y. Brad-
ley, 5 Sawy. 217, Fed. Cas. No. 48; New
Orleans k C. R. Co. v. New Orleans, 34 La.
Ann. 433; Case y. Terrell, 11 Wall. 199,
202, 20 L. ed. 134, 135; Carr y. United
States, 98 U. S. 433, 438, 25 L. ed. 200,
211; United States y. Lee, 106 U. S. 196,
205, 27 L. ed. 171, 176, 1 Sup. Ct. Rep.
240; Stanley y. Schwalby, 162 U. S. 255,
270, 40 L. ed. 960, 965, 16 Sup. Ct. Rep.
764; Northern Bank y. Stone, 88 Fed. 413.
Mr. Lorenzo D. Armstrong argued the
cause, and, with Mr. Joseph W. Murphy,
filed a brief for defendant in error:
Assuming that the statutory consent of
Porto Rico to be sued was impliedly lim-
ited to suits brought in the insular courts,
the yarious appearances and answers to the
merits of the attorney general and the
treasurer of Porto Rico, and their failure
to object to the jurisdiction of the Federal
court for over eight months, constituted a
waiver of that implied limitation.
Porto Rico y. Ramos, 232 U. S. 627, 58
L. ed. 763, 34 Sup. Ct. Rep. 461; Porto
Rico y. Emmanuel, 235 U. S. 251, 59 L. ed.
215, 35 Sup. Ct. Rep. 33.
Mr. Justice McReynolda deliyered the
opinion of the court:
Taxes for the fiscal year 1911-1912,
amounting to $7,038, were assessed against
defendant in error on account of certain per-
sonal property, and were paid under pro-
test. Purporting to proceed under act No.
35, Laws of Porto Rico, 1011 (copied in
margin),! and claiming the assessment [47]
was wholly illegal, the Sugar Company
brought this suit to recover the sum so paid.
In due season the treasurer qf Porto Rico,
appearing by its attorney general, made full
answer to the original complaint ; a day for
1 Section 1. That in all cases in which an
officer charged by law with the collection of
revenue due the government of Porto Rico,
shall institute any proceeding or take any
steps for the collection of the same, alleged
or claimed by such officer to be" due from
any person, the party against whom the
proceeding or step is taken shall, if ha «Q»Tkr
^1%
47,48
8DFRKUB COURT Of THE UNITED STATES.
Oct. Hut,
trial ma flscd hj itipnUtion; ui uncnded
and tbo a ■upplemental complaiDt were
fll*d And appTopriaUlf uiawered. Eight
monthB after inBtitution of the action th«
Murt'H jurisdiction was flrit challenged by
motion to dUmiu, and thereafter the point
wa« peraiatentlj urged. The company re'
covered judgment for amount claimed {fl
Porto Rico Fed. Rep. 824) ; and the cause
haa been argued here bj counsel.
It U not now serioualy maintained that
the tax was lawfullj demanded— in effect,
the contrary in conceded.
A reveru.1 of the district court's action
li asked upon the theory that the proceed-
ing ii agsiDBt Porto Rico, ■ government of
■overeign attributes, which has only con-
•ented to be sued In its own courts. Porto
Rico T. fiosaly y Castillo, 227 U. 8. 270.
67 X. ed. 507, 33 Sup. Ct. Rep. 362. What-
ever might have been the merit of this posi-
tidn if promptly asserted and adhered to,
«re hold, following the principles announced
in Porto Rico v. Ramos, 232 U. S, 627, SB
L. ed. 763, 34 Sup. Ct. Rep. 401, that having
solemnly appeared and taken the other steps
above narrated, plaintifF in error could not
thereafter deny the court's Jurisdiction.
Gunter v. Atlantic Coast Line R. Co. 200
U. 8. 273, 284, 50 L. ed. 477, 483, 2« Sup.
Ct. Bep. iSi. The judgment is affirmed.
PACIFIC EXPRESS COMPANY.
(See 8. C. Reporter's ed. 48-55.)
Commerce — slate regnlftUan — iDtoxl*
CAtlnc llqaors — O. O. D. shlpmenta.
1. As applied to intersUU C. O. D.
shipments a prohibitive state license tax
upon each place of bnsineaa or agency o(
every express company where intoxicating
liquors are delivered and the price eoliecM
on C. 0. D. shipmenta imposes a direct
burden upon interstate commeroe, contran
to U. S. Const, art. 1, | B, and one which
Is not permitted by the Wilson act of
August 8. 1890 (26 SUt. at L. 313, chap.
728, Comp. Stat. 1B13, | 8738), subjecting
to state control interstate shipmenta of in-
toxicating liquors upon arrival in the state
[Por otber cases, see Coramerce, IT. b, 3, la
Diitest Bup. Ci. 1008.) ^
Statutea — retroMoUve operation — In-
toxicating llqoora — O. O. D. ataip-
2. Retroactive operation may not in.
directly be given to U. S. Penal Code, | 23B,
prohibiting C. O. D. shipments of intoxicat-
ing liquors, by using that statute as an In.
strumcnt of Interpretation from which to
deduce the conclusion that, contrarr to th*
previous decisions of the Federal Suprnne
Court, the power of a state to prohibit
shipments of intoxicating liquors under C.
0. D. contracts existed before the enactment
of such statute.
[For other cases, see SUtutw, II. v, tn Diaest
Sup. Ct. 1808.]
Trover — conversion by exprcM com-
panr — refnaal to carry oat C. O. D.
shipments.
3. The wrongful refusal of an express
company to carry out its C. 0. D. shipment
contacts will support, In Mlssonri, an ac-
tion in conversion by the consignor for the
value of the shipments.
cases, see Trover, In Dlceat Sop.
Ct 1908-1
INo. 249.]
IK ERROR to the Supreme Court of the
State of Missouri to review a judgment
which reversed a judgment of the Circuit
crives the same to he unjust or illegal, or
against any statute, pay the same under
Sec. 2. Be it further enacted, that upon
hia malciuK such payment, the tJBcer or col-
lector shall pay such revenue into the treas-
ury of Porto Rico, giving notice at the time
of the payment t^ the treasurer, that the
•ame was paid under protest.
Sec. 3. Be it further enacted, that the
party paying said revenue under protest,
mav, at any time within thirtv days after
making said payment, and not longer tliere-
after, sue the said treasurer for said sum,
tor the recovery thereof in the court having
competent jurisdiction thereto; and If it
be determined that the same was wrongfully
collected as not being due from said party
to the government for any reason going to
the meritSL of the same, the court trying
the ease may certify of record that the same
was wTongnilly paid and ought to be re-
Awdei, and theimpon the treasurer shall
sao
repay the sum, which payment ahall b*
made in preference to oUier claims on the
Sec. 4. Bo it further enacted that there
shall be no other remedy in any case of the
collection of revenue or attempt to collect
revenue illegally.
Sec. e. Be it further enacted that no writ
[or the prevention of the collection of any
revenue claimed, or to hinder and delay
the collection of the same shall in any wise
issue, either supersedeas, prohibition, or any
other writ or process whatever; but In aO
wrongfully or illegally collected, the remst^
for said party shall he as ahora prorids^
and none other.
Sec. 6. . . .
Sec. 7. . . . [Rev. Stat. * Oodea Ull,
p. 064, note.]
141 V. S.
iMM. BOBBNBEKOKB T. PACUIO KZP. 00.
Court g< jHkMB Oonnt;, la that ■!»(«, In Bowman t. Ohieafo * N. W. B. Co. lU
tkTor of plaintiff In an aetloo of sonvenloa. U. B. 601, filO, 31 L. ed: 714, 71S, 1 Intara.
Bevaned and remanded for furthor proceed- Com. Rep. S23, 8 Sup. Ct. Rep. 6B9, lIMSt
■"«*■ Ijeiaj T. Hardin, 13S U. 8. 100, 121. U
Bee tame caM below, 258 Ho. 97. 1«T S. L. ed. 128, 136, 3 latera. Com. Rep. 36, 10
W. 42». Sup. Ct Rep. 681; Be Rabrer, supra; Wd-
The facta are BUt«d in the opinion. ton t. Mluouri, Bl U. 8. 27S, 283, 23 L.
ileun. J. J. Tlueyard and A. F. Smllh •**■ '*''• 2^"' Adama E^. Co. t. Kentuekj,
-rgued the cause, and, with Mr. Frank F. *"' "■ 8-.12». Bl I* ed. 987, 27 Sup. Ct
Rowelle, llled a brief for pUintiiT in error: ^P" **! Ameriean Exp. Co. ». Iowa, IM
Liquor la an article of commerce and U "■ ^- ^*^' *' ^- *^ *^^' " ^"P' ^t- ^P-
«ntitlod to th* same protection under the '**' CaldweL t. North Carolina, 187 U. 8.
commerce cUuw of the Federal Oon.titu- ^^^' *T ^ •^ 33". M 8up. Ot Rep. 220;
tion as any other commodity In the abettioe Norfolk * W. R. Co. y. Sima, 191 U. 8.
ol an act of Congreaa to the contrary. **^- *^ L. ei 2M, « Sup. Ct. Bep. 181)
Leiiy T. Hardin, 138 U. 8. 100, 34 L. *'*"' ''■ Penniylrania, 238 U. 8. 62. 6B L.
«d. 128. 3 Intera. Com. Bep. 36, 10 Sup. Ct "^ ^^°^' '^ ^"P- ^ ^- '^'■
Bep. 681 i Re Bahrer, 140 U. 8. 646, 36 Liquor ahlpped from one atate, where tha
L. ed. 572, 11 Sup. Ct Rep. 866; Louii- order ia accepted, to another eUte, C. O. D,
ville 4 N. B. Co. v. F. W. Cook Brewing l« • •»!" n^* la *>>• •t*ta from which tha
Co. 223 U. S. 70, 66 L. ed. 386, 32 Sup. Ct «<»*• "to shipped, and not the aUt« In
Bep. 180. which goods are reoaiTed.
The Wilaon act of Auguit 1800, which American Exp. Co. t. Iowa, 196 U. 8.
waa Uie only Federal law at the Ume the 183. *" L. ed. 417. 28 Snp. Ot. Rep. 182 i
cauie of action in quvtion arose tending *orfoft * W. R. Co. t. Bima, 181 U. S. 441.
to reguUte interstate commerce In liquor, 48 L. ed. 264, 24 Sup. Ct Rep. 161; Stata
goee no further than to subject an inter-
atate ahlpmeDt of liquor to state regulation
after it haa been delivered to the con-
iignee.^nd while still in the original pack-
age. The effect of thia act waa merely to
Roaenberger, 212 Uo, 648, SO TaR.A.
(N.S.) 884. 126 Am. St Bep. 680, 111 &
W. 600.
C. 0. D. oontraota for the shipment of
liquora from one state to another purni-
do away with the original -package doctriue "** ^ •*"* *^* orden aooepted in the
and the righta incident thereto. '**** "rtere tlie liquor 1« delivered to the
Rhodes v. Iowa, 170 U. 8. 412, 427, 42 <»"■«"■ "« witlln tha protection of tha
L. ed. 1088, 1096, IB Sup. Ct Bep. 684; wnunerce clauae of the Federal Conrtitu-
LouiBTille A N. R. Co. v. F. W, Cook Brew- ''<"• independently of whether such oon-
ing Co. aupra. tracts are imposed on a carrier as a com-
The contracU whereby tlie defendant un- mon-Uw duty or are voluntarily assumed,
dertook to carry the liqnor in qneatlon Heymann T. Southern B. Co. 203 U. a
from Kanaaa (Sty, Missouri, to variona 2'*' 61 L- ed. 178, 27 Sup. Ct. Rep. 104, 7
points in the atate of Texaa, and to eoUect A>^- O"- 1130; Doiier v. Alabama, 218
the purchase price tiu-rtot from the con- "■ S- 1". " ^- *d. 066. 28 L,H.A.(N.8.)
•igneea. were in reference to and formed 2". »» Sup. Ct Rep. 64B; CaldweU '
nn integral part of interatate
North Carolina, 18T U. 8, 822, 47 U ed.
transactions, and the sUte ot Texas was 336, 23 Sup. Ct Rep. 220.
without legal power to impose burdena on The Texas act, being unconstitutional in
or to prevent the performance of eneh lo far as it applied to interstate commerce,
contract*. afforded the defendant no excuse (or ita
NoTK. — On atate regulation of interstate
«T foreign commerce — see notea to Norfolk
A W. R. Co, y. Com. 13 LJt.A. 107; and
Qlouceater Fen-y Co. v. Pennsylvania, 29
L. ed. U. 8. 168.
As to state licenses or taxes, generally,
aa afTectlng commerce — see notes to Roth-
ermel v. Meyerle, 9 L.RA. 366; American
Fertilising Co. v. Board of Agriculture. 11
LMJl. 170; Gibbons v. Of^eu, 6 L. ed. U. 8.
23; Brown v. Maryland, 6 L. ed. U. 8. 678;
Rstterman v. WeaUm U. Teleg. Co. 32 L.
ed. U. S. 229; Harmon v. Chicago, 37 L. ed.
U. 8. 217; aeveland, C. & & St L. R. Co.
T. Backus, 38 L. ed. U. S. 1041; Pa«tal
Teleg. Cable Co. T. Adams, 39 L. ad. U. 8.
40 Ih ed. t
311 ; and Pittsburg * 8. Coal Co, v. Batea,
30 L. ed. U. S. 638.
As to retroactive operation ot statutes,
generally, — s^ notea to Otoe Co<uity v,
Baldwin, 28 L. ed. U. S. 331; and BarnlU
V. Beverly, 41 L. ed, U. S. Q4.
On the action of public authoritlee Under
Slice power as defense to carrier for de-
/ or nondelivery of freight— see notes to
Alabama ft V. R. Co. t. Tirelli Bros. 21
LJLA.(N.S.) 731; and Southern Exp. Co. T.
SotiUe Bros. 28 L.BA.(N.S.) ISO.
On refuaal of carrier to deliver gooda aa
conversion — see note to CDonnell t. Cana-
dian P. B. CO. 60 L.B.A,(HJ.) 1178.
• t«1.
SUFREUE CDUKX OP THE UNITED BTATER
fallur* to p«rfonn iU eontracta to ahip and
Hopkina t. CI^ubod Agri. College, 221
U. S. 636. 644, S4S, 65 L. ed. 890, £04, 805,
35 L.R.A.(N.S.) 243, 31 Sup. Ct. Rep. 654;
Willianw y. AtchiBoa, T. A S. F. R. Co.
233 Mo. 681, 136 S. W. 304; Louisvilla t
N. H. Co. Y, F. W. Cook Brewing Co. 223
U. S. 70, OS L. td. 365, 32 Sup. Ct. Rep. 18B;
BowmaD t. Chicago t N. W. H. Co. 125
U. 8. 465, 31 L. ed. 700, 1 Inters. Com.
Rep. 823, B Sup. Ct. Rep. 089, 1002.
Mr. I. N. WatMD argued the cause, and,
with Mr. J. L. Minnia, Sled a brief lor de-
fendant in error:
While Intoikating liquort are rec<^-
Dlced aa a legitimate subject of Interatate
oommerce, yet euch liquors do not have
tiie satnfl rights which attach to Uie ship-
ments of other cominoditiea.
Crowlej T. Christensen, 137 U. 8. 91, 34
L. ed. 623, 11 Sup. Ct Rep. 13; Delama-
ter T. South DakoU, SOS U. S, 93, 61 L.
ed. TZ4, 27 Sup. Ct. Rep. 447, 10 Ann. Cae.
733; Nutting t. Maasafhusetta, 183 U. S.
6S3, 46 L. ed. 324, 22 Sup. Ct. R«p. 23B,
176 Haai. 166, 78 Am. St. Rep. 483, S6 N.
E. 895.
Tliere ia no common-law duty devol*ing
upon a common carrier to act as a collect-
ing agent for the consignor.
HutchinEOQ, Carr. 3d ed. gg 728, 728, 729;
United SUtce Ezp. Co. t. Keefer, 69 Ind.
263; 4 Elliott, Railroads, g 15,10; 12 Am.
k Eng. £dc. Law, 2d ed. p. 533; Cox v.
Columbus ft W. R. Co. 91 Ala. 392, 8 So.
824; Adam* Exp, Co^ t. Com. 124 Ky. 160,
6 L.RA.(K.8.) 630. 92 8. W. 932; Hoore,
Carr. | 31; Hale, Bailm. A Carr. p. 461;
HcNichol T. Factfle Exp. Co. 12 Mo. App.
401; Fowler CommiseioD Ca v. Chicago,
R. I. ft F. H. Co. 98 Mo. App. 210, 71 S. W.
1077; Danciger v. Fa^flc Exp, Co. 164 Fed.
3T9.
The eeaential elemmta of Interstate com-
merce, which are under the exclusive con-
trol of Congress, are into-course and traf<
flc. including in these terms navigation and
the transportation of persona and property,
and the purchase, sale, and exchange of
commodities.
Oooley V. Port Wardens, 12 How. 290,
13 L. ed. 906; Rhodes v. Iowa, 170 U. 8.
412, 42 L. ed. 1088, 18 Sup. Ct, Rep. 664;
Adams Exp. Co. v. Kentucky, 206 U. S. 129,
61 L. ed. 087, 87 Sup. Ct. Bep. 606;' Li-
cense Cases, 6 How. 504-509, 12 L. ed.
256-258; Hannibal ft St. J. R. Co. t. Hu-
sen, 96 U. S. 465, 24 L. ed. 527 ; Wabash.
St. L. ft P. R Co. V. Illinois, 118 U. S.
557, 672, 30 L. ed. 244, 249, 1 Inters. Com.
Rep. 31, 7 Sup. Ct. Rep. 4; Bowman v.
Cbieago t N. W. B. Co. 126 U. S. 466,
SS2
81 U ed. 703, 1 Inters. Com. Rep. S23, S
Sup. Ct Rep. 689, 1062; Hejman y. South-
em R. Co. 203 U. S. 277, 61 L. ed. 181, IT
Sup. Ct. Rep. 104, T Ann. Cas. 1130.
Taking the act of Congresa of Mardi
4tb, 1909, and the Interstate commerce act
and the Wilson act, as those acts are
construed by this court, it is clear that
the legitimate transportation of intoxicat-
ing liquors protected by those acts is the
transportation and delivery of such com-
modity to the consignee; and that the col-
leeticoi of the purchase price was not a
part of the transportation of such CMn-
modity. If we are right in this conten-
tion, then the regulation or prohibition of
such act did not belong to Congress ex-
clusively, but, in the absence of congrea-
aional legislation on that subject, the atates
were free to act until Congress assumed
control over such matter.
Northern F. R. Co. v. Waahington, 222
U. 8. 370, 66 L. ed. 237, 32 Sup. Ct Bep.
ISO.
In all the cases cited by the plaintiff in
error, the statutes of the state proltibitod
the sale and transportation of liquor into
the state, and the statutes did not pretend
to regulate the conduct of any agent act-
ing for the consignor within the state.
Rhodes t. Iowa, 170 U. S. 412, 4S L. ed.
1086, 18 Sup. Ct. Rep. 664; American Exp.
Co. V. Iowa, 106 U. S. 133, 49 L. ed. 417,
25 Sup. Ct Rep. 182; Adams Exp. Co. v.
Kentucky. 206 U. 8. 129, 61 L. ed. 987. 27
Sup. Ct. Rep. 606.
This record shows that the system naed
In telling intoxicating liquors by the plain-
tiff in error herein was a plain evasion of
both the laws of the state of Texas and
the state of Missouri.
Rich Hill V. Coleman, 63 Mo. App. SU;
State V, Heard, 64 Mo. App. 334; State t.
Quinn. 170 Mo. 176, 70 S. W. 1117; SUte
V. Hughes, 24 Mo. 147; Tanner t. Bugg, 74
Mo. App. 196; St. Louis *. Tielkem^er,
223 Mo. 143, 126 S. W. 1123.
Mr. Chief Juatlee White delivered the
opinion of the «ourt:
On the taking effect in Texas on the 12th
day of February, lOOT, of a law impoaiag
a state license tax of tS.OOO annually on
each place of business or agency of every
express company where Intoxicating liquors
were delivered and the price collected »
C. 0, D. shipments, and by which law one
half of the amount of the state license ws*
in addition authoriced to be imposed by
every county or municipality, the ExprtM
Company, the defendant in error, discon-
tinued at all Its agencies In Texas all suA
business. Aa a reault the company aent
back to Eansaa City, Missouri, the pad-
141 C. B.
1016.
BOSENBERGER ▼. PACIFIC EXP. CO.
40-51
ftges of intozieating liquor which it had re-
ceived under C. O. D. shipments made to
▼arions places in Texas from Kansas City
by Rosenberger, the plaintiff in error, and
tendered them to him, conditioned on his
payment ot the return carriage charges.
Roeenberger refused to accept the oflTer, and
brought this suit to recover the value of the
merchandise, on the ground that the failure
to carry out the shipmoits was a conver-
sion. The trial court, holding the Texas
act was repugnant to the commerce clause
of the Constitution of the United States,
and afforded no justification to the Express
Company for refusing to carry out the ship-
ments, awarded the relief sought. And the
object of this writ of error is to obtain a
reversal of a final judgment of the court
below, reversing [50 J the trial court, and
rejecting the claim on the ground that the
Texas license law was not repugnant to the
commerce clause, and afforded ample au-
thority to the Express Company for refus-
ing to complete the interstate shipments in
question. 258 Mo. 97, 167 S. W. 429.
Passing minor contentions whose want of
merit will bs hereafter d^nonstrated, it is
clear that the issue is this: Was the state
license law, if applied to C. O. D. interstate
commerce shipments, repugnant to the com-
merce clause of the Constitution? It is
certain that this question, in view of the
date of the law and of the shipments in-
volved, must be determined in the light of
the operation of the commerce clause as
affected by the power conferred upon the
states by what is usually known as the
Wilson law (act of August 8, 1890, chap.
728, 26 Stat at L. 813, Comp. Stat. 1913,
I 8738),. and wholly unaffected by S 239
of the Penal Code enacted by Congress
March 4, 1909 [35 SUt. at L. 1136, chap.
321, Comp. SUt 1013, | 10,409] prohibit-
ing the shipment of intoxicating liquors
under C. O. D. contracts, and also without
reference to the act of Congress known as
the Webb-Kenyon law of March 1, 1913
(chap. 90, 37 Stat, at L. 699, Comp. Stat.
1913, §8739).
Thus limited, as it is not controverted
and indeed is indisputable that the pro-
visions of the statute placed a direct burden
on the shipments with which it dealt, and
in fact were prohibitive of such shipments,
it follows that error was committed in
holding that the statute was not repugnant
to the Constitution of the United States in
so far as it applied to interstate C. 0. D.
shipments, for the following reasons: (a)
Because it is settled from the beginning,
and too elementary to require anything but
statement, that, speaking generally, the
states are without power to directly burden
interstate commerce, and that commodities
60 li. ed.
moving in such commerce only become sub-
ject to the control of the states or to the
power on their part to directly burden after
the termination of the interstate movement;
that is, after the arrival and delivery of
the commodities and their sale in the origi-
nal packages; and that this rule is [51] as
applicable to the movement of intoxicating
liquors as to any other commodities, (b)
Because the Wilson act only modifier tkese
controlling rules by causing interstate com-
merce shipments of intoxicating liquors to
come under state control at an earlier date
than they otherwise would; that is, after
delivery, but before sale in the original
packages, (c) Because the power in inter-
state commerce shipments to make C. O. D.
agreements, that is, agreements on delivery
of the commodity shipped to collect and re-
mit the price, is incidental to the right to
make sudi shipments, and the commodities
when so shipped do not come under the au-
thority of Uie state to which the com-
modities are shipped under such agreements
untU arrival and delivery, and therefore
any attempt on the part of the state to
directly burden or prohibit such contracts,
or prevent the fulfilment of the same, neces-
sarily comes within the general rule and is
repugnant to the institution of the United
States.
These propositions in substance have been
by necessary implication or by direct de-
cision so authoritatively and repeatedly de-
termined, as shown by the cases cited in
the margin,^ that there is no necessity for
going further. But in view of the fact that
the court below held the statute to be not
r^ugnant to the commerce clause, not be-
cause it overlooked the rulings of this court
referred to, but because it considered them
distinguishable or inapposite to this case
for reasons deemed by it to be conclusive,
thtfe being some difference of opinion on
iLeisy v. Hardin, 135 U. S. 100, 34 L.
ed. 128, 3 Inters. Com. Rep. 36, 10 Sup.
Ct. Rep. 681; Re Rahrer, 140 U. S. 545, 35
L. ed. 572, 11 Sup. Ct Rep. 865; Rhodes
V. Iowa, 170 U. S. 412, 42 L. ed. 1088, 18
Sup. Ct. Rep. 664; Vance v. W. A. Vander-
cook Co. 170 U. S. 438, 42 L. ed. llOO, 18
Sup. Ct. Rep. 674; Heyman v. Southern R.
Ck>. 203 U. S. 270, 51 L. ed. 178, 27 Sup.
Ct. Rep. 104, 7 Ann. Cas. 1130; Adams
Exp Co. V. Kentucky, 214 U. S. 218, 63 L.
ed. 972, 29 Sup. Ct Rep. 633; Louisville
& N. R. Co. V. F. W. Cook Brewing Co.
223 U. S. 70, 56 L. ed. 366, 32 Sup. Ct. Rep.
180; Kirmeyer v. Kansas, 236 U. S. 568,
59 L. ed. 721, 35 Sup. Ct Rep. 419; Rossi
V. Pennsylvania, 238 U. S. 62, 59 L. ed.
1201, 35 Sup. Ct. Rep. 677; American Exp.
Co. V. Iowa, 196 U. S. 133, 49 L. ed. 417,
26 Sup. Ct. Rep. 182; Adams Exp. Co. v.
Kentucky, 206 U. S. 129, 51 L. ed. 987, 27
Sup. Ct Rep. 606.
51-64
SUPREME COURT OF THE UNITED STATEa
Oor. TkftK,
the subject in the court below, we briefly
refer to those reasons.
[52] It was said that the shipment of
oommodities contains two elements ; one, the
obligation arising from the duty of the car-
rier to receive and carry without express
contract; and the other, such obligation as
arises from contracts made concerning the
shipment, not embraced in the duty which
rested by law upon the carrier in the ab-
sence of contract, the latter being illustrat-
ed by C. O. D. contracts. These two classes
of obligations, it was pointed out, arising
from different sources, were controlled by a
consideration of the source whence they
sprang; the one, the duty independent of
contract, being commerce, and the other, the
duty depending upon express contract, in a
sense independent of commerce, being gov-
emed by the law controlling contracts; that
is to say, the one being controlled by the
commerce clause and the other by the law
of the state. And from these generalizations
it was concluded that however complete and
efficacious was the control of the Ck>nstitu-
tion of the United States over the obliga-
tion resulting from shipments in the proper
sense, it was clear that the power of the
state was complete over the other class of
obligations, those arising from distinct con-
tracts, and hence the act imposing the bur-
den on the contract to collect on delivery
did not reach over into the domain of ship-
ment, was independent of the same, and
therefore was not repugnant to the com-
merce clause. But we think it is a suffi-
cient answer to say that the reasoning re-
ferred to rests upon a misconception of the
elementary notion of interstate commerce
as inculcated and upheld from the begin-
ning, and as enforced in a line of decisions
of this court beginning with the very birth
of the Constitution, and which in its funda-
mental aspect has undergone no change or
suffered no deviation: that is, that the in-
terstate commerce which is subject to the
control of Congress embraces the widest
freedom, including, as a matter of course,
the right to make all contracts having a
proper relation to the subject. Indeed, it
must be at once apparent that if [53] the
reasoning we are considering were to be en-
tertained, the plenary power of Congress to
legislate as to interstate commerce would
be at an end, and the limitations preventing
state legislation directly burdening inter-
state commerce would no longer obtain, and
the freedom of interstate commerce which
has been enjoyed by all the states would
disappear. But to state these general con-
•iderations is indeed superfluous, since in
one of the previous cases which we hare
cited (American Exp. Co. v. Iowa, 196 U.
B. 233, 143, 144, 49 L. ed. 417, 422, 423, 26
S34
Sup. Ct. Rep. 182) substantially the identi-
cal contention which we have just disposed
of was relied upon and its unsoundness was
expressly pointed out and the destructive
consequences which would arise from iti
adoption stated.
The minor contentions to which we previ-
ously referred are these:
1. That although it be that { 239 of the
Penal Code has no retroactive operation, it
should be used as an instrument of interpre-
tation from which to deduce the conclusion
that the power of a state to prohibit ship-
ments of intoxicating liquors in interstate
commerce under C. O. D. contracts existed
at the time here in question. But this by
indirection simply seeks to cause the act
of Congress to retroactively apply by rea-
soning which, if acceded to, would require
^ it to be said that all the previous decisions
I of this court dealing with the subject be-
! fore the Penal Code was enacted were
wrong, and that, in addition, the enact-
ment of § 239 was wholly unnecessary.
2. That even although there was a wrong-
ful refusal of the Express Company to carry
out the shipments, its doing so was a mere
violation of contract, giving a right to sue
in damages, but not for conversion. We see
nothing in the record to indicate that this
contention was urged in the trial court or
in the court below. But, passing this con-
sideration, in view of our previous action
rejecting a motion to dismiss, the question
is foreclosed. But sgain, [54] even if this
be put out of view, the proposition is with-
out merit under the controlling state law.
Rice y. Indianapolis 4 St. L. R. Co. 3 Mo.
App. 27; Loeffler v. Keokuk Northern Line
Packet Co. 7 Mo. App. 186; Dsuiciger Bros.
V. American Exp. Co. 172 Mo. App. 391, 158
S. W. 466.
3. That this case is taken out of the
settled rule to which we have referred, and
is controlled by the ruling in Delamater v.
South Dakota, 205 U. S. 93, 61 L. ed. 724,
27 Sup. Ct. Rep. 447, 10 Ann. Cas. 733.
But the proposition presupposes that the
decision in that case overrule the many de-
cisions sustaining the rule without the
slightest indication of a purpose to do so.
it proceeds upon an obvious misconception
of the Delamater case, which, instead of dis-
regarding the construction put upon the
Wilson act and the many cases dealing with
the subject, was, on the contrary, but an
application in a new form of the additional
power which that act gave. In other words,
the case but held that, inasmuch as Con*
gross, by virtue of its regulating authori^,
had caused shipments of intoxicating li-
quors in interstate commerce to become sob-
ject to state authority after arrival and be-
fore sale in the original padcagei, the enr-
941 V. 8.
Ifl5.
MSNASHA PAPBB 00. t. OHIOAGO 4 N. W. R. 00.
64, 66
tkm Ij tb» etote of its authority to prerent
the eaiTTliif on in the itate of the busineet
of toUdting purchases of liquor to be
■hipped from other states was lawful aa a
mere ezotion of police power, not consti-
tuting a direct burden upon interstate com-
merce, sinee such a regulation was within
the scope of the remedial authoritj con-
ferred by Oongress by rirtue of the Wilson
act.
And the contention Just stated leads to «
reference to suggestions which we deem to
be wholly irrelevant to the issue for de-
cision, made both in the opinion of the court
below and in the argument at bar concern-
ing possible abuses committed as the re-
sult of 0. O. D. shipments of intoxicating
liquors into states where the use of such
liquor is prohibited, such as the unreason-
able detention of such liquors before de-
livery, the ultimate delivery to a [66] per-
son who had not ordered the same, the
transfer to others by the ostensible person
to whom the shipment was seemingly made,
ete., etc We say irrelevant suggestions be-
cause we are considering here not whether a
state statute enacting reasonable regula-
tions to prevent abuses under 0. O. D. ship-
ments would be a direct burden upon inter-
state commerce, but are only called upon to
determine whether a statute is repugnant to
the oommerce clause which expressly as-
serts the power of the state to forbid all
0. O. D. interstate commerce shipments ot
intoxicating liquors without reference to
ainue of any kind or nature in the manner
in which said contracts are carried out. .
It follows from what we have said that
the court below erred, and that its judg-
ment must be reversed and the case re-
manded for further proceedings not incon-
sistent with this opinion.
And it is so ordered.
MEKASHA PAPER COMPANY, Plff. in
?rr.,
V.
CHICAGO k NORTHWESTERN RAIL-
WAY COMPANY.
(See S. C. Reporter's ed. 66-63.)
Carriers — duty to furnish cars — em-
bargo — remoral without notloe —
denmrrage.
1. A so-called embargo by which a
raihray company, at the request of a paper
company owning and operating a private
sidetrack, refuel to furnish cars to ship-
pers for interstate consignments to sudi
paper company, which the latter, under
contracts with the shippers, was under an
obligation to receive, and did in fact re-
ceive, violates the provisions of the Hep-
bum act of June 20, 1906 (34 Stat, at L
684, chap. 3691, Comp. Stat. 1913, g 8668),
requiring railway companies to provide and
furnish transportation to shippers upon
reasonable request therefor, and such embar-
go could be removed by the railway com-
pany without notice to the paper company,
although such action produced a conges-
tion ox cars beyond the ability of the paper
company to handle on its sidetrack in the
usual wav, and thus rendered the paper
company liable to demurrage charges.
[For other cases, tee Carriers. Ill : Comineree,
III. j, in Digest Sap. Ct 1908.]
Carriers — demurrage — when side-
track la full.
2. A private switch track is ''full"
within the meaning of a provision in the
carrierfs rules, relating to car service and
demurrage charges that "the deliverv of
cars to private tracks shall be considered
to have oeen made either when such cars
have been placed on the tracks designated,
or, if such track or tracks be full, when
the road offering the cars would have made
delivery had the condition of such tracks
permitted,'' where, although such switch
track would hold more cars, there were
upon it all the cars that the consignee, as
it used the track, could handle and unload,
and the consignee did not ask for more.
Error to state court — Federal ques-
tion — demurrage.
3. A Federal question which will sus-
tain a writ of error from the Federal Su-
Sreme Court to a state court was involved
1 a decision of the latter court that a so-
called embargo by which a railway com-
pany, at the request of a paper company
owninff and operating a private sidetrack,
refusea to furnish cars to shippers for in-
terstate consignments to such paper com-
Sany which the latter, under contracts with
lie shippers, was • under an obligation to
receive, and did in fact receive, violatea
the provision of the Hepburn act of June
29, 1906 (34 Stat, at L. 684, chap. 3691,
Comp. Stat. 1913, § 8563), requiring rail-
way companies to provide and furnish
transportation to shippers upon reasonable
request therefor, and that such embargo
could be removed by the railway companv
without notice to the paper company, al-
though such action produced a congestion
of cars beyond the abilitr of the paper com-
1 pany to handle on its sioetrack in the usual
Kois. — On duty of carrier to furnish cars
independently of contract — see notes to
Houston, B. 4 W. T. R. Co. v. Campbell, 43
L.R.A. 226; Di Giorgio Importing & S. S.
Co. V. Poinsylvania R. Co. 8 L.RJk.(N.S.)
108; and Illinois C. R. Co. v. River & R.
Coal & Coke Co. 44 LJLA.(N.S.) 643.
On the general subject of writs of error
•• Zi. ed.
from United States Suprenie Court to state
courts — see notes to Martin v. Hunter, 4
L. ed. U. S. 97; Hamblin v. Western Land
Ck>. 37 L. ed. U. S. 267 ; Re Buchanan, 39 L.
ed. U. S. 884; and Kipley v. Illinois, 42 Lw
ed. U. S. 998.
On what adjudications of state courts can
be brought up for review in the ^
SUPREME COURT OF THE UNITED Bl'ATES.
Oot. Tom,
mr, uid thus rendered the pftpra eomptnj
liable to demurrage charge
Ifor other eaaes, see Appeal
IN ERROR to the Supreme Court of the
State of WiKoaiin to reriew a judgment
which afflnned a judgment of the Circuit
Court of Wiiuiebago Coimtj', in that state,
In favor of a railway company in an action
(or demurrage. Affirmed.
See lame caae lielow, 169 Wis. SOB, 149
N. W. 761.
The facta are atated in the opinion.
Hr. Fcltx 3, StrerckmnnH argued the
eauae and Aled a brief for plaintiff in error:
Under the interatate oommerce act rail-
road! cannot collect for any service not
apeeificaily eet forth in the carrier'a pub-
Ilahed tariffa, and tariffs and achedulea
muat plainly ahow what the chargea are
for.
Feale, Peacock & Kerr v. Central R. Co.
1§ Inters. Com, Rep, 33; Porter v. St
Louie & S. F. R. Co. Ifi Intera. Com. Rep.
4; Colorado Fuel k I. Oo. v. Southern P.
Co. S I. C. C. Rep. 019; Rames, Interatate
Tranaportation, pp. T12. 714; H. B, Pitta
k Son V. St. Louis & S. F, R. Co, 10 Inters.
Com. Rep. 690; Newton Gum. Co, v. Chi-
cago, B. & Q. R. Co. 16 Inters. Com. Rep.
346; Ohio Shippera' Aaso. v. Ann Arbor R.
Co, decision by Ohio R. Oommission, Re-
port 1907, p. IS; Crescent Coal & Min.
Co. V. Baltimore & 0. R. Co. 20 Intera. Con.
Rep. 669; United SUtes v. Denver ft R. G.
R. Co. IS Inters, Com. Rep. 7; Germain
Co. T. New Orleana & N. E. R. Co. 17 Inters.
Oom. Rep. 2B; Beelonaa Lumber Co. v.
Louiaiana R & Nav. Co, IS Inters. Com.
Rep. 347.
The rulea relied on in this ease did not
permit the charging of car service until
the side track waa filled to its capacity.
United States r. Denver & K G. R. Co.
18 Inters. Com. Rep. 7; New Orleans t N.
B. R, Co. T. George, B2 Miss. 710, 35 So.
IBS.
Derisions of the Interstate Oommerce
CMnmisaioD must be followed by the courts.
United SUtes v. Erie R. Co. 209 Fed.
88B; Interstate Commerce Commission v.
Chicago, R. 1. & P. R. Co. 218 U. S. 68, 110.
M U ed. 940, 967, 30 Sup. Ot. Rep. Sol.
No delivery ia effected whcM switchlag
a unperformed.
Crescent Coal & li'va. Co. v. Raltimore k
R. Co. 20 Inters. Com. Rep. 689; New
oric, N. H. t H. R. Co, v. Porter, 220
;ass. 647, 108 N. E. 499.
Lifting the ao-calied emtiargo made the
carrier responsible for the accumulation ot
Scliuiz Co. T. Chicago, M. ft St, P. R.
Co. 20 Inters. Com. Rep. 406.
A car service charge is, aa a general
rule, only to be made either after delivery
or after notice of delivery.
Hutchinson, Carr. §§ 359, 968; Elliott,
Railroads, g§ 200a, 1607.
Demurrage rulea promulgated by a car-
rier must be construed moat favorably to
the shipper.
Staten Island Rapid Transit R. Co. v.
Marshall, 130 App. Div. 671, 121 N. T.
Supp. 82.
This court has juriadictlon to review a
decision of the state court construing a
Federal statute, to wit, the act to regu-'
late commerce, that act governing charges
(or demurrage on interstate traffic.
Oimbel Broa. v. Barrett, 815 Fed. 1004;
Hite V. Oantral R. Co. 90 C. C. A. 32S, 171
Fed. 370.
Though a state court has no jurladiction
to affect a Sled and published rate for
demurrage on an interstate ahipment, it
may in a proper action find that such rate
waa charged for a greater length of time
than that to which it was truthfully appli-
cable, and give judgment for the amount so
overpaid.
Chesapeake ft 0. R. Co. v. Rogers, — W.
Va. — , 84 S, E. 248.
Mr. Ixrais Qnarlea argued the cause,
and, with Messrs. Willet M. Spooner and
George Lines, Aied a brief for defendant in
Jurisdiction is given to this court only
when the decision of the atata court is
against the right, privilege, or immunity
set up under the Constitution or laws of
the United States.
Murdock V. Memphis, 20 Wall 990, 22
L. ed. 429; Sauer v. New York, 206 U. S,
6.18. B46, 61 L. ed. 1170, 1181, 27 Sup. Ct
Rep. 086; Leathe v. Thomas, 207 U. S. 93.
98, 62 L. ed. IIB, 120, 28 Sup. (». Rep, 30.
The Federal questions do not appear on
the record to have been especially act i^
and claimed in the court below.
De Lamar'a Nevada Gold Min. Co. v.
Court of the United States by writ of error | to make a case for a writ of error from
to those courts— aee note to Apei Transp. the Supreme Court of the Unit«d States—
0>. T. Garlwde, 62 L.RA. 613. I see note to Mutual L. Ins. Co. v. UeOraw,
On how and when questions must be 03 L.RA. 33.
nited Mad decided in a stata court Iv order '
a«i V. ■.
1911.
IfXNASHA PAPEB CO. t. CHICAGO & N. W. R. CO.
NmMU, 177 U. 8. 623, 44 L. ed. 872, 20 S^p.
Ct Rep. 715; Speed v. McCarthy, 181 U. S.
289, 45 L.*ed. 855, 21 Sup. Ct. Rep. 613.
An attempt to raise a Federal question
in a petition for rehearing is too late.
BuBhnell y. Crooke Min. & Smelting Co.
148 U. S. 690, 37 L. ed. 61'3, 13 Sup. Ct.
Rep. 771; Pirn y. St. Louis, 165 U. S. 273,
41 L. ed. 714, 17 Sup. Ot. Rep. 322; Capi-
tal Nat. Bank y. First Nat. Bank, 172 U.
S. 425, 43 L. ed. 502, 19 Sup. Ct. Rep. 202.
The decision of the lower court does not
dmj any right that was asserted by plain-
tiff in error under the laws of the United
States. The action is based on a tariff
fair on its face, and no attempt has been
made to challenge its validity, the sole
question arising being its application to
^e facts in the case.
Pennsylvania R. Co. y. Puritan Coal Min.
€o. 237 U. S. 121, 59 L. ed. 867, 35 Sup.
Ot Rep. 484; Illinois C. R. Co. y. Mul-
tarry Hill Coal Co. 238 U. S. 275, 59 L. ed.
1806, 35 Sup. Ct. Rep. 760.
The fact that plaintiff and defendant
anake adverse claims under a law of the
United States does not of itself present a
J'ederal question.
De Lamar's Nevada Gold Min. Co. v.
:Ne8bitt, 177 U. S. 523, 44 L. ed. 872, 20
ISup. Ct. Rep. 715.
That demurrage under facts similar to
"those in the case at bar could be assessed
Mt destination has been held by this court,
and the assertion to the contrary is too
frivolous to support the writ of error.
Berwind-White Coal Min. Co. v. Chicago
A E. R. Co. 235 U. S. 371, 375, 59 L. ed.
276, 276, 85 Sup. Ct Rep. 131.
Where the highest court of a state de-
eides a question on a non-Federal ground,
its decision will not be reversed, even though
it may have also decided erroneously upon
a Federal question, but in such a case this
eourt will dismiss the writ of error.
Eustis V. BoUes, 150 U. S. 361, 370, 87
L. ed. 1111, 1113, 14 Sup. Ct. Rep. 131;
Leathe v. Thomas, 207 U. S. 93, 98, 52 L.
ed. 118, 120, 28 Sup. Ct Rep. 30; Mur-
•dock V. Memphis, 20 Wall. 590, 22 L. ed.
429; Castillo v. McConnico, 168 U. S. 674,
«79, 42 L. ed. 622, 18 Sup. Ct. Rep. 229.
The question whether the demurrage was
Assessed at destination is a question of
fact, and this court has no jurisdiction to
go behind the findings of fact approved by
the state supreme court.
Clipper Min. Co. v. Eli Min. & Land Co.
194 U. S. 220, 48 L. ed. 944, 24 Sup. Ct.
Rep. 632; Dower v. Richards, 151 U. S. 658,
472, 38 L. ed. 305, 310, 14 Sup. Ct. Rep.
462, 17 Mor. Min. Rep. 704.
Cars are at destination when* they are
waiting in the yard because of the ini^ili^
«• L. ed.
of the consignee to receive them on its sid-
ing.
New Orleans & N. E. R. Co. y. Qeorge,
82 Miss. 711, 35 So. 198.
Where cars are consigned for loading on
a vessel for export, destination does not
mean the pier at which the vessel loads,
but the railroad yards adjacent thereto,
and demurrage is collectable on cars wait-
ing in those yards.
Hite v. Central R. Co. 96 C. C. A. 326,
171 Fed. 370.
A contract to maintain an embargo
against a particular shipper is contrary to
§ 1 of the Hepburn act, being the act of
June 30, 1906.
Chicago, R. I. & P. R. Co. v. Hardwick
Farmers' Elevator Co. 226 U. S. 426, 57
L. ed. 284, 46 LJIJ^.(NJ3.) 203, 33 Sup.
Ct. Rep. 174; St. Louis, I. M. & S. R. Co.
V. Edwards, 227 U. S. 265, 268, 57 L. ed.
506, 33 Sup. Ct Rep. 262; Pennsylvania R.
Co. V. Puritan Coal Min. Co. 237 U. S. 121,
183, 59 L. ed. 867, 873, 35 Sup. Ct. Rep.
484.
There can be no lawful discrimination in
demurrage charges any more than there can
be in freight charges.
Atchison, J. & S. F. R. Co. v. Robinson,
233 U. S. 173, 58 L. ed. 901, 34 Sup. Ct.
Rep. 556; Chicago & A. R. Co. v. Kirby,
225 U. S. 155, 56 L. ed. 1033, 32 Sup. Ct.
Rep. 648, Ann. Cas. 1914A, 501; St. Louis,
I. M. & S. R. Co. V. Edwards, 227 U. S.
266, 57 L. ed. 506, 33 Sup. Ct Rep. 262;
Hampton v. St Louis, I. M. ft S. R. Co. 227
U. S. 456, 57 L. ed. 596, 33 Sup. Ct. Rep.
263; Michie v. New York, N. H. & H. R.
Co. 151 Fed. 694; United SUtes v. Phila-
delphia & R. R. Co. 184 Fed. 543; United
States V. Bethlehem Steel Co. 184 Fed. 546;
United States v. Lehigh R. Co. 184 Fed.
546, 110 C. C. A. 513, 188 Fed. 879; L. W.
Blinn Lumber Co. v. Southern P. Co. 18
Inters. Com. Rep. 430; Armour Packing
Co. V. United Stotes, 209 U. S. 56, 52 L.
ed. 681, 28 Sup. Ct. Rep. 428; Peale, Pea-
cock k Kerr v. Central R. Co. 18 Inters.
Com. Rep. 34; Texas & P. R. Co. v. Mugg,
202 U. S. 242, 50 L. ed. 1011, 26 Sup. Ct.
Rep. 628.
Where a situation is once shown to exist,
the presumption is that such situation con-
tinues unless evidence be introduced to the
contrary.
Laughlin T. Chicago & N. W. R. Co. 28
Wis. 204, 9 Am. Rep. 493; Wallace v.
Pereles, 109 Wis. 316, 53 L.R.A. 644, 83
Am. St. Rep. 898, 85 N. W. 871; State ez
rel. Coffey v. Chittenden, 112 Wis. 569, 88
N. W. 597; Friend v. Tahr, 126 Wis. 291,
1 LJlJk.(N.S.) 891, 110 Am. St Rep. 924,
104 N. W. 997.
A earrier may maintain an emhax^e^
6^-69
SUPREME COURT OF THE UNITED STATES.
Oct. Ttau,
wliere neoessary to enable ft to operate as
a oommon carrier, but' cannot contract to
maintain an embargo as a special favor.
Barnes* Interstate Transportation, S 356;
Pennsylvania R. Ca v. Puritan Coal Min.
Co. 237 U. S. 121, 69 L. ed. 867, 36 Sup.
Ct Rep. 484; Peet T. Chicago & K. W. R.
Co. 20 Wis. 694, 91 Am. Deo. 446; S. S.
Daish & Sons v. Cleveland, A. & C. R. Co.
9 Inters. Com. Rep. 513; Great Western R.
Co. V. Burns, 60 111. 287; Bussey v. Mem-
phis & L. R. Co. 18 Fed. 330; Petersen v.
Case, 21 Fed. 890; Houston & S. C. R. Co.
T. Smith, 68 Tex. 822; American Tie &
Timber Co. v. Kansas City Southern R. Co.
99 C. C. A. 44, 175 Fed. 28; E. L. Rogers
ft Co. V. Philadelphia & R. R. Co. 12 Inters.
C<»n. Rep. 309.
Mr. Justice HcKenna delivered the opin-
ion of the court:
Action for demurrage on ears in inter-
state and intrastate commerce, the grounds
of recovery being set forth in separate
counts.
After trial judgment was entered for the
railway company in the sum of $1,374.63
and $49.60 costs, being, in all, the sum of
$1,424.23.
The judgment was affirmed' by the su-
preme court of the state.
[57] There is no dispute about the facts.
The railway company operates a railroad at
Menasha, Wisconsin, and elsewhere. The
paper company is a corporation and has a
place of business adjoining the railroad of
the railway company, and operated, for the
purpose of unloading the cars delivered to
it, a sidetrack which was contiguous to its
mill and oonnected with the tracks of the
railway company. A delay of forty-eight
hours was allowed for unloading; after
that time a demurrage charge of $1 per
car per day was provided by the rules of
the railway company.
The sidetrack could accommodate about
seven cars, but had an actual capacity, as
used during the times with which the ac-
tion is concerned, of three or four cars, or
possibly of five. As the paper company used
the sidetrack, more cars could not have been
placed upon it and unloaded than were
actually placed upon it and unloaded, that
is, about two or three cars a day.
Notice of the arrival of each car was
given and acknowledged by telephone, and
the railway company held the cars for un-
loading either at Menasha station, or after-
wards at Snell's siding, 8 miles south of
Menasha. The paper company did not ask
for them sooner than shown in the oom-
plaint because it oould not handle any more
ears than it did. And there was neither in-
mblUtf nor refusal on the part of the rail-
sss
way company to so place the cars when so
ordered.
On March 14, 1908, the railway oompany^
at the request of the paper oompany, noti-
fied its agents in Wisconsin and Michigan
"until further advised" to discontinue to
furnish equipment to load with bolts (logs
less than 8 feet in length) for the paper
company. This arrangement, called aa
"embargo," did not run out until the cloie
of the year, and did not by its terms oover
logs, nor was it modified afterwards to oover
logs. The embargo was raised at the paper
company's request as to a certain [68]
number of cars, but was applied again, and
bolts were shipped in violation thereof and
without any notice from the railway com-
pany to the paper company of the intention
to ship the same, resulting in the arrival of
oars fai great numbers on certain days.
From these facts it was concluded by the
referee, to whom the case was referred, the
trial court, and the supreme court that the
paper company was estopped from urging
any defense other than the existence of the
embargo, and that the embargo was "il-
legal, contrary to public policy, and void.''
Ihe latter conclusion the court based on
the Hepburn act (34 Stat, at L. 684, chap.
3591, Comp. Stat. 1913, ( 8663) and cer-
tain sections of the Wisconsin laws.
The case is in short compass. The first
cause of action was for intrastate demur-
rage on logs; the seoond cause of action
was for interstate demurrage on logs and
bolts. The so-called embargo is applicable
only to the bolts. The supreme court dis-
posed of it, as we have seen, on the ground
that it was opposed to the policy of the
Federal and state laws, and justified the
railway company in removing it. And the
court found that there was no agreement
that notice should be given of its removaL
The removal of the embargo undoubtedly
produced a congestion of cars beyond the
ability of the paper company to handle on
its sidetrack in its usual way.
Two questions arise on the embargo:
(l)Waa it a violation of the Hepburn actT
(2) If so, could the railway company re-
cover on account of the congestion of cars
resulting from its removal! That aet re*
quires railroad companies to provide and
furnish transportation to shippers upon rea-
sonable request therefor, and to exact this
duty of the railway oompany was the right
of the shippers of the bolts to the paper
company. Chicago, R. I. & P. R. Co. v.
Hardwick Farmers' Elevator Co. 226 U. 8.
426, 57 L. ed. 284, 46 L.R.A.(Na3.) 203»
38 Sup. Ct Rep. 174. This is not denied
by the paper company, nor did thai eoin-
pany refuse [50] to receive tha eara. It is
aa inf erenoa from thii that tha paper oamr
S41 V. 8.
191fi.
MSNA8HA PAPER CO. T. GUIGAGO & K. W. R. 00.
60-61
pany recognized it was under contract obli-
gations to the shippers to receive the bolts;
indeed, the whole case supposes it. It is
alleged that "between the 3d of June, 1908,
and the 20th of July, 1908, both dates in-
cluded, plaintiff [the railway company], as
the last carrier, carried and delivered in
interstate commerce certain freight in car-
load" lots (meaning the bolts). There is
no denial that they were so carried. If the
shippers had a right to send the bolts, nec-
essarily the railway company was under a
duty to transport tiiem. The contention of
the paper company, therefore, is tantamount
to saying that the railway company per-
formed its duty at the sacrifice of its rights.
We are unable to concur in this view. The
railway company violated its duty when it
agreed to the embargo; it returned to its
duty when it removed the embargo, and the
rights which it exercised were those which
it would have had if there had been no
agreement between it and the paper com-
pany. The paper company had a direct
remedy if it had been under no obligation
to receive the bolts; it could have peremp-
torily notified the shippers not to send
them, and such notice, under the circum-
stances, was an obvious course. It could
not be protected from their receipt nor re-
lieved from the obligation of their receipt
by an agreement with the railway com-
pany against the duty which the law de-
volved up<m the latter company. This duty
it was deemed necessary to impose. It is
positive and should be kept clear from
agreements with others than the shippers
which in effect stipulate for its violation.
And this is the basis of our decision. If
the paper company was under no obligation
to receive the bolts from the shippers of
them, it undoubtedly had the right to effec-
tually notify the railway company not to
receive them for shipment on its account
except as it should direct. But, as we have
seen, it received the cars, and this, we have
said, was a recognition of the rights of
[60J the shippers. The cars did not arrive
all at once, and a protest made at the first
delivery of cars would have notified the rail-
way company that the paper company was
under no obligations to the shippers. And
this certainly was the more imiperative, as
the railway company was the last carrier,
the shipments originating on other roads.
It seems that in the state court the paper
company did not contend so much against
the raising of the embargo as against the
failure to give notice of it, with the conse-
queiioe^ it was asserted and is asserted here,
of the "dumping of a large number of cars"
OB the paper oompany "and causing the ae-
eroal of the alleged demurrage sued for."
But the contention is baaed upon the kgal-
•• li. ed.
ity of the embargo, it being tantamount, it
is insisted, to a consignee refusing freight
oonsigned to it, or the designation of those
from whom it would receive freight. It,
however, gave no notice to its consignors;
it undertook to put the railway between it-
self and them, casting upon the railway
company the hazard of the violation of its
obligations, it* having the ability to per-
form them and the shippers having the right
to demand performance of them. It, be-
sides, received the cars without protest or
comment, and made no provision for their
disposition. The finding is "that defend-
ant did not order cars placed for unload-
ing sooner than as shown in Exhibits B and
G, attached to the complaint, because, prac-
tically, defendant could not handle any
more cars than it did, and hence did not
ask for them." This finding applies, of
course, to the placing of cars on the paper
company's sidetrack. What other accommo-
dation and arrangements it could have made
does not appear from the findings, but it
was testified that the paper company, if the
cars had been delivered to it, coiUd have
obtained space for unloading them. The
company, however, made no demand for
such delivery and the referee found that
the railway company "notified the defend-
ant [paper company] upon each arrival
[61] by telephone^ giving the car numbers,
and, according to custom, with only occa-
sional exceptions, the plaintiff held the cars
until defendant notified it to place them
upon the sidetrack for unloading." And
the referee also found that there was no de-
linquency <m the part of the railway com-
pany nor insufficiency of terminal facilities.
The next contention of the paper company
(it is the first discussed) is that "under the
commerce act railroads cannot collect for
any service not 'specifically set forth in the
carrier's published tariffs,' and tariffs and
schedules must plainly show what the
charges are for." These conditions, it is
urged, were not satisfied by the rules of the
company and the circumstances presented
in this case.
The rules of the company were as follows:
"Rule 4. Cars which are stopped in tran-
sit or held by orders of shippers or con-
signee for reconsignment to points beyond,
for change of load, for amended instructions,
for change in billing, milling, shelling,
cleaning, etc., or on account of improper,
unsafe, or excessive loading, or for any
other reason for which the shipper or con-
signee is responsible, shall be subject to
car service charges after the expiration of
forty-eight (48) hours from arrival at the
point of stoppage, and all car service must
be collected, or billed as advances when
cart go forward.
61-«4
SUPREME COURT OF THE UNITED STATEa
Oct. Tkuf,
"Rule 6. . . .
''Section B. Cars for unloading shall be
considered placed when such cars are held
awaiting orders from consignors or consign-
ees or for the payment of freight charges
after the notice mailed or otherwise given,
or for the surrender of bills of lading.
"Section C. The delivery of cars to pri-
vate tracks shall be considered to have been
made, either when such cars have been
placed on the tracks designated, or, if such
track or tracks be full, when the road offer-
ing the cars [62] would have made deliv-
ery had the condition of such tracks per-
mitted."
It is somewhat difficult to state succinct-
ly the argument of counsel by which he at-
tempted to give pertinency to the contention
based on these rules. We have seen that
the sidetrack of the paper company could
accommodate about seven cars, but, as the
company used the track, it could handle
only two or three cars a day, and hence
it did not ask for more. The supreme court
of the state, therefore, decided that the rail-
way company had complied with its obliga-
tion to the paper company by complying
with such demand, and was entitled to
charge for demurrage. And, answering the
contention of the paper company (repeated
here), the court said the railway "was not
obliged to do a vain and useless thing by
putting seven cars upon the track at one
time, and thus prevent the practical hand-
ling or unloading of any cars thereon by
appellant [paper company], contrary to its
orders." [169 Wis. 614, 149 N. W. 751.]
The court, by such holding, counsel says,
decided that "the rules must have a reason-
able construction." And, further: "This is
the crux of the decision, and it is abso-
lutely in opposition to all of the decisions
of the Interstate Commerce Commission and
of the courts, and of the spirit and intent
of the act to regulate commerce." In other
words, counsel insists that there should
have been an actual filling of the tracks,
even though this would have prevented their
use, and have been contrary to the direc-
tions of the company, the basis of the con-
tention being "that the rules must be strict-
ly construed, and tliat there must be *defi-
nite tariff authority' for the charges made."
And the conclusion, it is asserted, is sup-
ported by all authorities, judicial, adminis-
trative, and legislative. Rigorously apply-
ing the test that the exact letter of the
statute must be observed, counsel goes so
far as to assert that there was an impera-
tive duty upon the railway company to so
fill the tracks, and this without orders.
And contesting the proposition, [63] de-
cided by the supreme court of the state, that
cBn arriving at Menasha or Snell's siding
B0O
had reached their destination, counsel says:
"It was the duty of the railroad to keep the
sidetrack filled to its physical capacity be-
fore it could hold the cars 'at the nearest
available point.' To hold otherwise would
leave it dependent upon the judgment of
the officers of the railroad as to how much
unloading the consignee could do, and would
therefore result in discrimination and spe-
cial privileges prohibited by the act to regu-
late commerce." And further: 'The car-
rier was derelict in its duty when it failed
to fill the sidetrack to its capacity, as it
had not completed its duty as a common
carrier until it had placed the cart on the
sidetrack of the plaintiff in error."
We are unable to concur in counsel's con-
struction of the rules, or to hold that it
has any such formidable support as he as-
signs to it. And we content oursehrea with
the bare assertion, not even pausing to re-
view counsel's chief reliance, that is. United
States V. Doiver & R. G. R. Co. 18 Inters.
Com. Rep. 7. The case has not the breadth
given to it. If It had, we should be unable
to follow it.
A motion has been made to diamlaa, but
it is apparent from our discussion that a
Federal question was presented in the ease
and decided by the court. The motion,
therefore, must be overruled, and the judg-
ment affirmed.
[64] UNITED STATES, Plff. In Err,
V.
NEW SOUTH FARM & HOME COMPANY,
Charles H. Seig, Ben Levin, et aL
(See S. C. Reporter's ed. 64-73.)
Appeal ~ review by goyernment in
• criminal case — Jurisdiction.
1. llie construction of the Federal
Criminal Code, § 215, making criminal the
use of the mails in the execution of a
Note. — Review by Federal govemment in
criminal case.
This note supplements one on the same
question appended to the report of United
States V. Stevenson in 54 L. ed. U. 8. 153.
The criminal appeals act of March 2,
1907, was not repealed by the Judicial Code
of March 3, 1911, since the former act is
not mentioned among the statutes express-
ly repealed by § 297 of the Code, is not
superseded by any other regulations of the
matter, and is a special provision. United
SUtes V. Winslow, 227 U. S. 202, 67 L. ed.
481, 33 Sup. Ct. Rep. 253.
Jurisdiction.
The Judgment actually entered below,
S41 U. B.
1916.
UNITED STATES v. NEW SOUTH FARM & H. CO.
•cheme to defraud, is involved, so as to
sustain a writ of error from the Federal
Supreme Ck>urt, in a decision of a district
«ourt bv which a demurrer to an indict-
ment charging violations of this section
was sustained on the ground that allega-
tions of the employment of false represen-
tations in furtherance of a plan to sell
real estate did not constitute a scheme to
defraud, punishable under that section, if
the land to be sold was worth the purchase
price asked.
[For other cases, see Appeal and Error, I. e.
In Digest Bap. Ct. 1008.]
Postoffioe ~ use of malls to defraud.
2. Persons employing, in furtherance
d a plan to sell 10-acre farms, false rep-
resentistions as to climate, fertility, crops,
advantages, prospective improvements, etc.,
have engaged in a "scheme or artifice to
defraud, or for obtaining money or prop-
erty by means of false or fraudulent pre-
tenses, representations, or promises," with-
in the meaning of the Federal Criminal
Code, § 215, making criminal the use of
the mails in the execution of such sdieme,
although the lands to be sold may be worth
as much as the purchase price asked.
[For other cases, see Postofflce, VI.. in Digest
Sup. Ct. 1908.]
[No. 808.]
Argued April 7, 1916. Decided April 24,
1916.
IN ERROR to the District Court of the
United States for the Southern District
of Florida to review a judgment sustain-
and not the terms of a stipulation of coun-
sel, previously made and filed, controls the
Federul Supreme Court in determining
whether such judgment is reviewable on
writ of error under the act of March 2,
1907, as one ''sustaining a special plea in
bar when the defendant has not been put
in jeopardy." United States v. Barber, 219
U. S. 72, 65 L. ed. 99, 31 Sup. Ct. Rep. 209.
A judgment of a Federal district court
purporting to dismiss an indictment upon
the ground that the statute of limitations
was a bar to the prosecution is one sus-
taining a special plea in bar within the
meaning of the act of March 2, 1907, gov-
erning the right of the government to a
review in a criminal case, although the plea
of the statute of limitations, filed and heard
by consent and stipulation, was denomi-
nated a plea in abatement. Ibid.
A judgment of a Federal district court
la a criminal prosecution of an express com-
pany under the act to regulate commerce,
sustaining a motion to quash service, which
the court treated as a demurrer to the in-
dictment, and dismissing the case because
the express company is not a corporation,
but is a joint stock association, is review-
able in the Federal Supreme Court under
the act of March 2, 1907, as a decision
setting aside the indictment, based upon the
oonstruction of the statute upon which the
indictment is founded. United States v.
Adams Exp. Co. 229 U. S. 381, 57 L. ed.
1237, 33 Sup. Ct. Rep. 878.
A judgment of a Federal circuit court
sustaining a demurrer to certain counts m
an indicSnent charging, violations of the
anti-trust act of Julv 2, 1890, upon the
Sound that the acts charged are not within
e condemnation of that statute, is based
npon a construction of such statute within
tiSe meaning of the act of March 2, 1907,
governing the right of the government to a
review in a criminal case. United States v.
Patten, 226 U. S. 525, 57 L. ed. 333, 44
LJLA.(N.S.) 325, 33 Sup. Ct. Rep. 141.
A decision of a Federal district court sus-
taining a demurrer to an indictment upon
the ground that the acts charged did not
fall within the condemnation of the statute
•0 li. ed.
on which the indictment is founded is based
upon the oonstruction of such statute, so
as to be reviewable in the Federal Supreme
Court. United States v. Birdsall, 233 U. &
223, 58 L. ed. 930, 34 Sup. Ct. Rep. 512.
A decision of a Federal district court,
sustaining a demurrer to an indictment
charging a conspiracy to defraud the United
States by unlawfully increasing the gross
postoffice receipts on which the postmaster's
salary is to be based, and a conspiracy to
make a false return for the purpose of
fraudulently increasing such compensation,
is based upon the construction of the stat-
utes on wnich the indictment is founded,
and is therefore within the appellate juris-
diction of the Supreme Court, where the
district court distinctly ruled that such
indictment was sufficient in its technical or
formal details, and, although giving special
prominence to certain regulations of the
Postmaster Qeneral, considered the effect
of the Federal statutes independently of
such regulations upon the sufficiency and
legality of the postmaster's return, a con-
struction of the statutes being necessary
to determine the validity of the regulations.
United States v. Foster, 238 U. S. 515, 58
L. ed. 1074, 34 Sup. Ct. Rep. 666.
The meaning of the statute on which, as
a matter of law, the indictment is founded,
may be misconstrued within the meaning
of the act of March 2, 1907, allowing a
direct writ of error from the Federal Su-
preme Court to a judgment of a district
court, sustaining a demurrer to an indict-
ment when based upon the "oonstruction of
the statute upon which the indictment
was founded," not only by misinterpret-
ing the lan^age of such statute, but by
overlooking its existence and failing to ap-
ply its provisions to an indictment which
sets out facts constituting a violation of its
terms. United States v. Nixon, 235 U. S.
231, 59 L. ed. 207, 35 Sup. Ct. Rep. 40.
The decision of a Federal district court
quashing as "bad in law" certain counts of
an indictment purporting to charge viola-
tions of U. S. Rev. Stat, i 5209, Comp. Stat.
1913, $ 9772, is not reviewable in the Fed-
eral SujMreme Court under the act q1 VLkc^
SUPREME COURT OF THE UNITED STATES.
Oct.
ing a demurrer to an indictment charging
the nee of the mails to defraud. Reveraed.
The facts are stated in the 'opini<m.
Assistant Attorney General Wallace ar-
gued the cause and filed a brief for plain-
tiff in error:
U. S. Crim. Code, | 216, may be Tio-
lated though the property to be sold under
the scheme is worth the price to be de-
manded.
Ihirland ▼. United States, 161 U. 8. 306,
313, 40 L. ed. 700, 711, 16 Sup. Ct. Rep.
508; Harris v. Rosenberger, 18 L.RA.
(K.S.) 762, 76 C. C. A. 225, 145 Fed. 440;
CHara ▼. United States, 64 C. C. A. 81,
320 Fed. 551; Colbum v. United SUtes,
ISO C. O. A. 186, 223 Fed. 500; Wilson T.
United States, 111 C. C. A. 231, 100 Fed.
427; United States v. Barnow, 230 U. S.
74, ante, 155, 36 Sup. Ct. Rep. 10.
Mr. W. Knox Hajnea argued the cause
and filed a brief for defendants in error:
The right given to the United States to
obtain a direct review by this court of the
rulings of the lower court does not give
authority to revise the action of the court
below as to the mere construction of an
indictment, and therefore, in the exercise
of the court's power to review this record,
it must accept the construction of the in-
dictment made by the lower court, and
test its ccmstruction of the statute in that
respect, starting with the premises that
the supposed false representations are in
2, 1007, as based upon the construction of
the statute on which the indictment was
founded, since such ruling may as well have
rested upon the opinion of the court as to
the mere insufficiency of the indictment.
United States v. Carter, 281 U. S. 402, 58
L. ed. 880, 84 Sup. Ot Rep. 178.
A decision of a Federal district court on
demurrer, that the averments of an indict-
ment charging violations of the anti-trust
act of July 2, 1800, were not sufficient to
connect the individual defendants with the
offense charged, is a construction of the in-
dictment, and may not be reviewed in the
Federal Supreme Court at the instance of
the government. United States v. Pacific k
A R. & Nav. Co. 228 U. S. 87, 57 L. ed. 742,
ZZ Sup. Ct. Rep. 443.
A judgment of a Federal district couH
sustaining a demurrer to an indictment un-
der the Criminal Code of March 4, 1000, S
215, for placing a letter in the postoffice for
delivery oy the postoffice establishment for
the purpose of executing a scheme to de-
fraud, cannot be review^ in the Supreme
Court bv writ of error, where it does not
appear from the record upon what ground
the court below acted. United States v.
Moist, 281 U. S. 701, 58 L. ed. 444, 84 Sup.
Ct. Rep. 255.
The Federal Supreme Court will not ex-
amine the entire record in order to resolve
in favor of its appellate jurisdiction a doubt
as to whether a ruling of a district court,
ouashing certain counts of an indictment as
''bad in law," was based upon a construc-
tion of the statute on which the indictment
was founded, within the meaning of the
criminal appeals act of March 2, 1007, or
was rested upon the mere insufficiency of
the indictment. United States v. Carter,
231 U. S. 402, 58 L. ed. 880, 84 Sup. Ct.
Rep. 178.
Scope of review.
The district court's construction of the
indictment must be accepted by the Federal
Supreme Court when reviewing, under the
act of March 2, 1007, a judgment sustaining
a demurrer to certain counts in tha indict
8tS
ment, which is based upon the construction
of the Federal statute upon which the in-
dictment is founded. United States v.
Winslow, 227 U. S. 202, 57 L. ed. 481, 83
Sup. Ct. Rep. 258.
The Federal Supreme Court, when review-
ing, under the criminal appeals act of Mardi
2, 1007, the judgment of a Federal circuit
court whose rulmg sustaining a demurrer
to certain counts in an indictment charging
violations of the anti-trust act of July 2,
1800, was based upon the construction of
that statute, must accept the circuit court's
construction of the counts of the indict-
ment, and can consider only whether the de-
cision that the acts charged are not con-
demned as criminal by the statute is based
upon an erroneous construction of that stat-
ute. United States v. Patten, 226 U. S. 525,
57 L. ed. 833, 44 L.R.A(N.S.) 325, 33 Sup.
Ct. Rep. 141.
The Federal Supreme Court, when review-
ing, under the act of March 2, 1007, the act
of the trial court, sustaining a plea in bar
of the statute of limitations to an indict-
ment charging a continuing conspiracy, is
not concerned with the technical sufficiency
or redundancy of the indictment, or even
with any consideration of the nature of
the overt acts alleged. United States v.
Barber, 210 U. & 72, 55 L. ed. 00, 31 Sup.
Ct Rep. 200.
The question presented for decision on
direct writ of error to a circuit court from
judgments sustaining demurrers to indict-
ments under the act to regulate commerce
of June 20, 1006, making it a misdemeanor
for a shipper knowingly to solicit, accept,
or receive a rebate or concession whereby
property is transported in interstate com-
merce at a less rate than that named in
the tariffs "published and filed" by the car-
rier, on the ground that the indictments did
not allege that the schedules and tariffs
claimed to have been violated were posted
in the manner required by law, is whether
compliance with the requirements of the
act as to posting of tariffs is essential to
bring a tariff within the descriptive terms
of the act. United States v. Miller, 223 U.
S. 500, 56 L. ed. 568, 82 Sup. Ct. Rep. 828.
S41 U. 8*
1915.
UNIT£D 8TATBS ▼. NSW SOUTH FAHM ft H. CO.
reality merely permissible puffing or trade
talk, and that the indictment is consistent
with the hypothesis that defendants were
legitimately, and not fraudulently, engaged
in the enterprise mentioned in the indict-
ment.
United States ▼. Keitel, 211 U. S. 370,
398, 53 1m ed. 230, 244, 20^ Sup. Ct. Rep.
123; United States v. Biggs, 211 U. S. 507,
53 L. ed. 305, 29 Sup. Ct Rep. 181 ; United
States V. Patten, 226 U. 6. 525, 535, 57
L. ed. 338, 338, 44 L.R.A.(N.S.) 325, 33
Sup. Ct Rep. 141; United SUtes v. Carter,
231 U. S. 492, 58 L. ed. 330, 34 Sup. Ct
Rep. 173; United States v. Moist, 231 U. S.
701, 58 L. ed. 444, 34 Sup. Ct. Rep. 255;
United States v. Pacific & A. It: ft'NaV. Co.
228 U. S. 87, 108, 57 L. ed. 742, 749, 33
Sup. Ct Rep. 443.
Mere puffing or exagg^ ation of qualities,
usefulness, opportunities, or values of an
article of commerce, where the purchaser
gets the article intended to be purchased,
and the ralue of the article is measured
by the price paid, does not constitute the
false representations, promises, etc, de-
nounced by the statute.
Faulkner ▼. United States, 85 C. C. A.
204, 157 Fed. 841; Harrison v. United
States, 119 C. C. A. 78, 200 Fed. 665; Rey-
nolds y. Palmer, 21 Fed. 435; United
States ▼. SUples, 45 Fed. 195; Blair T.
Laflin, 127 Mass. 518.
No averment of such fecial intent to
defraud is contained in the indictment, and
the court below, in construing the indict-
ment, has held that, for aught that appears
in the indictment, the defendants were en-
gaged legitimately (which precludes fraud-
ulent intent) in the sal^e of the lands, and
has th^reby construed the indictment as
failing to charge such special intent to de-
fraud, and as being therefore insufficient
Durland v. United States, 161 U, S. 306,
313, 40 L. ed. 709, 711, 16 Sup. Ct. Rep.
508; United States v. Durland, 65 Fed.
408; United States v. Stickle, 15 Fed. 803;
Herman v. United States, 53 C. C. A. 570,
116 Fed. 350; Rudd v. United States, 97
C. C. A. 462, 173 Fed. 912; Hibbard v.
United States, 96 C. C. A. 554, 172 Fed. 66;
18 Ann. Oas. 1040; United States v. Ried,
42 Fed. 137; Post v. United SUtes, 70
L.RA. 989, 67 C. C. A. 569, 135 Fed. 9;
United States v. Woottai, 29 Fed. 704;
United SUtes v. Conrad, 156 Fed. 248;
United SUtes v. Hess, 124 U. S. 485, 31
L. ed. 517, 8 Sup. Ct. Rep. 571; Atchison,
T. ft S. F. R. Co. V. United SUtes, 95 C. C.
A. 446, 170 Fed. 250.
When an intent to defraud is a material
element in an offense, an omission to aver
inch intent as an essential part of the
specific scheme described renders the count
«0 li. ed.
insufficient, and consistent with the hy-
pothesis of innocent intent
United States v. Britton, 107 U. 8. 655,
27 L. ed. 620, 27 Sup. Ct Rep. 512; Evans
V. United SUtes, 158 U. S. 584, 594, 38
L. ed. 830, 834, 14 Sup. Ct. Rep. 934, 9
Am. Crim. Rep. 668; Fall v. United SUtes,
126 C. 0. A. 869, 209 Fed. 552; United
SUtes V. Poet, 113 Fed. 862.
The sUtute neither defines nor denounces,
but aims only to punish using the mails
in effectuating what without it would still
be schemes or artifices to defraud. If puff-
ing and trade Ulk are permissible, and
not fraudulent, aside from the sUtute,
they do not become fraudulent by reason
of the sUtute, nor is the construction of
cerUin avermenU to be mere puffing a con-
struction of the sUtute.
Stockton V. United SUtes, 46 L.RJL
(NJ3.) 936, 123 C. C. A. 530, 205 Fed.
462.
The repreeenUtion by one who desires
the erecticm of a building that the material
can be produced for a cerUin amount, in
order to induce another to contract to
erect the building for a given price, will
not sustain an action for deceit.
Enmierson v. Hutchinson, 63 HL App.
203.
SUtemenU that a business can be bought
at a bargaii^ that the place is a good one
for business, that money could be made
there, are mere expressions of opinion.
Danforth v. Cushing, 77 Me. 182.
An action for deceit will not lie lor
sUtemenU as to profiU that can be made
in the future.
Pedrick v. Porter, 5 Allen, 324.
SUtemenU by the vendor of land as to
the possibility of acquiring adjoining land,
and as to the amount of crops that could
be grown on the land, are mo'e expressions
of opinion.
Mooney v. Miller, 102 Mass. 217.
A statement that loU will soon be very
valuable, and will come into the market
soon, and be worth $2,000 each, is a mere
expression of opinion.
Lockwood V. Fitts» 90 Ala. 150, 7 So.
467.
A represenUtion by a landowner that
the land will produce a certain amount of
hay and grapes is a mere matter of opinion.
Holton V. Noble, 83 Cal. 7, 23 Pac. 58.
A sUtement by a vendor as to the title
is a mere sUUment of opinion.
Atwood V. Chapman, 68 Me. 38, 28 Am. >
Rep. 5.
An honest expression of opinion by a
vendor as to his title, though erroneous, is
not fraud.
Fitshugh V. Davis, 46 Ark. 837.
A general asserti<m of title to property
S9S
66-07
SUPREME COURT OF THE UNITED STATES.
Oct.
U not such a r^reaentation of fact as will
be a basis for a charge of fraud
Ward y. Luneen, 26 111. App. 160.
An expression of opinion as to the effect
of the contents of a deed of conveyance is
not such fraud as will defeat a contract.
Hoyt V. Bradley, 27 Me. 242.
[65] Mr. Justice MdKenna delivered
the opinion of the court:
This writ of error is directed to a de-
cision of the district court, sustaining a de-
murrer to an indictment, and is prosecuted
under the criminal appeals act, it being
contended by the government that the de-
cision involved the construction of § 216
of the Criminal Code [35 Stat, at L. 1130^
chap. 321, Comp. Stat. 1913, ( 10,386].
The opposing contention is that the court
passed only on the sufficiency of the in-
dictment as a criminal pleading, and that,
therefore, the writ of error should be dU-
missed. The contentions are repeated here,
and make the issue. They necessarily re-
quire a consideration of the indictment. It
is constituted of three counts. Their foun-
dation is § 216, supra, which, so far as
material, reads as follows: "Whoever, hav-
ing devised . • . any scheme or artifice
to defraud, or for obtaining money or prop-
erty by means of false or fraudulent pre-
tenses, representations or promises, ... I
shall, for the purpose of executing such
scheme or artifice, or attempting so to do,
place, or cause to be placed, any letter,
• • • circular, ... or advertisement,
• • . in any postofflce, ... to be sent
or delivered by the postoffioe establishment
of the United States, ..." etc.
The section is a somewhat enlarged suc-
cessor of i 6480, Revised Statutes, which
provides: "It any person having devised
• • . any scheme or artifice to defraud,
• . • shall, in and for executing such
scheme or artifice, or attempting so to do,
$9
etc.
place any letter . . .
As showing a violation of S 215, the first
count of the indictment charged the follow-
ing facts, which we state narratively: The
individual defendants are di.jctors and
stockholders of the New South Farm &
Home Company, a corporation engaged in
selling approximately 142,000 acres of land,
referred to as the Burbank-Ocala colony and
[66] the Florida-Palatka colony, situated
in Putnam, Marion, and Clay counties, Flor-
ida. They devised a scheme to defraud cer-
tain persons, who were named, and other
persons, of their money and property, with
the intention to convert the same to the use
and gain of the defendants and the corpora-
tion, by means of corre^Kmdence and com-
munid^ions through the postoffice estab-
lishment of the United States^ and by means
8t4
of oral and verbal conununications, by offer-
ing to sell to such persons, and inducing
them to purchase, certain 10-acre farms up-
on certain terms through false and fraudu-
lent representations concerning the title,
fertility, value, drainage, location, environs^
and survey of the farms, and the improve-
ments made or to be made thereon.
The representations were these: The
lands and farms were not swampy; the
largest ocean steamers operating between
New York and Jacksonville could load at
Palatka; a family could make enough on
one farm during the first year to support
itself and save money; three crops a year
could be grown; every month in the year
was a growing month, that is, some farm
or truck product could be raised during each
month of the year; the farms were sur-
rounded with orange and citrus fruit groves
and vegetable truck farms; the farms had
fine roads running through them, were high
and well drained, and, on the whole, like
the lands of Kansas, Nebraska, Iowa, and
Illinois; artesian wells werejBcattered about
on the farms or "could be obtained by go-
ing down 100 feet;" the land was divided
into 160-acre tracts; roads were being built
around each 160-acre tract and each 10-acre
farm would face on a road, and ditches were
being dug so that each farm would be
drained; many miles of fence had been
erected and hundreds of homes and many
schoolhouses had been built; the school-
houses were more than comfortably filled
with pupils, and more schools would have
to be built to take care of the rapid growth
of the colonists settling upon the farms;
comfortable [67] hotels had been built up-
on the lands and farms and improvements of
all kinds were going forward at a wonderful
rate; lumber was cheap and homes could be
built without nearly so great expense as
in most places in Florida and at about one-
half of the expense the same would cost in
the North; the Title Guarantee Company
of Jacksonville, Florida, would guarantee
the title, with which company the New
South Farm k Home Company had made ar-
rangements so that purchasers might know
that their investments were safe ; the farms
were cut over and ready to go upon at once,
and there were no timber leases upon the
lands; the defendants were not land bnikers
or speculators; the New South Farm &
Home Company owned the land outright,
the title having been approved by the best
attorneys, and anyone buying a farm could
d^>end upon securing a clear title, as the
company was selling something it owned it-
self; the farm^ were free from mosquitoes,
malaria, and insects of all kinds and were
below the frost line; the company had se-
cured telephone oonneciions with Palatka
141 U. 8*
1915.
UNITED STATES v. NEW SOUTH FARM & H. 00.
67-70
and with local exchanges at other places
(they are named) which would place every
fatrm "in direct touch with the community
at all times;" the lands and farms were
located high and dry and in a section well
drained; hundreds of people had settled on
them and at the little city of Burbank the
lands and farms had increased— doubled,
trebled, and quadrupled — in price, and the
same was true of the lands owned by the
company at Silver City, and a thousand
settlers were on the lands who could sell
them at a large profit; land selling at $30
an acre woud be worth in two years $200
and $300 per acre; well-stocked stores and
factories were located upon the lands, and
they were the best located and- the most
fertile lands in America, and Luther Bur-
bank had been arranged with tor *the ex-
clusive right for the production of certain
of his farm products;'* there would be in-
stalled a Burbank producing [68] station
cm the lands and farms, and the purchasers
of the latter would share in the profits of
the station, the director of which would be
available for the needs of the purchasers;
one could get out of a Pullman car on the
farms, use a long distance telephone, have
the daily paper, rural free delivery, and all
the comforts of home.
There were other representations of fact,
and, to give emphasis to those which we
have enumerated, it was charged that the
pictures in the publications sent out by the
defendants represented the true conditions
to be seen on the farms.
All of the representations were explicitly
repeated and charged to be false; that de-
fendants well knew them to be so, and in-
tended by them to deceive the persons to be
defrauded, and to induce such persons to
part with their money and property in the
purchase of the farms.
That the representations were made and
communicated by the defendants to the per-
sons intended to be defrauded through and
by means of oral statements, circulars,
maps, advertisements, photographs, etc., so
worded, drawn, constructed, presented, and
expressed as to deceive; but all too volumi-
nous to be set forth in the indictment, where
fore the grand jurors omitted them.
That the defendants deposited in the
United States mail at Jacksonville and Pa-
latka, in the southern district of Florida,
certain publications known as "The New
Florida" and "Ten Acres and Freedom" and
oertain other letters, prints, pamphlets,
mmgasines, and publications containing the
false representations set out above, which
were addressed to the person intended to
be defrauded, and on -which legal United
States postage had been paid.
The second count charged the defendants
•O li. ed.
I with entering into a conspiracy to commit
I the offense described in the first count, and
repeated its allegations and representations,
varied only to meet the difference in the
crime [00] charged. In other words, there
were allegations which charged that the
conspiracy was to be accomplished by the
representations enumerated in the first
count, that they were false and known to be
so, and made with the same fraudulent pur-
pose, and to be accomplished by the use of
the United States mails. Two letters from
the company, signed by defendant Seig as
president, were set out in the indictment.
The third count was also like the first in
its general charges and designated by name
the persons that were intended to be de-
frauded. The same representations were
charged to have been made "by publishing
and causing and procuring to be published
divers prints, papers, pamphlets, booklets,
circulars, and divers advertisements." The
falsity oif the representations was declared,
and that the scheme of fraud was to be ac-
complished by the use of the United States
mails. A letter was quoted.
The defendants demurred to the indict-
ment. The demurrer is a very voluminous
document and practically defies condensa-
tion. It charges that the indictment does
not, nor does any count of it, "aver and
charge any offense against the United
States," that each and every count thereof
is insufficient, in that they do not, nor does
either of them, aver the facts constituting
a scheme to defraud; that each and every
count is insufficient for repugnancy, uncer-
tainty, ambiguity, and evasiveness ; and that
each and every count is insufficient for want
of distinct and adequate specifications of
the particulars wherein the several repre-
sentations, called in the count false repre-
sentations, were false.
The demurrer then attacks each count
separately, and with much elaboration and
with repetition of the allegations of the
indictmoit sets out with particularity
wherein no offense against the United States
was charged.
The court sustained the demurrer, rest-
ing its decision [70] upon the second and
third grounds of demurrer, which, we have
seen, charged that neither the indictment
nor any of its counts averred or charged an
offense against the United States, or averred
facts which constituted a scheme to de-
fraud. It was said, "The scheme to defraud
is alleged in the first and third counts, and
the conspiracy count also sets out the same
scheme. So that if the scheme to defraud
set out in each of said counts is not such
a scheme as is punishable under the law,
the entire indictment must fail."
Describing the representations, the court
70-72
SUPREMS OOUBT OF THE UNITED STATSa
Ooi. Xbbm,
said they "are as to the quality of the land,
climate, crops to be raised, advantages to
be obtained, and promises of improvement,
etc." And further: 'There is no denial of
the facts of the ownership of the lands, al-
though there is a denial that all the titles
were perfect. Nor is there denial that the
land was worth fully as much as was to be
obtained therefor. For aught that appears
in the indictment, the lands to be obtained
were worth fully as much as was to be paid
by the parties purchasing; that the parties
engaged in the sale were legitimately en-
gaged in the sale of the lands."
The court regarded the business as legiti-
mate, and held that the statute was not
violated by puffing the qualities of the ar-
ticle sold in advertising it. In other words,
as the court expressed it, "raising the ex-
pectations of the purchaser, but giving that
purchaser value received for his money, but
not fulfilling those expectations," was not
an offense against the statute. And, fur-
ther, the court said that the deduction from
the authorities referred to by counsel "is
that the scheme must be one to defraud the.
party, or, by false promises, pretenses, etc.,
deprive him of money or property with-
out adequate value. Mere puffing or exag-
geration of qualities, usefulness, opportuni-
ties, or value of an article of commerce,
where the purchaser gets the article intend-
ed to be purchased, [71] and the value of
the article is measured by the price paid, do
not constitute the false representations,
promises, etc., denounced by the statute."
We have made these excerpts from the
opinion of the court the better to handle
the contentions of the parties, which, as we
have seen, are quite accurately opposed, the
government asserting that the court con-
strued the statute, and thereby justifying
its appeal to this court; the defendants in-
sisting the court construed only the in-
dictment as a pleading, and that therefore
this court is without jurisdiction.
We concur in the view of the government.
The court, we think, construed the statute,
and misapprehended its import. Mere puff-
ing, indeed, might not be within its mean-
ing (of this, however, no opinion need be
expressed) ; that is, the mere exaggeration
of the qualities which the article has; but
when a proposed seller goes beyond that,
assigns to the article qualities which it does
not possess, does not simply magnify in
opinion the advantages which it has, but
invents advantages and falsely asserts their
existence, he transcends the limits of "puff-
ing" and engages in false representations
and pretenses. An article alone is not
necessarily the inducement and compensa-
tion for its purchase. It is in the use to
TFbJch it may be put, the purpose it may
S06
serve; and there is deception and fraud
when the article is not of the character or
kind represented and hence does not serve
the purpose. And when the pretenses or
representations or promises which execute
the deception and fraud are false, they be-
come the scheme or artifice which the stat-
ute denounces. Harris v. Rosenberger (C.
C. A. 8th C.) 13 L.R.A.(NJ3.) 762, 76 C. C.
A 225, 145 Fed. 449; O'Hara v. United
States (C. C. A. 6th C.) 64 0. C. A. 81, 129
Fed. 551, 555; Colbum v. United States
(C. C. A. 8th C.) 139 G. G. A 136, 223 Fed.
590; Wilson v. United SUtes (C. 0. A. 2d
C.) Ill G. G. A 231, 190 Fed. 427. See
also United States ▼. Bamow, 239 U. S. 74,
ante, 156, 36 Sup. Ot. Rep. 19. Especially
is this true in the purchase of [7S] small
tracts for homes, and upon this, if the alle-
gations of the indictment are true, the de-
fendants touched every string of desire by
false statements, and sounded every note
that could excite and delude. We need not
repeat the representations; and they were
made graphic, it is alleged, by pictures and
photographs.
Indeed, if it could be admitted that the
article offered for sale and its price could
be balanced, the one against the other, the
price necessarily would be the expression
of value, and be constituted of all the at-
tributes of the article, intrinsic and extrin-
sic; and it needs no comment to show that
a 10- acre farm with the character, environ-
ments, and facilities described, its price
doubling, trebling, and quadrupling within
a year, has a seduction more powerful than
one not advancing in value, but, it may bs^
receding; that is, of swampy, not of high-
land, character, without fertility, hotds,
roads, artesian wells, citrus groves, Pull-
man cars, steamship and other facilities
which the literature of defendants describes
and the indictment alleges.
We can entertain no doubt that those em-
ploying such representations, if they are
false, have engaged in a scheme to defraud.
The defendants did not seem to be afraid
of repelling by excess, and extravagance was
even used in a personal communication. In
a letter which was set out in the indictment
it was said: "Our settlers are arriving
daily and occupying their farms. The land
is being rapidly cleared, crops are being
planted, houses erected, stores built, and, on
the whole, it is impossible for us to set forth
in a letter to you exactly how stupendous
is the work that is going on there. With-
out a question of a doubt the Florida Pa-
latka Golony is enjoying the greatest pros-
perity."
Against these considerations defendants
contend that there was, notwithstanding,
only a construction of the indictment; but
241 U. S.
1916.
UNITED STATES v. LOHBABDO.
73-76
ask thai, if we are of a different view, [73]
the case be reversed only so far as the stat-
ute was construed, and remanded for action
upon the other causes assigned for
demurrer, involving, as they say, the suffi-
ciency of the indictment as a criminal plead-
ing. The difficulty is to indicate a distinc-
tion. We can only say we have no inten-
tion to control the District Court in its
construction of the indietment, and we have
no doubt the learned court will be able to
adjust its action to this opinion. United
SUtes V. Portale, 236 U. 8. 27, 31, 69 L.
ed. Ill, 112, 36 Sup. Ct. Bep. 1.
Reversed.
Mr. Justice HcReynolds took no part in
the consideration and decision of tlus case.
UNITED STATES, Plff. in Err.»
V.
ANOELINE LOMBABDO.
(See S. C. Beporter's ed. 73-79.)
Courts — venue of crime ^ oonttnuing
otrense.
Violations of the provision of the act
of June 26, 1910 (36 Stat, at L. 826, chap.
395, Comp. Stat. 1913 ( 8817), making it
a crime for the harborer of an alien woman
for purposes of prostitution to fail to file
with the Commissioner Qeneral of Immi-
gration the statement concerning such
woman called for by that section, are com-
mitted at Washindbon, District of Colum-
bia, where that official has his office, and
are not justiciable elsewhere on the theory
that the failure to deposit the statement in
the mail is the beginning of a continuing
offense which, under the Judicial Code,
S 42, may be prosecuted either in the dis-
trict where begun or where completed, since
mailing is not filing, irithin the meaning of
the statute.
[For other cases, see Courts Y* c^ 7, bb In
Digest Bap. Ct Rep. 1908.]
[No. 830.]
Submitted AprU 10, 1916. Decided April
24, 1916.
IN EBBOB to the District Court of the
United States for the Western District
of Washington to review a judgment sus-
taining a demurrer to an indictment found-
ed on the white slave trade act. Affirmed.
See same case below, 228 Fed. 980.
The facts are stated in the opinion.
Note. — As to locality of erime committed
through the agen<^ of the Biails or of car-
Assistant Attorney <3eneral Wallaoe sub-
mitted the cause for plaintiff in error.
No brief was filed for defendant in error.
Mr. Justice HoKeniui delivered the opin«
ion of the court:
Error under the criminal appeals act (34
Stat, at L. 1246, chap. 2664, Comp. Stat.
1913, § 1704) to review a decision of the
district court for the western district of
Washington (228 Fed. 980), sustaining a
demurrer to an indictment founded on the
'Vhite slave traffic act" (36 Stat, at L. 826,
chap. 395, Comp. Stat. 1913, ( 8817).
Section 6 of that act provides that every-
one "who shall keep, maintain, control, sup-
port or harbor in any house or place, for
the purpose of prostitution, . . . any
alien woman • . . within three years
after she shall have entered the United
States . . . shall file with the Commis-
sioner (General of Immigration a statement
in writing setting forth the name of such
alien woman, . • . the place at which
Bhe is kept, and all facts as to the date of
her entry into the United States, the port
through which she entered, her age, nation-
ality, and parentage, and concerning her
procuration to come to this country, within
the knowledge of such person ; and any per-
son who shall fail within thirty days after
such person shall commence to keep, etc
. . • any alien woman, • . • to file
[75] such statement concerning such alien
woman, . . . with the Commissioner
General of Immigration, or who shall know-
ingly and wilfully state falsely, or fail to
disclose in such statement any fact within
his knowledge or beliel with reference to
the age, nationally, or parentage of any
such alien woman, ... or concerning
her procuration to come to this country,
shall be deemed guilty of a misdemeanor,
etc "
The statement is not excused because It
may have Incriminating character, but it is
provided that the person making it shall
not be prosecuted or subjected to any pen-
alty or forfeiture under any law of the
United States for or on account of any
transaction, matter, or thing concerning
which he may truthfully report in such
statement as required by the provisions of
the act
The indictment charged that one Jessie
Miloe, an alien woman and a citizen and
subject of the Kingdom of Great Britain,
had entered the United States in the month
of May, 1914, and that Angeline Lombardo,
knowing these facts, did, in a house in the
dty of Seattle, northern division of the
776.
•0 !<• ed.
noteto State v. Hudson, 19 Tf^> western district of Washington, keep, main-
' tain, oontrol, and harbor Jessie Milos f oi
67 8tY
76-78
SUPREME COUET OF THE UNITED STATES.
Oct. Tebm,
the purpose of proBtitution and for other
immoral purposes, and unlawfully, knowing-
ly, and wilfully failed to file with the Com-
missioner General of Immigration a state-
ment in writing as required by the statute,
or any statement concerning Jessie Milos.
It was alleged that the United States and
Great Britain are parties to an agreement
or project or arrangement for the suppres-
sion of the white slave traffic, adopted July
25, 1902.
There were two grounds of donurrer:
(1) Section 6 of the white slave act is un-
constitutional in that it contravenes rights
guaranteed by the 4th and 5th Amendments
to the Constitution of the United States.
(2) The court was without jurisdiction of
the subject-matter [76] as the prosecution
is in contravention of rights guaranteed by
the 6th Amendment.
The district court sustained the demurrer
on both grounds. We, however, shall con-
fine our decision to the second ground, as
that attacked the jurisdiction of the court,
in that the offense was not committed in
the district in which the indictment was
found. Passing on it the court said:
"The gist of the offense is the failure 'to
file with the Commissioner General of Im-
migration' a statement, etc. By act of
March 3, 1891, chap. 551, § 7, 26 Stat, at
L. page 1085, Comp. Stat. 1913, § 954, as
amended by act of March 2, 1895, chap. 177,
28 Stat, at L. page 780, Comp. Stat. 1913,
§ 955, the office of the Commissioner of Im-
migration was created and his office fixed
at Washington, District of Columbia. The
government contends that the offense was a
continuing one and extended from this dis-
trict to Washington, District of Columbia,
and that the filing of the statement need
not be at the office in Washington, but may
be deposited in the postoffice of the United
States, addressed to the Commissioner Gen-
eral, and this forwarding through the usual
course of mail should be considered as 'fil-
ing,' and that the failure to post within
thirty days would commence the offense,
which would be continuous. This conten-
tion cannot be reconciled with the language
employed in the a6t. The word 'file' was
not defined by Congress. No definition hav-
ing been given, the etymology of the word
must be considered and ordinary meaning
applied. The word 'file' is derived from the
lAtin word 'filum,* and relates to the an-
cient, practice of placing papers on a thread
or wire for safe-keeping and ready reference.
Filing, it must be observed, is not complete
until the document is delivered and received.
'Shall- file' means to deliver to the office,
and not send through the United States
mails. Gates v. State, 128 K. Y. 221, 28
N. E.:373^' A paper is filed ^hen it is de-
•9«
iivered to the proper official and by him re-
ceived and filed. Bouvier's [77] Law Dict^;
Hoyt V. Stark, 134 Cal. 178, 86 Am. St. Rep.
246, 66 Pac. 223; Wescott v. Eccles, 3 Utah,
258, 2 Pac. 525; Re Von Borcke (D. C.)
94 Fed. 352; Mutual L. Ins. Co. v. Phinney,
22 C. C. A. 425, 48 U. S. App. 78, 76 Fed.
618. Anything short of delivery would
leave the filing a disputable fact, and that
would not be consistent with the spirit of
the act."
The government in its argument here con-
tests the views of the district court, repeats
its contention that the offense was begun in
the state of Washington, and relies on § 42
of the Judicial Code [36 Stat, at L. 1100,
chap. 231, Comp. Stat. 1913, § 1024], sub-
stantially reproducing § 731 of the Revised
Statutes. It provides as follows:
"When any offense against the United
States is begun in one judicial district and
completed in another, it shall be deemed to
have been committed in either, and may be
dealt with, inquired of, tried, determiped
and punished in either district, in the same
manner as if it had been actually and
wholly committed therein."
The government also cites a number of
cases which it urges support the applica-
tion of the statute to the case at bar. We
are imable so to regard the cases, or to
give the statute the application contended
for. Nor does the case call for. elaborate
discussion. Indeed, it would be difficult to
add anything to the reasoning of Judge Net-
erer in the district court.
Undoubtedly where a crime consists of
distinct parts which have different locali-
ties the whole may be tf led where any part
can be proved to have been done; or where
it may be said there is a continuously mov-
ing act, commencing with the offender and
hence ultimately consummated through him,
as the mailing of a letter; or where there
is a confederation in purpose between two
or more persons, its execution being by acts
elsewhere, as in conspiracy.
It may be thkt where there is a general
duty it may be considered as insistent both
where the "actor" is and the "subject" is»
to borrow the government's apt designa-
tions, [78] as in the case of the duty of a
father to support his children; and if the
duty have criminal sanction, it may be
enforced in either place. The principle is
not applicable where there is a place ex-
plicitly designated by law, as in § 6.
The government, however, contends that
"with few exceptions every crime has e(m-
tinuity. But the law, being essentially
practical, does not regard every crime as
continuous for the purpose of jurisdiction.
. . . For practical purposes it usually
suffices to punish where the actor bq^, or
141 V. 8.
1916.
H6FARLAKD v. AMERICAN SUGAR RBF. 00.
78, 79
where the subject fuffered the intended re-
•ult.**
If these propositions be granted we do
not see that they carry us far in determin-
ing where a violation of § 6 is begun or
completed, nor do we appreciate the criti-
cism of the decision of the court below that
it ''failed to distinguish between the 'be-
ginning' and the 'completion' of the offense;
giving the words 'shall file/ etc., a meaning
so narrow as to destroy the section." But
this iH assertion. A court is constrained
by the meaning of the words of a statute.
They mark the extent of its power, and our
attention has not been called to any case
which decides that the requirement of a
statute, whether to secure or preserve a
right or to avoid the guilt of a crime, that
a paper shall be filed with a particular offi-
cer, is satisfied by a deposit in^the postoffice
at some distant place. To so hold would
create revolutions in the procedure of the
law and the regulation of rights. In in-
stances it might, indeed, be convenient; in
others, and most others, it would result in
conf usioa and controversies ; and we would
have the clash of oral testimonies for the
certain evidence of the paper in the files.
We hesitate, in order to accommodate the
venue of a particular offense, to introduce
such confusion. And would it not, besides,
in particular cases, preclude the possibil-
ity of a conviction, putting evidence entire-
ly in the hands of the defendant? [70]
And there are other considerations. If de-
positing in the postoffice of the statement
prescribed be required by the statute, it, of
course, would satisfy the statute, but to
what instant of time would it be referred
and at what risk the time or delays of
transportation T
There need not be a prolonged embarrass-
ment in the prosecution of offenders, as the
government fears. If § 6 is deemed defect-
ive it can be corrected by legislation.
Judgment affirmed.
WILLIAM N. McFARLAND, Supervisor of
Public Accounts of the State of Louisiana
and E» Officio Inspector of Sugar Refin-
ing of the State of Louisiana, et al.,
Appts.,
V.
AMERICAN SUGAR REFINING COM-
PANY.
(See S. C. Reporter's ed. 79-87.)
Injunction — a^inst enforcement of
unconstitutional statute — clean
bnnds.
1. Unlawful practices of a sugar re-
fining company in the conduct of its busi-
aess cannot defeat its right to maintain a
•• li. ed.
bin in equitt to restrain the threatened en-
forcement of La. Acts 1916, No. 10, regulat-
ing the business of sugar refining, which,
it asserts, violates its rights under the
Federal Constitution.
[ITor other cases, see Injanctlon. I. j ; Equity,
III., in Digest Sup. Ct. 1908.]
Constitutional law — equal protection
of the laws — classification ^ regulat-
ing sugar refining.
2. Defining the business of sugar re-
fining as that of "any concern that buys
and refines raw or other sugar exclusively,
or that refines raw or other sugar from
sugar taken on toll, or that buys or refines
more raw or other sugar than the aggre-
gate of the suffar produced by it from
cane grown and purchased by it," as is
done b^ § 15 of Louisiana Acts 1915, No.
10, which subjects to drastic regulation the
business of sugar refining, renders the stat-
ute repugnant to the equal protection of
the laws clause of U. S. Const., 14th Amend.,
as producing a classification which, if it
does not confine itself to one particular
concern, is at least arbitrary beyond pos-
sible justice.
[For other cases, see Constitutional Law, IV.
a. 5, in Digest Sup. Ct. 1008.]
Constitutional law ~ equal protection
of the laws ^ creating presumption
of guilt.
3. A state cannot, consistently with
the equal protection of the laws clause of
U. S. Const., 14th Amend., create, as is
attempted b^ Louisiana Acts 1915, No. 10,
a presumption of participation in a for-
bidden monopoly or* combination from the
systematic payment in Louisiana by a
person engaged in sugar refining within
that state of a less price for sugar than
he pays in any other state, nor a presump-
tion that the closing or keeping idle of a
sugar refinery for more than one year was
for the purpose of violating that statute
or the laws against monopolies.
(For otlier cases, see Constitutional Law, IV.
a, 8, in Dlfcest Sup. Ct. 1008.]
Statutes — invalid in part.
4. The unconstitutionality of the classi-
fication attempted in Louisiana Acts 1915,
No. 10, regulating the business of sugar
Note.-— On the power of legislature to en-
act a prima facie rule of evidence for crim-
inal cases — see note to Banks v. State, 2
L.R.A.(N.S.) 1007.
As to the validity of class legislation,
rnerally — see notes to State v. Goodwill,
L.R.A. 621, and State v. Loomis, 21
L.R.A. 789.
As to constitutional equality of privileges,
immunities, and protection, generally — see
note to Louisville Safety Vault & T. Co. v.
Louisville A N. R. Co. 14 L.R.A. 579.
Generally, on statutes part valid and part
invalid — see notes to Titusville Iron Works
V. Keystone Oil Oo. 1 IaR.A. 363, and Fay-
ette County V. People's k D. Bank, 10 L.R.A.
196.
On illegal trusts under modern anti-trust
laws — see note to Whitwell v. Continental
Tobacco Co. 04 L.R.A. 689.
%%%
8UPREMS OOUBT OF THE UNITED STATES.
Ooi. Tom,
refining, and of the provisioAe of that
statute creating presumptions of guilt, re-
?uire8 that the act fall as a whole.
For other cases, see Statates, I« d, 4, in
Digest Bulk Ct. 1908.]
[No. 847.]
Argued April 11 and 12, 1916. Decided
April 24, 1916.
APPEAL from the District Court of the
United States for the Eastern District
of Louisiana to review a decree enjoining
the threatened enforcement of a state stat>
ute regulating the business of sugar refin-
ing. Afiirmed.
See same case below, 229 Fed. 284.
The facts are stated in the opinion.
Messrs. Donelson Caffery and Harry
Gamble argued the cause, and, with Mr.
Daniel Wendling and Mr. Rufl3n Q. Pleas-
ant, Attorney General of Louisiana, filled a
brief for appellants:
Can one whose continuing conduct has
necessitated the enactment of a police regu-
lation come into equity to assail that regu-
lation?
National Mercantile Co. ▼. Keating, 218
Fed. 479; Danciger ▼. Stone, 187 Fed. 853.
The hands of the complainant are un-
clean.
Danciger ▼. Stone, 187 Fed. 862; Dela-
ware, L. & W. R. Co. ▼. Frank, 110 Fed.
689; American Biscuit & Mfg. Co. v. Klotz,
44 Fed. 726; McConnell v. Camors-McCon-
nell Co. 162 Fed. 332; Wheeler v. Sage, 1
Wall. 618, 17 L. ed. 646; BarUe v. Nutt,
4 Pet. 184, 7 L. ed. 825; Pittsburgh, C. C.
& St. L. R. Oo. V. CrothersTille, 59 Ind. 330,
64 N. E. 914.
For an injunction to issue in order that
a monopolist may continue to ply his trade
goes counter to every idea of justice.
Foster, Fed. Pr. 5th ed. ( 285; Anony-
mous, Cary, 12 ; Hanauer v. Doane, 12 Wall.
349, 20 L. ed. 442.
Equity will not lend itself to a perpetu-
ation of an unjust advantage.
16 Cyc 148; Larschied v. Kittell, 142
Wis. 172, 125 N. W. 442, 20 Ann. Cas. 576 ;
Sanders ▼. Cauley, 52 Tex. Civ. App. 261,
113 S. W. 560.
Equity is not bound by forms in passing
on die question of unclean hands.
Chute ▼. Wisconsin Chemical Co. 185
Fed. 118; Creamer v. Bivert, 214 Mo. 473,
113 S. W. 1118; Moring v. Privott, 146 N.
C. 558, 60 S. E. 509 ; United States v. Work-
ingmen's Amalgamated Council, 26 L.R.A.
158, 4 Inters. Com. Rep. 831, 54 Fed. 994.
Sugar planters can be exempted from the
regulation of sugar refining, under the equal
proteeti<m clause of the Oonstitution.
000
St John V. New York, 201 U. 8. 638, 50
L ed. 897, 26 Sup. Ct Rep. 554, 5 Ann.
Cas. 909; Cox v. Texas, 202 U. S. 447, 60
L. ed. 1099, 26 Sup. Ct Rep. 671; Keokes
ConsoL Coke Co. ▼. Tayk>r, 234 U. S. 224, 58
L. ed. 1288, 34 Sup. Ct Rep. 856; American
Sugar Ref. Co. v. Louisiana, 179 U. S. 89,
45 L. ed. 102, 21 Sup. Ct Rep. 43.
The rule of evidence is the same as that
upheld in Meeker v. Lehigh Valley R. Co.
236 U. S. 412, 59 L. ed 645, P.U.R.1915D,
1072, 35 Sup. Ct Rep. 328, esUblishing
that, as to parties subject to the jurisdic-
tion of the Interstate Commerce Commis-
sion, its findings should be prima facie evi-
dence of the facts stated in the Commis-
sion's order. See also Jones ▼. Brim, 165
U. S. 180, 41 L. ed. 677, 17 Sup. Ct Rep.
282, 1 Am. Neg. Rep. 547.
It is reasonable to classify a prima facis
monopolists, those who systematically pay
less for a commodity in one state than in
other states.
Central Lumber Co. v. South Dakota, 226
U. S. 159, 57 L ed. 169, 33 Sup. Ct Rep.
66; State ex rel. Young v. Standard Oil Ca
111 Minn. 85, 126 N. W. 527; State v. Fair-
mont Creamery Co. 163 Iowa, 702, 42
L.R.A.(N.S.) 821, 133 N. W. 895; Germsa
Alliance Ins. Co. v. Hale, 219 U. S. 307, 66
L. ed. 229, 31 Sup. Ct Rep. 246; Keokee
ConsoL Coke Co. v. Taylor, 234 U. S. 224,
58 L. ed. 1288, 34 Sup. Ct. Rep. 856; Car-
roll V. Greenwich Ins. Co. 199 U. S. 401, 50
L. ed. 246, 26 Sup. Ct Rep. 66.
This classification was not arbitrary.
Central Lumber Co. v. South Dakota, 226
U. S. 159, 57 L. ed. 168, 33 Sup. Ct Rep.
66 ; International Harvester Co. v. Missouri,
234 U. S. 199, 58 L ed. 1276, 52 LJU.
(N.S.) 625, 34 Sup. Ct. Rep. 859; Carroll ▼.
Greenwich Ins. Oo. 199 U. S. 401, 50 L ei
246, 26 Sup. Ct Rep. 66; Bosley v. Me-
Laughlin, 236 U. S. 385, 59 L. ed. 632, 35
Sup. Ct Rep. 345; Missouri P. R. Co. T.
Omaha, 235 U. S. 121, 59 L. ed. 157, 35
Sup. Ct Rep. 82; Mallinckrodt Chemical
Works V. Missouri, 238 U. S. 41, 59 L. ed.
1192, 35 Sup. Ct. Rep. 671; German Alli-
ance Ins. Co. V. Lewis, 233 U. S. 389, 416,
58 L ed. 1011, 1024, LJtA.1915C, 1189,
34 Sup. Ct. Rep. 612; Keokee Consol. Coki
Oo. V. Taylor, 234 U. 8. 224, 58 L. ed. 1288,
34 Sup. Ct. Rep. 856; Singer Sewing Maeh.
Co. V. Brickell, 233 U. S. 304, 58 L ed. 974,
34 Sup. Ct. Rep. 493; Hammond Packing
Co. ▼. Montana, 233 U. S. 331, 58 L ed.
985, 34 Sup. Ct Rep. 596; Atlantic Cosst
Line R. Co. v. Georgia, 234 U. S. 280, 58
L. ed. 1312, 34 Sup. Ct Rep. 829; Kanssi
City Southern R. Co. v. Anderson, 233 U. 8.
325, 58 L. ed. 983, 34 Sup. Ct Rep. 5M;
Missouri, K. & T. R. Oo. v. Cade, 233 U. S.
647, 58 L. ed. 1137, 34 Sup. Ct Rep. 678;
141 U. 8.
ItlS. UoFABLAKD v. AHEBICAN SUGaB REF. CO.
diMapeake ft 0. S. Co. t. Conle;, 230 U. S American Live Stock Commiasion Co. t.
S13, 67 L. td. 1587. 33 Sup. Ct Rep. 685; Chicago Live Stock Excb. 143 HI. 210, 18
Botoithal T. Nov York, 22S U. S. 260, 67 LJLA. ZOO, 30 Am. St. Kep. 398, 32 N. E.
L. ed. 212, 33 Sup. Ct. Rep. 27, Ann. Cu. 274; ladd t. Southern Cotton Press & Mfg.
U14B, 71; Citisena' Teleph. Co. v. Co. B3 Tex. 172; EI7, Monopcliea k Tniats,
Puller, 229 U. B. 322, S7 L. ed p. 228; Vut Hise, aiiiceDtrB,tioii ft Control:
1»>7, 33 Sup. Ct Kep. 833; Travellen' MonUgue, Truste, p. 183; Pipe Line Cases
bu. Co. T. ConnecUcut, 1S5 U. 5. 364, (United Statee t. Ohio Oil Co.) 234 U. S.
44 L. ed. 949, 22 Sup. Ct. Rep. e73i King v 661, Gg L. ed. 14T0, 34 Sup. Ct. Rep. 956;
Hullins, 171 U. S. 404, 436, 43 L. ed. 214, Eddr, CombiuAtioDs, gS 1046, 1049; Colum-
226, 18 Sup. Ct. Rep. 925; Consolidated bian Athletic Club t. State, 143 Ind. 98, 2S
Goal Co. V. lUiuoiB, 185 U. S, 203, 46 L. ed LJLA. 727, G2 Am. St. Rep. 407, 40 N. E.
872, 22 Sup. Ct. Rep. 616; McLean t 914) Crowlej t. Chriatenaen, 13T U. S. 86,
Arkansai, 211 U. S. 539, 63 L. ed. 316, 2B 34 L. ed. 620, 11 Sup. Ct Rep. 13; Leeper t.
Bup. Ct. Rep. 20S; New York, N. H. ft H. Texas, 139 U. S. 468, 36 L. ed. 227, 11 Sup.
B. Co. T. New York, 165 U. S. 628, 41 L. Ct Rep. 677; Re Kemmler, 136 U. S. 436,
•d. 863, 17 Sup. Ct Rep. 418; Dow v. Bel. 34 L. ed. 619, 10 Sup. Ot. Rep. 930.
delman, 126 U. S. 680, 31 L. ed. 841, 2 Summary proceu is not riolatiTe of due
Inters. Com Rep 56, 8 Sup. Ct Rep. 1028; proceae of law.
Postal Teleg. Cable Co. v. Adams, 156 U. S. Iowa C. R. Co. t. Iowa, 160 U. S. 3S9, 40
•88, 39 L. ed. 311, 5 Intera. Com. Rep. 1, L. ed. 467, 16 Sup. Ct. Rep. 344; Louiaville
16 Sup. Ct. Rep. 268, 360; Magoun t. Illin- ft N. R. Co. t. Schmidt, 177 U. 5. 230, 44
OU Truat ft SaT. Bank, 170 U. S. 283, 42 L. ed. 747, 20 Sup. a. Rep. 620; Standard
L. ed. 1037, 18 Sup. Ct Rep. 694; Baccua Oil Co. t. Miaaouri, 224 U. 8. 287, 56 L. ed.
T. Louisiana, 232 U. S. 334, 68 L. ed. 627, 769, 32 Sup. Ct Rep. 406, Ann. Cas. 1913D,
M Sup. Ot. Rep. 439; Quong Wing t. Kirk- 938; Hnrtado *. California, 110 U. 8. 518,
Mdall, 223 U. S. 69, 66 L. ed. 360, 32 Sup. 28 L. ed. 232, 4 Sup. Ct Rep. 11], 292;
Ct Rep. 192; Mutual Loan Co. v. Martell, Uugler t. Kansas, 123 U. S. 623, 31 L. ed.
222 U. S. 233, G6 L. ed. 178, 32 Sup. Ct 205, 8 Sup. Ct R^. 273; Spalding t. Pree-
Rep. 74, Ann. Cas. 1913B, 529; Miller t. ton, 21 Vt 9, 60 Am. Dec. 68; Lanton v.
Wilson, 236 U. S. 373, 59 L. ed. 628, LJLA. Steele, 162 U. S. 133, 38 L. ed. 386, 14 Sup.
1915F, 829. 35 Sup. Ct. Rep. 342; Jefire; Ot. Rep. 499.
Mfg. Co. T. Blagg, 235 U. S. 671, 69 L. ed. A reguUtion pro*iding that a public util-
U4, 35 Sup. Ct. Rep. 167, 7 N. C. C. A. 670; it; ahall not be capriciouatj discontinued ia
Pullman Co. v. Knott, 235 U. S. 24, 69 L. ed. valid.
110, 36 Sup. Ct. Rep. 2. Eddj, Combinations, S 1048; Montague,
Act No. 10 should not be nnllLfled if in- Trusts, p. 197.
valid in an uneaaential particular. A statute r^ulating a monopollied in-
Lewia's Sutherland, Stat Oonatr. 2d ed. ) luatr; is not in conflict with a constitution-
29P; Tieman t. Rinker, 102 U. B. 123, 26 l1 prohibition of mo'.opoliea.
L. ed. 103; Guinn v. United States, 238 U. Carroll t. Greenwich Ina. Co. 199 D. S.
8. 347, 69 L. ed. 1340, L.RJ1.1916A. 1124. M6, 50 L. ed. 246, 26 Sup. Ct Rep. 88.
^ ^?n^*.,^?; V'-J-:"'^'^ !; ^^k.l M'- -»""*» M- Beck argued the cau«,.
Campbell 230 U. S^ 637. 67 L ed. 1610, ^^ ^j^, „„,„ ^ ^^ W. Carroll, George
«8up«1^p«^brandV.^kV^^^ '"^ ''1 ' ''"' ^'J'^'""^' ■ t
... .. „ « . . .. « ._ The obieotion that oomplainant cornea
Michigan R. Commiasion, 231 U. 8. 467, 68 . ^ „-.t , _ , . l..,j j ■ .1. „
T J*o,n ,..0... r.. T,„ ,=0. oJ nto court With unclean hands, and 18 there-
L. ed. 310, 34 Sup. Ct Rep. 162; Singer
ij barred from asking relief from the e
>M!.» L. rf. 971, 34 Sap. Ct. R.p. 1.3 ,„„, „j „„„„j
Tbe« I. »o d«...I of d«. proca. ol l.w, Liv.rpocl t L t O. lu. Co. y. Ctonl., 88
cr,r uv^° '"'•""■ "^ " '*" ;= c."c.\Xo' ^•d.'s.rxisf ..'S
Oentral Lumber Co. t. South Dakota. 228 '"Pend'^t Order of OwU, 136 C. C. A. 268,
U, 8. 157, 57 I* ed. 164, 33 Sup. Ct Rep. '20 Fed. 862; Smyth t. Am«, 168 U. 8.
Mi Munn t. lUinoU, 94 U. 8. 113, 24 L. IM. 42 L- ed. 819, 18 Bup. Ct. Re^). 418;
•d. 77; Braaa v. North Dakota, 153 U. 8. Sx parts Young, 208 U. S. 123, 164, 166, 52
•01, 38 L, ed. 767, 4 Intera. Com. Rep. 870, '^. ed. 714, 730, 731, 13 L.RJ,.(N.S.) 932,
14 Sup. Ct. Rep. 867; German Alliance Ina. !8 Sup. Ot Rep. 441, 14 Ann. Caa. 764;
Co. T. Lewis, 233 U. 8. 389, 58 L. ed. 1011, Cleveland t. Cleveland City R. Co. 194 V.
L.R.A.1016C. 1189, 34 Bup. Ct Bep. 61S; tJ. 617. 631. 48 L. ed. 1102, 1106, 24 Su-q.
•• I., ed. *^^
80-82
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
Ct. Rep. 756; Wadley Southern R. Co. v.
Georgia, 235 U. S. 651, 662, 59 L. ed. 405,
411, P.U.R.1915A, 106, 35 Sup. Ct. Rep.
214.
Sugar refineries are not public utilities;
the business of refining sugar is not affected
with a public interest.
Cooley, Const. Lim. 6th ed. p. 736;
Freund, Pol. Power, § 373, p. 381; Munn ▼.
Illinois, 94 U. S. 139, 140, 24 L. ed. 89;
People V. Budd, 117 N. Y. 1, 5 L.R.A. 559, 15
Am. St. Rep. 460, 22 N. E. 670, 143 U. S.
532, 533, 544, 540-551, 36 L. ed. 251, 252,
255, 257, 258, 4 Inters. Com. Rep. 45, 12
Sup. Ot. Rep. 468; Brass v. North Dakota,
153 U. S. 391, 404, 38 L. ed. 757, 761, 4
Inters. Com. Rep. 670, 14 Sup. Ct. Rep. 857;
Millett V. People, 117 111. 294, 57 Am. Rep.
873, 7 N. £. 631; German Alliance Co. v.
Uwis, 233 U. S. 406, 407, 412, 414-416, 428,
429, 58 L. ed. 1019, 1020, 1022-1024, 1028,
1029, L.R.A.1915C, 1189, 34 Sup. Ct. Rep.
612.
The statute denies to complainant the
equal protection of the laws, and therein
violates the 14th Amendment in that, while
such act purports to regulate the business
of sugar refining, it unreasonably exempts
from such regulation certain classes of
sugar refiners.
Connolly v. Union Sewer Pipe Co. 184 U.
S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 431 ;
Cotting V. Kansas City Stock Yards Co.
(Cotting V. Godard) 183 U. S. 79, 46 L.
ed. 92, 22 Sup. Ct. Rep. 30 ; Gulf, C. A S. F.
R. Co. V. Ellis, 165 U. S. 150, 159, 41 L. ed.
666, 669, 17 Sup. Ct. Rep. 255 ; International
Hanester Co. t. Missouri, 234 U. S. 199,
215, 58 L. ed. 1276, 1283, 52 L.R.A.(N.S.)
525, 34 Sup. Ct. Rep. 859.
The exemption invalidates the entire act.
Connolly v. Union Sewer Pipe Co. 184
U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep.
431.
The act works a deprivation of the liberty
and property of complainant, and a denial
to it of the equal protection of the laws
in creating an unreasonable presumption of
guilt.
Re Opinion of Justices, 208 Mass. 619, 84
L.R.A.(N.S.) 771, 94 N. E. 1044.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is a bill in equity brought by a
New Jersey corporation, the i^pellee,
against the inspector of sugar refining, the
governor, and the attorney general of
Louisiana, to prevent the enforcement of
act No. 10 of the extra session of the gen-
eral assembly of that state for 1915. The
grounds of relief are the commerce clause
and the 14th Amendment of the Constitu-
tion of the United States.
90S
The plaintiff was granted a preliminary
injunction by three judges in the district
court, and the defendants appealed. 229
Fed. 284.
A summary of the statute is as follows:
The business of refining sugar is declared
to be impressed with a public interest "by
reason of the nature and by reason of the
monopolization thereof," and on that foot-
ing the regulations are made. After pro-
viding for elaborate reports and inspection
of books by the inspector, the act imposes
for the benefit of the inspection fund a tax
of i cent for every 350 pounds of granulated
[81] sugar made. It then makes it unlaw-
ful to buy sugar on an eo? parte test of qual-
ity, etc, and proceeds to author use the in-
spector to make such reasonable regulations
not only concerning that, but affecting any
branch of the business of sugar refining, as
he may deem proper and as may be con-
ducive to the public interest, and to the
prevention of monopoly in the business, or
to the protection of the public from its
consequences. Then come the provisions
chiefly in issue here. By § 7 **any person
engaged in the business of refining sugar
within this state who shall systematically
pay in Louisiana a less price for sugar than
he pays in any other state shall be prima
facie presumed to be a party to a monopoly
or combination or conspiracy in restraint
of trade and commerce, and upon conviction
thereof shall be subject to a fine of $500 a
day for the period during which he is ad-
judged to have done so;" his license to do
business in the state is to be revoked, and
any foreign corporation (such as the plain-
tiff is) is to be ousted from the state and
its property sold. If irreparable injury to
the public interest is shown in such a ease,
the court may appoint a receiver at any
stage of the proceedings, etc. By § 8, if
shown by affidavit or otherwise, either m
limine or after trial, that any refinery has
been closed or kept idle for more than one
year, it shall be presumed to have been
done for the purpose of violating this act or
the laws against monopoly, etc., and if the
counter evidence does not rebut the pre-
sumption, the court shall order the owner
to sell the refinery within six months, and,
if that is not done, shall appoint a re-
ceiver to do it within twelve months. la
computing the year of idleness any plant
shall be treated as idle that has not been
operating bona fide. By § 9 in suits for
ouster, etc., upon showing by the state that
the monopoly, etc., are detrimental to the
public welfare, an injunction may be issued
or a receiver appointed, after a hearing,
subject to an appeal returnable [82] within
five days, to be determined within forty
days, etc By § 10 a fine of from $50 to $2,-
S41 V. 8.
1915.
MoFARLAND v. AMERICAN SUGAR RBF. CO.
82-84
500 a day is imposed for yiolationB of the
aet not otherwise provided for, or of any of
the regulations promulgated by the inspec-
tor. By § 11, in suits under the act, books,
letters, and other documents, '*or apparent
copies thereof," of the defendant, shall be
given effect as being what they purport to
be and "as establishing the facts carried on
their face" unless sufSciently rebutted, upon
proof of their having been in the possession
or control of the defendant; and any re-
port of any legislative committee of the
state, or of the Senate or House of Repre-
sentatives of the United States, or of any
bureau-, department,* or oommission acting
under the authority either of the state or
of the Senate or the House of Representa-
tives of the United States, and the records
of any court of any state, or of the United
States, are made prima facie evidence of
the facts set forth therein, subject to re-
buttal. In conclusion, by § 15 the business
of refining sugar is defined to be "that of
any concern that buys and refines raw or
other sugar exclusively, or that refines raw
or other sugar from sugar taken on toll, or
that buys or refines more raw or other sugar
than the aggregate of the sugar produced by
it from cane grown and purchased by it."
Besides the allegations that bring the
plaintiff within the purview of the act, the
claims of the protection of the Constitu-
tion, and the invocation of the principle
of £x parte Young, 209 U. S. 123, 52 L.
ed. 714, 13 LJl.A.(N.S.) 932, 28 Sup. Ct.
Rep. 441, 14 Ann. Cas. 764, for equitable
relief,' the bill sets forth some facts that
throw special light upon the case. First,
for the bearing of § 8, it shows that former-
ly the plaintiff purchased a consolidated
refinery called the Louisiana Refinery, in-
creased its capacity to 2,500,000 pounds
daily, and worked it until 1909. It then
built at a cost of about six million dollars
a new refinery at Chalmette, with a daily
melting capacity of 3,000,000 pounds, since
increased to 3,500,000. It then closed the
Louisiana [83] Refinery, as it could not dis-
tribute from New Orleans more refined
sugar than could be made at Chalmette.
The machinery of the Louisiana Refinery is
comparatively antiquated and could not be
operated economically, although, in case of
the destruction of the Chalmette plant, it
could be used as a substitute at consider-
able expense and after some delay.*
As to the presumption created from the
systematic paying in Louisiana a less price
for sugar than is paid in any other state,
the bill alleges that the plaintiff purchases
on an avefage< less than one half of the
Louisiana sugar crop, of which half over a
third is shipped as bought, to the plaintiff's
northern refineries, so that not much over
•0 Ii. ed.
80 per cent is nielted at CSialmette. In fact,
only a comparatively small portion of the
plaintiff's meltings in Louisiana is of sugar
produced in Louisiana, the remainder having
been imported. The chief port for the re-
ceipt of raw sugar imported is New York,
at or near which there are seven large re-
fineries now in operation. The Louisiana
sugar customarily has been brought on the
market in November and December, during
which months it is pressed for sale in
amounts far in excess of the requirements
of all the refineries in the state. Pur-
chasers therefore had either to ship a part
north, or to store it, with consequent loss
from deterioriation and in weight, interest,
and cost of storage and insurance, and at
the risk of a decline in the market. These
elements necessarily affect the price, which
cannot be higher than that in the ultimate
market, less the cost of transportation, and
which has been approximately that. Fur-
thermore, the period of storage is a time
when the market for raw sugar generally
declines, and the price of refined sugar
follows that of raw, to the refiner's loss.
Formerly a large part of the sugar manu-
factured in Louisiana by the plaintiff was
sold in the Middle West and in Minnesota,
Iowa, the Dakotas, etc., and it was to meet
[84] that market that the Chalmette refin-
ery was built. But the great and rapid in-
arease in the production of beet sugar,
which now forms one sixth of all the sugar
consumed in the United States and is sold
at prices below those of cane sugar, has
driven the plaintiff out of those markets to
a great extent. The result frequently has
been that the plaintiff has derived little or
no advantage from the purchase of Louisi-
ana sugar, even when bought at a less price
than that in New York on the same day.
The bill also shows fully that the plaintiff
melts solely on its own account, so that its
only contact with the public is as a buyer
of raw and a seller of refined sugar, and its
business is affected with a public interest
not otherwise than as any other business
is, according to its importance and size.
It also shows that much the greater part
of its Chalmette conunerce, both in purchase
and sale, is foreign or among the states.
There are other allegations besides those
that we have summed up, but enough has
been stated to disclose the plaintiff's case.
The answer alleges that the plaintiff is
a monopoly and combination in restraint
of trade in buying, refining, and selling
sugar throughout the United States, and
completely controls the sugar trade in
Louisiana, and sets forth a long series of
letters' thought to show efforts to obtain
and keep such control. It obliquely inti-
mates that the plaintiff can fix pri'^
84-87 SUPREME COURT OF THE UNITED STATE& Cot. Tbuc,
oocasion even in the New York market, ad- prevent it from assarting them in the only
mitted to be the ruling one in the United practicable and adequate way.
States. It alleges that suits have been [86] The statute bristles with severities
brought against the plaintiff by sugar plant- that touch the plaintiff alone, and raises
ers, under the Sherman act [26 Stat, at L. many questions that would have to be an-
209, chap. 647, Comp. SUt. 1913, § 8820], swered before it could be sustained. We
for a total of near $200,000,000, and that deem it sufficient to refer to those that were
after the exposure of the plaintiff's crimi- mentioned by the district court: a classifl-
nality in a suit by the United States that oation which, if it does not confine itself to
seems to have come to nothing, this law the American Sugar Refinery, at least is
was passed. All of the foregoing, the main arbitrary beyond possible justice, and a cre-
portion of the answer, is offered as ground ation of presumptions and special powers
for denying to the plaintiff any equitable against it that can have no foundation ex-
relief, cept the intent to destroy. As to the class-
In the alternative, if the plaintiff has a ification, if a powerful rival of the plain-
standing in [86] equity, the answer denies tiff should do no refining within the state,
the plaintiff's explanation of the idleness of it might systematically pay a less price for
the Louisiana Refinery and avers that the sugar in iLouisiana than it paid elsewhere
statement that it buys less than half the with none of the consequences attached to
Louisiana crop is deceptive, and that it doing so in the plaintiff's case. So of any-
bnys 70 per cent of the raw sugar sold to one who purchases but does not refine. So
refiners. It alleges that the shipping of raw of any concern that does not buy and refine
sugar North is due to artificial conditions more sugar "than the aggregate of the sugar
created by the plaintiff, and that but for produced by it from cane grown and pur-
them the whole would be "handled locally." chased by it," as easily might happen with
It also alleges that the difference .between a combination of planters, such as the an-
the Louisiana and the New York price has swer gives us to understand has been at-
been made less by the plaintiff since 1911, tempted heretofore.
in order to prevent a repetition of the one As to the presumptions, of course the
successful combination made by the plant- legislature may go a good way in raising
ers. Finally it alleges that the shipments one or in changing the burden of proof, but
to New York arrive when there is no sugar there are limits. It is "essential that there
on hand, or when the first sugar from Cuba shall be some rational connection between
is coming in, and enable the plaintiff to in- the fact proved and the ultimate fact pre-
flnence downward the price of the Cuban sumed, and that the inference of one fact
sugar that it needs. Most of the allega- from proof of another shall not be so un-
tions of the bill are denied, and it is said reasonable as to be a purely arbitrary man-
that the rush to sell in November and De- date." Mobile, J. & K. C. R. Co. ▼. Tumip-
cember would have found a market but for seed, 219 U. S. 35, 43, 55 L. ed. 78, 80, 32
the plaintiff's wrongful deeds. L.R.A.(N.S.) 226, 31 Sup. Ct. Rep. 136,
The answer is signed by the attorney gen- Ann. Cas. 1912A, 463, 2 N. C. C. A. 243.
eral of the state; and if he were authorized The presumptioii created here haa no rela-
to interpret the meaning of the other voice tion in experience to general facts. It has
of the state heard in act No. 10, would seem no foundation except with tacit reference to
to import that the latter was a bill of pains the plaintiff. But it is not wiUiin the prov-
and penalties disguised in general words, ince of a legislature to declare an individual
For the first division of the answer shows guilty or presumptively guilty of a crime,
that the plaintiff is the only one to whom ^^ ^« statute had said what it was argued
the act could apply, and that the statute *^»* it means, that the plaintiff's business
was passed in view of the plaintiff's con- ^" f ^u^^ with a public mterest by rca-
J i. A i. xi. Ti. « A.U son of the plaintiff's monopolixmg it, and
duct, to meet it. It is upon the assump- ., . ,. , *^ *i. «i«:«i.:ir fu^.,!^ i^ «•;«.
i.i # XI- 1 xi. # X XI- X XV X • that therefore the plaintiff should be prima
tion of the latter fact that the argument is ^^.^ presumed guilty upon proof [87] that
pressed that the plaintiff has no standmg .^ ^^ carrying on business as it does, we
in equity, since it made the legislation g^ppose that no one would contend that the
necessary. If the connection were omitted, plaintiff was given the equal protection of
it would be so much the worse for the con- ^j^^ j^ws. We agree with the court below
stitutionality of the act. We deem it that the act must fall as a whole, as it
enough to say that neither that supposed falls in the sections without ^hich there is
connection nor the general intimations of no reason to suppose that it would have
the plaintiff's wickedness in the answer de- been passed.
prJve it of its constitutional rights, or Decree affirmed*
004 S«l 17* ^
1015.
NORTHERN P. R. CO. v. WAIX.
87
NORTHERN PACIFIC RAILWAY COM-
PANY, Plff. in Err.,
V.
R. P. WALL, as Administrator of the
Estate of R. J. Wall, Deceased.
(See S. C. Reporter's ed. 87-98.)
Error to state c»art — Federal qnea*
tion — how raised.
1. The question whether proper effect
was given to the interstate commerce act
of February 4, 1887 (24 SUt. at L. 379,
chap. 104, Comp. Stat. 1913, § 8563), and
its amendments, in interpreting a stipula-
tion, in a bill of lading for an interstate
shipment requiring notice of claims for
damages to be given to the carrier's officers
or station agents as excluding officers or
station agents of connecting carriers, — is
fairly presented, so as to sustain a writ
of error from the Federal Supreme Court
to review a judgment of the highest state
court adjudging the stipulation to be no
defense to the initial carrier when sued
for injuries to the shipment, being unrea-
sonable and inoperative, because no officer
or agent primarily employed by the initial
carrier was accessible at destination, where
a through bill of lading was issued under
the Federal legislation, the pleadings show
that its application was invoked, and in
the answer, as also in the instructions given
at the defendant carrier's request, there
was a distinct assertion that notice was
not given to any officer or station agent of
the defendant, or to any officer or station
agent of the connecting carrier, which
means that the defendant was proceeding
upon the theory that the stipulation, when
read in connection with the Federal stat-
utes, contemplated and recognized that no-
tice to an officer or agent of the connect-
ing carrier would suffice.
[For other cases, see Api>eal and Error, 116^
1248, in Digest Sup. Ct. 1908.1
Carriers — notice of claim — connect-
ing carriers.
2. Notice to an officer or station a^ent
of the connecting carrier at final destina-
tion must be deemed to satisfy the re-
quirement of a stipulation in a through
bill of lading for an interstate shipment of
cattle, issued by the initial carrier, that
the shipper, as a condition precedent to his
right to recover for any injury to the cattle
while in transit, shall give notice in writ-
ing of his claim to some officer or station
agent "of said company" before the cattle
are removed from the place of destination
or mingled with other stock, in view of
the Carmack amendment of June 29, 1906
(34 Stat, at L. 584, chap. 3591, Comp.
Stat. 1913, § 8563), under which the bill
of lading was issued, making the connect-
ing carrier the agent of the receiving car-
rier for the purpose of completing the
transportation and delivering the property,
and of a further stipulation in the bill of
lading that its terms and conditions shall
inure to the benefit of any connecting car-
rier over whose line the cattle shall pass.
[For other cases, see Carriers, II. b, 7, b;
XL c. In Digest Sup. Ct 1908.1
[No. 360.]
Argued December 1, 1915. Decided April
24, 1916.
IN ERROR to the Supreme Court of the
State of Montana to review a judg-
ment which affirmed a judgment of the
District Court of Gallatin County, in that
state, in favor of plaintiff in an action
against an initial carrier for injuries to an
interstate shipment of live stock. Reversed
and remanded for further proceedings.
See same case below, 50 Mont. 122, 145
Pac. 291.
The facts are stated in the opinion.
Mr. Charles Donnelly argued the cause
and filed a brief for plaintiff in error:
The court erred in holding that notice
to an agent of the Burlington Company
would not have been effective for any pur-
pose.
Atlantic Oast Line R. Co. t. Riverside
Mills, 219 U. S. 186, -55 L. ed. 167, 31
L.RJ^.(N.S.) 7, 31 Sup. Ct. Rep. 164; Qal-
▼eston, H. & S. A. R. Co. v. Wallace, 223
U. S. 481, 56 L. ed. 516, 32 Sup. Ct. Rep.
205; Kansas City Southern R. Co. t. Carl,
227 U. S. 639, 648, 57 L. ed. 683, 686, 33
Sup. Ct. Rep. 391; Chicago, R. I. ft G. R.
Co. V. Linger, — Tex. Civ. App. — , 156 S.
W. 298; Overton v. Chicago, R. I. ft G. R.
Co. — Tex. Civ. App. — , 160 S. W. Ill;
Galveston, H. k S. A. R. Co. y. Itule, -—
Tex. Oiv. App. — , 172 S. W. 1123.
Considering the character of the ship-
ment, and that it was being carried in mid-
winter from the Rocky mountains to Chi-
cago, the requirement of the bill of lading
respecting notice was surely not unreason-
able, and the courts have almost uniformly
said so.
St. Louis ft S. F. R. Co. y. Zickaloose, 39
Okla. 302, 135 Pac. 406, 6 N. C. C. A. 717 ;
Note. — On the general subject of writs of
error from United States Supreme Court
to state courts — see notes to Martin y. Hun-
ter, 4 L. ed. U. S. 97; Hamblin y. Western
Land Co. 37 L. ed. U. S. 267 ; Re Buchanan,
39 L. ed. U. S. 884; and Kipley v. Illinois,
42 L. ed. U. S. 998.
On what adjudications of state courts can
be brought up for review in the Supreme
•0 Ii. ed.
Court of the United States by writ of error
to those courts — see note to Ax>ex Transp.
Co. v. Garbade, 62 L.Rj^. 513.
On how and when questions must be
raised and decided in a ^te court in order
to make a case for a writ of error from the
Supreme Court of the United States — see
no& to Mutual L. Ins. Co. v. McGrew, 63
LJELA. 33.
88, 89
SUPREME COURT OF THE UNITED STATES.
Oct. Tbem,
Atchison, T. & S. F. R. Ck>. v. Baldwin, 53
Colo. 416, 128 Pac. 449 ; Mobile & 0. R. Co.
V. Brownsville Livery k. Live Stock Co. 123
Tenn. 298, 130 S. W. 788; Southern R. Co.
T. Tollerson, 129 Ga. 647, 59 S. E. 799;
Hatch v. Minneapolis, St. P. k S. Ste. M.
R. Co. 15 N. D. 490, 107 N. W. 1087 ; Atchi-
son, T. & S. F. R. Co. v. Ooffin, 13 Ariz.
144, 108 Pac. 480; Central of Georgia R.
Co. V. Henderson, 152 Ala. 203, 44 So. 542;
McElvain v. St. Louis & S. F. R. Co. 151
Mo. App. 126, 131 S. W. 736; Cooke v.
Northern P. R. Co. 22 N. D. 266, 133 N. W.
303.
Mr. OThomas J. Walsh argued the cause,
and, with Mr. Walter Aitken, filed a brief
for defendant in error:
The assignments of error, in the light of
the record, present no Federal question in
view of which the revisory power of this
court can be invoked.
Commercial Pub. Co. v. Beckwith, 188 U.
S. 567, 47 L. ed. 598, 23 Sup. Ct. Rep. 382 ;
Arkansas Southern R. Co. v. German Nat.
Bank, 207 U. S. 270, 52 L. ed. 201, 28 Sup.
Ct. Rep. 78; Western U. Teleg. Co. v. Wil-
son, 213 U. S. 52, 53 L. ed. 693, 29 Sup.
Ot. Rep. 403; Say ward v. Denny, 158 U. S.
489, 39 L. ed. 1065, 15 Sup. Ct. Rep. 975;
Missouri, K. & T. R. Co. v. Harriman, 227
U. S. 657, 57 L. ed. 690, 33 Sup. Ct. Rep.
397; Chrisman v. Miller, 197 U. S. 313,
49 L. ed. 770, 25 Sup. Ct. Rep. 468; King v.
West Virginia, 216 U. S. 92, 54 L. ed. 396,
30 Sup. Ct. Rep. 225; Clipper Min. Co. v.
Eli Min. & Land Co. 194 U. S. 220, 48 L.
ed. 944, 24 Sup. Ct. Rep. 632; Smiley v.
Kansas, 196 U. S. 447, 49 L. ed. 546, 25
Sup. Ct. Rep. 289.
The contentions upon which it is claimed
a Federal question depends are so appar-
ently unfounded as not to require further
argument.
Parker v. McLain, 237 U. S. 469, 59 L.
ed. 1051, 35 Sup. Ct. Rep. 632.
The proposition urged here was not raised
by the record.
Mutual L. Ins. Do. v. McGrew, 188 U. S.
291-308, 47 L. ed. 480-485, 63 L.R.A. 33,
23 Sup. Ct. Rep. 375; Adams v. Russell, 229
U. S. 353, 57 L. ed. 1224, 33 Sup. Ct. Rep.
846.
The cas6 as to notice turned on a ques-
tion of pleading.
4 Elliott, Railroads, 1512; Houtz v.
Union P. R. Co. 33 Utah, 175, 17 L.R.A.
(N.S.) 628, 93 Pac. 439; Missouri P. R.
Co. V. Harris, 67 Tex. 166, 2 S. W. 574.
Mr. Justice Van Deranter delivered the
opinion of the court:
This was an action to recover for in-
juries to cattle being transported in inter-
906
state commerce, the gravamen of the
complaint being that the cattle were un-
reasonably delayed in transit, and conse-
quently were greatly reduced in weight and
emaciated in appearance.
The cattle were shipped in January, 1012,
from Belgrade, Montana, to the Union
Stock Yards at Chicago over two connect-
ing railroads, — ^the Northern Pacific and
the Burlington, — ^under a through bill of
lading issued by the initial carrier. The
shipment was at a reduced rate based upon
the stipulations in the bill of lading. The
rate and the bill of lading had been regu-
larly established and put in force und^r the
interstate commerce act and its amend-
ments. One stipulation was to the effect
that the shipper, as a condition precedent
to his right to recover for any injury to
the cattle while in transit, should give
notice in writing of his claim to some officer
or station agent "of said company" before
the cattle were removed from the place of
destination or mingled with other stock;
and another was to the effect that the
terms of the bill of lading should inure
to the benefit of any connecting carrier over
whose line the cattle should [80] pass in
the course of their transportation. By an
indorsement on the bill of lading the Bur-
lington Company was designated as the con-
necting carrier. The shipment was accom-
panied by an attendant selected by the
shipper and authorized to represent him in
all matters pertaining to the general care
and handling of the cattle. Upon reaching
their destination the cattle were delivered
by the Burlington Company to an agent of
the shipper, and were sold, removed, and
mingled with other stock before any notice
was given of a claim for injury to them
while in transit.
This action was brought against the ini-
tial carrier, — ^the Northern Pacific Com-
pany,— ^and the damages sought were for
alleged injuries to the cattle while passing
over both roada In its answer the defend-
ant set up the stipulations before named;
insisted that they were established under
the interstate commerce act, and that a
Montana statute invalidating such stipula-
tions was, as applied to bills of lading in
interstate commerce, in conflict with the
congressional enactment and void; alleged
that no notice of any claim for injury to
the cattle had been given "to any officer
or station agent of the defendant, or to any
officer or station agent of the connecting
carrier," until after the cattle had been
removed from the place of destination and
mingled with other stock, and claimed that
by reason of the failure to give the stipu-
j lated notice the plaintiff was not entitled
to recover. In his reply the plaintiff, white
S41 V. 8.
1016.
NORTHERN P. R. CO. v. WAIX.
80-02
expressly admitting that he had not com-
plied with the stipulation relating to notice,
denied that it was established or efTcctive
under the interstate commerce act, insisted
that it was unreasonable and in contraven-
tion of the Montana statute, alleged that
compliance with the stipulation had been
waived by the defendant, and set forth at
length and invoked the Carmack amendment
to the interstate commerce act in support
of the effort to recover from the initial car-'
rier [90] for the injuries occurring while
the cattle were on the line of the connecting
carrier. Upon the trial, and after the evi-
dence was concluded, the defendant moved
for a directed verdict in its favor upon the
ground that the contract embodied in the
bill of lading was valid, that confessedly
the notice ''required by the contract" was
not given, and that there was no evidence
showing a waiver of the notice. The mo-
tion was denied upon the ground that, un-
der the evidence, the question of waiver
was for the jury, and an exception was re-
served by the defendant. At its request
the court, in charging the jury, said: "One
of the defenses relied upon by the defend-
ant is that no notice of claim for damages
for loss or injury to the stock in question
was given by the plaintiff to the defendant
or to the connecting carrier, before the fttock
was removed from the place of destination
or mingled with other stock. This provi-
sion of said contract is a reasonable one,
binding upon the plaintiff, and, under the
admissions in his reply, prevents him from
recovering in this action, unless you find
that . . . defendant expressly or im-
pliedly by its conduct waived the giving of
said notice in accordance with tills pro-
vision of the contract." The jury, evident-
ly resolving the question of waiver against
the defendant, returned a verdict for the
plaintiff, and the judgment thereon was
affirmed by the supreme court of the state.
50 Mont. 122, 145 Pac. 291.
From what has been said it is apparent
not only that the damages sought were for
injuries occurring while the cattle were
being transported in interstate commerce,
but also that both parties relied upon the
interstate commerce act and its amend-
ments,— the plaintiff to sustain his right to
recover for the injuries on the line of the
connecting carrier, and the defendant to
sustain its defense based upon the stipula-
tions in the bill of lading. And it is plain
that the trial court gave controlling effect
to that act and its amendments, for other-
wise the instruction [01] upholding the
validity of the stipulation for notice could
not have been given, in the presence of the
Montana statute (Laws 1909, chap. 138)
declaring such a stipulation void.
•• Ii. ed.
The supreme court, passing the question
whether notice had been waived, interpreted
the stipulation as requiring that the notice
be given to an officer or station agent pri-
marily employed by the Northern Pacific
Company, and thereby excluding notice to
an officer or station agent of the Burling-
ton Company, and then held the stipulation
unreasonable and inoperative because no
officer or agent primarily employed by the
Northern Pacific Company was accessible
at the place of destination. Whether in
so interpreting the stipulation that court
gave proper effect to the interstate com-
merce act and its amendments is the Fed-
eral question pressed upon our attention,
and we think it is fairly presented by the
record. The shipment being interstate, that
legislation was controlling; the through
bill of lading was issued under it ; the plead-
ings show that its application was invoked;
and in the answer, as also in the instruc-
tion given at the defendant's request, there
was a distinct assertion that notice was not
given "to any officer or station agent of the
defendant, or to any officer or station agent
of the connecting carrier," which meant that
the defendant was proceeding upon the
theory that the stipulation, when read in
connection with the Carmack amendment,
contemplated and recognized that notice
to an officer or agent of the connecting car-
rier— ^the Burlington Company — would suf-
fice.
As this court often has held, the laws in
force at the time and place of the making
of a contract, and which affect its validity,
performance, and enforcement, enter into
and form a part of it, as if they were ex-
pressly referred to or incorporated in its
terms. Von Hoffman v. Quincy, 4 Wall.
535, 550, 18 L. ed. 408, 409; Walker v.
Whitehead, 16 Wall. 314, 317, 21 L. ed. 367,
358; Edwards v. [92] Kearzey, 96 U. S.
595, 601, 24 L. ed. 793, 796. A bill of lading
is a contract and within this rule. The Car-
mack amendment to the interstate com-
merce act (§ 7, chap. 3591, 34 Stat, at L.
584, 595, Comp. Stat. 1913, §§ 8563, 8592),
which was in force when this bill of lading
was issued, directs a carrier receiving prop-
erty for interstate transportation to issue a
through bill of lading therefor, although the
place of destination is on the line of an-
other carrier; subjects the receiving carrier
to liability for any injury to the property
caused by it or any other carrier in the
course of the transportation, and requires
a connecting carrier on whose line the prop-
erty is injured to reimburse the receiving
carrier where the latter is made to pay for
such injury. Thus, under the operation of
the amendment, the connecting carrier be-
I comes the agent of the receiving caxT\«t \q»t
02-94
SUPREME COURT OF THE UNITED STATES.
Ooi. Tkk..
the purpose of completing the transporta-
tion and delivering the property. Atlantic
Ck)ast Line R. Co. v. Riverside Mills, 219
U. S. 186, 196, 206, 65 L. ed.l67, 178, 182,
31 L.R.A.(N.S.) 7, 31 Sup. Ct. Rep. 164^
Galveston, H. k S. A. R. Co. v. Wallace,
223 U. S. 481, 491, 66 L. ed. 616, 623, 32
Sup. Ct. Rep. 205. This bill of lading was
issued under that statute and should be
interpreted in the light of it. Cleveland,
C. C. & St. L. R. Co. V. Dettlebach, 239 U.
8. 588, 593, ante, 453, 457, 36 Sup. Ct. Rep.
177. The shipment was to pass over both
roads in reaching its destination; the de-
livery at that place was to be made, as
in fact it was, by an officer or station agent
of the connecting carrier; and the stipu-
lated notice was to be given before the
cattle were removed from the place of desti-
nation or mingled with other stock; that is,
while it was yet possible from an inspection
of them to ascertain whether the claim of
injury, if any, was well founded. In these
circumstances it seems plain that the stipu-
lation meant and contemplated that the
notice might be given at the place of desti-
nation to an officer or station agent of the
connecting carrier, and that notice to it, in
view of its relation to the initial carrier,
should operate as notice to the latter. This
interpretation treats the stipulation as
designed to be fair to both shipper and
carrier, permits it to serve a useful purpose,
and gives [03] due effect to the statute un-
der which it was issued. True, the words
"said company" in the stipulation, if read
only in connection with an introductory
sentence in the bill of lading, would seem to
refer to the initial carrier alone, but when
they are read in connection with the statute
and other parts of the bill of lading, includ-
ing the provision that its terms and condi-
tions "shall inure to the benefit of" any con-
necting carrier, it is apparent that they em-
brace the carrier making the delivery as
well as the initial carrier, especially as the
former is, in legal contemplation, the agent
of the latter.
The act of March 4, 1916, chap. 176, 38
Stat, at L. 1196, altering the terms of the
Carmack amendment, is without present
bearing, because passed long after this ship-
ment was made.
We are of opinion that the Supreme Court
of the State failed to give proper effect to
the Carmack amendment in interpreting the
bill of lading, and that the judgment should
be reversed and the cause remanded for fur-
ther proceedings not inconsistent with this
opinion.
Judgment reversed.
0OS
Mr. Justice McReynolds, dissenting:
For two reasons I am unable to agree
with the opinion of the court.
First. If reiteration can establish a rule
of law, it must be taken as settled that in
causes coming here by writs of error from
state courts of last resort we may not con-
sider Federal questions not specially set
up below. And further, that such a ques-
tion comee too late if raised for the first
time after final decision in the highest
state court by petition for rehearing un-
less this was actually entertained. St
Louis & S. F. R. Co. v. Shepherd, 240 U.
S. 240, 241, ante, 622, 624, 36 Sup. Ct. Rep.
274; McCorquodale v. Texas, 211 U. S. 432,
437, 53 L. ed. 269, 270, 29 Sup. Ct. Rep.
146.
[04] The following recitals are parts of
the bill of lading:
Par. 6. "The said shipper further agrees
that as a condition precedent to his right
to recover any damages for loss or injury
to any of said stock, he will give notice in
writing of his claim therefor to some officer
or station agent of the said company be-
fore said stock has been removed from the
place of destination or mingled with other
stock."
Par. 9. "The terms, conditions and limi-
tations hereby imposed shall inure to the
benefit of each and every carrier, beyond
the route of said company, to which the said
property may come for purpose of trans-
portation."
A rehearing was denied by the supreme
court of Montana in this brief order: ''Ap-
pellant's motion for a rehearing herein here-
tofore submitted is after due consideration
by the court denied." An elaborate written
argument filed there in support of the peti-
tion, and incorporated in the record, states:
"Appellant did not brief nor argue the
reasonableness of the provisions of para-
graph 6 of said contract from the view
point considered by the court on page 3 to
line 5 of page 7 of the opinion, for the rea-
son that no such question was raised by the
plaintiff in the court below. In fact, the
only grounds upon which the defendant
attacked said provisions of the contract in
his answer was that it *is unreasonable,
unjust, burdensome, against the policy of
the law, and contrary to the express pro-
visions of chapter 138 of Session Laws of
the state of Montana for 1909.' Not until
his brief was filed in this court did such
question appear in the case.
"In view of the provision of paragraph
9 of the contract, also of plaintiff's posi-
tion in the court below, and of the fact
S41 V. B.
1015.
NORTHERN P. R. CO. v. WALL.
04-07
that the defendant company has always con-
sidered that a notice serred upon *Bome
officer or station agent' of the connecting
carrier at point of deliyery, in the manner
required by paragraph 6 of the contract,
was a sufficient [96] notice to show a com-
pliance with such provision in an acticm
brought against the initial carrier, we did
not consider the question as presented for
the first time in respondent's brief of any
importance, and did not even reply thereto
in our oral argument.
"Under section 0 of said contract the
terms and conditions thereof inure to the
benefit of the connecting carrier. Therefore,
■aoh notice should be given to some officer
or station agent of such carrier at point
of delivery when damages are claimed.
'The importance of this is apparent when
considered in connection with the Carmack
amendment to the interstate commerce
law."
The only ground for reversal now serious-
ly relied upon is that the Carmack amend-
ment (§ 7, chap. 3591, 34 Stat, at L. 584,
595, Comp. Stat. 1913, §§ 8563, 8592) made
"the connecting carrier, and therefore its
agents, the agents of the initial carrier,"
and consequently the court below wrongly
held, because no officer or station agent pri-
marily employed by Northern Pacific Rail-
way was shown to have been in Chicago,
paragraph 6 was unreasonable and inopera-
tive, and notice to a Burlington agent would
not have been effective for any purpose. I
fail to find that this point waa definitely
raised at any stage prior to the applica-
tion for rehearing; and counsel for the
railroad below seem to have been equally
unsuccessful, tf they had already witting-
ly relied upon it, they would hardly Jiave
burdened their argument for rehearing with
an excuse for failure so to do. Former
opinions imperatively demand that the
foundation for our jurisdiction be laid in
plain view, and not around a comer, where
only an esoteric eye can detect it. Sea-
board Air Line R. Co. v. Duvall, 225 U. S.
477, 487, 56 L. ed. 1171, 1176, 32 Sup. Ct.
Rep. 790.
Second. 'The bill of lading itself is an
elaborate document, bearing on its face evi-
dences of care and deliberation in the forma-
tion of the conditions of the liability of the
companies issuing it. The language is
ehosen by the companies [06] for the pur-
pose, among others, of limiting and dimin-
ishing their common-law liabilities, and if
there be any doubt arising from the lan-
guage used as to its proper meaning or con-
struction, the words should be construed
most strongly against the companies, be-
cause their officers or agents prepared the
instrument, and as the court is to interpret
«0 Ii. ed.
f suph language, it is, as stated by Mr. Jus-
tice Harlan, in delivering the opinion of the
court in First Nat. Bank v. Hartford F.
Ins. Co. 05 U. 6. 673, 679, 24 L. ed. 563,
565 : 'Both reasonable and just that its own
words should be construed most strongly
against itself.' " Texas & P. R. Co. v. Reiss,
183 U. S. 621, 626, 46 L. ed. 358, 360, 22
Sup. Ct. Rep. 252.
Apparently the bill under consideration
followed a form adopted before passage of
the Carmack amendment, or at least before
this was adequately understood. It is
dated, "Belgrade, Montana, Station, January
2, 1912," purports to be an "agreement,
made the day above stated, between the
Northern Pacific Railway Company, here-
inafter called the 'Company,' and R. J.
Wall, hereinafter called the 'Shipper,' " and
contains, in addition to paragraphs 6 and
9, copied above, the following ones:
Par. 7. "It is further agreed and pro-
vided that no suit or action to recover any
damages for loss or injury to any of said
stock, or for the recovery of any claim by
virtue of this contract, shall be sustained
by any court against said Company unless
suit or action shall be commenced within
sixty (00) days after the damage shall
occur, and on any suit or action commenced
against said Company after the expiration of
said sixty (60) days, the lapse of time shall
be taken and deemed conclusive evidence
against the validity of said claim, any stat-
ute to the contrary notwithstanding."
Par. 8. "The said Company shall not be
liable for the nondelivery or loss of, nor for
injuries suffered by, any of the stock be-
yond the line of its own railroad."
[97] Commenting on paragraph 6, the
supreme court of Montana said (50 Mont.
127):
"If the paragraph above means anything,
it required the shipper to give notice in
writing to an officer or station agent of the
Northern Pacific Company. Notice to an
agent of the Burlington road would not
have been effective for any purpose. The
Company mentioned in paragraph 6 is de-
fined by the preamble to the contract, to
mean the 'Northern Pacific Railway Com-
pany.' Furthermore, if this provision is
valid, it must be so construed as to serve
some purpose. Its evident purpose was to
enable the carrier to investigate the condi-
tion of the stock, and to that end the ship-
per was required to keep them separate
until such investigation was made or a. rea-
sonable time therefor had elapsed. By the
facts before us the reasonableness of the
provision is to be tested. The contract is
silent upon the question of service of the
notice. If personal service was necessary,
the shipper was required to hold the cattle
97-^9
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbh,
at the Union Stock Yards until he could
find an officer or station agent of the North-
em Pacific Company. No particular officer
or station agent is designated, and if this
provision is to be taken literally, the ship-
per was required at his peril to assume the
burden of finding some person who answered
the description given. There is not a sug-
gestion in the contract, in the pleadings,
or the proof, that the Northern Pacific Com-
pany had an officer or station agent at Chi-
cago, or nearer than St. Paul, the .eastern
terminus of its road — more than 400 miles
away. If service could have been made by
mail, plaintiff would have been in no bet-
ter position, though doubtless a letter writ-
ten to the station agent at Belgrade, and
mailed postpaid at Chicago, would have
sufficed for a literal compliance with the
terms of this provision. But in any event,
plaintiff would have had to bear the burden
of keeping his cattle on the cars or in the
stock yards until the notice had been re-
ceived and a reasonable time for inspec-
tion [08] had elapsed. If the paragraph in
question be construed to mean that a writ-
ten notice mailed from Chicago to any sta-
tion agent of the Northern Paoific Company,
even the agent at Seattle, would suffice, it is
senseless. If it is construed to mean that
the shipper should travel from Chicago to
St. Paul, and make personal service of the
notice upon an officer or station agent of
the Northern Pacific Company, then it is
unreasonable to the point of being uncon-
scionable. Whether the company had an
officer or station agent at Chicago, — at a
point where it has no road, — upon whom
service of this notice could have been made,
was a matter peculiarly within its own
knowledge, and for this reason the burden
was upon it to make proof of such fact.''
Manifestly its language has given rise to
a very grave doubt; therefore I think the
contract should be construed most strongly
against the company and with a view to
preserve shipper's rights. The construction
placed upon paragraph 6 by the state su-
preme court, when sitting within surround-
ings designed to stimulate clear thinking, is
diametrically opposed to the one now adopt-
ed. In such circumstances it appears to
me hardly reasonable to say that a stock-
man at a wayside Montana station was
bound instantly to apprehend the true in-
terpretation, notwithstanding any mental
quickening which he may have received from
a "rough wind" and a modest thermometer
pointing to only "7 or 8 degrees below zero."
I am authorized to say that Mr. Justice
McKenna concurs in this dissent for the
second reason stated.
910
[99] SAMUEL E. GIDNEY, PUT. in Err.,
V.
SIDNEY C. CHAPPEL ^d J. C. ScuUy.
(See S. 0. Reporter's ed. 99-103.)
Appeal — from probate decree — effect
of Arkansas laws in Indian Terri-
tory.
1. The union in a single court in the
Indian Territoir of the nmctions of the
probate and circuit courts of Arkansas
renders "locally inapplicable" the provi-
sions of Mansf. (Ark.) Dig. 1884, §§ 6509,
6521, dealing with appeals from probate to
circuit court, so that such provisions were
not put in force in the Indian Territory by
the act of Congress of May 2, 1890 (26
Stat, at L. 81, chap. 182), § 31, adopting
and extending over the Indian Territory
certain general laws of Arkansas "in force
at the close of the session of the general
assembly of that state of 1883, as pub-
lished" in that volume, where "not locally
inapplicable or in conflict with" that or
some other act of Congress.
Territorial oonrts — jurisdiction — snit
to avoid probate — extension of Ar-
kansas laws over Indian Territory.
2. The adoption and extension over the
Indian Territory of certain eeneral laws of
Arkansas "in force at the close of the ses-
sion of the general assembly of that ^tate
of 1883, as published" in Mansf. (Ark.)
Dig. 1884, which was effected by the ^ct of
Congress of May 2, 1890 (26 Stat, at L.
81, chap. 182), § 31, where such laws were
"not locally inapplicable or in conflict with"
that or some other act of Congress, must
be deemed to have put in force in that terri-
tory the provisions of § 6525 of such Digest,
relating to suits to avoid the probate of a
will, although the supreme court of Arkan-
sas in 1885 held that this latter statute
had been repealed by certain provisions of
tho civil practice act of 1868, where, up to
that decision the supreme court had been
treating the statute as in force, and the
particular provisions of the civil practice
act which ultimately were r^^rded as ef-
fecting its repeal were not adopted by the
act of Congress, being "locally inappli-
cable."
[For other cases, see Courts, III. a, 1, In
Digest Sup. Ct. 1908.]
[No. 263.]
Submitted March 8, 1916. Decided April
24, 1916.
IN ERROR to the Supreme Court of the
State of Oklahoma to review a decree
which, on a second appeal, affirmed a decree
of the Superior Court of Muskogee County,
in that state, in favor of plaintiff in n suit
to set aside the probate of a will. Affirmed
See same case below, first appeal, .Hb
Okla. 596, 134 Pac. 859; second appeal, 43
Okla. 267, 142 Pac. 756^
The facts are stated^in the opinion.
141 U. 8.
1916. GIDNEY v. CHAPPEL. 99-102
Mr. 'William T. Hatchings submitted ties and giving a hearing de novo upon
the cause for plaintiff in error. the appeal. The sections under which the
Mr. Napoleon B. Maxey Bubmitted the ■""*:!" I?""*^" "*** " *°"°''"l . . .
cauBe for defendants in error. Mr. Charles ^^^J^ ^- ^"^f'^J P^"? ?"*««\*r*
F. Runyan was on the brief. *•••>• »* *•>« *"»« ?} *>>« """^ f^^'T. '" *''!
"^ Circuit court, resided out of this state, and
Mr. Justice Van Devanter delivered the »'"' proceeded against by order of appear-
opinion of the court: »".«* ""l^' *»,";'«"'» actual appearance, or
This was a suit to set aside a wiU pro- being personally served with process, and
bated in common form, and to avoid its ""^ other person interested who was not a
probate. The suit was begun in the P^^y to the proceedings by actual appoar-
United States court for the Indian Terri- "'"^•'' "^ being personally served with
tory, wherein the will had been probated. P'""'""''' «?•>- «:'thin three years after such
and was transferred to an Oklahoma court «»"». de"8'on "> .the circuit court, by a
when that state was admitted into the ^'" "> chancery impeach the decision and
Union. The plaintiff ultimately prevailed •"'« a retrial of the question of probate;
and the supreme court [lOO] of the stat.- '"'^ "t""" party shall be entitled to a jury
affirmed the judgment. 38 Okla. 596. 134 for the trial thereof. An infant, not a
Pac. 859. 43 Okla. 207, 142 Pac. 755. P"*y.' «''?" »°» ^ jarred of such proceed-
rpi. r- J —1 ..! :_ *!,.. •.-« :. '"K* in chancery until twelve months after
The Federal question in the case is i, • • f ii •>
whether certain statutes bearing upon such ' ..o'"'°«e<« w*' • x * j .
a suit were put in force in the Indian Ter- ,, Sec. 6525. If any person interested in
ritory by the act of May 2. 1800. chap, tl'e probate of any will shal appear with-
182. § 31. 26 Stet. at L. 81. whereby Con- " Ave years after the probate or rejection
grei. adopted and extended over the Indian t^";""*' "'*; ^7 P"*'*'"" to the circuit court
Territory certain general laws of Arkansas ^f ^ '"""t^ «j'»'* «"«»> ''»» «"« «'*•''•
"in forci at the close of the session of the •'?.'',«> ?' /«J«<=.<;«1' P^.»y *» ''Vl "^ ""'''
general assembly of that state of 1883. as *'" ^'iVi^'^' '! Previously established, or
published in 1884 in the volume known «i PJ"^*"' '/ ^^TfK'V^^.^ the court
TL# A ij» T\-^ * »> u««« "«^4. i^».ii» ;., of. probate, it shall be the duty of the cir-
Mansfield's Digest," where not locally in- .f i. ^ j. ^ • ^ x ^i.
applicable or in conflict with" that or some •="'* .f "* ^ ,''"*^* *° ."»".* *° *7^„**
other act of Congress. In Arkansas there ""/"''ty °/ ?":\T ' '!''*'=\'""* "•»»" ""
were probate courts and courts of general »».«"?» ^ *"?"* ''^ ,\r^- ^ ., •
. . J. X- A : -♦-.J -« ^;..^,.u ^^.«,.4. -As the functions of the probate and cir-
jurisdiction designated as circuit courts, .. x . a i .. i .
while for the Indian Territory only one euit courts in Arkansas were united in a
court had been esUblished at that time. "'"K'*' 7"!'* "* "'* y^^}^ Territory. ,t
J .. «* * ^ ««i ;.,.:„jj«*;«« seems plain, as was held by the supreme
and it was a court of general jurisdiction. *; ' . xi.. xl x xv
T * Ai.:- *u« »^^^i.*^ 4.u«* ««*v.« court of Oklahoma in this case, that the
In view of this the act declared that the /Acnn j ami v j t -xi
United States court in the Indian Terri- '^'VT ' ♦f . ^ V f^ "J* '!* ''':
tory herein referred to shall have and ^^ ^'7 the probate to the circuit court
• xu < . .«. ^« «-«w«*- «« ^cre not applicable to the conditions in
exercise the powers of courts of probate un- ., ^ , j- >r -x j xu r
der said laws." and "wherever in said laws t*"" ^"/*"/""I°'y' ""d ^ therefore were
of Arkansas the courta of record of said "ot adopted by the act of Congress. It
XX X- J *u ,1 «^««4. ;« ♦!,« hardly was intended that a court at all
state are mentioned the said court m the .. -^ ... , -i-j lu
Indian Territory shall be substituted there- times presided over by a single judge should
. „ , '^ entertain appeals from its own decisions.
®'* xt. a 1 1 X J • The contention advanced respecting § 6523
Among the Arkansas laws enumerated in .^ ^^^^ .^ ^^^^^^ ^ decisions of the
the act was chapter 155, contemin^^ circuit court upon appeaU from the pro-
numbered from 6490 to 6548. The section ^^ ^^^ J^^^ inapplicable where such
under which the will was probated de- ^^ ^^^^^^ ^^^^ ^^^ J^^^^ ^^^ therefore
*** ^ «,, .„ »^ „ ,. ^as not adopted. [102] This point was
"Sec. 6522. When any will shall be ex- ^^^ considered in the opinion of the supreme
hibited for probate, the court of probate ^^^ ^f Oklahoma, and it need not be de-
. . . may and shall receive the probate ^ided here. However it might be resolved,
thereof in common form, without summon- ^^^ result in the present case would be the
ing any party, and shall grant a certifi- game.
cate of probate, or, if the will be rejected. The contention made respecting § 6525
shall grant a certificate of rejection; is that it was not adopted, because not in
. . . ** force in Arkansas at the close of the ses-
Other sections (6509 and 6521) provide sion of the general assembly of 1883. The
for an appeal to the circuit court from an claim that it was not then in force is
order of the probate court establishing or based upon a decision of the supreme court
rejecting a will, and for bringing in par- of Arkansas in 1885, holding that it ^%».
60 L. ed. ^^^
102, lOS
SUPREME COURT OF THE UNITED STATES.
Oct. Tbem,
Impliedlj repealed bj the inoluaion in the
civil practice act of 1868, which was a later
enactment, of certain provisions regulating
appeals from the probate to the circuit
court, and prescribing the effect to be given
to the latter's decision upon such an appeal.
Dowell y. Tucker, 46 Ark. 438. Of course,
that decision was controlling in Arkansas,
but it has little bearing upon the question
here presented, and for these reasons: Sec-
tion 6525 was published in 1884 in Mans-
field's Digest as a general law "in force at
the close of the general assembly of 1883"
(see title page of that publication), and
the supreme court of the state had been
treating it as such (Tobin v. Jenkins, 29
Ark. 151; Janes ▼. Williams, 31 Ark. 175,
189; Jenkins v. Tobin, 31 Ark. 306, 308;
Mitchell T. Rogers, 40 Ark. 91, 93-95).
Besides, the particular provisions of the
civil practice act which ultimately were re-
garded as effecting its implied repeal in
Arkansas — they became §§ 6509 and 6521
of Mansfield's Digest — ^were not adopted by
the act of Congress, because inapplicable
to the conditions in the Indian Territory.
In these circumstances we think the adopt-
ing act, rightly interpreted, put the sec-
tion in force there. Separated, as it then
was, from the restraining influence of the
supposedly conflicting provisions of the civil
practice act, it assiimed its normal place
among the other laws with which it was
adopted. This conclusion is not opposed
to our decisions in Adkins v. Arnold, 235
U. 8. 417, 59 L. ed. 294, 35 Sup. Ct. Rep.
118, and Ferryman v. Woodward, 238 U.
S. 148, 59 L. ed. 1242, 35 Sup. Ct. Rep.
830, as [103] seems to be claimed by the
plaintiff in error, but, on the contrary, is in
accord with what actually was there de-
cided.
Other questions are discussed in the
briefs, but as they are not Federal, but
essentially local, they cannot be re-examined
by us.
Judgment af&rmed.
DAVID LAMAR
v.
UNITED STATES.
(See S. C. Reporter's ed. 103-118.)
Blection of remedies ^ choice of appel-
late court.
1. The circuit court of appeals may not
require a plaintiff in error to elect, under
penalty of dismissal in case of refusal.
Note. — On certiorari from Federal Su-
preme Court to circuit courts of appeals —
see note to United States v. Dickinson. 53
L. ed. U. S. 711.
• IS
which of two writs of error to review a
conviction in a Federal district court, one
sued out directly from the Supreme Court,
and the other out of the circuit court of
appeals, he will pursue, since the exertion
of the judicial power alone could determine
which of the two writs was available, and
even if the situation arising from tJie pend-
ency of the two writs created doubt, the
jurisdictional or other questions aa to which
the doubt existed could have been certified
to the Supreme Court.
[For other cases, see Election of Remedies,
III. In DlgettSop. Ct 1908.]
Certiorari — to circuit court of appeala
^ scope of review.
2. The Federal Supreme Court, having
corrected on certiorari the error oi a cir-
cuit court of appeals in dismissing a writ
of error to review a conviction in a dis-
trict court upon the refusal of plaintiff in
error to elect whether he would pursue that
writ or one sued out directly from the Su-
preme Court, will dispose of the case on
the merits because of the serious doubt
which may have arisen out of the giving
by the district judge, for the purpose of the
writ of error from the Supreme Court, of
a certificate as to a jurisdictional question,
although it was afterward established that
there was no foundation whatever for al-
lowing it, and because of the resulting com-
plexity of the question as to whether the
jurisdiction of tne Supreme Court had not
attached to the subject-matter and excluded
the advisability, if not the power, of the
court to certify to the Supreme Court the
question which writ of error was para-
mount, when of necessity a certificate in-
volving the solution of that question had
already been made by the district judge.
[For other cases, see Certiorari, II. c. In Di-
gest Sup. Ct 1908.1
False personation — of Federal officer
^ Congressman.
3. A member of the House of Repre-
sentatives of the Congress of the United
States is an officer acting under the au-
thority of the United States, within the
meaning of U. S. Crim. Code, § 32, making
criminal the false personation of such an
officer witli intent to defraud.
False peraonation — of Federal officer
— vnanthorlsed act.
4. Any overt act to carry out the fraud-
ulent intent, whether or not it would have
been legally authorized had the assumed
capacity existed, falls within the condemna-
tion of U. S. Crim. Code, § 32, providing
for the criminal punishment of one who,
with intent to defraud, falsely assumes or
pretends to be an officer or employee acting
under the authority of the United Stately
and takes upon himself to act as such.
Appeal ^ prejudicial error — defective
indictment.
5. An indictment charging the false
Ssrsonation of an officer of the United
tates, with intent to defraud, oontrair to
U. S. Crim. Code, § 32, cannot be held In-
sufficient <m writ of error to support a con-
viction thereunder, on the ground that it
S41 V. 8.
1015.
LAMAB Y. UNITED STATES.
fails to describe the circumitances of the of-
fense, where it clearlv charges the illegal
acts complained of, and the requisite fraudu-
lent intent, states 'the date and place of the
eommission of the acta oharged, and glTes
the name and official eharacter of the of-
ficer whom the accused was charged with
having falsely personated, and there is no
suggestion of any want of knowledge of the
crime which was charged, or of any sur-
prise concerning the same, and there is
no intimation &at any request was made
for a bill of particulars oonoeming the de-
tails of the offense charged.
IFor other cases, see Appeal and Brror, VIIL
in. 2, in Digest Sup. Ct. 1008.]
Courts — territorial jarlsdictlon — right
to be tried where offense was com-
mitted.
6. The assignment of a Judge of one
Federal district and circuit to duty in an-
other district and circuit, conformably to
the Judicial Code, § 18, as amended by the
act of October 3, 1013 (38 Stat, at L. 203,
chap. 18, Comp. Stat. 1013, § 085), does not
virtually destroy the latter district by
creating a new district whose botmdaries
are undefined, and thus Tiolate the rights
secured under U. S. Ck>nsl., 6th Amend.,
to one tried before such judge for a criminal
offense, by subjecting him to trial in a dis-
trict not established when the offense with
which he is charged was committed.
[For other cases, see Courts, V. c, 7, b, in
Digest Sup. Ct. 1008.]
Constitutional law ^ separation of pow-
ers — Icgtslative vsurpation of 'exeon-
tlTe power.
7. The power of appointment and con-
firmation vested by the Federal Constitu-
tion in the President and Senate is not
usurped by the assignment, conformably to
the Judicial Code, § 18, as amended by the
act of October 3, 1013 (38 Stat, at L. 203,
chap. 18, Comp. Stat. 1013, § 085), of a
judge of one Federal district and circuit
to duty in another district and circuit.
[For otber cases, see Constitutional Law, III.
a, 3, in Digest Sup. Ct 1008.]
[No. 806.]
Argued April 4, 1016. Decided May 1,
1016.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for the
Second Circuit to review a judgment which
dismissed a writ of error to the District
Court for the Southern District of New
York to review a conviction in that court
of a false personation of a Federal ofileer
with intent to defraud. Affirmed.
See same case below, 141 G. C. A. 668,
227 Fed. 1010.
The facts are stated in the opinion.
Messrs. A. Ijeo Everett and Francis Ij.
Kohlman argued the cause, and, with Mr.
H. B. Walmsley, filed a brief for petitioner :
A Congressman is not an officer of the
United States.
60 Ii. ed. 58
Bowen, Documents of Const.; Farrand,
Records of Fed. Oonventicm, vol. 1, p. 376,
vol. 3, pp. 507-420; Blount's Case, Whart.
St. Tri. 200; Story, Const 1st ed. § 701;
Tucker, Const. § 100; United States v. Ger-
maine, 00 U. S. 508, 25 L. ed. 482; United
States V. Mouat, 124 U. S. 303, 31 L. ed.
463, 8 Sup. Ct Rep. 505; United States v.
Smith, 124 U. S. 525, 31 L. ed. 534, 8 Sup.
Ct Rep. 505; Burton v. United States, 202
U. S. 344, 50 L. ed. 1057, 26 Sup. Ct. Rep.
688, 6 Ann. Cas. 362; People ex rel. Kelly
V. Brooklyn, 77 N. Y. 503, 33 Am.
Rep. 650, 23 Am. ft Eng. Enc.% Law,
2d ed. 322; United States v. Wilt-
berger, 5 Wheat. 76, 5 L. ed. 37; H.
Hackfield A Co. v. United States, 107 U. S.
442, 40 L. ed. 826, 25 Sup. Ct. Rep. 456;
Martin v. United States, 03 C. C. A. 484, 168
Fed. 108: United States v. Barnow, 230 U.
S. 74, ante, 155, 36 Sup. Ct Rep. 10;
United States v. Ballard, 118 Fed. 757;
Mackey t. MiUer, 62 0. C. A. 130, 126 Fed.
161.
It was not charged or proven that the
defendant pretended to act imder the au-
thority of the United States.
United States v. Curtain, 43 Fed.
433; United States v. Bradford, 53 Fed.
542; United States v. Taylor, 108 Fed. 621;
United States v. Ballard, 118 Fed. 757;
United SUtes v. Brown, 110 Fed. 482;
United States v. Farnham, 127 Fed. 478;
Littell T. United States, 05 C. C. A. 148,
160 Fed. 620; United States v. Barnow, 230
U. S. 74, ante, 155, 36 Sup. Ct. Rep. 10.
The indictment is defective in failing to
describe the circumstances of the offense.
United States v. Carll, 105 U. S. 611, 26
L. ed. 1135, 4 Am. Crim. Rep. 246; Evans
V. United SUtes, 153 U. S. 584, 38 L. ed.
830, 14 Sup. Ct Rep. 034, 0 Am. Crim. Rep.
668; United States v. Hess, 124 U. S. 483,
31 L. ed. 516, 8 Sup. Ct Rep. 571; Keck v.
United States, 172 U. S. 434, 43 L. ed. 505,
10 Sup. Ct. Rep. 254; Moore v. United
States, 160 U. S. 268, 40 L. ed. 422, 16 Sup.
Ct. Rep. 204, 10 Am. Crim. Rep. 283; Bar-
tell V. United States, 227 U. S. 427, 57 L.
ed. 583, 33 Sup. Ot Rep. 383; Martin v.
United States, 03 C. C. A. 484, 168 Fed. 108.
Solicitor General Davla argued the cause,
and, with Mr. Robert Szold, filed a brief lor
respondent:
It is not necessary that defendant's pre-
tense be to act lawfully under the authority
of the United States.
Littell V. United States, 05 C. C. A. 148,
160 Fed. 620; United States v. Ballard, 118
Fed. 757 ; United States v. Barnow, 230 U.
S. 74, ante, 155, 36 Sup. Ct. Rep. 10.
The defendant's objection is not one of
substance, but of form.
• IS
107-109
SUPREMS OOURT OF THE UNITED STATES.
Oct. Tkuc,
Erant t. United States, 153 U. 8. 584, 38
L. ed. 830, 14 Sup. Ct. Rep. 034, 9 Am.
Grim. Rep. 668; United States v. Barnow,
239 U. S. 74, ante, 155, 36 Sup. Ct. Rep. 10.
All substantial rights of defendant were
observed.
Bartell t. United States, 227 U. S. 427,
57 L. ed. 583, 33 Sup. Ct. Rep. 383; Dur-
land ▼. United States, 161 U. S. 306, 40 L.
ed. 709, 16 Sup. Ct. Rep. 508.
Section 1025 of the Revised Statutes
(Comp. Stat. 1913, § 1691) controls.
Armour Packing Co. v. United States, 209
U. S. «6, 52 L. ed. 681, 28 Sup. Ot. Rep.
428; Ledbetter v. United States, 170 U. S.
606, 42 L. ed. 1162, 18 Sup. Ct. Rep. 774.
Mr. Chief Justice "White delivered the
opinion of the court:
Charged in the trial court (southern dis-
trict of New York) by an indictment con-
taining two counts, with violating § 32 of
the Penal Code [35 Stat, at L. 1095, chap.
321, Comp. Stat. 1913, § 10,196], the pe-
titioner was convicted and on December 3d,
1914, sentenced to two years' imprisonment
in the penitentiary. The trial was presided
over by the district judge of the western
district of Michigan, assigned to duty in
the district conformably to the provisions
of § 18 of the Judicial Code [36 Stat, at L.
1089, chap. 231], as amended by the act of
Congress of October 3^ 1913 (chap. 18, 38
Stat, at L. 203, Comp. Stat. 1913, § 985).
To the conviction and sentence in January
following error was directly prosecuted
from this court, the assignments of error
assuming that there was involved not only
a question of the jurisdiction of the court
as a Federal court, but also constitutional
questions. For the purpose of the writ one
of the district judges of the southern dis-
trict of New York gave a certificate as to
the existence and character of the question
of jurisdiction, evidently with the intention
of conforming to § 238 of the Judicial Code
[36 Stat, at L. 1157, chap. 231, Comp. Stat.
1913, S 1215].
After the record on this writ had been
filed in this court, a writ of error to the
conviction was prosecuted in May, 1915,
from the court below. In September fol-
lowing that court, acting on a motion to
dismiss such writ of error on [108] the
ground that its prosecution was inconsistent
with the writ sued out from this court, en-
tered an order providing for dismissal un-
less the plaintiff in error within ten days
elected which of the two writs of error he
would rely upon, and subsequently, before
the expiration of the time stated, the court
declined to comply with the request of the
plaintiff in error that the questions at issue
be certified to this court. On October 29,
914
1915, the election required of the plaintiff
in error not having been made, the writ of
error was dismissed.
On January 31st, 1916, the writ of error
prosecuted from this court came under con-
sideration as the result of a motion to dis-
miss, and finding that there was no ques-
tion concerning the jurisdiction of the trial
court within the intendment of the statute
and no constitutional question, the writ
was dismissed for want of jurisdiction. 240
U. S. 60, ante, 526, 36 Sup. Ct. Rep. 255.
Thereupon the plaintiff in error in the
court below asked that the cause be rein-
stated and heard, and, upon the refusal, of
the request, an application was made to
this court for leave to file a petition for
mandamus to compel such action, and, if
not, for the allowance of a certiorari, and
although the former application was denied,
the case is here because of the allowance
of the latter remedy.
Primarily the question is, was it the
duty of the court below to exercise juris-
diction? As under the statute it is indis-
putable that there was jurisdiction and the
duty to exert it unless the conditions exist-
ed which authorized a direct writ of error
from this court, it follows that the dismis-
sal by this court of the direct writ for
want of jurisdiction affirmatively deter-
mined that there was jurisdiction in the
court below, and error was committed in
not exerting it unless by some neglect to
avail of proper procedure, or because of
some line of inconsistent conduct, the right
to invoke the jurisdiction of the court be-
low was lost. As we have seen, the assumed
existence of the latter cause was the basis
of the refusal to exercise jurisdiction; that
is, [ lOO] the inconsistency which it was as-
sumed resulted from prosecuting the direct
writ of error from this court and subse-
quently suing out the writ of error from the
court below, from which it was deduced that
there was a duty to elect between the two as
a prerequisite to the right to ask at the
hands of the court below the exertion of the
jurisdictional authority cast upon it by
law. But if the exercise of the assumed
duty of election which was imposed had re-
sulted in the abandonment of the writ from
the court below, there would have been
nothing left upon which the jurisdiction of
that court could have been exerted, and it
is hence apparent that in substance the
order was but a direction that the plaintiff
in error abandon the direct writ prosecuted
from this court as a prerequisite to his
right to invoke the action of the court upon
the writ pending before it. But, aside from
the demonstration of error which arises
from the mere statement of this inevitable
result of the order made by the court be-
241 V. S.
1915.
LAMAR T. UNITED STATES.
109-112
low, it 18 equally clear that such order reat-
ad upon a misconception arising from treat-
ing as one, things which are distinct; that
is, the existence of authority to compel the
abandonment of one of two valid and avail-
ably remedies because of their inconsistency,
leaving therefore the one not abandoned in
force, and the want of power to compel an
election of one of two remedies where the
exertion of judicial power alone could de-
termine which of the two was available,
and where therefore the exercise of the elec-
tion ordered in the nature of things involved
the power to destroy all relief, and thus
frustrate the right of review conferred by
the statute by one or the other of the
remedies. As, in view of this distinction,
it clearly results that the determination of
the plaintiflf in error to abandon, under the
order of the court, one or the other of the
two writs of error, could not have validated
the writ not abandoned if it was not au-
thorized by law, it must follow that the
election to which the order of the court
submitted the plaintiff in error was [110]
not real, and therefore afforded no basis for
the refusal of the court to determine the
validity of the writ of error pending before
it and to decide the case if it deemed it had
jurisdiction. Indeed, if it be conceded that
the situation arising from the pendency of
the two writs created doubt, that conces-
sion would not change the result, since we
are of opinion that the power to have certi-
fied to this court the jurisdictional or other
questions as to which the doubt existed was
the remedy created by the statute to meet
such a situation, and to obviate the possi-
bility of denying to the plaintiff in error
the right to a review which again it must
be borne in mind the statute gave under
one or the other of the two writs.
Correcting the error committed by the
court below by its order of dismissal, the
case on its merits is within our competency
to decide as the result of the operation of
the certiorari. As, however, it is clear that
the questions on the merits, as demonstrat-
ed by the previous judgment of dismissal of
the direct writ of error, are of a character
which, under the statute, if they had been
disposed of by the court below in the dis-
charge of its duty, would have been finally
determined, and as it is equally apparent
that none of the questions except the one
of jurisdiction, that is, the duty of the
eourt below to have decided the cause, are
within the exceptional considerations by
which certiorari is allowed, it follows that,
in order to give effect to the statute, our
duty would be, as a general rule, having
corrected the error resulting from the dis-
missal, and having afforded a remedy for
the failure of the court below to exercise
60 Ii. ed.
jurisdiction, to go no farther and remand
the case so that the questions at issue
might be finally disposed of. Lutcher & M.
Lumber Co. v. Knight, 217 U. S. 257, 54 L.
ed. 757, 30 Sup. Ct. Rep. 505. But while
not in any degree departing from the gen-
eral rule, we think it is inapplicable here
because of the serious doubt which may
have been engendered by the certificate as
to the jurisdictional question given by the
district judge, [111] although it is now
established that there was no foundation
whatever for allowing it, and because of the
resulting complexity of the question as to
whether the jurisdiction of this court had
not attached to the subject-matter and ex-
cluded the advisability if not the power on
the part of the court below to certify to
this court the question of which writ of
error was paramount, when of necessity a
certificate involving the solution of that
question had already been made by the dis-
trict judge. We therefore dispose of the
merits, restating the case so far as may be
essential.
The section of the Penal Code charged to
have been violated punishes anyone who,
*'with intent to defraud either the United
States or any person, shall falsely assume
or pretend to be an officer or employee act-
ing under the authority of the United
States, or any Department, or any oflicvr
of the government thereof, and shall take
upon himself to act as such, or shall in
such pretended character demand or obtain
from any person or from the United States,
or any Department, or any officer of tlie
government thereof any money, paper, docu-
ment, or other valuable thing," etc The
indictment charged that at a stated time
the petitioner "unlawfully, knowingly and
feloniously did falsely assume and pretend
to be an officer of the Government of the
United States, to wit, a member of the
House of Representatives of the Congress of
the United States of America, that is to
say, A. Mitchell Palmer, a member of Con-
gress representing the twenty-sixth district
of the state of Pennsylvania, with the in-
tent, then and there, to defraud Lewis Cass
Ledyard," and other persons who were
named and others to the grand jury un-
known, "and the said defendant, then and
there, with the intent and purpose afore-
said, did take upon himself to act as such
member of Congress; against the peace,"
etc., etc.
We consider the contentions relied upon
for reversal separately.
[112] 1. It is insisted that no offense
ujider the statute was stated in the indict-
ment because a member of the House of
Representatives of the United States is not
an officer acting under the authority of the
11^114
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbm,
United States within the meaning of the
provision of the Penal Code upon which the
indictment was based. This contention is
supported by reference to what is assumed
to be the significance in one or more pro-
visions of the Constitution of the words
"civil officers/' and reliance is specially
placed upon the ruling made at an early
day in the Blount Case, Whart. St. Tr. p.
200, that a Senator of the United States
was not a civil officer subject to impeach-
ment within the meaning of § 4 of article
2 of the Constitution. But, as previously
held in sustaining the motion to dismiss
the direct writ of error, the issue here is
not a constitutional one, but who is an
officer acting under the authority of the
United States within the provisions of the
section of the Penal Code under ooiisidera-
tion? And that question must be solved
by the text of the provision, not shutting
out as an instrument of interpretation
proper light which may be afforded by the
Constitution, and not forgetting that a
penal statute is not to be enlarged by inter-
pretation, but also not unmindful of the
fact that a statute, because it is penal, is
not to be narrowed by construction so as to
fail to give full effect to its plain terms as
made manifest by its text and its context.
United States v. Hartwell, 6 Wall 385, 395,
18 L. ed. 830, 832 ; United States v. Corbett,
215 U. S. 233, 242, 243, 54 L. ed. 173, 175,
176, 30 Sup. Ct. Rep. 81.
Guided by these rules, when the relations
of members of the House of Representatives
to the government of the United States are
borne in mind, and the nature and charac-
ter of their duties and responsibilities are
considered, we are clearly of the opinion
that such members are embraced by the
comprehensive terms of the statute. If,
however, considered from the face of the
statute alone, the question was susceptible
of obscurity or doubt, — which [113] we
think is not the case, — all ground for doubt
would be removed by the following consider-
ations: (a) Because prior to and at the
time of the original enactment in question
the common understanding that a member
of the House of Representatives was a legis-
lative officer of the United States was dear-
ly expressed in the ordinary, as well as legal,
dictionaries. See Webster, verho "office;"
Century Diet, verho "officer;" 2 Bouvier's
Law Diet 1807 ed. 540, verho "legislative
officers;" Black's Law Diet. 2d ed. p. 710,
verho legislative officer." (b) Because at
or before the same period in the Senate of
the United States, after considering the
ruling in the Blount Case, it was concluded
that a member of Congress was a civil offi-
cer of the United States within the purview
of the law requiring the taking of an oath
• 1«
of office. (Cong. Globe, 38th Congress, Ist
session, pt. 1, pp. 320-331.) (c) Because
also in various general statutes of the United
States at the time of the enactment in ques-
tion a member of Congress was assumed to
be a civil officer of the United States. Re-
vised Statutes, §§ 1786, 2010, and sub-
division 14 of § 563. (d) Because that
conclusion is the necessary result of prior
decisions of this court, and harmonizes with
the settled conception of the position of
members of state l^islative bodies as ex-
pressed in nuiny state decisions. The Floyd
Acceptances (Pierce v. United States) 7
WalL 666, 676, 19 L. ed. 169, 173; Ex parte
Yarbrough, 110 U. S. 651, 654, 28 L. ed.
274, 275, 4 Sup. Ct. Rep. 152; Wiley v.
Sinkler, 179 U. S. 58, 64, 45 L. ed. 84, 88,
21 Sup. Ct. Rep. 17; Swafford v. Templeton,
185 U. S. 487, 492, 46 L. ed. 1005, 1007, 22
Sup. Ct. Rep. 783; People ex rel. Kelly v.
Brooklyn, 77 N. Y. 503, 507, 508, 33 Am.
Rep. 659; Morril v. Haines, 2 N. H. 246;
Shelby v. Alcorn, 36 Miss. 273, 291, 72 Am.
Dec. 169; Parks v. Soldiers' & S. Home, 22
Colo. 86, 96, 43 Pac. 542.
2. But it is urged, granting that a mem-
ber of Congress is embraced by the word
"officer," yet no offense was stated, since it
was not charged that, in pretending to be
an officer, the accused did an act which he
would have been authorized to do under
the authority of the United States had he
[114] possessed the official capacity which
he assumed to have. In other words, the
proposition is that the first clause of the
section prohibits the falsely assuming or
pretending to be an officer with intent to de-
fraud, and, as such officer, taking upon him-
self to act under the authority of the
United States, — ^that is, to do an authorized
act. The contention which the proposition
covers was insisted upon not only in the de-
murrer which was overruled, but by re-
quests to charge and exceptions to the
charge given. While it is undoubtedly true
that the construction asserted finds some
apparent support in one or more decided
cases in district courts of the United States
(United States v. Taylor, 108 Fed. 621;
United States v. Ballard, 118 Fed. 757;
United States v. Farnham, 127 Fed. 478),
we are of opinion that it misoonceives the
statute and fails to give it proper ^ect be-
cause, when ri^tly construed, the operation
of the clause is to prohibit and punish the
falsely assuming or pretending, with intent
to defraud the United States or any person,
to be an officer or employee of the United
States as defined in the clause, and the do-
ing in the falsely assumed character any
overt act, whether it would have been legal-
ly authorized had the assumed ci^Musity
existed or not, to carry out the fraudulent
S41 V. B.
1916.
LAMAR V. UNITED STATES.
114-U7
intent Briefly stated, we conclude this to
be the meaning of the clause for the follow-
ing reasons: (a) Because the words "act-
ing under the authority of the United
States" are words designating the character
of the officer or employee whose personation
the clause prohibits, since, if the words are
thus applied, the clause becomes coherent
and free from difficulty, while if, on the
other hand, they are applied only as limit-
ing and defining the character of the overt
act from which criminality is to arise, con-
fusion and uncertainty as to the officer or
employee whose fraudulent simulation is
prohibited necessarily results, (b) Because
the consequence of a contrary construction
would be obviously [115] to limit the ap-
plication of the clause as shown by its gen-
eral language and as manifested by the
remedial purpose which led to its enactment.
(Cong. Rec. vol. 14, pt. 4, p. 3263, 47th
Cong. 2d Sesa.) (c) Because to adopt a
contrary view would be absolutely inhar-
monious with the context, since it would
bring into play a conflict impossible of
reconciliation. To make this clear it is to
be observed that the last clause of the sec-
tion makes criminal the demanding or ob-
taining in the assumed capacity which the
first claime prohibits, ''from any person or
from the United States, . . . any
money, paper, document, or other valuable
thing, . . ." We say which the first
clause prohibits because there is no re-ex-
pression of the prohibition against assum-
ing or pretending contained in the first
clause except as that, prohibition is carried
over and made applicable to the second by
the words "or shall in such pretended char-
acter demand," etc. As it is obvious that
the acta made absolutely criminal by the
second clause are acts which may or may
not have been accomplished as the result
of exerting in the pretended capacity an
authority which there would have been a
lawful right to exert if the character had
been real, and not assumed, it results not
only that the conflict which we have indi-
cated would arise from adopting the con-
struction claimed, but the error of such
contention as applied to the first clause is
conclusively demonstrated.
Indeed, the consideration thus given the
contention in question was unnecessary be-
cause its error is persuasively if not con-
clusively established by the ruling in
United States v. Barnow, 239 U. S. 74, ante,
155, 36 Sup. Ct. Rep. 19. In that case the
accused was charged under both clauses of
the section with having on the one hand
falsely assumed to be an employee of the
United States, actin«: under the authoritv
of the United States, "to wit, an agent em-
ployed by the government to sell a certain
•0 li. ed.
set of booka entitled, 'Messages and Papers
of Presidents.'" and with having taken
[116] upon himself to act as such by visit-
ing a named person for the purpose of car-
rying out the intended fraud, and, on the
other hand, under the second clause of the
section with having, by means of the same
false personation, obtained a sum of money.
The case came here to review the action
of the court below in sustaining a demurrer
to the indictment as stating no offense be-
cause there was no authorized employee of
the character which had been falsely as-
sumed, and no legal authority therefore to
have done the overt acts with which either
count was concerned. The judgment was
reversed under the express ruling that the
existence of the office or the authority was
not essential, as the assumin^^ or pretending
to be and act as an officer or employee of
the United States was within the purview
of the statute, and necessarily embraced
within its prohibitions.
3. It is urged that the indictment is de-
fective because of its failure to describe the
circumstances of the offense. It suffices to
say that, after considering them, we think
that the many authorities cited to support
the contention are wholly inapplicable to
the conditions disclosed by the record, and
we are further of opinion that those con-
ditions make it clear that the contention is
devoid of merit. We say this because it
will be observed from the text of the indict-
ment which we have previously reproduced
that it clearly charges the illegal acts com-
plained of and the requisite fraudulent in-
tent, states the date and place of the com-
mission of the acts charged, and gives the
name and official character of the officer
whom the accused was charged with having
falsely personated. It is, moreover, to be
observed that there is not the slightest sug-
gestion that there was a want of knowledge
of the crime which was charged or of any
surprise concerning the same, nor is there
any intimation that any request was made
for a bill of particulars concerning the de-
tails of the offense charged. Under this
situation we think that [117] the case is
clearly covered by § 1025, Revised Statutes,
Comp. Stat. 1913, § 1691. Connors v. United
States, 158 U. S. 408, 411, 39 L. ed. 1033,
1034, 15 Sup. Ct. Rep. 051; Armour Pack-
ing Co. V. United States, 209 U. 8. 56, 84,
52 L. ed. 681, 695, 28 Sup. Ct. Rep. 428;
New York C. & H. R. R. Co. v. United
States, 212 U. S. 481, 497, 53 L. ed. 613,
623, 29 Sup. Ct. Rep. 304; Holmgren v.
United States, 217 U. S. 509, 523, 64 L.
ed. 861, 867, 30 Sup. Ct. Rep. 588, 19 Ann.
Cas. 778.
4. It is insisted that there was no proof
whatever tending to show an intent to de-
117-119
SUPREME COURT OF THE UNITED STATES.
Got. Tebm,
fraud or to establiah criminality under tbc
section relied upon, and therefore there
should have been an instruction to acquit.
In so far as the proposition concerns the
absence of proof of the doing of an overt
act which was authorized by law, and there-
fore relates to the wrongful construction
of the statute which we have previously
pointed out, it is disposed of by what was
said on that subject. As to the want of
any evidence justifying the submission of
the case to the jury on the question of the
criminal intent relied upon or of the acts
charged, we content ourselves with the
statement that, after a close scrutiny of
the record, we are of the opinion that the
contention is wholly without merit and
that the case was clearly one where the
proof was of such a character as to justify
its being submitted to the jury for its con-
sideration.
5. Finally we come to consider a con-
tention not raised in the trial court, not
suggested in the court below while the case
was there pending and before the order of
dismissal which we have reviewed was
entered, and not even indirectly referred
to in this court when the case was pend-
ing on the direct ^Tit of error, which writ
was, as we have seen, dismissed because
it presented for consideration no question
of jurisdiction and none arising under the
Constitution. Indeed, the contention now
relied on was for the first time urged in a
supplemental brief filed on the present
hearing. The proposition is that the trial
court had no jurisdiction; in fact, that no
such court existed, because the trial was
presided over by the district judge of the
western district of Michigan, assigned to
the [118] southern district of New York
conformably to the statute (chap. 18, 38
Stat, at L. 203, Comp. Stat. 1913, § 985),
and that the effect of such assignment under
the statute was virtually to destroy the
southern district of New York by creating
a new district whose boundaries were un-
defined, thus violating the rights secured
to the accused by the 6th Amendment, since
he was subjected to trial in a district not
established when the offense with which he
was charged was committed. In fact, the
further contention is made that to assign
a judge of one district and one circuit to
perform duty in another district of another
circuit was in substance to usurp the power
of appointment and confirmation vested by
the Constitution in the President and
Senate. As to the first of these contentions,
we think it suffices to say that it rests
upon a construction of the words of the
statute authorizing the assignment of a
judge of one district and circuit to duty
in another district and circuit which is
• 18
I wholly unfounded, and which rests upon a
' premise confiicting with the practice of the
government under the Constitution sub-
stantially from the beginning. As to the
second contention, we think merely to state
it suffices to demonstrate ita absolute ub-
soundness.
Affirmed.
Mr. Justice McBeynoIda took no part
in the consideration or decision of thia
cause.
[119] UNITED STATES, Appt^
V.
GEORGE F. ARCHER and Kate C. Archer
(See S. C. Reporter's ed. 119-148.)
Appeal ~ from court of claims — re-
manding for more specific findings.
A judgment of the court of claims
awarding damages for the alleged total de-
struction of a plantation as the result of
the construction of a dike across it by gov-
ernment officers or agents acting under Fed-
eral legislation creating the Mississippi
River Commission must be reversed and tne
case be remanded for more particular find-
ings, where the findins which recites the
efl'ccts upon claimant's property is too
broad in its inference, and the findings
otherwise lack precision, mixing statement
with inference, and not clearly distinguish-
ing between effects caused by the United
States and those caused by state action.
[For other cases, see Appeal and Error, IX.
i; y. o, in Digest Sup. Ct. 1908.]
[No. 112.]
Argued December 7, 1915. Decided May 1,
1916.
APPEAL from the Court of Claims to re-
view a judgment awarding damages for
the destruction of a plantation from the
construction of a dike across it by govern-
ment officers or agents. Reversed and re-
manded for further proceedings.
See same case below, 47 Ct. CI. 248.
Note. — As to what constitutes a taking
of property by eminent domain — see notes
to Memphis & C. R. Co. v. Birmingham, S.
& T. River R. Co. 18 LJLA. 166; and Sweet
V. Rechel, 40 L. ed. U. S. 188.
On distinction between taking or damag-
ing property and consequential injuries —
see note to Gordon v. Bllenville & K. R. Co.
47 LJl.A.(N.S.) 462.
On the right to improve navi^bili^ of
stream — see note to Beidler v. Sanitary Dist.
67 LJLA. 820.
On the right of government to divert
water from nontidal stream without com-
pensation to riparian owner — see note to
Fulton Light, Heat & P. Co. v. State, 37
LJl.A.(N.S.) 307.
941 U. 8.
1915.
UNITED STATES ▼. ARCHEB.
119-122
Statement by Mr. Justice McKenna:
Petition in the court of claims for the
recovery of $300,000 for damages alleged
to have been caused by the officers and
agents of the United States under the au-
thority of an act of Congress creating the
Mississippi River Commission by the con-
struction and extending of a dike, known
as the Iceland dike, upon the land of peti-
tioners, called the Point Chicot plantation.
A demurrer to the petition was overruled,
and after answer and hearing judgment was
rendered for claimants in the sum of $54,-
920, to review which this appeal is prose-
cuted.
The findings were necessarily volumin-
ous; we condense them narratively as fol-
lows: Claimants' plantation prior to the
construction of the levee system to the
state of completion which now exists was
of great value and in a [120] high state
of cultivation, being reclaimed lands com-
paratively free from overflows of the Missis-
sippi river except at intervals, the recur-
rence of such overflows being so separated
in point of time as not to materially affect
either the value or the productive capacity
of the plantation. It was highly improved
with houses and cabins thereon and stocked
with laborers and tenants, and yielded large
crops.
It has been overflowed at certain rises
of the water in the river (the rise in feet,
according to certain data, is given from
1844 to 1910), and during the twenty
years following 1891, after the levee system
had been made effective, there were eight
years during which it was not overflowed.
Gauges of the height of the water are
taken at Memphis and Greenville. Claim-
ants' plantation is overflowed whenever the
water rises to 135 feet, Memphis datum,
and it has been more or less overflowed
every year except two years (1872 and
1889) during the eighteen years prior to
1891, up to which time the levee system
had not been completed sufficiently to with-
stand great floods and the outlets unclosed;
and (luring the twenty years following
1891, after the levee system had been made
effective and the outlets closed by the
United States and the local authorities,
there were eight years, namely, 1894, 1895,
1896, 1900, 1901, 1902, 1905, and 1910,
during which claimants' land was not over-
flowed.
The plantation is overflowed at a stage
of 38 feet on the Greenville gauge, or when-
ever the surface water rises to 135 feet,
Memphis datum, and the gauge readings
show that of the fifteen years from 1882 to
1896, inclusive, there were only four years
in which this stage was not exceeded, and
that for the fourteen yean from 1897 to ^
«0 li. ed.
1910, inclusive, th^re were five years in
which this stage of 38 feet on the Greenville
gauge was not exceeded.
From time immemorial the waters of the
river during its [121] highest stages, when
not contained within the low-water banks,
have naturally found outlets through cer-
tain basins (they are mentioned) and
through the rivers draining them into the
Gulf of Mexico. And the plantations that
were not overflowed so frequently before
such outlets were closed by levee construc-
tion were consequently little injured hy
overflows.
Prior to 1883 the state and local author-
ities constructed a system of levees, miles
of which were destroyed in 1882.
Beginning in 1883 the officers of the
United States, imder the authority of an
act of Congress creating the Mississippi
River Commission, and other acts amenda-
tory thereof, adopted the so-called Eads
plan, and in consequence thereof have pro-
jected and constructed • levees on both
sides of the river for various distances
from Cairo, Illinois, to near the Head of
the Passes, a distance of 1,050 miles from
Cairo; and the local authorities along the
river on both sides from Cairo to the Gulf
have before and since also constructed and
maintained levees at various places and of
various lengths for the purpose of protect-
ing and reclaiming land within their respec-
tive districts.
The levee lines so constructed by the
United States and local authorities have
been practically joined, with the result ol
confining the river within a narrow scope,
increasing its velocity and elevation and
the strength of its current. The highest
elevation is approximately 6 feet in times
of high water, and the plan of the United
States was to increase the scouring power
of the water, deepen the channel and im-
prove navigation, and that of the local
authorities to reclaim and to protect the
land on both sides of the river from over-
flowing at times of high water.
From time immemorial the high-water
bed of the river has been between the high-
lands on the east side and the highlands on
the west side, and the claimants' plantation
is within this boundary; that is, between
the highlands on the Mississippi side and
the highlands on the Arkansas [122] side,
and has been occasionally overflowed at
times of high water, as stated above, before
as well as sinee tiie construction of the
levees.
From Cairo to the mouth of the Yazoo
river the Mississippi river is practically
leveed on both sides, except on the east side,
where the highlands abut on or very near
the river in Kentucky and Tennessee^ sxid
122-124
SUPREMB COURT OF THE UNITED STATES.
Oct. Tbbic,
there is a gap in the line of levees of 234
miles from the mouth of the Yazoo river
to Baton Rouge, unleveed.
Hie extension of the levee system has
resulted in an increased elevation of the
general flood levels which subjects claim-
ants* land to a deeper overflow than they
were subjected to formerly, and consequent-
ly has somewhat reduced its value for agri-
cultural purposes. The immediate cause
of the deeper overflow on claimants' land
is the increased elevation of the flood
heights, which is the result of the general
confinement of the flood discharge by the
levee system as a whole.
During the flood waters of 1882 the levees
failed throughout the length of the river.
In 1884 the crevasses were still open in all
basins. They were open and closed in sub-
sequent years (which are given) ; they
were all closed in 1904 to 1910. In conse-
quence of the closing of the natural basins,
outlets, and crevasses, overflowed lands on
both sides of the river have been reclaimed
and protected from overflow in times of
high water and vast benefit has accrued to
the states of Illinois, Kentucky, Tennessee,
Mississippi, Arkansas, and Louisiana, but
the land of claimants, situated between the
levees, and outside thereof, and not pro-
tected thereby, has been subjected to re-
peated overflow, tending to diminish and
impair its value, but to what extent does
not satisfactorily appear from the evidence.
A part of the levee system runs back of
claimants' plantation, not touching the
same, and between it and the plantation is
a stretch of ground lower than the main
[123] body of the plantation, and in pe-
riods of high water the water, rising and
passing over and upon said land, has, by
reason of its lowness, first gone thereupon,
and its main current was across said land,
and not upon the plantation, which, while
in extreme high water it would be flooded,
did not have the full force of the current of
the river, but was covered in part or in
whole by slacker water. The current dur-
ing high-water seasons struck against the
hevee back of claimants' plantation, eroding
and washing it away, to the great danger of
its existence and the inundation of the
lands to the rear thereof and diverting the
water from the channel of the river. A
breach or crevasse in the levee would have
entailed damage to it and to the adjacent
landowners, and impaired the efficacy of the
levee system as projected, constructed, and
maintained by the officers of the Mississippi
River Commission in accordance with the
plans heretofore stated.
In addition to the danger to the levee,
the current, impinging upon the banks of
the stream and the neck of the land ad-
• 20
joining Point Chicot to the mainland, cut-
ting into it, threatened to and would have,
if permitted to continue, cut through the
neck of land, thus straightening the channd
and making the plantation an island.
In order to prevent the threatened danger
to the levees and the neck of land, the offi-
cers of the United States, acting under the
authority of the acts of Congress, and the
Mississippi River Commission, constructed
what is laiown as the Leland dike, nmning
diagonally and at an angle from the main
line of levee on the Arkansas side acroaa
and on the land of claimants to a point
662 feet beyond where the line of the plan-
tation begins, their object being to divert
the current of the stream during high wa-
ters from impinging upon the levee, and,
by throwing it northeastward by the dike,
to prevent the destruction of the levee and
the cutting across the neck of land.
The dike first went into and on the land
a distance of 662 [124] feet, but, its end
being exposed to the waters of the river and
to its powerful current, the officers deemed
it necessary to extend the dike a distance of
some 2,700 feet farther upon the land of
claimants, and did so extend it in 1007
without any condemnation of the land and
with no remuneration therefor being made
to claimants. A large part of the soil was
used for tliis construction.
Before the United States joined the levee
lines in accordance with the Eads plan,
thus making the same continuous, there were
occasional overflows of the plantation, but
they have been made deeper and more force-
ful by the adoption of such system. But
before the erection of the dike the overflows
did not materially damage the plantation^
and it remained still valuable for agri-
cultural purposes. By the extension of the
dike the high-water current of the river
has been deflected over and across a large
part of the plantation, but flows in the
same direction as did a portion of the high
waters of the river before the erection of
the dike, — but with greater force and depth,
— ^the escape of a portion of the high watera
over and across the neck of land being
thereby prevented, in consequence of which
the overflows of the plantation have been
greatly increased and intensified, the result
of which has been to wash and scour out its
top soil and to deposit upon a large part of
the plantation great burdens of sand and
gravel, and 3,696 acres have been thereby
rendered totally unfit for cultivation or
any other profitable use. This result has
been caused partly by the joining of the
levee systems and the erection of said dike»
but directly and proximately by the erec-
tion of said dike.
The lines of levees constructed In pcuri
941 V. 8.
1915.
UNITED STATES v. ARCHER.
124, 125, 127, 128
by the officers of the United States and in
part by the officers and agents of the local
organizations of the states bordering on the
river to 1909 had a length of 1,548 miles
and contained 229,729,354 cubic yards.
The officer? of the United States construct-
ed 1,050 miles of the total. Since 1909
[125] the authorities of the United States
have built additional lines of levees con-
taining 2,970,224 cubic yards, and the local
authorities lines of levees containing 5,-
063,427 cubic yards, thus bringing the work
of levee construction up to the year 1910.
The 3,690 acres of land damaged as
stated was, at the time of the erection of
the dike, of the value of $83,920, and 3i A
acres of the same is actually and wholly
occupied by the United States by the con-
struction of the dike, and the balance, to
wit, 3,664^ acres, has been destroyed and
rendered wholly unfit for cultivation or
any other profitable use. The land is de-
scribed.
As an ultimate fact, the court finds, in so
far as it is a question of fact, the 3,696
acres of land was somewhat impaired in
value by the construction of the levee sys-
tem, but that its use was totally destroyed
by the erection of the Leland dike, and was
thereby taken, its value at the time of such
destruction and taking being $83,920.
Before this suit was brought George F.
Archer, one of the claimants, brought a suit
in the United States circuit court for the
western district of Arkansas against the
board of levee inspectors of Chicot county,
Arkansas, for the damages arising from
the erection of said dike and the taking of
the 31 iS acres of land. A demurrer by the
defendants to the complaint was overruled
(128 Fed 125); and thereafter and before
the beginning of this suit Archer discon-
tinued the suit brought against the board.
The ownership of the plantation by the
claimants was found. From the findings of
fact the court concluded that claimants
were entitled to a judgment of $54,920.
Solicitor General Davis argued the cause,
and, with Mr. Robert Szold, filed a brief
for appellant.
Mr. Percy Bell argued the cause and J
filed a brief for appellees.
Mr. Justice McKenna, after stating the
case as above, delivered the opinion of the
court:
Upon the findings as thus made the par-
ties to the action base opposing conten-
tions, llie government asserts that the
government's liability is limited to the land
actually taken, and all other damages are
consequential. In other words, that the
•0 li. ed.
I appropriation of the land and the erection
, of the Leland dike put the government in
the position of owner of the land, with the
rights and liabilities of owner, and that
besides, it had the rights of government to
improve navigable waters. There was con-
cesssion or some concession of the conten-
tion by the court of claims in its opinion.
The court [47 Ct. CI. 265], through Mr.
Justice Barney, said:
"In the decision of this case it may be
admitted that if the government had owned
the site of the Leland dike at the time of
its erection, or if it had been owned by a
stranger to this suit, and hence had made
no invasion upon the lands of the plaintiff,
it would not have been [128] liable for the
destruction thereby inflicted, under the rul-
ing in the Bedford Case, 192 U. S. 217, 48
L. ed. 414, 24 Sup. Ct. Rep. 238."
But it was further said: "Under the
decisions of the Supreme Court in all cases
of this character, it is the invasion upon
the lands and the actual and visible pos-
session which constitutes the taking, and
when thus taken, all of the consequences
incident to such invasion necessarily fol-
low, among which is the liability to pay
for the damage thereby occurring to the
balance of the tract to which the land thus
taken belongs." Citing United States v.
Grizzard, 219 U. S. 180, 55 L. ed. 165, 31
L.R.A.(N.S.) 1135, 31 Sup. Ct. Rep. 162.
Claimants concede the power of the gov-
ernment over the river, and that they "do
not base their claim upon any raising of the
flood levels of the Mississippi river, although
it is stated by them and was found as a
fact by the lower court that the high -water
flood level of the Mississippi river had been
raised 6 feet by the completion of the gen-
eral levee system."
They "recognize the fact that the right
of the United States government to com-
plete the levee system and maintain the
same is indisputable, and that any purely
incidental injury which might have resulted
to them solely from raising the flood level
would be a damnum absque injuria, Thej
claim nothing by reason of said fact, ad-
ducing the same merely by way of induce-
ment as showing that the ruin, which would
inevitably have come to their plantation
from the deflecting thereon of the flood
waters by the construction of Leland dike,
was merely accelerated and expedited, but
not caused, by the raising of the flood leveL
"Their claim is that the deposit of sand
and gravel and the destruction of their
lands thereby were a direct and immediate
result of the construction of the dike which
was built on their plantation, using a part
of it for the base thereof and the material
thereof, and conatructing the same without
129-181
SUPREMB OOURT OF THE UNITED STATES.
Oct. TkiM,
any condemnation of their lands and [120]
ouster of them therefrom, which, with the
destruction, constituted the taking of their
lands within the meaning of the 5th Amend-
ment, and entitled them to compensation
therefor."
And they rely on United States t. Grix-
zard, supra, and other cases, and distin-
guish the Jackson Case, 230 U. S. 1, 67 L.
ed. 1363, 33 Sup. Ct. Rep. 1011, and the
Hughes Case, 230 U. S. 24, 57 L. ed. 1874,
46 L.R.A.(N.S.) 624, 33 Sup. Ct. Rep.
1019.
A serious proposition of law is henoe pre-
sented by the contentions, and controversy
arises, as we have seen, whether an appro-
priation of the land without condemnation
proceedings can have different legal results
from its appropriation by such proceed-
ings. In other words, whether compensa-
tion for the land appropriated in either case
would be the only measure of relief, and its
payment or recovery transfer ownership of
the land and the rights of ownership.
But before reaching decision on this
proposition questions of fact confront us.
It will be observed that the findings are
somewhat involved, mixing statement with
inference; indeed, it may be said, even with
prophecy. And it may be said again (we
say "may be said" to avoid the expression
of a definite judgment at this time) that
there are effects caused by the United States
and effects caused by the state which are
not distinguished. We think there should
be more precision. Great problems con-
fronted the national and state governments;
great and uncertain natural forces were to
be subdued or controlled, great disasters
were to be averted, great benefits acquired.
There might be liability to the individual;
if so, the liability should be clear, the
cause of it direct and certain. This we ex-
plained in Jackson v. United States, 230
U. 8. 1, 57 L. ed. 1363, 33 Sup. Ct. Rep.
1011, and in Hughes v. United States, 230
U. S. 24, 67 L. ed. 1374, 46 L.R.A.(N.S.)
624, 33 Sup. Ct. Rep. 1019. There is an
effort in the present case to satisfy these
conditions, but we do not think it goes far
enough.
The finding which recites the effects upon
claimants' property is as follows: "In ad-
dition to the danger which [130] threat-
ened the levee [that is, by the concentration
of the current and during seasons of hi^
water], said current, impinging upon the
banks of the stream and the neck of land
adjoining Point Chicot to the mainland,
cutting into it, threatened to and would
have, if permitted to continue, cut through
said neck of land, thus straightening the
channel and making Point Chicot planta-
tion an island." In other words, it is
found that but for the dike the river would
have cut throu^ the nedc of land. Or, to
express it another way, the dike kept the
river in its channeL But, as we have seen,
many forces were at work, and if the condi-
tions at claimants' plantation were arti-
ficial, they were the result of the lawful
exercise of power over navigable rivers.
The finding seems to be definite, but it
is too broad in its inference. It may indeed
be a just inference, but the elements are
wanting upon which a Judgment can be with
assurance pronounced. Besides, there were
two agencies at work, national and state,
in the construction of the levees. There is
no distribution of liability; all the results
to claimants' plantation are assigned to the
government. Yet it is found that the claim-
ants at one time conceived that the local
authorities were the offenders, — ^that is,
the board of levee inspectors of Arkansas
was alone responsible, and brought aa
action against the board. In passing upon
the ground of action and its sufficiency,
challenged by demurrer, the court said that
the action "was instituted to recover dam-
ages alleged to have been sustained by him
[Archer] by reason of the trespass of the
def^idant [the board of levee inspectors],
who unlawfully, with force and arms,
entered upon his premises — a plantation
in the county of Chicot— and built a levee
thereon, without having made compensation
therefor." The demurrer was overruled, the
court expressing the view that the action
could be maintained, and intimated an opin-
ion that an injunction might have been
granted to enjoin the [131] trespass, but
that Archer could elect an action for dam-
ages.
The action was discontinued. We are not
informed by the findings for what reason.
It may have been for good reason; we make
no intimation to the contrary; but its com-
mencement and subsequent discontinuance
suggest some questions which may lead to
answers pertinent to be considered. In that
action the trespass upon claimants' planta-
tion by the construction of the Leland dike
was attributed to the local levee board; in
the action at bar it is ascribed exclusively
to the officers of the United States, and it
is averred that the encroachment of the
trespass was at different times, and to a
greater extent the second than the first
time. Did claimants object at either time?
And if not, why not? Upon the answer
may depend a serious legal question. Or, if
they were silent, why were they silent?
What were the local conditions which called
for judgment, not only the general eon-
ditions to which we have adverted and the
findings describe, but the exact conditions
as to claimants' property? Did danger
S41 U. 8.
1910.
UNITED STATES v. ARCHKK.
181-184
threaten it before the erection of the dike
as well as threaten the levees? As we have
said, great forces were in operation and a
judgment or prediction of their effect might
have been difficult and uncertain, and claim-
ants have regarded the dike as a protection
to their plantation as well as to the levees.
The flow of the river is towards the Qulf,
and necessarily the water is always higher
on the upper side of the reaches or bends
such as exist at claimants' plantation. It
may be inferred, therefore, that the pressure
of the water, compounded of its velocity
and volume, is greatest at the recesses or
apices of the bends, has its first effect there,
but necessarily extends along the whole con-
cave shore. At first, of course, there would
be a break at the neck or narrowest part,
but would it not successively extend until
the whole mass would crumble and a wide
breach be [132] formed, through which the
river would pour with its full eroding force?
And that such might be the effect we j^ather
from the report of the United States engi-
neers, of which we take judicial notice. It
certainly may be questioned, therefore,
whether the river, breaking through at the
neck, would have confined itself to a nar-
row channel, ''making Point Chicot planta-
tion an island/' and would not have perma-
nently submerged it or swept it away. The
Leland dike prevented a demonstration of
experience, but it would seem that examples
elsewhere on the river could give testimony
of what would have occurred if the dike
had not been constructed. It may be they
were adduced, it may be expert testimony
was heterd and all pertinent facts exhibited
to the court, and its finding is a true de-
duction from the testimony and the facts.
We think, however, as we have already said,
it is too broad in its inference, and that
therefore the case should be remanded to
the court for more particular findings on
the testimony in the case, or, in the discre-
tion of the court, upon further testimony to
be taken; and the case should be given such
despatch as may be consistent with such
purposes.
In what we have said no opinion is in-
tended to be expressed of the case as it is
presented or may be presented, and all ques-
tions of law are reserved.
Judgment reversed and cause remanded
for further proceedings in accordance with
this opinion.
Mr. Justice McReynolds took no part in
the consideration and decision of this case.
Mr. Justice Pitney, dissenting:
Being unable to perceive that the facts
found by the court of claims are in any ma-
terial respect lacking in oertainty, or are inr
#0 Ii. ed.
adequate to support the judgment of that
court, I am constrained to record my dis-
sent.
[133] The salient facts included in the
findings are as follows: Claimants' planta-
tion comprises about 6,000 acres, and in-
cludes the whole or the greater part of
Point Chicot, on the Arkansas side of the
Mississippi river. Point Chicot is a penin-
sula formed by a sweep of the river, being
joined at its southwesterly end to the back
land by a narrow neck of comparatively low
land, which is the property of others than
the claimants. The river flows easterly past
this neck of land on its upper or northwest-
erly side, and after flowing around ^the
Point, passing the important town of Green-
ville, which is on the easterly or Mississippi
side, it, of course, flows psst the southerly
side of the plantation and of the neck of
land, on its way to the Gulf. The distance
on the course of the river from the upper
side of the neck of land to the lower is
approximately 13 miles, while the distance
across the neck is less than a mile. The
situation is clearly shown upon the map an-
nexed to the findings of the court of claims,
and reproduced with the report of the case.
47 Ct. CL 248, 264.
The findings show that levee construction
work of two different kinds has been in
progress along the Mississippi river for
more than thirty years. On tlie one hand,
the states and local organizations of the
states bordering the river on both sides
have, both before and since the year 1883,
constructed and maintained certain lines of
levees at various places and of various
lengths, for the purpose of protecting and
reclaiming land within their respective dis-
tricts from overflow in times of high water.
The lands of claimants are not included
within any such levee district, and are not
affected by any state or local levee construc-
tion except as such construction has con-
tributed to closing certain natural outlets
that formerly accommodated the flood
waters of the river, the result of closing the
outlets being to raise the elevation of the
river in times of high water. On the other
hand, beginning about the year 1883, and
continuing to the present time, [134] the
officers and agents of the United States, in
pursuance of an act of Congress creating
the Mississippi River Commission and other
acts amendatory thereof, and for the im-
provement of the river for navigation, have
adopted the so-called Eads plan, and, in
pursuance of it, have projected, construct-
ed, and maintained, and are engsged in con-
structing and maintaining, certain lines of
levees on both sides of the river atv^turious
places; the plan being to increase the Te-
locity and scouring power of the water,
0SS
184-180
SUPREME COURT OF THE UNITED STATES.
Oor. Tkuc,
and thus deepen the channel of the river and
improve it for navigation.
The findings show that "the extension of
the general levee system by the United
States and the local authorities has result-
ed in an increased elevation of the general
flood levels, which subjects the claimants'
lands to deeper overflow than they were sub-
ject to formerly or would be subject to now
if the levee system were not in existence,
and consequently somewhat reduced its
value for agricultural purposes," and this
because "the lands of claimants, situated
between said levees and on the outside
thereof, and not protected thereby, have
been subjected to repeated overflow, tending
to diminish and impair their value, but to
what extent does not satisfactorily appear."
It is important to observe that for the
diminution of the value of claimants' land
thus produced by the general effect of levee
construction, state and national, no com-
pensation is claimed from the United States,
and no part of such diminution is included
in the amount of the judgment awarded by
the court of claims.
But it came to pass that "a part of the
levee system so constructed and maintained
runs back of said Point Chicot plantation,
not touching the same [whether this was a
part of the state or of the national system
does not appear from the findings, and is
quite immaterial, for it was not this that
encroached upon claimants' land or caused
an actual invasion of it and direct damage
to it J, [135] and that between it and said
Point Chicot plantation is a stretch of
ground lower than the main body of said
plantation [this is the neck of land already
mentioned, owned by other parties, and, as
the map shows, it extends for nearly a mile
from the face of the levee to claimants' near-
est boundary line], and in periods of high
water, the water rising, passing over and
upon said land, has, by reason of its low-
ness, first gone thereupon, and its main cur-
rent was across said land, and not upon
Point Chicot plantation, which, while in ex-
treme high water it would be flooded as
hereinabove set forth, did not have the full
force of the current of the Mississippi river
thereupon, but was covered in part or in
whole by shtcker water.
"The current during high-water seasons
(being) as aforesaid struck against and im-
pinged upon the said levee back of said
Point Chicot plantation and protecting the
lands on the interior, and such impingement
resulted in the waters of said river eroding
and washing away said levee, to the great
danger of its existence, and threatening to
break through said levee and inundate said
lands to the rear thereof [not claimants'
lands] and divert the water from the chan-
•24
nel of the river. Such breach or crevasse
in said levee would have entailed damage
thereunto and to the adjacent landowners
[not to claimants], and impaired the effi-
cacy of said levee system as projected, con-
structed, and maintained by the ofllcers of
said Mississippi River Commission in ac-
cordance with the plans heretofore stated.
In addition to the danger which threatened
the levee, said current impinging upon the
banks of the stream, and the neck of land
adjoining Point Chicot to the mainland,
cutting into it, threatened to and would
have, if permitted to continue, cut through
said neck of land [owned by others than
claimants], thus straightening the channel
and making Point Chicot plantation an is-
land."
It is obvious that the straightening of
the channel, by permitting the river to make
a *'cut-ofl^" at the neck of [136] land, would
have sent the principal flow of the river
through the shorter route, thus interfering
with and probably closing navigation along
the 13 miles of river around Point Chicot, to
the especial detriment of navigation at
Greenville. For it is a well-known fact, and
a subject of official comment, that when the
river forms a new channel for itself across
such a neck of land, the old bed has a ten-
dency to fill up at the head and foot and
become a lake. There are many crescent-
shaped lakes in the Mississippi bottom
lands, thus caused. Rep. Sec. War, 1(^5,
vol. 2, pt. 2, p. 499. In many cases the en-
tire bed along the former and more circui-
tous channel has been transformed into dry
land, or nearly so. Two historic instances
of this kind have given rise to interststa
suits now pending on the original docket
of this court: No. 6, Original, Arkansas v.
Tennessee, turns upon the effect of the *'Cen-
tennial Cut-off" of 1876, while in No. 10,
Original, Arkansas v. Mississippi, the effect
of the cut-off of 1848 is the subjeet of in-
quiry. We can thus appreciate the situa-
tion, in view of which the powers of the
government of the United States were put
forth in the taking of a considerable por-
tion of claimants' land, as is shown by the
findings that follow.
In order to prevent the threatened din-
ger to the levees and the neck of land, the
officers of the United States, acting under
the authority of the acts of Congress, and
the Mississippi River Commiasion, con-
structed what is known as the Leland dike,
running diagonally and at an angle from
the main line of levee on the Arkansas side,
across and on the land of claimants to a
point 662 feet beyond where the line of the
plantation begins, their object being to di-
vert the current of the stream during high
waters from impinging upon the levee, and,
241 V. 8.
L
1»U. UNITED STATES v. ARCHER. 13S-139
by tbrowltig it northMatwftrd by the dike taken, ft« value at th« time of meh deetnie-
to prevent the destructioii of the levee, anc tion and taking being 983,920."
the cutting across the neck of land. Tb< Upon these findings, a judgment was ren-
dike first went into and on the land ol dered in favor of the claimants for (64,920,
[137] claimants a distance of 682 feet, but the difference between this and the total
the end of it being exposed to the waters ol value of the land apparently being repre-
the river and t« its powerful current, thi aoited bj an outstanding mortgage.
olHcers deemed it necessary to cxtmid th( The record thowa that the case was tried
dike a distance of some 2,700 feet farthei and considered with unusual care and de-
upon the land of claimants, and did so «t- liberation in the court of claims. The pe-
tend it in 1S07, without any oondemnatioi titian was filed July 18, 1008; final judg-
of the land and with do remuneration there- mcnt was entered February IT, 1914, nuno
for being made to claimant*. A large part pro tunc as of February 12, 1912. The
of the soil was used lor the construction ol merits of the case were argued at leaat
the extension. three times, and the United States filed
Before tbe United States joined the levee several motions for new trial, for amend-
linee in accordance with the Eads plan, thU4 ment of the findings, etc. It waa therefore
making the same continuous, there were oc- only after years ol contentious litigation
caaional overflows of the plantation, but that the eouit of claims arrived at the flnd-
they have been made deeper and more force- ings and conclusions upon which it based
ful by the adoption of said system. But be- its judgment.
fore the erection of tbe dike tbe overflows in this court the case has been fully
did not materially damage the plantation .rgued upon tbe facU disclosed by tbe find-
and it remained still valuable for agricul- i^p,. the argument for the government be-
tural Pii-Posea. By the <at«n"™ «f the ^ inducted by the learned Solicitor Gen-
dike the high-water current of the river has
ral in person. It was not suggested in
been deflected over and across a laree part ^.i. , \t. n i, . ■ .
, ., , . .- o - .1. " .. argument that the findings were incomplete
01 the plantation, flowing in tbe same direc- i.- ' • , ^
Hon a> did > port™ ol th. Ugh w.Ur. of "'"""« " "''H'^' . , ,
the rlv.,b,tor'lh..r«li.iioIth, dike, but , H"' ^e ~e»tl.l l«it. eleu-lj .ppeu
with g,e.tet (oree .nd depth, tbe ,.e.p. .1 !"» "" '''''" '•'"'"'> <™» ''e M ow
. portion ol the Ugh w.t.™ o».t „d "'•""'} ■'™."» 8"""™.f brl.l,
urou tbe neck ol l.nd being prnreoted h, .^ '^r"" "" ""''"«■ °' "' ™" "' ':'""•
the dike, in eon.«,uene. ol whl.h the ove/- *' '°"""8 '"" fPP'"; ■"■• pl'n";
«o.. ol the pluUtlon hnye t«en gre.U, hon1eKnb.duT.mt Ohleol pljnl.t,on •
ln.re.«d »,d l»ten.H«l, tb. ..^It ol » •■t«»ted m Ch™t eonnt,, in the [13»]
which has beeu to wash and scour out its
Ijp .oU .nd to depoelt upon . jn.ge P»t ^^ ^ ^^ j^.^,
of the plantation great burdens of sand and ; , .■ . .t ii , _,
1 J t, DUO 1. L •,!. L plantation to the south was a levee, a part
gravel, and 3,896 acres have been thereby '^. .. , . . ^ j i. V.i.
*,...,, ... ,.. ,. 'of the general system constructed by the
rendered U|taly unfit for cultivation or any United SUtee and local authoritie. aftar
other profitable use. This result bad been jggg^ pu„uant to the Eads plan for the in.-
caused partly by the joining of the levee provement of navigation. Between the levee
systems and the erection of the dike, but ,„d p„i„t chicot plantation was a low strip
directly and proximataly by the erection of ,( ground often covered by the river. The
said dike. natural current of the river in high water
"The 3,696 acres of land hereinbefore ,e»Hons, running over the low strip of
mentioned at the time of the erection of the j^ound behind the Point Chicot plantation.
Leland dike was of the value of W3,B20. threatened the destruction of the levee, and
Thirty-one and four-t«nths acres of the ^ severance of the Point from the mainland,
same Is actually and wholly occupied by leaving Point Chicot an island. To fore-
the United States by the construction of the itall tbe danger to the levee from erosion,
dike before mentioned, [138] and the hal- knd to the connecting neck of land, and
ance of said 3,696 acres, to wit, 3,664.6, has thus to prevent the river from leaving Ita
been destroyed and rendered totally unflt for channel, agents of the United States gov-
enltivation or any other profitable use by imment constructed the Leland dike in
the owners thereof. . . , The court finds L804, running 882 feet into the Point Chi-
M an ultimate fact, in so far as it is a ;ot plantation. In 1907 the dike was ex-
question of fact, that tbe said 3,696 acres »nded 2,700 feet further on claimanto'
of land was somewhat impaired in value by and. In all, 31.4 acres were occupied in the
the construction of said levee system, but instruction of the Leland dike. ... In
that ita nee was totally destroyed by the leriods of high water the floods deflected by
erection of the Leland dike and was thereby the dike came over the plantation, render-
to Lu cd. lift
139-142
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
ing 3,696 acres of the plantation unfit for
cultivation."
Even were it suggested, as it is not, that
the court of claims had committed some
trial error or had drawn improper infer-
ences from the evidence there submitted,
this court would have no authority to re-
view the judgment* and reverse it upon that
ground. The rules established by this
court, pursuant to § 708, Rev. Stat, (now
§ 243, Judicial Ck>de [36 Stat, at L. 1157,
chap. 231, Comp. Stat. 1913, § 1220]), for
regulating appeals from the court of claims,
require that the record shall contain "a
finding by the court of claims of the facts
in the case, established by the evidence, in
the nature of a special verdict, but not the
evidence establishing them; and a separate
statement of the conclusions of law upon
said facts on which the court founds its
judgment or [140] decree." The findings
are conclusive upon this court unless error
of law appear in the record. United States
V. Smith, 94 U. S. 214, 24 L. ed. 116; Stone
V. United States, 164 U. S. 380, 41 L. ed.
477, 17 Sup. Ct. Rep. 71; District of Colum-
bia V. Barnes, 197 U. S. 146, 160, 49 L. ed.
699, 700, 25 Sup. Ct. Rep. 401.
The entire argument for the government
may be reduced to the single contention
that its liability for damages is limited to
the 31.4 acres of claimants' lands that are
actually occupied by the Leland dike, and
that the court of claims erred in awarding
compensation also for the 3,664.6 acres de-
stroyed by the deflection upon it of the
flood waters of the river through the con-
struction and maintenance of the dike. The
simple question is whether the case should
be governed by United States v. Qrizzard,
219 U. S. 180, 65 L. ed. 165, 31 L.R.A.(N.S.)
1135, 31 Sup. Ct. Rep. 162, upon which the
court of claims rested its decision, or by
Bedford v. United States, 192 U. S. 217,
48 L. ed. 414, 24 Sup. Ct. Rep. 238; and
Jackson v. United States, 230 U. S. 1, 67
L. ed. 1363, 33 Sup. Ct. Rep. 1011.
It was attempted to be shown in argu-
ment that the causes of the damage to
claimants' lands were diverse, it being at-
tributable in part to the levee work of the
local and state authorities, and only in part
to the construction of the Leland dike by
the agents of the United States government.
It seems to me that the findings render this
matter perfectly clear, for they show that
while the general work of levee construc-
tion in which local, state, and Federal
agencies co-operated resulted in an increased
elevation of the fiood levels and subjected
claimants' land to deeper overfiows than
before, and consequently somewhat reduced
its value for agricultural purposes, no com-
pensation was awarded — indeed, none was
• 26
or la asked — for this general and consequen-
tial result of levee construction. Nor was
the judgment in favor of claimants based
at all upon the value that claimants' lands
would have had but for this levee construc-
tion. On the ooqtrary, the finding is ex-
plicit that while the tract of 3,696 acres
of land was somewhat impaired in value
by the construction of the levee system, its
use was totally [141] destroyed by the sub-
sequent erection of the Leland dike, and
that its value at the time of euch deetruc-
tion was $83,920.
In view of this, I confess myself unable
to comprehend the basis of the criticism
that the findings lack precision and that
the effects ' of the work done, respectively,
by the states and by the United States,
ought to be more clearly distinguished. It
is not suggested in what respect the find-
ings lack precision, and the government ad-
vances no such contention. The findings
certainly render it most clear that no com-
pensation is claimed or allowed for any-
thing done by the state or local authori-
ties; that neither of these has invaded the
soil of claimants' lands; that this invasion
was done solely by agents of the United
States government, acting under the au-
thority of acts of Congress, in the execu-
tion of an important public work; and that
by their acts 31.4 acres were actually occu-
pied for the construction of the dike, and
the balance of the 3,696 acres were de-
stroyed as the direct consequence of the
effect of the dike in turning the flood
waters of the river upon and across claim-
ants' lands in other than their natural
course; and this because the dike performed
the very fimction that it was designed to
perform.
Unfavorable reference is made to the
finding that, in addition to the danger
which threatened the levee, the current,* im>
pinging upon the banks of the stream at
the neck of land, cut into it, threatening to
cut through it and thus straighten the
channel and make of Point Chicot planta-
tion an island. I am unable to see in this
anything else than a very clear and direct
inference based upon the physical facts and
the effect of previous floods upon the neck
of land as recited in the findings, viewed in
the light of a history of cut-offs so frequent
and familiar along the lower Mississippi as
to have become a matter of common knowl-
edge. But, if the finding is wanting in any
respect, this has nothing to do with claim-
ants' right to compensation for the taking
of their lands. The [142] danger to the
neck of land connecting Point Chicot with
the mainland does not affect the question of
the quantity or value of the land taken from
claimants. It bears eolely upon the neoei^
241 V. S.
1015.
UNITED STATES v. ARCHKR.
142-144
city for the taking. Now, the objection of
want of necessity may be appropriately
raised by an objecting landowner. But sure-
ly it does not lie in the mouth of the gov-
ernment, after an actual taking of private
property, to answer a claim for compensa-
tion by setting up that there was no neces-
sity for taking it.
It is said that it may be questioned
whether the river, breaking through at the
neck, would have confined itself to a narrow
channel, making Point Chicot plantation
an island, and would not have permanently
submerged it or swept it away. Plainly,
this is wholly speculative; and it seems to
me, in view of the findings and the illustra-
tive map, that the result hinted at is not
even a remote possibility. The findings are
clear to the efl'ect that, before the construc-
tion of the dike, flood waters went across
the neck of land, to the relief of the Point
Chicot plantation, upon which the ground
is much higher. The entire width of the
river opposite the neck of land and on its
upper side is about one-half mile, perhaps
less. As already mentioned, the neck is
less than a mile across, and it extends for
over a mile from the levee to the nearest
line of the Point Chicot plantation.
My brethren deduce an inference of pos-
sible extensive erosion from the reports of
the United States engineers. The reports
at the utmost would be no more than evi-
dential as to this point. Nor am I aware
that this court, in reviewing a judgment of
the court of claims, is at liberty to seek
contradiction of the express findings of fact
made by that court by reference to some
government publication of which we may
take judicial notice.
But if, before construction of the Leland
dike, there was any probability, near or re-
mote, that the opening of a cut-off at the
neck of land would lead to any encroach-
ment [143] of the river upon claimants'
land, the only possible legitimate effect of
this upon their claim for compensation for
the lands actually taken and directly dam-
aged by the construction of the dike would
be to reduce the damages to such extent as
it should be made to appear that by such
construction claimants had been specially
benefited through the saving of their other
lands from destruction. But the burden of
showing this was upon defendant, not upon
claimants. And I can see no justification
for reversing a judgment, fairly recovered
by claimants, upon the mere conjecture
that possibly there ought to have been an
allowance in favor of the United States for
the direct benefit that the dike construction
conferred upon claimants.
Reference is made to the fact that be-
fore this suit was brought George F. Arch-
•0 li. ed.
er, one of the claimants, brought a suit in
the United States circuit court for the east-
ern district of Arkansas against the board
of levee inspectors of Chicot county, Arkan-
sas, for the damages arising from the erec-
tion of the dike and the taking of the 31.4
acres of land, and that, after the overrul-
ing of a demurrer to the complaint, the ac-
tion was discontinued before the commence-
ment of this suit (128 Fed. 125). As a
finding of fact, this manifestly imports
nothing whatever pertinent to the right of
action of claimants against the government
of the United States. As an evidential cir-
cumstance, even were it entitled to any
weight, this court has nothing to do with
it, for we have no jurisdiction to consider
or weigh evidence. Even as against the de-
fendant in that action, the discontinued
suit would not estop the plaintiff therein;
and certainly this court does not intend to
intimate that it furnishes any bar to the
recovery by the claimants of compensation
for the land actually taken by the govern-
ment of the United States.
The question whether claimants objected
to the entry by the officers of the United
States is likewise immaterial, [144] for
their suit is based, not upon the ground that
the officers were trespassers, but upon the
ground that they were lawfully engaged in
the construction of a public work under
governmental authority, and in the doing of
it found it necessary to take and did take a
considerable part of claimants' land, with
incidental direct damage to another and
greater part. This, upon well-settled prin-
ciples, is to be deemed a taking of private
property for the public use, and by the
plain mandate of the 5th Amendment to
the Constitution is to be made the subject
of compensation. The protest of the prop-
erty owner is not necessary to entitle him
to compensation. Acquiescence in an un-
authorized taking may estop a landowner
from having equitable relief by way of in-
junction against the consequences of the
taking, or from treating the taking as a
trespass; but it does not disentitle him to
compensation for the land actually taken.
New York ▼. Pine, 185 U. S. 93, 96, 103,
46 L. ed. 820, 821, 825, 22 Sup. Ct. Rep.
592. Nor is the absence of formal condem-
nation proceedings of any consequence. An
agreement on the part of the government
to pay him the fair value of his property
is necessarily implied, on principles of jut*
tice and equity, from the mere act of tak-
ing, and it is upon the implied assumpsit
that the action rests. United States v.
Lynah, 188 U. S. 445, 462, 465, 468-470, 47
L. ed. 539, 545-549, 23 Sup. Ct. Rep. 349.
Stress is laid upon the suggestion that if
the government or some third party had
•27
144-147
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
owned the site of the Leland dike at the
time of its erection, so that in its construc-
tion there had been no invasion of the lands
of the claimants, the government would not
have been liable for the destruction thereby
inflicted. It is quite true that the consti-
tutional inhibition against the taking of
private property for public use without
compensation has been generally construed
as not conferring a right to compensation
upon a landowner, no part of whose prop-
erty has been actually invaded, and who
has sustained only consequential damages
by reason of the erection of a public work
upon [145] adjoining land owned by a
third party. It is this doctrine that under-
lies the decisions of this court in Bedford v.
United States, 192 U. S. 217, 48 L. ed. 414,
24 Sup. Ct. Rep. 238; and Jackson v.
United States, 230 U. S. 1, 67 L. ed. 1363,
33 Sup. Ct. Rep. 1011. The great hardship
of the doctrine has been so generally recog-
nized that many of the states have estab-
lished constitutions providing in substance
that private property shall not be taken or
damaged for public use without compensa-
tion. Richards v. Washington Terminal
Co. 233 U. S. 546, 554, 58 L. ed. 1088, 1091,
L.R.A.1915A, 887, 34 Sup. Ct. Rep. 654. A
rule so harsh in its operation ought not to
be extended; and this case very clearly
stands on the other side of the line, and
comes within a class of cases quite as well
established, of which United States v. Griz-
zard, 219 U. S. 180, 55 L. ed. 165, 31 L.R.A.
(N.S.) 1135, 31 Sup. Ct. Rep. 162, is an
example.
I cannot yield assent to the suggestion
that the taking of the 31.4 acres, actually
invaded and occupied by the construction
of the dike, can be treated as a matter
apart from the destruction of the 3,664.6
acres of claimants' lands immediately ad-
joining, which, as a direct result of the
construction of the dike and because of the
function that it performs, have been "ren-
dered totally unfit for cultivation or any
other profitable use by the owners thereof."
Assuming, for the purposes of the argu-
ment, that if the government itself, or some
stranger, had owned the site of the dike, so
that in the erection of it no actual invasion
had been made upon claimants* lands, the
government would not have been liable on
an implied assumpsit for the destruction
thereby inflicted, it is suflicient to say that
that is not this case. The whole of the
lands in question were owned by claimants,
and were in use as integral parts of a
single plantation. There was an actual in-
vasion and exclusive occupancy of claim-
ants' lands in the construction of the dike,
and the destruction of the adjoining lands
was a direct and necessary consequence of
• 28
the use made of the dike, and, in justice^
must be regarded as an inseparable part of
the taking. It is the established rule, rec-
ognized everywhere, that where [146] only
part of a tract of land is taken, the owner
is entitled not merely to the nuirket value
of the part taken, but to all damages to the
remainder of his tract proximately result-
ing from the use made of the part actually
taken; or, putting it in another way, he is
entitled to the difference between the mar-
ket value of the entire tract and the market
value of that which is left; excluding from
consideration, however, any general benefit
that is shared by all landowners whose
property is similarly circumstanced. A
multitude of cases might be cited in sup-
port of this proposition, but is is not neces-
sary, for they can be found in the text
books and cyclopedias. The doctrine has
been uniformly adhered to by this court.
In Bauman v. Ross, 167 U. S. 548, 574, 42
L. ed. 270, 283, 17 Sup. Ct. Rep. 966, it
was expressed thus: "When part only of
a parcel of land is taken for a highway, the
value of that part is not the sole measure
of the compensation or damages to be paid
to the owner; but the incidental injury or
benefit to the part not taken is also to be
considered. When the part not taken is
left in such shape or condition as to be in
itself of less value than before, the owner
is entitled to additional damages on that
account. When, on the other hand, the
part which he retains is specially and di-
rectly increased in value by the public im-
provement, the damages to the whole par-
cel by the appropriation of part of it are
lessened." In Sharp v. United States, 191
U. S. 341, 353, 354, 48 L. ed. 211, 215, 216,
24 Sup. Ct. Rep. 114, an attempt was made
to apply the same rule to separate and in-
dependent farms owned by the same owner,
and having no necessary relation to each
other, the farming on each having been con-
ducted separately, and each farm having
its own house and outbuildings. The court
said: "Upon the facts which we have de-
tailed, we think the plaintiff in error was
not entitled to recover damages to the land
not taken because of the probable use to
which the government would put the land
it proposed to take. If the remaining land
had [147] been part of the same tract
which the government seeks to condemn,
then the daniage to the remaining portion of
the tract taken, arising from the probable
use thereof by the government, would be a
proper subject of award in these condemna-
tion proceedings. But the government takes
the whole of one tract." In United States
V. Grizzard, 219 U. S. 180, 182, 183, 65 L.
ed. 165, 166, 31 L.R.A.(N.S.) 1135, 31 Sup.
Ct. Rep. 162, which was an action by the
241 V. 8.
1915.
WHITE ▼. UNITED STATES.
147-149
owners of a farm for a taking of a part
of it by the United States for public pur-
poses, the court said: "Reference has been
made to the well-known class of cases
touching an injury to land not taken by
the construction of a railroad along and
upon an abutting public road, or a change
of grade to the damage of adjacent prop-
erty, and like indirect injuries to the use
of property adjacent but of » which no part
was taken from the owner. Northern Transp.
Co. ▼. Chicago, 99 U. S. 635, 25 L. ed. 336;
Sharp V. United States, 191 U. S. 341,
48 L. ed. 211, 24 Sup. Ct. Rep. 114. But
here there has been an actual taking by
permanently flooding a part of the farm
of the defendants in error. An incident
of til at flooding is that a public road nm-
ning across the flooded land is also flooded.
But if this were not so, and the roadway
had simply been cut off by the interposition
of the flooded portion of the farm, the dam-
age would be the same. Since, therefore,
there has been a taking of a part of the
owners' single tract and damage has result-
ed to the owners' remaining interest by rea-
son of the relation between the taken part
and that untaken, or by reason of the use
of the taken land, the rule applied in the
cases cited does not control tliis case. . . .
Whenever there has been an actual physical
taking ot a part of a distinct tract of land,
the compensation to be awarded includes
not only the market value of that part of
the tract appropriated, but the damage to
the remainder resulting from that taking,
embracing, of course, injury due to the use
to which the part appropriated is to be de-
voted."
Bedford t. United States, 192 U. S. 217»
225, 48 L. ed. 414, 417, 24 Sup. Ct. Rep.
238, is clearly [148] distinguishable, it be-
ing an instance of consequential damages to
the claimants' land by reason of govern-
ment operations conducted 6 miles farther
up the river. There was no actual invasion
of any part of their land, and therefore no
responsibility for the consequential damages
arising from the government operations.
Jackson v. United States, 230 U. S. 1, 23, 57
L. ed. 1363, 1374, 33 Sup. Ct. Rep. 1011,
was likewise a case of consequential dam-
ages without actual taking of any part of
the claimant's lands. It was decided both
in the court of claims (47 Ct. CI. 579, 613)
and by this court upon the authority of the
Bedford Case.
It seems to me that the findings of the
eourt of claims are sufficiently clear and
definite to furnish the materials for a prop-
er judgment upon the claim in controversy;
that an actual invasion and occupation of
A part of claimants' lands, particularly de-
scribed, by the agents of the United States,
€0 li. ed.
in the construction of the dike under the
authority of acts of Congress, is shown, as
well as the market value of the particu-
lar part actually invaded and of the larger
and adjacent portion of the same tract
necessarily destroyed as a direct and im-
mediate result of the construction and
maintenance of the dike. I also think that
the case comes clearly within the authority
of United States Y. Grizzard, supra, and
that the judgment under review should be
affirmed.
More than eight years have elapsed since
the practical destruction of the greater part
of claimants' plantation; nearly seven
years since the suit was commenced. And
as no interest is allowable against the gov-
ernment in a case of this kind up to the
time of the rendition of judgment in the
court of claims (§ 1091, Rev. SUt. § 177,
Judicial Code [36 Stat, at L. 1141, chap.
231, Comp. Stat. 1913, § 1168]; Tillson v.
United SUtes, 100 U. S. 43, 47, 25 L. ed.
543, 544; Harvey v. United States, 113 U.
S. 243, 28 L. ed. 987, 5 Sup. Ct. Rep. 465 ) ,
any unnecessary postponement of the judg-
ment is a virtual denial of justice*
For these reasons, I dissent.
[149] WILLIAM FRYB WHITE, Receiver
of Cowardin, Bradley, Clay, & Co.^
Appt.,
V.
UNITED STATEa
(See S. 0. Reporter's ed. 149-154.)
Public contracts — ambignity — prac-
tical construction.
Any uncertainty as to whether a
roadway shown on the plans was called for
by a contract for the construction of a
filtration plant for the United States, so as
to entitle the contractor to payment for
the work done by him on such roadway,
should be resolved in the contractor's favor,
where supplemental . plans relating to such
roadway and givinf^ details as to grades
were furnished to htm, and the government
engineer first in charge, who himself drew
the plans, considering that the construc-
tion of the roadway was part of the scheme,
supervised and inspected the work of con-
structing it on lines, slopes, and grades and
of selected materials, and directed pay-
ment therefor as being included in the
contract.
[For other esses, see United States, YI. b.
in Digest Sup. Ct. 1908.]
[No. 809.]
Argued April 19, 1916. Decided May 1,
1916.
69 090
14»-161
SUPREME OOURT OF THE UNITED STATES.
Oct. Tkeii,
APPEAL from the Court of Claims to re-
view ft judgment dismissing a petition
for the recovery from the United States of
a sum alleged to be due to a public con-
tractor. Reversed and remanded with di-
rections to enter judgment for appellant on
the findings.
See same case below, 48 Ct. CI. 169.
Statement by Mr. Justice McKenna:
Appellant is the receiver of the firm of
Cowardin, Bradley, Clay, & Company, and
the successor of one J(4m D. McClennan.
The latter filed in the court of claims a
petition, subsequently amended by appel-
lant, praying a judgment against the United
States for the sum of $43,510, the amount
due that company on a contract for labor
and materials furnished for the construc-
tion of a filtration plant in the District of
Columbia.
The court found, among other things,
that there is a driveway running completely
about the reservoir, which is an irregularly
shaped body of water, comprising the west-
em and southern part of the filtration
plant. The starting point of "the roadway"
(so-called by the court), its course and ter-
mination, are stated.
The set of plans attached to the written
contract, and by its terms made a part of
the agreement, included certain plans show-
ing the roadway bordering the reservoir
west of the filter beds. One of the plans
(sheet 2) was a drawing [150] showing the
work in general sections; another plan
(sheet 4) was a general plan and showed
finished surfaces; and the general plan No.
1 showed the entire projected plant. All
of these plans indicated a roadway, and
sheet No. 16 also indicated a roadway.
Afterwards two supplemental plans, relat-
ing to the roadway and giving details as
to grades, were furnished the contractor.
Appellant's predecessor, McClennan, began
work on the roadway in January or Feb-
ruary, 1904. It does not appear that the
contractor was ordered in terms by the
government engineers to build the road-
way, but it is shown that when he com-
menced work on it the engineers gave him
the line of the toe of the slope, and from
time to time furnished him with the lines
showing the direction of the road and the
stakes showing the grade, and that the
work was done under their inspection as
to the lines, slopes, and the character of
the material allowed to be deposited there-
on.
The contractor began to build the road-
way by filling with earth excavated from
other parts of the work, and he continued
to fill in and build the roadway in accord-
ance with the plans and under the inspeo-
•sa
tion of the engineers until February 14, lOOo^
and had been paid at various times about
$12,000 on account of the work done on esti-
mates made by the government. The first
payment was on voucher, month of March..
1904, covering all work done on the road
up to the end of February, 1904, for *'em-
bankment (A, item No. 2), 13,000 cubic-
yards, at 30 cents, less 10 per cent retained^
amounting to ,$3,510." Except for said
voucher no separate estimates were made
of the amount of fill placed in the roadway,,,
the work done thereon being included in
the regular monthly estimates with the
work done on other portions of the filtra-
tion plant.
Shortly after McClennan was appointed
receiver in [151] August, 1903, he made
arrangements with the Soldiers' Home au-
thorities, at a considerable cost, to dispose
of waste material on the Soldiers' Home
grounds under certain conditions, the terms-
of which, so far as the amount of material
to be placed thereon is concerned, were nev-
er carried out. The roadway was just aa^
convenient a place as any to dispose of
waste material, and the cost of putting it
there was no more than it would have been,
to have placed it on the Soldiers' Home
grounds.
McClennan, he then being receiver, was-
iuformed by the engineer officer in charge
on behalf of the United States that he
would not allow any further payments for
work done on the roadway. For a short
time afterward, and pending negotiations
regarding the matter with the engineer of-
ficer, appellant continued dumping material
that he wanted to dispose of on the road-
way. He finally discontinued work there-
on, at which time about 6,000 cubic yards^
of fill was necessary to complete the road-
way. It was subsequently finished by the
United States without further cost.
In the final settlement there was deducted
from the amount paid a sum equal to such
of the fill in the roadway as had been paid
for at the rate of 30 cents per cubic yard,,
amounting to about $12,000.
**0n or about February 15, 1904, the gov-
ernment engineer in charge had cross sec-
tions taken over the line of the roadway in
question, which cross sections were used in
computing the amount of work done by the
contractor thereon outside of the lines al-
lowed and paid for in the final estimate, and.
the amount of fill so made and not paid for
was found to be 67,578 cubic yards, which,
at 30 cents per cubic yard, amounts to-
$20,273.40."
From these facts the court concluded thai
I appellant was not entitled to recover, and
I Aimww*immMui ths pctitloii. Judgmcnt was en-
941 U. &.
1916
WHITE V. UNITBD STATES.
151-154
tered aooordingly and this appeal was then
pxoaeeuted.
Mr. Ctaanncey Hackett argued the cause
and filed a brief for appellant:
If any doubt remains as to the correct
interpretation of the contract, the practical
construction of the .parties prevails.
Garrison v. United States, 7 Wall. 688,
19 Lw ed. 277; District of Ckilumbia v. Galla-
her, 124 U. 8. 505, 31 L. ed. 526, 8 Sup. Ct.
Rep. 685; United States v. Gibbons, 109
U. S. 200, 27 L. ed. 906, 3 Sup. C?t. Rep. 117;
Lowrey V. Hawaii, 206 U. S. 222, 51 L. ed.
1033, 27 Sup. Ct. Rep. 622; Brooklyn L.
Ins. Co. y. Dutcher, 96 U. S. 269, 24 L. ed.
410; Chicago v. Sheldon, 9 Wall. 50, 19 L.
ed. 594; Old Colony Trust Co. v. Omaha, 230
U. S. 118, 57 L. ed. 1417, 33 Sup. a. Rep.
967; Chicago Q. W. R. Co. v. Northern P. R.
Co. 42 C. C. A. 25, 101 Fed. 796; Atty.
Gen. y. Drummond, 1 Drury & War. 353,
affirmed in 2 H. L. Cas. 837.
Apart from any rights imder the con-
tract, the claimant is entitled to recover
upon quantum meruit.
Belt V. United States, 15 Ct. a. 92; Liv-
ingston v. Ackeston, 5 Cow. 531; Hickam v.
Hickam, 46 Mo. App. 496; Turner v. Web-
ster, 24 Kan. 38, 36 Am. Rep. 261.
Assistant Attorney General Thompson
argued the cause and filed a brief for ap-
pellee.
Mr. Justice McKenns, after stating the
facts as above, delivered the opinion of the
court:
It appears from the findings that the
plans showed a roadway bordering the res-
ervoir. This finding seems to be contested
by the government, the contention being
that where the roadway was to be placed
*'was merely marked," and no detail what-
soever as to its exact location or dimen-
sions was shown by the plans. Tbe finding,
however, is more specific. One of the plans
showed the work in general sections and in-
dicated the roadway; another showed
finished surfaces, with the roadway there-
on; still another showed the entire filtra-
tion plant, the road again being indicated,
and it was marked again on another plan.
Such persistent repetition must have had
other purpose tban mere designation, and,
besides, there were supplemental plans fur-
nished the contractor relating to the road-
way, giving detail as to grades. And, fur-
ther, the engineer in charge gave the "toe
of the slope" to the contractor and "from
time to time furnished him with the lines
showing the direction of the road and the
stakes showing the grade." "The lines,
slopes, and the character of the material al-
•0 li. ed.
lowed to be deposited thereon" were under
his inspection.
The foroe of these findings is added to by
the fact that the engineer first in charge
and under whom the work was commenced
on the roadway drew the plans and his ac-
tion was their interpretation. It was not
inadvertent. The first payment to the eon-
tractor was on a voucher which contained
the work on the road as an item of liabil-
ity, and, though subsequent vouchers
omitted such [163] specification, work on
the roadway was included in the r^^ular
monthly estimates. And this continued un-
til a new engineer came upon the seene.
With him came controversy. He not only
introduced a new construction of the con-
tract, but so far reversed the construction
and action of his predecessor as to deduct in
the final settlements the amounts allowed
by the latter.
Undoubtedly the contract has ambiguity,,
and to present and resolve the ambiguity
in detail would require a precise and literal
examination of the contract. Such exami-
nation would greatly and, we think, useless-
ly, prolong this opinion. We should be
brought, nevertheless, to a few broad de-
termining considerations.
The contention of the government is based
upon what is said to be the purpose of the
contract, which, it is further said, "»o for
as appellant wae concerned [italics coun-
sePs], was the construction of the filtration
plant proper." The appellant, in opposition,
'declares that the contract enumerated three
kinds of fills "and all other fills and em-
bankments shown by the plans or directed
to be made by the engineer officer in
charge." Though some doubts beset appel-
lant's contention and some considerations
bear against it, there are others which de-
termine for it. The most important of the
considerations against it is the charge by
the government that the contractor waa
paid for every yard of excavation, and that
the dirt excavated had to be deposited some-
where, and the roadway "was just as con-
venient a place as any to dispose" of it.
And this is given strength by the fact that
the contractor had arranged, at a consider-
able cost, with the Soldiers' Home authori-
ties to dispose of waste material on the
grounds of the Soldiers' Home.
But there is the countervailing consider*
ation to which we have adverted, that i^
of the action of the engineer first in charge^
and it was he who drew the contract. Ha
was there for direction. He considered that
the roadway [154] was part of the scheme.
He directed and superintended its construc-
tion. And it was a systematic structure,
not a mere dumping place or deposit for
material. It was constructed upon li"-
164 SUPREME COURT OF
t
dopes, and grades, and of selected mate-
rials. Further, in continued manifestation
of his judgment that the contract included
it, and in approval of its conformity to the
contract, he directed pajment for it. There
Is nothing which reflects upon the sincerity
of his judgment, and it is necessarilj the
important factor in determining the re-
sponsibility of the government.
Whether the roadway was necessary or
accessory to the flltration plant is not im-
portant to consider. We may observe, how-
ever, that it was subsequently finished by
the United States, and manifestly deemed
desirable.
Judgment reversed and causa remanded,
with directions to enter judgment for ap-
pellant on the findings and in accordance
with this opinion.
Mr. Justice McReynolds took no part
In the consideration and decision of this
THE UNITED STATES.
Oct. Tddc,
ESTEBAK DE LA RAMA, PUT. in Err. and
Appt.,
V.
AGUEDA BENEDICTO DE LA BAMA.
(See 6. 0. Reporter's ed. 154-160.)
Appeal — from Philippine supreme
court •» local practice — objections
raised too late.
1. The Federal Supreme Court will not
reverse a decree of the supreme court of the
Philippine Islands on objections that a divi-
sion of the conjugal property could not be
asked in a divorce suit in the Philippine
courts, but must proceed on the footing of
a decree already made, and that the judge
of first instance who decided the cause was
illegally designated, where such objections
were not presented to the court below, nor
assigned as error on the appeal.
[For other cases, tee Appeal and Error, VIII.
j; VIII. m. 1, in Digest Sup. Ct. 1908.)
Ck>nstItutIonal law •» due process of law
— procedure.
2. Due process of law does not forbid
the hearing of a cause upon a transcript
of evidence formerly heard in court,— es-
pecially where the course pursued has the
assent of the parties.
CFor other cases, see Constitutional Law, IV.
b, 8, in Digest Sup. Ct. 1908.]
Note. — On the appellate jurisdiction of
the Federal Supreme Court over the su-
preme court of the Philippine Islands — see
note to Martinez v. International Bkg. Corp.
65 L. ed. U. S. 438.
On distinction between appeal and writ
of error — see note to Miners 3ank v. Iowa,
13 L. ed. U. S. 867.
•32
Appeal •» from supreme oovrt of Pbll-
ipplne Islands •» following decision
below.
3. Taking the date of a divorce decree
as the date for liauidating the wife's claim
for a division of tne conjugal property can-
not be held erroneous on appeal to the
Federal Supreme Court from a decree of
the supreme court of th^ Philippine Islands,
on the grounds that there was no formal
decree of separation of the property, and
no such inventory as was required by law,
where there is nothing in the record suffi-
cient to control the opinion of the latter
court that the method adopted by the judge
of first instance "in liquidating the assets
of the conjugal partnership was substan-
tially in accord with the method prescribed
in the Code."
[For other cases, see Appeal and Error, VIII.
m, 1, in Digest Sup. Ct. 1908.]
Interest — on Judgment — from what
time •» judicial discretion.
4. The allowance of interest on a de-
cree for the division of the conjugal prop-
erty from the date of a divorce decree in
the wife's favor is within the discretion of
the court, notwitbbtanding the success of
the husband in reducing the amount on ap-
peal, where that was the date at which,
but for the delays of the law, the wife
would have received her dues, the husband
having bad the lue of the money in the
meantime.
[For other cases, see Interest, I. d; I. f; Ap-
peal and Error, 4393, 4894, in Digest Sup.
Ct. 1908.]
Appeal •» mode of review •» divorce
suit.
6. Appeal, not writ of error, is the
S roper mode of reviewing in the Federal
upreme Court a decree of the supreme
court of the Philippine Islands in a suit
by a wife for divorce, alimony pendenfs lite,
and a division of the conjugal property.
[For other cases, see Appeal and Error, il. b,
in Digest Sup. Ct. 1908.]
[No. 216.]
Submitted April 18, 1916. Decided May 1,
1916.
IN ERROR to and APPEAL from the Su-
preme Court of the Philippine Islands to
review a decree which, on a second appeal,
affirmed a decree in favor of the wife in a
suit by her for divorce, alimony pendente
lite, and a division of the conjugal prop-
erty. Writ of error dismissed. Decree af-
firmed on appeal.
See same case below, 25 Philippine, 437.
The facts are stated in the opinion.
Mr. Rufus S. Day submitted the cause
for plaintiff in error and appellant. Messrs.
Charles Edmond Cotterill and Edmund W.
Van Dyke were on the brief:
The proceeding for divorce and the pro-
ceeding to secure a separation of the prop-
' erty were required by law in the Philippines
241 U. S.
1915.
D£ LA RAMA v. D£ LA RAMA.
157, 168
to be instituted, if mt all, in separate
actions, and they were, therefore, improp-
erly joined.
1 Ruiz Civil Code, p. 306; 1 Manresa,
Comentarios al Codigo Civil Espafiol, p.
396; 9 Code, pp. 769 et seq.
The failure of the supreme court below
to hold that the suit ought to have been
dismissed by the court of first instance —
or to hold, at least, that that part of the
demand of the plaintiff which relates to the
separation of the conjugal partnership prop-
ci^y ought to have been dismissed — is error
of which this court may take cognizance
even though not mentioned in the assign-
ments of error.
Behn v. Campbell, 205 U. 8. 403, 61 L.
ed. 857, 27 Sup. Ct. Rep. 502; Gsell t. In-
sular Collector of Customs, 239 U. 8. 93,
ante, 163, 36 Sup. Ct. Rep. 39.
The courts below erred in attempting to
liquidate the claim of the wife to a share
in the conjugal partnership property as of
July 5, 1002, the date of the judgment of
divorce. The judgment with reference to
the wife's claim to such share was a mere
money judgment. There should have been
an order or decree of separation of the
property in question, as required by law,
and the liquidation should have been made
as of the date of that order or decree. In
the absence thereof, neither the court of
first instance of Iloilo nor the supreme court
of the Islands had jurisdiction to render
any judgment whatever in this branch of
the case.
9 Manresa, pp. 687, 773; 9 Ruiz, civil
code, pp. 184, 208;
The court below erred in affirming that
part of the judgment of the court of first
instance of Iloilo which allows interest on
the amount stated therein from July 6,
1902.
Garrozi v. Dastas, 204 U. S. 64, 51 L. ed.
369, 27 Sup. Ct. Rep. 224; KneeUind v.
American Loan & T. Co. 138 U. S. 509, 34
L. ed. 1052, 11 Sup. Ct. Rep. 426; Dlinois
C. R. Co. V. Turrill, 110 U. S. 301, 28 L. ed.
154, 4 Sup. Ct. Rep. 5.
Messrs. Frederic R. Coudert and How-
ard Thayer Kingsbury submitted the
cause for defendant in error and appellee:
The trial court had power to award a
divorce and liquidate the conjugal property
in the same suit.
De la Rama v. De la Rama, 201 U. 8.
303, 50 L. ed. 765, 26 Spp. Ct. Rep. 485;
De Villanueva v. Villanueva, 239 U. S. 293,
ante, 203, 36 Sup. Ct. Rep. 100; De Lesder-
nier v. De Lesdcrnier, 45 La. Ann. 1364, 14
So. 101; Lozenghcim v. Martin, 7 La. Ann.
180; Duncan v. Brown, 18 N. M. 570, 130
Pac. 140; Howe v. Howe, 4 Nev. 460; Har-
•0 L. ed.
man v. Harman, 1 Cal. 215; Kashaw t.
Kashaw, 3 Cal. 312; Rice t. Rice, 31 Tex.
174.
The judge who rendered the judgment of
December 5th, 1010, had power to do so.
McDowell V. United States, 150 U. S.
506, 40 L. ed. 271, 16 Sup. Ct. Rep. 111.
The appellant has no standing to attack
in this court either the joinder of relief or
the jurisdiction of the trial judge.
The Vaughan (The Telegraph v. Gordon)
14 Wall. 258, 20 L. ed. 807; San Pedro & a
del A. Co. V. United States, 146 U. S. 120,
138, 36 L. ed. 912, 916, 13 Sup. Ct. Rep.
94; McLoughlin v. Raphael Tuck & Sons
Co. 191 U. S. 267, 271, 48 L. ed. 178, 24
Sup. Ct. Rep. 105.
Mr. Justice Holmes delivered the opiniom
of the court:
This is a suit by a wife for divorce, ali-
mony pendente lite, and a division of the
conjugal property. It has been before this
oourt in the first aspect (201 U. S. 303, 50
L. ed. 765, 26 Sup. Ct. Rep. 485), and now
comes here on matters affecting tlie division
of property, beginning with the fundamen-
tal objection that the division could not be
asked in the divorce suit, but must proceed
on the footing of a decree already made.
As to this it is enough to say that no such
error was assigned as a ground for appeal^
and the objection comes too late. At the
previous stage the right of the plaintiff to
her proportion of the conjugal property, to
alimony pending suit, and to other allow-
ances claimed, was said to be the basis of
our jurisdiction. 201 U. 8. 318. De Villa-
nueva V. Villanueva, 239 U. 8. 293, 294,
ante, 293, 295, 36 Sr.p. Ct Rep. 109. The
oourt of first instance had jurisdiction of
the subject-matter, and the separation or un-
ion of the two causes was merely a question
of procedure and convenience. The defend-
ant impliedly [158] admitted the jurisdic-
tion by pleading that there was no common
property, and that "therefore" the separa-
tion should be denied. After the matter had
been adverted to by the trial judge and the
joinder declared proper, it was dealt with
as legitimate by the supreme court, and
upon a petition for rehearing the only
objections urged by the defendant con-
cerned matters of detail. There is every
reason that the local practice sanctioned in
this case by the local courts should not be
disturbed.
The next error alleged in argument also
was not assigned. It is that Judge Norris,
who first heard the evidence, having re-
signed. Judge McCabe, of the court of first
instance, who finally decided the separation
of conjugal property, was designated by
Judge Ross (before whom otherwise the
98S
158-160
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
case would have eome), on the ground that
the latter was disqualified; and that Judge
Ross had no power to do so under the Code
of Civil Procedure tlien in force. Upon
this point again we should not disturb the
course adopted by the local tribunals with-
out stronger reasons than are offered here,
and therefore do not discuss the question
at Icngtii. The parties could have agreed
in writing upon a judge, and they did
agree in writing at a later stage that Judge
McCabe should decide the case without
waiting for the action of the assessors
whom the law provides to assist upon mat-
ters of fact. This objection, like the pre-
ceding, seems not to have been even
suggested to the supreme court of the Phil-
ippines. To listen to it now would be not to
prevent, but to accomplish, an injustice not
to be tolerated except under the most per-
emptory requirement of law.
The next point argued, again not as-
signed as error, is that it seems from the
opinion of the judge of first instance that
the trial was had upon the evidence that
had been offered before Judge Norris. If
we are to assume the fact, it is a most ex-
traordinary suggestion that, even though
the parties seem to have assented to the
course [159 J pursued, due process of law
forbids a hearing upon a transcript of evi-
dence formerly heard in court. We shall
say no more upon this point.
The errors that were assigned may be dis-
posed of with equal brevity. The first one
is the taking of July 6, 1902, the date of
the decree of divorce, afterwards affirmed,
as the date for liquidating the wife's claim.
It is urged that there was no formal decree
of separation of the property, and that un-
til such an order had been made the court
had no right to enter a judgment. It also
is argued that there was no such inventory
as was required by law. But the testimony
and other evidence are not before us, and,
apart from our often-stated unwillingness
to interfere with matters of local admin-
istration unless clear and important error
is shown, there is nothing in the record
sufficient to control the opinion of the su-
preme court of the Islands that "the meth-
od adopted by [the judge of first instance]
in liquidating the assets of the conjugal
partnership was substantially in accord
with the method prescribed in the Code."
^25 Philippine, 445.] We disallow the at-
tempt to reopen some questions of detail,
such as a charge of estimated profits, upon
this and other grounds. See Piza Her-
manos v. Caldentey, 231 U. S. 600, 58 L.
ed. 439, 34 Sup. Ct. Rep. 253.
The only remaining item is charging in-
terest on the judgment from July 5, 1902.
But that was the date at which, but for
•34
the delays of the law, the wife would have
received her dues, the husband has had the
use of the money meanwhile, and we are
not prepared to say that it was not at
least within the discretion of the court to
allow the charge, notwithstanding the suc-
cess of the husband in reducing the amount
on appeal. Stoughton v. Lynch, 2 Johns.
Ch. 209, 219; HoUister v. Barkley, 11 N. H.
501, 511. See Bamhart v. Edwards, 128
Cal. 572, 61 Pac. 176; McLimans v. Lan-
caster, 65 Wis. 240, 26 K. W. 506; Raw-
lings V. Anheuser-Busch Brewing Co. 69
Neb. 34, 94 N. W. 1001. A discretion is
recognized even in actions of tort. Eddy v.
[160] Lafayette, 163 U. S. 456, 467, 41 L.
ed. 225, m, 16 Sup. Ct. Rep. 1082; Eraser
V. Bigelow Carpet Co. 141 Mass. 126, 4
N. E. 620. The judgment upon the appeal
will be affirmed and the writ of error dis-
missed. De la Rama v. De la Rama, 201
U. S. 303, 50 L. ed. 765, 26 Sup. Ct. Rep.
485; Gsell v. Insular Collector of Customs,
23§ U. S. 93, ante, 163, 36 Sup. Ct. Rep. 39.
Writ of error dismissed.
Judgment affirmed.
ELWYN H. JOHNSON, Trustee in Bank-
ruptcy of the Warren Construction Com-
pany, Plff. in Err.,
V.
ROOT MANUFACTURING COMPANY.
(See S. C. Reporter's ed. 160-165.)
Bankruptcy •» unlawful preference —
equitable lien •» payment.
A contract between a railway com-
pany, a construction company, and the
latter's sureties, which, after reciting the
controversy as to whether the construction
contract had been performed, the filing of
claims for liens and attachment suits for
more than the sum admitted by the rail-
way company to be due, and the latter com-
pany's assertion of its right against the
surety companies, fixed a sum to be paid
by the railway company in full settlement
of the mutual claims between it and the
construction company, which sum, with an
additional amount to be furnished by the
surety companies, ^ould be put into the
hands of named trustees "to be used in
paying all lienable claims" growing out of
the construction contract, created an equi-
table lien in favor of all alleged liens which
the parties should deem to have color of
right, and the fund having thus been ap-
propriated and set aside more than four
months before bankruptcy proceedings
against the construction company were be-
gun, a preference was not created by the
formal ascertainment of, and payment to, a
specific beneficiary within the four months*
period.
[For other cases, see Bnnkruptcy, YI. b, 2,
in Digest Sup. Ct. 1908.]
[No. 308.]
adi u. 8.
1915.
JOHNSON V. ROOT MFG. 00.
162, 163
Argued and submitted April 18, 1916. De-
cided May 1, 1916.
IN ERROR to the United SUtes Circuit
Court of Appeals for the Seventh Cir-
cuit to review a judgment which, reversing
a judgment of the District Court for the
District of Indiana, ordered judgment in
favor of the defendant in a suit by a trus-
tee in bankruptcy to recover an alleged
preference. Affirmed.
See same case below, 136 C. 0. A. 139,
219 Fed. 397.
The facts are stated in the opinion.
Mr. W. H. Thompson argued the cause,
«nd, with Messrs. C. O. Shirley, S. D. Miller,
W. H. H. Miller, Fred H. Atwood, Frank
B. Pease, Charles 0. Loucks, and Vernon
B. Loucks, filed a brief for plaintiff in er-
ror:
Cases sustaining equitable liens present
circumstances essentially different from
those involved in the instant case.
Walker v. Brown, 165 U. S. 654, 41 L. ed.
S65, 17 Sup. Ct. Rep. 453; Sexton v. Kess-
ler A^ Co. 225 U. S. 90, 56 L. ed. 995, 32
Sup. Ct. Rep. 657 ; Van Iderstine v. Nation-
al Discount Co. 227 U. S. 575, 67 L. ed. 652,
33 Sup. Ct. Rep. 343; Greey v. Docken-
dorff, 231 U. 8. 513, 58 L. ed 339, 34* Sup.
<)t. Rep. 166; McDonald v. Daskam, 53 C.
C. A. 554, 116 Fed. 276; Ketchum v. St.
Louis, 101 U. S. 306, 315, 25 L. ed. 999.
The contract of January 12, 1912, was
made more than four months prior to bank-
ruptcy, but the contract of April 10, and
the payment made therein, was within the
four months' period. The Root Bianufac-
turing Company was not a party to the
earlier agreement, but, even if it had been,
the transaction would not be deprived of
its preferential character by the fact that
it was effected in carrying out and perform-
ing a contract or other negotiation executed
or agreed upon at a time more than four
months before bankruptcy proceedings.
Wilson Bros. v. Nelson, 183 U. S. 191,
46 L. ed. 147, 22 Sup. Ct. Rep. 74; Re
Smith, 176 Fed. 429; Re Great Western
Mfg. Co. 81 C. 0. A. 341, 152 Fed. 127;
Vitzhun V. Large, 162 Fed. 686; Re Dismal
Swamp Contracting Co. 135 Fed. 415; Re
Bonk, 111 Fed. 154; Long v. Farmers'
State Bank, 9 L.R.A.(NJ9.) 585, 77 C. 0. A.
.638, 147 Fed. 360.
To create an equitable lien, there must
be a clear intention on the part of the par-
ties to do so.
Walker v. Brown, 165 U. S. 654, 41 L. ed.
965, 17 Sup. Ct. Rep. 453.
An instrument creating an equitable
lien must purport to give an absolute pres-
40 li. ed.
ent right. It must purport not to promise*
but to triuisfer the interest.
Sexton V. Kessler A Co. 225 U. S. 90,
56 L. ed. 995, 82 Sup. Ct. Rep. 657.
Mr. Frank 8. Boby submitted the cause
for defendant in error. Mr. Ellas D. Sals*
bury was on the brief:
The payment to the Root Manufactur-
ing Company by Messrs. Littleton and Will-
son, trustees, with the approval of the
bankrupt, the railway company, and the
surety companies, was a construction of the
contract as applied to that claim, and -an
interpretation of the term by the parties
themselves, and such construction and in-
terpretation will be followed by the courts.
Knox County v. Ninth Nat. Bank, 147 U.
S. 91, 99, 37 L. ed. 93, 96, 13 Sup. Ct. Rep.
267; SUinbach v. Stewart, 11 Wall. 566, 20
L. ed. 56; Frazier v. Myers, 132 Ind. 72, 31
N. £. 536.
An equitable lien was created by the
agreements between the parties.
Sexton V. Kessler & Co. 225 U. S. 96, 99,
56 L. ed. 995, 1000, 32 Sup. Ct. Rep. 657.
Mr. Justice Holmes delivered the opinion
of the court:
This is a suit to recover an alleged pref-
erence from the defendant in error. The
circuit court of appeals reversed a Judg-
ment recovered by the plaintiff, and ordered
judgment for the defendant. 135 C. C. A.
139, 219 Fed. 397. This writ of error waa
taken out before the passage of the act of
January 28, 1915, chap. 22, i 4, 38 Stat
at L. 803, 804.
The facts are these: On May 9, 1910, the
Warren Construction Company, the bank-
rupt, had contracted to do some construo-
tion for a railroad company, receiving month-
ly payments on account, and agreeing that
if at any time there should be evidence of
any lien for which the railroad might be-
come liable, and which was chargeable to
the Warren Company, the railroad might
retain an amount sufficient to indemnify it.
Should there prove to be such a claim after
the payments were made, the Warren Com-
pany agreed to refund all moneys the rail-
road might be compelled to pay in
discharging any lien made obligatory in con-
sequence of the Warren Company's default.
The Warren Company gave a bond with
sureties for the performance of this con-
tract. Later it made a [163] written sub-
contract with the Root Manufacturing
Company for materials, in which the Root
Company in the fullest terms renounced all
lien on its own behalf, and contracted that
all under it should do the same. Monthly
payments were to be made on account and
16^166
SUPREME COURT OF THE UNITED STATES.
Oct.
final pAyment within forty days after the
contract was "fulfilled."
In 1911 the Root Company notified the
railroad that it was not being paid, and
that it would not furnish more material
unless the railroad would see that it was
paid. The railroad gave the assurance and
the Root Company continued to furnish the
materials called for by its contract. Seem-
ingly the payments continued to be unsat-
isfactory, and on November 18, 1911, after
the Root Company had performed its con-
tract, there was unpaid $12,895.34. On No-
vember 25, 1911, the Root Company filed
statutory notices of its intention to hold
a lien upon the railroad's property for the
amount then due. On January 12, 1912,
after conferences of all parties concerned, a
contract was made between the railroad, the
Warren Company and its sureties, reciting
controversy as to whether the Warren Com*
pany's contract had been performed, the
filing of claims for liens and attachment
suits for more than the sum admitted by
the railroad to be due, and the railroad's
assertion of its right against the surety
companies. This contract fixed $42,000 as
a sum to be paid by the railroad in full
settlement of the mutual claims between it
and the Warren Company, and provided
that, with $20,000 to be furnished by the
surety companies, the sum should be put
into the hands of named trustees, "to be
used ii^ paying all lienable claims'' growing
out of the construction contract. If the
fund was not sufficient to pay lienable
claims in full, the surety companies were
to furnish the additional money necessary.
After all lienable claims were paid, the
balance, if any, of the fund was to be paid
first to reimburse the surety companies for
their contribution, [164] and after that to
the Warren Company, subject to such at-
tachments as might be filed against the
sum.
On April 10, 1912, a written contract
was made between the railroad, the sureties,
the Warren Company, and the Root Com-
pany, which recited the claim of the Root
Company and that the railroad had money
in its hands, held back under its contract
with the Warren Company, for the purpose
of protecting the roaid against liens, and
agreed that $6,447.67 should be paid to the
Root Company by way of compromise, that
the Root Company should assign its claim
to the trustee under the former instrument,
surrendering to the Warren Company notes
for 60 per cent of its claim, and that the
trustee should reassign to the Root Com-
pany the unpaid portion of its claim when
attachments against the fund had been
disposed of. The payment was made the
same day, and the Root Company executed
93«
a release, as agreed. The sum was a larger
percentage than will be received by the un-
secured creditors of the Warren Company,
but a smaller one than that received by any
other subcontractors with a lien. The peti-
tion in bankruptcy was filed on July 18,
1912, and the above payment was a prefer-
ence if it stood as a payment to an unse-
cured creditor in the circumstances on the
date when it was made.
The circuit court of appeals held that the
instrument of January 12 created an equi-
table lien that justified the payment, al-
though it was of opinion that the lien as-
serted by the Root Company could not have
been enforced. The plaintiff' in error eon-
tenda that the provision in favor of "lien-
able claims" was confined to those that
were secured by a valid lien. We express
no opinion as to whether the lien of the
Root Company, asserted against the prop-
erty of the railroad, could have been de-
feated by its contract with the Warrea
Company notwithstanding the Warren Com-
pany's default. It is enough that we agree
with the ultimate .view of the circuit court
of [165] appeals. The agreement 'of Janu-
ary 12 was intended for practical purposes,
to clear the railroad property from claims.
It contemplated possible controversies, as
it provided for costa, but it did not require
that every disputed lien should be fought
out to the end. It was understood by the
parties to extend to the compromise of
claims that stood upon debatable ground,
as was shown by the agreement ^nder which
the payment was made. It set aside a
specific fund in a third hand to that end.
All the parties acted in good faith. The
$42,000 credited to the Warren Company as
retained by the railroad was nearly twice
what the railroad admitted to be due, apart
from the compromise by which it secured
the application of that sum to clearing its
land. We are of opinion that there is no
reasonable doubt that all parties were jus-
tified in the course adopted, that the in-
strument of January 12 created an equi-
table lien in favor of all alleged liens which
the parties should deem to have color oi
right, and that the fund being thus appro-
priated and set aside, it does not matter
that the formal ascertainment of the ^>e-
cific beneficiary was made within four
months of the bankruptcy proceedings. It
was well understood before. The Root Com-
pany took part in the preliminary discus-
sions, and ^ere can be no doubt that it was
expected by all on January 12 that its
claim, however disputed, would have to be
dealt with when the fund came to be paid
out.
Decree affirmed.
241 U. 8.
1915.
LATTA k T. CONSTRUCTION CO. t. BATTHliOOB.
165
[166] LATTA k TERRY CONSTRUCTION
tOAlPANY, Appt.,
V.
BRITISH STEAMSHIP "RAITHMOOR,"
William Lvaud, Master and Claimant.^
(See S. C. Reporter's ed. 166-177.)
Admiralty jurisdiction •» collision with
uullnlshed pier for beacon.
Ihe admiralty jurisdiction embraces
a libel in rem to recover for the damages
negligently inflicted by a colliding vessel
upon an unfinished foundation pier (and a
temporary platform used in connection with
the work of construction) consisting of con-
crete piles built by a government contractor
on the edge of a navigable channel in water
some 27 feet deep, and intended to support
a beacon to be installed by the United
SUtes.
LFui- other cases, see Admiralty, 187-ld2, in
Digest Sup. Ct. 1908.]
[No. 24.]
Argued January 26, 1016. Decided May 1,
1016.
APPEAL from the District Court of the
United States for the Eastern District
of Pennsylvania to review a decree which
dismissed, for want of jurisdiction, a libel
in rem in so far as it sought to recover
for the damages negligently inflicted by a
colliding vessel upon, an imflnished pier in-
tended to support a government beacon.
Reversed and remanded for further pro-
ceedings.
See same case below, 186 Fed. 849.
The facts are stated in the opinion.
Mr. H. Alan Dawson argued the cause,
and, with Messrs. Edward J. Mingey and J.
Rodman Paul, filed a brief for appellant:
The analogy to an unfinished ship sup-
ports the jurisdiction in the case at bar.
Tucker v. Alexandroff, 183 U. S. 424, 46
L. ed. 264, 22 Sup. Ct. Rep. 105.
The case at bar is ruled by The Black-
heath (United States v. Evans) 195 U. S.
361, 40 L. ed. 236, 25 Sup. Ct. Rep. 46, and
the general principles therein announced
and applied.
Cleveland Terminal ft V. R. C6. ▼.
aeveland S. S. Co. 208 U. S. 316, 320, 52
L. ed. 508, 512, 28 Sup. Ct. Rep. 414, 13
Ann. Cas. 125.
Courts of admiraltj have taken jurisdic-
tion for damages to the following struc-
tures for the reason that they were located
in navigable waters and did not concern
commerce on land:
(1) A beacon.
The 'Blackheath, supra.
1 This case is reported by the Official Re-
porter under the title of "The Raithmoor."
60 li. ed.
(2) Submarine cables rsatiag mi tlw
bottom of navigable water, notwithstanding
connection of the ends with the shore.
Postal Teleg. Cable Co. v. P. Sanford
Ross, 221 Fed. 105; The WiUUm H. Bailey»
100 Fed. 115, affirmed in 50 C. C. A. 76, 111
Fed. 1006; The Anita Berwind, 107 Fed.
721; The City of Richmond, 43 Fed. 85;
Stephens k C. TVansp. Co. t. Western U»
Teleg. Co. 8 Ben. 502, Fed. Cas. No. 13,371*
(8) Temporary platform structure rest-
ing on girders sunk into the bottom of th»
navigable waters of the Hudson river, and
in use by private contractors in the re-
moval of a rock, under contract with th»
government.
The Senator Rice, 212 Fed. 960.
(4) Injury to a person on a pontoon fas-
tened to the shore by a cable, and used aa
a landing in connection with a ferrj.
The Mackinaw, 165 Fed. 351.
(5) Floating bathhouse moored to th»
shore by poles and chains, access to it from
the shore being had over a gangway of
planks.
The M. R. Braios, 10 Ben. 436, Fed. Caa.
No. 9,898.
(6) Floating drydock moored to a wharf.
Simpson t. The Csres, Fed. Cas. No.
12,881.
(7) Raft of logs in tow of a tug in nari-
gable waters.
The F. k P. M. No. 2, 83 Fed. 611.
(8) Fish nets extending out from the-
shore into navigable waters of Albermarl^
sound.
The Armorica, 180 Fed. 603.
(9) Steel blooms thrown into navigable
water through the breaking down of a de-
fective wharf.
The City of Lincoln, 26 Fed. 836.
(10) Salvage by a tug in extinguishing a
fire on a steamship in drydock, undergoinfp
repairs.
The Jefferson, 216 U. 8. 130, 54 L. ed. 125,.
30 Sup. Ct. Rep. 54, 17 Ann. Cas. 907.
(11) Hire of a dredge while engaged in a
partly land transaction in dredging material
from a navigable stream for the purpose of
piping it onto the land in aid of a land pro-
ject.
Bowers Hydraulic Dredging Co. v. Federal
Contracting Co. 148 Fbd. 290.
(12) Repairs to an intrastate canal boat
in drydock.
The Robert W. Parsons (Perry t. Haines)
191 U. S. 17, 48 L. ed. 73, 24 Sup. Ct Rep.
8.
(13) Injury to a floating elevator which
was anchored to and moved up and down
upon wooden spuds imbedded in the mud
under navigable waters, where she was en-
•87
SUPREBiE COURT OF THE UNITED STATES.
Oct. TkBM,
g!aged in trmnsf erring grain from a schooner
to canal boats.
The Frank R. Gibson, 87 Fed. 364.
Courts of admiralty have dectined to take
jurisdiction of injuries to the following
classes of objects upon the ground that they
were land structures:
(1) Warehouse on wharf, houses on shore,
and contents of warehouse on shore.
The Plymouth (Hough v. Western Transp.
Co.) 3 WaU. 20, 18 L. ed. 125; Ex parte
Phenix Ins. Co. 118 U. S. 610, 30 L. ed. 274,
7 Sup. Ct. Rep. 25; Johnson v. Chicago A
P. Elevator Co. 119 U. S. 388, 30 L. ed. 447,
7 Sup. Ct. Rep. 254.
(2) Injuries to a pier, wharf, or dock, and
to persons or property thereon.
Cleveland Terminal A V. R, Co. v. Cleve-
land S. S. Co. 208 U. S. 316, 52 L. ed. 508,
28 Sup. Ct. Rep. 414, 13 Ann. Cas. 125;
The Mary Stewart, 10 Fed. 137; The Mary
Garrett, 63 Fed. 1009; The Albion, 123 Fed.
189; Homer Ramsdell Transp. Co. v. Com-
pagnie Generals Transatlantique, 63 Fed.
845; The Curtin, 152 Fed. 588; The Haxby,
94 Fed. 1010; The Ottawa, Browne, Adm.
356, Fed. Cas. No. 10,616.
(3) Injuries to bridges which immedi-
ately concern commerce upon land.
The Troy, 208 U. S. 321, 62 L. ed. 512, 28
Sup. Ct. Rep. 416; Re Rock Island Bridge,
6 Wall. 213, 18 L. ed. 753; Milwaukee v.
The Curtis, 3 L.RA. 711, 37 Fed. 705; The
John C. Sweeney, 55 Fed. 540; The Neil
Cochran, Browne, Adm. 162, Fed. Gas. No.
10,087.
(4) A marine railway, the upper end of
which was on shore, and securely and per-
manently fastened to the shore, but the
ways of which ran down into navigable
water, merely, however, to facilitate the
transfer of vessels from the water to
the shore, the structure being likened by
the court to a wharf built out into the
stream.
The Professor Morse, 23 Fed. 803.
(5) The surface part of borings made to
locate an aqueduct under the river for the
municipal purpose of supplying water to a
eity.
The Poughkeepsie, 162 Fed. 494, affirmed
in 212 U. S. 558, 53 L. ed. 651, 29 Sup. a.
Rep. 687.
(6) Temporary platform resting on the
bottom of a navigable river and used in
drilling or boring test holes in the work of
building a tunnel or bridge (which does not
clearly appear) for a transit route from
New York city to Brooklyn.
United Engineering & Contracting Co. v.
New York, N. H. & H. Tug Transfer No. 5,
cited in The Poughkeepsie, 162 Fed. 405.
(7) A derick consisting of an upright, the
k>wer extremity of which rested on the soil
«S8
of a shoal in Long Island sound, and in use
in erecting a pier for a lightiiouse at a
place which was not in navigable water, and
had in fact become a part of the land before
the pier construction was begun; the injury
to the derrick being caused by a schooner
striking in navigable water the outer end of
one of the guy lines which ran from the
derrick to an anchorage in the soil under
navigable water off the shoal or land.
The Maud Webster, 8 Ben. 547, Fed. Gas.
No. 9,302.
(8) Goods lost in navigable waters
through being thrown from a wharf as a re-
sult of the collision by a vessel with the
wharf.
The Haxby, 95 Fed. 1.70.
Hie following additional cases contain in-
structive discussions of the rule that local-
ity is the test of jurisdiction in tort:
The Belfast, 7 Wall. 624, 637, 19 L. ed.
266, 269; Manro v. Almeida, 10 Wheat. 473,
6 L. ed. 369; Waring v. Clarke, 5 How. 441,
459, 12 L. ed. 226, 235; New Jersey Steam
Nav. Co. y. Merchants' Bank, 6 How. 344,
394, 12 L. ed. 465, 487; Ex parte Easton, 95
U. S. 68, 72, 24 L. ed. 373, 374; Leathers v.
Blessing, 105 U. S. 626, 630, 26 L. ed. 1192,
1194 ; Panama R. Co. v. Napier Shipping Co.
166 U. S. 280, 285, 41 L. ed. 1004, 1005, 17
Sup. Ct Rep. 572; Martin v. West, 222
U. S. 191, 56 L. ed. 159, 36 L.R.A.(N.S.)
592, 32 Sup. Ct. Rep. 42; Atlantic Transport
Co. V. Imbrovek, 234 U. S. 52, 58 L. ed. 1208,
51 LJLA.(N.S.) 1157, 84 Sup. Ct. Rep. 733;
Atlee V, Northwestern Union Packet Co. 21
Wall. 389, 22 L. ed. 619; The Strabo, 90
Fed. 110; Hermann v. Port Blakely Mill Co.
69 Fed. 646; The H. S. Pickands, 42 Fed.
239; Etheridge v. Philadelphia, 26 Fed. 43;
The C. Accame, 20 Fed. 642; Leonard v.
Decker, 22 Fed. 741 ; The Florence, 2 Flipp.
56, Fed. Cas. No. 4,880; Steele v. Thacher, 1
Ware, 85, Fed. Cas. No. 13,348.
A court of admiralty having rightfully
taken jurisdiction of the damage to appel-
lant's pile driver and barge, should retain it
to redress the entire wrong inflicted by the
same maritime tort.
The St. Lawrence (Meyer v. Tupper) 1
Black; 522, 527, 17 L. ed. 180, 183; New
England Mut. M. Ins. Co. v. Dunham, 11
Wall. 1, 22, 20 L. ed. 90, 96; Benedict, Adm.
3d ed. §§ 329, 358; 1 Kent, Com. 14th ed.
p. 379; Toledo S. S. Co. v. Zenith Transp.
Co. 106 C. C. A. 501, 184 Fed. 301; The
Juliana, 2 Dodson, Adm. 503; The Harriett,
1 W. Rob. 183; The Virgin v. Vyfhius, 8
Pet. 538, 549, 8 L. ed. 1036, 1040; American
Ins. Co. V. Johnson, 1 Blatchf. & H. 9, Fed.
Cas. No. 303 ; Dean v. Angus, Bee, 360, Fed.
Cas. No. 3,702 ; The J. E. Rumbell, 148 U. S.
1, 15, 37 L. ed. 345, 348, 18 Sup. Ct. Rep.
498; Andrews t. Wall, 3 How. 568, 573, 11
241 U. 8.
1916. LATTA k T. CONSTRUCTION CO. v. RAITHMOOR. 172-174
L. ed. 729, 731; The Lottawanna (Wilson V. admiralty against the steamship "Raith-
Bell) 20 Wall. 201, 223, 22 L. ed. 269, 263; moor" to recover damages for tort. The
The Loltawanna (Rodd v. Heartt) 21 Wall, steamship, coming up the Delaware river on
668, 682, 683, 22 L. ed. 664, 664, 666; The the evening of July 18, 1909, collided with
Hamilton (Old Dominion S. S. Co. v. Gil- a scow and pile driver belonging to the ap-
more) 207 U. S. 398, 406, 62 L. ed. 264, 270, pellant, and also with a structure which the
28 Sup. Ct. Rep. 133; M'Donough v. Dan- appellant was erecting for the United States
nery, 3 Dall. 188, 1 L. ed. 663; Waring v. to serve as a beacon, and with a temporary
Clarke, 6 How. 441, 12 L. ed. 226; Erie R. platform used in connection with the work
Co. v. Erie & W. Transp. Co. 204 U. S. of construction. For the injury to the scow
220, 61 L. ed. 460, 27 Sup. Ct. Rep. 246; and pile driver a decree was entered in
United SUtes v. Cornell S. B. Co. 202 U. S. favor of the Ubellant. But the district court
184, 60 L. ed. 087, 26 Sup. Ct. Rep. 648; [173] held that there was no jurisdiction in
The Genesee Chief v. Fitzhugh, 12 How. 443, the admiralty of the claim for the damage
IS L. ed. 1058; Schuchardt v. Babbidge, 19 to the structure and platform, and the libel-
How. 230, 16 L. ed. 626; The John E. Mul- lant appeals. The Raithmoor, 186 Fed. 849.
ford, 18 Fed. 456; The Mariska, 47 C. C. A. The district court thus states the char-
116, 107 Fed. 989; Leland v. The Medora, 2 acter and location of the structure:
Woodb. & M. 93, Fed. Cas. No. 8,237. "The company" (the appellant) "was
-, __ ««^ ^ jixL executing an independent contract with the
.Z\ \ ^^^''^^ »'«^«d ^^ United SUtes, which bound them to furnish
cause and filed a bnef for appellee: ^^^ necessary materials, labor, plant, etc..
The purpose for which a thing is intended ^^^ ^^ ^^^/.„ ,^^^ ^ foundation pier to
does not fix its character, as far as admi- ^^^.^^ ^ ^^^^^^ ^^ ^^^^ was under
ralty jurisdiction is concerned. .. ^ «««♦««„« i -„««^„j„;^« «* • »^^»,.*..„^i>
PeoDle's Ferrv Co v Beers 20 How 393 ^® continual supervision of a government
tfeol^\^f^ tmy \jo. y. ii^T%, IS} tioyf.j}i6, official, but had neither been finished nor
JL ,! ; V ^TrZ' T v.P"S''V . ^''^' accepted. The structure was to consist of
^XIJ^'. 't.^tl ^^^ f"" f; ^^^o!in' three cylindrical piles of reinforced con-
2d 97 Fed. 8.2; The Paradox 61 led 800; ^^^^^ ^\^ ,„„^ ^^^^ 1^^ ,^^^ .„^^ „^^ l^,.
^^:'''"^^ ''^^^"''^^*^^ T^\l^l' ^\b ^' torn of the river, and to project 12 feet
487; The William Wmdom, 73 Fed 406. ^^^^^ „^^„ ^^^ '^^^^^ these to be covered
An in. ury to a structure affixed to the ^.^^ ^ ^^^ 3^, The piles were to
land, and wholly or partially supported by ^ ^^^^^^ .„ ^^^^j ^„^ ^ ^e protected also
It, 18 not capable of bemg redressed in ad- ^y depositing rip-rap around them to a
""'^^ty* specified height. When completed, the pier
The Maud Webster, 8 Ben. 647, Fed. Cas. ^^g to be used solely as a beacon on the
No. 9,302; The Professor Morse, 23 Fed. edge of a navigable channel that has not
803; The Haxby, 94 Fed. 1016, 96 Fed. 170; yet been made ready, and the government
The Plymouth (Hough v. Western Transp. was to insUU upon the cap a lamp and
Co.) 3 Wall. 20, 18 L. ed. 126; The John C. other appliances. The site is i of a mile
Sweeney, G6 Fed. 640; Martin v. West, 222 from the eastern or New Jersey shore, and
U. S. 191, 66 L. ed. 169, 36 L.R.A.(N,S.) about 2 miles from the western or Dela-
592, 32 Sup. Ct. Rep. 42; Johnson v. Chi- ware shore, of the river, and is surrounded
cago & P. Elevator Co. 119 U. S. 388, 30 by navigable water, about 27 feet deep at
L. ed. 447, 7 Sup. Ct. Rep. 264; Milwaukee low tide. The work was begun in June,
V. The Curtis, 3 L.RA. 711, 37 Fed. 706. and at the time of the collision was ap-
Locality is not the sole test of jurisdic- proaching completion. The piles were in
tion in cases of tort. place, and not much remained to be done ex-
Cleveland Terminal & V. R. Co. v. Cleve- cept to put the metal cap into place and
land S. S. Co. 208 U. S. 316, 62 L. ed. 608, deposit the rip-rap. The necessities of the
28 Sup. Ct. Rep. 414, 13 Ann. Cas. 126. work required a temporary platform to be
The jurisdiction of the Federal courts in built close to the concrete piles. This was
admiralty cases is given by the Constitu- of wood, about 16 feet square, and rested
tion. Not even Congress has power to add upon wooden piling driven into the bottom
anything to it. If a subject is not within of the river." Id. p. 860.
this class, the courts can take no cognizance The decisions of this court with respect
of it, whether or not it is connected, as to
time and place, with some others which they
clearly have power to adjudicate.
The at. David, 209 Fed. 986.
Mr. Justice Hughes delivered the opin-
to the jurisdiction [174] of the admiralty in
cases of tort make the question to be deter-
mined a very narrow one. In The Plymouth
(Hough V. Western Transp. Co.) 3 Wall. 20,
36, 18 L. ed. 126, 128, it was broadly de-
clared that ''the whole, or at least the sub-
ion of the court: i stantial, cause of action, arising out of the
The appellant filed a libel m rmn in the wrong, must be e<miplete within the local-
•0 Ja. ed. •S^
174-176
SUPREBiE COURT OF THE UNITBD STATES.
Oct.
itj upon whieh the jariBdiction depends —
on the high aeas or the navigable waters."
Accordingly it was held that a libel for
damage to a wharf and storehouses, caused
bj a fire started on a vessel through negli-
gence, was beyond the limit of admiralty
cognizance, as the damage was wholly done,
and the wrong was thus consummated, upon
the land. Upon this ground, the jurisdiction
of the district court to entertain a petition
for the limitation of the liability of the
shipowner in such a case was denied in Ex
parte Phenix Ins. Co. 118 U. S. 610, SO L.
ed. 274, 7 Sup. Ct. Rep. 25. The principle
was restated in Johnson v. Chicago A P.
Elevator Co. 119 U. S. 388, 397, 30 L. ed.
447, 7 Sup. Ct. Rep. 254. And see Knapp
S. A Co. Co. V. McCaffrey, 177 U. S. 638,
643, 44 L. ed. 921, 924, 20 Sup. Ct. Rep. 824;
Homer Ramsdell Transp. Co. v. La Com-
pagnie Qfo^rale Transatlantique, 182 U. S.
406, 411, 45 L. ed. 1155, 1159, 21 Sup. Ct.
R^. 831. But in The Blackheath (United
States V. Evans) 195 U. S. 361, 49 L. ed.
236, 25 Sup. Ct. Rep. 46, a distinction was
drawn, and the jurisdiction of the admiral-
ty was upheld in the case of an injury
caused by a vessel in n^ligently running
into a beacon which stood 15 or 20 feet
from the channel of Mobile river, or bay, in
water 12 or 15 feet deep, and was built on
piles driven firmly into the bottom. The
court pointed out the essential basis of the
decision, in saying: "It is enough to say
that we now are dealing with an injury to
a government aid to navigation from an-
cient times subject to the admiralty, — a
beacon emerging from the water, injured by
the motion of the vessel, by a continuous
act beginning and consummated upon navi-
gable water, and giving character to the
effects upon a point which is only technical-
ly land, through a connection at the bottom
of the sea." ( Id. p. 367. ) It was suggested in
the concurring opinion of Mr. Justice Brown
(Id. p. 368) that the decision [175] prac-
tically overruled the earlier cases, and that
it recognized the principle of the English
statute extending the jurisdiction of the ad-
miralty court to "any claim for damages
by any ship." This consequence, however,
was exptessly denied in Cleveland Terminal
A Valley R. Co. v. Cleveland S. S. Co. 208
U. S. 316, 320; 52 L. ed. 508, 512, 28 Sup.
Ct. Rep. 414, 13 Ann. Cas. 1215. In that
case it was decided that the admiralty did
not have jurisdiction of a claim for dam-
ages caused by a vessel adrift, through its
allied fault, to the center pier of a bridge
spanning a navigable river and to a shore
abutment and dock. Referring to The
Blackheath, and drawing the distinction we
have noted, the court said: "The damage"
(that is, in The Blackheath) "was to prop-
940
erty located in navigable wators, tokly aa
aid to navigation and maritime in nature^
and having no other purpose or function.
. . . But the bridges, shore docks, protec-
tion piling, piers, etc" (of the Cleveland
Terminal Company) "pertained to the land.
They were structures connected with the
shore and'iounediately concerned commerce
upon land. None of these structures were
aids to navigation in the maritime sense,
but extensions of the shore, and aids to
commerce on land as such." The decision
in The Troy, 208 U. S. 321, 52 L. ed. 512,
28 Sup. Ct. Rep. 416, was to the same effect.
The steamer Troy had collided with the cen-
ter pier of a swinging span over the St.
Louis river, a navigable stream, and the
jurisdiction of the admiralty of a libel for
the injury waa denied. See also Phcenix
Constr. Co. v. The Poughkeepsie, 212 U. S.
558, 53 L. ed. 651, 29 Sup. Ct. Rep. 687;
Martin v. West, 222 U. S. 191, 197, 56 L.
ed. 159, 162, 36 L.R.A.(N.S.) 592, 32 Sup.
Ct. Rep. 42.
If, then, in the present instance, the
metal cap of the beacon had been in place,
the rip-rap deposited, and the beacon put
into actual service, the case would fall
exactly within the ruling of The Blackheath,
and the admiralty would have jurisdiction
although the structure was attached to the
bottom. There would be no difference in
the two cases which would afford the slightest
ground for argument. If, on the other hand,
simply because of the [176] incompleteness
of the beacon, it is to be exclusively identi-
fied with the land, and its intended purpose
is to be disregarded, the admiralty would
have no jurisdiction. We think that a dis-
tinction based solely on the fact that the
beacon was not fully completed would be a
needless refinement, — a nicety in analysb
not required by reason or precedent. We
r^ard the location and purpose of the struc-
ture as controlling from the time the struc-
ture was begun. It was not being built on
shore and awaiting the assumption of a
maritime relation. It was in course of con-
struction in navigable waters, that is, at a
place where the jurisdiction of admiralty in
cases of tort normally attached, — at least
in all cases where the wrong was of a mari-
time character. See The Plymouth, supra;
Atlantic Transport Co. v. Imbrovek, 234
U. S. 52, 58-61, 58 L. ed. 1208, 1211, 1212,
51 L.R.A.(K.S.) 1157, 34 Sup. Ct. Rep.
733, and cases there cited. The relation of
the structure to the land was of the most
technical sort, merely through the attach-
ment to the bottom; it had no connection,
either actual or anticipated, with commerce
on land. It was simply to serve as an aid
to navigation, and while it had not yet bees
finished and accepted, it was being erected
241 V. 8.
1915.
CHICAGO, B. & Q. R. CO. v. HARRINGTON.
17«, 177
under the constant supervision of a govern-
inent inspector acting under the authority
of the United States in the improvement
and protection of navigation. It is urged
that the government might abandon its
plan; but there has been no abandonment.
The question is not as to an abandoned
mass, but as to a beacon in course of erec-
tion. K\en a completed beacon might be
abandoned, and whatever question might
arise in such a case is not presented here.
Again, an analogy is suggested to the case
of a vessel which is being constructed on
flhore, but the argument falls short, as it is
to be remembi*red that as soon as a vessel
is launched, altliough still incomplete, it is
•ubject to the admiralty jurisdiction. Tuck-
or V. Alexandroff, 183 U. S. 424, 438, 46
L. ed. 2G4, 270, 22 Sup. Ct. Rep. 196. This
is not the case of a structure which at any
time was identified with the shore, but, from
the beginning [ 177] of construction, locality
and design gave it a distinctively maritime
relation. When completed and in use, its
injury by a colliding ship would interfere, or
tend to interfere, with its service to naviga-
tion; and, while still incomplete, such an
injury would tend to postpone that service.
We know of no substantial reason why the
jurisdiction of the admiralty should be sus-
tained in the one case and denied in the
other.
With respect to the temporary platform,
it is to be observed that this was a mere
incident to the structure, and as such the
jurisdiction would extend to the claim for
the damage to it.
The decree, so far as it dismissed the
libel for want of jurisdiction, is reversed,
and the cause is remanded for further pro-
ceeding^ in conformity with this opinion.
It is 80 ordered.
CHICAGO, BURLINGTON, k QUINCY
RAILROAD COMPANY, Plff. in Err.,
V.
MAROARET HARRINGTON.
(See S. C. Reporter's ed. 177-180.)
Ma.etcr and servant •» employers* lia-
bility •» wlicn servant is engaged in
interstate coinnicrce.
A member of a railway yard switching
orew engaged in switching loaded goal cars
belonging to the railway company from a
fltora;ze track to a coal shed or chutes was
not then employed in interstate commerce
Note. — On the constitutionality, applica-
tion, and effect of the Federal employers'
liability act — see notes to Lamphere v. Ore-
^n R. A Nav. Co. 47 L.R.A.(N.S.) 38; and
Seaboard Air Line R. Co. v. Horton, i1R.A.
19150, 47.
40 li. ed.
within the meaning of the Federal em-
ployers' liability act of April 22, 1908 (35
Stat, at L. 65, chap. 149, Comp. Stat. 1913,
§ 8657), although the coal thus placed was
to be used by locomotives in interstate
hauls.
[For other cases, see Master and Servant, 11.,
in Digest Sup. Ct. 1908.]
[No. 853.]
Submitted April 17, 1916. Decided May 1,
1916.
IN ERROR to the Kansas City Court of
Appeals of the State of Missouri to re-
view a judgment which aflirmed a judgment
of the Circuit Court of Jackson County, in
that state, in favor of plaintiff in an action
against a railway company for the wrong-
ful death of an employee. Aflirmed.
See same case below, — Mo. App. — , 180
S. W. 443.
The facta are stated in the opinion.
Messrs. O. M. Spencer, William War-
ner, Oliver H. Dean, and U. M. Jjani;-
worthy submitted the cause for plaintiff
in error. Mr. William D. McLeod was on
the brief:
The deceased was engaged and employed
in interstate commerce.
Horton v. Oregon -Washington R. & Nav.
Co. 72 Wash. 503, 47 L.RJk.(N.S.) 8, 130
Pac. 897; Pedersen v. Delaware, L. & W. R.
Co. 229 U. S. 146, 153, 57 L. ed. 1125, 1128,
33 Sup. Ct Rep. 648, Ann. Cas. 19140, 153,
3 N. 0. O. A. 779; Kamboris v. Oregon-
Washington R. A Nav. Co. 75 Or. 858, 146
Pac 1097; Barlow ▼. Lehigh Valley R. Co.
158 App. Div. 768, 143 N. Y. Supp. 1053;
Montgomery v. Southern P. Co. 64 Or. 597,
47 L.R.A.(N.S.) 13, 131 Pac 507; Cousins t.
Illinois C. R. Co. 126 Minn. 172, LHA, — ,
— , 148 N. W. 58, 6 N. C. O. A. 182; Am-
bruster v. Chicago, R. I. A^ P. R. Co. 166
Iowa, 155, 147 N. W. 387 ; Norfolk St W. R.
Co. V. Earnest, 229 U. S. 114, 57 L. ed. 1096,
33 Sup. Ct, Rep. 654, Ann. Cas. 19140, 172;
St. Louis, 8. F. A^ T. R. Co. v. Seale, 229 U.
S. 156, 57 L. ed. 1129, 33 Sup. Ct. Rep. 651,
Ann. Cas. 1914C, 156; North Carolina R. Co.
▼. Zachary, 232 U. S. 248, 58 L. ed. 591, 34
Sup. Ct. Rep. 305, Ann. Cas. 1914C, 159, 9
N. C. C. A. 109; Northern P. R. Co. t.
Maerkl, 117 C. C. A. 237, 198 Fed. 1; Law
V. Illinois C. R. Co. L.R.A. 1916C, 17, 126
C. C. A. 27, 208 Fed. 869; Great Northern
R. Co. v. Knapp, 240 U. 8. 464, ante, 745, 36
Sup. Ct. Rep. 399.
Mr. J. G. li. Harrej snbmitted the tanM%
for defendant in errors
An employee engaged in switching com*
pany coal from the company's storage trade
to its warehouse, especiallj whan the coal
•41
178-180
SUPREME COURT OF THE UNITED STATES.
Oct. Tool,
came from the railway company's mine, all
within the state of Missouri, is not engaged
in interstate commerce within the purview
of the Federal employers' liability act of
April 22, 1008, and amendments thereto of
1910.
Illinois C. R. Co. v. Behrens, 233 U. S.
473, 58 L. ed. 1051, 34 Sup. Gt. Rep. 646,
Ann. Cas. 1014O, 163; Pedersen v. Delaware,
L. & W. R. Co. 229 U. S. 146, 57 L. ed.
1125, 33 Sup. Ct. Rep. 648; Ann. Cas. 1914C,
153, 3 N. C. C. A. 779; Employers' Liability
Cases (Howard v. Illinois C. R. Co.) 207 U.
S. 463, 52 L. ed. 297, 28 Sup. Ct. Rep.
141; Second Employers' Liability Cases
(Mondou V. New York, N. H. & H. R. Co.)
223 U. S. 1, 56 L. ed. 327, 38 L.RA.(N.S.)
44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875;
Delaware, L. & W. R. Co. v. Yurkonis, 238
U. S. 439, 59 L. ed. 1397, 35 Sup. Ct. Rep.
902; Shanks t. Delaware, L. & W. R. Co.
239 U. S. 556, ante, 430, 36 Sup. Ct. Rep.
188.
Mr. Justice Hughes delivered the opinion
of the court:
Margaret Harrington brought this action
to recover damages for the death of her
husband, Patrick Harrington, a switchman
employed by the plaintiff in error. She ob-
tained judgment under the state law, the
plaintiff in error contending unsuccessfully
that the decedent was engaged in inter-
state commerce and that the case was gov-
erned by the Federal employers' liability
act 180 S. W. 443. The state court said,
in its statement of facts:
"Defendant owns and operates a system
of railroads covering this and a number of
other western states and is a common car-
rier of both interstate and intrastate traffic.
Its terminal yards at Kansas City are in
Missouri and are an important center for
the handling of both kinds of business orig-
inating upon and confined to defendant's
lines, as well as for the interchange of busi-
ness with other interstate railroads. Loco-
motives and cars [179] used in both kinds
of traffic are received, sent out, cared for, and
repaired in the yards. The switching crew
of which Harrington was a member did not
work outside of this state, and was en-
gaged, at the time of his death, in switch-
ing coal belonging to defendant, and which
had been standing on a storage track for
some time, to the coal shed, where it was
to be placed in bins or chutes and supplied,
as needed, to locomotives of all classes,
some of which were engaged or about to be
engaged in Interstate and others in intrastate
traffic. It may be conceded, as argued by
defendant, that none of its locomotives
or cars was set apart for service only in
intrastate commerce. Defendant operated
94g
local trains from Kansas City to terminal
points in this state which carried only
intrastate commerce, but tlie locomotives
and cars of such trains were subject to be
diverted to other trains engaged in inter-
state commerce."
The plaintiff in error takes exception to
the statement in part, asserting that there
was no evidence that any of the locomotives,
which were supplied with fuel from the
coal chutes, were engaged exclusively in
intrastate commerce, or that any of the
defendant's trains witliin the state were
engaged exclusively in that commerce. For
tlie present purpose, we may assume the
fact to be as stated by the plaintiir in error,
and we may also assume, as it insists, that
there was no evidence that the coal had
been brought from mines within the state
of Missouri or from mines owned by the
plaintiff in error. With the movement of
the coal to the storage tracks, however,
we are not concerned; that movement had
long sinco ended, as it is admitted that the
coal was owned by the company, and *'had '
been in storage in its storage tracks for a
week or more prior to the time it was being
switched into the coal chutes on the morn-
ing of the accident." So, also, as the ques-
tion is with respect to the employment of
the decedent at the time of the injury
(Illinois [180] C. R. Co. v. Behrens, 233 U. S.
473, 478, 58 L. ed. 1051, 1055, 34 Sup. Ct. Rep.
646, Ann. Cas. 1914C, 163), it is not im-
portant whether he had previously been en-
gaged in interstate commerce, or that it
was contemplated that he would be so en-
gaged after his immediate duty had been
performed. That duty was solely in con-
nection with the removal of the coal from
the storage tracks to tlie coal shed, or
chutes, and the only ground for invoking
the Federal act is that the coal thus placed
was to be used by locomotives in interstate
hauls.
As we have pointed out, the Federal act
speaks of interstate commerce in a prac-
tical sense suited to the occasion, and ''the
true test of employment in such commerce
in the sense intended is. Was the employee
at the time of the injury engaged in inter-
state transportation, or in work so closely
related to it as to be practically a part of
it?" Shanks v. Delaware, L. k W. R. Co.
239 U. S. 556, 558, ante, 436, 438, 36 Sup. Ct.
Rep. 188, and cases there cited. Manifestly,
there was no such close or direct relation
to interstate transportation in the taking
of the coal to the coal chutes. Hi is was
nothing more than the putting of the coal
supply in a convenient place from which
it could be taken as required for use. It
has been held that an employee of the car-
rier, while he is mining ooal in the earrier's
941 V. 8.
1910.
KANSAS CITY S. R. CO. v. JONES.
180, 181
colliery, intended to be used by its inter-
state locomotives, is not en^ged in inter-
state commerce witliin the meaning of the
Federal act (Delaware, L. Sc VV. K. Co. v.
Yurkouis, 238 U. S. 431), 50 L. ed. 1307, 30
Sup. Ct.'Rep. 160), and there is no distinc-
tion in ])rinciple between the two cases. In
Great Northern R. Co. v. Knapp, 240 U. S.
464, ante, 745, 36 Sup. Ct. Rep. 300, the
question whether the employee was engaged
in interstate commerce was not presented, as
the application of the Federal statute was
conceded in the state court.
Judgment affirmed.
[181] KANSAS CITY SOUTHERN RAIL-
WAY COMPANY, Plff. in Err.,
V.
MRS. NORA M. JONES, Administratrix of
the Succession of T. A. Jones, Deceased.
(See S. C. Reporter's ed. 181-183.)
Error to state conrt •» prejudicial er-
ror •» employers* liability — exclud-
ing evidence of contributory negli-
^nee.
Reversible error is committed by the
highest court of a state in ruling that evi-
dence of contributory negligence in an ac-
tion under the Federal employers' liability
met of April 22, 1008 (35 SUt. at L. 65,
chap. 140), as amended by the act of April
5, 1010 (36 SUt. at L. 201, chap. 143, Comp.
Stat. 1013, § 8662), which it found that the
trial court had rejected for a wron^ rea-
son, viz,, because contributorv negligence
was not pleaded, was nevertheless properly
excluded because it was not offered for the
specific purpose of mitigating the damages,
where there was no settled local rule re-
quiring counsel, without inquiry by the
court, to announce in advance the purpose
for which evidence is tendered.
[For other cases, see Appeal snd Brror, 5051-
5065, in Digest Sup. Ct. 1008.J
[Ko. 402.]
Argued April 3 and 4, 1016. Decided May
1, 1016.
IK ERROR to the Supreme Court of the
State of Louisiana to review a judgment
which affirmed a judgment of the District
Court of Caddo Parish, in that state, in
favor of plaintiff in an action under the
Note. — On the constitutionality, applica-
tion, and effect of the Federal employers'
liability act — see notes to Lamphere v. Ore-
gon R. k Nav. Co. 47 Ii.R.A.(Nj3.) 38; and
Seaboard Air Line R. Co. v. Horton, L.R.A.
1915C, 47.
On error to state courts in cases arising
under the Federal employers' liability act —
see note to Great Northern R. Co. T. Knapp,
ante, 745.
•0 li. ed.
Federal employers' liability act. Reversed
and remanded for further proceedings.
See same case below, 137 La. 178, 68 So.
401.
The facts are stated in the opinion.
Mr. 8. W. Moore argued the cause, and,
with Messrs. F. H. Moore and J. D. Wilkin-
son, filed a brief for plaintiff in error:
The supreme court of Louisiana erro-
neously held that, although the defendant
had the right to offer such evidence in miti-
gation of damages, such evidence, in the
present case, was properly excluded, since
the defendant, in offering the evidence, did
not expressly restrict it to that specific
purpose.
38 Cyc. 1340; Buckstaff v. Russell A Co.
151 U. S. 626, 638, 38 L. ed. 202, 206, 14
Sup. Ct. Rep. 448; McAfee v. Crofford, 13
How. 447, 456, 14 L. ed. 217, 221 ; People ▼.
Doyle, 21 Mich. 227; State v. Farmer, 84
Me. 440, 24 Atl. 085; Pegg v. Warford, 7
Md. 582, 607; Wigmore, £v. § 13; Clark v.
Hull, 184 Mass. 164, 68 N. £. 60 ; Ponder v.
Cheeves, 104 Ala. 307, 16 So. 145; Farns-
worth V. Nevada Co. 42 C. C. A. 500, 102 Fed.
578; Mighell v. Stone, 175 111. 261, 51 N. £.
006; Hubbard t. Allyn, 200 Msss. 166, 86 N.
£. 356; £mrich v. Union Stock Yard Co. 86
Md. 482, 38 Atl. 043; Consolidated Ice Mach.
Co. V. Keifer, 134 111. 481, 10 L.U.A. 606, 23
Am. St. Rep. 688, 25 N. £. 700; Morris v.
Atlantic Ave. R. Co. 116 N. Y. 552, 22 N. E.
1007; Hauff v. South Dakota C. R. Co. 34
S. D. 183, 147 N. W. 086; Birmingham R.
Light St P. Co. V. Barrett, 170 Ala. 274, 60
So. 262; Coolidge v. Boston £lev. R. Co. 214
Mass. 668, 102 N. £. 74; Mitchell v. Har-
oourt, 62 Iowa, 840, 17 N. W. 581 ; Calvert
County V. Gantt, 78 Md. 286, 28 Atl. 101, 20
Atl. 610; Re Potter, 161 N. Y. 84, 56 N. £.
387; Gunn v. Ohio River R. Co. 36 W. Va.
165, 32 Am. St. Rep. 842, 14 S. £. 405;
Guertin v. Hvdson, 71 N. H. 505, 53 Atl.
736; Bell T. Missouri, K. & T. R. Co. 36
Tex. Civ. App. 560, 82 S. W. 1073; Shumard
v. Johnson, 66 Tex. 70, 17 S. W. 308; Boddy
v. Henry, 126 Iowa, 31, 101 N. W. 447;
Aughey v. Windrem, 137 Iowa, 315, 114
N. W. 1047; Union Sav. Asso. v. £dwards,
47 Mo. 446; Ft. Worth A D. C. R. Co. v.
Harlan, — Tex. Civ. App. — , 62 S. W. 071;
Appleton Mill Co. ▼. Warder, 42 Minn. 117,
43 N. W. 701; Kerbaugh t. Caldwell, 80
C. C. A. 470, 151 Fed. 105, 10 Ann. Cas. 453;
OX^onnell v. Cox, 170 Mass. 250, 60 N. E.
580; Bode t. Lee, 102 OaL 583, 36 Pac' 036;
Fidelity A D. Co. v. NUbet, 110 Ga. 316, 46
S. B. 444; Illinois Steel Co. ▼. Paczocha, 130
jWis. 28, 119 N. W. 550; Smith t. Smith,
1 106 Ind. 43, 6 N. E. 411; Keesling v. Doyle,
8 Ind. App. 43, 35 N. E. 126; Chicago A, N.
* W. R. Co. T. De Clow, 61 a a A. 34, 124
•4S
181
SUPREME COURT OF THE UNITED STATES.
Oor. Tknc,
Fed. 143, 14 Am. Neg. Rep. 678; ReBurree-
tion Gold Min. Co. v. Fortune Gold Min. Co.
64 C. C. A. 180, 120 Fed. 677; Stanley v.
Beckham, 82 C. C. A. 304, 153 Fed. 165;
Prettyman v. United States, 103 C. C. A.
384, 180 Fed. 88; Himrod t. Ft. Pitt Min.
^ Mill. Co. 121 C. C. A. 186, 202 Fed. 724;
Fortunich v. New Orleans, 14 La. Ann. 115;
Thompson v. Chauveau, 6 Mart. N. S. 462;
Casper t. Prosdame^ 46 La. Ann. 36, 14 So.
817.
Since the rulings complained of by de-
fendant were rulings concerning questions
of law, including the question as to the
legal effect of the evidence as to contribu-
tory negligence, and were with direct refer-
ence to the denial to defendant of a right or
immunity claimed under the Federal em-
ployers' liability act, they constitute Fed-
oral questions reviewable by this court.
Chapman & D. I^nd Co. t. Bigelow, 206
U. S. 41, 51 L. ed. 053, 27 Sup. Ct. Rep. 670 ;
SUnley t. Schwalby, 162 U. S. 255, 278, 40
L. ed. 060, 068, 16 Sup. Ct. Rep. 754; Kan-
sas City Southern R. Co. v. G. H. Albers
Commission Co. 223 U. S. 501, 56 L. ed. 565,
82 Sup. Ct. Rep. 316; kft. Louis, L M. k
S. R. Co. V. McWhirter, 220 U. S. 265, 57 L,
ed. 1170, 33 Sup. Ct Rep. 858; Norfolk
Southern R. Co. v. Ferebee, 238 U. S. 260,
60 L. ed. 1303, 35 Sup. Ct. Rep. 781.
Mr. Leon R. Smith argued the cause,
and, with Messrs. Newton C. Blancliard and
Otis W. Bullock, filed a brief for defendant
in error:
When the offer of testimony includes that
which is admissible with that which is not,
and the competent and incompetent are
blended together, it is not the duty of the
court to separate the legal from the illegal,
but the whole may be rejected when objec-
tion is made.
5 Jones, £t. § 804, p. 377; Farleigh t.
Kelley, 28 Mont. 421, 63 L.RJ[. 310, 72 Pac.
756; Vurpillat v. Zehner, 2 Ind. 307, 28
N. £. 556; St. Louis, L M. A^ S. R. Co. v.
Hendricks, 48 Ark. 177, 3 Am. St. Rep. 220,
2 S. W. 783, 8 Am. Neg. Cas. 37 ; Shewalter
T. Bergman, 123 Ind. 155, 23 N. £. 686;
Cole V. Horton, — Tex. Civ. App. — , 61
S. W. 503; First Nat. Bank t. North, 2
S. D. 480, 51 N. W. 06; Over v. SchifBing,
102 Ind. 101, 26 N. E. 01.
Averments of a Federal question to give
jurisdiction to this court to review a state
judgment must be so distinct and positive
as to place it beyond question that the
party bringing the case here from the state
court intended to assert a Federal right.
Mutual L. Ins. Co. v. McGrew, 188 U. S.
308, 47 L. ed. 484, 63 L.RA. 33, 23 Sup. Ct.
Rep. 375; Loeb v. Columbia Twp. 170 U. S.
472, 45 L. ed. 280, 21 Sup. Ct Rep. 174:
944
F. G. Oxley Stave Co. t. Butler Ckmnty,
166 U. S. 648, 41 L. ed. 1140, 17 Sup. Ct
Rep. 700; Michigan Sugar Co. ▼. Michigan
(Michigan Sugar Co. ▼. Dix) 186 U. 8. 112,
46 L. ed. 820, 22 Sup. Ct Rep. 581; atixens*
Sav. Bank v. Owensboro, 173 U. S. 636, 43
L. ed. 840, 10 Sup. Ct Rep. 6S0, 671; Sea-
board Air Line R. Co. v. Duvall, 225 U. &
477, 488, 56 L. ed. 1171, 1176, 82 Sup. Ct
Rep. 700; Benson v. United States, 146
U. S. 325, 36 L. ed. 001, 18 Sup. Ct Rep. 60;
Jacobi V. AUbama, 187 U. & 133, 47 L. ed.
106, 23 Sup. Ct Rep. 48.
It is essential that the record should dis-
close not only that the alleged right, priv-
ilege, or immunity was specially set up and
claimed in the court below, but that the de-
cision of that court was against the right so
set up or claimed.
Clark T. Pennsylvania, 128 U. 8. 805, 32
L. ed. 487, 0 Sup. Ct Rep. 113.
It is not error to exclude evidence, ad-
missible for one purpose, when offered for
another specific purpose for which it Is in-
admissible.
Jeflfersonville, M. d^ I. R. Co. v. Riley, 30
Ind. 568; Hart v. Brierley, 180 Mass. 508,
76 N. E. 286; Hamberg v. St Paul, F.AU,
Ins. Co. 68 Minn. 335, 71 N. W. 388; Howard
V. Vaughan-Monning Shoe Co. 82 Mo. App.
405; Root v. Monroeville, 16 Ohio C G. 617,
4 Ohio C. D. 53; Stickney v. Hughes, 12
Wyo. 307, 75 Pao. 046, 13 Wyo. 257, 79
Pac. 022.
Generally, in order to predicate error on
the overruling of an objection to testimony,
specific ground of objection must have been
brouglit to the attention of the trial court
prior to the ruling. But, where a general
objection to evidence is sustained, the
party against whom the ruling was made
cannot urge as a ground of reversal that the
objection was not specific
Hurlbut V. Hall, 30 Neb. 880, 58 N. W.
538; International Harvester Co. v. Mc-
Keever, 21 S. D. 01, 100 N. W. 642.
WHiile the trial court was not bound to
seek grounds for excluding evidence upon
a general objection thereto, if it did so, and
found a valid objection, the person offering
it cannot complain.
Adams v. Southern R. Co. 166 Ala. 440,
51 So. 087.
If the exclusion of certain evidence is
proper on any ground, the cause will not be
reversed because the objection to it was not
sufficiently definite, unless the objection
not urged might have been obviated.
Spottiswood V. Weir, 80 CaL 448, 22 Pac
280.
Mr. Justice McReynolda delivered the
opinion of the court:
Claiming under the Federal employers'
S41 V. 8.
1915.
HARYLAND DREDGING k C. 00. v. UNITED STATES.
181-184
liability act (chap. 140, 36 Stat, at L. 65, | death, the fact that the employee may have
ehap. 143, 36 Stat, at L. 291, Comp. Stat. 1013, been guilty of contributory negligence shall
9 8662), [188] defendant in error brought
this suit in a state court against the rail-
road company to recover damages resulting
from her husband's death by accident while
employed as engineer on a passenger train.
A loaded car, having escaped from the
•witching crew, ran down a long grade,
struck his engine with great violence as it
was rounding a curve near the Shreveport
yard, and killed him.
The company denied negligence on its
part, but interposed no plea setting up the
<lefense of contributory negligence. A jury
found for the administratrix, and judgment
thereon was affirmed by the supreme court
of the state.
During cross-examination of the fireman,
«oun8el attempted to show that the engineer
was negligent in not having his train under
proper control. The court sustained an ob-
jection "to any evidence as to contributory
negligence as same is not pleaded." Proper
exception was taken and duly noted. There-
upon, the record recites, "counsel for plain-
tiff asks that this objection and ruling and
bill of exceptions be made general to apply
to all such evidence and it is so ordered."
Upon rebcaring the supreme court held evi-
<]cnce of contributory negligence, though not
pleaded, and inadmissible to defeat a re-
covery, should have been received in miti-
gation of damages if offered for that spe-
cific purpose. But it said the evidence in
<{ue8lion was properly excluded because ten-
dered without restriction.
We have been cited to no authority show-
ing a settled local rule requiring counsel,
without inquiry by the court, to announce
in advance the purpose for which evidence
is tendered. Earlier cases in Louisiana lend
support to the contrary and commonly ap-
proved practice. Thompson v. Chauveau, 6
Mart. N. S. 458, 461; Hitchcock v. North,
5 Bob. (La.) 328, 329. 39 Am. Dec. 540;
Fortunich v. New Orleans, 14 La. Ann. 115;
Caspar v. Prosdame, 46 La. Ann. 36, 14
So. 317. See McAfee v. Crofford, 13 How.
447, 456, 14 L. ed. 217, 221; Buckstaff v.
Russell k Co. 151 U. S. 626, 636, 38 L. ed.
292, 296, 14 Sup. Ct. Rep. 448; Famsworth
▼. Nevada Co. 42 C. C. A. 500, 102 [183]
Fed. 578, 580; Hubbard v. Allyn, 200 Mass.
166, 171, 86 N. E. 356; Mighell v. Stone, 175
ni. 261, 262, 51 N. E. 906.
It is declared by the act of Congress
upon which the suit is based: —
"Sec. 3. That in all actions hereafter
brought against any such common carrier
by railroad under or by virtue of any of
the provisions of this act to recover dam-
not bar a recovery, but the damages shall
be diminished by the jury in proportion to
the amount of negligence attributable to
such employee. • • ."
Manifestly, under this provision, a de-
fendant carrier has the Federal right to a
fair opportunity to show in diminution of
damages any negligence attributable to the
employee.
The state supreme court upheld the rail-
way company's claim of right to show con-
tributory negligence under its general
denial; but the trial court emphatically
denied this and positively excluded all evi-
dence to that end. As, under the Federal
statute, contributory negligence is no bar to
recovery, the plain purpose in offering the
excluded evidence was to mitigate damages.
In such circumstances it was unnecessary
to go through the idle form of articulating
the obvious. If timely objection upon the
ground ultimately suggested by the supreme
court had been sustained, it could have been
easily obviated; but counsel had no reason
to anticipate such a ruling, and certainly,
we think, were not required to do so at
their peril.
Plaintiff in error has been improperly de-
prived of a Federal right. The judgment
below is accordingly reversed and the cause
remanded for further proceedings not incon-
sistent with this opinion*
Reversed.
[184] MARYLAND DREDGING k OON-
TRACTING COMPANY, Appt,
V.
UNITED STATES.
(See S. 0. Reporter's ed. 184-190.)
Public contracts — delay in completing
— liquidated damages — unforeseen
condition — extension of time.
The encountering of the stumps and
roots of a submerged forest in excavating a
channel for the United States does not re-
lieve the contractor from liability under his
contract to ,pay the stipulated liquidated
damages and the additional cost of super-
vision and inspection In case the work
is not finished in time, where the Chief
Engineer refused to sanction any extension
of time, and the contract, which makes
time of ita essence, provides that if com-
pletion is delayed by strikes, epidemics,
qusrantine restrictions, or by the "abnormal
force or violence of the elements," addi-
tional time may, with the sanction of the
Chief Engineer, be allowed, the specifica-
, . . . , ^®' ,^*™' tions further stating that the time aUowed
Ages for personal injuries to an employee, | ig considered sufficient ''unless extraordi-
or where such injuries have resulted in his nary and unforeseeable conditions super-
•0 li. ed. 60 94ft
SUPREME COURT OF THE UNITED STATES. Oor. Tknc^
Tsne,** and warning each bidder to examine naed. thera ean be no doubt bat that the
and decide for himself the character of the contractor, upon the principle announced
material to be excavated, at no allowance |>y the following authoritiea, would have
will be made except for the removal of auch ^ee^ ^titled to an extension of time on
'"'d''"*m *t avef" boulders, ^^^^^ ^^ encountering this submerged
[Por'^n.e?%.S«r8ie United Sutes, VI. e. forest at the point and under the oondi-
la Digest Sup. Ct. 1908.] tions alleged in the amended petition.
Williams ▼. Grant, 1 Conn. 487, 7 Am.
[No. 310.] D^ 285; Bullock ▼. White Star 8. S. Co.
. . „ «. ,**,- ^ .J ^ w o 30 Wash. 448, 70 Pac 1106; 1 Words A
Argued April 25, 1915. Decided May 8, p|j„^g^ jjg
^^^^' When Captain Brown, the engineer hi
A »««:.«▼ # At. /^ -A tf /^ 1 A charge, once reached the oonelusion that
PPEAL from the Court of Claims to ^^^ ^eountering of the mbmergad forest
review a judgment dismissing, upon ^^^.^,^ appellant to an extwaioiof time,
fryru'L^r. ''". ^ '^T^'^ . "? ^ decision wa..bindi«g upon the gOTem.
the United SUtc. of a part of Uie contract ^^^ ^^ ^^,^ ^^ the^tfter decide
price of a public improvement, withheld ^^.^ .^^^^j^, .^„ otherwise,
beaiuse of delay in completion. Affirmed. ^^^^^ g^^ ^ ^^ ^^^ ^ g
See same case below, 49 Ct CI. 710. 44 L. ed. 284. 20 Sup. Ct. Rap. 228; Kihl-
The facU are stated in the opinion. ^^^ ^ ^nit^i Statei, 97 U. S. 898, 24 L
Mr. C. C. Calhoun argued the cause, and, ed. 1106; United Statea ▼. Barlow, 184 U.
with Messrs. D. B. Henderson and J. Bar- S. 123, 46 L. ed. 463, 22 Sup. Ct. Rep. 468;
rett Carter, filed a brief for appellant: Chicago, S. F. A C. R. Co. ▼. Priea, 138 U. 6.
llie word ''such," as here used, meant of 187, 34 L. ed. 917, 11 Sup. Ct. Rep. 290.
like kind or character in regard to the diffi- The construction which tha parses them*
eulty in handling or the cost of removing, selves have placed upon the oontimct ahould
and was used to protect the contractor control.
against just such hardship aa was encoun- District of Columbia ▼. GaUaher, 124 U.
tared. S. 505, 31 L. ed. 526, 8 Sup. Ct fiiep. 585;
Com. T. Miller, 3 Cush. 243; Ventura Garrison ▼. United States, 7 Wall. 688, 19
County ▼. Clay, 112 Cal. 65, 44 Pac. 488; L. ed. 277; United Statea t. Gibbons, 109
Ogden ▼. Glidden, 9 Wis. 46; Travers y. U. S. 200, 27 L. ed. 906, 8 Sup. Ct. Rep.
Wallace, 93 Md. 507, 49 Atl. 415. II7.
The use of the terms "abnormal force or A sum stipulated to be paid aa liquidated
violence of the elements*' clearly indicates damagea on the breach of an agreement,
the purpose of the government to give re- where no actual damage reanlted there-
lief to the contractor in the event it encoun- from, constitutes a penalty, although there
tered any '^extraordinary and un foresee- waa no ambiguity or obacurity in the words
able" obstruction furnished by nature. or language employed.
Baily v. De Crespigny, L. R. 4 Q. B. 180. 1 Sedgw. Damages, 9th ed. p. 779; Tay-
88 L. J. Q. B. N. S. 98, 19 L. T. N. S. 681, loe ▼. Sandiford, 7 Wheat. 18, 5 L. ed. 384;
17 Week. Rep. 494, 15 Eng. Rul. Cas. 799; Van Buren t. Diggea, 11 How. 461, 13 L.
Stewart ▼. Stone, 127 N. Y. 500, 14 LuRJL. ed. 771.
^^^u^ u' ^* ^^^\ i A i .^uu K «# fi^a Assistant Attorney General ThompaoD
The phrases contained in article 5 of the ... j iii j^ v.: # # 5T«
contract, "by abnormal force and violence *'8;"^ ^^ ^"^ ^^ ^^^ * ^'^«' '^' •?'
of the elements," and in § 16 of the specifi- ^\,: ,.-. ... . v^«^„ . ,.^*
.. « 1 A 1- ^ A ..«#^.« Unforeseen difficulties, however great,
cations, "unless extraordmary and unforer .„ , , ., 1 ^ t ^«
«eable condition, superven. » .re equiva- ^'" "»» «"»"* ^••»"" ^ P^^"™ • «"•
lent to and .hould be giv«, the •»«"« »>«»»; '^"a^negie Steel Co. t. United Stote.. S«>
ing, force, and effect as the well-known 7* -^ oT^o^o.
phrase "a^t of God," used in contracts, as ^' ^' f «' ^^' ^^^ 36 Sup Ct. Rep. 342
dearly appears from the following: I^^o*^7•/''!^7WJ• q^'^'I^- .• *^
Packard^. Taylor, 30 Ark. 402, 37 Am. 1» 7, 8, 17 L. ed. 762, 764; Sun Printing A
Rep. 37; Polack v. Pioche, 35 Cal. 416, 96 Pub. Asso. v. Moore, 183 U. S. 642, 46 L.
Am. Dec. 115; Sprowl v. KelUr. 4 Stew. A ed. 36O, 22 Sup. Ct. Rep. 240; The Ham-
P. (Ala.) 382; New Brunswick S. B. A man, 9 WalL 161, 19 L. ed. 629.
Canal Transp. Co. ▼. Tiers, 24 N. J. L. 714, 1 The case of the United Statea v. Bethk-
64 Am. Dec. 394; 1 Cyc 768; 1 Words A hem Steel Co. 205 U. S. 105, 119, 51 L. eA
Phrases, 118.
If this equivalent phrase, "act of God,"
had been used in the contract and speci
731, 736, 27 Sup. Ct. Rep. 450, is conclu-
sive of the right of the government t9
charge liquidated damagea without a show-
fications, instead of the phrases which were ing of actual damages in the premiaea.
94e S41 U. 8*
1915.
MARYLAKD DREDOINQ 4 a 00. t. UNirifiD 8TATB&
189-188
[186] Mr. Justioe Holmes deliyered the
opinion of the court:
This it an appeal from a judgment of
the court of elaimt dismissing the claim-
ant's petition upon demurrer. On August
15, 1908, the claimant made a contract
with Captain Brown of the Engineers, act-
ing for the United States, to excavate a
channel from Beaufort inlet to Pamlico
sound, through Core and Adams creeks, in
conformity with specifications made part
of the contract. It was approved on Sep-
tember 10, and required the work to be
begtm within forty-five days after date of
notification of approval, September 14, and
to Be completed within eighteen months.
The work not having been finished on time,
$7,320 of the agreed compensation was with-
held as liquidated damages, and $210.50
as additional costs of superintendoioe and
inspection, $7,530.50 in all, for which sum
this suit is brought.
The petition alleges that after getting
through Core creek to and through the head-
waters of Adams creek to a point on tide
water about 5 miles from its mouth, where
for a mile and a half it averages more than
1,200 feet wide, and for the next 3 miles
and a half 2,500 feet, the stumps and roots
of a submerged forest were encountered at
about 8 feet below the bottom of the water,
which made it impossible to do the work
with the ordinary machinery and in the
ordinary way, or to finish the work by the
time a;^eed. It is alleged that the forest
was submerged by some abnormal force and
violence of the elements, and that it could
not have been discovered by the ordinary
methods of inspection, and was not discov-
ered in fact, although the claimant and
otliers and the government had exercised
every known precaution, and had made ex-
haustive examinations with the utmost care
and skill. Tlie petition sets up that this
was a prevention "by abnormal force and
violence of the elements" within [187] the
contract, and that the claimant also was en-
titled to an allowance of time under a clause
in the specifications stating that the time
is considered sufficient "unless extraordi-
nary and unforeseeable conditions super-
vene." It also sets up that an extension
of time was recommended by Captain
Brown, although disallowed by the Chief
Engineer. Finally the petition alleges that
it was known by the gfovemment oflScials
when the contract was made that the por-
tion of the canal excavated by the claimant
could not be used to any practical extent
for commercial purposes until adjoining
portions of a proposed line were completed,
and that the additional work was not pro-
vided for or seriously contemplated within
the time (^ the claimant's work. It is con-
60 L. ed.
eluded that although the eontraet purports
to provide for liquidated damages, fixed at
$20 a day, jet, in the circumstance§, it
really imposed a penalty, and that the
government haa no right to retain the sum.
As haa been implied already, the contract
agreed "that time shall be considered as an
essential feature of this contract, and that
in case of the failure upon the part of the
party of the second part to complete this
contract within the time as specified and
agreed upon that the party of the first part
will be damaged thereby, and the amount
of said damages being difficult, ft not im-
possible of definite ascertainment and proof,
it is hereby agreed that the amount of said
damages shall be estimated, agreed upon,
liquidated, and fixed in advance, and they
ara here^ agreed upon, liquidated, and
fixed at the sum of twenty f20) dollars for
eaeh division for each and every day the
party of the second part shall delay in the
completion of this contract," and the claim-
ant agrees to pay that amount "as liqui-
dated damages, and not by way of penalty."
It is agreed further that the United' States
shall have the right to recover all costs of
inspection and superintendence incurred by
it during the period of delay, and that it
may [188] retain all the above-mentioned
sums from any moneys falling due under
the contract.
There is a proviso that if the claimants
"shall by strikes, epidemics, local or state
quarantine restrictions, or by the abnormal
force or violence of the elements, be actu-
ally prevented from completing the work
• • • at the time agreed upon" with-
out contributory negligence on his part,
"such additional time may, with the prior
sanction of the Chief of Engineers, be al-
lowed him" • . . "aa, in the judgment
of the party of the first part, or his sue-
cessor, shall be just and reasonable." Aa
we have intimated, the specifications also
state that the time allowed is considered
sufficient "unless extraordinary and unfore-
seeable conditions supervene." The claim-
ant further thinks that he finds some sup-
port for his argument in a provision that
"solid rock, large boulders, and compact
gravel will not have to be removed at the
prices bid for ordinary excavation. If such
materials should be encountered, their re-
moval, if required by the engineer, will be
done under special agreement and paid
for as extra work." On the other hand,
tlie claimant was required to remove all
trees, and "the channel must be cleared of
all anags, logs, roots, stumps, or wreckage
that project into or encroach in any way
upon the cross section, . . . the cost
of same being included in the unit price
bid for excavation." The claimant invokes
• 47
188-190
SUPREBfE COUBT OF THE UNITED STATES.
Oct. Tkbm,
a proTiflion that the engineer's decision as
to quality, quantity, and interpretation of
th» specifications shall be final; and this
ends the statement of his case.
It is hopeless to argue against the provi-
sions that we have recited, and the further
express warning that each bidder "is ex-
pected to examine and decide for himself,
as no allowance will be made should any
of it prove to be otherwise than as stated,"
except as above recited with regard to solid
rock, etc It is suggested that the special
agreement to be made for the removal of
"such materials" [189] means materials of
similar kind; but the phrase cannot be
stretched to cover roots. The statement in
the specifications that the time is sufficient
unless extraordinary conditions supervene
does not promise an extension if such condi-
tions do supervene. The extent of this
promise is found in the words of the con-
tract providing for the allowance of such
additional time as, with the sanction of the
Chief Engineer, the engineer in charge may
think reasonable. Those words tend also to
support the contention of the government
that "supervene" means come into being in
the course of the work, as in the case of
strikes, epidemics, etc, and not merely be
discovered to have existed and still to ex-
ist. We may add that the averment haz-
arded that the submergence of the forest
was due to abnormal force of the elements
is too obvious an attempt to pervert the
meaning of the proviso as to being actually
prevented by such force from completing the
work, to require analysis. But it is enough
to say that any extension depended on the
sanction of the Chief of Engineers, and that
that sanction was denied. It is said that
the engineer in charge construed the con-
tract differently, as he recommended an al-
lowance of time. But the ground of the rec-
ommendation does not appear to have been
an incorrect interpretation of the contract;
on the contrary, it is alleged that the liqui-
dated damages were withheld by Captain
Brown; and if his interpretation had been
wrong, it is hard to see how it would have
bound his superior on whose sanction the
recommendation depended for effect. The
suggestion that it was the duty of the Chief
Engineer to give his sanction in the absence
of fraud finds no support in the words used.
The claimant must abide by the words.
Carnegie Steel Co. v. United SUtes, 240
U. S. 156, 164, ante, 576, 578, 36 Sup. Ct.
Bep. 342.
The allegations by which the claimant
attempts to avoid his contract making time
of the essence, that the damages were diffi-
cult to prove, and that therefore they should
be fixed at $20 a day, are too speculative
[100] to do more than emphasise the
948
necessity for the liquidation. There is no
element of deception or exorbitance, and al-
though the case seems a hard one, we see
no ground upon which the claimant can
escape from the terms to which he has
agreed. United States v. Bethlehem Steel
Co. 205 U. S. 105, 110, 51 L. ed. 731, 736,
27 Sup. Ct Rep. 450.
Judgment affirmed.
GEORGIA, FLORIDA, & ALABAMA RAIL-
WAY COMPANY, Plff. in Err.,
V.
BUSH MILLING COMPANY.
(See S. C. Report^'s ed. 190-100.)
Connectiiig: carriers — • Carmack amend-
ment ^ liability of termimU carrier
for its own wrong.
1. A terminal carrier is not relieved
from liability for misdelivering an interstate
shipment by the provisions of the Carmack
amendment of June 29, 1906 (34 Stat, at
L. 593, chap. 3591), to the act of February
4, 1887 (24 Stat, at L. 379, chap. 104, Comp.
Stat. 1913, § 8592), § 20, making the initial
carrier liable for loss or damage occurring
anywhere en route, with a remedy over
against the carrier at fault, but the bill of
lading which the initial carrier under that
statute must issue governs the entire trans-
portation, and thus fixes the obligations of
all participating carriers to the extent that
the terms of the bill of lading are applicable
and valid.
[For other cases, see Carriers, II. c, in Di-
gest Sup. Ct. 1908.]
Error to state court — • Federal question
— • construction of interstate bill of
lading.
2. The question as to the proper construc-
tion of a bill of lading for an interstate
shipment issued under the Carmack amend-
ment of June 29, 1906 (34 Stat, at L. 593,
chap. 3591), to the act of February 4, 1887
(24 Stat, at L. 379, chap. 104, Comp. Stat
1913, § 8592), § 20, is a Federal one which
will sustain the appellate jurisdiction of the
Federal Supreme Court over a state court.
[For other cases, see Appeal and Error, 1751-
1797, in Digest Sup. Ci 1908.]
Carriers — notice of claim ^ misde-
livery.
3. Misdelivery of an interstate shipment
by the terminal carrier must be regarded
Note. — On the general subject of writs of
error from the United States Supreme Court
to state courts — see notes to Martin v.
Hunter, 4 L. ed. U. S. 97 ; Hamblin v. West-
ern Land Co. 37 L. ed. U. S. 267; Re Bu-
chanan, 39 L. ed. U. S. 884; and Kipley v.
Illinois, 42 L. ed. U. S. 998.
On what adjudications of state courts can
be brought up for review in the Supreme
Court of the United States by writ of error
to those courts — see note to Apex Transp.
Co. T. Garbade, 62 LJt Jk. 613. •
141 U. 8.
1916.
QBOBOIA, F. 4 A. B. CO. T. BUSH MILLINO CO.
M "failure to make delivery," within the
meaniag of a dauee in the bill of lading it-
raed by the initial carrier, conformably to
the Carmack amendment of June 20, J 906
(34 Stat, at L. 593, chap. 3591), to the act
of February 4, 1887 (24 SUt. at L. 379,
chap. 104, Oorop. Stat. 1913, § 8592), § 20,
which casta upon that carrier responsibility
with respect to the entire transportation,
that ''claims for loss, damage, or delay must
be made in writing to the carrier at the
point of delivery or at the point of origin
within four months after the delivery of the
fToperty, or, in case of failure to make de-
ivery, then within four months after a rea-
sonable time for delivery has elapsed."
[For other cases, see Carriers, II. b, 7, b. In
Digest Sup. Ct 1M8.]
Chirrlers ^ notice of claim ^ validity.
4. The initial carrier may validly stipu-
late in the bill of lading, issued conformably
to the Carmack amendment of June 29, 1906
(34 Stat, at L. 693, chap. 3591), to the
act of February 4, 1887 (24 Stat, at L. 379,
chap. 104, Comp. Stat. 1913, 8 8592), § 20,
for an interstate shipment tiiat "claims for
loss, damage, or delay must be made in
writing to the carrier at the point of de-
livery or at the point of origin within four
months after the delivery of the property,
or, in case of failure to make delivery, then
within four months after a reasonable time
for delivery has elapsed."
(For other cases, see Carriers, II. b, 7, b, in
Digest Sap. Ct. 1906.]
Carriera — notice of claim — waiver.
5. The effect of a stipulation in a bill
of lading for an interstate shipment requir-
ing claims for damages or misdelivery to be
presented within four months after a rea-
sonable time for delivery has elapsed can-
not be avoided by suing the carrier in trover
on the theory that in inaking the misdelivery
it converted the shipment, and thus aban-
doned the contract, since the parties could
not Avaive the terms of the contract under
which the shipment was made, pursuant to
the act of February 4, 1887 (24 Stat, at
L. 379, chap. 104), as amended by the act
of June 29, 1906 (34 Stat, at L. 598, chap.
3501, Comp. Stat. 1913, % 8692), nor could
the carrier by its conduct give the shipper
the right to ignore the terms and hold the
carrier to a different responsibility from
that fixed by the agreement made under the
published tariffs and regulations.
(For other cases, see Carriers, II. b, 7, b, in
Digest Sup. Ct. 1908.]
Carriers — notice of claim — • aalHclency.
6. A claim for the value of a shipment
of flour misdelivered by the carrier is suf-
ficiently made to satisfy the requirement of
the bill of lading that claims based on fail-
ure to make delivery shall be made in writ-
ing within four months after the time for
delivery has elapsed, where the shipper,
after making an investigation in response
to a telegram from the carrier's traflSc man-
ager, telegraphed the latter five days after
the arrival of the fiour at destination, "We
will make claim against railroad for en-
eo li. ed.
tiro contents of ear at invoioe prioe. Mutt
refuse shipment aa we cannot handle."
[For other cases, see Carriers, II. b, 7. bu In
Digest Sup. Ct. 1908.]
[No. 292.]
Argued and submitted March 15, 1916.
Decided May 8, 1916.
IN ERROR to the Court of Appeals of the
State of Georgia to review a judgment
which modified, and aa modified affirmed, a
judgment of the City Court of Bainbridge,
Decatur County, in that state, in favor of
plaintiff in an action of trover against a
carrier. Affirmed.
See same case below, 15 Ga. App. 142, 88
S. E. 784.
The facts are stated in the opinion.
Mr. T. S. Hawea argued the cause, and,
with Messrs. Alexander Akerman and
Charles Akerman, filed a brief for plaintiff
in error:
The remedy provided by the Carmadc
Amendment against the initial carrier i»
exclusive.
Adams Exp. Co. t. Croninger, 226 U. S.
491, 57 K ed. 314, 44 L.R.A.(N.S.) 257, 33
Sup. Ct. Rep. 148; Southern R. Co. y. Ben-
nett, ~ Ga. App. — , 86 S. E. 418.
Stipulations in interstate bills of lading
limiting the time in which suits shall be
filed are valid.
Missouri, K. & T. R. Go. t. Haniman,
227 U. 8. 657, 57 L. ad. 690, 38 Sup. Ct.
Rep. 397.
Stipulations that a carrier shall not be
liable unleaa claim ia filed in a specified
period are valid.
Southern Exp. Co. t. Caldwell, 21 WalL
264, 22 L. ed. 556; Central Vermont K.
Co. T. Soper, 8 C. C. A. 341, 21 U. 6. App.
24, 59 Fed. 879.
A limitation of liability made by the
initial carrier will inure to the benefit of
any succeeding carrier sued for the loss or
damage.
Kansas City Southern R. Co. t. Carl, 227
U. S. 639, 57 K ed. 683, 33 Sup. Ct. Rep. 391.
The main purpose and effect of the Car^
mack Amendment was to provide a uniform
rule as to the liability of interstate carriers
of goods, to relieve them from diverse rulea
to which they had been theretofore sub-
jected, and to supersede all the regulations
and policies of a particular state i^Kin the
subject.
Spada T. Pennsylvania R. Co. 86 N. J. L*
187, 92 Atl. 379.
A party who unsuccessfully relies in the
state courts upon an act of Congress as a
defense ia entitled to bring the case up to
the Federal Supreme Court by writ of
error.
106-197
SUPREME OOUBT OF THE UNITED STATES.
Oor. TkBM,
Sage T. Hampe, 2S6 U. 8. 99, 59 L. ed.
147, 35 Sup. Ct. Rep. 94.
A party who insista that a Judgment can-
not be rendered againat him consietently
with the statutes of the United States may
be fairly held to assert a right and im-
munity under such statutes.
Nutt Y. Knut, 200 U. 8. 12, 50 L. ed. 348,
26 Sup. Ct. Rep. 215.
A Federal question must be deemed to
have been raised in the state courts with
sufficient definiteness to comply with the
provisions of the Judicial Code, I 237,
where it appears from the opinion of the
state supreme court that a question under
the Constitution of the United States was
treated as sufficiently raised, and was
specifically dealt with and ruled againat
the plaintiff in error.
Mallinckrodt Chemical Works ▼. Missouri,
238 U. 8. 41, 59 L. ed. 1102, 35 Sup. a. Rep.
671.
In the following cases the Supreme Court
has recently held that a Federal question
was sufficiently raised:
North Carolina R. Co. 'v. Zachary, 232 U.
6. 248, 58 L. ed. 501, 34 Sup. Ct. Rep. 305,
Ann. Cas. 1014C, 150, 9 N. C. C. A. 109;
Louisiana R. ft Nav. Co. t. Behrman, 235
U. S. 1G4, 59 L. ed. 175, 35 Sup. Ct. Rep.
62; Lesser v. Gray, 236 U. S. 70, 59 L. ed.
471, 35 Sup. Ct. Rep. 227; Coe ▼. Armour
Fertilizer Works, 237 U. S. 413, 59 L. ed.
1027, 35 Sup. Ct. Rep. 625; Cumberland
Glass Mfg. Co. ▼. De Witt, 237 U. S. 447,
59 L. ed. 1042, 35 Sup. Ct. Rep. 636.
All service performed by a railroad com-
pany, whether as carrier or as warehouse-
man, is controlled by the stipulations con-
tained in the uniform bill of lading issued
by the initial carrier.
Cleveland, C. C. k St. L. R. Go. t. Dettle-
bach, 239 U. S. 588, ante, 453, 36 Sup. Ct.
Rep. 177.
Mr. A. li. Miller submitted the cause for
defendant in error. Mr. E. M. Donalson
was on the brief:
Where one ships goods to his own order,
the delivery of the ^roods by the carrier
to another without the production of the
bill of lading covering the shipment of
goods is a delivery made at the risk of
the carrier, and subjects him to a suit in
trover for conversion.
Boatm(*n's Sav. Bank t. Western ft A.
R Co. 81 Ga. 223, 7 S. E. 125; North Penn-
sylvania R. Co. V. Commercial Nat. Bank,
123 U. S. 727, 31 L. ed. 287, 8 Sup. a.
Rep. 266; Southern R. Co. v. Strozier, 10
Ga. App. 157, 73 S. E. 42; Merchants' ft
M. Transp. Co. v. Moore, 124 Ga. 482, 52
S. E. 802, 19 Am. Neg. Rep. 138; Hobbs v.
Chicago Packing ft Provision Co. 98 Ga. 576,
4S8 Am. St. Rep. 320, 25 S. E. 584.
• 50
The Supreme Court of the \JniUd Statss
has in a similar case decided the queatiott
involved here, and held that the judgment
of the state court was not reviewable.
Arkansas Southern R. Co. t. German Nat
Bank, 207 U. S. 270, 52 L. ed. 201, 28 Sup.
Ct. Rep. 78.
To give the Supreme Court of the United
Statea jurisdiction of a writ of error to
a state court, it must affirmatively appear
that a Federal question waa presented for
decision by the state court; that it waa de-
cided there; that a decision of this Federal
question was necessary to the determina-
tion of the cause; and that it waa decided
adversely to the party claiming a right
under the same.
Eustis ▼. Bolles, 150 U. S. 361, 37 L. ed.
1111, 14 Sup. Ct. Rep. 131; VandaPia R. Co.
V. Indiana, 207 U. S. 359, 52 L. ed. 246, 28
Sup. Ct. Rep. 130; New Orleans ft N. E. R.
Co. V. National Rice Mill. Co. 234 U. 8. 80,
58 L. ed. 1223, 34 Sup. Ct. Rep. 726; Garr,
S. ft Co. V. Shannon, 223 U. 8. 468, 56 L.
ed. 510, 32 Sup. Ct. Rep. 230.
Any one of connecting carriers, that oom-
mits the wrong, is liable, as well aa the
initial carrier.
Eaatover Mule ft Horse Co. t. Atlantk
Coast Line R. Co. 99 S. C. 470, 83 S. E.
599; Elliott v. Chicago, M. ft St P. R. Go.
35 S. D. 57, 150 N. W. 777; Bichlmeir v.
Minneapolis, St. P. ft S. Ste. M. R. Co. 159
Wis. 404, 150 N. W. 508; Atchison, T. ft &
F. R. Co. ▼. Boyce, — Ter. Civ. App. — ,
171 8. W. 1094.
Under the peculiar facts of the instant
case, it is doubtful whether there was any
liability on the part of the initial car-
rier.
Louisville ft N. R. Co. t. Brewer, 183
Ala. 172, 62 So. 698.
The contract of carriage, contained hi
the bill of lading, was abandoned by the
railway company when it converted the
flour. The carrier cannot repudiate the
contract and then hold the shipper to iti
terms that a written claim must be made
within a specified time for loss or damsfe.
Merchants' ft M. Transp. Co. v. Moore,
124 Ga. 482, 5 S. E. 802, 10 Am. Neg. Bep.
138; Salberg v. Pennsylvania R. Co. 31
L.RJl.(N.S.) 1178, and note, 228 Pa. 641,
77 Atl. 1007.
The contract of carriage does not providi
that a claim must be submitted in writhig
if the. property is converted by the carrier,
but only if there is loss or damage. Hierf
is a wide difference between the meaning of
the word "conversion'' and the meaning of
the word ''loss," or the meaning of the
word "damage.**
Atlantic Coast Line R. Co. v. Goodwin, 1
Ga. App. 3^6, 57 S. E. 1070.
141 V. 8*
1915.
6E0RQIA, P. ft A. B. CO. t. BLISH MILLING CO.
102-196
Mr. Justice Hughes delivered the opin-
ion of the court:
The Blish Milling Company brought this
action in trover against the Georgia, Flori-
da, & Alabama Railway Company, and re-
•covered judgment, which was affirmed by
the court of appeals of Georgia. 15 Ga.
App. 142, 82 S. E. 784. The facts are these:
On May 13, 1010, the Blish Milling Com-
pany shipped from Seymour, Indiana, to
Bainbridge, Georgia, a carhiad of flour cnn-
aigned to its own order, with direction to
■notify Draper-Garrett Grocery Company at
Bainbridge. The bill of lading was issued
hj the Baltimore k Ohio Southwestern Rail-
road Company. The shipper's sight draft
<upon the Draper-Garrett Grocery Company,
for $1,100.80, covering the price of the
flour, with a carrying charge, was attached
ito the bill of lading and forwarded to a
bank in Bainbridge for collection. The
flour was transferred to another car by the
Central of Georgia Railway Company, a
•connecting carrier, and reached Bainbridge
on June 2, 1010, over the line of the Geor-
^a, Florida, & Alabama Railway Company,
the plaintiflf in error, in accordance with
routing. The plaintiff in error, without re-
•quiring payment of the draft and surrender
of the bill [193] of lading (which were
ultimately returned to the Blish Milling
•Company), delivered the car to the Draper-
•Garrett Grocery Company immediately on
its arrival by placing it on the sidetrack of
that company. In the course of unloading,
the Grocery CompAiy discovered that some
•of the flour was wet, and thereupon re-
loaded the part removed and returned .the
^our to the plaintiff in error. The aubae-
qucnt course of events is thus stated by the
•court of appeals (id. pp. 144, 145):
"The railway company" (that Is, the
plaintiff in error) "retook possession of the
•car and unloaded it, and in a few days sold*
as perishable property, a part of the flour
Alleged to be damaged, and on December
23, 1010, sold the remainder. On June 3,
1910, after the Grocery Company had turned
the flour back to the railway company, B.
•G. Prince, traffic manager of the Georgia,
Florida, k Alabama Railway Company,
telegraphed to the Blish Milling Company
4ia follows: 'Flour order notify Draper-
Garrett Grocery Company refused account
damage. Hold at your risk and expense.
Advise disposition.' On the next day the
Milling Company replied by telegraphing to
Prince, 'Sending our representative there.
What is nature of damage?' To this Prince
replied: 'Flour transferred in route. Slight
•damage by water, apparently rough han-
-dling. When will your representative reach
Bainbridge?' The Blish Milling Company
replied that ita man would be there that
•0 li. ed.
night or the next day. On June 7 (after
the Milling Company's representative liad
reached Bainbridge and conferred with tlie
agents of the railway company and with
the Grocery Company) the Milling Company
sent a flnal telegram, saying, *W e will make
claim against railroad for entire contents
of car at invoice price. Must refuse sliip-
ment as we cannot handle.' It appears,
from the evidence of Mr. Draper, tliat the
price of flour declined after his order was
given and before the flour reached Bain-
bridge. There [194] is conflict in tiie evi-
dence as to a tender of the flour by the rail-
way company to the Milling Company's
representative. According to some of the
testimony, about 18 barrels of the flour had
been sold by the railway company before
the alleged tender was made, and therefore
it was not within the power of the carrier
to tender the shipment in its entirety."
The verdict in favor of the Milling Com-
pany was for $1,084.50, from which the
court of appeals required a deduction of the
amount of the unpaid freight, which was
held to have been erroneously included.
With other defenses, the railway com-
pany pleaded that the shipper had failed
to comply with the following provibion of
the bill of lading, issued by the initial car-
rier: "Claims for loss, damage, or delay
must be made in writing to the carrier at
the point of delivery or at the point of
origin within four montlia after the delivery
of the property, or, in case of failure to
make delivery, then within four montlia
after a reasonable time for delivery has
elapsed. Unless claims are so made, the
carrier shall not be lialde." This defense
was overruled. The court of appeals stated
that "so far as appears from tlie record, no
claim was flied by the shipper," but deemed
the provision to be inapplicable. Id. p. 140.
There are only two questiona presented
here, and these are thus set forth in the
brief of the plaintiff in error:
"1st. That the plaintifl^'s exclusive rem-
edy was against the initial carrier, the Bal-
timore k Ohio Southwestern Railroad Com-
pany, under tlie Carmack amendment of
S 20 of the Hepburn bill [34 Stat, at L.
503, chap. 3501, Comp. Stat. 1013, § 8502].
"2d. That, under the stipulation in the
bill of lading providing for the filing of
claims for loss or damage, the actios was
barred."
The first contention b met by repeated
decisions of this court. The connecting car-
rier is not relieved from liability by the
Carmack amendment, but the bill of lading
required to be issued by the initial carrier
upon [105] an interstate shipment gov-
erns the entire transportation, and thus
fizea the obligations of all participating
961
195-197
SUPREME COURT OF THE UNITED STATES.
Oct. TfeBM,
carriers to the extent that the terms of the
bill of lading are applicable and valid. 'The
liability of anj carrier in the route over
which the articles were routed, for loss or
damage, is that imposed by the act as meas-
ured by the original contract of shipment,
so far as it is valid under the act." Kansas
City Southern R. Co. v. Carl, 227 U. S. 639,
648, 67 L. ed. 683, 686, 33 Sup. Ct. Rep. 391.
See Adams Exp. Co. v. Croninger, 226 U. 8.
491, 607, 608, 67 L. ed. 314, 320, 321, 44
L.R.A.(N.S.) 267, 33 Sup. Ct. Rep. 148;
Cleveland, C. C. k St. L. R. Co. v. Dettle-
bach, 239 U. S. 688, 691, ante, 463, 466, 36
Sup. Ct. Rep. 177 ; Southern R. Co. v. Pres-
cott, 240 U. S. 632, 637, ante, 836, 839, 36
Sup. Ct. Rep. 469; Northern P. R. Co. v.
Wall, decided April 24, 1916 [241 U. S. 87,
ante, 906, 36 Sup. Ct. Rep. 493].
These decisions also established that the
question as to the proper construction of
the bill of lading is a Federal question. The
clause with respect to the notice of claims —
upon which the plaintiff in error relies in
its second contention — specifically covers
"failure to make delivery." It is said that
this is not to be deemed to include a case
where there was not only failure to deliver
to the consignee, but actual delivery to an-
other, or delivery in violation of instruc-
tions. But "delivery" must mean delivery
as required by the contract, and the terms
of the stipulation are comprehensive, — fully
adequate in their literal and natural mean-
ing to cover all cases where the delivery
has not been made as required. When the
goods have been misdelivered there is as
clearly a "failure to make delivery" as when
the goods have been lost or destroyed; and
it is quite as competent in the one case as
in the other for the parties to agree upon
reasonable notice of the claim as a con-
dition of liability. It may be urged tliat
the carrier is bound to know whether it lias
delivered to the right person or according
to instructions. This argument, however,
even with respect to the particular carrier
which makes a misdelivery, loses sight of
the practical object in view. In fact, the
transactions of a railroad company are mul-
titudinous, and are carried on [196]
through numerous employees of various
grades. Ordinarily the managing officers,
and those responsible for the settlement
and contest of claims, would be without
actual knowledge of the facts of a particu-
lar transaction. The purpose of the stipu-
lation is not to escape liability, but to facil-
itate prompt investigation. And, to this
end, it is a precaution of obvious wisdom,
and in no respect repugnant to public pol-
icy, that the carrier by its contracts should
renuire reasonable notice of all claims
951
against it even with respect to its owb
operations.
There is, however, a further and control-
ling consideration. We are dealing with a
clause in a bill of lading issued by the
initial carrier. The statute casts upon the
initial carrier responsibility with respect
to the entire transportation. The aim was
to establish unity of responsibility (Atlan-
tic Coast Line R. Co. v. Riverside Mills»
219 U. S. 186, 199-203, 66 L. ed. 167, 179-
181, 31 L.R.A.(N.S.) 7. 31 Sup. Ct. Rep.
104; New York, P. & N. R. Co. v. Peninsula
Produce Exch. 240 U. S. 34, 38, ante, 511,
616, 36 Sup. Ct. Rep. 230), and the words
of the statute are comprehensive Plough to
embrace responsibility for all losses result-
ing from any failure to discharge a carrier's
duty as to any part of the agreed transpor-
tation, which, as defined in the Federal act,
includes delivery. It is not to be doubted
that if, in the case of an interstate ship-
ment under a through bill of lading, the
terminal carrier makes a misdelivery, the
initial carrier is liable; and when it in-
serts in its bill of lading a provision re-
quiring reasonable notice of claims "in case
of failure to make delivery," the fair mean-
ing of the stipulation is that it includes all
cases of such failure, as well those due to
misdelivery as those due to the loss of the
goods. But the provision in question is not
to be construed in one way with respect
to the initial carrier, and in another with
respect to the connecting or terminal car-
rier. As we have said, the latter takes the
goods under the bill of lading issued by the
initial carrier, and its obligations are meas-
ured by its terms (Kansas City Southern
[197] R. Ck). V. C:arl, 227 U. S. 639, 648, 57
L. ed. 683, 686, 33 Sup. Ct. Rep. 391;
Southern R. Co. v. Prescott, 240 U. S. 632,
637, ante, 836, 839, 36 Sup. Ct. Rep. 4G9);
and if the clause must be deemed to cover
a case of misdelivery when the action is
brought against the initial carrier, it must
equally have that effect in the case of the
terminal carrier, which, in the contempla-
tion of the parties, was to make the de-
livery. The clause gave abundant oppor-
tunity for presenting claims, and we re-
gard it as both applicable and valid.
In this view, it necessarily follows that
the effect of the stipulation could not be
escaped by the mere form of the action,
llie action is in trover, but, as the state
court said: "If we look beyond its tech-
nical denomination, the scope and effect of
the action is nothing more than that of an
action for damages against the delivering
carrier." 16 Ga. App. p. 147. It is urged,
however, that the carrier, in making the
misdelivery, converted the flour and thus
abandoned the contract. But the parties
141 U. &
1015.
STOWE r. HARVKY.
197-lM
eould not waive the terms of tbe contrkct
under which tbe ehipnieiit wfte made pur-
•uant to the Federal act; nor could tbe car-
rier by its conduct give the shipper the right
to ignore theee turum wliicli were applicable
to that conduct, and bold tlic carrier to a
different reipoaiibility from that fixed bj
the agreement made under the publiabed
tarilTa and regulation!. A different view
would antagonize the plain policy of the act
and open the door to tbe very abUBes at
which tbe act was aimed. Chicago & A. R.
Co. V. Kirby, 225 D. 8. 156, 166, ee L. ed.
1033, 1038, 32 Sup. Ct, Rep. S4S, Ann. Caa.
1914A, 501; Kansas City Soutbem R. Co.
T. Carl, Buprai Atchison, T. t S. F. R. Co.
r. Robinson, 233 U. 8. 173, ISl, 68 h. ed.
901, 006, 34 Sup. Ct. Rep. 656; Southern R.
Co. V. Prescott, supra. We are not con-
cerned in tbe present case with any ques-
tion save as to the applicability of the pro-
vision, and its validity, ai^d as we find it
to be bath applicable and valid, effect must
be given to it.
But, while this is so, we think that the
plaintiff in error is not entitled to succeed
In Its ultimate contention under the stipu-
lation for the reason that it appears that
notice [lOfi] of the claim was in fact giv-
en. It is true that in the statement niade
by tbe court of appeals it is said that, so
far as appears from the record, "no claim
iru filed by tlie shipper." We must assume,
however, that this was in effect a construc-
tion of the provision as requiring a more
formal notice than that which was actually
■ent. For tba court had already set forth
the uneontroverted facts In detail showing
that the shipper (having made an investi-
gation in response to the communication of
tbe trafHc manager of tbe railway company)
had telegraphed to the latter, on June 7,
1010, only five days after the arrival of the
goods at destination, as follows: "We will
make claim against railroad for entire con-
tents of car at invoice price. Must refuse
■talpment ss we cannot handle." In the
preceding telegrams which passed between
tbe parties, and are detailed by the state
court in stating the facts, the shipment had
been adequately identified, ao that this final
talegram, taken with the othera, established
boyond question the particular shipment to
which the claim referred, end was In sub-
■tauce the making of a claim within the
meaning of the stipulation, — the object of
which was to secure reasonable notice. We
think that it sufficiently apprised the car-
rier of the character of the claim, for while
it atatcd that the claim was for the entire
eontenta of the car "st invoice price," thte
did not constitute such a variance~7Tom the
daim for the value of the flour as to be
mlaleadingi and it la plain that no pn-
•• lb «d.
judlce resulted. Granting that the stipula-
tion is applicable and valid, it does not re-
quire documents in a particular form. It is
addressed to a practical exigency and it is
to he construed in a practical way. The
stipulation required that tbe claim should
be made in writing, but a telegram which,
in itself, or taken with other telegrams, con-
tained an adequate statement, must be
deemed to satisfy this requirement. See
Rysn V. United States, 136 U. S. 68, 83, 34
L. ed. 447, 453, 10 Sup. Ct Rep. 013; Klein-
hana v. Jones, 15 C. C. A. 644, 37 U. B.
App. 1S5, 68 [19S] Fed. 742, 745; Godwin
T. Frsncis, L. R. 6 C P. 265, 86 L. J*t!. P.
N, 8. 121, 22 L. T. N. 8. 338; Reg, v. Riley
[180G] 1 Q. B. 30S, 314, 321, 65 L. J. Uag.
Cas. N. S. 74, 74 L. T. N. S. 254, 44 Week.
Rep. 318, 18 Cox, C. C. 285, 66 J. P. 619,
10 Am, Grim. Rep. 402; Howlej v. Whipple,
48 N. H. 487, 488; 6Ut« v. Holmes, 56
Iowa,. 568, 690, 41 Am. Rep. 121, B N. W.
894.
Judgment aflirmed.
I. S. STOWE, Tnistee in Bankruptcy of
the Estate of J. Downey Harvey, a Bank-
rupt, Apptq
S. G. HARVET.
(See S. C. Reporter'a ed. 100-201.)
A transfer of corporate stock, effected
by the delivery of a properly indorsed stock
certificate, cannot be said to have been
in fraud of the transferrer's creditors, on
the theory that by the retention of tbe
stock in hit own name be was clothed witlt
a false credit, or that there was not the
requisite change of posseaaion, where, un-
der the local law, title to atock may be
transferred by delivery of certificates, and
None — On validity of pledge or other
transfer of stock of cbrporation when not
made in the books of the company, aa
against attachments, executions, or subse-
quent transfers — see notes to Mapleton Bank
T. Btandrod, 67 L.RA. 666; and Everitt v.
Farmers' t H. Bank, 20 L.R.A.(N.S.) 006.
On contract for tbe sale of corporate stock
as one for the sale of goods, etc., within
statutes of frauda — see notes to Bprague v.
Hoiie, 19 L.R.A.(N.S.) 874; and Bewson v.
Peterman Mfg. Co. 61 I..R.A.(N.8.) 398.
On neeeesity of writing to transfer shara*
of stock — see notes to French v. Whit^ S
L.Tt.A.(N.8.) 804; and Herbert v. SlmsOTi,
LJt.AlS16D, 7SS.
SUPREME COUBT OF THE UNITED STATES.
Ooc TWKM,
corporate books are not for public infonna-
tion.
(For other eatM, wm Fraud otent Coaray-
ances, V^ la Dlgwi Sup. Ct. IVOSJ
[No. 329.]
Argued April 27 and 28, 1016. Daeided
May 8, 1918.
APPEAL from the United States Circuit
Court of Appeals for the Ninth Circuis
to review a decree which reyerted, with di-
rections to ditmist the suit, a decree of the
Dittridt Court for the Northern District
of California in favor of a trustee in bank-
ruptcy in a suit by him to set aside a trans-
fer from the bankrupt. Aflfirmed.
See same case below, 134 C. C. A 836,
219 Fed. 17.
Tbe facts are stated in the opinion.
Mr. A. E. Shaw argued the cause, and,
with Messrs. Bert Schlesinger, Edwin H.
Williems, and Edward M. Cleary, filed a
brief for appellant:
The appellate court was not warranted
in setting aside the determination of the
trial court as to the credit and weight
which should be given to the testimony of
the various witnesses.
Davis V. Schwartz, 186 U. S. 837, 30 L.
ed. 203, 15 Sup. a. Rep. 237; McKinley
Creek Min. Co. ▼. Alaska United Min. Co.
183 U. S. 6C3, 689, 48 L. ed. 331, 334, 22
Sup. Ct. Rep. 84, 21 Mor. Min. Rep. 730;
Kimberly v. Arms, 129 U. S. 612, 32 L. ed.
704, 9 Sup. Ct. Rep. 356; Callaghan v.
Myers, 128 U. S. 817, 887, 32 L. ed. 647.
682, 0 Sup. Ct. Rep. 177; Sonnentheil v.
Cliristian Moerlein Brewing Co. 172 U. S. ^
401, 410, 43 L. ed. 402, 408, 10 Sup. a.
Rep. 233; Dade v. Irwin, 2 How. 383, 301,
11 L. ed. 308, 312; Crawford v. Neal, 144
U. S. 685, 800, 38 L. ed. 652, 550, 12 Sup.
Ct. Rep. 750.
In reversing the findings of the trial
Judge, the court of appeal wholly ignored
the rules of law theretofore enunciated by
it to tbe effect that findings of a trial
judge in an equity suit, based on tbe evi-
dence of witnesses before him, and result-
ing in a substantial conflict with respect
to the material issues, will not be set aside
on appeal.
Vanderbilt T. Bishop, 117 C. a A. 862.
109 Fed. 421.
In a case such as the present, the Su-
preme Court will review the evidence taken
in the inferior court to ascertain whether
there is substantial evidence to support the
findings of the chancellor who presided at
the trJML
054
8 Foster, Fed. Fr. 5th ed. pp. 23, 60; Be
Neagle, 135 U. S. 1, 42, 34 L. ed. 66, 83,
10 Sup. Ct Rep. 868.
Those who help to give false credit to aa
insolvent debtor have do rights superior
to those of his creditors.
National Bank t. Shackelford, 230 U. a
81, ante, 168, 38 Sup. Ct Rep. 17; Moors
V. Page, 111 U. S. 117, 110, 28 L. ed. 873,
374, 4 Sup. Ct Rep. 388.
The gift of theae shares by Hanrey to
his wife was not accompanied by an actual
and continuous change of possession, and
therefore is void as to his creditors.
Stevens ▼. Irwin, 16 CaL 603, 78 Am.
Dec. 600; Murphy v. Mulgrew, 102 CaL 647,
41 Am. St Rep. 200, 38 Pac 857 ; Tragear
V. Etiwanda Water Co. 78 CkL 637, 0 Am.
St Rep. 246, 18 Pac 868.
Certificates of stock in a corporation ars
not actually theistock, but are merely tbe
symbolic representations x>f the stock; that
is, they are the symbols which represent
the intangible thing, — ^the stock itself.
Film Producers ▼. Jordan, — CaL — , 164
Pac 805; Payne ▼. Elliot, 64 CaL 342, 35
Am. Rep. 80, 14 Mor. Min. Rep. 616.
Mr. Charles 8. Wheeler argued the
cause, and, with Bifr. John F. Bowie, filed
a brief for appellee:
In California a valid gift of sharea of
stock may be made by delivering the stock
certificate to the donee, indorsed in blank.
No transfer upon the books of the cor-
poration is necessary to complete the gift
Calkins v. Equitable Bldg. A L. Assc
128 CaL 631, 60 Pac. 30; Spreckels ▼.
Nevada Bank, 113 CaL 272, 278, 33 LJLA
450, 64 Am. St Rep. 348, 46 Pac. 329;
National Bank v. Western P. R. Co. 157
CaL 578, 27 L.RJL(N.S.) 087, 108 Pac 876.
21 Ann. Cas. 1301. See also First Nat. Bank
V. Holland, 09 Va. 495, 65 L.ItA. 165, 86
Am. St. Rep. 898, 39 S. E. 128; Allen- West
Commission Co. ▼. Grumbles, 88 C G. A
401, 120 Fed. 200.
The United States circuit court of ap-
peals was, of course, not bound by the
facts found by the trial judge. It is well
settled that that court will not beaitats
to reverse the trial court upon the factf
where there has been a sorious mistake in
dealing with the facts.
United SUtes v. Marshall, 127 C. C. A
231, 210 Fed. 507; DeLaval Separator Cb. ▼.
Iowa Dairy Separator Co. 114 C. C. A. 385,
194 Fed. 423; Iowa v. Carr, 112 C. a A.
477, lOl Fed. 257.
And the United States Supreme Court
has said that it is proper for a court of
141 U. &
1915.
8T0WE T. HA&VEY.
200, 201
equity, upon appeal, to set aside the find-
ings of a trial judge when clearly in con-
flict with the weight of the evidence upon
which they were made.
Kimberly v. Amis, 129 U. S. 612, 32 L.
«d. 7G4, 9 Sup. Ct. Rep. 315.
No d,uty rests upon this court to review
elaborately the facts determined by the
court of appeals.
Bloom V. National United Ben. Sav. Sl
L. Co. 152 N. Y. 119, 46 N. E. 166; Chi-
cago Junction R. Co. v. King, 222 U. S. 222,
56 L. ed. 173, 32 Sup. Ct. Rep. 79; Texas Sl
P. R. Co. ▼. Howell, 224 U. S. 677, 56 L.
«d. 892, 32 Sup. Ct. Rep. 601; Grand Trunk
Western R. Co. v. Lindsay, 233 U. 8. 42, 68
L. ed. 838, 34 Sup. Ct. Rep. 581, Ann. Cas.
1914C, 168; Atlantic Transport Co. t. Im-
brovek, 234 U. S. 52, 63, 58 L. ed. 1208,
1213, 51 L.R.A.(N.S.) 1157, 34 Sup. Ct. Rep.
733; Yazoo A M. Valley R. Co. ▼. Wright,
235 U. S. 376, 378, 69 L. ed. 277, 278, 36
Sup. Ct. Rep. 130.
In California the general public has no
right to see the stock books of a corpora-
tion. It was not a concealment, either
from the public or from Mr. Harvey's credi-
tors, to carry the stock in Mr. Harvey's
same on those books.
National Bank v. Western P. R. Co. 157
Cal. 581, 27 L.RJ^.(N.S.) 987, 108 Pac. 676,
21 Ann. Cas. 1391.
In California a bona fide stockholder is
not necessarily the owner of stock; and
one who becomes a bona fide stockholder
does not cease to be such by the indorse-
ment and delivery, by way of sale or gift,
of the shares of stock to another, although
lie ceases thereby to be the ''owner."
Smith Y. San Francisco & N. P. R. Co.
115 Cat 503, 35 L.RJ^. 309, 56 Am. St.
Itep. 119, 47 Pac. 582.
The fact that Mr. Harvey voted this
etock as a stockholder is therefore not in-
consistent with his testimony that he had
indorsed and given the certificates of stock
to his wife. The same is true with regard
to the signature of Mr. Harvey to the
Amendment of the by-laws. He was a
lawful stockholder, though not owning the
shares, and as such stockholder could give
a valid assent to the amendment of the
by-laws.
Ibid.
The indorsement and delivery of the
•eertiPicate passes the title as against the
irorld.
Allen-West Commission Co. v. Grumbles,
43 C. C. A. 401, 129 Fed. 290; Calkins v.
Equitable Bldg. &, L. Asso. 126 Cal. 534,
^9 Pac. 30; Spreckels v. Nevada Bank, 113 I
40 L. ed.
Cal. 272, 33 LJLA. 459, 54 Am. 6t. Rep.
348, 45 Pac. 329; National Bank v. West-
ern P. R. Co. 157 Cal. 676, 27 L.R.A.(N.8.)
987, 108 Pac. 676, 21 Ann. Cas. 1391.
[200] Jifr. Justice McReynolds deliv-
ered the opinion of the court:
J. Downey Harvey of San Francisco was
adjudged a bankrupt November 17, 1911.
Appellant, having become trustee of the
estate, instituted this proceeding to set
aside a transfer by the bankrupt to his
wife--defendant in error — of certain stock
in Shore Line Investment Company, because
made without consideration \nd with intent
to delay and defraud his creditors. The
complaint alleges that the gift was made
and stock transferred in November, 1909,
when it is admitted Harvey was insolvent.
Mrs. Harvey maintains that her husband
gave the stock and actually delivered the
properly indorsed certificate to her in
1905, during all of which year his solvency
is conceded. The substantial controversy
throughout has been upon the question of
fact thus raised.
Having heard witnesses, the trial eourt
held the transfer was made in 1909, and
rendered a decree in favor of the trustee.
The circuit court of appeals, after a care-
ful review of the evidence, reached a con-
trary conclusion. 134 C. C. A. 635, 219
Fed. 17. We are now asked to reverse its
decree and sustain the trial eourt.
Notwithstanding doubts necessarily en-
gendered by some confiicting statements and
questionable circumstances, upon considera-
tion of the whole record we think the de-
cision of the circuit court of appeals it cor-
rect.
Appellant also suggests (a) that the gift
is void because Mrs. Harvey permitted her
husband for more than four years to retain
apparent title to the stock and hold himself
out as its real owner; and (b) that there
was no actual and continuous change of
possession, as required by the state statute
against fraudulent conveyances. In reply
to these suggestions it seems only necessary
to cite National Bank v. Western P. R. Co.
157 Cal. 573, 581, 27 L.ILA.(N.S.) 987, 108
Pac. 076, 21 Ann. Cas. 1391, which an-
nounces as settled doctrine in California
[201] that title to stock may be trans-
ferred by delivery of certificates, and cor-
porate books are not for public informa-
tion.
The judgment of the Circuit Court of Ap-
peals is affirmed.
Mr. Justice McKenna took no part in
the consideration or deciaiom ol this case.
201
SUPREME COURT OF THE UNITED STATES.
Oct. Tbm,
FRANKLIN K. LANE, Secretary of the
Interior, Plff. in Err.,
V.
UNITED STATES OF AMERICA EX RE-
LATIONE JULIA LAMERE MICKA-
DIET, n44 Tiebault, and Alma Lamcrc
Tiebault.
(See S. C. Reporter's ed. 201-211.)
Mandamus ^ to control admlnistratlTe
action — • ascertainment of belrs of
Indian allottee.
1. An ord«*r of the Secretary of the In-
terior, recognizing the adopted children of
a deceased Indian allottee as his heirs,
tiiough made "final and conclusive*' by the
act of June 25, 1910 (36 Stat, at L. 855,
chap. 431, Comp. Stat. 1013, f 4226), un-
der wliich he acted, did not exhaust his
power so as to permit the courts by man-
damus to interfere with his action in re-
opening the matter for further considera-
tion, where the property to which the order
relates is still in the administrative con-
trol of the Department because of the trust
imposed by the law of the United States
until the expiration of the statutory period.
[For other cases, see Bfandamus, II. d, 6, in
Digest Bap. Ct. 1908.]
Handamna ^ to control admlnistraUve
action ^ ascertainment of beirs of
Indian allottee.
2. A decree of adoption made by a
state court furnishes no ground for inter-
fering by mandamus with the exercise by
the Secretary of the Interior of his power
under the act of June 25, 1010 (36 SUt.
at L. 855, chap. 431, Comp. Stat. 1913,
§ 4226), to determine the legal heirs of a
deceased allottee, and in so doing to ascer-
tain the existence of the state court's judg-
ment, the jurisdiction ratione materuB of
the court by which it was rendered, and
the legal effect whioh it was entitled to re-
ceive under the state law.
[For other cases, soe Mandamus, II. d, 6. in
Digest Sap. Ct. 1908.]
[No. 449.]
Argued April 10, 1016. Decided May 22,
1916.
IN ERROR to the Court of Appeals of the
District of Columbia to review a judg-
ment which reversed, with a direction to
issue the mandamus prayed for, a judg-
ment of the Supreme Court of the Diitrict,
dismissing the petition for a writ of man-
damus to control the action of the Secre-
tary of the Interior concerning the ascer-
tainment of the heirs of a deceased Indian
allottee. Reversed and remanded with di-
rections to affirm the judgment of the Su-
preme Court of the District.
Note, — On power of courts to enforce
ministerial duties of heads of depart-
ments— see note to Cooke t. Iverson, 52
L.R.A.(N.S.) 415.
956
See same case below, 43 App. D. C. 414.
The facts are stated in the opinion.
Solicitor General DaTia argued the cause,
and, with Mr. Robert Szold, filed a brief
for plaintiff in error:
Since the United States, the real party
defendant, has not consented to be sued
in this cause, it should be dismissed for
want of jurisdiction.
Naganab v. Hitchcock, 202 U. S. 473, 50
L. ed. 1113, 26 Sup. CL Rep. 667; Oregon v.
Hitchcock, 202 U. S. 60, 50 L ed. 935, 26
Sup. Ct. Rep. 568.
The immunity of the United States from
suit is not waived by failure to present
the point in the lower court.
Carr v. United States, 98 U. S. 433, 438,
25 L. ed 209, 211 ; Stanley y. Schwalby, 162
U. S. 255, 270, 40 L ed. 960, 965, 10 Sup.
Ct. Rep. 754.
Prior to conveyance of legal title to the
heirs of the Indian allottee the Secretary
of the Interior has jurisdiction to recon-
sider a determination of heirship. The
statutory direction that the Secretary's de-
cision shall be final and conclusive is ad-
dressed to the courts.
Hallowell v. Commons, 239 U. S. 506,
ante, 409, 36 Sup. Ct. Rep. 202; Pearson v.
Williams, 202 U. S. 281, 50 L. ed. 1029, 26
Sup. Ct. Rep. 608.
The decided cases settle the general rule.
Brown v. Hitchcock, 173 U. S. 473, 43 L.
ed. 772, 19 Sup. Ct. Rep. 485; United SUtes
ex rel. Knight y. Lane, 228 U. S. 6, 57 L
ed. 709, 33 Sup. Ct. Rep. 407.
In this case the legal title beyond all
doubt remains in the United States.
United States v. Rickert, 188 U. S. 432,
47 L. ed. 532, 23 Sup. Ct. Rep. 478.
The judgment of the Secretary cannot
be controlled by mandamus.
Hallowell v. Commons, supra; United
States ex rel Ness v. Fisher, 223 U. S. 683,
693, 56 L. ed. 610, 613, 32 Sup. Ct. Rep.
356; Oregon v. Hitchcock, 202 U. S. 60, 70,
50 L. ed. 935, 938, 26 Sup. CL Rep. 568.
The order for rehearing was not arbi-
trary, but within the exercise of reasonable
discretion.
Jaster v. Currie, 69 Neb. 4, 94 N. W. 995;
Tucker y. Fisk, 154 Mass. 574, 28 N. E.
1051.
Mr. Irving F. Baxter argued the cause,
and, with Messrs. Norris Brown, Edward F.
Colladay, and Howard Saxton, filed a brief
for defendant in error:
The Secretary of the Interior is without
jurisdiction to annul the decision of his
predecessor of January 11, 1913, for the
reason that such decision was a Judicial
act and can only be reviewed, if at all, by
the courts.
141 U. 8»
191S.
LAKE V. UNITICD STATES u iel. MICKADIET.
Hallowell v. Commons, 127 C. C. A. 343,
210 Fed. TD3; Bond v. United States, 181 :
Fed. 613; Pel-AU-Yakot t. United States,
188 Fed. 387 i Parr ». Colfax, 117 C. C. A. i
48, 197 Fed. 302; Oglesby v. Attrill, 14
Fed. 214; AUen v. Wilaon, 21 .
Baptist V. Farwell Tranap. Co. 20 Fed. 180.
When the Secretary of the Interior under
the public lands act proceeds to investi-
gate, to hear testimony, and to decide the :
issue as to who is rightfully entitled to a
patent or to a homestead entry, his de-
cision tliereOD is not reviewable by
auccesBor in office.
Germania Iron Co. t. James, 32 G. C A.
34S. 61 U. S. App. 1, SB Fed. 811 j Noble v.
Union River Logging R. Co. 147 U. T " "
37 L. ed. 123, 13 Sup. Ct. Rep. 271 ; Emblem
T. Lincoln Land Co. 42 C. C. A. 4SB, 102
Fed. 503; United States v. Stone. 2 Wall.
fi25, 17 L. ed. 705; Lane v. Watts, 234 U. S.
52B, 540, 58 L. ed. 1440, HoO, 34 Sup. ("t. '
Rep. 065; Ballinger t. United SUt«s, 210 i
U. S. 240, 54 L. ed. 464, 30 Sup. Ct, Rep-
336; Union Terminal R. Co. v. Railroad
Comrs. 04 Kan. 352, 3S Pac. 200; Renaud
V. State Court of Mediation t Arbitration, United States v. Rickcrt, 188 U. S. 432,
124 Mich. 648, 51 L.RjI. 453, 83 Am. St. *7 L. ed. 632, 23 Sup. Ct. Rep. 478; Marchie
Rep. 346, 83 N. W. 620. Tip;er v. Western Invest. Co. 221 U. S. 208,
The adoption decree of the county court 311, 55 L. ed. 742, 747, 31 Sup. Ct. Rep.
of Thuiston county, Nebraska, acting with- 578; United States v, Celestine, 215 U. ti.
in its jurisdiction, from which no appeal 278, 54 L. ed. 105, 30 Sup. Ct. Rep. 03.
was taken, is not subject to collateral at- I'rior to the act of Congress of August
Uok, and the Secretary of the Interior is ^•'- 1^04, the Secretary of the Interior, u
without power or jurisdiction to annul, *''* represenUtive ot tlie government in
modify, or vacate such decree. ^'"' execution ol treaty obligatioi
The primitive dependence and the eco-
nomic helplessness of these people under
luodern civilization have been recognized
by the courts, and it has been observed thst
the obligation of the govemment towards
them falls upon the Executive, and out of
this obligation arises the duty of protec-
tion.
United States v. Kagama, 118 U. S. 376,
30 L. ed. 228, 6 Sup. Ct. Rep. 1109.
Tlie legal interpretation of this alloting
statute lias been made clear by this court,
and in the coastruction of the trust cre-
ated tliereby, it has been held that the
holding of the individual allotment in trust
by the United States, for the sole use and
bi'neflt of the Indian ward, was merely one
, of the inBtrumentalities employed by the
, government in its policy of protecting and
. developing these people in their passage
from a state of dependence and pupilage
. into fuller citizenship, and preparing them
I the responsibilities of civilized
ivith exclusive jurisdietion to de-
< the descent of these lands during
the trust period.
McKay v. Kalyton, Z04 U. S. 468, 51
Ferguson v, Herr, 64 Neb. 662, DO N. W.
«25, 04 N. W. M2; Jones v. Leeds, 41 Ind.
App. 104, 83 N. E. 526; Brown v. Brown,
^l^ ,^A- ^«' J^''5'/''P"'' ^° ^'^'" L.^'ed. 596. 27 Sup. a. Rep. 346,
(Pa.) 139. 22 W. N. C. 93, 13 Atl, 760; ^his jurisdiction was temporarily inUr-
ttzek v. Czek, 60 Neb. 797. 96 N. W. 657, ^ptod by the passage of the act of 1894.
M N. W. 28, G Ann. Cas, 464; Chaloner v. but it has been held that the act ot June
Shermsn. 132 C. C. A. 06, 215 Fed. 887. 25. 1010, restored to the Secretary of the
Harrison Tebo and every other blood Interior the authority which inherently be-
relative of My Soul Tiebault, deceased,
estopped in law to question the validity of
the adoption decree entered by the county
«ourt of TburstoD county, Nebraska. Such
decree was binding upon My Soul Tie-
bault during his lifetime, and is not sub-
ject to collateral attack by his heirs after
bis death.
Re Williams, 102 Cal. 70, 41 Am. St. Rep.
163, 36 Pac. 407; Van Matre v. Sankey,
148 in. 636, 23 L.R.A, 665, 39 Am. St. Rep.
106, 36 N. E. 628; Re Johnson, 98 Cal. 543.
21 L.Rjl. 380, 33 Pac. 400; Parsons v. Par-
•oos. 101 Wis. 76, 70 Am. St. Hep. 804. 77
V. W. 147; 1 R. C. L. 624; Ferguson v.
Hmt, 64 Neb. 680, &0 N. W. 625, 94 N. W.
fi42.
40 L. ed.
longed to his office.
Hallowell V. Commons, 239 U. S. 506,
ante, 409, 36 Sup. Ct. Rep. 202; Harchio
Tiger v. Western Invest. Co, 221 U, S. 311,
55 L. ed. 747, 31 Sup. Ct. Rep. 578.
If a court proceeds without jurisdiction
its decrees are void, rcgnrdless of how
teelmically correct the record may appear.
Sheldon v. Newton, 3 Ohio St. 494; Scott
V. McNeal, 154 U. S. 34, 38 L. ed. 806, 14
Sup. Ct. Rep. 1108; Cooper r. Newell, 173
U- S. 555, 43 L. ed. 808, 19 Sup. Ct. Rep.
SOS.
A court of general or superior jurisdic-
tion may. even in a collateral proceeding,
question the decree of another court when
it appears that such decree was rendered
without Jurisdiction because of fraud, de-
204-20G
SUPREME COURT OF THE UKITED STATES.
Oct. Tbu,
celt, ur other jorUdictional defects, not-
withstanding the averments contained in
the record of the judgment itself.
Michaels ▼. Post, 21 WalL 398, 22 L. ed.
520; Thompson v. Whitman, 18 Wall. 457,
21 L. ed. 897; lyArcy v. Ketchum, 11 How.
165, 13 L. ed. 648; Public Works v. Colum-
bia College, 17 WaU. 621. 527, 21 L. ed.
687, 691; Bigelow v. Old Dominion Copper
Min. & Smelting Co. 225 U. S. Ill, 134-139,
56 L. ed. 1009, 1024-1026, 32 Sup. Ct. Rep.
641, Ann. Cas. 1913E. 875.
The decision which the Secretary of the
Interior now proposes to open for recon-
sideration was rendered under a misappre-
hension of these well-settled principles of
law, and he therefore never exercised his
full jurisdictional function. As such a
tribunal, the Secretary is undoubtedly
clothed with the power and authority to
rehear and determine what he has not
fully passed upon, viz., jurisdiction of the
county court affecting Indian lands; and
if he finds that in the former decision he
was not fully advised of the facts, he may
ascertain them; and if he finds that in
such former decision he has made errors
of law or fact, he may correct the same.
Knight Y. United Land Asso. 142 U. S.
161, 177-181, 35 L. ed. 974, 979-181, 12
Sup. Ct. Rep. 258.
Mr. Chief Justice White delivered the
opinion of the court:
The relators, who are defendants in er-
ror, invoked the aid of the trial court to
control by mandamus the action of the Sec-
retary of the Interior concerning an allot-
ment in severalty of land made to an
Indian in pursuance of the authority con-
ferred by the act of February 8, 1887 (chap.
119, 24 Stat, at L. 388, Comp. SUt. 1913,
§ 4195), entitled, "An Act to Provide for
the Allotment of Lands in Severalty to In-
dians on the Various Reservations." Under
the facts stated in his return to the alter-
native rule, the Secretary, asserting that
the land embraced by the allotment in ques-
tion was held in trust by the United States
for the benefit of the allottee, and that the
official action sought to be prohibited was
not subject to judicial control, because it
was one of exclusive administrative author-
ity, denied that there was a right to grant
the relief prayed. The return was de-
murred to as stating no ground for with-
holding the relief. The trial court overruled
the demurrer and discharged the rule, but
the court below reversed, and, holding that
the Secretary had no power to take the ac-
tion which it was alleged he intended to
ta\ce concerning the allotment in question,
awarded the mandamus prayed (43 App. D.
958
C. 414), and the correctness of this ruling
is the question now to be decided.
The facts are these: Tiebault was a Win-
nebago Indian living on the tribal reserva-
tion in Nebraska, and in August, 1887, re-
ceived an allotment in severalty of the tribal
land to which he was entitled, made in
virtue of the act of 1887. That act, after
conferring authority upon the Secretary of
the Interior to make allotments of tribal
lands as therein specified, directed that of-
ficial to issue [205] to the allottees pat-
ents, which *'shall be of the legal effect, and
declare that the United States does and will
hold the lands thus allotted, for the period
of twenty-five years, in trust for the sole
use and benefit of the Indian to whom such
allotment shall have been made, or, in case
of his decease, of his heirs according to the
laws of the state or territory where such
land is located, and that at the expiration
of said period the United States will con-
vey the same by patent to said Indian, or
his heirs as aforesaid, in fee, discharged of
said trust and free of all charge or en-
ciunbrance whatsoever: Provided, That the
President of the United States may in any
case in his discretion extend the period."
(Section 5.)
About ten years after the allotment Tie-
bault, having continued to reside on the
land and to enjoy the same conformably to
the statute, began proceedings in the court
of Thurston county, Nebraska, for the adop-
tion as his children of the two relators, who
were also Winnebago Indians, and a decree
of adoption as prayed was entered. When,
ten years after the adoption, Tiebault died
without surviving issue, the adopted chil-
dren, asserting rights as his sole heirs,,
sought the possession of the land embraced
by the allotment and of some other land
which had also been covered by an allotment
made to a daughter of Tiebault, who died
before him without issue, and which land he
had therefore inherited. This claim of heir-
ship was disputed by nephews and nieces of
Tiebault claiming to be his next of kin.
The result was the commencement of pro-
ceedings in the district court of the United
States for the district of Nebraska on the
part of the adopted children to obtain m
recognition of their right of heirship, the
nephews and neices being among the par-
ties defendant. Considerable testimony was
taken, but no decree was entered because*
by the act of May 8, 1906 (chap. 2348, 34
Stat, at L. 182), and the act of June 25,
1910 (chap. 431,. § 1, 36 Stat, at L. 855,
Comp. Stat. 1913, § 4226), it resulted that
the district court was [206] without power
to proceed further, exclusive juris^ction
over the subject having been conferred by
the acts in question upon the Secretary of
241 U. S.
1U15.
LANE T. UNITED STATES MX
MICKADIET.
206-208
the Interior. The pertinent provisions of the
act last referred to are in the margin, l
The theater of tlie controversy was there-
fore, by the assent of the parties and of the
United States, transferred to the Interior
Department, ^here testimony was begun be-
fore an examiner, and the Secretary of the
Interior, in June, id 13, entered an order
in favor of the adopted children, holding
them to be the lawful heirs of Tiebault, and
entitled under the statute to the ownership
and enjoyment of the allotted lands.
Ihe Secretary having been given author-
ity both by the 6th section of the act of
1006 and by the provisions of the act of
1910, which we have quoted, to reduce the
twenty-five-year period, the recognized heirs
applied for an order terminating the trust
period and for the issue to them of a fee-
simple patent. This application was op-
posed by the next of kin, who had been
parties to the previous proceeding as to heir-
ship, and they also asked [207] to be per-
mitted to reopen the controversy as to the
validity of the adoption and the heirship
resulting from it, on the ground that, as the
result of newly discovered evidence, th«)y
desired to show that the Nebraska decree
of adoption an^ the previous administrative
order had been obtained by fraud. Under
this request it would seem that considerable
testimony was taken, but it was never
acted upon because the reco^^nised heirs, the
relators, disputed the authority of the Sec-
retary to reopen the controversy, on the
ground that the previous departmental order
reeognizing them as heirs was not subject to
be reopened or reviewed, and, in any event.
Chat the decree of adoption of the Nebraska
court was beyond the competency of the
Sedretary to review or set aside even upon
the charges of fraud which were made.
Without passing upon the merits involved
in the claim to reopen, or expressing any
opinion concerning the conclusiveness of the
Nebraska decree, the Secretary granted the
application to reopen, and ordered the is-
sues thereon to stand for future considera-
tion. Thereupon the petition for manda-
mus was filed, to which a return was made,
alleging the facts to be as we have stated
them, resulting in the judgment of the court
below awarding the mandamus which is be-
fore us for review.
It is undoubted that the fee-simple title
to the land embraced by the allotment had
not passed from the United States, and that,
as expressly stated in the granting act, the
land was held in trust by the United States
for the benefit of the allottees to await the
expiration of the trust period fixed by law,
when the duty on the part of the United
States of conveying the fee of the land
would arise. It is equally undoubted un-
der these conditions that the land was un-
der the control, in an administrative sense,
01 the Land Department for the purpose of
carrying out the act of Ck>ngress. As there
is no dispute, and could be none, concern-
ing the general rule that courts have no
[208] power to interfere with the perform-
ance by the Land Department of the ad-
ministrative duties devolving upon it, how-
ever much they may, when the functions of
that Department are at an end, correct, as
between proper parties, errors of law com-
mitted in the administration of the land
laws by the Department, it must follow, un-
less it be that this case by some exception
is taken out of the general rule, that there
was no power in the court below to control
the action of the Secretary of the Interior,
and reversal therefore must follow. United
States V. Schurs, 102 U. S. 378, 396, 26 L.
ed. 167, 17.1; Brown v. Hitchcock, 173 U.
S. 473, 43 L. ed. 772, 19 Sup. Ct. Rep. 485 ;
United Sutes ex rel. Knight v. Lane, 228
U. S. 6, 67 L. ed. 709, 33 Sup. Ct Rep. 407.
But, as the court below rested its conclu-
sion of power solely upon the existence of
an assimied exception to the general rule,
and as the correctness of that view is the
sole ground relied upon to sustain the
judgment, that question is the single subject
for consideration, and we come to dippose
of it
The exception rests upon two considera-
tions: (a) The want of power of the
Secretary to reopen or reconsider the prior
administrative order recognizing the re-
lators as the heirs of the deceased allottee,
— an absence of authority which, it is
deemed, resulted from the provisions of the
act of 1010 which we have previously quoted
1 "That when any Indian to whom an al-
lotment of land has been made, or may here-
after be made, dies before the expiration of
the trust period and before the issuance of
a fee-simple patent, without having made
a will disposing of said allotment as here-
inafter provided, the Secretary of the In-
terior, upon notice and hearing, under such
rules as he may prescribe, shall ascertain
the legal heirs of such decedent, and his de-
cision thereon shall be final and conclusive.
If the Secretary of the Interior decides the
heir or heirs of such decedent competent to
•0 li. ed.
manage their own affairs, he shall issue to
such Iieir or heirs a patent in fee for the
allotment of such decedent; if he shall de-
cide one or more of the heirs to be incom-
f detent, he may, in his discretion, cause such
ands to be sold: Provided, That if the
Secretary of the Interior shall find that the*
lands of the decedent are capable of parti-
tion to the advantage of the heirs, he
may cause the shares of such as are com-
petent, upon their petition, to be set aside
and patents in fee to be issued to them
therefor."
f
208-211
SUPHEME COURT OF TIIE UNITED STATES.
Oct. Term,
in the margin; and (b) the further absence
of all authority of the Secretary to disre-
gard the decree of adoption of the Nebraska
court by collaterally questioning the same
in order to deprive of the status of adop-
tion which that decree, it is insisted, had
conclusively fixed as against all the world
under the law of Nebraska.
(a) The first proceeds upon the theory
that the provision of the act of 1910 to the
effect that the decision of the Secretary
recognizing the heira of a deceased allottee
"shall be final and conclusive" caused the
prior order of the Secretary, recognizing the
relators as heirs, to completely exhaust his
power, and therefore to give a character of
absolute finality to such order, even al-
though the property [200] to which it re-
lated was yet in the administrative con-
trol of the Department because of the trust
imposed by the law of the United States un-
til the expiration of the statutory period.
But we are of opinion that this is a mis-
taken view. The words "final and conclu-
sive" describing the power given to the
Secretary must be taken as conferring, and
not as limiting or destroying, that author-
ity. In other words, they must be treated
as absolutely excluding the right to review
in the courts, as had hitherto been the case
under the act of 1887, the question of fact
as to who were the heirs of an allottee,
thereby causing that question to become one
within the final and conclusive competency
of the administrative authority. As it is ob-
vious that the right to review on proper
charges of newly discovered evidence or
fraud a previous administrative order while
the property to whidi it related was imder
administrative control was of the very es-
sence of administrative authority (Michi-
gan Land & Lumber Co. v. Rust, 168 U. S.
580, 42 L. ed. 591, 18 Sup. Ct. Rep. 208), it
must follow that the construction upheld
would not only deprive the Secretary of the
final and conclusive authority which the
statute in its context contemplated he
should have, but would indeed render the
administrative power conferred wholly in-
adequate for the purpose intended by the
statute. And it must be further apparent
that the inadequacy of authority which the
proposition, if accepted, would bring about,
could not be supplied, since it would come to
pass that, although the property was yet in
the control of the United States to carry
out the trust, there would be an absence of
all power, both in the administrative and
judicial tribunals, to correct an order once
rendered, however complete might be the
proof of the fraud which had procured it.
But it is said that the purpose of the
statute was to give the recognized heir a
status which would entitle him to enjoy
the allotted land, and not to leave all his
rights of [210] enjoyment open to chang-
ing decisions which might be made during
the long period of the trust term, and thus
virtually destroy the right of property in
favor of the heir which it was the obvious
purpose of the statute to protect. But, in
last analysis, this is a mere argument seek-
ing to destroy a lawful power by the sug-
gestion of a possible abuse. We say this be-
cause, although it be conceded, for the sake
of the argument only, that an exercise of
power which was plainly an abuse of discre-
tion, depriving of the right which the stat-
ute plainly gave, would be subject to cor-
rectioz^by.the courts, such concession would
be here without influence, since there is no
basis whatever upon which to rest an as-
sumption of abuse of discretion.
(b) So far as the Nebraska decree is con-
cerned, the mistake upon which the proposi-
tion proceeds is obvious; since, conceding
the premise upon which it must rest to be
well founded, it affords no ground for pre-
venting by judicial action the exercise by
the Secretary of his power to determine the
legal heirs, and in doing so to ascertain
the existence of the Nebraska judgment,
the jurisdiction ratume matericB of the
court by which it was rendered, and the
legal effect which it was entitled to receive
under the law of Nebraska.
There was a suggestion in argument,
which it was conceded was not made in the
courts below, of an absolute want of juris-
diction upon the theory that, as the title of
the allotted property was yet in the United
States for the purposes of the trust, there
could in any event be no jurisdiction over
the cause, since, in substance and effect, it
was a suit against the United States. As,
however, the considerations involved in this
proposition were absolutely coincident with
those required to be taken into view in or-
der to determine the power of the Secretary,
we have not deemed it necessary to specially
consider the subject.
It follows from what we have said that
the court below was without jurisdiction to
control the conduct of the [2 11]. Secretary
concerning a matter within the administra-
tive authority of that officer, and therefore
that the mandamus was wrongfully al-
lowed, and the judgment awarding it must
be and it is reversed and the case remanded
with directions to affirm the judgment of
the Supreme Court of the District of Co-
lumbia, dismissing the petition for a writ
of mandamus.
Reversed.
Mr. Justice McReynolds took no part in
the consideration and decision of this case,
141 V. S.
1915.
MINNEAPOLIS A ST. L. R. CO. y. BOMBOLIS.
211
MINNEAPOLIS k ST. LOUIS RAILROAD
COMPANY, FIB. in Err.,
▼.
OEORGE BOMBOLIS, as Administrator of
the Estate of Constantine Nanos, alias
Gust Nanos, Deceased.
(See S. C. Reporter's ed. 211-223.)
JxkTj — fnfrlnicement of right — non-
vnanfmons verdict — action under
Federnl statute.
Tlie requirement of U. S. Const., 7th
Amend., tliat trials by jury be according
to the course of the common law, i. e., by
Jt unanimous verdict, does not control the
state courts, even when enforcing rights
under a Federal statute like the employers'
liability act of April 22, 1008 (35 Stat, at
L. 65, chap. 149, Comp. Stat. 1913, § 8657),
and such courts may, therefore, give effect
in actions under that statute to a local
practice permit ting a less than unanimous
verdict.
IFor other cnnen, see Jury, L d, 2, in Digest
SuR. Ct. 1908.]
[No. 478.]
Argued and submitted April 10 and 20,
1916. Decided May 22, 1916.
IN ERROR to the Supreme Court of the
State of Minnesota to review a judg-
ment which, on a second appeal, alDrmed
4k judgment of the District Court of Henne-
pin County, in that state, in favor of plain-
tiff in an action for death, brought under
the Federal employers' liability act Af-
firmed.
See same ease below, on first appeal, 128
Minn. 112, 150 N. W. 385.
The facts are stated in the opinion.
Mr. Frederick M. Miner argued the
«au8e, and, with Mr. William H. Bremner,
filed a brief for plaintiff in error:
The riglit of trial by jury which is
secured to all persons subject to the juris-
diction of the United States, by the pro-
visions of the 7th Amendment, means a
jury of twelve men, who must, in finding
facts, act unanimously. .
American Pub. Co. v. Fisher, 166 U. S.
464, 41 L. ed. 1079, 17 Sup. Ct. Rep. 618;
Springville v. Thomas, 166 U. S. 707, 41
L. ed. 1172, 17 Sup. Ct. Rep. 717; Capital
Traction Co. v. Hof, 174 U. S. 1, 43 L. ed.
fi73, 19 Sup. Ct. Rep. 580.
Note. — On number and agreement of
jurors necessary to constitute a valid ver-
dict— see notes to State v. Bates, 43 L.R.A.
33, and Silsby v. Foote, 14 L. ed. U. S. 394.
On the constitutionality, application, and
effect of the Federal employers' liability
Act — see notes to Lamphere v. Oregon R. k
Nav. Oo. 47 L.R.A. rN.S.) 38, and Seaboard
Air Line R. Co. v. Uorton, UftJL 1915C, 47.
40 I«. ML
The right which is secured by the 7th
Amendment is not a matter of procedure,
but of substance, and one possessing such
right cannot be deprived of the same by
any means short of an amendment to the
Constitution of the United States.
Walker v. New Mexico & S. P. R. Co.
165 U. S. 593, 41 L. ed. 837, 17 Sup. Ct.
Rep. 421, 1 Am. Neg. Rep. 768; American
Pub. Co. V. Fisher, 166 U. S. 464, 41 L. ed.
1079, 17 Sup. Ct. Rep. 618; Springville v.
Thomas, supra; Slocum v. New York L. Ins.
Co. 228 U. S. 364, 57 L. ed. 879, 33 Sup.
Ct. Rep. 523, Ann. Cas. 1914D, 1029.
The 7th Amendment is a limitation upon
all of the powers delegated by the Consti-
tution to those agencies which comprise the
government of the United States; there-
fore, not only the courts, but the legislature
of the United States, is limited by this
Amendment, and the right secured thereby
enters into and controls all suits founded
upon legislation enacted by Congress in
whatever court the same may be brought,
where such court sits and exercises power
within the domain of the tjnited States.
Walker v. New Mexico & S. P. R. Go.
165 U. S. 595, 41 L. ed. 840, 17 Sup. Ct.
Rep. 421, 1 Am. Neg. Rep. 768; American
Pub. Co. V. Fisher, 166 U. S. 464, 41 L. ed.
1079, 17 Sup. Ct. Rep. 618; Springville v.
Thomas, 166 U. S. 707, 41 L. ed. 1172, 17
Sup. Ct. Rep. 717; Bauman v. Ross, 167
U. S. 592, 42 L. ed. 289, 17 Sup. Ct. Rep.
066; Thompson v. Utah, 170 U. S. 343-350,
42 L. ed. 1061-1066, 18 Sup. Ct. Rep. 620;
Guthrie Nat. Bank v. Guthrie, 179 U. S.
528-537, 43 L. ed. 796-800, 19 Sup. Ct.
Rep. 513; CapiUl Traction Co. v. Hof, 174
U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep. 580;
Maxwell v. Dow, 176 U. S. 581, 596, 44 L.
ed. 597, 603, 20 Sup. Ct. Rep. 448, 494;
Black V. Jackson, 177 U. S. 349, 44 L. ed.
801, 20 Sup. Ct. Rep. 648; Downes v. Bid-
well, 182 U. S. 244, 270, 45 L. ed. 1088,
1100, 21 Sup. Ct. Rep. 770; Rassmussen v.
United States, 197 U. S. 516-526. 49 L. ed.
862-865, 25 Sup. Ct. Rep. 514; Second Em-
ployers' Liability Cases (Mondou v. New
York, N. H. & H. R. Co.) 223 U. S. 1, 55,
57, 56 L. ed. 327, 348, 349, 38 L.R.A.(N.S.)
44, 32 Sup. Ct Rep. 169, 1 N. C. C. A. 875;
Slocum V. New York L. Ins. Co. 228 U. S.
304, 377, 57 L. ed. 879, 885, 33 Sup. Ct.
Rep. 523, Ann. Cas. 1914D, 1029; Central
Vermont R. Co. v. White, 238 U. S. 507, 59
L. ed. 1433, 35 Sup. Ct. Rep. 865, 9 N. C.
C. A. 265, Ann. Cas. 1916B, 252; Atlantic
Coast Line R. Co. v. Bufnette, 239 U. S.
199, ante, 226, 36 Sup. Ct. Rep. 75.
A state court can derive no authority
from the power which creates it to adjudi-
cate controversies based upon the Federal
act.
ei tti
216
8UPBSMB OOUBT OF THB UNITED SXATSa
Oct. Tknif
Ableman y. Booth, 21 How. 506, 16 L. ed.
169; Leyin y. United States, 68 0. 0. A.
476, 128 Fed. 826.
The principles of law eomprised within
the tenn "eomity," hj which courts enter-
tain controyersies inyolying rights created
by Boyereign power, other than that which
created such courts, do not afford the basis
or ground upon which state courts maj ex-
ercise their powers in controyersies founded
upon the Federal act.
Claflin y. Houseman, 93 U. S. 130, 23 L.
ed. 833; Second Employers' Liability Gases
(Mondou y. New York, N. H. & H. R. Ck>.)
223 U. S. 1, 66 L. ed. 827, 38 LJIA.(N.S.)
44, 82 Sup. Ct. Rep. 169, 1 N. G. G. A. 875.
The dictum of District Judge Whitson, to
the effect that the principle of comity by
analogy may be inyolyed in this question,
is evidently inadmissible, and, with due
respect, seems to inyolye a contradiction.
Zilcos y. Oregon R. k Nay. Go. 179 Fed.
893.
When It, "comity," is the basis of
judicial determination, the court extending
the comity out of fayor and good will ex-
tends to foreign laws an effect they would
not otherwise haye.
Stowe y. Belfast Say. Bank, 92 Fed. 90.
But its obligation is not imperative.
Mast, F. & Go. y. Stover Mfg. Go. 177
U. S. 485, 44 Lb ed. 856, 20 Sup. Gt. Rep.
708.
Gomity in the legal sense is neither a
matter of absolute obligation, on the one
hand, nor of mere courtesy and good will,
on the other, but is the recognition which
one nation allows within its territory, to
the legislative, executive, or judicial acts
of another nation, having due regard both
to international duty and convenience and
to the rights of its own citizens, who are
under the protection of its laws.
Hilton y. Guyot, 159 U. S. 113, 40 L. ed.
95, 16 Sup. Gt. Rep. 139.
It is the voluntary act of the nation by
which it is offered, and is inadmissible
when contrary to its policy or prejudicial to
its interests.
People v. Martin, 175 N. Y. 315, 06 Am.
St. Rep. 628, 67 N. £. 589, 15 Am. Grim.
Rep. 591.
To say that a state court obeys the Gon-
stitution of the United States, or a law
made pursuant thereto, as a voluntary act,
or as a matter of convenience and expedi-
ency, would be absurd, and involve a con-
tradiction in terms.
Ableman v. Booth, 21 How. 506, 516, 16
L. ed. 169, 173.
Gongress, in the legitimate exercise of the
power conferred upon it, may withhold
jurisdiction to try causes founded upon
laws passed by it, or oan confer exclusive
jurisdiction with respect to such matten
upon the Federal courts.
Glaflin y. Houseman, supra; The Mosst
Taylor, 4 Wall 411, 18 L. ed. 397.
State courts, in dbciding oontroversiss
founded upon this act, are applying the
judicial power of the United States; and
if it be held that the 7th Amendment is a
limitation only upon that power, state
courts could not enforce such power apart
from the limitation of the said Amendment.
M'GuUoch y. Maryland, 4 Wheat 816, 4
L. ed. 579; Gohen v. Virginia, 6 Wheat. Hi^
5 L. ed. 293.
The judicial power of the United Statsa
is coextensive with its legislatiye power.
Gohen v. Virginia, supra.
If a case is not within the judicial power
of the United States an appeal will not lie
to this court, for it is s^-evident that one
sovereign power cannot exercise superyiaioB
over the judiciary of another.
Martin y. Hunter, 1 Wheat. 804, 4 L. ed.
97; Gohen y. Virginia, supra.
A substantive right or defense arising
under the Federal law cannot be lessened
or destroyed, by a rule of procedure.
Norfolk Southern R. Go. y. Ferebee, 238
U. S. 269, 59 L. ed. 1303, 35 Sup. Gt. Rep.
781.
Messrs. Frederick M. Miner and William
H. Bremner also united in a joint brief filed
in behalf of plaintiff in error in Ghesapeake
A 0. R. Go. y. Kelly, post, 1117.
Mr. George B. Leonard for defendant in
error. For his contentions, see joint brief
filed in behalf of defendant in error in
Ghesapeake & 0. R. Go. v. Kelly, poet, 1117.^
Mr. Ghief Justice White delivered the
opinion of the court:
Gounting upon the employers' liability set
of 1908 (chap. 149, 35 SUt. at L. 65), as
amended by the act of 1910 (chap. 143, 3d
Stat, at L. 291, Gomp. SUt 1913, | 8662),^
the defendant in error sued in a state court
to recover for the loss resulting from the
death of Nanos, his intestate, alleged to
have been occasioned by the negligence of
the plaintiff in error while he, Nanos, wss
in its employ and engaged in interstate
commerce.
Whatever may have been the controver*
sies in the trial court prior to the verdiet
of the jury in favor of the plaintiff, and
the contentions which were unsuccessful!/
urged in the court below to secure a re*
versal of the judgment entered thereon, oa
this writ of error they have all but one bee»
abandoned, and hence haye all but one be>
come negligible. As the one question here
remaining was also involved in five other
cases pending under the employers' liabilitX
141 U. 8-
1916.
MINNEAPOUS & 8T. L. R. CO. ▼. BOMBOLI&
215-218
act on writs of error to the courts of last
resort of Virginia, Kentucky, and Oklahoma,
those cases and this were argued together.
As the other cases, however, involve addi-
tional questions, we dispose separately of
this case in order to decide in this the one
question which is common to them all, and
thus enable the other cases, [2 16 J if we
deem it is necessary to do so, to be treated
in separate opinions
By the Constitution and laws of Minne-
■ota in civil causes, after a case has been
under submission to a jury for a period of
twelve hours without a unanimous verdict,
five sixths of the jury are authorized to
reach a verdict, which is entitled to the
legal effect of a unanimous verdict at com-
mon law. When in the trial of this ease
the court instructed the jury as to their
right to render a verdict under such cir-
cumstances, the defendant company object-
ed on the ground that, as the cause of ac-
tion against it arose under the Federal
employers' liability act, — in other words,
was Federal in character, — the defendant
was by the 7th Amendment to the Consti-
tution of the United States entitled to have
its liability determined by a jury consti-
tuted and reaching its conclusion according
to the course of the common law, and hence
to apply the state statute would be repug-
nant to the 7th Amendment. This objec-
tion, which was overruled and excepted to,
was assigned as error in the court below,
was there adversely disposed of (128 Minn.
112, 150 N. W. 385), and the alleged re-
sulting error concerning such action is the
one question which, we have said, is now
urged for reversal.
It has been so long and so conclusively
settled that the 7th Amendment exacts a
trial by jury according to the course of the
common law, that is, by a unanimous ver-
dict (American Pub. Co. v. Fisher, 166 U.
8. 464, 41 L. ed. 1070, 17 Sup. Ct. Rep.
618; Springville v. Thomas, 166 U. 8. 707,
41 L. ed. 1172, 17 Sup. Ct. Rep. 717; Capi-
tal Traction Co. v. Ilof, 174 U. S. 1, 43
L. ed. 873, 19 Sup. Ct. Rep. 580), that it
is not now open in the slightest to question
that if the requirements of that Amend-
ment applied to the action of the state of
Minnesota in adopting the statute concern-
ing a less than unanimous verdict, or con-
trolled the state court in enforcing that
statute in the trial which is under review,
both the statute and the action of the court
were void because of repugnancy to the Con-
stitution of the United States. The one
[217] question to be decided is therefore
reduced to this: Did the 7th Amendment
apply to the action of the state l^slature
and to the conduct of the state court in
enforcing at the trial the law of the state
•0 li. ed.
as to what was necessary to constitute a
verdict ?
Two propositions as to the operation and
effect of the 7th Amendment are as con-
clusively determined as is that concerning
the nature and character of the jury re-
quired by that Amendment where applica-
ble, (a) That the first ten Amendments,
including, of course, the 7th, are not con-
cerned with state action, and deal only with
Federal action. We select from a multitude
of cases those which we deem to be leading:
Barron v. Baltimore, 7 Pet. 243, 8 L. ed.
872; Fox V. Ohio, 5 How. 410, 434, 12 L.
ed. 213, 223; Twitchell v. Pennsylvania, 7
Wall. 321, 19 L. ed. 223; Brown v. New
Jersey, 175 U. 8. 172, 174, 44 L. ed. 110,
120, 20 Sup. Ct. Rep. 77; Twining v. New
Jersey, 211 U. S. 78, 93, 63 L. ed. 97, 103.
And, as a necessary corollary, (b) that
the 7th Amendment applies only to pro-
ceedings in courts of the United States, and
does not in any manner whatever govern or
regulate trials by jury in state courts, or
the standards •which must be applied con-
cerning the same. Livingston v. Moore, 7
Pet. 469, 552, 8 L. ed. 751, 781; Supreme
Justice v. Murray (Supreme Justice v.
United States) 9 Wall. 274, 19 L. ed. 658;
Edwards v. Elliott, 21 Wall. 532, 22 L. ed.
487; Walker v. Sauvinet, 92 U. S. 90, 23
L. ed. 678; Pearson v. Yewdall, 95 U. S.
294, 24 L. ed. 436. So completely and con-
clusively have both of these principles been
settled, so expressly have they been recog-
nized without dissent or question almost
from the beginning in the accepted inter-
pretation of the Constitution, in the enact-
ment of laws by Congress and proceedings
in the Federal courts, and by state Con-
stitutions and state enactments and pro-
ceedings in the state courts, that it is true
.to say that to concede that they are open ,
to contention would be to grant that noth-
ing whatever had been settled as to the
power of state and Federal governments or
the authority of state and Federal courts and
their mode of procedure from the beginning.
Doubtless it was [218] this view of the
contention which led the supreme court of
Minnesota in this case and the courts of
last resort of the other states in the cases
which were argued wiih this to coincide in
opinion as to the entire want of founda-
tion for the proposition relied upon, and
in the conclusion that to advance it was
virtually to attempt to question the entire
course of judicial ruling and legislative
practice, both state and national, which had
prevailed from the commencement. And it
was, of course, presumably an appreciation
of the principles so thoroughly settled which
caused Congress, in the enactment of the
employers' liability act, to dearly content*
218-220
SUPREME (X)URT OF THE UNITED STATES.
Oct. Tkuc,
pl&te the existence of » concurrent power
and duty of both Federal and state courts
to administer the rights conferred b/ the
statute in accordance with the modes of
procedure prevailing in such courts. In-
deed, it may not be doubted that it must
have been the same point of view which has
caused it to come to pass that during the
number of years which have elapsed since
the enactment of the employers' liability act
and the safety appliance act, and in the
large number of cases which have been
tried in state courts, growing out of the
rights conferred by those acts, the judg-
ments in many of such cases having been
here reviewed, it never entered the mind of
anyone to suggest the new and strange view
concerning the significance and operation of
the 7th Amendment which was urged in
this case and the cases which were argued
with it
Under these circumstances it would be
sufficient to leave the unsoundness of the
proposition to the demonstration to result
from the application of the previous au-
thoritative rulings on the subject, and the
force of the reasoning inherently considered
upon which they were based, as also upon
its convincing power so aptly portrayed by
the opinions of the courts below in this and
the other cases which we have said were ar-
gued along with this. Chesapeake k 0. R. Co.
Y. Camahan, — Va. — , 86 S. E. 863; Chesa-
peake A O. [219] R. Co. y. Kelly, 160 Ky.
296, 160 S. W. 736, 161 Ky. 665, 171 S.
W. 186; Louisville k N. R. Co. y. Stewart,
163 Ky. 823. 174 8. W. 744; St. Louis & S.
F. R. Co. V. Brown, — Okla. — , 144 Pac.
1075. In view, however, of the grave mis-
conception of the very fundamentals of our
constitutional system of government which
is involved in the proposition relied upon
and the arguments seeking to maintain it,
and the misapplication of the adjudged cases
upon which the arguments rest, while not
implying that the question is an open one,
we nevertheless notice a few of the princi-
pal propositions relied upon.
1. It is true, as pointed out in Walker v.
New Mexico & 8. P. R. Co. 165 U. S. 603,
41 L. ed. 837, 17 Sup. Ct Rep. 421, 1 Am.
Keg. Rep. 768, and in American Pub. Co.
V. Fisher, 166 U. S. 464, 41 L. ed. 1070,
17 Sup. Ct. Rep. 618, that the right to jury
trial which the 7th Amendment secures is
a substantial one in that it exacts a sub-
fltaatial compliance with the common-law
standard as to what constitutes a jury.
But this truth has not the slightest ten-
•dency to support the contention that the
substantial right secured extends to, and
is operative in, a field to which It k not ap-
plicable and with which it is not Ccncemed.
•64
It is also true, as pointed out in the cases
just cited, that altiiough territorial courts
of the United States are not constitutional
courts, nevertheless, as they are courts
created by Congress, and exercise jurisdic-
tion alone by virtue of power conferred by
the law of the United States, the provisions
of the 7th Amendment are applicable in
such courts. But this affords no ground for
the proposition that the Amendment is ap-
plicable and controlling in proceedings in
state courts deriving their authority from
state law, in the teeth of the express and
settled doctrine that the Amendment does
not relate to proceedings in such courts.
2. The proposition that, as the 7th
Amendment is controlling upon Congress,
its provisions must therefore be applicable
to every right of a Federal character created
by Congress, and regulate the enforcement
of [220] such right, but in substance
creates a confusion by which the true sig-
nificance of the Amendment is obscured.
That is, it shuts out of view the fact that
the limitations of the Amendment are ap-
plicable only to the mode in which power
or jurisdiction shall be exercised in tribu-
nals of the United States, and therefore
that its terms have no relation whatever to
the enforcement of rights in other forums
merely because the right enforced is one con-
ferred by the law of the United States.
And of course it is apparent that to apply
the constitutional provision to a condition
to which it is not applicable would be not
to interpret and enforce the Constitution,
but to distort and destroy it.
Indeed, the truth of this view and the
profound error involved in the contention
relied upon is aptly shown by the further
propositions advanced in argument and
based upon the premise insisted upon. Thus,
it is urged that if the limitation of the
Amendment applies to Congress so as to
prevent that body from creating a court
and giving it power to act free from the re-
straints of the Amendment, it must also
apply, unless the substance is to be disre-
gaided and the shadow be made controlling,
to the power of Congress to create a right
and leave the power to enforce it in a forum
to which tlie constitutional limitation is not
applicable. But this again enlarges the
Amendment by causing it not merely to put
a limitation upon the power of Congress as
to the courts, constitutional or otherwise,
which it deems lit to create, but to engraft
upon the power of Congress a limitation as
to every right of every character and nature
which it may create, or, what is equivalent
thereto, to cast upon Congress the duty of
subjecting every right created by it to a
241 V. S.
1015.
MINNEAPOLIS k ST. L. R. CO. y. B0M60LIS.
220-223
limitation that such right shall not be sus-
ceptible of being enforced in any court
whatever, whether created by Congress or
not, unless the court enforcing tiie right
becomes bound by the restriction which the
Amendment establishes. It is [221] true
that the argument does not squarely face the
contention to which it reduces itself, since
it is conceded that rights conferred by Con-
gress, as in this case, may be enforced in
state courts; but it is said this can only
be provided such courts, in enforcing the
Federal right, are to be treated as Fed-
eral courts, and be subjected pro hcte vice
to the limitations of the 7th Amendment.
And, of course, if this principle were well
founded, the converse would also be the
case, and both Federal and state courts
would, by fluctuating hybridization, be be-
reft of all real, independent existence. That
is to say, whether they should be consid-
ered as state or as Federal courts would
from day to day depend not upon the char-
acter and source of the authority with which
they were endowed by the government creat-
ing them, but upon the mere subject-mat-
ter of the controversy which they were con-
sidering.
But here again the error of the proposi-
tion is completely demonstrated by previous
adjudications. Martin ▼. Hunter, 1 Wheat.
304, 330, 4 L. ed. 07, 103; Houston v. Moore,
6 Wheat. 1, 27, 28, 5 L. ed. 10, 25; £x
parte McNiel, 13 Wall. 236, 243, 20 L. ed.
624, 626; Claflin ▼. Houseman, 03 U. S.
130, 23 L. ed. 833; Robertson y. Baldwin,
165 U. S. 275, 41 L. ed. 715, 17 Sup. Ct.
Rep. 326; Second Employers' Liability
Cases (Mondou y. New York, N. H. k H.
R. Co.) 223 U. S. 1, 55-50, 56 L. ed. 327,
348-350, 38 L.R.A.(N.S.) 44, 32 Sup. Ct.
Rep. 160, 1 N. C. C. A. 875. Moreover,
the proposition is in conflict with an essen-
tial principle upon which our dual consti-
tutional system of government rests; that
is, that lawful rights of the citizen, whether
arising from a legitimate exercise of state
or national power, unless excepted by ex-
press constitutional limitation or by valid
l^islation to that effect, are concurrently
subject to be enforced in the courts of the
state or nation when such rights come with-
in the general scope of the jurisdiction con-
ferred upon such courts by the authority,
state or nation, creating them. This prin-
ciple was made the basis of the first Federal
judiciary act, and has prevailed in theory
and practice ever since as to rights of every
character, whether derived from constitu- 1
tional grant or legislative [222] enactment,
state or national. In fact, this theory and'
•O Ij. ed.
practice is but an expression of the princi-
ples underlying the Constitution, and which
cause the governments and courts of both
the nation and <he several states not to be
strange or foreign to each other in the
broad sense of that word, but to be all
courts of a common country, all within the
orbit of their lawful authority being charged
with the duty to safeguard and enforce the
right of every citizen without reference to
the particular exercise of governmental
power from which the right may havs
arisen, if only the authority to enforce such
right comes generally within the scope of
the jurisdiction conferred by the govern-
ment creating them. And it is a forget-
fulness of this truth which doubtless led to
the suggestion made in the argument thai
the ruling in Second Employer's Liability
Cases (Mondou v. New York, N. H. k H.
R. Co.) 223 U. S. 1, 56 L. ed. 327, 3»
L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 160, 1
N. C. C. A. 875, had overthrown the ancient
and settled landmarks and had caused state
courts to become courts of the United
States, exercising a jurisdiction conferred
by Congress, whenever the duty was cast
upon them to enforce a Federal right. It is
true in the Mondou Case it was held that
where the general jurisdiction conferred by
the state law upon a state court embraced
otherwise causes of action created by an act
of Congress, it would be a violation of duty
under the Constitution for the court to re*
fuse to enforce the right arising from the
law of the United States because of con-
ceptions of impolicy or- want of wisdom on
the part of Congress in having called into
play its lawful powers. But that ruling
in no sense implied that the duty which was
declared to exist on the part of the state
court depended upon the conception that,
for the purpose of enforcing the right, the
state court was to be treated as a Federal
court, deriving its authority not from the
state creating it, but from the United
States. On the contrary, the principle upon
which the Mondou Case rested, while not
questioning the diverse governmental sources
from [223] which state and national
courts drew their authority, recognized the
unity of the governments, national and
state, and the common fealty of all courts,
both state and national, to both state and
national Constitutions, and the duty rest-
ing upon them, when it was within the scope
of their authority, to protect and enforce
rights lawfully created, without reference
to the particular government from whose
exercise of lawful power the right arose.
Affirmed.
SUFREMS OOUBT OT THE UNmD STATES.
HARRY A. BROWN.
(See 8. a Reporter'! ed. 223-228.)
Jury — InfrliiBeinent of risbt — non-
mutnlmons verdict — Kctlon nndei
Federal statnte.
1. The requirement of U. S. ConJt., 7tb
Amend., that trial! by jiuy b« according U
the eourie of the comiiioD law, i. a., hj •
nnanimouj verdict, doea not control the
atate courte, even when enforcing righti
under a Federal atatute like the employer!'
liability act of April 22. ISOB {3B SUt. at
L. 60, chap. 140, Comp. SUt. 1B13, | 6657),
and luch courts may, therefore, give effect
In actiona under Uiat atatute U> a local
practice permitting a lesa than unanimoua
[For otbet easel, ae* Jnry, I. d, 2, In DIbmI
8np. Ct. 1D03.]
Trial — taking case rrom Jury — «■-
■amptlon ot risk.
2. The abandonment by plaintiff of his
claim under the Federal safety appliance
~ *~ ' ~ ~ ~ " n baaed upon those acta
while attempting to work by hand an auto-
matic coupler, did not ncceaaarUy with-
draw ell evidence tending to ahow that the
couplers were defective, so as to estebliah
ai a matter of law that he assumed the
risk, and to require a directed verdict for
defendant, where the testimony concerning
the condition of the couplers is clearly ad-
miuible under the issues baaed on the em-
ployers' liability act as explaining the oc-
casion for the brakeman'a presence on the
track, and as negativing negligence on his
part, the withdrawal of the claim not being
a concession that the testimony relating to
the couplers was false.
(For otber ciaeB, ■•• Trial, VI. d, S, In Digest
Sop. a, 1B08.1
Error to state conrt — . reversible error
^ wronK reason for decision.
3. The inaccuracy of the itatement by
the court ot last resort in passing on an
objection to an instruction upon assump-
tion of risk, in an action under the Fed-
eral employer!' liability act, that assump-
tion of risk was not a defense, furnishes
no reason why its affirmance of the judg-
ment of the trial court should be reversed
by the Federal Supreme Court, where there
is no contention in the latter court con-
cerning the correctness of the charge aa to
was aubmttted to the jury.
4. Charging the jury in an action un-
der the Federal employers' liability act
that, in the event of finding the plaintiff
guilty of contributory negligence, they
should "reduce hi! damages in proporticm
te the amount ot negligence which is at-
tributable to him," is not reversible error,
even though further definition might have
aided the jury in appreciating the stand-
ard by which the damages should be meas-
ured, where the defenduit made no request
for a charge clarifying any obscnrity on the
subject which It deemed to exist.
[For otber caie*. see Appeal and Error, VIII
m, 4, In DiBest Snp. Ct IWW.J
tNo. 390.]
Submitted April 10 and 20, 1010. Decided
May 22, 1016.
iN ERROR to the Supreme Court ot the
State ot Oklahoma to review a judgment
which affirmed a judgment of the District
Court of Carter County, In that sUte, in
favor of plaintiff in an action under tht
Federal employers' and lafety appliance
acts. Affirmed.
See same ease below, — Okla. — , m
Pac. lOTS.
Ths facts are sUtcd in the opinion.
Mesars. W. F. Evans and R. A. Klein-
Khmidt aubmitted the cauae for plaintiff
in error. Mr. J. H. Grant waa on the brief;
Congress, in the exercise of its admitted
power to r^ulate oommerce between the
states, has taken complete possession of the
lubject of liability of interstate carriers for
injury to their servants while In tb« dii-
^rge of any duty In connection with inter-
itate commerce.
Seaboard Air Line R. Co. v. Horton, 233
U. S. 402, 5S L. ed. 1062, L.R.A.J91SC, 1,
H Sup. a. Rep. 63S, Ann. Cas. 1015B, 4TS,
i N. C. C. A. 834; Adams Exp. Co. v. Cron-
inger, 226 U. S. 491, 57 L. ed. 314, 44 L.RJI.
[N.S.) 267, 33 Sup. Ct. Rep. 148; Second
Smployers' Liability Caace ( Mondou v.
Sew York, N. H. ft H. R. Co.) 223 U. 8.
L, 56 L. ed. 327, 38 L.RA..(N.S.) 44, S2 Sup.
:». Rep. 160, 1 N. C. 0. A. 875.
Note. — On error te state court in cases
arising under the Federal employers' lia-
bility act — see note te Great Northern R.
Co. v. Knapp, ante, T46.
On number and agreement of juror!
neceesary to constitute a valid verdict — see
notes to Stete v. Batea, 43 L.R.A. 33, and
Silsby V. Foote, 14 L. ed. U. S. 304.
On the constitutionality, application, and
^ect ot the Federal employer!* liability
#««
act — see note! to Lamphere v. Oresou R. A
NaT. Co. 47 LJt.A.(N.S.) 3B, and Seaboard
Air Line R. Co. v. Horton, L.R.A.1915C,
47.
On duty and liability under Federal and
state railway safety appliance acta — se«
notes to Chicago, M. & St. P. R. Co. T.
United SUtes, 20 UR.A.(N.S.) 473, and
Lake Shore ft M. S. R. Co. t. Benson, 41
LJtA..(N.S.) 48.
S4t D. S.
1915.
ST. LOUIS ft S. F. R. CO. t. BROWN.
By abandoning and withdrawing the
charge and claim that the couplers were de-
fective, plaintiff swept away every pretext
and every excuse for giving a stand-still
sipial, and he likewise swept away every
pretext and every excuse for placing him-
self between the rails in front of the mov-
ing cars. If the couplers were not defective,
then there was no reason for him to give a
stand still signal, and no excuse for his
going in between the rails to adjust the
coupler on the ear which ran over him.
Gilbert v. Burlington, C. R. & N. R. Co.
«8 C. O. A. 27, 128 Fed. 629; Arte v. Chi-
cago, R. L & P. R. Co. 34 Iowa, 154.
Plaintiff's case was submitted to the
jury under the provisions of the employers'
liability act alone, and the defense of as-
sumption of the risk was therefore avail-
able to the defendant.
Grand IVunk Western R. Co. t. Lindsay,
233 U. S. 42, 58 L. ed. 838, 34 Sup. Ct. Rep.
581, Ann. Cas. 1914C, 168; Southern R. Co.
T. Crockett, 234 U. S. 725, 58 L. ed. 1564,
34 Sup. Ct. Rep. 897; Second Employers'
Liability Cases (Moudou v. New York, N. H.
ft H. R. Co.) 223 U. S. 1, 56 L. ed. 327, 38
L.RA.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1
N. C. C. A. 875; Seaboard 'Air Line R. Co.
V. Horton, 233 U. S. 492, 58 L. ed. 1062,
LJtA.1915C, 1, 34 Sup. Ct. Rep. 635, Ann.
Cas. 1915B, 475, 8 N. C. C. A. 834.
It is the duty of the trial judge to with-
draw the case from the jury and to direct
a verdict, where the evidence is undisputed,
or is of such conclusive character that the
court, in the exercise of sound judicial dis-
cretion, would be compelled to set aside a
verdict returned in opposition to it.
Choctaw, 0. A G. R. Co. y. McDade, 191
U. S. 64, 48 L. ed. 96, 24 Sup. Ct. Rep. 24,
15 Am. Neg. Rep. 230; Delaware, L. ft W.
R. Co. V. Converse, 139 U. S. 469, 35 L. ed.
213, 11 Sup. Ct. Rep. 569; Phoenix Mut. L.
Ins. Co. V. Doster, 106 U. S. 32, 27 L. ed.
66, 1 Sup. Ct. Rep. 18; Griggs y. Houston,
104 U. S. 553, 26 L. ed. 840; Randall y.
Baltimore ft 0. R. Co. 109 U. S. 478, 27 L.
ed. 1003, 3 Sup. Ct. Rep. 322; Schofield v.
Chicago, M. ft St. P. R. Co. 114 U. S. 615, 29
L. ed. 224, 5 Sup. a. Rep. 1125; North
Pennsylvania R. Co. y. Conmiercial Nat.
Bank, 123 U. S. 727, 31 L. ed. 287, 8 Sup.
Ct. Rep. 266.
Plaintiff assumed the risk of dangers or-
dinarily incident to his employment as
brakeman.
Narramore y. Cleveland, C C. ft St. L. R.
Co. 48 LJLA. 68, 37 C. C. A. 499, 96 Fed.
298; Sans Bois Coal Co. y. Janeway, 22
Okla. 425, 99 Pac 153; Coalgate Co. y.
Hurst, 25 Okla. 588, 107 Pac. 657; Tuttle
y. Detroit, G. H. ft M. R. Co. 122 U. S. 189,
30 L. ed. 1114, 7 Sup. Ct Rep. U66; Kohn
•0 li. ed.
y. McNulta, 147 U. S. 241, 37 L. ed. 152, 13
Sup. Ct. Rep. 298; Southern P. Co. y.
Seley, 152 U. S. 153, 38 L. ed. 395, 14 Sup.
Ct. Rep. 530; Morris y. Duluth, S. S. ft A.
R. Co. 47 C. C. A. 661, 108 Fed. 747; Gilbert
y. Burlington, C. R. ft N. R. Co. 63 C. C. A.
27, 128 Fed. 529; Choctaw, 0. ft G. R. Co.
y. McDade, 191 U. S. 64, 48 L. ed. 96, 24
Sup. Ct. Rep. 24, 15 Am. Neg. Rep. 230;
Williams y. Choctaw, 0. ft G. R. Co. 79 C.
C. A. 146, 149 Fed. 104; Burke y. Union
Coal ft Coke Co. 84 C. C. A. 626, 157 Fed.
178; Washington ft G. R. Co. y. McDade,
135 U. S. 554, 34 L. ed. 235, 10 Sup. Ct.
Rep. 1044.
Plaintiff assumed the risk of obvious
dangers, such as stepping between the rails
in front of a moving train, or in attempt-
ing to couple cars, or to prepare the train
for coupling by standing between the rails,
and the like.
Seaboard Air line R. Co. y. Horton, 233
U. S. 492, 58 L. ed. 1062, LJLA.1915C, 1,
34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 476,
8 N. C. C. A. 834.
If plaintiff was entitled to recover at all,
his recovery should have been measured by
the standard prescribed by the act of Con-
gress under which his action was prose-
cuted. But the trial court failed to give
the jury any standard by which to measure
his damages.
Seaboard Air Line R. Co. y. Tilghman, 237
U. S. 499, 59 L. ed. 1069, 35 Sup. Ct. Rep.
653; Nashville C. ft St. L. R. Co. y. Banks,
156 Ky. 609, 161 S. W. 554.
The doctrine of comparative negligence
is a very different thing from the rule put
in force in this act.
Chicago, B. ft Q. R. Co. y. Johnson, 103
ni. 512; Calumet Iron ft Steel Co. v. Martin,
115 ni. 358, 3 N. E. 456, 4 Am. Neg. Cas.
258; Whirley y. Whiteman, 1 Head, 623;
East Tennessee, V. ft G. R. Co. y. Hum-
phreys, 12 Lea, 200; Louisville, N. ft G. S.
JL Co. y. Fleming, 14 Lea, 130; East Tenn-
essee, V. ft G. R. Co. y. Fain, 12 Lea, 35;
Bast Tennessee, V. ft G. R. Co. v. Curley,
12 Lea, 46; Kansas P. R. Co. y. Peavey, 29
Kan. 169, 44 Am. Rep. 630; Atchison, T. ft
S. F. R. Co. y. Morgan, 31 Kan. 77, 1 Pac.
298; Atchison, T. ft S. F. R. Co. y. Henry,
57 Kan. 154, 45 Pac 576.
Mr. W. F. Evans also united in a joint
brief raising the question of the application
of the 7th Amendment to the Federal Con-
stitution, an abstract of which will be
found in connection with the report of
Chesi4>eake ft 0. R. Co. y. Kelly, post, 1117.
Messrs. O. B. Stiuurt, A. O. Gmoe, and
M. K. Gmoe submitted the cause for de-
fendant in error. Messrs. W. I. Cruoe and
L. S. Dolman were on the brief:
Will this court reyiew the actios
224, 225 SUPREME COURT OF THE UNITED STATES. Oct. Tiauc^
state supreme court, wherein it held that note; Hall v. VandaNa R. Co. 169 UL App.
the plaintiff below, in diBmissing that por- 12; Grand Trunk Western R. Co. ▼. Lindsay^
tion of his complaint which was based upon 233 U. S. 42, 68 L. ed. 838, 34 Sup. Ct. Rep.
the safety appliance act, did not withdraw 581, Ann. Cas. 1014C, 108.
from the jury all the testimony he bad Under the Federal employers' liability act
introduced with reference to the defective the defendant is liable if it is guilty of any
coupling? Is any Federal question here in- causative negligence, however slight, in con-
volved? Certainly it did not involve the nection with that of the plaintiff,
construction of any act of Congress. It New York, C. & St. R. Co. v. Niebel, 131
was rather a question of general law, de- C. C. A. 248, 214 Fed. 952.
pending for its solution upon local con- ^^^^^ ^ g S^^^ ^ ^ C^ ^^ ^
struction. It was merely incidental to the r. Cruce also united in a joint brief raising
Federal questions involved m the case, and ^^^ question of the appUcation of the 7th
did not, in Its esBfnce, involve the exist- Amendment to the Federal Constitution, an
ence either of plaintifrs nght to recover ^y,^^^^ of which wiU be found in conneo-
under the Fedeial statute, or of the defend- ^..^^ ^j^j^ ^^ ^ of Chesapeake & 0. R.
ant's nght to be shielded under that stat- ^^^ ^ j^jjy^ post, 1117.
ate.
Seaboard Air Line R. Co. v. Padgett, 236 ^^ ^^^^ j„,^i^ ^g^^ deUvered the
U. S. 668. 59 L. ed. 777, 35 Sup. Ct. Rep. .„.^„ ^, ^^ oourt:
481; Central Vermont R Co. v. White, 238 g^.^^ ^^ ^^^ of action upon the Fed-
U. S. 507, 59 ^-^f- 1*33, 35 Sup. Ct. ^p. ^^^j employers' liability and safety appli-
865 Ann. Cas. 191 6B, 262, 9 N C. C A^265; ^^ ^^f^ ^^^^^^ ^^^ defendant ii error,
!^.^*'i^' ^*"f,3V ^ J- ^"^ ^.R' •««! to recover damages resulUng from in-
S. 477, 66 L. ed. 1171, 32 Sup. Ct. Rep. 790. .^^ alleged to have been occasioned by
Much stronger cases of contributory neg- ^^ negligence of the railroad company
ligence have been by this court left where ^j^.,^ ^^ ^^ ^ i^ ^n^ploy ^^d engaged in
the jury left them. ^ „ ,, intersUte commerce. At the close of the
Minneapolis, St. P. & S. Ste. M, R. Co. testimony the claim under the safety ap-
V. PoppUr, 237 U. S. 369, 59 L. ©d. 1000, 35 pij^^noe act was withdrawn and the case was
Sup. Ct. Rep. 609; Grand Trunk Western R. g^bniitted to the jury alone upon the em-
Co. V. Lindsay, 233 U. S. 42, 58 L. ed. 838, pjoyerg' liability act. There was a verdict
84 Sup. a. Rep. 581, Ann. Cas. 1914C, 168; ^^^ judgment for the plaintiff, which was
Seaboard Air Une R Co. v. Koennecke, 239 ^ffi^med by the court below. — OkU. — ,
U. S. 352, ante, 324, 36 Sup. Ct. Rep. 126; ^^^ p^^ {qj^
Kanawha & M. R. Co. v. Kerse. 239 U. S. There was a sharp conflict between the
676, ante, 448, 36 Sup. Ct. Rep. 174. testimony offered on behalf of the plaintiff
The doctrine of assumption of risk has ^^^ ^^^ ^^ j^^l^ of the defendant. The
no place in the case, and what plaintiff in material facte disclosed by the plaintiffs
error is really contending for is: That the testimony are as follows: Brown, a head
defendant in error was guilty of such con- ^rakeman, and other members of a local
tributory negligence as to defeat his right ^^^j , ^ ^^j^ ^^^^ on the day in question
to recover. It is not always easy, of course, ^^^^ engaged in the yards at Ashdown, Ar-
to distinguish between contributory negli- Kansas, in making up an extra freight train
gence and assumed risk, but it seems that ^ ^ ^^^ out by an extra crew to Hugo,
there ought to be no difficulty m this case. Oklahoma. The cars intended [226] for
4 Thomp. Neg. § 4611 ; Seaboard Air ^^^ intersUte train were placed on an east
Line R. Co. v. Horton, 233 U. S. 492, 58 L. ^^^ ^^^ passing track east of a switch con-
ed. 1062, L.RA.1915C, 1, 34 Sup. Ct. Rep. nesting a spur track which ran in a north-
635, Ann. Cas. 1916B, 475, 8 N. C. C. A. easterly direction past a stave mill. After
834; Peirce v. Clavin, 27 C. C. A. 227, 53 piecing some cars from the spur track on
U. S. App. 492, 82 Fed. 660. ^j^^ passing track, the engine returned to
The court did not err in instructing the the spur track with several cars, some of
jury as to the effect of contributory negli- ^hich were to be left at the mill and the
gence, nor in failing to give defendant's re- remainder brought out and coupled to those
quested charge on contributory negligence, already collected for the train and sUnding
Chadwick v. Oregon-Washington R. A on the passing track. Brown accompanied
Nav. Co. 74 Or. 19, 144 Pac 1165; Tilgh- the cars, and, after cutting off those in-
man v. Seaboard Air Line R. Co. 167 N. C. tended for the mill, gave the engineer a
163, 83 S. E. 315, 1090; Cross v. Chicago, signal to go ahead, the engine being headed
B. & Q. R. Co. 191 Mo. App. 202, 177 S. W. west, and when the cars approaching the
1127; Cincinnati, N. 0. & T. P. R. Co. v. switch came opposite the car on the pass-
Goode, 163 Ky. 60, 17^ S. W. 329; Seaboard ing track to which the coupling was to he
Air Line R. Co. t. Horton, LJIA.J.915C, 67, made, Brown crossed over from the spur
• •8 241 U. S.
1915.
ST. LOUIS & S. F. R. CO. ▼. BROWN.
22&-22S
track to the passing track to adjust the
coupler on the car standing there. Finding
the knuckle of the coupler closed, he at-
tempted to open it with the lever at the
aide of the car, but it did not work. He
then tried to manipulate the knuckle with
his hand, hut could get it only part way
open, and, closing it, he stepped out to the
north side of the track (the engineer's
.side). As the last car coupled with the
engine was then just clearing the switch,
he gave the engineer a stop signal and
walked west to the switch stand to set the
switch 80 that the engine and cars might
be backed to make the coupling. B7 the
time he had walked the short intervening
distance and set the switch the engine had
dome to a stop with the rear car a few
■teps west of the switch. Intending then
to adjust the coupler on the end of this
ear. Brown gave the engineer, who was
watching him, a "spot" signal, which Indi-
cated that he was not to move the engine
until a further signal was given hj Brown,
and crossed over to the south side of the
track in order to use the lifting pin to
open the knuckle of the coupler. When the
lever failed to work he stepped behind
the car and was about to try to open the
knuckle with his hand •when he heard the
cars ahead of him move. He at once turned
to leave the [226] track, but was struck
and knocked down by the car which was
backed in disregard of the "spot" signal,
and his feet were caught under the wheeb
and crushed.
The assignments of error are numerous,
but those requiring to be specially noticed
may be disposed of under three headings:
1. The contention that rights of the rail-
road company guaranteed by the 7th Amend-
ment were violated because only nine of
the twelve jurors concurred in the verdict
is without merit. Minneapolis k St. L. R.
Co. V. Bombolis, 241 U. S. 211, ante, 061, 36
Sup. St. Rep. 505.
2. A twofold contention is based upon
rulings concerning the doctrine of the as-
sumption of the risk. Upon the withdrawal
by the plaintiff of his claim under the
safety appliance act, the court charged the
jury concerning assumption of the risk as
follows:
"You are instructed that, by aceepting
employment as a brakeman with the de-
fendant, the plaintiff assumed the risk of
such dangers as are ordinarily incident to
the occupation he was engaged in, .and if
you find that his injury was occasioned by
one of the incidents ordinarily attending the
occupation upon which he was engaged, you
should return a verdict for the defendant;
but you are instructed in this connection
that the plaintiff only assumed the riaka
•0 li. ed.
that are ordinarily incident to the occupa-
tion in which he was engaged, and that he
did not assume the risks that were attend-
ant upon the n^ligence of a fellow serv-
ant."
(a) It is insisted that the abandonment
of the claim as to a violation of the safety
appliance act necessarily withdrew all evi-
dence tending to show that the couplers
were defective, and, in the absence of such
evidence, the proof established as a matter
of law that the plaintiff assumed the risk,
and the court should have directed a verdict
in favor of the railroad. We think the
proposition it plainly without merit. The
testimony concerning [227] the condition
of the couplers was clearly admissible under
the issues based on the employers' liability
act as explaining the occasion for Brown's
being on the trade, and aa negativing negli-
gence on his part. In so far as the conten-
tion implies that the withdrawal of the
claim was a concession that the testimony
relating to the couplers was false, we think
the conclusion is wholly unwarranted. If
we were to conjecture as to the reason for
the abandonment of the claim under the
safety appliance act, we think it at least
quite as probable that plaintiff's counsel
were of opinion that, in the situation dis-
closed by the plaintiff's testimony, the
safety appliance act was inapplicable.
(b) In the court below it would seem
that the correctness of the general instruc-
tion as to assumption of the risk which we
have quoted as given by the trial court was
challenged on a ground which has been aban-
doned because not here pressed. But it is
said reversible error exists because the court
below, in passing upon such objection, re*
marked that as the "defendant's liability
to plaintiff grows out of a violation of a
statutory duty, arising under an act of Con-
gress," assumption of the risk was not a
defense. This, it is safd, was erroneous,
first, because so far as the safety appliance
act was concerned, it was inapposite, as re-
liance upon that law by the plaintiff had
been disclaimed, and second, because, under
the facts, it was open to find the existence
of assumption of the risk depending upon
conditions of fact not involved in the safety
appliance act. But we fail to see the per-
tinency of this objection, as there is now no
contention concerning the correctness of the
charge as to assumption of the risk upon
which the case was submitted to the jury
for their verdict. At best, therefore, the
error asserted simply amounts to contending
that because the court below may have in-
accurately expressed in one respect its rea-
sons for affirmance, that inaccuracy gives
rise to the duty of [228] reversing "
228, 229
SUPREME COURT OF THE UNITED STATES.
OOT. TkBM,
judgment although no reversible error ex-
ists.
3. It is contended that the court erred In
charging the jury that, in the event they
found the plaintiff guilty of contributory
negligence, they should "reduce his damages
in proportion to the amount of negligence
which is attributable to him/' since the
court did not define the word "proportion,"
and hence failed to fix any standard by
which the damages should be measured. The
charge is clearly distinguishable from the
instruction disapproved in Seaboard Air
Line R. Co. t. Tilghman, 237 U. S. 499, 59
L. ed. 10G9, 35 Sup. Ct. Rep. 653, which is
relied upon, since in that case the jury were
in effect instructed to diminish the damages
according to their conception of what was
reasonable. The instruction given is al-
most in the identical language of the stat-
ute, and while definition might have further
conduced to an appreciation by the jury of
the standard established by the statute, we
think there was no error in the charge given,
especially as the railroad company made no
request for a charge clarifying any obscur-
ity on the subject which it deemed existed.
It is true the company made a request on
the subject which the court declined to give,
but that request, we are of opinion, taken as
a whole, instead of clarifying any ambiguity
deemed to exist in the instruction which the
court gave would have served to obscure it.
There was no error, therefore, leaving aside
the question whether the requested instruc-
tion did not contain matters which, if given,
would have been erroneous.
Although we have examined the whole
record, and, as the result of that examina-
tion, conclude there is no grotmd for re-
versal, we have not particularly noticed
subjects embraced by some of the assign-
ments, but not pressed in argument, and
others not embraced by the assignments, but
indirectly referred to in the argument.
AlUrmed.
[229] RALPH B. JACOBS, Plff. in Err.,
y.
SOUTHERN RAILWAY COMPANY.
(See S. 0. Reporter's ad. 229-237.)
Master and servant — employers' liabil-
ity — assumption of risk.
1. The express declaration by the Fed-
eral employers' liability act of April 22,
1008 (35 Stat, at L. 65, chap. 149, Comp.
Stat. 1913, I 8657), S 4> that an employee
shall not be held to have assumed the risks
of his employment in any case where the
violation by the carrier of any statute en-
acted for the safety of employees contrib-
uted to his injury or deatii, must be deemed
to leave in force in all other cases the de-
fense of the assumption of risk of the car-
rier's negligence, notwithstanding Uie pro-
vision of the 3d section of that act that the
contributory n^ligence of the employee
''shall not bar a recovery," and of the 5th
section, precluding the carrier from exempt-
ing itself from liabili^.
[For other cases, see Master and Servant, U.
b, In Diffest Sap. Ct. 1908.]
Master and servant — assumption of
risk — knowledge and appreciation
of danger.
2. A railway firenuui injured by stum-
bling over a pile of cinders between the
tracks while attempting to board a moving
engine with a can of drinking water in his
hands assumes the risk of the situation
where he Icnows of the custom to deposit
cinders between the tracks, and knows of
their existence, although he may have for-
gotten their existence at the time, and does
not notice them.
[For other cases, see Master and Servant. IL
b, In Digest Pup. Ct. 1908.]
Brror to state conrt — objections to in-
atmctlon — general or specific.
3^. The objection that an instruction, in
an action under the Federal employers' lia-
bility act of April 22, 1908 (35 Stat, at L.
65, chap. 149, Comp. Stat 1913, § 8657),
on the assumption it risk, did not state as
an element the ajppreciation by the employee
of the danger of the situation as necessary
to his assumption of risk, is not available
on writ of error from the Federal Supreme
Court to a state court, where the objection
made at the trial was the general one that
the instruction did not correctly state the
common-law doctrine of assumption of risk,
and in the state court of last resort the at-
tack was based upon the sole ground that
assiunption of risk was not available as a
defense under the Federal statute.
[For other cases, see Appeal and Brror, VI. a»
8, in Digest Sup. Ct. 1908.]
[No. 326.]
Argued April 27, 1916. Decided May 22,
1916.
IN feRROR to the Supreme Court of Ap-
peals of the State of Virginia to review
a judgment which refused a writ of error
to the Circuit Court of Brunswick County
to review a judgment of that court in favor
of defendant in an action under the Fed*
NoTB.— On error to state court in cases
arising under the Federal- employers' lia-
bility act — see note to Great Nortiiem R.
Co. V. Knapp, ante, 745.
On the constitutionality, application, and
effect of the Federal employers' liability
• 70
act^ — see notes to Lamphere v. Oregon R. &
Nav. Co. 47 L.RJl.(N.B.) 38, and Seaboard
Air Line R. Co. y. Horton, L.RwA. 1915C,
47.
Qenerally, as to a servant's assumptioB
of risk— «ee notes to Pidoock v. Union P. R.
141 V. 8.
1915.
JACOBS y. SOUTHERN R. CO.
era] employers' liability act, rendered on a
■econd trial after the judgment of that
court on the first trial had been reversed
by the Virginia Court of Appeals. Affirmed.
See same case below, 116 Va. 189, 81 S.
£. 99.
The facts are stated in the opinion.
Mr. Edward P. Baford argued the cause
and filed a brief for plaintiff in error:
The plaintiff was injured as a result of
* dangerous condition created by the neg-
ligence of the defendant's officers, agents, or
employees in another department of the
service.
Kansas City, Ft. S. & G. R. Co. t. Kier,
41 Kan. 671, 21 Pac. 770.
The defendant's effort to acquit itself of
the charge of negligence on the part of
those of its servants who were charged with
knowledge of the danger is inconsistent
with its contention that the plaintiff, whose
duty as a fireman was not concerned with
the accumulation of cinders, was himself
chargeable with knowledge of the danger.
As a locomotive fireman he was under no
duty to examine the consistency of the heap
of cinders. He was entitled to assume that
the yard was free from such a danger as
that which caused his injury.
Texas & P. R. Co. v. Harvey, 228 U. S.
319-321, 57 L. ed. 852-855, 33 Sup. Ct. Rep.
518; Kirbo v. Southern R. Co. — Ga. App.
— , 84 S. E. 491; Baltimore & O. R. Co. v.
Whitacre, 124 Md. 411, 92 Atl. 160.
An instruction is erroneous which directs
a verdict on a partial view of the evidence.
38 Cyc. 1627; Greenleaf t. Birth, 9 Pet.
292, 9 L. ed. 132.
The plaintiff's positive testimony that he
was not aware of the danger precludes the
contention that he assumed the risk.
Texas A, P. R. Co. v. Swearingen, 196 U.
6. 51-59, 49 L. ed. 382-387, 25 Sup. Ct.
Rep. 164, 17 Am. Neg. Rep. 422.
To charge a servant with assumption of
risk, as a matter of law, the danger must
be so obvious and imminent that a person
of ordinary prudence would not undertake
the service. When the danger is not of that
character the question of assiimption of
risk is one of fact for the jury.
ChocUw, 0. & G. R. Co. y. McDade, 191
U. S. M-68, 48 L. ed. 96-100, 24 Sup. Ct.
Rep. 24, 15 Am. Neg. Rep. 230; Texas & P.
R. Co. V. Swearingen, 196 U. S. 51, 49 L. ed.
382, 25 Sup. Ct. Rep. 164, 17 Am. Neg. Rep.
422; McGovem v. Philadelphia & R. R. Co.
235 U. S. 389, 59 L. ed. 283, 35 Sup. Ct.
Rep. 127, 8 N. C. C. A. 67; Seaboard Air
Line R. Co. v. Padgett, 236 U. S. 668, 59
L. ed. 777, 35 Sup. Ct. Rep. 481; Phoonix
Mut. L. Ins. Co. V. Doster, 106 U. S. 32, 27
L. ed. 66, 1 Sup. Ct. Rep. 18.
To charge the servant with assumption
of risk the evidence (1) must show that he
was chargeable with knowledge of the ma-
terial conditions which were the immediate
cause of his injury, and (2) must establish
his appreciation of the dangers produced by
the abnormal conditions.
Choctaw, 0. & G. R. Co. v. McDade, 191
U. S. 64, 48 L. ed. 96, 24 Sup. Ct. Rep. 24,
15 Am. Neg. Rep. 230; Texas & P. R. Co.
V. Archibald, 170 U. S. 665, 42 L. ed. 1188,
18 Sup. Ct. Rep. 777, 4 Am. Neg. Rep. 746;
Seaboard Air Line R. Co. v. Horton, 233 U.
S. 492, 58 L. ed. 1062, L.RJ1.1915C, 1, 34
Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8
N. C. C. A. 834; Rase v. Minneapolis, St.
P. & S. Ste. M. R. Co. 107 Minn. 260, 21
L.RA.(N.S.) 138, 120 N. W. 360; Yazoo &
M. VaUey R. Co. v. Wright, 235 U. S. 376,
59 L. ed. 277, 35 Sup. Ct. Rep. 130, 3 Labatt,
Mast. & S. § 1190, pp. 3207-3211; Graseth v.
Northwestern Knitting Co. 128 Minn. 245,
150 N. W. 804; Campbell v. Chicago G. W.
R. Co. 108 Minn. 104, 28 L.R.A.(N.S.) 346,
133 Am. St. Rep. 417, 121 N. W. 429; Balti-
more & 0. R. Co. y. Whitacre, 124 Md. 411,
92 Atl. 1060.
Unless plaintiff in error not only knew
the conditions, but also knew of the dan-
gers arising therefrom, he could not be
charged with negligence in failing to avoid
them.
Holcomb y. Norman, 47 Ind. App. 87, 91
N. E. 625.
Since knowledge of the danger which pro-
duces the injury is "not only an element or
factor, but a very important one" (Norfolk
& W. R. Co. v. Cheatwood, 103 Va. 356, 49
S. E. 489; Buckner v. Richmond & D. R. Co.
72 Miss. 873, 18 So. 449) in contributory
Co. 1 L.R.A. 131; Foley v. Pettee Mach.
Works, 4 L.R.A. 51; Howard v. Delaware
& H. Canal Co. 6 L.R.A. 75; Hunter v. New
York, 0. & W. R. Co. 6 L.R.A. 246; Georgia
P. R. Co. V. Dooly, 12 L.R.A. 342; Kehler
v. Schwenk, 13 Ir.R.A. 374, and Southern
P. Co. V. Seley, 38 L. ed. U. S. 391.
On volenti non fit injuria as defense to
action by injured servant — see note to
O'Maley v. South Boston Gaslight Co. 47
L.RJk. 161.
As to whether servant may assume the
risk of dangers created by the master's
•0 li. ed.
negligence — see note to Scheurer v. Banner
Rubber Co. 28 L.R.A.(N.S.) 1215.
As to servant's assumption of risk of
dangers imperfectly appreciated — see note
to Tuckett y. American Steam & Hand
Laundry, 4 L.R.A.(N.S.) 990.
On the assumption by train employee of
risks due to defects in track or roadbed —
see notes to Smith y. Chicago, R. I. & P. R.
Co. 28 L.R.A.(N.S.) 1256, and Luebben y.
Wisconsin Traction, Light, Heat & P. Co.
49 L.R.A.(N.S.) 517.
SUPREME CX)URT OF TifE UNITED STATES.
OoT. TkiM,
n^ligence, it is difficult to oonceiye of an
instruction on that subject which does not
embrace the element of knowledge.
Schlemmer v. Buffalo, R. & P. R. Co. 220
U. S. 690, 55 L. ed. 596, 31 Sup. Ct. Rep.
561; Louisville & N. R. Co. y. Lankford,
126 C. C. A. 247, 209 Fed. 321 ; Herrick ▼.
Quigley, 41 C. C. A. 294, 101 Fed. 187.
Assumption of risk defeats the policy of
the act.
Second Employers' Liability Cases (Mon-
dou ▼. New York, N. H. A H. R. Co.) 223
U. S. 1-51, 56 L. ed. 327-346, 38 L.RJk.
(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C.
A. 875; Michigan C. R. Co. v. Vreeland, 227
U. S. 59, 57 L. ed. 417, 33 Sup. Ct. Rep. 192,
Ann. Cas. 1914C, 176; Pedersen ▼. Delaware,
L. A W. R. Co. 229 U. S. 149, 57 L. ed. 1127,
33 Sup. Ct. Rep. 648, Ann. Cas. 1914C, 153,
3 N. C. C. A. 779; Rase ▼. Minneapolis, St.
P. k S. Ste. M. R. Co. 107 Minn. 260, 21
L.R.A.(N.S.) 138, 120 N. W. 360.
There is no common law of the United
States.
Wheaton ▼. Peters, 8 Pet. 658, 8 L. ed.
1079 ; Pennsylvania v. Wheeling & B. Bridge
Co. 13 How. 563, 14 L. ed. 268; Smith ▼.
Alabama, 124 U. S. 46^-483, 31 Li ed. 508-
514, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep.
664; Moore v. United States, 91 U. S. 270,
23 L. ed. 346; Gatton y. Chicago, R. I. &
P. R. Co. 95 Iowa, 112, 28 L.RA. 566, 63
N. W. 589; United States y. Wong Kim
Ark, 169 U. S. 649, 42 L. ed. 890, 18 Sup.
Ct. Rep. 456; Parkersburg & 0. River
Transp. Co. v. Parkersburg, 107 U. S. 691,
27 L. ed. 584, 2 Sup. Ct. Rep. 732; Kansas
y. Colorado, 206 U. S. 46, 51 L. ed. 956, 27
Sup. Ct. Rep. 655; Western U. Teleg. Co. y.
Commercial Mill. Co. 218 U. S. 406, 64 L.
ed. 1088, 36 L.R.A.(N.S.) 220, 31 Sup. Ct.
Rep. 59, 21 Ann. Cas. 815.
While the phrase "assumption of risk" in
its modem acceptation includes the ordinary
risks as well as those due to the employer's
negligence, the words "risks of his employ-
ment" refer only to the ordinary risks, the
existence of which implies no negligence on
the part of the master.
6 Labatt, Mast. & S. g 1647; Morgan y.
Vale of Neath R. Co. 5 Best & S. 570, 33 L.
J. Q. B. N. S. 260, 12 Week. Rep. 1032,
affirmed in L. R. 1 Q. B. 149, 5 Best & S.
736, 35 L. J. Q. B. N. S. 23, 13 L. T. N. S.
564, 14 Week. Rep. 144; Texas & P. R. Co. y.
Harvey, 228 U. S. 319-321, 67 L. ed. 852-
855, 33 Sup. Ct. Rep. 518.
The phrase "assumption of risk" in its
original significance embraced only such
risks as were inherent, or at least involved
no breach of common -law duty. In this
sense, the risks included are synonymous
with those embraced in the phrase "risks of
his employment." In its secondary applica-
• 72
tion the phrase "assumf^tion of risk" was
extended to embrace the enhanced risks due
to the employer's negligence, and thus was
made to include two legal conceptions es-
sentially different.
Scheurer v. Banner Rubber Co. 28
L.RJk.(N.S.) 1221, note.
The negligence of a fellow servant is not
the violation of any statute enacted for the
safety of employees unless the liability act
is itself such a statute.
Philadelphia, B. & W. R. Co. v. Tucker,
35 App. D. C. 123, LJIJ1.1916C, 39, 220
U. S. 608, 65 L. ed. 607, 31 Sup. Ct. Rep.
725.
An early, if not the earliest, application
of the phrase "assumption of the risk," was
the establishment of the exception to the
liability of a master for the negligence of
a servant when the person injured was a
fellow servant of the negligent man.
Schlemner v. Buffalo, R. ft P. R. Co. 205
U. S. 1, 61 L. ed. 681, 27 Sup. Ct. Rep. 407;
Farwell v. Boston & W. R. Corp. 4 Met. 49,
38 Am. Dec. 339, 16 Am. Neg. Cas. 407.
The risk of injury from the negligence of
the fellow servant is a risk of his employ-
ment, which, at common law, is assumed by
the employee (Norfolk & W. R. Co. v. Nuc-
kols, 91 Va. 193, 21 S. E. 342), whUe the
risk of injury from the employer's negli-
gence, whatever may be the basis of its as-
sumption at common law, is not a risk of
his employment assumed by the employee.
3 Labatt, Mast & S. § 804.
Continuance in the service with knowl-
edge of the danger is the common and es-
sential factor of both assumption of risk
and contributory negligence.
Narramore v. Cleveland, C. C. A St. L.
R. Co. 48 L.RJI. 77, 37 C. C. A. 505, 96
Fed. 298.
The confusion in efforts to distinguirii
between assumption of risk and contribu-
tory negligence results from a lack of class-
ification of the different phases of the two
defenses, which are sought to be contrasted
or defined. Such a classification demon-
strates the impossibility of reconciling with
the 3d section of the employers' liability
act that form of assumption of risk which,
at common law, bars recovery when the
employee continues in service with knowl-
edge of an abnormal danger superadded by
the master's negligence.
St. Louis Cordage Co. v. Miller, 63 LJtA.
651, 61 C. C. A. 477, 126 Fed. 495, 15 Am.
Neg. Rep. 476; Narramore v. Cleveland, C.
C. & St. L. R. Co. 48 L.RJI. 68, 37 C. C. A.
499, 96 Fed. 298; Northern P. R. Co. v.
Mares, 123 U. S. 710-720, 31 L. ed. 296-
301, 8 Sup. Ct. Rep. 321 ; Kane v. Northern
C. R. Co. 128 U. S. 91, 32 L. ed. 339, 9 Sup.
Ct. Rep. 16; Shearm. ft Redf. Neg. § 211;
241 V. S.
1915.
JACOBS V. SOUTHERN IL 00.
Francis v. Kansas City, St. J. & C. B. R. Co.
127 Mo. 658, 28 S. W. 842, 30 S. W. 129, 26
Cyc. 1211; Musscr-Sauntry Land, Logging &.
Mfg. Co. V. Brown, 61 C. C. A. 207, 126 Fed.
141; Southern P. Co. v. Yeargin, 48 C. C.
A. 497, 100 Fed. 436; Graham v. Newburg
Orrcl Coal & Coke Co. 38 W. Va. 272, 18
S. E. 584; Chicago G. W. R. Co. v. Crotty,
4 L.RA.(X.S.) 832, 73 C. C. A. 147, 141 Fed.
913; 3 La bait. Mast. & S. §§ 1182, 1205,
1210, 1219, 1221, 1226, 1233, 1234; A. L.
Clark Lumber Co. v. Johns, 98 Ark. 217, 135
S. W. 892; Norfolk & W. R. Co. ▼. Cheat-
wood, 103 Va. 356, 49 S. E. 489; Buckner
V. Richmond A D. R. Co. 72 Miss. 873, 18
So. 449; Pennsylvania Co. ▼. Cole, 131 C.
C. A. 244, 214 Fed. 948; Norfolk & W. R.
Co. V. Earnest, 229 U. S. 114, 67 L. ed. 1096,
33 Sup. Ct. Rep. 654, Ann. Cas. 1914C, 172.
This defense, if its basis is an implied
contract, renders nugatory the 5th section
of the act, that any contract, rule, regula-
tion, or device whatsoever, the purpose or
intent of which shall be to enable any com-
mon carrier to exempt itself from any lia-
bility created by this act, shall to that ex-
tent be void.
Philadelphia, B. A W. R. Co. ▼. Tucker,
35 App. D. C. 123, L.R.A.1915C, 39, 220 U.
S. 608, 65 L. ed. 607, 31 Sup. Ct. Rep. 725;
McMurray v. Brown, 91 U. S. 257, 23 L. ed.
321; Richardson v. Norfolk A W. R. Co. 37
W. Va. 641, 17 S. E. 195; Wilson ▼. Taylor,
89 Ala. 368, 8 So. 149; Moman ▼. Carroll,
35 Iowa, 22; Sprague v. Haines, 68 Tex. 216,
4 S. W. 371.
It is the policy of the law to protect, to
far as possible, those pursuing, and often-
times necessarily pursuing, so hazardous an
•mploymefit. It is enough that they must
jtasume the intrinsic risks of their calling
without compelling them to assume the neg-
ligence of their employers.
Philadelphia, B. & W. R. Co. Y. Tucker, 35
App. D. C. 123, L.RJ1.1915C, 39.
Since the maxim, when applicable, is a
eommon-law defense to an action by a
•tranger, it is recognized by the English
courts as a defense, to that extent, under
the English statute.
Smith V. Baker [1891] A. C. 325, 60 L. J.
Q. B. N. S. 683, 66 L. T. N. S. 467, 40 Week.
Bep. 392, 55 J. P. 660; Thomas v. Quarter-
maine, L. R. 18 Q. B. Div. 685, 56 L. J. Q.
B. N. S. 340, 57 L. T. N. S. 537, 35 Week.
Rep. 555, 61 J. P. 516; Yarmouth v. France,
I-. R. 19 Q. B. Div. 647, 67 L. J. Q. B. N. S.
7, 36 Week. Rep. 281, 17 Eng. Rul. Cas. 217;
Osborne v. London A N. W. R, Co. L. R.
21 Q. B. Div. 220, 67 I* J. Q. B. N. S. 618,
59 L. T. N. S. 227, 36 Week. Rep. 800, 52 J.
P. 806; Williams v. Birmingham Battery &
Metal Co. [1899J 2 Q. B. 338, 68 L. J. Q. B.
40 li. ed.
N. S. 918, 47 Week. Rep. 680, 81 L. T. N. S.
62, 15 Times L. R. 468.
The established doctrine of the English
courts is, however, that the maxim is not
synonymous with scienti non fit injuria,
and that whether or not the servant volun-
tarily assumed the risk is a question of
fact for the jury, — a doctrine which is be-
ing accepted by the American courts.
New York, N. H. & H. R. Co. v. Vizvari,
L.R.A.1915C, 9, 126 C. C. A. 632, 210 Fed.
118.
The maxim volenti non fit injuria has
in the law no independent field of opera-
tion. It covers no ground not covered by
contractual assumption of risk and con-
tributory negligence.
O'Maley v. South Boston Gaslight Co. 47
L.RA. 161, and notes, IIL and IX. 158
Mass. 135, 32 N. E. 1119; 3 Labatt, Mast.
& S. §§ 1287, 1288.
Actual knowledge of the danger must be
shown, or, in the absence of positive evi-
dence on the subject, its obvious character
must be bo conclusively established that, as
a matter of fact, his knowledge must be
presumed, before the doctrine of assump-
tion of risk can be invoked.
Texas & P. R. Co. v. Archibald, 170 U. S.
665, 42 L. ed. 1188, 18 Sup. a. Rep. 777, 4
Am. Neg. Rep. 746; Choctaw, O. & Q. R. Cp.
V. McDade, 191 U. S. 04, 48 L. ed. 96, 24
Sup. Ct. Rep. 24, 15 Aul Neg. Rep. 230;
Seaboard Air Line R. Co. v. Horton, 233
U. S. 492, 58 L. ed. 1062, L.R.A.1915C. 1,
34 Sup. Ct. Rep. 635, Ann. Cas. 1915B,
475, 8 N. C. C. A. 834; Yazoo k M. Vall^
R. Co. V. Wright, 236 U. SJ 376, 59 L. ed.
277, 35 Sup. Ct. Rep. 130.
Assumption of risk is a matter of gen-
eral, not local, jurisprudence. Before the
enactment of the employers' liability act —
while the subject was within the police
power of the state in the absence of legisla-
tion by Congress — this court applied its own
interpretation of the common-law principle.
Smith ▼. Alabama, 124 U. S. 465, 476, 31
L. ed. 508-512, 1 Inters. Com. Rep. 804, 8
Sup. Ct. Rep. 564.
By the act of Congress the subject is
withdrawn from the police power of the
state.
Second Employers' Liability Cases (Mon-
dou V. New York, N. H. A H. R. Co.) 223
U. S. 1, 66 L. ed. 327, 38 L.RA.(N.S.) 44,
32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875.
In no conceivable view of the evidence
would the jury have been warranted in any
other conclusion than that the plaintiff, a
locomotive fireman, charged only with du-
ties connected with the operation of the
train, inadvertently came in contact with a
danger, of the existence of which he had no
knowledge. On these facts, the court may
• 7S
229, 230
SUPREME CX>URT OF THE UNITED STATES.
Cot. TkBM,
Mj, as a matter of law» he did not aasume
the risk.
Yazoo & M. VaUey R. Co. ▼. Wright, 235
U. S. 376, 59 L. ed. 277, 35 Sup. Ct. Rep.
130.
All courts agree that assumption of risk
is not availahle as a defense when the in-
jury results in whole or in part from the
negligence of the officers, agents, or em-
ployees of the carrier, as distinguished from
a defect or insufficiency due to its negli-
gence in its physical appliances.
Second Employers' Liability Cases, supra;
Easter v. Virginian R. Co. — W. Va. — , 86
S. E. 37; Portland Terminal Co. ▼. Jarvis,
141 C. O. A. 562, 227 Fed. 8; Grybowski y.
Erie R. Co. — N. J. L. — , 95 Atl. 764;
Grand Trunk Western R. Co. ▼. Lindsay,
120 C. C. A. 166, 201 Fed. 836, affirmed in
233 U. S. 42, 58 L. ed. 838, 34 Sup. Ct. Rep.
581, Ann. Cas. 1914C, 168.
The words of the 4th section, "risks of
his employment," mean the risks normally
incident to the employment, the existence
of which does not charge the employer
with actionable negligence. They do not
include risks occasioned by the employer's
negligence.
Texas & N. 0. R. Co. y. Kelly, 98 Tex.
123, 80 S. W. 79; Atchison, T. A S. F. R.
Co. V. Mills, 49 Tex. Civ. App. 349, 108 S.
W. 480; New Omaha Thomson-Houston
Electric Light Co. v. Rombold, 73 Neb. 269,
102 N. W. 476, 106 N. W. 213; Stager y.
Troy Laundry Co. 38 Or. 480, 63 L.RJI. 469,
63 Pac. 646; 5 Labatt, Mast. & S. § 1647; 3
Labatt, Mast. & S. § 894; Morgan y. Vale
of Neath R. Co. 5 Best ft S. 570, 33 L. J. Q.
B. N. S. 260, 12 Week. Rep. 1032, affirmed
in L. R. 1 Q. B. 149, 5 Best & S. 736, 35 L.
J. Q. B. N. S. 23, 13 L. T. N. S. 564, 14
Week. Rep. 144; Texas A P. R. Co. y. Har-
vey, 228 U. S. 319-321, 57 L. ed. 852-855, 33
Sup. Ct. Rep. 518; Howard v. Delaware ft
H. Canal Co. 6 LJLA. 75, note.
Mr. William Iieigh Williams argued the
cause, and, with Mr. L. E. Jeffries, filed
a brief for defendant in error:
The instruction attacked correctly states
the oommon-law doctrine of assumption of
risk.
Choctaw, 0. ft G. R. Co. v. McDade, 191
U. S. 64, 48 L. ed. 96, 24 Sup. Ct. Rep. 24,
15 Am. Neg. Rep. 230; Texas ft P. R. Co. y.
Archibald, 170 U. S. 666, 42 L. ed. 1188, 18
Sup. Ct. Rep. 777, 4 Am. Neg. Rep. 746.
Assumption of risk is a good defense to
an action under the Federal employers' lia-
bility act except where the carrier's de-
fault consists in a violation of some statute
enacted for the safety of employees, and
such default has contributed to the injury
or death of the employee.
• 74
Barker y. Kansas City, M. ft 0. R. Go. 88
Kan. 767, 43 LJtJL(N.S.) 1121, 129 Pae.
1161; Neal y. Idaho ft W. N. R. Co. 22
Idaho, 74, 125 Pac 831; Bowers y. South-
em R. Co. 10 Ga. App. 367, 73 S. E. 677;
Freeman y. Powell, — Tex. dv. App. — ,
144 S. W. 1034; Second Employers' Liabil-
ity Cases (Mondou y. New York, N. H. ft H.
R. Co.) 223 U. S. 1, 56 L. ed. 327, 38 L.IUL
(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C.
A. 875; Central Vermont R. Co. y. Bethune,
124 C. C. A. 528, 206 Fed. 868; Seaboard
Air Line R. Co. y. Horton, 233 U. S. 492, 58
L. ed. 1062, L.RA.1915C, 1, 34 Sup. Ct. Rep.
635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834;
Gulf, C. ft S. F. R. Co. y. McGinnis, 228 U.
S. 173, 57 L. ed. 785, 33 Sup. Ct. Rep. 426,
3 N. C. C. A. 806; Missouri, K. ft T. R. Co.
y. Wulf, 226 U. S. 570, 57 L. ed. 355, 33
Sup. Ct. Rep. 135, Ann. Oas. 1914B, 134;
Seaboard Air Line R. Co. y. Moore, 228 U.
S. 433, 57 L. ed. 907, 33 Sup. Ct. Rep. 580.
Mr. Justice McKenna deliyered the opin-
ion of the court:
Action under the Federal employers' lia-
bility act, as amended, 35 Stat, at L. 65,
chap. 149, Comp. Stat. 1913, § 8667; 36
Stat, at L. 291, chap. 143.
Plaintiff in error, who was also plaintiff
in the trial court, and we shall so designate
him, was in the sendee of [830] the rail-
way company, in interstate commerce, as a
fireman. He received injuries while at-
tempting to get on a moving locomotive.
He charged negligence against the company
and sued for the sum of $20,000 damages.
The negligence charged was the causing
and permitting to be within dangerous prox-
imity to the tracks of the company a pile'
of loose cinders over which plaintiff stum-
bled and slipped, and was drawn under the
locomotive.
The railway company, among other de-
fenses, pleaded the following:
"That the said plaintiff was guilty of
gross contributory negligence in attempting
to board the engine with a water cooler
filled with water in his arms, and was also
guilty of gross contributory negligoioe in
attempting to board the engine from a pile
of cinders along the track; and was also
guilty of gross contributory negligence in
running along the track, and in attempting
to board the engine without looking and
seeing the pile of cinders, which could have
been observed with any caution and care
on his part; that the said pile of cinders
had been allowed to accumulate in the
same manner and in the same place as they
were at the time of the accident for many
years prior to the accident, and that these
facts were well known to the plaintiff, and
that he assumed the risk of danger from
S41 V. a.
1915.
JACOBS V. SOUTHERN R. CO.
280-233
•aid pile of cinders, if there wai any danger
in allowing them to remain there."
There were two trials of the action. The
first trial resulted in a verdict for plain-
tiff for $12,000, upon which judgment was
entered. The judgment was reversed by the
supreme court of appeals for error in the
instructions.
Upon the second trial the verdict was for
defendant. The court refused to set it aside
and grant a new trial, but ordered judgment
in accordance therewith. The supreme court
of appeals refused a writ of error and super-
sedeas, the effect of which was to afl&rm the
judgment of the trial court.
[231 J The facts are practically undis-
puted. Plaintiff was engaged with a crew
in shifting cars in the railway company's
yard at Lawrenceville, Virginia. He de-
scended from the engine at the depot to get
drinking water for himself and the engineer.
He returned with a can of water to mount
the engine, and then as to what took place
he testified as follows: "I came down the
railroad road . . . and came across the
track on the crossing. At the time the
train was pulling out of the last track. So
I waited until the train was pulling up
there, and aimed to catch it, and when I
aimed to catch it I made three or four steps
to get on it, you know, and I got to the cinder
pile before 1 knew it, and I tripped, and
went under the engine. . . . The cinder
pile tripped me.'' The train was moving
"just about as fast as anybody could walk;
that is, pretty peart walking; not over 3
or 4 miles an hour at the most." He fur-
ther testified that it had been customary ever
since he had been on the road "for the
trainmen to get on and off the engine when
it was going that way;" had seen it done
hundreds of times a day and had never seen
any rule forbidding it. He was about 7
feet from the cinder pile when he "aimed to"
catch the engine, and the cinder pile was
about 18 or 24 inches deep, and he indicated
its length to be about as long as the court
room and as wide as the distance from him-
self to a person he indicated. Describing
how the cinders caused him to fall, he said
they were piled "right up against the rail"
and "sloped from the rail up. As I caught
the engine, I made several steps, and as I
hit the cinder pile they commenced miring
just like mud, and it caused me to fall, and
whfm I feU in the cindAr oi^e the journal
box kept hitting, and 1 couldn^t get up. I
tried, but I couldn't. . . . Every time I
made an -effort the cinder pile gave way with
me. ... I fell down behind the cinder.
pile. The cinder pile was sloping, and I fell
down by the journal box, and the train
[232] was passing, and I rolled down next
to the rail." He further testified that if he
•0 li. ed.
had fallen from some other cause, he could
have got out of danger; and that, when he
started to get on the engine^ he was not
conscious of any danger from coming in
contact with the pile of cinders; that it was
not in his mind at all. But he testified: '1
had knowledge of it, of the cinders being
there, but I did not know that it was dan-
gerous. I had forgotten them being there at
the time. I was watching when I was going
to step on the engine — watching my feet,
where I was going to step, and was not
noticing the cinder pile. • • . It was not
in my mind."
it is not disputed that it was customary,
and had been for eleven or twelve years, for
the ashpans of the engine to be cleaned upon
the tracks, and the ashes then drawn out
from the tracks, and, when a lot had ac-
cumulated, taken away. The piles were of
irregular height.
Plaintiff contends that upon this evidence
he was entitled to recover under proper in-
structions, and that the trial court followed
the decision of the supreme court of appeals
in giving an instruction at the second trial
which it had refused to give at the first
trial. The instruction is as follows:
"The court instructs the jury that if they
believe from the evidence that the existence
of the cinder pile was known to the plaintiff,
or that he had been working for the South-
em Railway at Lawrenceville for more than
a year, and that the cinders had been piled
at the same place in the way described by
the witnesses for many years prior to the
accident, and that the plaintiff had failed
to show that he had made complaint or ob-
jection on account of the cinder pile, then
he assumed the risk of danger from the
cinder pile, if there was any danger in it,
and the act of Congress approved April 22,
1908, permits this defense, and the jury
should find their verdict for the defendant."
[116 Va. 195, 81 S. E. 99.]
[233] This instruction, it is contended,
became "the law of the case" by the deci-
sion of the supreme court of appeals, and
precluded the instructions which plaintiff
asked, and which otherwise would have been
correct, it is insisted, and should have been
given.
The instructions refused presented these
propositions: (1) The unsafe character or
condition of the railway was of itself no
defense to the injury caused thereby. (2)
Knowledge of it by plaintiff might consti-
tute contributory negligence and diminish
the amount of recovery. (3) If the company
suffered or permitted the cinders to be
placed and to accumulate alongside of its
main line in dangerous proximity to the
railroad track or road, and plaintiff's injury
resulted in whole or in part from such n^li-
233-236
SUPREME COURT OF THE UNITED STATES.
Oct.
gence, or if the cinders constituted a defect
or insulticiency in the railroad track, the
verdict should be for plain till. (4) Knowl-
edge of the existence of the cinders would
not bar recovery, but it might be considered
with other evidence in determining whether
plaintiif was guilty of contributory negli-
gence; and, if guilty, recovery would not
be barred, but the amount of recovery would
be diminished in proportion to such negli-
gence. (5) To charge plaintiif with con-
tributory negligence he must not only have
known of the cinders, but also the danger
occasioned by them, or that the danger was
so obvious that a man of ordinary prudence
would have appreciated it and not have at-
tempted to get upon the engine at the time
and under the circumstances disclosed by
the evidence.
The rulings of the trial court and su-
preme court of appeals upon the instruction
given and those refused make the question
here and represent the opposing contentions
of the parties. The railway company con-
tends that piaintilTs knowledge of the cin-
der pile and his conduct constituted assump-
tion of risk and a complete defense to the
action. Ihe plaintiff, on the other hand,
insiats that such knowledge and conduct
amounted, at the utmost, L^3^j to no more
than contributory negligence, and should not
have barred recovery, tnough it might have
reduced the amount of recovery. Indeed,
plaintiff goes farther and contends that,
whatever might have been the evidence re-
specting his knowledge or lack of knowledge
of the danger, he did not assume the risk
if the company was negligent; and, further,
that employees' continuance in service with
knowledge of a dangerous condition and
without complaint does not bar recovery
under the act *of Congress. Ue concedes,
however, that he encounters in opposition
to his contentions the ruling in Seaboard
Air Line R. Co. v. Uorton, 233 U. S. 492,
58 L. ed. 1062, L.RJ^.1915C, 1, 34 Sup. Ct.
Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C.
A 834, and therefore asks a review of that
case, asserting that '*the considerations up-
on which the true construction of the act
depends were not suggested to the court."
The argument to sustain the assertion and
to present what he deems to be the true
construction of the act is elaborate and in-
volved. It would extend this opinion too
much to answer it in detail. He does not
express his contention in any pointed propo-
sition. He makes it through a comparison of
the sections of the act, and insists that to
retain the common-law doctrine of the as-
sumption of risk is to put the 4th section in
conflict with the other sections. The basis
of the contention is that the act was in-
tended to be punitive of negligence, and does
• 76
not cast on the employees of carriers the
assumption of risk of any condition or sit-
uation caused by such negligence. This is
manifest, it is insisted, from the provisions
of the 3(1 section of the act, which provides
that the contributory negligence of the em-
ployee "shall not bar a recovery;" and of
the 5th section, which precludes the carrier
from exempting itself from liability. This
purpose is executed, and can only be execut-
ed, it is urged, by construing the words of §
4 (which we shall presently quote) to apply
to "the ordinary risks inherent in the busi-
ness,— the unavoidable risks which are in-
trinsic notwithstanding [235] the per-
formanoe by the carrier of its personal du-
ties. They do not include the 'secondary
and ulterior* risks arising from abnormal
dangers due to the employer's negligence."
And, further: "The object of this section
was not to adopt by implicatum the com-
mon-law defense of assumption of risk of
such abnormal dangers. Its object was in
express terms to exclude the defense which,
before the passage of the act, was available
to the carrier in determining what are the
*risks of his employment' assumed by the
employee."
These, then, are the considerations which
plaintiff says were not submitted to the
court in the Horton Case, and which he
urges to support his contention that assump-
tion of risk has been abolished absolutely.
We are unable to concur. The contention
attributes to Congress the utmost confusion
of thought and language, and makes it ex-
press one meaning when it intended another.
The language of § 4 demonstrates its
meaning. It provides that in any action
brought by an employee he "shall not be
held to have assumed the risks of his em-
ployment in any case where the violation
by such common carrier of any statute en-
acted for the safety of employees contributed
to the injury or death of such employee."
It is clear, therefore, that the assumption of
risk as a defense Lb abolished only where
the negligence of the carrier is in violation
of some ststute enacted for the safety of
employees. In other cases, therefore, it is
retained. And such is the ruling in the
Horton Case, made upon due consideration
and analysis of the statute and those to
which it referred. It was said: "It seems to
us thst § 4, in eliminating the defense of as-
sumption of risk in the cases indicated,
quite plainly evidences the legislative in-
tent that in all other cases such assumption
shall have its former effect as a complete
bar to the action." And there was a com-
parison made of § 4 with the other [836]
sections, and the relation and meaning of
each determined, and the preservation by
the statute of the distinction between as-
241 U. S.
1915.
BAUGHAM y. NEW YORK, P. & N. R. CO.
236, 237
4Bumption of risk and contributoxy negli-
^nce, which was pronounced ''simple*' al-
though ''sometimes overlooked." Cases
were cited in which the distinction was
recognized and applied (p. 504).
It is, however, contended thaft the condi-
tions of the application of assumption of
risk were not established, and that "to
charge a servant with assumption of risk
the evidence (1) must show that he was
'chargeable with knowledge of the material
conditions which were the immediate cause
•of his injury,' and (2) must establish his
'appreciation of the dangers produced by
the abnormal conditions.'" The testimony
•of plaintiff is adduced to show that these
•conditions did not exist in his case.
He admitted a knowledge of the "ma-
terial conditions/' and it would be going
very far to say that a fireman of an engine
who knew of the custom of depositing cin-
ders between the tracks, knew of their exist-
ence, and who attempted to mount an engine
with a vessel of water in his hands holding
"not over a gallon," could be considered as
not having appreciated the danger and as-
sumed the risk of the situation because he
had forgotten their existence at the time and
<iid not notice them. We think his situation
brought him within the rule of the cases.
Oila Valley, G. & N. R. Co. v. Hall, 232
U. S. 94, 102, 58 L. ed. 521, 524, 34 Sup.
Ct. Rep. 229.
It is objected, however, that instruction
A, "viewed wholly with reference to com-
mon-law principles," is erroneous in that it
omitted to state as an element the apprecia-
tion by plaintiff of the danger of the situa-
tion as necessary to his assumption of risk.
But that objection was not made at the
trial. The objection made was general, that
the instruction did "not correctly state the
«ommon-law doctrine of assumption of risk."
It was therefore very indeterminate, and we
cannot say that the court considered that
it was directed to the omission [237] to
express or to bring into promience the ap-
preciation by plaintiff of the danger he in-
curred.
The instruction was refused by the trial
court upon objection by plaintiff. It was
considered by the supreme court of appeals,
and plaintiff contended against it there only
upon the ground that the assumption of
risk was not available as a defense under
the act of Congress. He made the conten-
tion there that he does here, and which we
have already considered, that the act of
Congress precludes the defense of assump-
tion of risk of any condition or situation
caused by the negligence of a carrier. And
this was the full extent of plaintiff's con-
tention. Had he made the specific one now
made, the supreme court of appeals would
SO li. ed.
have dealt with it, for the opinion of the
court shows a clear recognition of the ele-
ments necessary to the doctrine of assump-
tion of risk, and the trial court as well
must have understood them; and we cannot
suppose that the court discerned in plain-
tiff's general objection the specification
which he now contends was necessary, and
which it was error to refuse.
Judgment affirmed.
KINDRED BAUGHAM, Administirator of
Richard T. Baugham, Deceased, Plff. in
Err.,
y.
NEW YORK, PHILADELPHIA, & NOR-
FOLK RAILROAD COMPANY.
(See S. C. Reporter's ed. 237-241.)
Error to state court — following deoi*
sion below ^ assnmptlon of risk.
1. The concurrent determination of the
state trial and appellate courts that the
evidence showed that a deceased railway
employee, for whose death an action was
brought under the Federal emplovers' lia-
bility act of April 22, 1908 (35 Stat, at L.
65, chap. 149, Comp. Stat. 1913, § 8657),
as amended by the act of April 5, 1910 (36
Stat, at L. 291, chap. 143), assumed the
risk of the danger which resulted in his in-
jury and death, will not be disturbed by
the Federal Supreme Court on writ of er-
ror unless clearly erroneous.
[For other cases, see Appeal and Error, Yin.
m, 1. in Digest Sup. Ct 1908.]
Master and servant — employers' lia-
bility — assumption of risk.
2. The express declaration by the Fed-
NoTE. — On error to state court in cases
arising imder the Federal employers' lia-
bility act — see note to Great Northern R.
Co. V. Knapp, ante, 745.
On the constitutionality, application, and
effect of the Federal employers' liability
act — see notes to Lamphere v. Oregon R. ft
Nav. Co. 47 LJLA.(N.S.) 38, and Seaboard
Air line R. Co. v. Horton, L.R.A.1915C,
47.
Generally, as to servant's assumption of
risk — see notes to Pidcock ▼. Union P. R.
Co. 1 Klt-A. 131; Foley ▼. Pettee Mach.
Works, 4 L.R.A. 51 ; Howard y. Delaware ft
H. Canal Co. 6 L.RA. 75; Hunter v. New
York, 0. ft W. R. Co. 6 L.R.A. 246; Georgia
P. R. Co. V. Dooly, 12 L.R.A. 342; Kehler
V. Schwenk, 13 L.R.A. 374, and Southern
P. R. Co. V. Seley, 38 L. ed. U. S. 39L
On Volenti non fit injuria as defense
to action by injured servant — see note to
O'Maley v. South Boston Gaslight Co. 47
LJR.A. 161.
As to whether servant may assume the
risk of dangers created by the master's
negligence — see note to Scheurer v. Banner
Rubber Co. 28 L.R.A.<NJ3.) 1215.
62 ^'Va
238-240
SUPREME CX)URT OF THE UNITED STATES.
Oct. Teem,
eral employers' liability act of April 22,
1908 (35 Stat, at L. 65, chap. 149, Ck>mp.
Stat. 1913, § 8657), § 4, that an employee
shall not be held to have assumed the risk
of his employment in any case where the
violation by the carrier of any statute en-
acted for the safety of employees contrib-
uted to his injury or death, must be deemed
to leave in force in all other cases the de-
fense of the assumption of risk of the car-
rier's negligence, notwithstanding the pro-
vision of t£e 3d section of that act, that
the contributory negligence of the employee
"shall not bar a recovery," and that of the
5th section, precluding the carrier from
exempting itself from liability.
(For other cases, see Master and Servant, II.
b, In Digest Sup. Ct 1908.]
[No. 327.]
Argued April 27, 1916. Decided May 22,
1916.
IN ERROR to the Supreme Court of Ap-
peals of the State of Virginia to review
a judgment denying a writ of error to the
Circuit Court of Norfolk County, in that
state, to review a judgment in favor of
defendant in an action for death, brought
under the Federal employers' liability act
Affirmed.
The facts are stated in the opinion.
Mr. Edward P. Buford argued the cause
and filed for plaintiff in error.
Mr. Thomas H. Willcox argued the
cause, and, with Mr. Francis I. Qowen,
filed a brief for defendant in error:
Mr. Justice McKenna delivered the opin-
ion of the court:
Action for danuiges under the Federal
employers' liability act [35 Stat, at L. 65,
chap. 149, Comp. Stat. 1913, § 8657, 36
Stat, at L. 291, chap. 143], brought in the
circuit court of Norfolk county, state of
Virginia, by plaintiff in error (we shall
call him plaintiff), administrator of the
estate of Richard T. Baugham.
The ^oimd of action was that the rail-
road company, an interstate carrier, caused
by its negligence the death of plaintiff's in-
testate while he was employed and engaged
in such commerce.
Richard T. Baugham was between the
ages of eighteen and twenty years, and was
engaged by the railroad company to act as
brakeman in its yard at Port Norfolk, Vir-
ginia. On the second day of his employ-
ment, while mounting a freight car that
was being transferred from the wharf of
the company to a barge moored at the
wharf, [830] he was killed by being
crushed between that car and other cars
which were upon the barge.
• 78
There were four tracks on the barge. Be-
tween the outside and center tracks, of
which there were two, there was sufficient
space for an employee to mount in safety
cars moving between those tracks. There
was also sufficient space between the cen-
ter tracks for some distance from where
they entered the barge from the wharf. But
these tracks gradually converged until the
space between them so diminished that cars
being moved on one center track would al-
most touch those standing on the other
center track. The roofs of the cars would
sometimes touch.
By reason of this proximity of the cars
it is alleged that serious and deadly injury
would be inflicted upon the servants and
employees of the company if they should
be caught between the cars. Plaintiff's in-
testate was so caught and received injuries
from which he died.
It was the duty of the company, it was
alleged, to have admonished and warned
the deceased of the difficulties, dangers, and
perils attendant upon his service aAd
duties as brakeman, so that he might safe-
ly have performed them; but that the com-
pany wholly failed to do so, and that in
consequence the deceased, in the perform-
ance of his duties as brakeman on trains
being transferred from the wharf to the
barge, and while ascending one of the cars,
was cau^t and confined between the eaves
of the roof of the car which he was ascend-
ing and the eaves of the roof or roofs of an-
other ear or cars and fatally injured.
Damages were prayed in the sum of $50,-
000.
The company pleaded not guilty, and, as
special defenses, that the deceased was
guilty of contributory negligence, and that
he ''assumed, when he entered the employ-
ment of the company, the risk of being in-
jured in the manner charged in the declara-
tion."
The case was tried ta a jury. Upon the
conclusion of [240] the testimony the com-
pany demurred to the evidence, and plain-
tiff joined in the demurrer; whereupon, the
jury being required to say what damages
the plaintiff sustained if judgment should
be given for plaintiff upon the evidence, re-
sponded* "that if, upon the demurrer to the
evidence, the law be for the plaintiff, then
we find for the plaintiff, and assess the dam-
ages which he ought to recover at $10,000."
The demurrer to the evidence was sus-
tained, and it was adjudged that plaintiff
take nothing by his suit The judgment
was affirmed by the supreme court of i^-
peals.
The tracks on the barge and the operation
of the cars can easily be visualized. There
were four tracks, two center ones and two
141 V. S.
1015.
CHESAPEAKE & 0. R. CO. ▼. CAKNAHAN.
240, 241
outside ones, the former converging as they
approached until they came so. close to-
gether that any one caught between cars
moving upon them would be crushed. The
dcccastd, wliile ascending a moving car,
was cauglit between it and a car standing
on the barge and fatally injured. The in-
quiry is — and upon it rests the determina-
tion of the case — What knowledge had the
deceased of this situation, and what was
the effect of that knowledge upon the lia-
bility, if any, of the company?
Plaintiff makes two contentious: (1)
That the company failed to warn deceased
pi the danger to which he was exposed, and
that such failure was negligence on the
part of the company. (2) That the con-
vergence of the tracks on the barge was a
defect or insufficiency due to the negligence
of the company in its track, roadbed, barge,
and equipment.
The railroad company opposes plaintiff's
contentions and insists that the deceased
assumed the risk of the danger which re-
sulted in his injury and death. A determi-
nation of these contentions depends upon
the evidence, and, considering it, the state
courts, trial and appellate, decided against
the contentions of plaintiff, and in so doing
in effect held that the conditions of the as-
sumption [241] of risk by deceased were
satisfied. Gila Valley, G. k N. R. Co. v.
Hall, 232 U. S. 94, 102, 68 L. ed. 521, 624,
34 Sup. Ct. Rep. 229.
We have considered the evidence, and we
cannot say that the conclusion was palpably
erroneous, and following the rule expressed
in Great Northern R. Co. y. ^napp, 240
U. S. 464, 466, ante, 746, 761, 36 Sup. Ct.
Rep. 399, and, as having analogy, Chicago
Junction R. Co. v. King, 222 U. S. 222, 66 L.
ed. 173, 32 Sup. Ct. Rep. 79, we announce
our concurrence without discussion.
It is further contended ''that, as a mat-
ter of law, the common-law assumption of
risk is not a defense in bar of an action
under the act of Congress." The contention
It untenable. Jacobs v. Southern R. Co. 241
U. S. 229, ante, 970, 36 Sup. Ct. Rep. 688.
Judgment affirmed.
CHESAPEAKE & OHIO RAILWAY COM-
PANY, Plff. in Err.,
V.
ASA P. CARNAHAN.
(See S. C. Reporter's ed. 241-245.)
Jory — infringement of right ^ num-
ber of Jurors ^ action nnder Federal
statute.
1. A party to an action in a state
•0 li. ed.
court under the Federal employers' liability
act of April 22, 1008 (35 SUt. at L. 65,
chap. 149, Comp. Stat. 1913, § 8657), as
amended by the act of April 5, 1010 (36
Stat, at L. 291, chap. 143), is not entitled
to a jury of twelve men, where the local
practice permits a jury of less than that
number, because of the requirement of U.
S. Const., 7th Amend., that trials by jury
be according to the course of the common
law, *. €., by a jury of twelve.
[For other cases, see Jury, I. d, 2, in Dlsest
Sup. Ct. 1908.)
Trial — InstructionR — employers' lia-
bility.
2. Instructing the jury in an action
under the Federal employers' liability
act of April 22, 1908 (35 Stat, at L. 65,
chap. 149, Comp. Stat. 1913, § 8657), as
amended by the act of April 5, 1910 (36
Stat, at L. 291, chap. 143), that they may
take into consideration, in assessing the
damages, the ''pain and suffering of the
plaintiff, his mental anguish, the bodily
injury sustained by him, his pecuniary loss,
his loss of power and capacity for work
and its effect upon his future, not, however,
in excess of $35,000, as to tliem may seem
just and fair," is not objectionable as per-
mitting the jury to indulge in speculation
as to future results, and as leavini; tho
amount of damages to conjecture without
regard to the evidence, where the court ex-
plicitly enjoined upon the jury that there
must be a proximate and causal relation
between the damages and the defendant's
negligence, and the reference to the sum
mentioned was a limitation of the amount
slated in the declaration.
[For other cn.<«es, see Trial, YII. a, in Digest
Sup. Ct 1908.]
[No. 743.]
Argued and submitted April 19 and 20,
1916. Decided May 22, 1916.
IN ERROR lo the Supreme Court of Ap-
peals of the State of Virginia to review
a judgment which affirmed a judgment of
the Cii'cuit Court of Hanover County, in
that state, in favor of plaintiff in an ac-
tion under the Federal employers' liability
act. Affirmed.
See same case below, — Va. — , 86 S. E.
8G3.
The facts are stated in the opinion.
Note. — On number and agreement of
jurors necessary to constitute a valid ver-
dict— see notes to State v. Bates, 43 L.R.A.
33, and Silsby y. Foote, 14 L. ed. U. S.
394.
On the constitutionality, application, and
effect of the Federal employers' liability
act — see notes to Lamphere v. Oregon R.
& Nav. Co. 47 L.R.A.(N.8.) 38, and Sea-
board Air Line R. Co. t. Horton, L.RJL
1915C, 47.
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
Mr. Bayld H. Iieake argued the cause,
and, with Mr. Walter Leake, filed a brief
for plaintiff in error:
Congress, in passing the Federal em-
ployers' liability act, evidently intended
that the Federal statute should be con-
strued in the light of previous decisions of
the Federal courts in all substantive mat-
ters, such as, for instance, the rule as to
burden of proof where contributory negli-
gence is relief upon.
Central Vermont R. Co. v. White, 238
U. S. 512, 69 L. ed. 1436, 35 Sup. Ct. Rep.
865, Ann. Cas. 1916B, 252, 9 N. C. C. A.
265.
A substantive right or defense arising
under the Federal law cannot be lessened or
destroyed by a rule of procedure.
Norfolk Southern R. Co. v. Ferebee, 238
U. S. 269, 59 L. ed. 1303, 35 Sup. a. Rep.
781; Atlantic Coast Line R. Co. v. Bur-
nette, 239 U. S. 199, ante, 226, 36 Sup. Ct.
Rep. 75.
By the instruction complained of the
plaintiff is allowed to recover, among other
things, for the injury received by him and
its effects upon his future. By this lan-
guage the jury were given occasion for in-
definite speculation, and they were invited
to a consideration of elements wholly irrele-
vant to the true problem presented, — to in-
dulge in conjecture instead of weighing es-
tablished facts.
Norfolk & W. R. Co. v. Holbrook, 236 U.
5. 630, 59 L. ed. 393, 35 Sup. Ct. Rep. 143,
7 N. C. C. A. 814; Richmond & D. R. Co. v.
EUiott, 149 U. S. 266, 269, 37 L. ed. 728,
731, 15 Sup. Ct. Rep. 837; Boston A A. R.
Co. V. O'Reilly, 168 U. S. 334, 39 L. ed. 1006,
15 Sup. Ct. Rep. 830.
In order that a recovery for future pain
and suffering be allowable, there must be
evidence tending to show that such pain
was reasonably certain to result from the
injury.
Kennon v. Gilmer, 131 U. S. 22, 26, 33 L.
ed. 110, 112, 9 Sup. Ct. Rep. 696; Washing-
ton & G. R. Co. V. Harmon (Washington &,
G. R. Co. V. Tobriner) 147 U. S. 584, 37 L.
ed. 289, 13 Sup. Ct. Rep. 667; McDermott ▼.
Severe, 202 U. S. 600, 50 L. ed. 1162, 26 Sup.
Ct. Rep. 709; Smith v. Milwaukee Builders'
6, T. Exch. 91 Wis. 360, 30 L.RJk. 504, 51
Am. St. Rep. 912, 64 N. W. 1041; Block v.
Milwaukee Street R. Co. 89 Wis. 371, 27
hJRJi. 365, 46 Am. St Rep. 849, 61 N. W.
1101; Ford v. Des Moines, 106 Iowa, 94, 75
N. W. 630^ 4 Am. Neg. Rep. 379 ; Shultz v.
Griffith, 103 Iowa, 150, 40 LJtJk. 117, 72
N. W. 446; Norfolk R. A Light Co. V. Sprat-
ley, 103 Va. 388, 49 S. E. 502; Watson,
Damages for Personal Injuries, § 604, p.
720.
It is not the province of a jury to allow
•80
such damages as seem to them just and fair,
but they can only give the damages proved
by the evidence to have been the natural
and proximate result of the negligent act
complained of.
Milwaukee A St. P. R. Co. y. Kellogg, 94
U. S. 469, 24 L. ed. 256; Scheffer v. Wash-
ington City, V. M & G. S. R. Co. 105 U.
S. 249, 26 L. ed. 1070; Vance v. W. A. Van-
dercook Co. 170 U. S. 468, 42 L. ed. 1111, 18
Sup. Ct. Rep. 645; Allison v. Fredericks-
burg, 112 Va. 243, 48 L.RA.(NJ3.) 93, 71 S.
E. 525; Fowlkes ▼. Southern R. Co. 96 Va.
742, 32 S. E. 464.
Messrs. David H. Leake and Walter Leake
also united in a joint brief raising the ques-
tion of the application of the 7 th Amend-
ment to the Federal Constitution, an ab-
stract of which will be found in connection
with the report of Chesapeake & 0. R. Co.
V. Kelly, post, 1117.
Messrs. €. W. Allen and Homan W.
Walsh submitted the cause for defendant
in error:
A court cannot assume that the jury dis-
regarded an instruction.
Graham v. United States, 231 U. S. 474,
58 L. ed. 319, 34 Sup. Ct. Rep. 148; Penn-
sylvania Co. V. Roy, 102 U. S. 451, 458, 26
L. ed. 141, 145, 10 Am. Neg. Cas. 593; South-
em P. Co. ▼. HaU, 41 C. C. A. 58, 100 Fed.
760.
Future damages must be recovered in this
one action. The injury is entire, and it is
the duty of the jury to assess the plain-
tiff's entire loss, past and future. While it
may be true that any particular loss in fu-
ture may not be considered, as being specu-
lative and remote, it is also true that the
jury should consider his loss in future.
Richmond & D. R. Co. v. Elliott, 149 U. S.
266, 37 L. ed. 728, 731, 13 Sup. Ct. Rep. 837;
Denver A R. G. R. Co. v. Roller, 49 L.RJL
77, 41 C. C. A. 34, 100 Fed. 738; Washing-
ton & G. R. Co. V. Harmon (Washington ft
G. R. Co. V. Tobriner) 147 U. S. 671, 37 L.
ed. 284, 13 Sup. Ct. Rep. 557; McDermott
▼. Severe, 202 U. S. 600, 610, 50 L. ed. 1162,
1168, 26 Sup. Ct. Rep. 709; Chesapeake ft 0.
R. Co. v. Hoffman, 109 Va. 44, 66, 63 S. E.
432.
Direct evidence of future pain and suf-
fering is not essential to justify the jury in
considering future pain and suffering in
their estimate of damages.
District of Columbia ▼. Woodbury, 136
U. S. 450, 457, 34 L. ed. 472, 475, 10 Sup.
Ct. Rep. 990; Keimon v. Gilmer, 131 U. S.
22, 24, 33 L. ed. 110, 112, 0 Sup. Ct. Rep.
696; McDermott ▼. Severe, 202 U. S. 600,
610, 50 L. ed. 1162, 1168, 26 Sup. Ct. Rep.
709; Watson, Damages for Personal In-
juries, I 887.
141 V. 8.
1915.
CHESAPEAKE & 0. H. CO. ▼. CARNAHAN.
242, 243
It IB contended the mention of the sum
in excess of which the jury might not find,
stamped that sum with judicial approval as
a sum they should find. But so to say is to
strike out the clause ''as to them may seem
just and fair." For that clause relegated
the amount of the damages to the jury, and
by it the coui't expressly disclaims any sug-
gestion as to the amount to be found, —
any intimation in the matter.
Norfolk A W. R. Co. v. Earnest, 229 U.
S. 114, 119, 57 L. ed. 1096, 1100, 33 Sup.
Ct. Rep. 654, Ann. Cas. 1914C, 172.
The phrase ''as to them may seem just
and fair" is altogether usual, and it pre-
cisely sets forth the true measure of dam-
ages in cases of this kind.
Vicksburg & M. R. Co. v. Putnam, 118 U.
S. 645, 30 L. ed. 257, 7 Sup. Ct. Rep. 1, 10
Am. Neg. Cas. 574; St. Louis, J. M. & S. R.
Co. V. Needham, 3 C. C. A. 129, 10 U. S. App.
330, 52 Fed. 371.
The amount of the verdict is a fact with
which tins court does not concern itself.
St. Louis, L M. & S. R. Co. v. Craft, 237
U. S. 648, 59 L. ed. 1160, 35 Sup. Ct. Rep.
704, 9 N. C. C. A. 754.
At the same time, it may not be improper
to call attention to the fact that there is
nothing in the amount of the verdict to show
that the jury were guided in arriving at the
sum awarded by any improper motives.
The amount is large in one sense, but the
injury and pain experienced were most
severe and intense; and comparatively, the
verdict is not startling.
Ibid.; Great Northern R. Co. y. Otos, 230
U. 6. 352, ante, 324, 36 Sup. Ct Rep. 126.
Seaboard Air Line R. Co. v. Koennecke, 239
U. S. 352, ante, 324, 36 Sup. Ct. Rep. 126.
Messrs. C. W. Allen and Homan W. Walsh
also united in a joint brief raising the ques-
tion of the application of the 7th Amend-
ment to the Federal Constitution, an ab-
stract of which will be found in connection
with the report of Chesapeake & 0. R. Co. v.
Kelly, post, 1117.
Mr. Justice McKenna delivered the opin-
ion of the court:
Error to review a judgment in favor of
defendant in error for $25,000 damages for
injuries sustained through the asserted neg-
ligence of plaintiff in error.
The action was at law under the employ-
ers' liability act of Congress. 35 Stat, at
L. 65, chap. 149, Comp. SUt. 1913, § 8657;
86 Stat, at L. 291, chap. 143. In accord-
ance with the state law it was tried to a
jury of seven. This is assigned as error.
The only other assignment is upon an in-
struction of the court as to the elements
of damage. There is no dispute as to the I
fact of injury, or that it was received in
•0 li. ed.
interstate conunerce, and by the negligence
of plaintiff in error.
( 1 ) The first assignment of error is based
upon a challenge by the railway company
to the array of jurors on the ground that
the jury was not summoned, selected,
formed, and constituted as provided by
the Constitution of the United States. In
other words, the contention is ''that in the
trial of cases under the employers' liability
act of Congress the parties are entitled to
a common-law jury of twelve men, as pro-
vided for by the 7th Amendment to the Con*
stitution of the United States."
The assignment is without foundation.
Minneapolis & St. L. R. Co. v. Bombolis, de-
cided this day [241 U. S. 211, ante, 961, 36
Sup. Ct. Rep. 595].
[243] (2) The instruction which is the
basis of the second assignment of error ia
as follows:
"The court instructs the jury that if they
believe from a preponderance of the evidence
that the defendant is liable to the plaintiff
in this action, then in assessing damages
against the defendant, they may take into
consideration the pain and suffering of the
plaintiff, his mental anguish, the bodily
injury sustained by him, his pecuniary loss,
his loss of power and capacity for work and
its effect upon his future, not however, in
excess of $35,000, as to them may seem just
and fair." [— Va. — , 86 S. E. 863.]
It is objected (a) that the instruction
permitted a recovery in damages not only
for those which proximately resulted from
the injury, but also for '*its effects upon the
future," which involved a consideration of
consequences which might be essentially
speculative and remote, (b) The instruc-
tion directed the jury that the damages
might be in such sum not in excess of $35,-
000 as to them might seem just and fair.
By the instruction the court called the at-
tention of the jury to a certain sum and
gave judicial approval of it, giving them to
understand that tliey could give such sum
as they might deem just and fair, without
regard to the damages the evidence might
prove.
The injury received is pertinent to the
consideration of the instruction. In the
collision of two trains defendant in error»
who was a fireman, "was caught" (we quote
from the opinion of the supreme court)
"from his knee of his right leg down, be«
tween the tank on the tender and the boiler
head in the cab of his engine, and remained
pinned in that position for forty-five or
fifty minutes before he was extricated by
the efforts of his fellow workmen. His leg
was so badly mashed and burned that it
eventually had to be amputated at a point
between the knee and the thigh, and it is
243-245, 248
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
for these injuries and his consoquent suf-
ferings that he sues to recover damages."
[244] The supreme court expressed the
view that the speculation of future results
which the railway company professed to ap-
prehend was not left by the instruction for
the jury to indulge, nor did the instruction
commit the amount of damages to the con-
jecture of the jury independently of the
evidence in the case. The contention made
here was explicitly rejected, viz., that the
instruction permitted the jury to take into
consideration the "possible future physical
effects from the injury, such as future suf-
fering in the absence of evidence as to the
probability of such." The court remarked
that it would be a strained construction of
the language of the Instruction ''to hold that
it referred to future suffering, and that
damages not the proximate result of the
injuries received were included under" it,
and that, besides, such conclusion was pre-
cluded by an instruction given at the re-
quest, of the railway company, which was
"that in order for the plaintiff to recover
in this case he must prove by a preponder-
ance of the evidence that the injuries he
sustained were the direct and proximate re-
sult of the negligence of the defendant."
The comment of the court is accurate and
we can add nothing to it. The principle is
established that when the evidence in a
case shows that there will be future effects
from an injury, an instruction which justi-
fies an inclusion of them in an award of
damages is not error. Washington & G.
R. Ck). V. Harmon (Washington & G. R. Co.
V. Tobriner), 147 U. S. 671, 37 L. ed. 284,
13 Sup. Ct. Rep. 657 ; McDermott v. Severe,
202 U. S. 600, 60 L. ed. 1162, 26 Sup. Ct.
Rep. 709.
It is also objected that the instruction
"allowed the jury to indulge in speculation
and conjecture; invited their attention to
the sum of $36,000, and allowed the jury
to give mich sum as damages as to them
might 'seem just and fair* without stating
that the damages could be only such as were
proved by the evidence to have proxi-
mately resulted from the negligent aet com-
plained of."
The objection if untenable. As we have
Been, the court [245] explicitly enjoined
upon the jury that there must be a proxi-
mate and causal relation between the dam-
ages and the negligence of the company, and
the reference to the sum of $36,000 was a
limitation of the amount stated in the dec-
laration. There could have been no misun-
derstanding of the purpose of the instruc-
tion. Norfolk A W. R. Co. v. Earnest, 220
U. S. 114, 119, 67 L. ed. 1096, 1100, 33 Sup.
Ct. Rep. 654, Ann. Cas. 19140, 172.
Judgment affirmed.
• 82
PACIFIC MAIL STEAMSHIP COMPANY,
Petitioner,
v.
ED. SCHMIDT.
(See S. C. Reporter's ed. 245-261.)
Seamen — wages — penalty for default
in payment.
The penalty imposed by U. S. Rev.
Stat. § 4520, as amended by the act of De-
cember 21, 1898 (30 Stat, at L. 756, chap.
28, Clomp. Stat. 1913, § 8320), § 4, upon
a shipowner for each day during which,
"without sufficient cause," he neglects or
refuses to pay a seaman's wa^es after cer-
tain specified periods, is not incurred dur-
ing the delay in payment occasioned by an
attempt to secure a revision in a Federal
circuit court of appeals of doubtful ques-
tions of law and fact by an appeal from a
decree of a district court for such wages
and penalties for delay.
[For other cases, see Seamen, In Digest Sup.
Ct. 1908.1
[No. 323.]
Argued April 26 and 26, 1016. Decided May
22, 1916.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for the
Ninth Circuit to review a decree which af-
firmed, with increased penalties, a decree
of the District 0>urt for the Northern Dis-
trict of California in favor of the libellant
in a libel filed by a seaman against a ship-
owner for wages and penalties for default
in pa3rment. Reversed and decree of Dis-
trict Court affirmed.
See same case below, 130 C. C. A. 667,
214 Fed. 513.
The facts are stated in the opinion.
Mr. William R. Harr argued the cause,
and, with Mr. Charles H. Bates, filed a
brief for petitioner.
Mr. James W. Ryan, by special leave,
argued the cause, and, with Mr. John L.
McNab, filed a brief for respondent.
Mr. Justice Holmes delivered the opinion
of the court:
This is a libel in personam for $30.33,
wages and victualing money from Septem-
ber 24 to October 1, 1913, and for a sum
equal to one day's pay for every day dur-
ing which payment had been or should be
delayed. The libel was filed on October
20, 1913. On November 6, 1913, the dis-
trict court entered a decree for $151.59
with interest from the date of its decree,
and $36.25 costs. 209 Fed 264. The
libellee, the present petitioner, appealed,
but without success, and on May 18, 1014,
the decree was affirmed with directions to
add one day's pay for every day since the
141 V. 8.
1015.
PACIFIC MAIL STEAMSHIP CO. v. SCHMIDT.
248-251
former decree. On October 6, 1914, an
order was made by the circuit court of ap-
peals that the petitioner should pay to the
proctor for the appellee the amount of the
judgment of the district court with costs
and proctor's fee as allowed, and should
pay to the clerk of the district court the
additional amount to the date of deposit
of the penalty adjudged to be continuing;
to abide the result of an application to this
•court for a writ of certiorari, and that
upon such payment the running of the
penalty should cease so far as the judg-
ment of the circuit court of appeals was
concerned.
The facta are these: On July 24, 1913,
the libellant shipped as chief steward, under
Articles, from San Francisco to Ancon,
Canal Zone, and such other ports as the
master might direct, and back to a final
port of discharge in San Frhncisco, for a
term of time not exceeding six calendar
months. The vessel returned to San Fran-
cisco [249] on September 23, and on Sep-
tember 24, 1913, the libellant was paid in
full by the shipping commissioner, and that
date noted as the date of termination of
voyage on the articles. As seems to have
been usual, however, the libellant remained
on board, working, and, in the ordinary
course, probably would have signed new
articles for the next voyage, but on October
1 was notified that he was discharged. On
his demanding his wages for his services in
port he was told that silverware to the
amount of $32.90 was missing, that he was
accountable for it, and this sum offset bis
claim. There is no doubt that this offset,
which was alleged again in the pleadings,
was set up in good faith, but as both the
courts below have found that it was not
made out, we assume that it was not
proved.
The statute under which the penalty was
imposed is Rev. Stat. § 4529, as amended by
the act of December 21, 1898, chap. 28, § 4,
30 Stat, at L. 756, Comp. Stat. 1913, §
8320. By that act "the master or owner
of any vessel making coasting voyages
shall pay to every seaman hie wages with-
in two days after the termination of the
Agreement under which he shipped, or at
the time such seaman is discharged, which-
•ever first happens; and in the case of ves-
sels making foreign voyages, or from a port
«n the Atlantic to a port on the Pacific, or
fjtce versa, within twenty-four hours after
the cargo has been discharged, or within
four days after the seaman has been dis-
charged, whichever first happens. . • •
Every master or owner who refuses or neg-
lects to make payment in manner herein-
before mentioned without sufficient cause
«hall pay to the seaman a sum equal to one
«0 Ij. ed«
I day's pay for each and every day during
which payment is delayed beyond the re-
spective periods.'' We assume, not only,
as we have said, that the claim of offset
was not established, but the more doubtful
proposition that it did not furnish sufficient
cause for the delay. We assume, therefore,
that the petitioner did not sufficiently jus-
tify putting the libellant to a suit.
[250] But it is far less clear that the
district court was justified in treating the
case as within the penalties of the act. The
statute deals with voyages. The voyage for
which the libellant shipped was at an end,
viz,, from San Francisco out and back to
that port, or till the end of six months,
whichever first happened. On the return to*
San Francisco within the time the libellant
was paid all that was due to him, and he
himself lays his employment as beginning
in San Francisco on September 25, after
the voyage described in the articles was at
an end. No new articles had been signed,
and it would seem on the allegations of the
libel, coupled with the admitted facts, that
the libellant's legal standing was under an
oral contract for a few days in port while
hoping to be reshipped. It seems to us a
very strong thing to say that any fair
construction of the facts brings the case
within the act. But, as the two courts have
agreed upon this proposition also, and as
the writ would not have been granted to
reopen the inquiry into those particular
facts, we assume that upon this also they
were right.
It is a very different thing, however, to
say that the delay occasioned by the appeal
was not for sufficient cause. Even on the
assumption that the petitioner was wrong,
it had strong and reasonable grouni for
believing that the statute ought not to be
lield to apply. So that the question be-
fore us is whether we are to construe the
act of Congress as imposing this penalty
during a reasonable attempt to secure a
revision of doubtful questions of law and
fact, although its language is "neglect
. • • without sufficient cause." The ques-
tion answers itself. We are not to assume
that Congress would attempt to cut off the
reasonable assertion of supposed rights by
devices that have had to be met by strin-
gent measures when practised by the statea
Ex parte Young, 209 U. S. 123, 52 L. ed.
714, 13 L.R.A.(N.S.) 932, 28 Sup. Ct. Rep.
441, 14 Ann. Cas. 764. There was sufficient
cause for the neglect to pay after the de-
cree of the district court, since the payment
of [861] the ofiginal wages without the
penalty that was reasonably in dispute
would neither have been accepted nor al-
lowed.
Kot only so, but there was further res-
261, 252
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,.
eooable cause for the delay by appeal in the
fact that victualing money was included in
the wages by which the penalty was meas-
ured. Seeing that the petitioner was held
as if the articles still were in force, the
question arises how the wages could be
estimated at more than the articles fixed.
The so^alled port pay which added a dollar
a day for food was an arrangement al-
together outside the articles, and the de-
mand for it and the allowance of it not
only raised a new question, but intensified
the doubt as to how it could be said that
the voyage was not ended and that the pen-
alty could be applied. See Palace Shipping
Ck). V. Caine [1907] A. C. 386, 76 L. J.
K. B. N. S. 1079, 23 Times L. R. 731, 9
Ann. Cas. 526. We shall allow the decree
of the district court to stand, as we have
stated, but there was ample justification for
the appeal, and on both the above grounds
sufficient reason for the delay. We need
not consider whether, if there had been no
such reason, there would be any escape
from Atty. Gen. v. Western U. Teleg. Co.
141 U. S. 40, 35 L. ed. 628, 11 Sup. Ct. Rep.
889, where, under a similar statute, it
seems to have been held that the penalty
stopped with the decree below.
Decree reversed. •
Decree of District Court affirmed.
(26«] TERMINAL TAXICAB COMPANY,
Incorporated, Appt.,
V.
CHARLES W. KUTZ, Oliver P. Newman,
and Louis Brownlow, Commissioners of
the District of Columbia, Constituting as
such Commissioners the Public Utilities
Commission of the District of Columbia,
et al.
(See S. C. Reporter's ed. 252-257.)
Public service corporations — taxicab
company — governmental control.
1. A taxicab company is a common car-
rier within the meaning of the act of
March 4, 1913 (37 Stat, at L. 938, chap.
150), I 8, and hence subject to the juris-
diction of the Public Utilities Commission
of the District of Columbia as a ''public
utility^ in respect of its exercise of its ex-
clusive right under lease from the Wash-
ington Terminal Company, the owner of the
Washington Union Railway station, to so-
licit livery and taxicab business from per-
sons passing to or from trains, and of its
exclusive right under contracts with cer-
NoTB. — On the law governing automo-
biles, generally — see note to Christy v. Elli-
ott, 1 L.R.A.(N.S.) 215.
On the regulation of jitney buses — see
note to Memphis v. State, L.R.A.1916B,
1156.
•84
tain Washington hotels to solicit taxicab
business from guests, but that part of its
business which consists in furnishing auto-
mobiles from its central garage on individ-
ual orders, generally by telephone, cannot
be regarded as a public utility, and the
rates charged for such service are therefore
not open to inquiry by the Commission.
Constitutional law — discrimination -»
governmental control of taxicab com-
pany.
2. The jurisdiction of the Public Utili-
ties Commission of the District of Colum-
bia over a public utility under the act of
March 4, 1913 (37 Stat, at L. 938, chap.
150), § 8, cannot be defeated because such,
jurisdiction has not been assumed over oth-
er similar concerns, where the excuse offered
b^ the Commission is that it did not con-
sider that the omitted concerns did busi-
ness sulliciently large in volume to come
within the meaning of the act, and there is
nothing to impeach the good faith of the
Commission, or to give the concern in-
cluded just cause for complaint.
[For otuer cases, see Coustitatlonal Law, IV..
a, 5, in Digest Sup. Ct. 1U08.J
[No. 348.]
Argued May 2 and 3, 101 G. Decided May
22, 1916.
APPEAL from the Court of Appeals of
the District of Columbia to review a
decree which affirmed a decree of the Su-
preme Court of the District, dismissing the
bill in a. suit to restrain the Public Utilities
Commission from exercising jurisdiction
over the business of a taxicab company.
Modified so as to restrain the exercise of
jurisdiction over the rates charged by the
company at its garage, and as so modified,
affirmed.
See same case below, 43 App. D. C. 120.
The facts are stated in the opinion.
Mr. G. Thomas Dunlop argued the
cause and filed a brief for appellant:
The act in question is essentially a penal
statute, and must be strictly construed.
Butts V. Merchants' & M. Transp. Co. 230'
U. S. 126, 57 L. ed. 1422, 33 Sup. Ct. Rep.
964; United States v. Keese, 92 U. S. 214, 23
L. ed. 563; Com. v. Goldman, 205 Mass. 400,
91 N. E. 392; New York C. & BL R. R. Co. v.
Sheeley, 67 N. Y. S. R. 766, 27 N. Y. Supp.
185; Chicago, R. I. & P. R. Co. v. People, 217
ni. 164, 75 N. E. 368; Fahnestock v. State,
102 Ind. 156, 1 N. £. 372; Marion County
V. Center Twp. 105 Ind. 422, 2 N. E. 368;
Com. V. Macomber, 3 Mass. 254; Com. v.
Barlow, 4 Mass. 439; Meister v. People, 31
Mich. 99, 1 Am. Crim. Rep. 91; Howell v.
Stewart, 54 Mo. 400; State v. Reid, 125 Mo.
43, 28 S. W. 172; State v. Gritzner, 134
Mo. 512, 36 S. W. 39; Rixke v. Western U.
Teleg. Co. 96 Mo. App. 406, 70 S. W. 265;
State ex rel. McPherson v. St. Louis & S. F.
141 V. S»
1015. TERMINAL TAXICAB CO. v. KUTZ.
32 X. E. 044; Atlantic City y. Dehn, 69 N
J. L. 233, 54 Atl. 220; Forbes v. Reinman,
112 Ark. 417, 61 LJIJ^.(N.S.) 1164, 166 S.
W. 563; Orr v. Boockholdt, 10 Ala. A pp.
331, 65 So. 430; Tap Line Cases (United
States V. Louisiana & P. R. Co.) 234 U. S.
1, 24, 58 L. ed. 1185, 1104, 34 Sup. Ct. Rep.
741.
The livery service for which the hotel
contracts, as in this case, is strictly a pri-
vate service, and not such as the public has
R. Co. 105 Mo. App. 207, 79 S. W. 714;
Pollard v. Missouri & K. Teleph. Co. 114 Mo.
App. 533, 90 S. W. 121; McCormick Har-
vesting Mach. Co. V. Mills, 64 Neb. 166, 80
N. W. 621 ; State v. Dailey, 76 Neb. 770, 107
N. W. 1004; Health Dept. v. Owen, 94 App.
Div. 425, 88 N. Y. Supp. 184, affirming 42
MUc. 221, 85 N. Y. Supp. 397; First Nat.
Bank v. National Live Stock Bank, 13 Okla.
710, 76 Pac. 130.
And this is true even though the statute
itself provides in a general way that it is an interest in.
to be liberally construed. Wyinan, Pub. Serv. Corp. § 499.
O'Connor v. State, — Tex. Civ. App. ^, So far as its contract with the Washing-
71 S. W. 400. ton Terminal Company is concerned, and the
It would seem to be evident from the service which it thereby supplies at the
general scope and purposes of the act in Union Station, it is such a private service,
question that it was never intended by under the complete control of the Wash-
Congress to apply to such concerns as taxi- ington Terminal Company, as is sanctioned
cab or livery companies and proprietors. In by law in the line of cases of which Don-
brief, the act in question has no relevancy ovan v. Pennsylvania Co. 199 U. S. 279, 50
or pertinency to such concerns as the taxi- L. ed. 192, 26 Sup. Ct. Rep. 91, is the lead-
cab companies here, and the business in Ing and conclusive authority,
which they are engaged. If the act is to be construed as permitting
Omaha k C. B. R. Co. y. Interstate Com- the Commission to single out the appellant
merce Commission, 230 U. S. 324, 57 Lb ed. company for regulation and control from
1501, 46 L.RJk.(N.S.) 385, 33 Sup. Ct. Rep. among others ^f the same class, it is uncon-
890; New York C. & H. R. R. Co. v. Sheeley, stitutional and void.
57 N. Y. S. R. 766, 27 N. Y. Supp. 185; Yick Wo v. Hopkins, 118 U. S. 371, 874,
Brown v. New York C. & H. R. R. Co. 75 30 L. ed. 226, 227, 6 Sup. a. Rep. 1064;
Hun, 355, 27 N. Y. Supp. 69; Yellow Taxi- Williams ▼. Mississippi, 170 U. S. 225, 42 L.
cab Co. V. Gaynor, 82 Misc. 94, 143 N. Y. ed. 1016, 18 Sup. Ct. Rep. 583; Cotting v.
Supp. 279, affirmed in 150 App. Div. 893, Kansas City Stock Yards Co. (Cotting v.
144 N. Y. Supp. 299. Goddard) 183 U. S. 79, 46 L. ed. 92, 22 Sup.
To be a common carrier the person or cor- Ct. Rep. 30.
poration must exercise the business of car- •», ^ ^ w o ^ a au^ ««.,.^
*^. ... 1 «. A J — A Mr. Conrad H. Syme argued the cause
rymg as a pubhc employment, and must for aDoelle^-
undertake to carry goods (or passengers) "J,^^!? * ^"«"<>r.»PPeiiees.
for all persons indiscriminately. ^he Tennmal Taxicab Company, by rea-
The Neaffie, 1 Abb. (U. S.) 465, Fed. Cas. ^"^ ">{ **** "**"IS '" -^^^"^ ^/ A ^t
No. 10,063; Ivins & Mason, Control of Pub- "^' ^.,T^**^i" the jurisdiction of the Pub-
lie Utilities, p. 35; 6 Cyc. 364, 639; Faucher ^^ ^tihties Commission, and "ubject to its
V. WiUon, 68 N. H. 338, 39 L.ILA. 431, 38 ^^^ ^^^^ *^« P"*>^c utilities law.
AtL 1002; Allen v. Sackrider, 37 N. Y. Hargrave's Law Tracts, 78; Munn v. Uli-
342; Meisner v. Detroit, B. I. &, W. Ferry nois, 04 U. S. 123, 24 L. ed. 83; Budd v.
Co. 154 Mich. 546, 19 L.RJk.(N.S.) 873, 129 New York, 143 U. S. 517, 36 L. ed. 247, 4
Am. St. Rep. 403, 118 N. W. 14; The Wil- Inters. Com. Rep. 46, 12 Sup. Ct. Rep. 468;
denfels, 80 C. C. A. 58, 161 Fed. 864; Central German Alliance Ins. Co. v. Lewis, 233 U. S.
of Georgia R. Co. v. Lippman, 110 Ga. 665, 339, 58 L. ed. 1011, L.RJk.l915C, 1189, 84
60 LJI.A. 673, 36 8. E. 202, 8 Am. Neg. Rep. gup. Ct. Rep. 612; Shepard v. Milwaukee
13; Trout v. Watkins Livery & Undertak- Gaslight Co. 6 Wis. 639, 70 Am. Dec 479;
ing Co. 148 Mo. App. 621, 130 S. W. 136; g^^y^^^ ^ Consolidated Gas Co. 130 U. S. 396,
Varble T Biglcy, 14 Bush, 698, 29 Am. Rep. 3^ ^^ ^ ^^^ ^ g ^ ^ 553. g^^u ^^
433; Fish v. Chapman, 3 Ga 363, 46 Am. ^^^.^ Li^ ^^^ ^ p ^ ^^ ^
5^- n ini'"' B;i^d'^ mi« 8 C^ t P «26, 58 L.R^. 284:89 Am. St. Rep. 841, 63
103, D. note; Brmd v. Dale, 8 Uir. a r. * ' r^ t^M ^
207 2 Moody & R. 80; Ross v. HiU, 2 C. B. N. E. 1082; Cross y. Andrews, Cro.Eliz.pt.
877, 3 Dowl. & L. 788, 15 L. J. C. P. N. S. 2, P- «22; Albion Lumber Co. ▼. De Nobra,
182, 10 Jur. 435; Moore, Carr. pp. 20, 60, 19 C. C. A. 347, 44 U. S. App. 847, 72 Fed.
§1 1, 21; Hutchinson, Carr. 3d ed. g 67, p. 739; Lloyd v. Haugh A K. Storage &, Trans-
63; Wyman, Pub. Serv. Corp. § 107; Bur- fer Co. 223 Pa. 148, 21 L.ILA.(N.S.) 188, 72
lington V. Unterkircher, 99 Iowa, 401, 68 AtL 616; Sears ▼. Eastern R. Co. 14 Allen,
N. W. 705; Copeland ▼. Draper, 167 Mass. 433, 92 Am. Dec. 780; Schloss ▼. Wood, 11
668, 19 UEUL 283, 34 Am. St Rep. 314, Colo. 2fr7, 17 Pac 910.
•0 li. ed. ••*
253-255
SUPREME COURT OF THE UNITED STATES.
Oct. Tsbm,
Mr. Justice Holmes delivered the opin-
ion of the court:
This is a suit to restrain the Public Utili-
ties Commission of the District of Columbia
from exercising Jurisdiction over the plain-
tiff. The Commission was created and its
powers established bj a section (| 8) of
an appropriation act, divided into num-
bered paragraphs. Act of March 4, 1913,
chap. 150, i 8, 37 SUt. at L. 938, 974. By
f 2 of the section "every public utility is
hereby required to obey the lawful orders
of the Commission," and by f 1 "public
utility" embraces every common carrier,
which phrase in turn is declared to include
''express companies and every corporation
. . . controlling or managing any agency
or agencies for public use for the convey-
ance of persons or property within the
District of Columbia for hire." Steam
railroads, some other companies, and the
Washington Terminal Company, are declared
not to be within the words. The main
question is whether the plaintiff is a com-
mon carrier under the definition in the act.
The bill was dismissed by the supreme
court, and the decree was affirmed by the
court of appealsi 43 App. D. C. 120.
The facts are agreed. The plaintiff is a
Virginia corporation, authorized by its
charter, with copious verbiage, to build,
buy, sell, let, and operate automobiles, taxi-
cabs, and other vehicles, and to carry pas-
sengers and goods by such vehicles; but not
to exercise any of the powers of a public
service corporation. It does business in the
District, [264] and the important thing is
what it does, not what its charter says.
The first item, amounting to about thirty-
five hundredths of the whole, is done under
a lease for years from the Washington Ter-
minal Company, the owner of the Union
Railroad Station in Washington, which we
have mentioned as excluded from the defi-
nition of common carriers. By this lease
the plaintiff has the exclusive right to soli-
cit livery and taxicab business from all
persons passing to or from trains in the
Union Station, and agrees in its turn to
provide a service sufficient in the judgment
of the Terminal Company to accommodate
persons using the station, and is to pay
over a certain percentage of the gross
receipts. It may be assumed that a person
taking a taxicab at the station would con-
trol the whole vehicle both as to contents,
direction, and time of use, although not, so
far as indicated, in such a sense as to
make the driver of the machine his servant,
according to familiar distinctions. The
last facts, however, appear to be immaterial
and in no degree to cast doubt upon the
plaintiff's taxicaSs, when employed as above
stated, being a public utility by ancient
•86
usage and understanding (Munn v. Illinois,
94 U. S. 113, 125, 24 L. ed. 77, 84), as weU
as common carriers by the manifest mean-
ing of the act. The plaintiff is "an agency
for public use for the conveyance of per-
sons," etc.; and none ths less that it only
conveys one group of customers in one ve-
hicle. The exception of the Terminal Com-
pany from the definition of common carriers
does not matter. The plaintiff is not its
servant and does not do business in its
name or on its behalf. It simply hires
special privileges and a part of the sta-
tion for business of its own.
The next item of the plaintiff's business,
constituting about a quarter, is under con-
tracts with hotels by which it agrees to fur-
nish enough taxicabs and automobiles with-
in certain hours reasonably to meet the
needs of the hotel, receiving the exclusive
right to solicit in and about [256] the
hotel, but limiting its service to guests of
the hotel. We do not perceive that this
limitation removes the public character of
the service, or takes it out of the definition
in the act. No carrier serves all the public
His customers are limited by place, require-
ments, ability to pay, and other facts. But
the public generally is free to go to hotels if
it can afford to, as it is free to travel by
rail, and through the hotel door to call on
the plaintiff for a taxicab. We should hes-
itate to believe that either its contract or
its public duty allowed it arbitrarily to re-
fuse to carry a guest upon demand. We
certainly may assume that in its own in-
terest it does not attempt to do so. The
service affects so considerable a fraction of
the public that it is public in the same sense
in which any other may be called so. Ger-
man Alliance Ins. Co. v. Lewis, 233 U. S.
389, 58 L. ed. 1011, L.RJL.1915C, 1189, 34
Sup. Ct. Rep. 612. The public does not
mean everybody all the time. See Peck v.
Tribune Co. 214 U. S. 185, 190, 53 L. ed.
960, 962, 29 Sup. Ct. Rep. 554, 16 Ann. Cas.
1076.
The rest of the plaintiff's business,
amounting to four tenths, consists mainly in
furnishing automobiles from its central
garage on orders, generally by telephone.
It asserts the right to refuse the service, and
no doubt would do so if the pay was uncer-
tain, but it advertises extensively, and, we
must assume, generally accepts any seeming-
ly solvent customer. Still, the bargains are
individual, and however much ^ey may
tend towards uniformity in price, probably
have not quite the mechanical fixity of
charges that attends the use of taxicabs
from the station and hotels. There is no
contract with a third person to serve the
public generally. The question whether, as
to this part of its business, it is an ageocy
141 V. 8.
1915.
AMERICAN WELL WORKS CO. ▼. LAYNE & BOWLER CO.
25^257
for public use within the meaning of the
«tatute, is more difficult. Whether it is or
not, the jurisdiction of the Commission is
established by what we have said, and it
would not be necessary to decide the ques-
tion if the bill, in addition to an injunc-
tion against taking jurisdiction, did not
pray that order No. 44 of the Commission be
declared void. That order, [256] after de-
claring that the plaintUf was engaged in the
business of a common carrier within the
meaning of the act, and so was within the
jurisdiction of the Commission, required the
plaintiff to furnish the information called
for in a circular letter of April 12, 1013.
What this information was does not appear
with technical precision, but we assume
that it was in substance similar to a later
requirement of a schedule showing all rates
and charges in force for any service per-
formed by the plaintiff within the District,
or any service in connection therewith. If
we are right, this demand was too broad
unless the business from the garage also
was within the act. There is no such con-
nection between the charges for this last and
the others as there was between the facts
required and the business controlled in In-
terstate Commerce Commission v. Goodrich
Transit Co. 224 U. S. 194, 211, 56 L. ed.
729, 736, 32 Sup. Ct. Rep. 436. Although
I have not been able to free my mind from
doubt, the court is of opinion that this
part of the business is not to be regarded
as a public utility. It is true that all busi-
ness, and, for the matter of that, every life
in all its details, has a public aspect, some
bearing upon the welfare of the community
in which it is passed. But, however it may
have been in earlier days as to the common
callings, it is assumed in our time that an
invitation to the public to buy docs not
necessarily entail an obligation to sell. It
is assumed that an ordinary shopkeeper may
refuse his wares arbitrarily to a customer
whom he dislikes, and although that con-
sideration is not conclusive (233 U. S. 407),
it is assumed that such a calling is not pub-
lic as the word is used. In the absence of
clear language to the contrary it would be
assumed that an ordinary livery stable
stood on the same footing as a common
shop, and there seems to be no difference be-
tween the plaintiff's service from its gar-
age and that of a livery stable. It follows
that the plaintiff is not bound to give in-
formation as to its garage rates.
[867] Complaint is made that jurisdic-
tion has not been assumed over some other
concerns that stand on the same footing as
the plaintiff. But there can be no pretense
that the act is a disguised attempt to cre-
ate preferences, or that the principle of Yick
Wo y. Hopkins, 118 U. S. 356, 30 L. ed. 220,
•0 Ia. ed.
6 Sup. Ct. Rep. 1064, applies. The ground al-
leged by the Commission is that it did not
consider that the omitted concerns did busi-
ness sufficiently large in volume to come
within the meaning of the act. There is
nothing to impeach the good faith of the
Commission, or to give the plaintiff just
cause for complaint. The decree, so far as
it asserts the jurisdiction of the Commis-
sion, is affirmed, but it must be modified so
to restrain an inquiry into the rates charged
by the plaintiff at its garage, or the exer-
cise of jurisdiction over the same.
Decree modified as above set forth.
AAIERICAN WELL WORKS COMPANY,
Plff. in Err.,
V.
LAYNE & BOWLER COMPANY and Mah-
lon E. Layne.
(See S. C. Reporter's ed. 257-260.)
Federal courts — jurisdiction — salt
arising under patents.
A suit by the owner, manufacturer,
and seller of a pump, who alleges that he
has, or has applied for, a patent therefor,
to recover the damages caused to his busi-
ness by defendant's libel or slander of his
title by statements to various persons that
plaintiff was infringing defendant's patent,
and that defendant would sue both seller
and buyer if the plaintiff's pump was used,
arises under the law of the state rather
than under the patent laws of the United
States, and is therefore not within the ex-
clusive jurisdiction of the Federal courts.
[For other cases, see Courts, 053-069, in Di-
gest bup. Ct. 11)08. J
[No. 376.1
Argued and submitted May 5, 1916. De-
cided May 22, 1916.
IN ERROR to the District Court of the
United States for the Eastern District
of Arkansas to review an order dismissing
a suit for want of jurisdiction on the
ground that the state court from which the
case had been removed vras without juris-
diction because the cause of action arose
under the patent lavrs. Reversed.
The facts are stated in the opinion.
Mr. David A. Gates submitted the cause
for plaintiff in error:
The only question to be decided in this
cause is whether or not plaintiff's suit is
one arising under the patent laws of the
United States. If it is, we concede that the
state circuit court had no original jurisdic-
tion, and that the ruling of the district
court was right. If it is not, the state cir-
cuit court had jurisdiction, and tlie ruling
SS8,-2ro SUPREME COURT OF THE IWITED STATES. On. Ton
of the district court waa error, caJIins lor U. S. 282, 40 L. ed. BIO, 22 Sup. Ct. Rep.
merial. 681 ; Rupp t W. Co. t. Elliott, «fi C. C. A.
Cftrleton t. Bird, S4 Me. 182, 47 Atl. 154; Mi, 131 Fed 732; Atberton Mach. Oo. t.
Excelsior Wooden Pipe Co. v. PftciQc Bridge Atwood-Uorriaoo Co. 43 C. C. A. 72, 10*
Co. 185 U. S. 286-205, 4S L. ed. B13-917, 22 Fed. S48.
Sup. Ct. Rep. 681; Flint v. Hutchinson
Smoke Burner Co. 38 Fed. 646; He»ly v. Mr. JusUce Holmea delWered the opin-
Se* GuK Specialty Co. Z37 U. 8. 479, 69 L. ion of the court-
ed. 1056, 36 Sup. Ct. Rep. 658; Celluloid ji,i, j^ . „it b^g^ in a rtata court, re-
Mfg. Co. y. Goodyear Dental Vulcanite Co. ^oved to the United States court, and then,
13 Blatchf. 375, Fed. Cai. No. 2,643; Pratt ^n motion to remand by the plaintiff, dii-
T. Paris Gaslight 4 Coke Co. 108 U. S. 265, n,i„ed by the latter court, on the ground
42 L. *d. 468. 18 Sup. «. Rep. 62; The Fair that the cauiie of action arose under the pat-
T. Kohler Die & Specialty Co. 228 U. S. 22, e^t la»B of the United States, that the
«7 L. ed. 7IG, 33 Sup. a. Rep. 410; Wade v. ^^tU court had no iurisdiction, and that
Uwder, 165 U. S. 626, 41 L. ed. 851. 17 therefore the one to which it wm removed
Sup. Ct. Rep. 426. Ind none. There is a pnjper eertiflcate and
Th« case is not one arising under the the caM comes here direct from the dU-
patent laws of the United States. trict court.
Flint V. Hutchinson Smoke Burner Co. 38 Of course the question depends upon the
Fed. 546; Carl«ton v. Bird, 94 Me. 182, 47 plaintiff's declaration. The Fair v. KoLler
AtL 164 ; Pratt t. Paris Gaslight t Coke Co. uie & Specialty Co. 228 U. S. 22. 26, 57 U
168 U. S. 255, 42 L. ed. 458, 18 Sup. Ct. Rep. ed. 716, 717, 33 Snp. Ct. Rep. 410. That
62; Excelsior Wooden Pipe Co. v. Paciflc may be summed up in a few wonU. The
Bridge Co. 186 U. S. 286-295, 46 L. ed. D13- piaintitT alleges that it owns, m»nufs«tur«i,
917, 22 Sup. Ct. Rep. 681; Wade v. Lawder, and sells a certain pump, has or has applied
166 V. S. 625, 41 L. ed. 861, 17 Sup. Ct. Rep. for a patent for it, and that the pump i»
425; The Fair v. Kohler Die ft Specialty Co. known as the best in the market. It then
228 U. S. 22, 67 L. ed. 716. 33 Sup. Ct. Rep. allege* that the defendants have falsely and
410; Healy t. Sea Guli Specialty Co. 237 maliciously libeled and slandered the pUin-
U. S. 47B, 6B L. ed. 1068, 35 Sup. Ct. Rep. tir* title to the pump by stating that the
658; Briggs v, United Shoe Machinery Co. pump and certain parts thereof are infringe-
2SB U. S. 48, ants, 138, 36 Sup. Ct. Rep. 6. menU upon the delendant'a pump and oer-
Mr. P»iil Synuestvedt argued the cause, '*'"' P"^ thereof, and that without prob-
Uid, with Messrs. J. M. Moore and Coke K. *'>'• <»i« ^^'y "'^^ brought suits against
Burna, filed a brief for defendanta in error: *»"* ^"*-}''^}"i^"' "''"? ""f &^^;
The cause of action ..t up in the com- P""P. "°d that they .re threatening smt*
pUint ari«» under the patent law. of the T'"! , a '*" TJ "l '^^^^
TT 1 J c. . the defendants libel or slaDder is re
United States. ^. ^ , ^ peated in slightly varying torn., but it all
«?°Tf ."■ T'^.J.'Pfrf'i*^' ^^ ^- ^- «■"" to sUtem^U te vfriou. people that
l^'J,,^^^\^J ^l^t^^ '■ ^'^■'- "" P'»^*'«' ™ infringing the def«danU-
21 W.U. 206 22 L. ed^677i Moyes v Stir- j^^ ^„j y^t thedefen^t [268 J would
^n n o l'^- f?V P?^'^' »■ Mefrj^l. lo ^. both seller and buyer if the pUintir.
"■*^o-^-.^\f'.^H"^:?"/f»^/^,^°^„" pump was used. Actual damag^ to the
year Dental Vulc.mte Co. 13 Bhjtchf. 382. J,^- P,^ ,^ ,^^ ^^^^^ i, ^,^^ tl., ^.
F«l. C... No. 2,543; Fbnt V Hutehinson ^ , ^ .^^^ ^^^^^^^^ t^
Smoke Burner Co. 38 Fed, 540; American ,^ \ u j
Solid Leather Button Co. v. Empire SUte ^^''T"' .'"T.l ■.".^" w , .
Nail Co. 47 Fed. 741; Germ Proof Filter Co. " » "«1*°' ">"* '•"* "'''" '"^ '"'"•if
T. Pasteur Ch.mherUnd Filter Co. 81 Hun, '' b»»«' "PO" induct; or. more ^wciflcally,
49. 30 N. Y. Supp. 584; Pratt v. Paris Ga«- l»upi»«e. tending to persuade the public ti>
light & Coke Co. 168 U. S. 2SB, 42 L. ed. 480. withdraw its custom from the plaintiff, and
18 Sup, Ct. Rep. 62; Brown v. Shannon, 20 having that effect to its damage. Such cn-
How. 56, 16 L. ed. S27; New Marshall En- duct, having such effect, is equally actioa-
gine Co. v. Marshall Engine Co. 223 U, S. ahle whether it produces the result by per-
473, 66 L. ed. 613, 32 Sup. Ct. Rep. 238. suasion, by threats, or by falsehood {Moian
An action which raise* a question of in- r. Dunphy, 177 Bfass. 486, 487, 52 L.R.A.
fringement is a ease arising under the Fed- 115, 83 Am. St. Rep. 289, 69 N. E, 125), and
eral laws. it is enough to allege and prove the conduct
Linlefield t. Perry, 21 Wall. 205, 22 L. and effect, leaving the defendant to justify
•d. 677; White v, Rankin, 144 U. S. 628. 36 if he can. If the conduct complained of ift
L, ed. 669, 12 Sup. Ct. Rep. 768; Excelsior persuasion, it may be justified by the fset
Wooden Pipe Co. v. Pacific Bridge Co. 185 that the defendant is a competitor, or bj-
#«« *41 U. S.
1915.
LOUISVILLE & N. R. CO. v. STEWART.
259-261
^ood faith and reasonable grounds. If it
is a statement of fact, it may be justifiedi
absolutely or with qualifications, by proof
that the statement is true. But all such
justifications are defenses, and raise issues
that are no part of the plaintiff's case. In
the present instance it is part of the plain-
tiff's case that it had a business to be dam-
aged; whether built up by patents or with-
out them does not matter. It is no part of
it to prove anything concerning the defend-
ants' patent, or that the plaintiff did not
infringe the same— still less to prove any-
thing concerning any patent of its own.
The material statement complained of is
that the plaintiff infringes, — which may be
true notwithstanding the plaintiff's patent.
'That is merely a piece of evidence. Furtner-
jnore, the damage alleged presumably is
rather the consequence of the threat to sue
than of the statement that the plaintiff's
pump infringed the defendants' rights.
A suit for damages to business caused
"by a threat to sue under the patent law is
not itself a suit under the patent law. And
the same is true when the damage is caused
by a statement of fact, — that the defendant
has a [260] patent which is infringed. What
makes the defendants' act a wrong is its
manifest tendency to injure the plaintiff's
liusiness; and the wrong is the same what-
ever the means by which it is accomplished.
But whether it is a wrong or not depends
upon the law of the state where the act is
•done, not upon the patent law, and there-
fore the suit arises under the law of the
state. A suit arises under the law that cre-
ates the cause of action. The fact that the
justification may involve the validity and
infringement of a patent is no more materi-
al to the question under what law the suit
is brought than it would be in an action of
contract. If the state adopted for civil pro-
ceedings the saying of the old criminal law :
the greater the truth, the greater the libel,
the validity of the patent would not come in
<luestion at all. In Massachusetts the truth
would not be a defense if the statement was
made from disinterested malevolence. Rev.
Laws, chap. 173, § 91. The state is master
of the whole matter, and if it saw fit to do
away with actions of this type altogether,
no one, we imagine, would suppose that tliey
still could be maintained under the patent
laws of the United States.
Judgment reversed.
Mr. Justice McKenna dissents, being of
opinion that the case involves a direct and
substantial . controversy under the patent
laws.
40 Ij. ed.
[261] LOUISVILLE &, NASHVILLE
RAILROAD COMPANY, Plff. in Err.,
V.
JEANETTE STEWART, as Administra-
trix of the Estate of William H. Stewart,
Deceased. (No. 485.)
JEANETTE STEWART, as Administra-
trix of the Estate of William H. Stewart,
Deceased, Plff. in Err.,
V.
LOUISVILLE k NASHVILLE RAILROAD
COMPANY. (No. 904.)
(See S. C. Reporter's ed. 261-264.)
Error to state court — second appeal —
relnstatincr verdict at first trial.
1. A verdict found on the first trial of
an action for death under the Federal em-
ployers' liability act of AprU 22, 1908 (35
Stat, at L. 65, chap. 149, Comp. Stat. 1913,
§ 8657), upon an instruction that the jury
should find, if anything, ''such a sum as
will fairly compensate his estate for his
death," cannot be reinstated b^ the Federal
Supreme Court on a cross writ of error to
a state court of last resort which, having
set aside a verdict for plaintiff, rendered on
the first trial, and the judgment based upon
it, affirmed, on a second appeal, a judg*
ment for plaintiff in a lesser amount, ren-
dered on the second trial.
[For other cases, see Apoeal and Error, YIII.
m, 1, in Digest Sup. Ct. 1908.]
Jury ^ Infringement of right ^ non-
nnanlmons verdict — action under
Federal statute.
2. The requirement of U. S. Const. 7th
Note. — On error to state court in cases
arising under the Federal employers' liabil-
ity act — see note to Great Northern R. Co.
T. Knapp, ante, 745.
On number and agreement of jurors
necessary to constitute a valid verdict — see
notes to State v. Bates, 43 L.RA>. 33, and
Silsby V. Foote, 14 L. ed. U. S. 394.
On the constitutionality, application, and
effect of the Federal employers' liability
act — see notes to Lamphere v. Oregon R. &
Nay. Co. 47 L.RA..(N.S.) 38, and Seaboard
Air Line R. O}. v. Horton, L.RJL.1915C,
47.
Cenerally, as to a servant's assumption
of risk — see notes to Pidcock v. Union F. R.
Co. 1 L.R.A. 131; Foley v. Pettee Mach.
Works, 4 L.R.A. 61; Howard v. Delaware
& H. Canal Co. 6 L.R.A. 75; Hunter v. New
York, 0. & W. R. Co. 6 L.R.A. 246 ; Georgia
P. R. Co. V. Dooly, 12 L.R.A. 342; Kehler
Y. Schwenk, 13 L.RA. 374, and Southern P
Co. V. Seley, 38 L. ed. U. S. 391.
On volenti non fit injuria as defense to
action by injured servants — see note to
O'Maley v. South Boston Gaslight O}. 47
L.R.A. 161.
As to whether servant may assume the
rick of dangers created by the master's
negligence — see note to Scheurer t. Banner
Rubber Co. 28 LJIA..(N.S.) 1216.
SUPREME COURT OF THE UNITED STATES.
Oct. Tebh^
Amend., that trials by jury be according to
the course of the common law, i, e., by a
unanimous verdict, does not control th?
state courts, even when enforcing rights
under a Federal statute like the employers'
liability act of April 22, 1008 (35 Stat, at
L. 65, chap. 140, Comp. Stat. 1013, § 8657 ) ,
and such courts may therefore give effect,
in actions under that statute, to a local
practice permitting a less than unanimous
verdict.
[For otber cases, see Jury, I. d, 2, in Digest
6up. Ct. 1008.]
Appeal — supersedeas — damages on
affirmance — employers* liability.
3. Ten per cent damages may be added
by a state court of last resort in affirming
a judgment for plaintiff in an action un-
der the Federal employers' liability act of
April 22, 1008 (35 Stat, at L. 65, chap.
140, 0>mp. Stat. 1013, § 8657), where the
defendant obtained a supersedeas, and the
local law makes 10 per cent the cost of it
to all persons if the judgment is affirmed.
[For other cases, see Appeal and Brror, IX.
b, In Digest Sup. Ct. 1908.]
Appeal — Interest on judgment — em-
ployers' liability.
4. Interest may be allowed by a state
upon a judgment for plaintiff under the
Federal employers' liability act of April 22,
1008 (35 SUt. at L. 65, chap. 140, Comp.
Stat. 1013, § 8657), from the time when it
was rendered if it provides appellate pro-
ceedings and the judgment is affirmed, as,
but for such proceedings, interest would
run as of course until the judgment was
paid.
[For other cases, see Appeal and Brror, IX.
g. in Digest Sup. Ct. 1008.]
Error to state court — following deci-
sion below — question for jury.
5. The refusal of a state trial court,
sustained by the state court of last resort,
to take from the jury an action under the
Federal employers' liability act of April
22, 1008 (35 Stat, at L. 65, chap. 140,
Comp. Stat. 1013, § 8657), by directing a
verdict for defendiant, will not be disturbed
by the Federal Supreme Court on writ of
error unless clearly erroneous.
[For other cases, see Appeal and Brror, VIII.
m, 6, in Digest Sap. Ct. 1008.]
Trial — instructions — assumed risk —
employers' liability.
6. An instruction that a freight engi-
neer assumed the risk, under the employers'
liability act of April 22, 1008 (35 SUt. at
It. 65, chap. 140, Comp. SUt. 1013, § 8657),
of shock from the sudden application of
the air brakes by the rear brakeman while
the train was backing on a siding, if the
application of the brakes was made upon a
reasonable belief that it was necessary to
apply them in order to avoid injury to prop-
erty, is properly qualified by excepting the
case of an emergency brought about by the
railway company's employees in the negli-
gent operation of the train before the
brakes were applied, where the jury might
have found that the conductor did not man-
•90
age the train with due care, and so made*
the application of the brakes necessary.
[For otber cases, see Trial, VII. a. In Digest
Sup. Ct. 1008.]
[Kos. 485 and 004.]
Argued April 10 and 20, 1016. Decided
May 22, 1016.
CROSS WRITS of Error to the Court ot
Appeals of the SUte of Kentucky to*
review a judgmoit which, on a second ap-
peal, affirmed a judgment of the Circuit
Court of Warren County, in that sUte, iiv
favor of plaintiff in an action imder the
Federal employers' liability act. Affirmed.
See same case below, first appeal, 156-
Ky. 550, 161 S. W. 557, 157 Ky. 642, 163-
S. W. 755; second appeal, 163 Ky. 823, 174
S. W. 744.
The facU are sUted in the opinion.
Mr. Benjamin D. Warfleld argued the
cause, and, with Messrs. James C. Sims and
John B. Rodes, filed a brief for the Louis-
ville & Nashville Railroad Company:
There is no provision in the Federal em-
ployers' liability act authorizing the allow-
ance of interest and damages in addition to-
compensation for loss of pecuniary benefiU.
We may not piece out this act of Congress-
by resorting to the local statutes of the sUte
of procedure or that of the injury.
Michigan C. R. Co. v. Vreeland, 227 U. S.
50, 66, 57 L. ed. 417, 410, 33 Sup. Ct. Rep.
102, Ann. Cas. 1014C, 176.
If the Federal sUtute was applicable, the
sUU sUtuta was excluded by reason of the
supremacy of the former under the national
Constitution.
Second Employers' Liability Casea
(Mondou v. New York, N. H. & H. R. Co.)
223 U. S. 1-53, 56 L. ed. 327-347, 38-
LJl»^.(N.S.) 44, 32 Sup. Ot. Rep. 160, 1
N. C. C. A. 875; Michigan C. R. Co. v. Vree-
land, supra; St. Louis & S. F. R. Co. v.
Seale, 220 U. S. 156, 158, 57 L. ed. 1120^
1133, 33 Sup. Ct. Rep. 651, Ann. CaM. 1014C,.
156; Winfield v. New York C. & H. R. R,
Co. 216 N. Y. 284, L.R.A. — , — , 110 N. EL
614, Ann. Cas. 1016A, 817, 10 N. C. O. A.
016.
The Federal employers' liability act may
not be supplemented by sUte law so as to>
authorize danu&ges and interest such as is-
authorized by the law of the state in which
the case is tried.
Norton v. Erie R. Co. 163 App. Div. 468,.
148 N. Y. Supp. 771.
There is no evidence that Stewart was in-
jured as a result of the negligence of the
defendant, and a peremptory instruction to>
find in its favor shoiild have been given.
And this is a Federal questicm.
St. Louis, I. M. & S. R. Co. v. McWhirter^
241 V. S»
1016. Louisvim; & n. r. co. ▼. stewakt.
229 U. B. 265, 57 L. ed. 1170, 33 Sup. Ct. aion (Seaboard Air line R. Co. ». Horton,
Kep. 8S8; Seaboard Air Line R. Co. v. 233 U. S. 402, 58 L. ed. 1062, L.ILA.1015C,
Padgett, 236 U. 8. 6GB, SO L. ed. 777, 3E 1, 34 Sup. Ct. Rep. S3o, Ann. Cm. 1016B,
Sup. Ct. Rep. 481; Seabo&rd Air Line R. 475, 8 N. C. C. A. 834; Soaboard Air Line
Co. V. Moore, 228 U. S. 434, 67 L. ed. 907, R. Co. v. Pad^U, 236 U. 8. 668, SO L. ed.
33 Sup. CL Rep. 680; Central Vermont R. 777, 35 Sup. Ct. Rep. 481). But for the
Co. V. Whit«, 238 U. S. 507, 69 L. ed. 1433, erroneous ruling o{ the trial court in aub-
35 Sup. Ct. Rep. 666, Ann. Caa. 1916B, 252, mitting the caac to the jury as to Hill, the
9 N. C. C. A. 2SS; Atlantic Coast Line R. result of tlie action of the jur; might have
Co. T. Bumette, 239 U. 8. ISO, ante, 226, 36 been dilTerent (North Caroliui R. Co. v.
Sup. Ct Rep. 76; North Carolina. R. Co. t. Zachary, 232 U. S, 24S, 2o6, 58 L. ed. 501,
Zachary, 232 U. S. 248, 68 L. ed. 5Q1, 34 504, 34 Sup. Ot. Rep. 305, Ann. Cat. 1914C,
Sup. Ct Rep. 305, Ann. Caa. 1914C, 160, 9 159, 0 N. C. C. A. 100).
H. C. O. A. 100 ; Seaboard Air Line R. Co. The ceee should not have been aubmitted
T. Duvall, 225 U. S. 477, 66 L. ed. 1171, 32 to the jurf aa to Jones. Even if he should
Sup. Ct Rep. 790; St Louis, I. M. & S. R. not have aignnled the train back until
Co. V. Taylor, 210 U. S. 2BI, 52 L. ed. 1061, Hill had thrown the south ev/ltch for the
26 Sup. Ct. Rep. 616, 21 Am. Neg. Rep. 464. main track, and even though this would
The Federal employers' liability act made \i;\\i' benn nci^ligoncc as to some other per-
no change in the substantive law ot negli- i^uii if he had been injured, it was not
gence. Actionable negligence for which the negligence as to Stewart, because: (a) the
master is liable must be proved since, just risk of being injured front that cause was
as before, the act. one which Stewart assumed in enter-
Seaboard Air Line R. Co. *. Hortou, 233 ing and remaining in defendant's serv-
U. S. 402, 601, 58 L. ed. 1062, 106S, L.R.A. ice; and (b) the injury to Stewart was
1015C, 1, 34 Sup. Ct. Rep. 636, Ann. Cas. one which Jones could not reasonably have
1015B, 475, 6 N. C. C. A. 834. foreseen as a consequence of his causing the
In an action by a servant to recover dam- train to be bar)^cd.
agea for injuries while in the master's em- St. Louis &, S. F. R. Co. v. Conarty, 238
ployment, there is no presumption that the U. S. 243, 59 L. ed. 1200. 35 Sup. Ct. Rep.
master waa negligent. The doctrine res ipsa 785 ; St. Louis, I. M. & S. R. Co. v. Mc-
loquitur is not applicable. Whirter, 229 U. S. 205, 57 L. ed. 1170, 33
Patton v. Texas * P. R. Co. 170 U. S. 658, Sup. Ct. Rep. 868.
45 L. ed. 361, 21 Sup, Ct. Rep. 273; Texas The matter of diminishing the damasea
ft P. R. Oo. ». Barrett, 186 U. S. 817, 41 was commitkd to the jury without naming
L. ed. 1136, 17 Sup. Ct. Rep. 707, 1 Am. any stnndard to which their action should
Neg. Rep. 746 ; Seaboard Air Line R. Co. v. conform other than their own conception
Moore, 228 U. S. 433, 67 L. ed. 007, 33 Sup. of what was reasonable.
Ct. Rep. 580; Northern P. R. Co. v, Dixon, Norfolk ft W. R. Co, v. Earnest, 228 U, S.
71 C. C. A. 556, 130 Fed. 737, 19 Am. Neg. 114, 121, 122, 57 L. ed, 1006, 1100, 1101, 33
Rep. 637; Midland Valley R, Co, t. Sup, Ct Rep. 654, Ann, Caa. 1014C, 172;
Fuigham, L.R.A. — , — , 104 C. a A. 151, Sealjoard Air Line R, Co. v, Tilgham, 237
181 Fed. 91; Montbriand v. Chicago, St P. U. S. 400, 50 L. ed. lOGO, 35 Sup. Ct. Rep.
U. ft 0. R. Co. 101 Fed. 988. 633.
The opinion on the former appeal is the The Judgment of the court of appeals of
law of the ease on aubsequent appeals. Kentucky on the first appeal, which plain-
Stewart V. Louisville ft N. R. Co. 136 Ky. tiff is seeking to have rL'vicwed here, was
717, 126 S. W. 164; Western U. Tclcg. Cto. not a final judgment and i* not reviewable
r. Button, 140 Ky, 729, 131 S. W. 773; Goff by this court.
V. Lowe, 141 Ky. 789. 133 S. W. 905. 3 pogter. Fed. Pr. g 806, p. 2421 ; Tracy
Hill (brakeman) was not negligent. If , Holcombe, 24 How. 426, 16 L. ed. 742;
he was not, then, manifestly the trial court s^own v. Union Bank, 4 Ho*. 405, 11 L. ed.
erred maubmittrng the caw to the jury as ^f,^g p ^ ^^^ g H„^ „ jg
to the alleged neghgence of Hill. And in- ^_ ^ j^^^,^^^ ^ j^^^^ ^ „ j,
umuch as it is impossible to say that the o 1 oi i .j las « _ i>„i.i.i . m
jury would have follnd for plainliff at all, t ,', ». o, t J ^« t\ S-'-.l
or thct their verdict would have been the "'"»■ ^^^- 2" ^/<'- ""l i°^''«"L^'"''
»n>e it the court had withdrawn the case "^ "" S- "9. 2B I* ^- 888. 8 Sup. «. Rep.
from the jury « to HiU, and had submitted ^^O; Houston v. Moore, 3 Wheat 433, 4
it only aa to Jones (conductor). It neces- L. ed. 428; Mower v. Fletcher, 114 D. S.
aarlly fojlowa that the judgment was erro- 127, 29 L. ed. 117, 6 Sup. Ct. Rap. 700;
naous and should be reversed, even though Parcels v. Johnson, 20 Wall. 653, 22 L. ed.
the court should be of opinion that Joneai410; Bostwick v. BrinkerhoS, 106 U. S. 3,
waa negligent aa to Stewart on that occa- 27 L. ed. 73, 1 Sup. Ct Rep. Ifi; Cfaempeake
•0 li. ed. *•!
SUPREME COURT OF THE UNITED STATES.
Oct. Tesjc,
A O. R. Co. T. McCabe, 213 U. S. 207, 33
L. ed. 765, 20 Sup. Ct. Rep. 430.
If there had been no other error in the
first judgment of the Warren circuit, it
should have been reversed hj the court of
appeals because of the error in the measure-
of -damage instruction; and therefore plain-
tiff was not deprived of any Federal right
to which she was entitled by the action of
the court of appeals in reversing a judg-
ment secured under a measure-of-damage
instruction which is condemned by every
utterance of this court on that s^^bject.
Michigan C. R. Co. v. Vreeland, 227 U. S.
50, 57 L. ed. 417, 33 Sup. Ct. Rep. 102, Ann.
Oas. 1014C, 176; American R. Co. v. Did-
ncksen, 227 U. S. 145, 57 L. ed. 456, 33
Sup. Ct. Rep. 224; Gulf, C. & S. F. R. Co.
T. McGinnis, 228 U. S. 173, 57 L. ed. 785,
33 Sup. Ct. Rep. 426, 3 N. C. C. A. 806;
St. Louis, S. F. A T. R. Co. v. Scale, 220
U. S. 156, 57 L. ed. 1120, 33 Sup. Ct. Rep.
«51, Ann. Cas. 1014C, 156; Norfolk & W. R.
Co. V. Holbrook, 235 U. S. 626, 50 L. ed.
302, 35 Sup. Ct. Rep. 143, 7 N. C. C. A.
^14; Garrett v. Louisville & N. R. Co. 235
U. S. 308, 50 I. ed. 242, 35 Sup. Ct. Rep.
32.
The cases are conclusive in our favor
against plaintiff's proposition that we had
no right to complain of the instructions
which the court of appeals condemned on
the first appeal because we did not offer
correct instructions in their stead.
Louisville & N. R. Co. v. Harrod, 115 Ky.
^77, 75 S. W. 233; Chesapeake & 0. R. Co.
V. Dwyer, 157 Ky. 500, 163 S. W. 752;
Louisville, H. & St. L. R. Co. v. Roberts,
144 Ky. 820, 130 S. W. 1073; South Cov-
ington & C. Street R. Co. v. Core, 20 Ky.
L. Rep. 836, 06 S. W. 562.
Defendant's exceptions satisfied the re-
quirements of the Kentucky practice.
Louisville & N. R. Co. v. McCoy, 81 Ky.
403; Meaux t. Meaux, 81 Ky. 475; Hel-
irich Saw & Planing Mill Co. v. Everly, 17
Ky. L. Rep. 705, 32 S. W. 750; American
Ins. Co. V. Austin, 18 Ky. L. Rep. 632, 37
S. W. 678; Louisville, H. & St. L. R. Co. v.
Roberts, 144 Ky. 820, 130 S. W. 1073.
Under the law of Kentucky, if the case
was to go to the jury at all, defendant was
entitled to have all of the issues of fact
submitted to the jury.
J(^m King Co. v. Louisville & N. R. Co.
131 Ky. 53, 114 S. W. 308.
It is not essttitial that there should have
been direct evidence in order to raise an
issue of fact for the jury on the question of
contributory negligence.
Watkins v. Henderson, 168 Kv. 622, 182
S. W. 837.
It is the duty of the jury to fix the dam-
Ages under proper instruction^ and the
«9S
court cannot say that the jury's verdict
would have been the same if a correct
measure-of-damage instlruction had been
given, instead of one that was incorrect.
Covington Saw Mill & Mfg. Co. v. Drcx-
ilius, 120 Ky. 403, 117 Am. St. Rep. 503, 87
S. W. 266.
If the argument of plaintiff were sound,
a judgment would never be reversed because
of an erroneous measure-of-damage instruc-
tion, with the result that the courts would
be fixing the amount of the damages, in-
stead of juries, who are the constitutional
triers of such questions.
Slocum V. New York L. Ins. Co. 228 U. S.
364, 57 L. ed. 870, 33 Sup. Ct Rep. 523,
Ann. Cas. 1014D, 1020.
A person is only responsible for the con-
sequences which may reasonably be ex-
pecied to flow from his acts.
21 Am. & Eng. Enc. Law, 486; Milwau-
kee & St P. R. Co. V. KeUogg, 04 U. S. 469,
24 L. ed. 256; Scheffer v. Washington City,
V. M. & G. S. R. Co. 105 U. S 240, 26 L. ed.
1070; Chicago, St. P. M. & 0. R. Co. y.
Elliott, 20 L.Rji. 582, 5 C. C. A. 347, 12
U. S. App. 381, 55 Fed. 040, 7 Aul Neg.
Cas. 478; Hoag v. Lake Shore & M. S. R«
Co. 85 Pa. 203, 27 Am. Rep. 653; Motey t.
Fickle Marble & Granite Oo. 20 C. C. A.
366, 36 U. S. App. 682, 74 7ed. 155; Addi-
son, Torts, § 6; Gilson v. Delaware & H.
Canal Co. 65 Vt. 213, 36 Am. St Lep. 802,
26 Atl. 70; Gosney v. i^uisviUe & N. R. Co.
160 Ky. 323, L.R.A. 1016E, — , 183 S. W.
538.
Mr. Benjamin D. Warfield also united in
a joint brief raising the question of the ap-
plication of the 7th Amendment to the Fed-
eral Constitution, an abstract of which will
be found in connection with the report of
Chesapeake Jt 0. R. Co. v. Kelly, post, 1117.
Mr. George H. Lamar argued the cause,
and, with Messrs. B. F. Procter, C. U. Mc-
EUory, and D. W. Wright, filed a brief for
Jeanette Stewart, administratrix:
However this court may be disposed to
treat Kentucky verdicts of less than twelve.
We submit that, even under the most ex-
treme view which the court might take oi
the applicability of the 7th Amendment to
the trial of Federal ^nployers' liability act
cases in the state courts, the actual unani-
mous verdict of twelve jurors, as in the case
at bar, would hardly be disturbed.
Chesapeake & 0. R. Co. v. Kelly, 241
U. S. 485, post, 1117 36 Sup. Ct Rep. 630,
161 Ky. 655, 171 S. W. 185.
It will hardly be claimed that a party who
has asserted a right, privilege, or immun-
ity under a Federal statute, and has been
deprived thereof by judgment of a state
court, can be deprived of a right to a re-
S41 V. 8.
1915.
LOUISVILLE & N. R. CO. ▼. STEWART.
▼lew by writ of error from this court to the
appropriate state court.
Nutt V. Knutt, 200 U S. 12, 50 L. ed. 348,
26 Sup. Ct. Rep. 216.
Even where the right was erroneously as-
serted under the Federal employers' liabil-
ity act, this court will hear and determine
the case on its merits.
Shanks v. Delaware, L. & W. R. Oo. 230
U. S. 556, ante, 436, 36 Sup. Ct. Rep. 188.
The judgment of February 27, 1914, re-
versing the judgment for $20,000 of April
11, 1912, remanding the case to the trial
court for a new trial and for further pro-
ceedings consistent with the opinion and
modified opinion therein, was not a final de-
cision or judgment within the meaning of
the statute, and no writ of error from this
court to the state court would then have
been allowed.
Chesapeake & 0. R. Co. v. McCabe, 213
U. S. 207, 214, 53 L. ed. 765, 768, 29 Sup.
Ct. Rep. 430; Louisiana Nav. Co. v. Oyster
Commission, 226 U. S. 99, 102, 57 L. ed. 138,
140, 33 Sup. Ct. Rep. 78; Schlosser v.
Hemphill, 198 U. S. 173, 49 L ed. 1000, 25
Sup. Ct. Rep. 654.
It is within the power and duty of this
court to take jurisdiction under the writ of
«rror, and if the errors assigned are sus-
tained, to proceed by appropriate judg-
ment to restore to the original plaintiff in
the action the rights of which she and
those whom she represents have been de-
prived by the 'reversal of the original judg-
ment for $20,000.
Louisiana Nav. Co. v. Oyster Commission
and Chesapeake & 0. R. Co. v. McCabe,
supra; Campbell v. Northwest Eckington
Improv. Co. 229 U. S. 561, 585, 57 L. ed.
1330, 1340, 33 Sup. Ct. Rep. 796; Perkins
v. Northern P. R. Co. 118 C. C. A. 150, 199
Fed. 712; Coit v. Sistare, 85 Conn. 573, 84
AtL 119, Ann. Cas. 1913C, 248; 3istare v.
Sistare, 218 U. S. 1, 54 L. ed. 905, 28
L.R.A.(N.S.) 1068, 30 Sup. Ct. Rep. 682,
20 Ann. Cas. 1061 ; Ragan v. Cuyler, 24 Ga.
400; Hull V. Vyest Chicago Park Comrs.
185 111. 150, 57 N. E. 1; Cahill v. Lillien-
thal, 30 Misc. 429, 62 N. Y. Supp. 524;
Muse V. Stern, 82 Va. 33, 3 Am. St Rep.
77 ; Green County v. Thomas, 211 U. S. 598,
602, 603, 53 L. ed. 343, 345, 346, 29 Sup. Ct
Rep. 168; Jones Nat. Bank v. Yates, 240
U. S. 541, ante, 788, 36 Sup. Ct Rep. 449.
Where the state court does not decide
against th^ plaintiff in error upon an inde-
pendent sti9e ground, but, deeming the Fed-
eral question to be before it, actually enter-
tains it and decides it adversely to the Fed-
eral right asserted, this court has jurisdic-
tion to review the judgment.
Rogers v. Hennepin County, 239 U. S.
621, ante, 469, 36 Sup. Ct Rep. 217. '
•0 li. ed.
The failure of the trial court particularly
to specify in its charge in an action under
the Federal employers' liability act of April
22, 1908, some matters to which its atten-
tion was not suitably called, is not ground
for reversal.
Illinois C. R. Co. t. Skaggs, 240 U. S. 66,
ante, 528, 36 Sup. Ct Rep. 249.
There was no error in the instructions on
the measure of damages prejudicial to the
railroad company.
Chesapeake & 0. R. Co. v. Dwyer, 157 Ky.
590, 163 S. W. 752; Michigan C. R. Co. v.
Vreeland, 227 U. S. 71, 57 L. ed. 422, 33 Sup.
Ct Rep. 192, Ann. Cas. 1914C, 176.
The railroad company will not be granted
by this court immunity from that part of
the judgment below denominated as costs,
interest on the judgment, and damages
under the state supersedeas statute.
Southern R. Co. v. Gadd, 233 U. S. 572»
58 L. ed. 1099, 34 Sup. Ct Rep. 696.
The application of the air brake without
warning, especially in violation of the rules,
constitutes negligence within the meaning
of the employers' liability act.
Chesapeake & O. R. Co. v. Savage, 150
Ky. 263, 150 S. W. 350; Roberts, Injuries
to Interstate Employees on Railroads,
pp. 55, 56.
And in such cases the jury is free to infer
negligence even in the face of the testimony
of other members of the train crew to the
effect that the train was handled in the
usual and ordinary way, without any un-
necessary force or jar.
Ft. Worth & D. C. R. C6. y. Stalcup, —
Tex. Civ. App. — , 167 S. W. 279.
There was ample evidence to go to the
jury on the subject of n^ligence of the
company; and the refusal of the trial court
to give the jury a peremptory instruction
in favor of the railroad, and the failure of
the court of appeals to reverse the judgment
by reason of its failure so to do, cannot sup-
ply any genuine basis for review by this
court on writ of error under § 237 of the
Judicial Code.
Great Northern R. Co. v. Knapp, 240 U.
S. 464, ante, 745, 36 Sup. Ct. Rep. 399.
The qualifying clause of the instruction
was made necessary and appropriate by
the peculiar facts in the case.
Louisville & N. R. Co. v. Street, 139 Ky.
186, 139 Am. St Rep. 471, 129 S. W. 570;
Perkins v. Northern P. R. Co. 118 C. C. A.
150, 199 Fed. 712; Transit Development Co.
V. Cheatham Electric Switching Device Co.
114 C. C. A. 599, 194 Fed. 963; Galveston,
H. ft S. A. R. Co. V. Bosher, — Tex. Civ.
App. — , 165 S. W. 93; Kansas City South-
ern R. Co. T. Leslie, 112 Ark. 305, 167 S. W.
83, Ann. Gas. 1915B, 834; Pennsylvania
R. Co. y. Goughnour, 126 C. C. A. 39, 208
262-264
8UPRBMB COURT OF THB UNITED STATES.
OOT.
Ta^,
Fed. 064; Louisrille & N. R. Co. t. Qilliam,
24 Ky. L. Rep. 1686, 71 S. W. 863; Louis-
rille & N. R. Ck>. T. Qordon, 24 Ky. L. Rep.
1819, 72 S. W. 811.
Messrs. George H. Lamar, B. F. Procter,
0. U. McEllory, and D. W. Wright also
united in a joint brief raising the question
of the application of the 7th Amendment
to the Federal Constitution, an abstract of
which will be found in connection with the
report of Chesapeake & O. R. Co. y. Kelly,
post, 1117.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is an action brought under the em-
ployers' liability act of April 22, 1908, chap.
149, 35 Stat, at L. 65, Comp. Stat. 1913,
S 8657, against the railroad company for
negligently causing the death of the plain-
tiff's intestate, her husband. There were
two trials. A yerdict and judgment for the
plaintiff at the first were set aside by the
court of appeals. 156 Ky. 550, 161 S. W.
557; 157 Ky. 642, 163 S. W. 755. A judg-
ment for a less amount at the second trial
was sustained. 163 Ky. 823, 174 S. W. 744.
The railroad company seeks to overthrow
the last judgment; the plaintiff, by her
cross writ, seeks to reinstate the first; but,
failing that, contends that the last should
be affirmed; denying, that is, that there are
any grounds for the railroad company's
writ.
The object of the plaintiff's writ of error
was to go behind the second trial and rein-
state the first judgment. But the verdict
was found upon an instruction that the
jury should find, if anything, "such a sum
as will fairly compensate his estate for his
death," — ^given, it would seem, in forgetful-
ness that the case arose under the act of
Congress. See 167 Ky. 642. This instruc-
tion was excepted to, and neither justice
nor law would permit the verdict and judg-
ment based upon it to be reinstated after the
state court had set it aside. We therefore
examine the arguments in 904 no farther,
and do not consider whether if, in our opin-
ion, there had been no error of Federal law
at the first trial, the plaintiff could have
had the relief that she asks. Fairfax v.
Hunter, 7 Cranch, 603, 628, 3 L. ed. 453,
461 ; [263] Jones Nat. Bank v. Yates, 240
U. S. 541, 563, ante, 788, 801, 36 Sup. Ct
Rep. 429.
The railroad company had for its princi-
pal object in bringing the case here to set
up the 7th Amendment, and to deny juris-
diction in any state eourt where a verdict
of nine or more out of the twdva men on
the jury was allowed by the local law. The
notion that a substantiya ri^^t vesting un*
tt4
der the law of one jurisdiction cannot be
recognized and enforced in another, at
least, as between the United States and a
state, unless by procedure identical with
that of the first, is disposed of in Minneapo-
lis & St. L. R. Co. v. Bombolis [241 U. S.
211, ante, 961, 86 Sup. Ct. Rep. 595].
The first of the other objections is that
the court of appeals was not authorised to
add 10 per cent damages on the amount of
the judgment, as it did. But the railrcMul
company obtained a supersedeas, and the
law of the state makes 10 per cent the cost
of it to all persons if the judgment is af-
firmed. There was no obligation upon the
state to provide for a suspension of the
judgment, and nothing to prevent its mak-
ing it costly in cases where ultimately the
judgment is upheld. So, the state may al-
low interest upon a judgment from the time
when it is rendered, if it provides appellate
proceedings and the judgment Is affirmed,
as, but for such proceedings, interest would
run as of course until the judgment was
paid.
The railroad company contends at some
length that the case should have been taken
from the jury by the direction of a verdict
in its favor. As the opinion of both courts
below and the jury were against it, and as
we agree with their judgment, we shall not
discuss this assignment of error at length.
Great Northern R. Co. v. Knapp, 240 U. S.
464, 466, ante, 745, 751, 36 Sup. Ct. Rep. 399.
The facts were these: Stewart, the de-
ceased, was engineer on a north -bound
freight train upon a single track, that had
to go upon a siding to make way for a
south-bound freight train. There were cars
already on the siding which Stewart's train
pushed ahead, and this [264] train and the
cars more than filled the siding. Therefore
they pushed forward onto the main track
to the rear of the south-bound train, and
the latter went on its way. It still, how-
ever, was necessary to keep the main track
clear for another south-bound train, and
therefore Stewart's train «began to back so
as to free the main track north of the
switch, which would be the first point
reached by the expected train. While it was
backing and approaching the southerly end
of the switch, the rear brakeman suddenly
applied the air brakes, and the sudden riioek
caused the engineer to strike his head
against the cab, by reason of which he died.
The conductor in charge of the movement
testified that he intended not Jk> cross the
southerly point of the switch, and it could
be found that the brakeman's act was a
breach of duty, that it manifestly would
cause a sudden shock, and that, although
the particular position of, or speeifie dam-
age to, Stewart^ was unknown to the brake*
S4i V. 8.
Ifl6.
UKITED STATES t. FORTY BARRELa
264,206
fluoif gmerlealfy ft was the kind of thing
that WM likely to happen, and that he and
his empl<^en were liable for oontequencee
el that eort. The Jurj was instructed that
Stewart assumed the risks incident to his
employment, and that, if the application
of the air brakes was made upon a reason-
able belief tiiat it was necessary to apply
them in order to avoid injury to property,
th^ should find for the defendant unless
they found that the emergency was brought
about by the defendant's serrants in the
negligent operation of the train before the
brakes were applied. As an abstract propo-
sition the qusIiflcatioB was correct, and the
jury might have found that the conductor
did not manage the train with due care, and
■o made the application necessary. What-
erer might have been our opinion had we
been in the jury's place, we do not fed war*
ranted in saying that they had no evidence
to go upon, or that the instructions were
wrong.
Judgment affirmed.
[265] UNITED STATES, Plff. in Err.,
v.
FORTY BARRELS and Twenty Kegs of
Coca Cola, the Coca Cola Company of
Atlanta, Georgia, Complainant.
(See S. O. Reporter's ed. 265-200.)
Food and drugs — proprietary food —
adulteration — added harmful In-
gredient.
1. A poisonous or deleterious ingredient
called for as a constituent by a secret for-
mula for a food product sold under its own
distinctive name may still be an added in-
gredient within the meaning of the provi-
sions of the food and drugs act of June 30,
1906 (34 Stat, at L. 768, chap. 3915, Comp.
Stat. 1913, § 8717), condemning as adulter-
ated any article of food that contains "any
added poisonous or other added deleterious
infiredient which mav render such article
injurious to health,*' and the provisos in
I 8 that food mixtures or compounds "which
may be now or from time to time hereafter
known as articles of food under their own
distinctive names" are to enjoy the stated
immunity only in case they do "not contain
any added poisonous or deleterious ingre-
dients," and that nothing in the act shall be
construed to require manufacturers of pro-
prietary foods "which contain no unwhole-
some added ingredient" to disclose their
trade formulas except as the provisions of
the act may require to secure freedom from
adulteration or misbranding.
[Pare food laws, see Food and Drnirs, in Di-
gest Sop. Ct. 1918 Supp.]
Note. — ^As to what constitutes adulter-
ation within food and drugs acts — see note
to United States t. Lexington Mill ft Ele-
vator Co. L.RJk.l915B, 774.
•0 li. ed.
Food and drugs — adulteration — pro-
prietary food — abstracting taam&fnl
ingredient.
2. The elimination of a harmful in-
gredient from a proprietary food which,
without such ingrMient, would not be tiie
same, does not constitute an adulteration
under the food and drugs act of June 30,
1906 (34 Stat, at L. 768, chap. 3915, Comp.
Stat. 1913, § 8717), § 7, bv the abstraction
of a "valuable constituent."
[Pore food laws, see Food and Drugs, in Di-
gest Sop. Ct. 1913 Supp.]
Food and drugs — adulteration — added
harmful Ingredient ^ caffeine.
3. Caffeine hitroduced into a syrup
during the Sjecond or third melting is an
"added" ingredient within the meaning of
the food and drugs act of June 30, 1906
(84 Stat, at L. 768, chap. 3915, Comp. Stat.
1913, § 8717), condemning as adulterated
any article of food that contains "any added
poisonous or other added deleterious in-
gredient which may render such article in-
jurious to health," although it is called for
as a constituent by the secret formula un-
der which the syrup is compounded.
[Pore food laws, see Pood and Drugs, in Di-
gest Sop. Ct. 1913 Snpp.]
Trial — question for Jury — adultera-
tion ^ added finrmful ingredient.
4. Whether cuffcinc added to a food
product is a poisonous or deleterious in-
gredient which may render the article dele-
terious t6 health, within the meaning of
the act of June 30, 1906 (34 Stat, at L.
768, chap. 3915, Comp. Stat. 1913, § 8717).
condemnmg as adulterated any article of
food that contains "any added poisonous
or other added deleterious ingredient which
may render such article injurious to
health," is a question of fact for the jury,
where the evidence on that point is con-
flicting.
(For other cases, see Trial, YI. c, in Digest
Sup. Ct. 1908.1
Food and drn^s — misbranding — coca
cola « distinctive or descriptive
name.
5. The name "Coca Cola" cannot be
said as a matter of law to be distinctive
rather than descriptive of a compound with
coca and cola ingredients, so as to escape
oondemnation under the food and drugs act
of June 30, 1900 (34 Stat, at L. 708, chap-
8915, Comp. Stat. 1913, § 8717), § 8, as
misbranded in case of the absence of either
coca or cola, on the theory that it was with-
in the protection of the proviso in that sec-
tion that an article of food shall not be
deemed to be misbranded in the case of
"mixtures or compounds which may be now
or from time to time hereafter known as
articles of food under their own distinctive
names," if the distinctive name of another
article is not used or imitated, and the
name on the label or brand is accompanied
with a statement of the place of production.
[Pure food laws, see Pood and Drugs, in Di-
gest Sop. Ct. 1913 Sopp.]
Food and drugs — misbranding — coca
cola ^ secondary significance of
name.
6. A secondary significance cs""'^* *^
SUPREME COURT OF THE UNITED STATES. Got. Tbic,
attributed to the name "Coca Cola," as de- York, N. H. & H. R. Co. ▼. Interstate Coai-
scriptive of a product known to be destitute merce Commission, 200 U. 8. 361, 301, 50
of either of tlie producU indicated by its l. ed. 616, 621, 26 Sup. a. Rep. 272; John-
primary meaning, so as to save it from ^„ ^ Southern P. Co. 196 U. S. 1. 40 L. ed.
condemnation under the food and drugs act „^„ ^k r„„ r«f «*»« i&a i7 Am v-» Rm»
of June 30, 1906 (34 Stat, at L. 768, chap. ^W. 25 Sup, Ct. Rep. 168, 17 Am. Ni«. R^.
3916, Comp. Stat. 1913, § 8717), § 8, on the *12.
theory that it is within the protection ac- This court assumed in the case of United
oorded by the proviso in that section to States v. Lexington Mill & Elevator Co. 232
food mixtures or compounds known under U. S. 399, 58 L. ed. 668, L.R.A.1916B,774,
their own distinctive names. 34 Sup. Ct Rep. 337, that it was unlawful
^^ge?t8S?.fe^"i9lfs^u"p^^]*^^^^^^^ to transport in interstate commerce flour
which contained nitrites enough to make it
[No. 662.] injurious to health. Under the construction
given the act by the circuit court of appeah
Argued February 29, 1916. Decided May ""^h flour, though shown to be poisonous
22 1916. to consumers, might freely move in inter-
state commerce provided its manufactureis
IN ERROR to the United States Circuit |*ve it tlie distinctiye name "Lexiogtonia."
1 Court of Appeals for the SUth Circuit f""''"'^' J^^ ""^7". '''if , '" ."Z
to review a jud^iient which affirmed a judg- *«»"»«i « "»« "^"'nVf'^^if IL"^
meat of the DUtrict Court for the Eastern ^^^J>* ,^/^""V "^ T*^' 427 because
District of Tennessee, entered upon a di- colored with martius yellow, would have,
reeled verdict in favor of the claimant in a under thu construction escaped condenmt-
libel for condemnation under the food and *>»» "{ f^r » distinctive name h«i been
drugs act. Reversed and remanded for fur- ?»\«> *» t^« "*"'«' •"f the inart.u. yellow
ther roceedinffs included m its formula. It is inconcciv-
See same cfse below. 132 C. C. A. 47, able that this could have been the purpose
215 Fed 635 Congress m framing this great remedial
mi / J. ' J. J. J • AL • 2 statute. — that its authors were fascinated
The facts are stated in the opmion. own-u^c, wi»w «i.a •"«-" » «^ *a,oviii«i^
by mere names, and satisfied with sliadows
Assistant Attorney General Underwood instead of substance,
argued the cause, and, with Mr. Elliott United States v. Louisville k N. R. Co.
Cheatham, filed a brief for plaintiff in er- 235 U. S. 314, 326, 69 L. ed. 246, 263, 36
ror: Sup. Ct Rep. 113.
This act was primarily a health measure. There is nothing in the meaning of the
United States v. Morgan, 222 U. S. 274, word "added" to demand such a construe-
281, 66 L. ed. 198, 200, 32 Sup. Ct. Rep. 81 ; tion, and to so interpret the act will be-
Hall-Baker Grain Co. v. United States, 117 stroy its efficacy.
C. C. A. 318, 198 Fed. 614; French Silver United States v. Baltimore & O. R. Co.
I>ragee Co. v. United SUtes, 103 C. C. A. 226 U. S. 306, 324, 66 L. ed. 1100, 1106,
316, 179 Fed. 824; United States v. John- 32 Sup. Ct. Rep. 817.
8(m, 177 Fed. 313; United States v. 6 Boxes The standard used in determining
of AsafoBtida, 181 Fed. 661 ; United States whether a particular brand of food is add-
V. Morgan, 181 Fed. 687 ; United States v. terated is the sum total of all the elements,
1,950 Boxes of Macaroni, 181 Fed. 427; whatever they may be, of the particular
Gait V. United SUtes, 89 App. D. C. 470. combination.
It should be, as it and other remedial United States v. Lexington Mill ft Ele-
statutes have been, construed liberally to vator Co. 232 U. S. 399, 68 L. ed. 658, L.RA.
accomplish its purpose. 1916B, 774, 34 Sup. Ct. Rep. 337; United
Southern R. Co. v. Crockett, 234 U. S. States v. Mayfield, 177 Fed. 766; Com. v.
726, 735, 68 L. ed. 1564, 1668, 34 Sup. Ct. Kevin, 202 Pa. 23, 90 Am. St. Rep. 613, 51
Rep. 897; United States v. Antikamnia Ati. 694.
Chemical Go. 231 U. S. 664, 666, 68 L. ed. The act forbids the suggestive and mis-
419, 34 Sup. Ct. Rep. 222, Ann. Gas. 1916A, leading use of names of known artidea,
49; Hipolite Egg Co. v. United States, 220 whether used in combination or not, and
U. S. 45, 65 L. ed. 364, 31 Sup. Ct. Rep. 364; whether the deception be about the article
McDermott v, Wisconsin, 228 U. S. 115, 57 itself or its ingredients.
L. ed. 754, 47 L.R.A.(N.S.) 984, 33 Sup. Ct Steinhardt Bros. & Co. t. United States,
Rep. 431, Ann. Gas. 1916A, 39; IntersUte 112 C. G. A. 284, 191 Fed. 798; Libby, Mc-
Commerce Commission t. Goodrich Transit Neiil & Libby y. United States, 127 C. C.
Co. 224 U. S. 194, 213, 66 L. ed. 729, 737, A. 14, 210 Fed. 148; United SUtes t. 300
32 Sup. Ct Rep. 136 ; United SUtes V. Balti- Cases of Mapleine (D. G. N. D. Wis.);
more & 0. R. Co. 226 U. S. 306, 324, 66 L. United SUtes v. Morgan, 181 Fed. 587, af-
ed. 1100, 1106, 32 Sup. Ct Rep. 817; New firmed in 222 U. S. 274, 66 L. ed. 198, 82
006 S41 V. 8.
101S.
UNITKD STATES v. FORTV BARRELS.
Sup. Ct. Rep. 81 i United States v. 7 Caics
of Buffalo Lithis. Water, Federal Food t
Drug Act ft Dec. p. 697 ; Clinton G. Worden
t Co. T. Californi* Fig Syrup Co. 187 U.
B. Cia, 47 ' L. ed. 282, 23 Sup. Ct. Rep
101 i Manhattan Medicine Co. v. Wood, ION
U, S. 218, 27 L. ed. 706, 2 Sup. Ct. Rep.
436; United SlaUs v. 2 Cases of Sulplio-
Napthol, 213 Fed. 619; United States v. 2
Cases of Chloro-N^th oleum Disinfectant,
217 Fed. 477.
Messrs. Harold Hlrsch and J. B. Siser
argued the cause, and, with Messrs. A. W.
Chamblisa and W. D. Thompson, Sled a
brief for defendant in error:
In eonstruing & statute, every section,
provision, and clause should be explained by
reference to every other; and, if possible,
every clause and provision shall avail, and
have the effect contemplated by the legisla-
Montdair Twp. v. Ramsdell, 107 U. S.
147, 27 L. ed. 431, 2 Sup. Ct. Rep. 891;
Bend v. Hoyt, 13 Pet. 263, 10 L. ed. 1S4;
Peck V. Jenneas, 7 How. 612, 623, 12 L. ed.
Ml, 845; United States v. Lexington Mill &
Elevator Co. 232 U. S. 390, 409, 58 L. ed.
668, 661, L..R.A.1916B,774, 34 Sup. Ct. Rep.
337; Lake County v. Rolling, 130 U. S. 682,
670, 32 L. ed. 1060, 1063, 9 Sup. Ct. Rep.
651: Hamilton y. Rathbone, 176 U. S. 414,
44 Lv ed. 210, 20 Sup. Ct. Rep. 155; Wash-
ington Klarket Co. v. Hoffman, 101 U. S.
112, 26 L. ed. 782; United States v. Anti-
kamnia Chemical Co. 231 U. S. 654, S65, 58
L. ed. 419, 424, 34 Sup. a. Rep. 222, Ann.
Cas. 191GA, 49; Hall-Baker Grain Co. t.
United States, 117 C. C. A. 318, 198 Fed.
614.
This statute was not to prevent the man-
ufacture and sale of foods, but to prevent
the adulteration and misbranding thereof.
Savage v. Jones, 225 U. S. 501, 530, 66
L. ed. 1182, 1193, 32 Sup. Ct. Rep. 716;
Standard Stock Food Co. v. Wright, 226 U.
S. 540, es L. ed. 1197, 32 Sup. Ct. Rep.
784; United States v. 65 Casks Liquid Ex-
tracts, 170 Fed. 449; McDermott v. Wis-
consin, 228 U. S. IIB, 57 L. ed. 764, 47
LJl.A.(N.S.) 984, 33 Sup. Ct. Rep. 431,
Ann. Cas. 1916A, 36; United States v. 40
Barrels & 20 Kegs of Coca-Cola, 132 C. C. A.
47. 215 Fed. 635.
The statute contemplates a standard.
Gmlcy, Food & Drugs Act, pp. 8, 22;
Wilson Y. Wilson, 88 J. P. 175, 41 Scot. L.
R. 195; Von Bremen v. United States, 113
C. C. A. 296, 192 Fed. 905; People t. Jen-
nings, 332 Mich. 662. 94 K. W. 216; Nave-
McCord Mercantile Co. r. United States,
101 C. C. A. 486, 182 Fed. 47; United
States y. St. Louis Coffee ft Spice Mills,
189 Fed. 193; United Statu t. Frank, 180
eo L- ed.
Fed. 195; 200 Chests of Tea, 0 Wheat. 431,
6 L. ed. 128; Hudson Mfg. Co. v. United
States, 113 C. C. A. 625, 192 Fed, 920;
Libby, McNeill ft Libby v. United State*,
127 C. C. A. 14, 210 Fed. 143; United State*
V. Sweet Valley Wine Co. 208 Fed. 86;
United States v. 7S Boxes of Alleged Pepper,
198 Fed. B34; Weeks v. United States, 139
C. C. A. 626. 224 Fed. 64; Cadwalader »,
Zeh, 151 U. S. 171, 38 L. ed. 116, 14 Sup.
Ct. Rep. 288; United States T. 420 Sacks
of Flour, 180 Fed. 618.
The evidence conclusively shows what
Coca Cola is, — that it contains, and has al-
ways contained, caffeine. Can it, then, be
contended that the caffeine Is addedt
Washburn v. United States, 140 C. C. A.
81, 224 Fed. 395.
The term "added ingredient" means some-
thing foreign to the article to which it is
added; and therefore an ingredient which is
a constituent element, and is not foreign, is
not an added one.
St. Louis T, Judd, 236 Mo. 1, 139 8. W.
441 ; Com. v. Kevin, 202 Pa. 23, 90 Am. St.
Rep. 613, 5] Atl. 504; Hall-Baker Grain
Co. V. United States, 117 C. C. A. 318, 198
Fed. 614; United States v. Lexington Mill
ft Elevator Co. 232 U. S. 399, 58 L. ed. 658,
L.R.A.1015B, 774, 34 Sup. Ct. Rep. 337;
Price V. Illinois, 238 U. S. 446. 69 L. ed.
1400. 35 Sup. Ct. Rep. 892; United States
V. 11,150 Pounds of Butter, 115 C, C. A.
403, 105 Fed. 857. See also Weeks v. United
States. 139 C. C. A. 826, 224 Fed. 64; Cur-
tice Bros. Co. v, Barnard, 126 C. C. A. 411,
209 Fed. 591.
If the presence of the substance would not
have an appreciable effect, then its elimi-
nation would not opc.ate at au appreciable
change.
People T. Jennings, 132 Mich. 663, S4 K.
W. 216.
A defendant in whose favor a verdict has
been rendered by direction of the court is
entitled to support such verdict upon any
ground permitted by the evidence in the
record of which he has not by hia conduct
waived the right to avail himself.
Whitney v. New York, N. H. * H. R. Ca
50 L.R.A. 616. 43 C. C. A. 19, 102 Fed. 850.
When a defeated party has been permitted
to present, end has introduced, all the legal
evidence which be offered, has rested hi*
case, and the court has instructed the jury
to return a verdict against him upon a
specified but untenable ground, its action
is error without prejudice, and will not
warrant a reversal of the judgment, where
it is clear beyond doubt, from ■ bill of
exceptions which contains all the evidcAee,
that it would not sustain any other verdict.
Bank of Havelock v. Western U. Teleg.
Co. 4 L.R.A.(N.S.)181, 72 C. C. A. 580.
270
SUPREME OOUET OF THE UNITED STATES.
OoT. TkiM,
141 Fed. 522, 5 Ann. Caa. 615; United
SUtes V. Norton, 46 C. C. A. 387, 107 Fed.
412; Currier t. Dartmouth College, 54 C. C.
A. 430, 117 Fed. 44; 38 Cyc. 1502; W. B.
Grimes Dry Goods Co. v. Malcolm, 164 U.
S. 483, 41 L. ed. 524, 17 Sup. Ct. Rep. 158 ;
Sullivan t. Iron Silver Min. Co. 143 U. S.
431, 36 L. ed. 214, 12 Sup. Ct. Rep. 555.
A trademark can be distinctive in its orig-
inal signification, or it may have become so
by association.
Delaware & H. Canal Co. v. Clark, 13
Wall. 311, 323, 20 L. ed. 681, 583; Amos-
keag V. Trainer, 101 U. S. 51, 25 L. ed.
903; Lawrence Mfg. Co. v. Tennessee, 138
U. S. 537, 34 L. ed. 997, 11 Sup. Ct. Rep.
396; United States v. Steffens, 100 U. S.
82, 25 L. ed. 550.
Words in common use, with some excep-
tions, may be adopted, if, at the time of
their adoption, they were not employed to
designate the same or like articles of pro-
duction. This may, in many cases, be done
by a name, a mark, or a device, well known,
but not previously applied to the same
article.
Delaware & H. Canal Co. t. Clark, 13
Wall. 322, 20 L. ed. 583; Amoskeag Mfg.
Co. V. Trainer, 101 U. S. 51, 25 L. ed. 993;
United States v. Steffens, 100 U. S. 82, 25
L. ed. 550.
It is possible to devest a geographical,
descriptive term or symbol of its original
signification.
ReTolle (1872) CD. 219.
Where a name has a well-defined, arbi-
trary meaning, it should not be refused
r^istration because it appears in diction-
aries.
Ex parte Van Eyck (1903) C. D. 43.
Does the tradename overshadow the geo-
graphical f
Ex parte Indiana Bicycle Co. (1895) 0.
D. 66.
If the primary meaning has been tran-
scended by the secondary meaning, it is a
distinctive name.
Ex parte Jewell Bottling Co. (1904) C.
D. 160; Siegert v. Gandolfi, -79 C. C. A.
142, 149 Fed. 100.
If a name has acquired a secondary mean-
ing, it has become distinctive.
Jacobs ▼. Beecham, 221 U. S. 263, 55 L.
ed. 729, 31 Sup. Ct. Rep. 556; Elgin Nat.
Watch Co. V. Illinois Watch Case Co. 179
U. S. 665, 46 L. ed. 365, 21 Sup. Ct. Rep.
270; French Republic v. Saratoga Vichy
Spring Co. 191 U. S. 427, 48 L. ed. 247, 24
Sup. Ct. Rep. 145; Baglin v. Cusenier Co.
221 U. S. 580, 66 L. ed. 863, 31 Sup. Ct.
Re^. 669; Montgomery v. Thompson, 8 Rep.
Pat. Cas. 361; Wotherspoon v. Currie, L.
R. 5 H. L. 608, 42 L. J. Ch. N. S. 130, 27
Ix T. N. S. 393; Birmingham Vinegar Co.'
008
I v. PoweU [1897] A. C. 710, 76 L. T. N. a
792, 66 L. J. Ch. N. S. 763; Reddaway y.
Banham, 12 Rep. Pat. Cas. 83, 18 Rep. Pat
Cas. 218, [1896] A. C. 199, 66 L. J. Q. B.
N. S. 381, 44 Week. Rep. 638, 74 Lu T. N. 8.
289; Thaddeus Davids Co. v. Davids Mfg.
Co. 233 U. S. 461, 466, 58 L. ed. 1046, 1049,
34 Sup. Ct. Rep. 648, Ann. Cas. 1915B,
322.
Use musty of necessity, make a m&rk dis-
tinctive.
Re Crosfleld & Sons, 26 Rep. Pat. Cas.
846, [1910] 1 Ch. 130, 79 L. J. Ch. N. S. 212,
101 L. T. N. S. 587, 26 Times L. R. 100, 54
Sol. Jo. 100; Re Registered Trademarkif
Nos. 638, 1807 & 158, 839, 82 Rep. Pat. Cas.
40, [1914] W. N. 461, 31 Times L. R. 62, 69
Sol. Jo. 128; Re Slazengers, 81 Rep. Pat
Cas. 501; Re Cadbury Bros. 32 Rep. Pat
Cas. 9, [1915] 1 Ch. 331, 84 L. J. Ch. N. S.
242, 112 L. T. N. S. 235, [1914] W. N. 463;
Re Bema Commercial Motors, 32 Rep.
Pat Cas. 113, [1916] 1 Ch. 414, 84
L. J. Ch. N S. 416, 112 L. T. N. S
980, [1916] W. N. 36, 59 Sol. Jo. 316;
Woodward v. Boulton Macro, 32 Rep. Pat
Cas. 173, 112 L. T. N. S. 1112, [1915] W.
N. 124, 31 Times Lu R. 269; United SUtes
V. 30 Cases, 199 Fed. 932; United States v.
100 Barrels of Calcium Phosphate (D. C.
N. D. Cal.) ; United States v. Von Bremen
(D. C. S. D. N. Y.) ; Lemy v. WaUon, 32
Rep. Pat Cas. 608, [1916] 3 K. B. 731, 84
L. J. K. B. N. S. 1999, 13 L. G. R. 1323, 31
Times L. R. 612; Fowler Vi Cripps [1906] 1
K. B. 21, 75 L. J. K. B. N. S. 72, 70 J. P.
21, 64 Week. Rep. 299, 93 U T. N. S. 808,
22 Times L. R. 73; Rex v. Butcher, 99 L.
T. N. & 622, 72 J. P. 454, 24. Times L. R.
797, 52 Sol. Jo. 716, 21 Cox, C. C. 697.
The . name is necessarily distinctive be-
cause it is not, and never has been, applied
to anything except this product, and no one
has the right to apply it to anything else.
Keasbey v. Brooklyn Chemical Works,
142 N. Y. 467, 40 Am. St. Rep. 623, 37 14.
£. 476; Camrick, K. ft Co. v. Morson (1877)
Law Journal Notes on Cases, p. 71; Re La
Societe Le Ferment, 81 L. J. Ch. N. S. 724,
[1912] W. N. 187, 107 L. T. N. S. 515, 28
Times L. R. 490, 29 Rep. Pat. Caa. 497, 29
Rep. Pat Cas. 149, 28 Times L. R. 176.
Coco Cola is not sold under the distinctive
name of another article.
Nashville Syrup Co. v. Coca Cola Co. 132
C. C. A. 39, 216 Fed. 627, Ann. Cas. 1915B,
368; (Ik>ca-Cola Ck>. v. American Druggists'
Syndicate, 200 Fed. 107.
Mr. Justice Hughes delivered the opin-
ion of the court:
This is a libel for condemnation under
the food and drugs act (June 30, 1906, chap.
3915, 34 SUt at L. 768, Comp. Stat 1913,
S41 V. S.
1015.
UNITED STATES ▼. FOBTY BARBELa
270-273
I 8717), of a certain quantity of a food
product known as "Coca Ck>la" transported
for sale, from Atlanta, Georgia, to Chat-
tanooga, Tennessee. It was alleged that the
product was adulterated and misbranded.
The allegation of adulteration was, in sub-
stance, tJiat the product contained an added
poisonous or added deleterious ingredient,
caffeine, [271] which might render the
product injurious to health. It was alleged
to be misbranded in that the name "Coca
Cola" was a representation of the presence
of the substances coca and cola; that the
product "contained no coca and little if any
cola" and thus was an "imitation" of these
substances and was offered for sale under
their "distinctive name." We omii other
charges which the government subsequently
withdrew. The claimant answered, admit-
ting that the product contained as one of its
ingredients "a small portion of caffeine," but
denying that it was either an "added" in-
gredient, or a poisonous or a deleterious
ingredient which might make the product
injurious. It was also denied that there
were substances known as coca and cola-
sunder their own distinctive names," and it
was averred that the product did contain
"certain elements or substances derived
from coca leaves and cola nuts." The an-
swer also set forth, in substance, that
''Coca Cola" was the "distinctive name" of
the product under which it had been known
and sold for more than twenty years as an
article of food, with other averments nega-
tiving adulteration and misbranding under
the provisions of the act.
Jury trial was demanded, and voluminous
testimony was taken. The district judge
directed a verdict for the claimant (191
Fed. 431), and judgment entered according-
ly was affirmed on writ of error by the cir-
cuit court of appeals (132 C. C. A. 47, 215
Fed. 535 ) . And the government now prose-
Btttes this writ.
First. As to "ctdulteration,** The claim-
int, in its summary of the testimony, states
that the article in question "is a syrup
manufactured by the claimant . . . and
lold and used as a base for soft drinks
both at soda fountains and in bottles. The
svidence shows that the article contains
ragar, water, caffeine, glycerine, lime juice,
ind other flavoring matters. As used by the
•onsumer, about 1 ounce of this syrup is
^en in a glass mixed with [272] about 7
>Qnce8 of carbonated water, so that the
Mmsumer gets in an 8-ounce glass or bottle
>f the beverage, about 1.21 grains of caf-
feine." It is said that in the year 1886
% pharmacist in Atlanta "compounded a
^rup by a secret formula, which he called
Coca-Cola Syrup and Extract;'" that the
sUimant acquired "the lormulay namey
•O li. ed.
label, and good will for the product" in
1892, and then registered "a trademark
for the syrup consisting of the name Coca
Cola," and has since manufactured and sold
the syrup under that name. The proportion
! of caffeine was slightly diminished in the
preparation of the article for bottling pur-
poses. The claimant again roistered the
name "Coco Cola" as a trademark in 1905,
averring that the mark had been "in actual
use as a trademark of the applicant for
more than ten years next preceding the pas-
sage of the act of February 20, 1905," and
that it was believed such use had been ex-
clusive. It is further stated that, in manu-
facturing in accordance with the formula,
"certam extracts from the leaves of the coca
shrub and the nut kernels of the cola tree
were used for the purpose of obtaining a
flavor," and that "the ingredient contain-
ing these extracts," with cocaine eliminated,
is designated as "Merchandise No. 5." It
appears that in the manufacturing process
water and sugar are boiled to make a syrup ;
there are four meltings; in tl^e second or
third the caffeine is put in; after the melt-
ings the syrup is conveyed to a cooling tank
and then to a mixing tank, where the other
ingredients are introduced and the flnal
combination is effected; and from the mix-
ing tank the flnished product is drawn off
into barrels for shipment.
The questions with respect to the charge
of "adulteration" are (1) whether the caf«
feine in the article was an added ingredient
within the meaning of the act (§ 7, subdiy.
5th), and, if so, (2) whether it was a poi-
sonous or deleterious ingredient which mif^ht
render the article injurious to health. The
decisive ruling in the courts below resulted
[273] from a negative answer to the flrst
question. Both the district judge and the
circuit court of appeals assumed for the pur-
pose of the decision that as to the second
question there was a conflict of evidence
which would require its submission to the
jury. (191 Fed. 433, 132 C. C. A. 47, 215
Fed. 540.) But it was concluded, as the
claimant contended, that the caffeine — even
if it could be found by the jury to have the
alleged effect — could not be deemed to be
an "added ingredient" for the reason that
the article was a compound, known and
sold under its own distinctive name, of
which the caffeine was a usual and normal
constituent. The government challenges
this ruling and the construction of the stat-
ute upon which it depends ; and the extreme
importance of the question thus presented
with respect to the application of the act
to articles of food sold under tradenames is
at once apparent. The government insists
that the fact that a formula has been made
up and followed and a diatinfiAi'^ ^dmsl^
273-276
SUPREME COURT OF THE UNITED STATES.
Cor. TfeuCy
adopted does not sui&ce to take an article
from the reach of the statute; that the
standard hj which the combination in such
a case is to be judged is not necessarily the
combination itself ; that a poisonous or dele-
terious ingredient with the stated injurious
effect may still be an added ingredient in
the statutory sense, although it is covered
by the formula and made a constituent of
the article sold.
The term *'food," as used in the statute,
includes '*all articles used for food, drink,
confectionery, or condiment . . . whether
simple, mixed, or compound" (§6). An
article of "food" is to be deemed to be "adul-
terated" if it contain "any added poison-
ous or other added deleterious ingredient
which may render such article injurious to
health." (§ 7, subdiv. 6th i). With this
[274] section is to be read the proviso in §
8, to the effect that "an article of food which
does not contain any added poisonous or
deleterious ingredients shall not be deemed
to be adulterated or misbranded" in the
case of ''mixtures or compounds which may
be now or from time to time hereafter
known as articles of food, under their own
distinctive names," if the distinctive name
of another article is not used or imitated,
and the name on the label or brand is ac-
companied with a statement of the place of
production. And § 8 concludes with a
further proviso that nothing in the act shall
be construed "as requiring or compelling
proprietors or manufacturers of proprietary
foods which [276] contain no unwholesome
added ingredient to disclose their trade
formulas, except in so far as the proYiaioiia
of this act may require to secure freedom
from adulteration or misbranding.*^
[276] In support of the ruling below, em-
phasis is placed upon the general purpoee of
the act, which, it is said, was to prerent de-
ception, rather than to protect the public
health by prohibiting traffic in articles which
might be determined to be deleterious. But
a description of the purpose of the statute
would be inadequate which failed to take ac-
count of the design to protect the public
from lurking dangers caused by the intro-
duction of harmful ingredients, or which as-
sumed that this end was sought to be
achieved by simply requiring certain disclos-
ures. The statute is entitled, "An Act for
Preventing the Manufacture, Sale, or Trans-
portation of Adulterated or Misbranded or
Poisonous or Deleterious Foods, Drugs,
Medicines, and Liquors," etc. In the
case of confectionery, we find that is is
to be deemed to be adulterated if it con-
tains certain specified substances "or oth-
er ingredient deleterious or detrimental
to health." So, under § 7, subdivision
6th, there may be adulteration of food
in case the article consists in whole or
in part of "any portion of an animal
unfit for food, whether manufactured or
not, or if it is the product of a diseased
animal, or one that has died otherwise than
by slaughter." In United States v. Lexing-
ton Mill & Elevator Co. 232 U. S. 399, 409,
58 L. ed. 658, 661, L.R.A.1915B, 774, 34
1 Section 7, with respect to "confection-
ery" and 'food" is as follows:
"Sec. 7. That for the purposes of this act
an article shall be deemed to be adulter-
ated:
• • •
"In the case of confectionery :
"If it contains terra alba, barytes, talc,
chrome yellow, or other mineral substance
or poisonous color or flavor, or other in-
gredient deleterious or detrimental to
health, or any vinous, malt, or spirituous
liquor or compound or narcotic drug.
"In the case of food:
"First. If any substance has been mixed
and packed with it so as to reduce or lower
or injuriously affect its quality or strength.
"Second. If any substance has been sub-
stituted wholly or in part for the article.
"Third. If any valuable constituent of the
article has been wholly or in part ab-
stracted.
"Fourth. If it be mixed, colored, pow-
dered, coated, or stained in a manner where-
by damage or inferiority is concealed.
"Fifth. If it contain any added poisonous
or other added deleterious in^^edient which
may render such article injurious to health :
Provided, That when in the preparation of
food products for shipment they are pre-
served by any external application applied
1000
in such manner that the preservative is
necessarily removed mechanically,' or bv
maceration in water, or otherwise, and di-
rections for the removal of said preserrative
shall be printed on the covering or the pack-
age, the provisions of this act shall be ecm-
strued as applying only when said products
are ready for consumption.
"Sixth. If it consists in whole or in part
of a filthy, decomposed, or putrid animal or
vegetable substance, or any portion of an
animal unfit for food, whether manufac-
tured or not, or if it is the product of a
diseased animal, or one that has died other-
wise than by slaughter."
> Section 8 provides:
"Sec. 8. That the term 'misbranded,' u
used herein, shall apply to all drugs, or
articles of food, or articles which enter into
the composition of food, the package or
label of which shall bear any statement,
design, or device regarding sudi article, or
the ingredients or substances contained
therein which shall be false or misleading
in any particular, . . .
"That for the purposes of this act sa
article shall also be deemed to be mil-
branded:
"In the case of food:
"First If it be an imitation «f or offered
S4i V. s.
1915.
UNITED STATES y. FORTY BABBBL&
276-278
Sup. Ct. Rep. 337, it was said that "the
statute upon its face shows that the pri-
mary purpose of Congress was to prevent in-
jury to the public health by the sale and
transportation [277] in interstate com-
merce of misbranded and adulterated foods.
The legislation, as against misbranding, in-
tended to make it possible that the consumer
should know that an article purchased was
what it purported to be; that it might be
bought for what it really was, and not up-
on misrepresentations as to character and
quality. As against adulteration, the stat-
ute was intended to protect the public health
from possible injury by adding to articles
of food consumption poisonous and deleteri-
ous substances which might render such
articles injurious to the health of consum-
ers." See also United States v. Antikamnia
Co. 231 U. S. 654, 665, 58 L. ed. 419, 424,
34 Sup. Ct. Rep. 222, Ann. Cas. 1915A, 49;
H. R. Report, No. 2118, 59th Cong., 1st
Sess., 6-9. It is true that in executing
these purposes Congress has limited its pro-
hibitions (Savage v. Jones, 225 U. S. 501,
529, 532, 56 L. ed. 1182, 1193, 1194, 32 Sup.
Ct. Rep. 715), and has specifically defined
what shall constitute adulteration or mis-
branding; but, in determining the scope of
specific provisions, the purpose to protect
the public health, as an important aim of
the statute, must not be ignored.
Reading the provisions here in question
in the light of the context, we observe:
(a) That the term "adulteration" is used
in a special sense. For example, the prod-
uct of a diseased animal may not be adul-
terated in the ordinary or strict meaning
of the word, but by reason of its being that
product tue article is adulterated within
the meaning of the act. The statute with
respect to "adulteration" and "misbrand-
ing" has its own glossary. We cannot^
therefore, assume that simply because a pre-
pared "food" has its formula and distinc-
tive name, it is not, as such, "adulterated.'^
In the case of confectionery, it is plain that
the article may be "adulterated" although it
is made in strict accordance with some
formula and bears a fanciful tradename, if
in fact it contains an "ingredient deleteri-
ous or detrimental to health, or any vinous,
malt, or spirituous liquor or compound or
narcotic drug." And the context clearly in-
dicates that, [278] with respect to articles
of food, the ordinary meaning of "adultera-
tion" cannot be regarded as controlling.
(b) The provision in § 7, subdivision 5th,
assumes that the substance which renders
the article injurious, and the introduction
of which causes "adulteration," is an in-
gredient of the article. It must be an "add-
ed" ingredient; but it is still an ingredient.
Component parts, or constituents, of the
article which is the subject of the described
traffic, are thus not excluded, but are in-
cluded in the definition. The article re-
ferred to in subdivision 5th is the article
sought to be made an article of commerce,
— the article which "contains" the ingre-
dient.
(c) "Adulteration" is not to be confused
for sale under the distinctive name of an-
other article.
"Second. If it be labeled or branded so
as to deceive or mislead the purchaser, or
purport to be a foreign product wben not
so, or if the contents of the package as
originally put up shall have been removed
in whole or in part and other contents shall
have been placed in such package, or if it
fail to bear a statement on the label of the
quantity or proportion of any morphine,
opium, cocaine, heroin, alpha or beta
eucaine, chloroform, cannabis indica, chloral
hydrate, or acetanilide, or any derivative or
preparation of any of such substances con-
tained therein.
"Third. If in package form, and the con-
tents are stated in terms of weight or meas-
ure, they are not plainly and correctly
stated on the outside of the package.
"Fourth. If the package containing it
or its label shall bear any statement, de-
sign, or device regarding the ingredients or
the substances contained therein, which
statement, design, or device shall be false
or misleadinjg in any particular: Provided,
That an article of food which does not con-
tain any added poisonous or deleterious in-
gredients shall not be deemed to be adul-
terated or misbranded in the following
cases:
•0 I/, ed.
"First. In the case of mixtures or com-
pounds which may be now or from time to
time hereafter known as articles of food,
under their own distinctive names, and not
an imitation of or offered for sale under the
distinctive name of another article, if the
name be accompanied on the same label or
brand with a statement of the place where
said article has been manufactured or pro-
duced.
"Second. In the case of articles labeRd,
branded, or tagged so as to plainly indicate
that they are compounds, imitations, or
blends, and the word 'compound,' 'imita-
tion,' or 'blend,' as the case may be, is
plainly stated on the package in which it
is offered for sale: Provided, That the term
blend as used herein shall be construed to
mean a mixture of like substances, not ex-
cluding harmless coloring or flavoring in-
gredients used for the purpose of coloring
and flavoring only: And provided further,
Tliat nothing in this act shall be construed
as requiring or compelling proprietors or
manufacturers of proprietary foods which
contain no unwholesome added ingredient
to disclose their trade formulas, except in
so far as the provisions of this act may re-
quire to secure freedom from adulteration
or misbranding."
loot
278-281
SUPBEME OOUET OF THE UNITED STATES.
OOT. IkBM,
with "misbranding." The fact that the pro-
visions as to the latter require a sta^ment
of certain substances if contained in an arti-
cle of food, in order to avoid ''misbranding/'
does not limit the explicit provisions of § 7
as to adulteration. Both provisions are
operative. Had it been the intention of Ck)n-
gress to confine its definition of adulteration
to the introduction of the particular sub-
stances specified in the section as to mis-
branding, it cannot be doubted that this
would have been stated, but Congress gave
a broader description of ingredients in de-
fining "adulteration." It is "any" added
poisonous or "other added deleterious In-
gredient," provided it "may render such
article injurious to health."
(d) Proprietary foods, sold under dis-
tinctive names, are within the purview of
the provision. Not only is "food" defined as
including articles used for food or drink,
"whether simple, mixed, or compound," but
the intention to include "proprietary foods"
sold under distinctive names is manifest
from the provisos in § 8 which the claim-
ant invokes. "Mixtures or compounds"
which satisfy the first paragraph of the
proviso are not only "articles of food," but
are to enjoy the stated immunity only in
case they do "not contain any added poison-
ous or deleterious [270] ingredients." By
the concluding clause of § 8, it is provided
that nothing in the act shall be construed to
require manufacturers of "proprietary
foods" to disclose "their trade formulas"
except in so far as the provisions of the
act "may require to secure freedom from
adulteration or misbranding;" and the im-
munity is conditioned upon the fact that
such foods "contain no unwholesome added
ingredient." Thus the statute contemplates
that mixtures or compounds manufactured
by those having trade formulas, and bear-
ing distinctive names, may nevertheless con-
tain "added ingredients" which are poison-
ous or deleterious and may make the article
injurious, and, if so, the article is not taken
out of the condemnation of § 7, subdiv. 5th.
(e) Again, articles of food, including
"proprietary foods" which fall within this
condemnation, are not saved because they
were already on the market when the stat-
ute was passed. The act makes no such
distinction; and it is to be observed that
the proviso of § 8* explicitly refers to "mix-
tures or compounds which may be now or
from time to time hereafter known as arti-
cles of food." Nor does the length of the
period covered by the traffic, or its extent,
affect the question if the article is in fact
adulterated within the meaning of the act.
Having these considerations in mind we
deem it to be clear that, whatever difficulties
there may be in construing the provision,
looa
the claimant's argument proves far too
much. We are not now Haaitng with the
question whether the caffeine did, or mighty
render the article in question injurious;
that is a separate inquiry. The fundamen-
tal contention of the claimant, as we liavt
seen, is that a constituent of a food prod-
uct having a distinctive name cannot be
an "added" ingredient. In such case, the
standard is said to be the food product it-
self which the name designates. It must
be, it is urged, this "finished product" that
is "adulterated." In that view, there would
[280] seem to be no escape from the oondn-
sion that, however poisonous or deleterious
the introduced ingredient might be, and how-
ever injurious its effect, if it be made a
constituent of a product having its own
distinctive name it is not within the provi-
sion. If this were so, the statute would be
reduced to an absurdity. Manufacturers
would be free, for example, to put arsenic
or strychnine or other poisonous or deleteri*.
ous ingredients with an unquestioned in-
jurious effect into compound articles of
food, provided the compound were made ao*
cording to formula and sold under some
fanciful name which would be distinctive.
When challenged upon the ground that the
poison was an "added" ingredient, the an-
swer would be that without it the so-called
food product would not be the product de-
scribed by the name. Further, if an article
purporting to be an ordinary food product,
sold under its ordinary name, were con-
demned because of some added deleterious
ingredient, it would be difficult to see why
the same result could not be attained with
impunity by composing a formula and giving
a distinctive name to the article with the
criticized substance as a component part
We think that an analysis of the statute
shows such a construction 'of the provision
to be inadmissible. Certain incongruities
may follow from any definition of the word
"added," but we cannot conclude that it
was the intention of Congress to afford im-
munity by the simple choice of a formula
and a name. It does not seem to us to be
a reasonable construction that in the case
of "proprietary foods" manufactured under
secret formulas Congress was simply con-
cerned with additions to what such formulss
might embrace. Undoubtedly, it was not
desired needlessly to embarrass manufa^
turers of "proprietary foods" sold under dii-
tinctive names, but it was not the purposi
of the act to protect articles of this sort
regardless of their character. Only such
food products as contain "no unwholesome
added ingredient" are within the saving
clause, and [281] in using the words quoted
we are satisfied that Congress did not make
the proprietary article its own standard.
141 V. B.
1915.
UNITED 6TATB8 y. FORTY BARRELS.
281-283
Equally extreme and inadmissible is the
suggestion that where a "proprietary food"
would not be'the same without the harmful
ingredient, to eliminate the latter would
constitute an "adulteration" under § 7, sub-
division 3d, by the abstraction of a "valu-
able constituent." In that subdivision Con-
gress evidently refers to articles of food
which normally arc not within the condem-
nation of the act. Congress certainly did
not intend that a poisonous or deleterious
ingredient which made a proprietary food
an enemy to the public health should be
treated as a "valuable constituent," or to
induce the continued use of such injurious
ingredients by making their elimination an
adulteration, subject to the penalties of the
statute.
It is apparent, however, that Congress, in
using the word "added," had some distinc-
tion in view. In the Senate bill (for which
the measure as adopted was a substitute)
there was a separate clause relating to
''liquors," providing that the article should
be deemed to be adulterated if it contained
"any added ingredient of a poisonous or
deleterious character;" while in the case of
food (which was defined as excluding li-
quors) the article was to be deemed to be
"adulterated" if it contained "any added
poisonous or other ingredient which may
render such article injurious to human
health." Cong. Rec., 59th Cong., 1st Sess.
vol. 40, p. 897. In explaining the provision
as to "liquors," Senator Heyburn, the chair-
man of the Senate committee having the
bill in charge, stated to the Senate (Id., p.
2647 ) : "The word 'added,' after very ma-
ture consideration by your committee, was
adopted because of the fact that there is
to be found in nature's products as she pro-
duces them, poisonous substances to be
determined by analysis. Nature has so com-
bined them that they are not a danger or
an evil, — ^that is, so long as they are left
in [282] the chemical connection in which
nature has organized them; but when they
are extracted by the artificial processes of
chemistry they become a poison. You can
extract poison from grain or its products
and when it is extracted it is a deadly poi-
son; but if you leave that poison as nature
embodied it in the original substances, it is
not a dangerous poison or an active agency
of poison at all. So, in order to avoid the
threat that those who produce a perfectly
legitimate article from a natural product
might be held liable because the product
contained nature's poison, it was thought
•uiBcient to provide against the adding of
any new substance that was in itself a
poison, and thus emphasizing the evils of
existing conditions in nature's product,
niat is the reason the word 'added' is in
60 li. ed.
the bill. Fusel oil is a poison. If you ex-
tract it, it becomes a single active agency
of destruction, but allow it to remain in
the combination where nature has placed
it, and, while it is nominally a poison, it
is a harmless one, or comparatively so."
For the Senate bill, the House of Repre-
sentatives substituted a measure which had
the particular provisions now under con*
sideration in substantially the same form
in which they were finally enacted into law.
(§ 7, subdiv. 6th; § 8, subdiv. 4th, provisos.)
And the committee of the House of Repre-
sentatives, in reporting this substituted
measure, said (H. R. Report, No. 2118, 59th
Cong., 1st Sess., pp. 6, 7, 11) : "The pur-
pose of the pending measure is not to com-
pel people to consume particular kinds of
foods. It is not to compel manufacturers
to produce particular kinds or grades of
foods. One of the principal objects of the
bill is to prohibit in the manufacture of
foods intended for interstate commerce the
addition of foreign substances poisonous or
deleterious to health. The bill does not
relate to any natural constituents of food
products which are placed in the foods by
nature itself. It is well known that in
many kinds of foods in their natural state
some quantity of poisonous [283] or dele-
terious ingredients exist. How far these sub-
stances may be deleterious to health when
the food articles containing them are con-
sumed may be a subject of dispute between
the scientists, but the bill reported does not
in any way consider that question. If, how-
ever, poisonous or deleterious substances are
added by man to the food product, then the
bill declares the article to be adulterated,
and forbids interstate traffic."
This statement throws light upon the in-
tention of Congress. Illustrations are given
to show possible incongruous results of the
te8t,but they do not outweigh this deliberate
declaration of purpose; nor do we find in
the subsequent legislative history of the
substituted measure containing the provi-
sion any opposing statement as to the sig-
nificance of the phrase. It must also be
noted that some of the illustrations which
are given lose their force when it is re-
membered that the statutory ban (§ 7, sub-
div. 6th) by its explicit terms only applies
where the added ingredient may render the
article injurious to health. See United
States V. Lexington Mill & Elevator Co. 232
U. S. 399, 409, 58 L. ed. 658, 661, L.R.A
1915B, 774, 34 Sup. Ct. Rep. 337. It is
urged that whatever may be said of natural
food products, or simple food products, to
which some addition is made, a "proprie-
tary food" must necessarily be "something
else than the simple or natural article;"
that it is an "artificial preparation." It is
loot
283-286
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tebm,
insisted that every ingredient in such a
compound cannot bo deemed to be an ''add-
ed" ingredient. But this argument, and
the others that are advanced, do not com-
pel the adoption of the asserted alternative
as to the saving eflScacy of the formula.
Nor can we accept the view that the word
"added" should be taken as referring to
the quantity of the ingredient used. It is
added ingredient which the statute describes,
not added quantity of the ingredient, al-
though of course quantity may be highly
important in determining whether the in-
gredient may render the article harmful,
and experience in the use of ordinary arti-
cles of [284] food may be of greatest value
in dealing with such questions of fact.
Congress, we think, referred to ingredients
artificially introduced; these it described
as "added." The addition might be made
to a natural food product or to a compound.
If the ingredient thus introduced was of
the character and had the effect described,
it was to make no difference whether the
resulting mixture or combination was or
was not called by a new name or did or
did not constitute a proprietary food. It
is said that the preparation might be "en-
tirely new." But Congress might well sup-
pose that novelty would probably be sought
by the use of such ingredients, and that
this womld constitute a means of deception
and a menace to health from which the
public should be protected. It may also
have been supposed that, ordinarily, famil-
iar food bases would be used for this pur-
pose. But, however the compound purport-
ing to be an article of food might be made
up, we think that it was the intention of
Congress that the artificial introduction of
ingredients of a poisonous or deleterious
character which might render the article
injurious to health should cause the prohibi-
tion of the statute to attach.
In the present case, the article belongs to
a familiar group; it is a syrup. It was
originally called "Cooo-Cola Syrup and Ex-
tract." It is produced by melting sugar, —
the analysis showing that 62.64 per cent
of the product is sugar and 42.63 per cent
is water. Into the syrup thus formed by
boiling the sugar, there are introduced col-
oring, fiavoring, and other ingredients, in
order to give the syrup a distinctive char-
acter. The caffeine, as has been said, is in-
troduced in the second or third "melting."
We see no escape from the conclusion that it
is an "added" ingredient within the mean-
ing of the statute.
Upon the remaining question whether the
caffeine was a poisonous or deleterious in-
gredient which might render the article
injurious to health, there was a decided con-
flict [286] of competent evidence. The gov-
1004
emment's experts gave testimony to the
effect that it was, and the claimant intro-
duced evidence to show the contrary. It ia
suflftcient to say that the question was plain-
ly one of fact which was for the oonsidera-
tion of the jury. See 443 Cans of Frozea
Egg Product V. United States, 226 U. S. 172,
183, 57 L. ed. 174, 170, 33 Sup. Ct. Rep.
60.
Second. As to "mithranding" In the
second count it was charged that the ex-
pression "Coca Cola" represented the pres*
ence in the product of the substances coca
and cola, and that it contained "no coca
and little if any cola." So far as "cola"
was concerned, the charge was vague and
indefinite, and this seems to have been con-
ceded by the government at the beginning of
the trial. With respect to "coca," there
was evidence on the part of the goveminent
tending to show that there was nothing in
the product obtained from the leaves of the
coca plant, while on behalf of the claim-
ant it was testified that the material called
"Merchandise No. 6" (one of the ingredi-
ents) was obtained from both coca leavea
and cola nuts. It was assumed on the mo-
tion for a peremptory instruction that there
might be a disputed question of fact as to
whether the use of the word "coca" is to
be regarded "intrinsically and originally"
as stating or suggesting the presence of
"some material element or quality" derived
from coca leaves, and it was also assumed
that the evidence might be deemed to be
conflicting with respect to the question
whether the product actually contained any-
thing so derived. 101 Fed. 438, 439. But
these issues of fact were considered not to
be material. On this branch of the case,
the claimant succeeded upon the ground
that its article was within the protection
of the proviso in § 8 as one known "under
its own distinctive name." 132 C. C. A.
47, 216 Fed. 644.
Section 8 (ante, p. 1000), in its 4th q>eci-
flcation as to "food," provides that the arti-
cle shall be deemed to be "miobranded" "if
the package containing it or its label shall
[286] bear any statement, design, or device
regarding the ingredients or the substancea
contained therein, which . . . shall be
false or misleading in any particular." Then
follows the proviso in question that an
article not containing any added poisonous
or deleterious ingredients "shall not be
deemed to be . . . misbranded" in the
case of "mixtures or compounds which may
be now or from time to time hereafter
known as articles of food, under their own
distinctive names, and not an imitation of
or offered for sale under the distinctive
name of another article," if the name is
241 U. 8.
1915.
UNITED STATES ▼. FORTY BARRELS.
286-288
«<
aocompanied with a ttaUment of the place
where the article has been produced.^
A distinctive name is a name that dis-
tinguishes. It may be a name in common
use as a generic name, e. g,, [287] coffee,
flour, etc. Where there is a trade descrip-
tion of this sort by which a product of a
given kind is distinctively known to the pub-
lic, it matters not that the name had orig-
inally a different significance. Thus, soda
water is a familiar trade description of an
article which now, as is well known, rarely
contains soda in any form. Such a name Is
not to be deemed either "misleading" or
false," as it is in fact distinctive. But un-
less the name is truly distinctive, the im-
munity cannot be enjoyed; it does not ex-
tend to a case where an article is offered for
sale "under the distinctive name of another
article/' Thus, that which is not coffee, or
is an imitation of coffee, cannot be sold as
coffee; and it would not be protected by
being called "X's Coffee." Similarly, that
which is not lemon extract could not obtain
immunity by being sold under the name of
"Y's Lemon Extract." The name so used
is not "distinctive," as it does not appro-
priately distinguish the product; it is an
effort to trade under the name of an article
of a different sort. So, with respect to
"mixtures or compounds," we think that
the term "another article" in the proviso
embraces different compounds from the com-
pound in question. The aim of the, statute
is to prevent deception, and that which ap-
propriately describes a different compound
cannot secure protection as a "distinctive
name."
A "distinctive name" may also, of course,
be purely arbitrary or fanciful, and thus,
being the trade description of the particular
thing, may satisfy the statute, provided the
name has not already been appropriated for
something else so that its use would tend
to deceive.
If, in the present case, the article had
been named "Coca," and it were found that
the name was actually descriptive in the
sense that it fairly implied that the article
was derived from the leaves of the coca
plant, it could not be said that this was
"its own distinctive name" if in fact it con-
tained nothing so derived. The [288] name,
if thus descriptive, would import a different
product from the one to which it was ac-
tually aflSxed. And, in the case supposed,
the name would not become the "distinctive
name" of a product without any coca in-
gredient unless in popular acceptation it
came to be regarded as identifying a product
known to be of that character. It would
follow that the mere sale of the product
under the name "Coca," and the fact that
this was used as a trade designation of the
product, would not suffice to show that it
had ceased to have its original significance
if it did not appear that it had become
known to the public that the article con-
tained nothing derived from coca. Until
such knowledge could be attributed to the
public, the name would naturally continue
to be descriptive in the original sense. Nor
would it be controlling that at the time of
the adoption of the name the coca plant was
known only to foreigners and scientists; for
if the name had appropriate reference to
that plant and to substances derived there-
from, its use would primarily be taken in
that sense by those who did know or who
took pains to inform themselves of its mean-
ing. Mere ignorance on the part of others
as to the nature of the composition would
not change the descriptive character of the
designation. The same conclusion would be
reached if the single name "Cola" had been
used as the name of the product, and it
were found that in fact the name imported
that the product was obtained from the
cola nut« The name would not be the dis-
tinctive name of a product not so derived
until in usage it achieved that secondary
significance.
We are thus brought to the question
whether, if the names coca and cola were
lAmon^ the departmental regulations
(adopted m October, 1006, pursuant to § 3,
for the enforcement of the act) is regulation
20 with respect to "distinctive names" un-
der § 8, as follows:
"(a) A 'distinctive name' is a trade,
arbitrary, or fancy name which clearly dis-
tinguishes a food product, mixture, or com-
pound from any other food product, mix-
ture, or compound.
''(b) A distinctive name shall not be one
representing any single constituent of a
mtxture or compound.
"(c) A distinctive name shall not mis-
represent any property or quality of a mix-
ture or compound.
"(d) A distinctive name shall give no
false indication of origin, character, or
place of manufacture, nor lead the purchaser
60 Ii. ed.
to suppose that it is any other food or drug
product."
Regulation 27 is as follows:
"(a) The terms 'mixtures' and 'com-
pounds' are interchangeable, and indicate
the results of putting together two or more
food products.
"(b) These mixtures or compounds shall
not be imitations of other articles, whether
simple, mixt, or compound, or offered for
sale under the name of other articles. They
shall bear a distinctive name and the name
of the place where the mixture or compound
has been manufactured or produced.
"(c) If the name of the place be one
which is found in different states, terri-
tories, or countries, the name of the state,
territory, or country, as well as the name
of the place, must be stated."
288-290
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
respectiyely descriptive, as the government
contends, a combination of the two names
constituted a ''distinctive name" within the
protection of the proviso in case either of
the described ingredients was absent. It is
said that ''coca" indicates one [280] article,
and "cola" another, but that the two names
together did not constitute the distinctive
name of any other substance or combination
of substances. The contention leads far. To
take the illustration suggested in argument,
it would permit a manufacturer, who could
not use the name chocolate to describe that
which was not chocolate, or vanilla, to de-
scribe that which was not vanilla, to desig-
nate a mixture as "Chocolate- Vanilla," al-
though it was destitute of either or both,
provided the combined name had not been
previously used. We think that the conten-
tion misses the point of the proviso. A
mixture or compotmd may have a name de-
scriptive of its ingredients or an arbitrary
name. The latter (if not already appropria-
ted) being arbitrary, designates the particu-
lar product. Names, however, which are
merely descriptive of ingredients, are not
primarily distinctive names save as they
appropriately describe the compound with
such ingredients. To call the compound by
a name descriptive of ingredients which are
not present is not to give it "its own dis-
tinctive name," — which distinguishes it
from other compounds, — but to give it the
name of a different compoimd. That, in
our judgment, is not protected by the pro-
viso, unless the name has achieved a second-
ary significance as descriptive of a product
known to be destitute of the ingredients in-
dicated by its primary meaning.
In the present case we are of opinion that
it could not be said as matter of law that
the name was not primarily descriptive of
a compound with coca and cola ingredients,
as charged. Nor is there basis for the con-
clusion that the designation had attained a
secondary meaning as the name of a com-
pound from which either coca or cola ingre-
dients were known to be absent; the claim-
ant has always insisted, and now insists,
that its product contains both. But if the
name was found to be descriptive, as
charged, there was clearly a conflict of evi-
dence with respect to the presence of any
coca ingredient. We conclude [200] that
the court erred in directing a verdict on the
second count.
The judgment is reversed and the cause
is remand^ for further proceedings in con-
formity with this opinion.
It is so ordered.
Mr. Justice MoReynolds took no part in
the consideration or decision of this case.
lOOC
SEABOARD AIR UNE RAILWAY, Plfl.
in Err.,
v.
J. T. RENN.
(See S. C. Reporter's ed. 200-295.)
Error to state conrt — Federal question
-employers' liability — amendment
of pleading.
1. Whether or not the two years' limi-
tation prescribed by the employers' liabil-
ity act of April 22, 1908 (35 Stat, at L.
65, chap. 140, Comp. Stat. 1013, § 8657), for
actions under that act, was in effect disre-
garded by permitting the amendment of the
complaint so as to state distinctly that, at
the time of the injury, the defendant was
engaged and the plaintiff employed in inter-
state commerce, is a Federal question sub-
ject to re-examination by writ of error to
a state court, however much the allowance
of the amendment otherwise might have
rested in discretion, or have been a matter
of local procedure.
[For other cases, see Appeal and Error, 1751-
1797, in Digest Sap. Ct. 1908.]
lilmitation of actions — suspension by
suit — amendment — new cause of ac-
tion — employers' liability.
2. Allegations in the complaint in a
suit in a North Carolina court by a rail-
way employee to recover for personal in-
juries suffered through the railway com-
pany's negligence, that the railway company
was operating a railway in Virginia, North
Carolina, and elsewhere, that plaintiff was
in its employ, and that, when injured, he was
in the line of duty, and that the injury oc-
curred in Virginia by reason of a defect in
the right of way, point, although imper-
fectly, to a cause of action under the Fed-
eral employers' liability act of April 22,
1908 (35 Stat, at L. 65, chap. 149, Comp.
Stat. 1913, § 8657), so that an amendment
stating distinctly that, at the time of the
injury, defendant was engaged and plaintiff
employed in interstate commerce, did not
introduce a new cause of action which would
Note. — On error to state courts in cases
arising under the Federal employers' lia-
bility act — see note to Great Northern R,
Co. V. Knapp, ante, 745.
On the constitutionality, application, and
effect of the Federal employers' liability act
— see notes to Lamphere v. Oregon R. 4
Nav. Co. 47 L.R.A.(N.S.) 38; and Sea-
board Air Line R. Co. v. Horton, L.RJL
1915C, 47.
On relation of new pleadings to statute
of limitations — see notes to Missouri, K.
ft T. R. Co. V. Bagley, 3 L.Rji.(N.S.) 259;
Bourdreaux v. Tucson Gas, £. L. ft P. Co.
33 L.R.A.(N.S.) 196; and Philadelphia, B.
ft W. R. Co. V. Gatta, 47 LJLA.(N.S.) 932.
On amendment of pleading after limita-
tion period by changing from common law
to statute, or vice versa, or from statute of
one Jurisdiction to statute of another — see
note to Allen v. Tuscarora Valley R. Co. 80
L.R^.(NJ3.) 1096.
141 V. B.
1916.
SEABOARD A. L. R. 00. t. BENN.
be barred, because the two years' limita-
tion prescribed by § 6 had then elapsed,
but such amendment merely expanded or
amplified what was alleged in support of
the cause of action, and related back to the
commencement of l^e suit.
[For other cases, see Limitation o^ Actions,
690-602, in Digest Sup. Ct. 190L.J
[No. 773.]
Argued April 4, 1016. Decided May 22,
1016.
IK ERROR to the Supreme Court of the
State of North Carolina to review a
judgment which affirmed a judgment of the
Superior Court of Wake County, in that
state, in favor of plaintiff in an action un-
der the Federal employers' liability act. Af-
firmed.
See same case below, — N. C. — , 86 S. E.
964.
The facts are stated in the opinion.
Mr. Murray Allen argued the cause and
filed a brief for plaintiff in error:
Cases from the state courts inyolving the
operation and effect of the Federal employ-
ers' liability act are reviewable by the Su-
preme Court on. writ of error.
St. Louis, I. M. A S. R. Co. v. McWhirter,
229 U. 8. 265, 57 L. ed. 1179, 33 Sup. a.
Rep. 858; St. Louis, I. M. & S. R. Co. v.
Taylmr, 210 U. S. 292, 52 L. ed. 1066, 28
Sup. Ot. Rep. 616, 21 Am. Neg. Rep. 464;
Seaboard Air Line R. Co. v. Duvall, 225 U.
8. 483, 56 L. ed. 1174, 32 Sup. Ct. Rep.
790; Seaboard Air Line R. Co. v. Horton,
233 U. S. 492, 58 L. ed. 1062, L.RA.1915C,
1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B,
475, 8 N. C. C. A. 834; Seaboard Air Line
R. Co. V. Padgett, 236 U. S. 668, 59 L. ed.
777, 35 Sup. Ct. Rep. 481; Seaboard Air
Line R. Co. v. Koennecke, 239 U. S. 352,
ante, 324, 86 Sup. Ct. Rep. 126.
The complaint does not state a cause of
action under the Federal statute.
Chicago ft E. R. Co. v. Hamerick, 50 Ind.
App. 425, 96 N. E. 649; Seaboard Air Line
R. Co. V. Duvall, 225 U. S. 477, 56 L. ed. 1171,
82 Sup. Ct. Rep. 790; North Carolina R.
Co. V. Zachary, 232 U. S. 248, 58 L. ed. 591,
34 Sup. Ct Rep. 305, Ann. Cas. 1914C, 159,
9 N. C. C. A. 109; Shade v. Northern P. R.
Co. 206 Fed. 353; Grand Trunk Western R.
Co. V. Lindsay, 233 U. S. 42, 58 L. ed. 838,
34 Sup. Ct. Rep. 581, Ann. Gas. 1914C, 168;
Missouri, K. & T. R. Co. v. Wulf, 226 U. S.
570, 57 L. ed. 355, 83 Sup. Ct. Rep. 135,
Ann. Cas. 1914B, 134; Morrison t. Balti-
more ft 0. R. Co. 40 App. D. C. 395, Ann.
Cas. 1914C, 1026; Brinkmder r. Missouri
P. R. Co. 224 U. 8. 268, 56 L. ed. 758, 32
Sup. Ct. Rep. 412; North Carolina R. Co.
▼. Zachary, 232 U. 8. 248, 68 L. ed. 591,
•• Ii. ed.
34 Sup. Ot. Rep. 305, 9 N. 0. C. A. 109;
Walton T. Southern R. Co. 179 Fed. 175.
The court will look only to the pleadings
to determine the basis of the plaintiff's
cause of action.
Hall V. Louisville ft N. R. 06. 157 Fed.
464; Smith v. Buttner, 90 Cal. 95, 27 Pac.
20; Chamblin v. Blair, 58 111. 385; 4 Enc.
PI. ft Pr. 746; Ejinsas City v. Hart,
60 Kan. 684, 57 Pac. 038; Haley v. Hob-
son, 68 Me. 167; Third Street ft Subur-
ban R. Co. V. Lewis, 173 U. S. 457, 460, 43
L. ed. 766, 767, 49 Sup. Ct. Rep. 451 ; West-
em U. Teleg. Co. v. Southern ft St. L. R.
Co. 125 C. 0. A. 466, 208 Fed. 266; Minne-
sota V. Northern Securities Co. 194 U. S.
48, 64, 48 L. ed. 870, 878, 24 Sup. Ot Rep.
598; Washington ft I. R. Co. v. Ccsur
lyAlene R. ft Nav. Co. 160 U. S. 77, 40 L.
ed. 346, 16 Sup. Ct. Rep. 231.
The cause of action created by the Fed-
eral statute is separate and distinct from
the cause of action created by the state
statute, or arising tmder the common law.
Midland Valley R. Co. v. Ennis, 109 Ark.
206, 159 S. W. 214; Second Employers* Lia-
bility Cases (Mondou v. New York, N. H.
ft H. R. Co.) 223 U. S. 1, 56 L. ed. 327, 38
L.RJV.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1
N. C. C. A. 875; Michigan C. R. Co. v.
Vreeland, 227 U. S. 59, 57 L. ed. 417, 33
Sup. Ot. Rep. 192, Ann. Cas. 1914C, 176;
St. Louis, I. M. ft S. R. Co. v. Craft, 237
U. 8. 648, 59 L. ed. 1160, 35 Sup. Ct. Rep.
704, 9 N. 0. C. A. 754 ; Hlinois C. R. Co.
V. Behrens, 233 U. S. 473, 58 L. ed. 1051,
34 Sup. Ct. Rep. 646, Ann. Cas. 1914C, 163 ;
Pedersen v. Delaware, L. ft W. R. Co. 229
U. S. 150, 57 L. ed. 1127, 33 Sup. Ct. Rep.
648, Ann. Oas. 1914C, 153, 3 N. 0. 0. A.
779; Taylor v. Taylor, 232 U. 8. 363, 58 L.
ed. 638, 34 Sup. Ct. Rep. 350, 6 N. C. C. A.
436; Central Vermont R. Co. v. White, 238
U. S. 507, 59 L. ed. 1433, 35 Sup. Ct. Rep.
885, Ann. Cas. 1916B, 252, 9 N. 0. 0. A.
265; Seaboard Air Line R. Co. v. Koen-
necke, 239 U. 8. 352, ante, 324, 36 Sup. Ct.
Rep. 126; Seaboard Air Line R. Co. v.
Horton, 233 U. S. 492, 58 L. ed. 1062, L.R.A.
19150, 1, 34 Sup. Ct. Rep. 636, Ann. Cas.
1915B, 475, 8 N. 0. 0. A. 834; Toledo, St.
L. ft W. R. Co. V. Slavin, 236 U. S. 454, 59
L. ed. 671, 35 Sup. Ct. Rep. 306; Flanders
V. Georgia, 8. ft F. R. Co. 68 Fla. 479, 67
So. 68; Kamboris v. Or^fon- Washington R.
ft Nav. Co. 75 Or. 358, 146 Pac. 1097 ; Trox-
ell V. Delaware, L. ft W. R. Co. 227 U. 8.
434, 57 L. ed. 586, 33 Sup. Ct. Rep. 274;
Thornton, Federal Employers* Liability
Act, 2d ed. § 140; McAuliffe v. New York
C. ft H. R. R. Co. 164 App. Div. 846, 150
N. Y. Supp. 512.
The plaintiff had the seleetion of the
basis of his action.
292, 298
SUPRBUE COURT OF THB UNITED STATES.
OCPr. ■
St. Louis, I. M. & B. R. Co. v. HMterlj,
226 U. S. 702, 07 L. ed. 1031, 33 Sup. Ct,
Sep. 703.
The court had no power to allow tn
uneudnient stating for the flrit time a
cause of action under the Federal act aftei
the expiration of the period Siod by the
act for the commcncenient of auch action.
Atlantic Ooaat Line R. Co. t. Burnette,
239 U, S. 199, ante, 226, 36 Sup. Ct. Rep.
7K; Bennett t. North Carolina R. Co. 1G9
N. C. 345, 74 S. E. 883; NelMn t. Fir»t
Kat. Bank, 130 Ala. S86, 101 Am. St. Rep.
S2, 3G So. 707; Anderaon v. WetUr, 103
He. 267, 15 L.R.A.(N.S.) 10C3, SO Atl. 105;
Henderson v. Qraham, 84 N. C. 49S; Martin
V. Young, B5 N. C. 167; Gtllam v. Life Ini.
Co. 121 N. C. 380, 28 S. E. 470; Christmaa
V. Mitchell, 38 N. C. (3 Ired. Eq.) 536;
Cogdell V. Exum, 60 M. C. 404, 12 Am. Rep.
flfi7; Patterson \. Wadaworth, 04 N. O.
MS; Sama v. Price, 121 N. C. 302, 28 8.
E. 486; Hall V. Southern R. Co. 149 N. C.
108, 62 S. E. 809; Morrison v. Baltimore
k 0. R. Co. 40 App. D. C. 301, Ann. Cas.
1014C, 1026; Mohr v. Lemie, 00 Ala. 180;
Whaien v. Gordon, 37 C. C. A. 70, 05 Fed.
313; Union P. R. Co. v. Wyler, 168 U. S.
293, 30 L. ed. 080, Ifi Sup. Ct Rep. 877:
Atlantic ft P. R. Co. v. Laird, 164 U. S.
396, 41 L. ed. 480, 17 Sup. Ot. Rep. 120;
United SUtea t. Dalcour, 203 U. S. 408, 61
L. ed. 248, 27 Sup. Ct. Rep. 68; Uiaaouri,
K. ft T. R. Co. T. Wulf, 228 U. S. 670, 57
L. ed. 355, 33 Sup. Ct. Rep. 13S, Ann. Cas.
1014B, 134; Bt Louie, I. M. ft S. R. Co. 'v.
Heaterly, anpra; Patillo t. Allen-Weet Com.
miaaion Co. 65 C. C. A. 508, 131 Fed. 680;
Moliter v. Wabash R. Co. 180 Mo. App. 84,
168 S. W. 250; Hughea *. New York, 0. ft
W. R. Co. 158 App. Div. 443, 143 N. Y.
Supp. 603; Findle; v. Coal ft Oolce R. Co.
— W. Va. — , 87 S. E. 108; Hail v. Louia-
ville A N. R. Co. 167 Fed. 404 ; Creteau v.
Chicago ft N. W. R. Co. 113 Minn. 418, 120
N. W. 855.
The amendment allowed by the court
states a new cause of action, which is
tMrred by the expiration of the period of
limitation fixed bj the act creating the
right of action.
Roberts, Injuries \o Interstate Employ-
ees, 1016, SS 162. 163; Allen v. Tuscarora
Valley R. Co. 220 Pa. 07, 30 L.R.A.(N.S.)
1006, 140 Am. St. Rep. 714, 78 Atl. 34;
Moliter t. Wabash R. Co. 180 Mo. App. 84,
168 S. W. 260; Hughes t. New York, O. ft
W. R. Co. IS8 App. Div. 443, 143 N. Y.
Supp. 603; Findley v. Coal ft Coke R. Co.
— W. Va. — , 87 S. E. 198,
i099
Meaars. Robert N. SImma and WU^
lUm C. Donlnaa argued the cause, and,
with Mr. Clyde A. Douglua filed a brief for
defendant in error:
The original complaint eontaina sufficient
allegations under the Federal act.
Seaboard Air Line R. Co. v. DuraU, 225
U. 8. 477, 66 L. *d. 1171, 32 Sup. Ot. Hep.
790.
If the complaint was insufflcient, it wa*
only a defective statement of a good cause.
Allen V. Carolina R. Co. 120 N. C. 648,
27 S. E. 76; Seaboard Air Line 7. Co. t.
Main, 132 N. C. 452, 43 S. B. 930.
Hie allowance of the amendment in-
volved only a question of local practice, and
presents no Federal question.
Brinkmeier v. Missouri P. R. Co. 224 V.
8. 268, 56 L. ed. 758, 32 Sup. Ct. Rep. 412;
Wabaab R. Co. v. Hayes, 234 U. S. 86, 68 L.
ed. 1820, 34 Sup. Ct. Rep. 729, 6 N. C. C.
A. 224; Central Vermont R. Oo. v. White,
238 U. B. 507, GO L. ed. 1433. 35 Sup. Ct.
Rep. 865, Ann. Caa. 1016B, 252, B N. C. C.
A. 266.
It is, of course, fundamental that if the
amendment did not state a new cause of
action, its allowance was in the diacretion
of the court, and the plea of the statute ot
limitations waa not available against tt, the
original complaint having been filed and the
action commenced before the bar of the stat-
ute. It is also fundamental that when as
amendment ia properly allowed, it is oper-
ative and conatrued as if it had been made
at the eomnicncement of the action.
Note to Union P. R. Co. v. Wyler, 30 L.
ed. 983; Wynne v. London ft Q. ins. Oo. 71
N. 0. 121 ; Ely V. Early, 94 N. C. 1 ; Whaien
V. Gordon, 37 C. C. A. 70, 05 Fed. 306;
Woodcock T. Bostic, 128 N. C. 243, 30 8. E.
881.
Defendant in error especially relies upon
Missouri, K. ft T. R. Oo. v. Wulf, 226 U. S.
570, 57 L. ed. 355, 33 Sup. Ct. Rep. 135,
Ann. Cas. 1014B, 134.
Mr. Justice Van Deranter delivered ths
opinion of the court:
Thia was an action by an employee ot a
railroad company to recover from ths latter
for peraonal injuries suffered through its
negligence. The plaintiff had a verdict and
judRment under the employera' liability act
if Congress (chap. 140, 85 Stat, at L. U.
Comp. Stat. IS13, g 8657 ; chap. 143, 36 Btat
it L. 291), the judgment was afflrmed (—
tf. c. — , 86 B. E. 064), and the defendant
brings the ease here.
The original complaint was exceedingly
brief and did [293] not snlBcieotlj idlege
that at the time of the Injury the defendant
was engaged and the plaintiff emplorad in
interstate commeros. During the trial ths
t4i u. a.
igifi.
BEABOABD A. L. K. CO. *. REMN.
defendant sought Mme advantage from thii
and the court, over the defendant's objec
tion. permitted the complaint to be Bi
amended as to state dJEtinctly tbe defend
ant's engagement and the plaintiff's «np1o;
ment in such commerce. Both partiei
conceded that what wtia alleged in thi
amendment was true in tact and conformet
to the proofs, and that point has alnce beei
treated as settled. Tbe defeodaot's objec
tion was that the original complaint die
not state a cause of action under the act o
Congress, that with the amendment the com
plaint would state a new cause ol action un
der that act, and that, as more than tw<
^ears had elapsed since tbe right of actioi
accrued, the amendment could not be madi
the medium of introducing this new cause ol
action consistently with the provision in 9 (
that "no action shall be maintained undei
this act unless commenced within two yean
from the day the cause of action acrued.'
Whether in what was done this restrictioc
was in elTect disregarded is a Federal ques
tion and subject to re-examination here
however much the allowance of the amend-
ment otherwise might have rested In dis
crction or been a matter of local procedure
Atlantic Coast Une R. Co. v. Bumette, 23S
U. S. 199, ante, 226, 36 Sup. Ct. Hep. 75. 11
the amendment merely eipanded or ampli-
fied what was alleged in support of the caust
of action already asserted, it related back to
the commencement of the action, and was
not affected by tbe intervening lapse of time.
Texas t P. R. Co. v. Coi, 145 U, S. 693, 803,
604, 36 h. ed. 82S, 832, 833, 12 Sup. Ct. Rep.
fl06; Atlantic & P. R. Co. v. Laird, 164 U. S.
393, 41 L. ed. 485, IT Sup. Ct. Rep. 120;
Hutdiinson v. Otis, 190 U. 8. 552, 655, 47
L. ed. 1179, 1181, 23 Sup. Ct. Rep. 778;
Missouri, K. & T. R. Co. v. Wulf, 226 U. S.
570, 67S, 57 L. ed. 355, 363, 33 Sup. Ct Rep.
135, Ann. Cas. 1914B, 134; Crotty v. Chica-
go G. W. R. Co. 95 C. C. A. 91, 16B Fed. 593.
But if it introduced a new or different cause
of action, it was the equivalent of a new
BUit, as to which the running [294] of the
limitation was not theretofore arrested. Sic-
ard V. Davis. 6 Pet. 124, 140, 6 L. ed. 342,
348; Union P. R. Co. v. Wyler, 158 U. S.
285, 39 L. ed. 883, 15 Sup. Ct. Rep. 877;
United SUtes v. Dalcour, 203 U. S. 408, 423,
61 L. ed. 248, 251, 27 Sup. Ct. Rep. 68. The
original complaint set forth that the defend-
ant was operating a line of railroad in
Virginia, North Carolina, and elsewhere;
that tbe plaintiff was in its employ; that
when he was injured he was in the line of
duty and was proceeding to get aboard one
of the defendant's trains, and that the in-
jury was sustained at Cochran, Virginia,
through the defendant's negligence in per-
mitting a part of its right of way at that
place to get and remain in a dangeroua con-
• O L. ed.
dition. Of course, the right of action could
not arise under the laws of North Carolina
when the causal negligence and the injury
occurred in Virginia; and tbe absence of
any mention of the laws of the latter stat«
was at least consistent with their inappli-
cability. Besides, the allegation that the d«-
feodant was operating a railroad in statas
other than Virginia was superfluous if the
right of action arose under the laws of that
state, and was pertinent only if it arose in
Interstate commerce, and therefore under the
act of Congress. In these drcumstances,
while the question is not free from difBeulty,
we cannot say that the court erred in treat-
ing the original complaint a* pointing, al-
though only imperfectly, to a cause of action
inder the law of Congress. And this being
w, it must be taken that the amendment
merely expanded or amplified what w.'.s al-
leged in support of that cause of action, and
related back to the commencement of the
mit, which was before the limitation had ex.-
£rror is assigned upon a refusal to in-
itruct the jury, as matter of law, that there
vas no evidence of actionable n^ligence on
:he part of tbe defendant, and that the evi-
lence conclusively established an as sump-
lion by the plaintiff of the risk resulting in
lis injury. Both courts, trial and appellate,
leld against the defendant upon these
[295] points.. They involve an apprecia-
jon of all the evidence and the inferences
vhich admissibly might be drawn there-
rom; and it suffices to say that we find no
luch clear or certain error as would justify
listurbing the concurring conclusions of
he two courts upon these questions. Qreat
Northern R. Co. v. Knapp, 240 U. 8. 464;
inte, "45, 36 Sup. Ct. Rep. 399; Baugham
■. New York, P. A N. R. Co. decided thi*
lay [241 U. S. 237, ante, 877, 36 Sup. Ct
lep. 592].
Complaint also is made of the Instructions
;iven upon the measure of damages. Tbe
riticism is directed against mere frag-
sents of this part of tbe charge, and the
ibjectlons made at the time were not such
s were calculated to draw the trial court's
.ttention to the particular complaint now
irged. The inaccuracies were not grave and
he charge as a whole was calculated to give
lie jury a fair understanding of the subject.
'he defendant, therefore, is not in a position
o press the complaint, especially as it waa
ot dealt with in the opinion of the appel-
ate court. See Magniac v. Thompson, 7
■et. 348, 3S0, 8 L. ed. 709, 723; McDermott
. Severe. 202 U. S. 600, 610, 50 L. ed. 1162,
IBS, 26 Sup. Ct. Rep. 709; Illinois C. R. Co.
. Skaggs, 240 U. S. 66, ante, 628, 36 Sup.
!t. Rep. 249.
Judgment affirmed.
206
SUPREME COURT OF THE UNITBD STATES.
Oor. TkBXf
BANKERS TRUST COMPANY, as Trustee,
Appt.,
V.
TEXAS ft PACIFIC RAILWAY COMPANY
and New Orleans Pacific Railway Com-
pany.
(See S. C. Reporter's ed. 205-310.)
Federal courts — Jurisdiction — suits
by or ac^ainst Federal corporation.
1. No exceptional or privileged Fed-
eral jurisdiction of suits by and against a
railway corporation created and existing
under the act of March 3, 1871 (16 Stat, at
L. 573, chap. 122 ) , and its amendments, was
established by the provision of § 1 of that
act that such company ''by that name
. . . shall be able to sue and be sued,
?ilead and be impleaded, defend and be de-
ended, in all courts of law and equity with-
in the United States." All that was in-
tended by that provision was to render tiie
corporation capable of suing and being sued
by its corporate name in any court of law
or equity — ^Federal, state, or territorial —
whose jurisdiction, as otherwise competent-
ly defined, was adequate to the occasion.
[For other cases, see Courts, 576-596, in Di-
gest Sap. Ct. 1908.]
Federal courts — Jurisdiction — suits
by or against Federal corporation.
2. Since the enactment of the act of
January 28, 1915 (38 Stat, at L. 803, chap.
22), § 5, providing that "no court of the
United States shall have jurisdiction of any
action or suit by or against any railroad
company upon the ground that said railroad
company was incorporated under an act of
Congress," no suit bv or against such a rail-
way company can be regarded, for juris-
dictional purposes, as arising under the
laws of the United States unless tiiere be
some adequate ground for so regarding it
other than that the company was thus in-
corporated, «. e., derived its existence, facili-
ties, and powers from such act of Congress.
[For other cases, see Courts, 576-596, in Di-
gest Sup. Ct. 1908.]
Federal courts — Jurisdiction — suits
by or against Federal corporation.
3. A suit to foreclose a mortgage given
by a railway company which was incor-
porated and exists under Federal legisla-
tion does not arise under the laws of the
United States apart from the Federal in-
corporation so as to be justiciable in the
Federal courts, since the enactment of the
act of January 28, 1915 (38 Stat, at L.
803, chap. 22), § 5, although the mortgage
may have been given under a power con-
ferred by the Federal charter.
[For other cases, see Courts, 576-596, in Di-
gest Sap. Ct 1908.]
NoTB. — Generally as to diverse citizenship
as ground of Federal jurisdiction — see note«
to Seddon v. Virginia, T. ft C. Steel ft I. Co.
I L.R.A. 108; Myers v. Murray, N. ft Cfe.
II L.RA. 216; £mory v. Greenou^, 1 L.
ed. U. S. 640; Strawbridge v. Curtiss, 2
L. ed. U. S. 435; M'Donald y. SmaUey, 7 L.
ed. U. S. 287; and Roberts v. Lewis, 36 L.
ed. U. S. 579.
1010
Federal courts — Jurisdiction — dlrerse
citizenship — Federal corporation not
citizen of state.
4. A railway company incorporated un-
der an act of Congress to carry on its ae-
tivities and (^>erations in different states
cannot be regarded as a citizen of any par-
ticular state for the purpose of giving a
Federal district court jurisdiction of a
suit against it on grounds of diversity of
citizenship.
[For other cases, see Courts, 687-675, in Di-
gest Sap. Ct. 1908.]
[No. 880.]
Argued April 12 and 13, 1916. Decided
May 22, 1016.
APPEAL from the District Court of the
United States for the Northern District
of Texas to review a decree dismissing, for
want of jurisdiction, a suit to foreclose a
railway mortgage. Affirmed.
The facts are stated in the opinion.
Mr. Maurice £• Lodce argued the cause,
and, with Mr. William W. Qreen, filed a
brief for appellant:
Jurisdiction to hear and determine such
suits as this against the Texas A Pacific
Railway Company was expressly vested in
the appropriate Federal courts by the act
of Congress incorporating the company.
Smith V. Union P. R. Co. 2 DiU. 278,
Fed. Gas. No. 18,121; Bauman ▼. Union P.
R. Co. 3 DiU. 367, Fed« Cas. No. 1,117; Pa-
cific R. Removal Cases, 115 U. S. 1, 24, 20
L. ed. 310, 327, 5 Sup. Ct. R^. 1113; Re
Dunn, 212 U. S. 374, 384, 53 L. ed. 558,
562, 20 Sup. Ct. Rep. 200; Osbom y. Bank
of United States, 0 Wheat. 738, 6 L. ed.
204; Magill v. Parsons, 4 Conn. 817.
As a matter of practical fact, with which
Congress could deal as such, Federal in-
corporation is a ground of Federal jurisdic-
tion.
Magee t. Union P. R. Co. 2 Sawy. 447»
Fed. Cas. No. 8,045; Union P. R. Co. ▼.
MoComb, 17 BUtcUf. 510, 1 Fed« 700; Texas
& P. R. Co. V. MeAllister, 50 Tex. 340;
Myers v. Union P. R. Co. 16 Fed. 202; Pa-
cific R. Removal Osses, 115 U. S. 1, 20 L. ed.
310, 5 Sup. Ct. Rep. 1113; Leather Bifrs.
Nat. Banlc ▼. Cooper, 120 U. S. 778, 30 L.
ed. 816, 7 Sup. Ct. Rep. 777; Petri ▼. Com-
mercial Nat. Bank, 142 U. S. 644, 85 L. ed.
1144, 12 Sup. Ct. Rep. 325; Butier v. Na-
tional Home, 144 U. S. 64, 36 L. ed. 346, 12
Sup. Ct R^. 581; Washington ft I. R. Co.
▼. CoBur lyAlene R. & NaT. Co. 160 U. &
77, 40 L. ed. 346, 16 Sup. Ct Rep. 231;
Texas & P. R. Co. v. Cody, 166 U. 8. 606, 41
L. ed. 1182, 17 Sup. Ot Rep. 703, 1 Am.
Neg. Rep. 763; Continental Nat Bank v.
Buford, 101 U. 8. 110, 48 L. ed. UO, 24
Sup. Ct Rep. 54; Taxas ft P. R. Co. v. Arch-
141 V. 8.
1015.
BANKERS TRUST qp. T. TBXA6 ft P. R. 00.
ibald, 170 U. S. 665, 42 L. ed. 1188, 18 Sup.
Ct. Rep. 777, 4 Am. Neg. Rep. 746; Texas
ft P. R. Co. V. Barrett, 166 U. S. 617, 41
L. ed. 1136, 17 Sup. Ct Rep. 707, 1 Am.
Neg. Rep. 745; Texaa ft P. R. Co. v. Behy-
xi\jer, 189 U. S. 468, 47 L. ed. 905, 23 Sup.
Ct. Rep. 622, 13 Am. Neg. Rep. 695; Char-
nock V. Texas ft P. R. Co. 194 U. S. 432, 48
L. ed. 1037, 24 Sup. Ct. Rep. 671; Texas ft
P. R. Co. v. DashieU, 198 U. S. 521, 49 L.
ed. 1150, 25 Sup. Ot. Rep. 737, 18 Am. Neg.
Rep. 679; Texas ft P. R. Co. v. Gentry, 163
U. S. 353, 41 1m ed. 186, 16 Sup. Ct. Rep.
1104; Texas ft P. R. Co. v. Swear ingen, 196
U. S. 51, 49 L. ed. 382, 25 Sup. Ct. Rep. 164,
17 Am. Neg. Rep. 422; Texas ft P. R. Co.
V. Watson, 190 U. S. 287, 47 L. ed. 1057, 23
Sup. Ct. Rep. 681; Texas ft P. R. C6. v.
Eastin, 214 U. S. 153, 53 L. ed. 946, 29 Sup.
Ct. Rep. 564; Texas ft P. R. Co. v. Howell,
224 U. S. 577, 56 L. ed. 892, 32 Sup. Ct.
Rep. 601 ; Texaa ft P. R. Co. v. Harvey, 228
U. S. 319, 57 L. ed. 852, 33 Sup. Ct. Rep.
518; Texas ft P. R. Go. v. Stewart, 228 U.
S. 357, 57 L. ed. 875, 33 Sup. Ct. Rep. 548;
Texas ft P. R. Co. v. Rosborough, 235 U. S.
429, 59 L. ed. 299, 35 Sup. Ct. Rep. 117;
Texas ft P. R. Co. v. HiU, 237 U. S. 208, 59
L. ed. 918, 35 Sup. Ct. Rep. 575; Texas ft
P. R. Co. v. Bigger, 239 U. S. 330, ante, 310,
30 Sup. Ct. Rep. 127.
A general act will not be held to repeal a
provision of an earlier special act, unless
the intention of Congress to accomplish
such repeal is unmistakably manifest.
Potter's Dwarr. Stat. 2d ed. 532; Sedgw.
Stat, ft Const. Law, 2d ed. 97 ; Maxwell, In-
terpretation of Statutes, 5th ed. 131, 285,
291; Real's Rules of "LegAl Interpretation,
2d ed. 463; Endlich, Interpretation of Stat-
utes, §§ 223, 228, 229; 1 Sutherland, SUt.
Constr. 2d ed. §g 274, 275; Black, Constr.
ft Interpretation of Laws, 2d ed. 328;
Broom, Legal Maxims, 8th ed. 19; Ex parte
Crow Dog (Ex parte Kang-Gi-Shun-Oa)
109 U. S. 556, 27 L. ed. 1030, 3 Sup. Ct
Rep. 396; Rodgers v. United States, 185 U.
S. 83, 46 L. ed. 816, 22 Sup. Ct. Rep. 582;
United States v. Nix, 189 U. S. 199, 47 L.
ed. 775, 23 Sup. Ct. Rep. 495.
For the purpose of ascertaining the in-
tent of Congress, it is proper to consider
the develc^ment of the act itself, the re-
ports of committees relative thereto, and
other similarly definite and reliable indicia.
Church of the Holy Trinity v. United
States, 143 U. S. 457, 464, 36 L. ed. 226,
229, 12 Sup. Ct. Rep. 511; Binns v. United
States, 194 U. S. 486, 495, 48 L. ed. 1087,
24 Sup. Ct. Rep. 816; United States v.
Nakashima, 87 C. C. A. 646, 160 Fed. 842;
Symonds t. St Louis ft S. E. R. Co. 192
Fed. 353.
It also is proper, in interpreting a ttat-
•0 Ii. ed.
ute, to consider the environment, the his-
tory of the times, and the particular evil
which was pressing upon the attention of
Congress^ and for which it was seeking a
remedy. For this purpose the court may
avail itself of all accessible sources of in-
formation, including the proceedings and
debates in Congress.
Church of the Holy Trinity v. United
States, 143 U. S. 457, 463, 464, 36 L. ed. 226,
229, 230, 12 Sup. Ct Rep. 511; Standard
Oil Co. V. United States, 221 U. S. 1, 60, 55
L. ed. 619, 641, 34 L.R.A.(N.S.) 834, 31
Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734;
United States v. Union P. R. Co. 91 U. S.
72, 79, 23 L. ed. 224, 228; Taylor v. United
States, 81 C. C. A. 197, 152 Fed. 1; Sym-
onds V. St. Louis ft S. E. R. Co. 192 Fed.
353; Maxwell, Interpretation of Statutes,
5th ed. 37; Black, Constr. ft Interpreta-
tion of Laws, 2d ed. § 91.
A railroad company has only such power
to mortgage its property essential to the
performance of its public duties as its
charter and other governing laws confer,
expressly or by necessary implication.
Jones, Corporate Bonds ft Mortgages, §§
1-4; Baldwin, Am. R. Law, 463; Com. v.
Smith, 10 Allen, 448, 87 Am. Dec 672.
Authority for each provision relied upon
by the plaintiff in a suit to enforce a rail-
way mortgage, either shown by express aver-
ment or judicially noticed by the court, is
an essential element of the plaintiff's bill.
Frye v. Bank of Illinois, 10 111. 332; In-
ternational ft G. N. R. Co. V. Underwood,
67 Tex. 589, 4 S. W. 216; East line ft R.
River R. Co. v. Rushing, 69 Tex. 307, 6
S. W. 834, 6 Am. Neg. Cas. 554.
A question determinable by the interpre-
tation and* application of an act of Con-
gress is a Federal question.
Ames V. Kansas, 111 U. S. 449, 28 L. ed.
482, 4 Sup. Ct Rep. 437; Howard v. United
States, 184 U. S. 676, 46 L. ed. 754, 22 Sup.
Ct. Rep. 543; Cummings v. Chicago, 188 U.
S. 410, 47 L. ed. 525, 23 Sup. Ct Rep. 472 ;
Male V. Atchison, T. ft S. F. R. Co. 240 U.
S. 97, ante, 544, 36 Sup. Ct. Rep. 851 ; Ore-
gon V. Three Sisters Irrig. 0>. 158 Fed.
346; Bowers v. First Nat Bank, 190 Fed.
676; McGoon v. Northern P. R. Co. 204 Fed.
998.
It is not essential to the existence of Fed-
eral jurisdiction by reason of the presence
of A Federal question that the litigation
Anally turn upon such question.
Pacific R. Removal Cases, 115 U. S. 1, 29
L. ed. 319, 5 Sup. Ct Rep. 1113; Re Met-
ropolitan R. Receivership (Re Reisenberg)
208 U. S. 90, 52 L. ed. 403, 28 Sup. Ct. Rep.
219; Male v. Atchison, T. ft S. F. R. Co. 240
U. S. 97, ante, 544, 36 Sup. Ct Rep. 351;
Walker t. Windsor Nat Bank, 6 C. C. A.
SUPBEHB COURT OF THE UNITED STATES.
421, 6 U. S. App. 423, M Fed. 7S; Huff t.
Union Nat. Bkok, ITS Fed. 333.
CoogTMS hu taken awAf from the Fed-
eral court* their juriidictioo of the litiga-
tions of national banks, resting' upon the
■ole ground that such banks are organised
under an act of Congreis, b^ acta which
differ widely in form from the act of Jan-
varj 28, 1810, but to which this court has
attributed in this respect the Mune net re-
■ult that it literally expreased in the act
of IBIS.
Leather Mfrs. Nat. Bank v. Ckwper, 120
U. S. 778, 30 L. ed. 816, 7 Sup. Ct. Bep.
777; Petri v. Oommercial Nat Bank, 142
U. B. 844, 36 L. ed. 1144, 12 Sup. Ct. Bep.
S26; Continental Nat. Bank v. Buford, 191
U. S, 119, 48 L. ed. IIS, 24 Sup. Ct. Rep.
M; Boners v. First Nat, Bank, IBO Fed.
•76; Walker v. Windsor Nat. Bank, S C.
a A, 421, 5 U. S. App. 423. S6 Fed. 78;
Huff V. Union Nat. Bank, 173 Fed. 333.
The diversity of cltiMnahip is sufficiently
■hown by the record.
Sun Printing v. Pub. Aaso. *. Edwards,
1&4 U. 8. 377, 48 L. ed. 1027, 24 Sup. Ct.
Rep. OSQ; Marshall t. Baltimore ft 0. R.
Co. 16 How. 314, 14 L. ed. 963; Baltimore
ft 0. S. W. R. Co. V. Davis, 79 C. C. A. 139,
149 Fed. 191; Uathieson Alkali Works v.
Hathieson, 60 C. (J. A. 129, 160 Fed. 241.
The Texas ft Pacific Railway Company ie
ft citizen of Texas for the purpose of juris-
diction of the Federal courts in thin cause.
Bank of United States t. Dereaux, 6
Cranch, 61, 3 L. ed. 38; Hope Ins. Co. t.
Boardnwn, 6 Cranch, 57, 3 L. ed. 30; Louis-
tU1«, C. ft C. R. Co. v. Letson, 2 How. 497,
11 L. ed. 363) Covington Drawbridge Co. v.
Shepherd, 20 How. 227, 233, IS L. ed. 896,
808; Shaw v. Quiney Min. Co.' 146 U. S.
444, 461, 36 L. ed. 768. 772, 12 Sup. Ct.
Rep. 936; St. Louis Nat. Bank v. Allen. 2
McCrvy, 92, 6 Fed. 551; Manufacturers'
Nat. Bank v. Baack, 8 Blatchf. 137, Fed.
Cas. No. 9,062; Orange Nat. Bank r. Tra-
»er, 7 Sawy. 210, 7 Fed. 146; National Park
Bank t. Nichols, 2 Biss. 146. Fed. Cas. No.
10,047; Main t. Second Nat. Bank, 6 Bisa.
26. Fed. Cas. No. 8,976; Union P. R. Co. v.
Harris. 158 U. B. 326, 39 L. ed. 1003, 16
Sup. Ct. Rep. 843, 10 Am. Neg. Cas. 685;
Northern P. B. Co. v. Amato, 144 U. S. 466,
3fl L. ed. 606, 12 Sup. Ct. Rep. T40; Balti-
more ft 0. R. Co. ▼. Koontz, 104 U. S. 5, 26
L. ed. 643; Re Dunn, 212 U. S. S74, 63 L.
ed. 568, 29 Sup. Ct Rep. 290.
Messrs. Oeorge Thompson and Henry
G. Coke argued the cause, and, with Messrs.
Arthur J. Shores. Thomas J. Freeman, and
Alexander S. Coke, filed a brief tor ap-
pellees:
Can jurisdiction be maintained by Tirtue
Texas ft Pacific Railway Companyt
Bank of United Stetea t. Dereaux, 6
Cranch, 61, 3 L. ed. 38; Oeborn t. Bank of
United Statea, 9 Wheat 738, 6 L. ad. 204;
Pacific R. Removal Cases, 116 U. B. I, 2>
L. ed. 319, 6 Sup. a. Rep. 1113; Rodgtrs
V. United States, 18G U. S. 83, 46 L. ed.
BI6, 22 Bup. Ct. Rep. 582; Smith t. Uniia
P. R. Co. 2 Dill. 273. Fed. Cas. No. 13J21.
Can jurisdiction be maintained by virtue
of a Federal question I
Butler V. Shafer. 87 Fed. 161; Cooke t.
Avery, 147 U. S. 375, 37 L. ed. 209, 13 Sup.
Ct. Rep. 340; Fittgerald v. HiaM>uri P. R.
Co. 45 Fed. 812; Little York Oold-Waahing
k WaUr Co. v. Keyea, 96 U. S. 199, 24 L.
ed. 656; Huff v. Union Nat Bank, 173 Fed.
333; Herrmann v. Edwards, 238 U. S. 107,
59 L. ed. 1224. 35 Sup. Ct. Rep. 839; Joy
v. St Louis, 201 U. S. 332, 50 L. ed. 77S,
26 Sup. Ct. Rep. 478; Leather Mfra. Nat
Bank V. Cooper, 120 U. S. 7T8, 30 L. ed.
Sla, 7 Sup. Ct Rep. 777; Lovell v. Newman,
227 U. 8. 412, 57 L. ed. 677, 33 Sup. OL
Rep. 376; McGo<Hi v. Northern P. R. Ca
204 Fed. 90S; Norton v. Whiteside, 239 V.
8. 144, ante. 186, 36 Sup. Ct. Rep. 97; Oi-
boro V. Bank of United States, 9 Wheat
738, 0 L. ed. 204; South Carolina v. Vir-
ginia-Carolina Chemical Co. 117 Fed. 727:
Shulthis V. McDougal, 226 U. S. 601, 5S L.
ed. 1206, 32 Sup. Ct. Rep. 704; Shoshone
Min. Co. V. Rutter, 177 U. S. 506, 44 L. ed
864, 20 Sup. Ct, Rep. 726; Waahington v.
Island Line Co. 117 Fed. 777 ; Foster. Fed.
Pr. % 24.
Can jurisdiction be maintained on ths
ground of diveraity of citiEenshipt
Abercrombie v. Dupuis, I Oranch, 343. !
L. ed. 129; Bingham v, Cabot, 3 Dall. 383,
1 L. ed. 646; Brown v. Keene, 8 Pet. 112,
8 L. ed. 885; Re Dunn, 212 U. S. 374, 63 L
ed. 658, 29 Sup. Ct Rep. 299; Dade Coal
Co. V. Haslett, 83 Ga. 549, 10 S. E. 433:
Grace v. American Cent. Ins. Co. 109 U. S.
278, 27 L. ed. 932, 3 Sup. Ct. Rep. 207; Han-
ford V. Davies, 103 U. 8. 273, 4. L. ed. 167.
16 Sup. Ct. Rep. 1061; Joesey v. Georgia t
A. R. Co. 102 Ga. 706, 28 S. E. £73; Na-
tional Park Bank v. Nichols, 4 Biss. 316,
Fed. Cas. No. 10,048; New Orleans v. Win-
ter, 1 Wheat. 91, 4 L. ed. 44; Texaa ft P.
R. Co. V. Interstate Commerce Ooouni*-
sion, 162 U. S. 107, 40 L. ed. 940, 6 Intwa
Com. Rep. 405, 16 Sup. Ct. Rep. 666, 4
Inters. Com. Rep. 408. 6 C. C. A. 653, 20
U. S. App. 1, 57 Fed. 948.
Messrs. Winslow 8. Pierce and Lawrenes
Greer also tiled a brief on behalf of ap-
pellee the Texaa ft Pacific Railway CaD>
pany.
141 V. S.
1915. BANKERS TRUST CO. y. TEXAS & P. R. 00. 101-^04
Mr. Justice Van Devantcr delivered the | grounds that the act of January 28, 1015,
opinion of the court: chap. 22, § 5, 38 Stat, at L. 803, pro-
This is a suit to foreclose a railroad mort- vides : "No court of the United States
gage and for other incidental relief. It was shall have jurisdiction of any action or
brought in the district court for the north- suit by or against any railroad company
em district of Texas December 27, 1915, upon the ground that said railroad company
was dismissed by that court for want of was incorporated under an act of Con-
jurisdiction, and is here upon a direct ap- gress;" and that, apart from the Texas &
peal under § 238 of the Judical Code [36 Pacific Railway [303] Company's incorpo-
Stat. at L. 1157, chap. 231, Comp. Stat, ration under congressional enactments, the
1913, § 1215]. suit is not one arising under the Oonstitu-
The bill alleges thfit the plaintiff, the tion or any law of the United States, and
trustee under the mortgage, is a New York is not one between citizens of different
corporation and "a citizen of said state;" states. The motion was sustained and the
that the Texas & Pacific Railway Company, bill was dismissed as to both defendants,
one of the defendants, is a corporation The plaintiff insists that, in refusing to
created and existing under the laws of the entertain the suit, the district court erred
United States, has its principal place of because (1) the provision before quoted
business and its principal operating and from § 1 of the act of March 3, 1871, enables
general offices in the northern district the Texas k Pacific Railway Company to sue
of Texas, and "is a resident and inhabitant" and be sued in any court of law or equity
of that district; that the New Orleans Pa- within the United States; (2) the bill
cific Railway Company, the other defendant, shows that the suit is one arising under
[302] is a Louisiana corporation and "a the laws of the United States apart from
citizen of said state;" that one of the acts the incorporation of the Texas & Pacific
of Congress under which the Texas & Pacific Railway Company under acts of Congress,
Railway Company was created and now and therefore the act of January 28, 1915,
exists (act Mardi 3, 1871, chap. 122, § is not controlling, and (3) the bill shows
1, IG Stat, at L. 573) provides that such that the suit is between citizens of different
company "by that name . . . shall be states.
able to sue and be sued, plead and be im- j Upon reading § 1 of the act of 1871
pleaded, defend and be defended, in all j^ jg pj^j^ that the words "by that name
courts of law and equity within the United gj,^ll ^^ ^y^i^ ^ g^^ an^l y^ gued.
States;" that under that act and desig- .^^ ^^^ y^^ impleaded, defend and be de-
nated amendatory and supplemental acts of ^^^^^ .^ ^,i ^^^^ ^, 1^^ ^^ it ^jth-
^TT ^^""W ^flh "^T o^/; il l^l' in the United States" were not intended
** t' fi' ^t"'\o' W.l' '^^^- Ta il «w in themselves to confer jurisdiction upon
at L. 698; June 22, 1874, chap. 406, 18 Stat ^^^^ ^^ ^^ ^^^^ ^^ Congress
f^^ ^®l^ ^'^ ^'TP^SJc'*"! ^ """"m *"^ was not then concerned with the jurisdic-
hold on February 1. 1888, certain railroad ^.^^ ^^ ^ ^^^ ^,^^ ^^ ^^^jj.^ ^^
properties and interests in Texas and Louis- ^^^^^ ^^ ^^^ corporation which it was ere-
tana; that on that date said company act- * ^^^ evidently all that was intended
ing m pursuance of due authority conferred ^^^\^ ^^^^^^ this corporation capable of
upon It by said acts of Congress,'' the rele- ^^^ ^^^ ^^.^^ corporate name
vant Portiomi of which are copied into the .^ « ^^^^^ ^^ j^^ ^^^ equity-Federal,
bill, and the New Orleans Pacific Railway ^^^ ^^^ territorial-whose jurisdiction as
Company, acting in pursuance of authority ^^h^^wise competently defined was adequate
conferral upon it by the laws of Louisiana, ^ ^^^ occasion. Had there been a purpose
executed and delivered the mortgage in to take suits by and against the corporation
suit covering these railroad properties and ^^^ ^^ ^^^ ^^^^j jurisdictional restrictions
mtereste a substantial part of which IS sit- ^^,^^. ^^ ^^^ ^^^^^^ ^^ ^^^ ^^.^ ^^^
uate m thp northern district of Texas; that ^^^^^ ^ controversy, and the venue, it
the mortgage was duly filed and recorded
in the Department of the Interior pursuant
to such acts of Congress; that the mort-
gagors have defaulted in the performance
of the terms and conditions of the mort-
gage, and that the suit involves the requisite
jurisdictional amount and "arises under the
Constitution and laws of the United
SUtes."
By a motion to dismiss, the Texas ft
Pacific Railway Company challenged the ju-
risdiction of the district court upon the
•0 li. ed.
seems reasonable to believe that Congress
would have expressed that purpose in al-
together different words. The case of Bank
of United States v. Deveaux, 5 Cranch, 61,
85, 3 L. ed. 38, 44, is well in point. A
[304] provision in the act incorporating
the bank (chap. 10, § 3, 1 Stat, at L. 191),
much like that here relied upon, was in-
voked as in itself entitling the buik to sue
in a circuit court of the United States, but
that view was rejected in an opinion by
Chief Justice Marshall, wherein it was said*.
804-306
SUPREME OOURT OF THE UNITED STATES.
Oor. Tkuc.
'That act creates the corporation, gives
it a capacity to make contracts and to ac-
quire property, and enables it 'to sue and
be sued, plead and be impleaded, answer and
be answered, defend and be defended, in
courts of record, or any other place whatso-
ever.' This power, if not incident to a cor-
poration, is conferred by every incorporat-
ing act, and is not understood to enlarge
the jurisdiction of any particular court,
but to give a capacity to the corporation to
appear, as a corporation, in any court
which would, by law, have cognizance of
the cause, if brought by individuals. If
jurisdiction is given by this clause to the
Federal courts, it is equally given to all
courts having original jurisdiction, and for
all sums, however small they may be."
Afterwards, when the second bank of the
United States was established, a provision
was inserted in the incorporating act (chap.
44, § 7, 3 Stat, at L. 266), enabling the
bank to sue and be sued "in all state courts
having competent jurisdiction, and in any
circuit court of the United States;" and in
Osbom V. Bank of United States, 9 Wheat.
738, 6 L. ed. 204, it was held (pp. 816-818)
that this provision, unlike that in the prior
act, amounted to an express grant of jur-
isdiction to the circuit courts, and (pp. 823
et seq.) was within the power of Congress
under the Constitution. It was in the light
of these differing precedents in legislation
and of the resulting difference in their in-
terpretation that Congress framed the act
of 1871. While that act does not literally
follow either precedent, its words have the
same generality and natural import as did
those in the earlier bank act, and this
strengthens the conclusion that Congress in-
tended thereby to give to the Texas k
[305] Pacific Railway Company only a
general capacity to sue and be sued in
courts of law and equity whose jurisdiction
as otherwise defined was appropriate to the
occasion, and not to establish an exceptional
or privileged jurisdiction.
2. Under the Constitution Congress un-
doubtedly possesses power to invest the sub-
ordinate Federal courts with original ju-
risdiction of all suits at law or in equity
arising under the Constitution, laws, or
treaties of the United States, and, if the act
of February 13, 1801, chap. 4, § 11, 2 Stat,
at Lw 89, be not noticed b^use of its early
repeal (chap. 8, § 1, 2 Stat, at L. 132), it
is true, as sometimes has been said,i that
this power was broadly exercised for the
first time by the act of March 3, 1875, diap.
1 Tennessee y. Union ft Planters' Bank,
162 U. S. 464, 459, 38 L. ed. 511, 513, 14
Sup. Ct. Rep. 654; Continental Nat. Bank
V. Buford, 191 U. S. 119, 122, 48 L. ed.
219, 120, 24 Sup. Ct. Rep. 64.
J014
137, § 1, 18 SUt. at L. 470. By that act
Congress in express terms gave the circuit
courts original jurisdiction, concurrent
with the courts of the several states, of all
suits of that nature, where the value of the
matter in dispute, exclusive of costs, wss
in excess of $500, and this juris4iction re-
mained with the circuit courts until Jan-
uary 1, 1912, when they were abolished,
save as the act of March 3, 1887, chap. 378,
§ 1, 24 Stat, at L. 552, required that the
value of the matter in dispute, exclusive
of interest and costs, be in excess of $2,000.
Upon the discontinuance of the circuit
courts this jurisdiction was transferred to
the district courts by § 24 of the Judicial
Code [36 Stat, at L. 1091, chap. 231, Comp.
Stat. 1913, § 991], subject to a restriction
that thereafter the value of the matter in
controversy should exceed $3,000, exclusive
of interest and costs.
As long ago as Osbom v. Bank of United
States, supra, it was settled that a suit by
or against a corporation chartered by ui
act of Congress is one arising under a law of
the United States, and this because, as was
said in that case, pp. 823, 825: "The char-
ter of incorporation [306] not only creates
it [the corporation], but gives it every fac-
ulty which it possesses. The power to ac-
quire rights of any description, to transact
business of any description, to make con-
tracts of any description, to sue on those
contracts, is given and measured by its
charter, and that charter is a law of the
United States. This being can acquire no
right, make no contract, bring no suit,
which is not authorized by a law of the
United States. It is not <»ly itself the
mere creature of a law, but all its actions
and all its rights are dependent on the same
law. Can a being, thus constituted, have a
case which does not arise literally, as well
as substantially, under the law? Take the
case of a contract, which is put as the
strongest against the bank. . . . Hie
act of Congress is its foundation. Tht
contract could never have been made, but
under the authority of that act. The act
itself is the first ingredient in the case,
is its origin, is that from which every
other part arises. That other questions
may also arise, as the execution of the eon-
tract, or its performance, cannot change
the case, or give it any other origin than
the charter of incorporation. The action
still originates in, and is sustained by, that
charter."
After the act of March 3, 1876, extended
the jurisdiction of the circuit courts to
cases arising under the laws of the United
States, the ruling just quoted was uniform-
ly followed and applied in suits by and
141 U. 6.
1916.
BANKERS TRUST CO. v. TEXAS ft P. R. CX).
SOe-806
agaiziBt Federal corporations (Pacific R.
Removal Cases, 115 U. S. 1, 29 L. cd. 319,
6 Sup. Ct. Rep. 1113; Petri v. Commercial
Nat. Bank, 142 U. S. 644, 648, 35 L. ed.
1144, 1145, 12 Sup. Ct. Rep. 325; Butler v.
National Home, 144 U. S. 64, 36 L. ed. 346,
12 Sup. Ct. Rep. 581 ; Northern P. R. Co. v.
Amato, 144 U. S. 465, 471, 36 L. ed. 506,
508, 12 Sup. Ct. Rep. 740; Texas k P. R.
Co. V. Cox, 145 U. S. 693, 601, 36 L.
ed. 829, 832, 12 Sup. Ct. Rep. 905; Wash-
ington ft I. R. Co. ▼. Cceur d' Alene R.
ft Nav. Co. 160 U. S. 77, 93, 40 L. ed. 346,
352, 16 Sup. Ct. Rep. 231; Supreme Lodge,
K. P. y. Kalinski, 163 U. S. 289, 290, 41
L. ed. 163, 16 Sup. Ct. Rep. 1047; Texas ft
P. R. Co. V. Swearingen, 196 U. S. 51, 53,
49 L. ed. 382, 384, 25 Sup. Ct. Rep. 164, 17
Am. Neg. Rep. 422 ; Re Dunn, 212 U. S. 374,
383, 384, 53 L. ed. 558, 562, 29 Sup. Ct.
Rep. 299), save where the particular suit
was withdrawn or excluded from that juris-
dicti<m by some specific enactment, [307]
like that of July 12, 1882, chap. 290, § 4,
22 Stat, at L. 162, Comp. Stat 1913, § 9665,
placing most of the suits by and against na-
tional banks in the same category with suits
by and against banks not organized under
the laws of the United States. Leather
Mfrs. Nat Bank v. Cooper, 120 U. S. 778,
781, 30 L. ed. 816, 818, 7 Sup. Ct Rep. 777 ;
Continental Nat. Bank v. Buford, 191 U. S.
119, 122, 48 L. ed. 119, 120, 24 Sup. a. Rep.
54.
It results that if the general jurisdic-
tional provision, now embodied in § 24 of
the Judicial Code, respecting suits arising
under the laws of the United States, were
alone to be considered, it would have to be
held that the district court had jurisdiction
of the present suit as one falling within that
class by reason of the incorporation of the
Texas ft Pacific Railway Company under a
law of the United States. But § 5 of the
act of January 28, 1915, must also be con-
sidered. It is a later enactment, is shown
by the title to be amendatory of the Judicial
Code, and, as has been seen, declares that
"no court of the United States shall have
jurisdiction of any action or suit hy or
against any railroad company upon the
ground that said railroad company was in-
corporated under an act of Congress."
These are direct and comprehensive words,
and, when read in the light of the settled
course of decision just mentioned, must be
taken as requiring that a suit by or against
a railroad company incorporate under an
act of Congress be not regarded, for juris-
dictional purposes, as arising under the
laws of the United States, unless there be
60 li. ed.
some adequate ground for so regarding it
other than that the company was thu.: in-
corporated. Plainly, there was a purpose
to effect a real change in the jurisdiction of
such suits. Counsel for plaintiff concede
that this is so. But they urge that all
that is intended is to eliminate the mere
creation of a railroad corporation under an
act of Congress as a ground for regarding
the suit as arising under the laws of the
United States. In this there is an evident
misapprehension of what constitutes incor-
poration, as [308] also of the real basis of
the jurisdiction affected. A corporation is
never merely created. Being artificial, pos-
sessing no faculties or powers save such as
are conferred by law, and having in legal
contemplation no existence apart from them,
its incorporation consists in giving it indi-
viduality and endowing it with the facul-
ties and powers which it is to possess. It
is upon this theory that the decisions have
proceeded. The ruling has been that a suit
by or against a Federal corporation arises
under the laws of the United States, not
merely because the corporation owes its
creation to an act of Congress, but because
it derives all of its capacities, faculties, and
powers from the same source. This is
shown in the quotation before made from
Osbom V. Bank of United States, supra, and
also in the following excerpt from Shoshone
Min. Co. V. Rutter, 177 U. S. 505, 509, 510,
44 L. ed. 864, 866, 867, 20 Sup. Ct. Rep. 726:
"A corporation has no powers and can in-
cur no obligations except as authorized or
provided for in its charter. Its power to do
any act which it asumes to do, and its lia-
bility to any obligation which is sought to
be cast upon it, depend upon its charter,
and when such charter is given by one of the
laws of the United States there is the pri-
mkrj question of the extent and meaning of
that law. In other words, as to every act
or obligation the first question is whether
that act or obligation is within the scope
of the law of Congress; and that being the
matter which must be first determined, a
suit by or against the corporation is one
which involves a construction of the terms
of its charter; in other words, a question
arising under the law of Congress." And
so, when due r^ard is had for the terms of
the amendatory section of 1915 and for the
real basis of the jurisdiction- affected, the
conclusion is unavoidable that what is in-
tended is to make the fact that a railroad
company is incorporated under an act of
Congress, — that is to say, derives its exis-
tence, faculties, and powers from such an
act, — an entirely negligible factor in deter-
MO, 810 SUPREME OOURT OF THE UNITED STATES. Oor. TmM,
mining whether a suit by or [300] against
the company is one arising under the laws
of the United SUtes.
Upon examining the bill in the present
•nit, it is certain that it does not arise un-
der those laws apart from the incorporation
of the Texas & Pacific Company under acts
of Congress. We say ''acts" of Congress,
because the original act was amended and
•npplemented by three others, and the four
constitute the company's charter. Portions
thereof are copied into the bill as showing
that the mortgage sought to be enforced
was given under a power conferred by Con-
gress, but this does not help the jurisdic-
tion. As, under the amendatory section,
the fact that the company derives its exis-
CHESAPEAKE k OHIO RAILWAY COM.
PANY, Plflf. in Err.,
V.
JOHN J. DE ATLEY.
(See S. C. Reporter's ed. 310-318.)
Master and servant — asstunptlon of
risk — extraordinary hasard.
1. The head brakeman of a freight
train, though assuming the rides normaUy
incident to the boarding of a moving train
in the discharge of his duties, -does not as-
sume the risk of injury involved in an at-
tempt to board a train operated at an un-
usually high and dangerous rate of speed
tmtil made aware of the danger, unless the
speed and consequent danger were so obvi-
ous that an ordinarily careful person in his
situation would have observed the one and
tence and all of its faculties and powers appreciated the other.
f»>m a Federal charter can»ot avail to give ' *'^: ,S"Dl,Sr&»rct"lSo8.r'* *"~*' ^
jurisdiction, it is obvious that to dwell up- Trial — question for jnry — assumption
on the fact that any particular power comes of risk — extraordinary basard.
from the common source must be equally un- 2. It is for the jury to say whether the
availing ^^^ brakeman on a freight train assumed
rm. ir ^# 1 A* V rp *. c 1? ^« ^Isk of lujury in an attempt, in the dis-
The case of Male v. Atchison, T. k S. F. ^ij^^ge of his duties, to board the engine of
R. Co. 240 U. S. 97, ante, 644, 36 Sup. Ct. his train, which was moving directly toward
Rep. 351, does not make for a different con- him at a speed of 12 miles per hour,
elusion, because it was not a suit by or ^^^^p^^^^"^ fjjf j ^ ^'**^ ^'- «• ^ ^*««»^
against a railroad company incorporated Trial' -' requited instructions — as-
under an act of Congress, and because it sumption of risk.
arose and was pending in this court prior 3. There is no error in refusing to give
to the amendatory act of 1915, and by § 6 a requested instruction upon the question
of that act was excepted from its provisions. ?^ the assumption of risk which deals sol^
A iTTv XV xv • -x u i. :*• Ij w™ the ordmary risks and hazards, and
3. Whether this is a suit between citizens embodies no definition of such risks and
of different states turns upon whether the hazards, nor any qualification appropriate
Texas k Pacific company is a citizen of to the particular facts of the case, which
Texas. It is doubtful that the pleader in- involves a question of extraordinary hazard.
tended to state a case of diverse citizen- ^^i^j;!^^^t' fwS:]'^ ^""^ ^"- ^' *'' ^****^
ship, but, be this as it may, we are of opin-
ion that the company is not a citizen of any '■ ^* *'*•!
state. It was incorporated under acts of Argued and submitted March 30 and 13,
Congress, not under state laws; and its 1916. Decided May 22, 1016.
activities and operations were not to be
confined to a single state, but to be carried T ^ ERROR to the Court of Appeals of the
on, as in fact they are, in different itates. \.*»^**^' Kentucky to review a judgment
Of course it is a citizen of the United States '1^'''^ *f ™^ a judgment of the Circuit
._ .. ., . .. . , Court of Mason County, m that state, m
in the sense that a corporation organized ^^^^^ ^^ ^^.^^^ ^ ^^ ^^^.^^ under the
under the Jawg o^ one of the states is a ^^^^^^j employers' liability act. Reversed
citizen of that state, but it is not withm the ^nd remanded for further proceedings.
[310] clause of the 14th Amendment which See same case below, 169 Ky. 687, 167 S.
declare^ that native bom and naturalized y/^ 933
dtisens of the United States shall be citi- The facts are stated in the opinion.
sens of the state wherein they reside. Nor
has Congress said that it shall be regarded , Note.— On wten^t non fit injuria as de-
•• ^^o^.;«». -*«*^ ^u;.A«.>.;.. #«» :...:<.^:^ fense to actions by injured servants — see
tional purposes, as is done in respect of na- Co. 47 L.RJI. 162.
tional banks by § 24, Tf 16, of the Judicial As to whether a servant may assume the
Code. In short, there is no ground upon risk of dangers created by the master's n^
which the company can be deemed a citizen ligenc* — bc© note to Scheurer v. Banner Rub-
of Texas, and this being so, the suit is not ^\^: ^® LJl.A.(N.S.) 1216.
. . ^.48 ^ j»i» A J. A As to servant's assumption of risk, gen-
one between Citizens of different states, erally-see note to Southern P. Co. v^sS«r^
Decree affirmed. 38 L. ed. U. S. 391.
M016 141 V. 8»
19U. CHESAFEAKi: * O. R. CO. t. DB ATLEY.
HewTi. E. L. Wortblqgloii, W. D, the runniBg board of ft "hBrd-mnDing" en-
Cochran, and I« Wrlgbt Browning ■ub' giae, Iim,ble to rock ftod BWft; (Southern P.
mitted the mum for plaintiff in error: Co. t. Jobason, 16 C. C. A. 317, ii V. S.
PUintiff CMUiot recover unleas delend' App. 1, 69 Fed. 66S).
aat'a negligence waa the proximftl« cftUM Under the Kentucky practice it waa the
of the accident and injury to him. duty of the trial court to have prepared and
Bt. Louie, I. M. A 8. R. Co. v. McWhir- giveu a corrected instruction embodying the
ter, 229 U. S. 255, 57 L. ed. 1179, 33 Sup. defense under consideration, i. e., an fn-
Ct. Rep. 858; Patton v. Texsi & P. R. Co. atruction aetting out the circumstancea un-
179 U. S, 668, 46 L. ed. 361, 21 Gup. Ct. der which an "extraordinary," aa diatiu-
Rep. 275; 4 I«batt, Mftit. & S. S 1601. guiabed from an "ordinary," risk ia as-
Plaintiff, aa a matter of law, aasumed tbe aumed by the servant,
riak of injury from hia attempt to board de- Louisville ft N. R. Co. v. Harrod, 115 Ky.
fendant'a train. 877, 7S 8. W, 233; Louisville, H, A; St. L.
3 Labatt, Maat. k S. S9 1168, lieSa; Sea- R.Co. v. Roberta, 144 Ky. 620, 130 S. W.
board Air Line R. Co. v. Horton, 233 U. S. 1073.
492, 56 L. ed. 1062, L.R.A.1915C, 1, 34 Sup. The rules of the state practice govern In
Ct. Rep. 635, Ann. Caa. 191EB, 475, B N. C. cases brought in the state courta under U>e
C. A. 834; Schlemmer v. Buffalo, R. A P. R. Federal employers' liability act.
Co. 220 U. S. 690, 66 L. ed. saB, 31 Sup. Ct. Chesapeake A 0. R. Co. v. Kelly, 181 Ky.
Rep. 691; ChocUw, 0. ft G. R. Co. v. Me- 865, 171 S. W. 186; Central Vermont R. Co.
Dade, 191 U. S, 64, 48 L. ed. 88, 24 Sup. Ct. v. White, 238 U. S. 507, 59' L. ed. 1433, 3S
Rep. 24, 15 Am. Neg. Rep. 230; Texas ft Sup. Ct. Rep. 885, Ann. Oas. 1916B, 262, ft
P. R. Co. V. Harvey, 228 U. S. 319, 57 L. N. C. C. A. 265.
ed. 862, 33 Sup. Ct Rep. 518; Gila Valley, So far aa the defense ol assumed risks if
G. ft N. R. Co. T. Hail, 232 U. S. 94, 63 L. concerned, there is no difference between
ed. 621, 34 Sup. Ct. Rep. 220; 4 Labatt, the negligence of the master and the negU-
Mast. ft S. 9§ 1310, 1313, 1315, 1325; St. gence of a coemployee.
Louis Cordage Co. v. Miller, 81 C. C. A. Chicago ft G. W. R. Co. t. Crotty, 4
K)6, 126 Fed. 511, 16 Am. Neg. Rep. 478; L.R.A.(N.S.) 832, 73 C. C. A. 147, 141 Fed.
Creole Lumber Co. v. Mills, 149 Ala. 474, 42 913; St. Louis, I. M. ft S. R. Co. v. Ledford,
So. lOlO; Green v. Cross, 79 Tex. 130, 15 90 Ark. 543, 119 8. W. 1123; Murphy v.
S. W. 220; Derr v. Lehigh VaUey R. Co. New York, N. H. ft H. R. Co. 187 Maaa. 18.
158 Pa. 365, 38 Am. St. Rep. 848, 27 Atl. 72 N. E. 330; Meagher v. Crawford Laundry
1002; O'Neil v, Keyea, 1S8 Maaa 617, 47 N. Mach. Co. 187 Maaa. 686, 73 N. E. 853.
E. 416, 3 Am Neg. Rep. 178; Missouri, K. If, aa is practically aasumed t^ the court
ft T. R Co. V. Thompaon, 11 Tex. (Xv. App. of appeala, the engineer was negligent ia
068, 33 S. W. 716. operating the train at said rate of speed,
A brakeman will be presumed to know then, by parity of reasoning, the plaintiff
of, and to appreciate, tbe danger ol cou- waa negligent in attempting to board tha
pling, from the inside of a curve, of cars hav- same.
ing double deadwooda of nnuaual length Hurat v. Kansas City, P. ft O. R. Co. 163
(Kohn V. McNulta, 147 U. S. 238, 37 L. ed. Mo. 308, 8G Am. St. Rep. 630, 63 S. W. 066;
160, 13 Sup. Ct. Rep. 298; MicbiKan C. R. Dowell v. Vicksburg ft M. R. Co. 61 Miss.
Co. V. Smithson, 45 Mich. 212, 7 N. W. 791; 510; Louisville ft N. R. Co. v. Wallace, 60
Chicago, B. ft Q. R. Co. v. CnrtU, 61 Neb. Tenn. S3, 16 S. W. 921 ; Whitfield v. Atian-
442, 86 Am. St. Rep. 468, 71 N, W. 42, 2 tic Coaat Line H. Co. 147 N. C. 236, 80. S.
Am. Neg. Rep. 743) ; to the same effect ia E. 1126; Southern R. Co. v. Williams, 143
the holding aa to danger of injury from un- Ala. 212, 38 So. 1013.
blocked frogs (Southern P. Co. v. Seley, 162 Although the servant's contributory neg-
U. S. 145, 38 L. ed. 391, 14 Sup. Qt. Eep. leet is not a bar to the recovery of dam-
fi30) ; also, as to knowledge of the riak that ages, yet it is still the duty of the court to
the drawbara of two cars may slip and pass instruct the jury that the servant's conduct
each other, and thus render dangeroua an „nounted to negligence per m where the
attempt to couple them on the inside of a tActa. and the interencea to be drawn from
sharp curve (TutUe v. Detroit, G. H. ft M. them, are not conflicting as to the fact that
~ ^- '",y«f- ^^"^ ^" ^- *^-- "'t' I ^.P- ^"tributory negligence existed.
Ot. Rep. 1166); so an experienced b™ke- .n,(,„t(,„ j.^^„i Employer.' LiablH^
■nan cannot recover for an injury caused '■?•*• iik
faia miacalculating the actual difference be- '
tween the helghte of two drawbeada, he be- Mr. Allan D. Cole argved tbe cause, and,
ing aware that there was some differenoe with Mr. H. W. Cole, filed a brief for de-
(Hulett V. St. Louis, K. C. ft N. R. Co. 67 fendant In error:
Ua 239 ) ; to aa to the danger of going onto The failure to uerdse ordlnarj oaz« '•Vast.
•0 li. «£ ^*»^'*
SUPREME COURT OF THE UNITED STATEa
Oor. Tbm,
the engineer not only knew that defendant
in error went to the tower, but also knew
that he would have to board the train again,
and saw him on the platform before the in-
Jury, was certainly negligence. If he had
stopped the train and then allowed defend-
ant in error to get aboard, would it then
have been possible for him to lose his leg?
If, instead of 12 or 15 miles an hour, the
engineer had driyen the train at the rate of
4 miles an hour, would defendant in error
than have lost his leg? If he, an inexperi-
enced boy, thought the train was going at a
slow rate of speed, when in fact it was not,
this did not reliere plaintiff in error of
the consequence of its carelessness and neg-
ligence in pulling him loose by the train's
momentum from the grab iron on the en-
gine, and throwing him upon the ground
underneath the car wheels. Moreover, there
was an utter failure to warn and instruct
him of the danger.
De Atley v. Chesapeake ft 0. R. Co. 147
Ky. 315, 144 S. W. 95, 201 Fed. 592; Gal-
veston, H. k S. A. R. Co. V. Sullivan, 53
Tex. Civ. App. 394, 115 S. W. 615; Cincin-
nati, N. 0. k T. P. R. Co. V. Swann, 160
Ky. 462, L.R.A.1915C, 27, 169 S. W. 886.
If the plaintiff in error was guilty of any
causative negligence, no matter how slight,
in comparison with that of defendant in
error, no matter how gross, there was a
question for the jury.
New York, C. A St. L. R. Co. v. Niebel,
131 C. C. A. 248, 214 Fed. 955; Orand
Trunk R. Co. t. Cummings, 106 U. 6. 700,
27 L. ed. 266, 1 Sup. Ct. Rep. 493.
Where it was part of the switchman's
duty to jump on a moving train, and the
evidence whether he should have attempted
to jump on at the place where he did was
conflicting, and the plaintiff testified that
he did not know the place was dangerous,
the question of his contributory negligence
is for the jury.
8 Thomp. Neg. § 5602.
The general rule that persons injured
while attempting to get on or off moving
.cars are guilty of contributory negligence
does not apply with absolute strictness to
train hands accustomed to get on and off
moving cars in the performance of their
duties.
8 Thomp. Neg. § 5602; Charlton v. St.
Louis & S. F. R. Co. 200 Mo. 413, 98 S. W.
529; Heilig v. Southern R. Co. 152 N. C.
469, 67 S. E. 1009; Whitfield v. Atlantic
Coast Line R. Co. 147 N. C. 236, 60 S. E.
1126.
Proximate cause is a question for the
jury.
7 Thomp. Neg. § 161; San Francisco ft
P. S. S. Co. ▼. Carlson, 89 C. C. A. 45, 161
Fed, 864; Halef ▼. Michigan C. R. Co. 118
i0MS
C. C. A. 627» 200 Fed. 637; MUwaukee ft
St. P. R. Co. V. Kellogg, 94 U. S. 499, 24
L. ed. 256; 4 Labatt, Mast, ft 8. | 157;
Myers v. Pittsburgh Coal Co. 233 U. 8. 192,
58 L. ed. 910, 34 Sup. Ct. Rep. 569.
There is no room in this case lor the as-
sumption of ordinary risks, and no instruc-
tion was asked in the trial court by the
plaintiff in error on the assumption of ex-
traordinary risks. Hence, it was not error
to refuse the instruction offered on ordinary
risks, nor was the trial court bound to mod-
ify such instruction so as to make it apply
to extraordinary risks.
Catts V. Phalen, 2 How. 882, 11 L. ed.
308; Buck v. Chesapeake Ins. Co. 1 Pet 159,
7 L. ed. 94 ; Haffin v. Mason, 15 WalL 671,
21 L. ed. 196.
Congress, in passing the Federal employ-
ers' liability act, evidently intended that the
Federal statute should be construed in the
line of these and other decisions of the
Federal courts.
Seaboard Air Line R. Ca t. Moore, 228
U. S. 434, 57 L. ed. 907, 33 Sup. Ct Rep.
580; Central Vermont R. Co. v. White, 238
U. S. 507, 59 L. ed. 1433, 36 Sup. Ct Rep.
865, Ann. Gas. 1916B, 252, 9 N. C. a A
265.
Moreover, the court will not inquire into
questions relating to pleading and prac-
tice in state courts. Yazoo ft M. Val^y R
Co. V. Adams, 180 U. S. 9, 45 L. ed. 402, 21
Sup. Ct Rep. 240. For the appellate state
court may, as it did in the case at bar, rest
its aflSrmance of the judgment below on
some question of practice or pleading, and
such a decision is not adverse to the Fed-
eral right or claim.
Matheson v. Bank of Alabama, 7 How.
261, 12 L. ed. 693; Chappell Chonical A
Fertilizer Co. v. Sulphur Mines Co. 172 U.
S. 473, 43 L. ed. 520, 19 Sup. Ct Rep. 268
Semple ▼. Hagar, 4 Wall. 434, 18 L. ed. 402
Smith V. Adsit, 16 Wall. 188, 21 L. ed. 310
Commercial Bank v. Rochester, 16 Wall.
642, 21 L. ed. 117 ; Chouteau t. Gibson, 111
U. S. 201, 28 L. ed. 401, 4 Sup. Ct Rep.
340.
No Federal question is presented for the
further reason that assumption of risk is
a question of common law, and it is well
settled that, if a state decision is made
upon rules of general jurl^mdoieei or
upon other grounds broad enough to sus-
tain the judgment without oonsidisring the
Federal question, jurisdiction of this court
will not attach.
New Orleans v. New Orleans Waterworks
Co. 142 U. S. 84, 35 L. ed. 944, 12 Sup. Ct
Rep. 142; Bank of West Tennessee t. Citi-
zens' Bank, 13 WaU. 433, 20 L. ed. 616.
Under the facta there was, therefore, bo
141 V. 8.
IftU. CHESAPEAKE * O. B. CX). t. DB ATLET. SU-3U
«rror in failing to charge the jurj on titt tha object being to determine whethcx
aubject of ueumption of ri*k*. it w«b ufa for No. OS to proceed to
Central Vermont E. Co. v. White, eupre.: Ma.7«TiUe kheed of it Plaintiff wm
Southern R. Co. v. Gadd, 233 U. S. 672, SB unsble to understand the operator and m»
L. ed. 1090, 34 Sup. Ct. Bep. 6BSi Gila reported to the engineer. He then got in-
Valler, 6. t N. R. Co. v. Hell, 232 U. S. to the cab of the locomotive and the train
102, &8 L. ed. 625, 34 Sup. Ot. Sep. 220; proceeded to the coal dodu, about 1 mile
Seaboard Air Line R. Co. v. Horton, 233 U. eaat of Majraville end about 4S0 jarda east
S. 402, 68 L. ed. 1062, -LJLA.IO ISC, 1, 34 of a telegraph sUtion in a eignal tower
Sup. Ct. Rep. S3&, Ann. Cas. I016B, 476, 8 known ■■ the F. O. cabin, where it stopped
N. C. C. A. 834; Illinois C. R. Co. t. Porter, for eoal and water. Plaintiff waa directed
126 C. C. A. 66, 207 Fed. 316. by the engineer to go forward to F. O. cabin
The maeter will not be excused for his and ascertain from the operator the where-
failure to warn and instruct an inexperi- abouts of train No. 1. Plaintiff went to the
enced aerrant, unless it appears that the tower, and waa there advised that his train
servant not ouijr understood, but appre- had time to reach MaysvUle. He immediate-
4iiated the danger. There is quite a dif- If descended to the platform in front of the
ference between knowing that you will get tower and beside the track, and saw that
hurt if JQU do a certain thing, and such his train was approaching. He waited for
appreciation of the danger as will cause it, and when it reached the platform he at-
;ou to stop and think before you do it. tempted to board the engine. He could not
Southern R. Co. v. Mauck, 1S2 Ky. 600, accurately judge the speed of the train, but
163 S. W. T2B. it appeared to him to be going alowly
Even if defendant in error had discovered enough for him to get aboard it. He caught
the danger when he was iujored, but had hold of the grab iron and put one foot on
no time deliberately to choose to take hia the step, and then the speed of the train,
chances, he did not assume the risk. combined with his weight, caused his foot
Illinois C. R. Co. v. Stewart, 13S C. 0. A. to slip and loosened his bold, so that he
444, 223 Fed. 34 ; Yazoo &. M. Valley R. Co. fell beneath the wheels of the tender and
V. Wright, 235 U. S. 378, SB L. ed. 277, 36 hia arm was cut off. He had been employed
Sup. Ct. Rep. 130; 28 Cyc. 1177; Cincinnati, »■ brakeman for about eix weeks, and be-
N. O. 4 T. P. R. Co. V. Ooldston, 166 Ky. 'ore that bad made two round tripe over the
410, 161 S. W. 246. toad for the purpose of becoming acquainted
The facts and inferences therefrom are ''^'> ^'^ duties. During the time of hia em-
conflicting as to the existence of contribu- ployment he bad frequently been called up-
tory negligence, and the question of con- <"". under orders of the train engineer, to
tributory negligence in such instances is l^'^e the train and go forward to signal
for the jury. towers for orders or information, and then
Bcheben y. George Wiedeman Brewing Co. """"nt t^e train as it came moving by. On
161 Ky. 417 170 S. W. 948. "" occasion of the accident tfae train waa
running about 12 miles per hour.
Mr. Justice Pitney delivered tfae opinion t^l^l The <»" "e^t to the jury under
of the court: instructions making defendant's liability de-
In this action, which was brought in a pendent upon whether the engineer, with
state court under the Federal employers' knowledge of plaintiff's presence at the tele-
liability act of April 22, 1908 (chap. 140, graph tower upon businesB oonneoted with
36 Stat, at L. 85, Comp. Stat, 1913, | 8667), the operation ol the train, and with knowl-
tba following facts appeared or might rea- edge of hia purpose to board the train, n(^
aonably be inferred from the evidence most ligently operated the train at such a raU ol
favorable to defendant in error (plainUfl be- .peej „ to make plalntlfTi attempt to
low), in the light of which the Initial quea- i^^ ,t ^aiu^^Hy haaardons. 'Ihere was a
tion touching the vahd.ty of the jud^ent ,„di,t (or plaintiff and the resulting judg-
Inh» favor m.«t be determined: ment waa afflrmed by the court of Ip^^
On Janu.^ 22 1011, plaint.fl wa. in the ^^^^ 1S9 Ky 687, 167 8. W ^
employ of defendant and acting as head „ r. ^ ,L .
br^e^an on train No. 06-a faet we^ ..^P?".*^! P""!!^* ^^ ^t utct. it U not
bound interstate freight train. When the disputed that there was mfiicient evidence
[312] train reached a statitm called °' ""« aegllgence of the ngineer to require
Springdale, about 6 milea east of Maysville, tl" Mtmi^Bion of the eaae to tha Jury. It
in Kentucky, the train engineer directed ^ ugued that there was no substantial evl-
pWntiff to go to a nearby railway tele- dence to support the conolnaion that such
phon^ call up the operator, and aaeertain negligence was the proximate cause of the
tha whereabouts of train No. 1, which injnij; but this is ao dearly untenable aa
waa a fast west-bound paawoger train; t» require no ■''"'■f'"", The ramais.Vii%
•0 It. ed. -v^vv
313-^16
SUPREME COURT OF THE UNITED STATES.
Oct. Tbkm,
questions turn upon the sppHcation of the
law respecting assumption of risk.
It is insisted that, even conceding the
train was operated at a negligent rate of
speed in view of plaintiff's purpose to board
it, yet he assumed the risk of injury in-
volved in the attempt. The act of Congress,
by making the carrier liable for an em-
ployee's injury "resulting in whole or in
part from the negligence of any of the offi-
cers, agents, or employees" of the carrier,
abrogated the common-law rule known as
the fellow-servant doctrine by placing the
negligence of a coemployee upon the same
basis as the negligence of the employer.
At the same time, in saving the defense of
assumption of risk in cases other than those
where the violation by the carrier of a stat-
ute enacted for the safety of employees may
contribute to the injury or death of an em-
ployee (Seaboard Air Line R. Co. v. Horton,
233 U. S. 402, 502, 58 L. ed. 1062, 1069,
L.RJ1.1915C, 1, 34 Sup. Ct. Rep. 635, Ann.
Cas. 1915B, 476, 8 N. C. C. A. 834), the act
placed a coemployee's negligence, where it
is the ground of the action, in the same rela-
tion as the employer's own negligence would
stand [314] to the question whether a
plaintiff is to be deemed to have assumed
the risk.
On the facts of the case before us, there-
fore, plaintiff having voluntarily entered in-
to an employment that required him on
proper occasion to board a moving train, he
assumed the risk of injury normally inci-
dent to that operation, other than such as
might arise from the failure of the locomo-
tive engineer to operate the train with due
care to maintain a moderate rate of speed
in order to enable plaintiff to board it with-
out undue peril to himself. But plaintiff
had the right to presume that the engineer
would exercise reasonable care for his safe-
ty, and cannot be held to have assumed the
risk attributable to the operation of the
train at an unusually high and dangerous
rate of speed, until made aware of the dan-
ger, unless the speed and the consequent
danger were so obvious that an ordinarily
careful person in his situation would have
observed the one and appreciated the other.
Gila Valley, •. ft N. R. Co. v. Hall» 232 U.
S. 04, 101, 58 L. ed. 521, 534, 34 Sup. Ct. Rep.
220; Seaboard Air Line R. Co. v. Horton,
233 U. S. 402, 504, 58 L. ed. 1062, 1070,
L.RJ1.1015C, 1, 34 Sup. Ct Rep. 635, Ann.
Cas. 101 5B, 475, 8 N. C. C. A. 834.
It is argued that, so far as the question
of assumed risks is concerned, it makes no
difference, in the case of a brakeman about
to board a moving train, whether it is
operated at a low or at a high rate of speed;
that if the train is moving slowly the risk is
an ordinary one, incident to the business of
1090
railroading; while if it is moving rapidly^
the risk is open, obvious, and apparent.
Were we to consider only extreme cases,
such as were instanced in* argument, the
point might be conceded; that is, that
mounting a train operated at 1 mile per
hour is an ordinary risk, while mounting a
train operated at 50 miles per hour presents
a risk which, although extraordinary, is
open, obvious, and apparent. But these ex-
tremes do not present an apt illustration.
A speed very much below 50 miles would en-
danger the brakeman's safety, at the same
time being much less apparent. If those op-
erating the train [315] in question knew
that plaintiff intended to board it at that
point, — and the verdict is to that effect, —
the Jury was warranted in finding that
plaintiff had a right to expect that the train
would be moving at a moderate rate of
speed such as would enable an ordinarily
careful brakeman to get on with reasonable
safety; and this upon the ground that, as
head brakeman, plaintiff had the right —
indeed, that it was his duty — ^to get upon
the engine, since otherwise the train would
be left without a head brakeman and the
engineer without the information required
for the safe operation of the train; and that
plaintiff had no notice nor any opportunity
to determine with reasonable certainty
what the speed of the train was, or that
it was too great for his safety, until tbc
engine had practically reachcNl him. It
cannot be said, as matter of law, that a
speed of 12 miles per hour would necessarily
be obvious to him as a dangerous speed, be-
fore he made the attempt to board the train.
It is insisted that the true test is not
whether the employee did, in fact, know the
speed of the train and appreciate the dan-
ger, but whether he ought to have known
and comprehended; whether, in effect, he
ought to have anticipated and taken pre-
cautions to discover the danger. This is
inconsistent with the rule repeatedly laid
down and uniformly adhered to by this
court. According to our decisions, the set-
tled rule is not that it is the duty of an
employee to exercise care to discover extra-
ordinary dangers that may arise from the
negligence of the employer or of those for
whose conduct the employer is responsible,
but that the employee may assume that the
employer or his agents have exercised proper
care with respect to his safety until noti-
fied to the contrary, unless the want of care
and the danger arising from it are so obvi-
ous that an ordinarily careful person, under
the circumstances, would observe and ap-
preciate them. Ibid.
[316] We conclude that there w»s no
error in refusing to peremptorily instmet
141 V. 8.
1015.
CHESAPEAKE ft O. R. CO. ▼. DE ATLEY.
816-318
the jury to return a verdict in favor of de-
fendant.
Error is assigned to the refusal of the
trial court to instruct the jury as follows:
That when plaintiff entered defendant's serv-
ice as brakeman he assumed all the ordinary
risks and hazards of that employment, and
if the jury should believe from the evidence
that his injuries were the natural and di-
rect result of any of such risks or hazards,
they must find for the defendant. The in-
struction thus requested was defective, and
there was no error in refusing to give it in
this form, since it embodied no definition
of "ordinary risks and hazards," nor any
qualification appropriate to the particular
facts of the case. The gravamen of plain-
tiff's complaint, as developed at the trial,
and the sole theory upon which the case
was submitted to the jury, was that the neg-
ligence of the engineer in operating the
train at an unduly high rate of speed
created an unusual and extraordinary haz-
ard. An instruction upon the question of
assumption of risk, dealing solely with the
ordinary hazards of the employment, and
not pointing out that a different rule must
be applied with respect to an extraordinary
risk attributable to the engineer's negli-
gence, would probably have confused and
misled the jury.
But it appears that in Kentucky there is
an established rule of practice, that if in-
structions are offered upon any issue respect-
ing which the jury should be instructed,
but they are incorrect in f6rm or substance,
it is the duty of the trial court to prepare
or direct the preparation of a proper in-
struction upon the point in the place of the
defective ones. Louisville & N. R. Co. v.
Harrod, 116 Ky. 877, 882, 75 8. W. 233;
West Kentucky Coal Co. v. Davis, 138 Ky.
667, 674, 128 S. W. 1074; Louisville, H. &
St. L. R. Co. V. Roberts, 144 Ky. 820, 824,
130 S. W. 1073.
Although the present action was based
upon a Federal [317] statute, it was tri-
able and tried in a state court; hence local
rules of practice and procedure were appli-
cable. Central Vermont R. Co. v. White, 238
U. S. 607, 511, 59 L. ed. 1433, 1436, 35 Sup.
Ct. Rep. 865, 9 N. 0. C. A. 265; Minneapolis
fc St. L. R. Co. V. Bombolis, No. 478, this day
decided [241 U. S. 211, ante, 961, 36 Sup.
Ct. Rep. 595]. The Kentucky court of ap-
peals assumed for the purposes of the deci-
sion that the case was one where the trial
Kmrt ought to have followed the local prac-
tice and prepared or directed the prepara-
tion of a proper instruction covering the
loesticm of assumption of risk; and it sus-
tained the judgment only upon the ground
that there was no question for the jury re-
electing it. Whether there was is a quea-
10 li. ed.
tion of law, and of course, in this case, a
Federal question ; and since the court of ap-
peals assumed to decide it, it is incumbent
upon us to review the decision. North
Carolina R. Co. v. Zachary, 233 U. S. 248,
257, 58 L. ed. 691, 695, 34 Sup. Ct. 305,
Ann. Cas. 1914C, 159.
We are unable to concur in the view that
there was no question for the jury. Whether
the risk was an extraordinary risk de-
pended upon whether the speed of the train
was greater than plaintiff reasonably might
have anticipated; and this rested upon the
same considerations that were determinative
of the question of the engineer's negligence.
If the jury should find, as in fact they did
find, that the speed of the train was unduly
great, so that the risk of boarding the en-
gine was an extraordinary risk, the question
whether plaintiff assumed it then depended
upon whether he was aware that the speed
was excessive, and appreciated the extraor-
dinary danger ; or, if not, then upon whether
the undue speed and the consequent danger
to him were so obvious that an ordinarily
prudent person In his situation would have
realized and appreciated them. The court
of appeals reasoned that plaintiff's duties
required him to be upon the passing train;
that if he failed to board it he would be
left behind; that he had a right to assume
the engmeer would run the train at a speed
that would enable him to get on in safety;
[318] that he was facing the train, which
was going directly toward him; that, as a
matter of common knowledge, one standing
in that position cannot form an accurate
judgment of its speed until it comes quite
near to him; and that his opportunity to
observe the speed was limited to the brief
space of time that elapsed between the pass-
ing of the front end of the engine and the
cab, where it was his purpose to get on;
and the court determined that, under such
circumstances, "it is well-nigh impossible to
tell the difference between a rate of from 4
to 6 miles an hour, when an ordinarily pru-
dent brakeman might get on with reasonable
safety, and a rate of from 10 to 12 miles an
bc»ur, when it would be dangerous for him to
do so:" nnd that "all the circumstances tend
to show that knowledge of the speed of the
train came to him so suddenly and unex-
pectedly that he did not have an opportunity
to realize and appreciate the danger of get-
ting on." Conceding the force of the reason-
ing, we are bound to say that, in our opin-
ion, it cannot be said, as matter of law, to
be so incontrovertible that reasonable minds
might not differ about the conclusion that
should be reached. We therefore hold that
the question of assumption of risk was one
proper for submission to the jury, and. as-
suming, as the court asaumed, that the local
1011
318, 310
SUPREME COURT OF THE UNITED STATES.
Oct. Tbm,
practice required the preparation of a prop-
er inBtniction covering the topic, in the
place of the defective instruction that was
offered, there was error in affirming the
judgment of the trial court.
Judgment reversed and the cause re-
manded for further proceedings not incon-
sistent with this opinion.
Mr. Justice MoKenna and Mr. Justice
Holmes dissent.
[319] CINCINNATI, NEW ORLEANS, A
TEXAS PACIFIC RAILWAY COM-
PANY, Plff. in Err.,
V.
D. F. AND T. C. RANKIN.
(See S. 0. Reporter's ed. 319-328.)
Carriers — liability as insurers — effect
of Carmack amendment.
1. The common-law liabilitj of a car-
rier as an insurer was not changed with
respect to a loss occurring on its own line
by the provision of the Carmack amend-
ment of June 20, 1906 (34 Stat, at L. 684,
chap. 3591), to the act of February 4, 1887
(24 Stat, at L. 379, chap. 104, Comp. Stat.
1913, § 8563), § 20, making the initial car-
rier of an interstate shipment liable for any
loss, damage, or injury "caused by it" or
by any other carrier to which the shipment
may be delivered. *
[For other cases, see Carriers, II. b, 8, in
Dl^st Sup. Ct. 1908.1
Carriers — measure of rights and lia-
bility — Interstate shipment.
2. The rights and liabilities of the par-
ties to an interstate railway shipment de-
pend upon Federal legislation, the bill of
lading, and common-law rules as accepted
and applied in Federal tribunals.
[For other cases, see Carriers, II. b. 1, in
Digest Sup. Ct. 1908.1
Bvidence — presumption — carrier's
compliance with law.
3. It cannot be assumed merelv because
the contrary has not been established by
proof that an interstate railway carrier is
conducting its affairs in violation of con-
trolling Federal legislation.
[For other cases, see Evidence, IL i; 1, in
Digest Sup. Ct 1908.1
Bvidence — bnrden of proof — limita-
tion of carrier's liability — choice of
rates.
4. Recitals in a bill of lading for an
interstate shipment, signed by both parties,
that alternate rates, based upon specified
values, are offered by the carrier's pub-
lished freight rates, constitute admissions
by the shipper and sufficient prima facie
evidence of a choice of rates, and cast upon
him the burden of proving, in case he wishes
to contradict his admissions, that the car-
rier had not complied with the require-
menta of controUing Federal legislation re-
speeting the filing and publishing of it»
rate schedules.
[For other cases, see Evidence, IL f, in Dinst
Sup. Ct. 1908.]
[No. 69.]
Argued November 5, 1915. Decided Hay
22, 1916.
IN ERROR to the Supreme Court of the
State of Tennessee to review a judgment
which affirmed a judgment of the Court of
Civil Appeals of that state, affirming a
judgment of the Circuit Court of Hamilton
County, in favor of a shipper in an action
against a carrier to recover for damages ta
an interstate shipment. Reversed and re-
manded for further proceedings.
The facts are stated in the opinion.
Mr. James J. liynch argued the eauss^
and, with Messrs. Michael M. Allison, Ed-
ward Colston, and Isaac G. Phillips, filed
a brief for plaintiff in error:
If liable at all, the amount of the judg-
ment complained of is erroneous. Defend-
ants in error are only entitled to recover
$75 for each of the animals lost, as provided
for in the contract of shipment.
Hart V. Pennsylvania R. Co. 112 U. S.
331, 28 L. ed. 717, 6 Sup. Ct. Rep. 151;
Chicago, St. P. M. & 0. R. Co. v. LatU, 22$
U. S. 519, 57 L. ed. 328, 33 Sup. Ct. Rep.
155; Chicago, B. & Q. R. Co. v. Miller, 22&
U. S. 513, 57 L. ed. 323, 33 Sup. Ct. Rep.
155; Missouri, K & T. R. Co. v. Harriman,
227 U. S. 657, 668, 57 L. ed. 690, 696, 33
Sup. Ct. Rep. 397; Pennsylvania R. Co. v*
Hughes, 191 U. S. 477, 48 L. ed. 268, 24 Sup.
Ct Rep. 132; Bernard v. Adams Exp. Co.
205 Mass. 254, 28 L.RJL(N.S.) 293, 91
N. E. 325, 18 Ann. Cas. 351.
If plaintiff in error had filed the schedule
of rates containing the limited valuation set
out in the bill of lading, with the Interstate
Commerce Commission, their reasonableness
could not be considered by the courts in
this suit.
Texas ft P. R. Co. v. Abilene Cotton Oil
Co. 204 U. S. 426, 51 Ii. ed. 553, 27 Sup. Ct
Rep. 350, 9 Ann. Cas. 1075 ; Baltimore ft 0.
R. Co. V. United States, 215 U. 8. 481, 54
L. ed. 292, 30 Sup. Ct Rep. 164.
The positive mandate of the law required
the railway company to charge, and the
shipper to pay, the rate which had been filed
with the Interstate Commerce Conunission,
and the giving or acceptance of any other
rate would have been a violation of the
law, and would have subjected both the
railway company and the shipper to a heavy
penalty.
Texas ft P. R. Co. v. Abilene Cotton Oil
Co. 204 U. 8. 445, 51 Ii. ed. 561, 27 Sup.
941 U. 8.
1915.
CINCINNATI, N. O. ft T. P. R. CO. ▼. RANKIN.
820, 321
Ct. Rep. 350, 9 Ann. Caa. 1075; Qull, C. &
a F. R. Co. y. Heflej, 158 U. S. 98, 39 L.
ed. 010, 15 Sup. Ct. Rep. 802; Texas k P.
R. Co. ▼. Mugg, 202 U. a 242, 50 L. ed.
1012, 26 Sup. Ct. Rep. 628.
The court should preaume that the sched-
ule of ratea providing for this limited valu-
ation waa properly filed with the Interstate
Commerce Commission, aa required by law.
Clement v. Louisville ft N. R. Co. 153
Fed. 979; Meeker v. Lehigh Valley R. Co.
162 Fed. 359; Knox County v. Ninth Nat.
Bank, 147 U. S. 94, 37 L. ed. 95, 13 Sup.
Ct. Rep. 267; 1 Beach, Contr. § 717; Green-
hood, Pub. Pol. Rule 130, p. 118 ; 2 Elliott,
Contr. § 1061; 2 Chamber layne, Ev. § 1056;
Bradner, Ev. p. 362, § 26; Gefaty'v. At-
lantic Coast Line R. Co. 211 Fed. 227.
Where the common-law liability of the
carrier was waived by contract, such carrier
was liable only for a breach of its duty to
exercise ordinary care to protect freight
from loss in transportation.
Memphis ft C. R. Co. v. Reeves, 10 Wall.
176, 19 L. ed. 909; United States Exp. Co.
y. Kountze Bros. 8 Wall. 342, 19 L. ed. 457;
Holladay v. Kennard, 12 Wall. 254, 20 L.
ed. 390; 1 Hutchinson, Carr. § 292; 2 Hutch-
inson, Carr. § 667.
Messrs. W. B. HlUer and Charles O.
Fox argued the cause and filed a brief for
defendants in error:
A special plea, or one setting up an af-
firmative defense, imposes the burden of evi-
dence on the party introducing such plea.
Oaugh y. Henderson, 2 Head, 629 ; Brown
V. Phelon, 2 Swan, 629; Carter v. Turner, 5
Sneed, 179; Douglass v. Brandon, 6 Baxt.
68.
A plea bringing forward a substantive
fact is not supported by one presumption
based on another or other presumptions.
16 Cyc. 1050, 1051; United States v. Ross,
92 U. S. 218, 23 L. ed. 707; First Nat. Bank
V. Stewart, 114 U. S. 224, 29 L. ed. 101,
6 Sup. Ct. Rep. 845 ; Manning v. John Han-
cock Mut. L. Ins. Co. 100 U. S. 693, 25 L.
ed. 761; East Tennessee ft W. N. C. R. Co.
▼. Lindamood, 111 Tenn. 458, 78 S. E. 99;
De Glopper v. Nashville R. ft Light Co. 123
Tenn. 633, 33 L.R.A.(NJ5.)913, 134 S. W.
609.
The dangerous condition made and main-
tained by the carrier, coupled with the reck-
less conduct of the engineer, assuredly made
a clear case of loss caused by the carrier.
There was no other cause. The cow cross-
ing the tracks was only a remote cause.
Hence^ liability is clearly fixed regardless of
what construction may be giyen the words
"caused by it." Aa respects the carrier,
this loss waa "caused by it.''
•0 li. ed.
Louisville ft N. R. Co. ▼. Warfleld, 6 Ga.
App, 553, 65 S. E. 308.
If for no other reason, the limitation of
value should fail because utterly lacking
in mutuality.
9 Cyc. 244, 245; 39 Cyc. 686; Clark V.
Small, 6 Yerg. 423.
The carrier had better facilities and
greater means of knowledge for proving the
affirmative defense contained in its pleas
than had the shipper to prove a negative.
And the failure to prove its pleaa or offer
any evidence of the fact that the published
freight rates and the tariff regulations re*
ferred to were l^^lly authorized reacts with
special force against it.
Brown v. Raisin Fertilizer Co. 124 Ala.
221, 26 So. 891 ; Cook v. Guirkin, 119 N. C.
13, 25 S. E. 715; see also N. H. Blitch Co.
V. Atlantic Coast Line R. Co. 87 S. C. 115,
69 S. E. 16.
Mr; Justice McReynolds delivered the
opinion of the court:
Defendants in error, experienced shippers,
on November 6, 1911, delivered to plaintiff
railway at Danville, Kentucky, a car of
mules, nineteen of which they owned, for
transportation to Atlanta, Georgia. They
signed and accepted a through bill of lad-
ing, the pertinent portions of which fol-
low:
Contract for limited liability in the trans-
portation of live stock at reduced rates.
3. Limit of value. — ^That this agreement
is subject to the following terms and con-
ditions, which the said shipper accepts as
just and reasonable, and which he admits
having read and having had explained to
him by the agent of the said carrier, viz,:
That the published freight rates on live
stock of said carrier are, in all cases, based
on the following maximum calculations,
which are as high as the profit in the
freight rates will admit of the carrier as-
suming responsibility for:
...
Horses or mules, not exceeding $75 each
...
That the tariff regulations of said car-
rier provide that for every increase of 100
per cent, or fraction thereof, in the above
valuations, there shall be an increase of
50 per cent in the freight rate; and that
the said shipper, in order to avail himself
of said published freight rates, agrees that
said carrier shall not, in any case of loss
[321] or damage to said live stock, be
liable for any sum in excess of the actual
value of said stock at the place and date of
shipment, nor for any amount in excess of
the values stated above, which are hereby
agreed to be not leas than the just and true
109
321-323
SUPREME COURT OF THE UNITBD STATES.
Cot. Tebm,
values of the animaU, iinleaa an additional
amount is herein stated and paid for.
4. Guaranteed freight rate. — ^That the
rate of freight guaranteed by said carrier,
in view of the above stipulated valuations
is I per from : to
— and that said shipper accepts this rate
of freight, and agrees to pay same at desti-
nation in connection with the charges ad-
vanced by said carrier, as indicated above,
and any other legitimate charges which
said carrier may advance for account of
said shipper between point of shipment and
destination for feed, water, etc.
A wreck occurred at Dayton, Tennessee;
some of the animals were killed; others
were injured and afterwards sold by plain-
tiff in error; and shippers brought this
suit in the circuit court, Hamilton county,
Tennessee, to recover $4,750, — $250 per head.
The declaration contains two counts. The
first — a common-law count on a general
contract of affreightment — alleges delivery
with agreement to pay full freight charges
and that the carrier accepted and agreed
to transport safely, but failed so to do.
The second sets up execution and delivery
of the bill of lading annexed as an exhibit,
but declares shippers knew nothing of the
limited-liability provision therein; and fur-
ther ''that the whole of said paper, and
especially the $75 limitation, is void and
of no effect and is not operative or binding
on them or either of them,'' because (1)
executed in Kentucky, under whose laws it
is void; (2) unreasonable and unjust; (3)
no other contract of transportation was
offered, and shippers were not aware that
the transportation was to take place at
reduced rates and under stipulations for
limited liability ; ( 4 ) there was no consider-
ation; (5) the [322] parties were not on
equal terms. It also denounces as untrue
statements in clause 3 of the bill concerning
published freight rates and tariff regula-
tions.
The railway filed nine pleas; two general
— ^"not guilty" and "that it did not breach
the contract of carriage" as alleged — and
seven special ones. Among other things,
the company avers in the latter: That it
had duly filed with the Interstate Commerce
Commission and had published and kept
open for inspection schedules of joint rates
between Danville, Kentucky, and Atlanta;
they contained classifications of freight in
force, and stated separately all terminal and
other charges, and provided that carload
rates upon horses and mules, where valued
not above $75 each, should be $95 per car,
and for every increase of 100 per cent or
fraction thereof there should be an increase
of 50 per cent in rate; plaintiffs knew the
10S4
I company's freight rate was based upon
specified values and that it stood ready to
transport at increased valuation and rate,
and, knowing these facta, they declared the
value specified, and thereby obtained the
cheaper rate of $95 per car. That the re-
ceipt or bill of lading duly signed by ship-
pers fixes a maximum value; contains defi-
nite recitals (set out above) in respect of
rates, etc., and "with all the provisions
thereof, is valid and binding upon the plain-
tiffs and the defendant when applied to in-
terstate shipments which are governed by
the acts of Congress of February 4, 1887
(24 Stat, at L. 379, chap. 104), and June
29, 1906 (34 Stat, at L. 584, chap. 3591,
Comp. Stat. 1913, § 8563), and defendant
pleads and relies upon the same as a com-
plete bar to any recovery (in excess of $75)
for such mules as were actually killed and
such ones as were actually damaged to the
amount of $75."
Issue being joined, the cause was tried
to a jury. D. F. Rankin, testifying for
himself, declared the mules were worth
from $230 to $240 each; described the cir-
cumstances surrounding shipment, identified
exhibited bill of lading as signed and ac-
cepted by him, but stated he did not read
[323] it, and nothing was said about rates,
and that he was not aware of the $75 limit-
ation; admitted he had shipped stock over
same route before, paying $95 per car; and
asserted he had seen no printed tariff rates
from Danville to Atlanta. The bill so
identified was treated throughout the trial
as properly in evidence; but no duly filed
and applicable rate schedules were pre-
sented, nor did the railway introduce any
evidence to support its special pleas.
The trial judge held:
"The one controlling point in this case ia
as to whether or not there is a presumption
in favor of the defendant's compliance with
the law whereby it seeks by its action to
escape from liability."
"There is no doubt in the mind of the
court but that if the railroad were charged
with a violation of the provisions of the
interstate commerce act, a presumption in
favor of its compliance would arise; but
where the railroad, as in this case, sets up,
as a matter of defense, its compliance with
the provisions of that act, the court is of
the opinion that there is no presumption in
its favor, and that the burden of proof is
on the defendant to show a substantial com-
pliance with the provisions of the act."
"It therefore follows that under the facta
in this case, the undisputed facts and the
decisions of our courts on this subject, that
the court is of the opinion that the con-
tract in this case is invalid, and the ques-
tion goes to the jury as to the negligenee
241 U. S.
1016.
CINOINNATI, N. O. ft T. P. R. 00. ▼. RANKIN.
82S-326
ol the defendant on thie shipment ai ntotkJ*
And he eharged the jury:
"If you find from the proof in this ease
that the plaintiff did deliTer in good ocm-
dition nineteen mules to the defen^mt to be
transported to Atlanta, Ge(»rgia, and that
there was an accident, a collision on the
railroad, then the hurden is upon the rail-
way company to show that H has not been
guilty of any negligence.
[324] '^f the defendant company shows
you by the greater weight or the preponder-
ance of the evidence its freedom from negli-
gence, then the plaintiff is not entitled to
recover.
'^f you reach the conclusion that the
plaintiff has made out his case and is en-
titled to recover for the value of the nine-
teen mules, then he would be entitled to
recover the value of the mules at the place
of their destination, in this case, Atlanta,
Georgia, according to their value at the
time they would have been delivered but
authority and outside of the act of Oongress,
invoked by this defendant; or, in other
words, so far as the interstate commerce
act is concerned, this railroad company has
made the contract in violation of its provi*
sions.
"There is no proof that the railroad
company had any other rate than the one
charged plaintiffs for this shipment between
Danville^ Kentudcy, and Atlanta, Georgia.
There is no proof that it offered to plidn-
tiffs, at the time it issued to them its bill
of lading, a contract with unlimited lia-
bility, or, in other words, a common-law
liability. . . .
"... If the company had any other
rate than the one it agreed for the trans-
portation of this freight, it did not disclose
that fact to the shipper, nor did it have
any rate whatever posted in or about its
office. If it had a shipping ocmtract with
unlimited liability it did not choose be-
tween the two, and, from the undisputed
for the negligence of the carrier, less what- **<^ developed in this record, it is cl»r
to our minds this contract is void and the
ever transportation charges there would
have been on this car of stock.
"It is also in the discretion of the jury
to award interest on any recovery from the
time of the loss up to the present time."
. . . "Negligence is the want or lack
of exercise of that degree of care which the
particular circumstances demands. In this
case the carrier is held to the highest de-
gree of care for the safe transportation of
the animals."
Judgment upon a verdict for $4,180 — $220
per head — and $328.82 interest was affirmed
by the court of civil appeals, and the su-
preme court approved this action without
opinion.
The court of civil appeals inter alia de-
clared:
"It hardly appears debatable to us, that
it was incumbent upon the railroad com-
pany, in this case, in the present state of
the pleadings, to show by proof that it had
met the requirements of the interstate com-
merce act, and this burden it failed to carry,
and having failed to do so, it cannot rely
upon presumption.
"Having reached this conclusion, it re-
mains to be determined what are the rights
and liabilities of these parties, under the
contract of carriage in this case. There
being nothing in the record to show that
the rate of freight charged by the company
was approved and authorised by the Inter-
state Oommerce Commission, we must de-
termine the rights of these parties upon
the theory that no [325] such rate was
ever filed with the Commission, or approved
or authorised by it, and that the rate and
limited-liability clause therein cannot be
relied upon by the company as a bar to the
recovery of full value of each animal
shipped. If, however, the defendant had
shown, by proof, that the rate charged by
it for this freight had been filed with and
approved by the Interstate Commerce Com-
mission, and that it had posted tlie rate,
as required by the act of Congress, then
a rate of freight based upon the valuation
fixed in the bill of lading would have limited
plaintiffs' right to recover to the value fixed
in the contract."
Plaintiff in error maintains, first, that,
not having been negligent, it Is not lisble
for any sum; and, second, that in any event
it is protected by a valid limitation in the
bill of lading.
Counsel concede lisbilHy of a common
carrier under the long-recognized common-
law rule not only for negligence, [326] but
also as an insurer, and that unless the Car-
mack amendment (copied in margin i) has
changed this rule, the railway is responsible
for damages not exceeding specified value.
But they insist that in Adams Exp. Co. v.
Croninger, 226 U. 8. 491, 67 L. ed. 314, 44
L.RA.(N.8.) 257, 33 Sup. Ct. Rep. 148, we
held this amendment restricts a carrier's
liability to loss "caused by it." And, con-
sequoitly, they say, the trial court erred
when it charged: "In this case the carrier
1 "That any common carrier, railroad, or
transportation company receiving property
for transportation from a point in one state
to a point in another state shall issue a re-
ceipt or bill of lading therefor and shall
be liable to the lawfm holder thereof fo'
contract made in this case was without the any loss, damage, or injury to such pr
•0 li. ed.
66
U
326-328
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
is held to the highest degree of care for the
safe transportation of the animals."
Construing the Carmack amendment, we
said through Mr. Justice Lurton in the
ease cited (pp. 606, 507): "The lUhility
thus imposed is limited to 'any loss, injury,
or damage caused by it or a succeeding
carrier to whom the property may be de-
livered,' and plainly implies a liability for
some default in its common-law duty as a
common carrier." Properly understood,
neither this nor any other of our opinions
holds that this amendment has changed the
common-law doctrine theretofore approved
by us in respect of a carrier's liability for
loss occurring on its own line.
The state courts, treating the bill of
lading as properly in evidence, undertook
to determine its validity and effect. We
need not, therefore, consider the mooted
questions of pleading. The shipment being
interstate, rights and liabilities of the par-
ties depend upon acts of Congress, the bill
[327] of lading, and common-law rules as
accepted and applied in Federal tribunals.
Cleveland, C. C. & St. Li. R. Co. v. Dettle-
bach, 230 U. S. 588, ante, 453, 36 Sup. Ct.
Rep. 177; Southern Exp. Co. v. Byers, 240
U. S. 612, ante, 825, 36 Sup. Ct. Rep. 410,
and cases cited; Southern R. Co. ▼. Prescott,
240 U. S. 632, ante, 836, 36 Sup. Ct. Rep.
469.
We cannot assent to the theory appar-
ently adopted below that the interpreta-
tion and effect of a bill of lading issued by
a railroad in connection with an interstate
shipment present no Federal question un-
less there is affirmative proof showing actual
compliance with the interstate commerce
act. It cannot be assumed, merely because
the contrary has not been established by
proof, that an interstate carrier is conduct-
ing its affairs in violation of law. Such a
carrier must comply with strict require-
ments of the Federal statutes or become
subject to heavy penalties, and, in respect
of transactions in the ordinary course of
business, it is entitled to the presumption
of right conduct. The law "presumes that
every man, in his private and official char-
acter, does his duty, until the contrary is
proved, it will presume that all things are
rightly done, unless the circumstances of
the case overturn this presumption, accord-
ing to the maxim, omnia preaumuntur rite
et 8olemnitur ease acta, doneo prohetur in
contrarium." Bank of United States v.
Dandridge, 12 Wheat. 64, 69, 70, 6 L. ed.
552, 554, 555; Knox County v. Ninth Nat
Bank, 147 U. S. 91, 97, 37 L. ed. 93, 95, IS
Sup. Ct Rep. 267; Maricopa & P. R. Co. v.
Arizona, 156 U. 8. 347, 351, 39 L. ed. 447,
449, 15 Sup. Ct. Rep. 391; Sun Printing k
Pub. Asso. V. Moore, 183 U. S. 642, 649, 46
L. ed. 366, 372, 22 Sup. Ct. Rep. 240.
Under our former opinions the settled
doctrine is that where alternate rates, fairly
based upon valuation, are offered, a railroad
may limit its liability by special contract.
George N. Pierce Co. v. Wells, F. & Co. 236
U. S. 278, 283, 59 L. ed. 576, 581, 35 Sup.
Ct. Rep. 351.
The essential choice of rates must be made
to appear before a carrier can successfully
claim the benefit of such a limitation and
relief from full liability. And as no inter-
state rates are lawful unless duly filed with
the Commission, it may become necessary
for the carrier to prove its [328] schedules
in order to make out the requisite choice.
But where a bill of lading, signed by both
parties, recites that lawful alternate rates
based on specified values were offered, sucli
recitals constitute admissions by the shipper
and sufficient prima facie evidence of choice.
If, in such a case, the shipper wishes to
contradict his own admissions, the burden
of proof is upon him. York Mfg. Co. v.
Illinois C. R. Co. 3 Wall. 107, 113, 18 L. ed.
170, 172; The Delaware, 14 Wall. 679, 601,
20 L. ed. 779, 783; Hart v. Pennsylvania R.
Co. 112 U. S. 331, 337, 28 L. ed. 717, 719,
5 Sup. Ct. Rep. 151 ; Cau v. Texas & P. R.
Co. 194 U. 8. 427, 431, 48 L. ed. 1053, 1056,
24 Sup. Ct. Rep. 663, 16 Am. Xeg. Rep.
659; Squire v. New York C. R. Co. 98
Mass. 239, 248, 93 Am. Dec. 102; Wabash
R. Co. V. Curtis, 134 111. App. 409. 412;
Hutchinson, Carr. 3d ed. § 475.
The bill of lading in question is plainly
entitled, "Contract for Limited Liability in
the Transportation of Live Stock at Reduced
Rates," and contains the conspicuous provi-
sions concerning published rates, tariff regu-
lations, choice offered the shipper, and limit
upon the carrier's liability, etc., above set
out. In view of these recitals and admis-
sions, the limitation of liability must be
treated as prima facie valid, and, conse-
quently, the trial court erred in holding it
void as a matter of law, and permitting a
recovery for full value of the animals.
The judgment below is reversed and the
cause remanded to the Supreme Court of
ertv caused by it or by any common carrier,
railroad, or transportation company to
which such property may be delivered or
over whose Ime or lines such property may
pass, and no contract, receipt, rule, or regu-
lation shall exempt such common carrier,
railroad, or transportation company from
1026
the liability hereby imposed: Provided,
That nothing in this section shall deprive
any holder of such receipt or bill of lading
of any remedy or right of action which he
has under existing law. . . .*' (Chap.
3591, 34 SUt. at L. 584, 595, Comp. SUt
1913, §§ 8563, 8592.
141 U. S.
1016.
DONALD V. PHILADELPHIA ft R. COAL ft I. CO.
328, 329
TenneMee for further proceedings not in-
consistent with this opinion.
Reversed.
[829] JOHN S. DONALD, Secretary of
State of the State of Wisconsin, and Wal-
ter C. Owen, Attorney General of the
State of Wisconsin, Appts.,
▼.
PHILADELPHIA & READING COAL A
IRON COMPANY. (No. 263.)
JAMES A. FREAR, in His Capacity as
Secretanr of State of the State of Wis-
consin, Appt.,
▼.
WESTERN UNION TELEGRAPH COM-
PANY. (No. 264.)
(See S. C. Reporter's ed. 329-333.)
Removal of oanses — restrictioii of
ri^ht by state — foreign corporation.
An unconstitutional attempt to pre-
vent foreign corporations doing both inter-
state and intrastate business Irom remov-
ing to a Federal court suits brought against
them in a Wisconsin court by citizens of
that state is made by the provisions of
Wis. Stat. § 1770f, for the revocation by
the secretary of state of the license of any
foreign corporation to do business within
the state wnenever it shall remove or make
application to remove to a Federal court
any suit brought against it by any citizen
of the state upon a claim or cause of ac-
tion arising within the state.
[For other cases, see Removal of Caases, II. a ;
Cornorations, XII. b, 2, In Digest Sup. Ct.
[Nos. 263 and 264.]
Argued April 13, 1936. Decided May 22,
1916.
TWO APPEALS from the District Court
of the United States for the Western
District of Wisconsin to review decrees en-
joining the revocation of the licenses of for-
eign corporations to do business within the
state because of the removal to a Federal
court of suits brought against them by citi-
zens of the state. Affirmed.
See same case below, 216 Fed. 199.
The facts are stated in the opinion.
Mr. J. E. .Messerschntldt argued the
cause, and, with Mr. Walter C. Owen, Attor-
ney Greneral of Wisconsin, filed a brief for
appellants :
The provision of the Wisconsin statutes.
Note. — On revocation of license of for-
eign corporation on account of removal of
action to Federal court — see note to Harri-
son V. St. Louis & S. F. R. Co. L.R.A.1916F,
1187.
•0 l4. ed.
that, if a foreign corporation shall remove
or make application to remove into any dis-
trict or circuit court of the United States
any action or proceeding comnipnced against
it by any citizen of Wisconsin upon any
claim or cause of action arising within this
state, the license issued to such corporation
shall be void, and the secretary of state
shall enter sucli forfeit in the records in
his department, has not for its object to
oust the Federal court of jurisdiction, but
the primary purpose is the putting of for-
eign corporations on substantially the same
footing as domestic corporations, and such
is the result.
State ex rcl. Drake v. Doyle, 40 Wis. 175,
22 Am. Rep. 692; Independent Tug IJne
V. Lake Superior Lumber & Box Co. 146
Wis. 121, 131 N. W. 408; Security Mut.
L. Ins. Co. V. Prewitt, 202 U. S. 246, 60
L. ed. 1013, 26 Sup. Ct. Rep. 619, 6 Ann. Cas.
317 ; Doyle v. Continental Ins. Co. 94 U. S.
635, 24 L. ed. 148.
The mandate of the 14th Amendment to
the Constitution of the United States, that
no state shall make or ^force any law
which shall deny to any person within its
jurisdiction the equal protection of the laws,
is applicable to remedial rights.
Ex parte Strieker, 109 Fed. 160; Barbier
T. Connolly, 113 U. S. 27, 28 L ed. 923, 5
Sup. Ct. Rep. 367; Johnson v. Goodyoar
Min. Co. 127 Cal. 4, 47 L.R.A. 338. 78 Am.
St. Rep. 17, 59 Pac. 304; 8 Cyc. 107C;
Randolph v. Builders' & Painters' Supply
Co. 106 Ala. 501, 17 So. 721; Brannon, 14th
Amend. 343; Missouri v. I^wis (Bowman
V. Lewis) 101 U. S. 22, 25 L ed. 989; Dur-
kee T. Janesville, 28 Wis. 464, 9 Am. Rep.
600; Janesville v. Carpenter, 77 Wis. 288,
8 L.R.A. 808, 20 Am. St. Rep. 123, 40 N. W.
128; State ex rel. Kellogg v. Currens, 111
Wis. 431, 66 L.R.A. 2.32, 87 N. W. 561:
Southern R. Co. v. Green, 216 U. S. 400, 54
L ed. 536, 30 Sup. Ct. Rep. 287, 17 Ann.
Cas. 1247.
The rule of comity goes only so far as to
place foreign corporations on an equal basis
with domestic corporations, but never be-
yond.
6 Thomp. Corp. 2d ed. § 6628; Clarke v.
Central R. k Bkg. Co. 15 L.R.A. 683, 60 Fed.
338; Van Steuben v. Central R. Co. 178 Pa.
367, 34 L.R.A. 577, 35 Atl. 992; Presby-
terian Ministers Fund v. Thomas, 126 Wis.
281, 110 Am. St. Rep. 919, 106 X. W. 801}
6 Thomp. Corp. § 7885; 2 Morawetz, Priv.
Corp. 2d ed. § 965; Empire Mills v. Alston
Grocery Co. — Tex. App. — , 16 S. W. 200;
Bank of Augusta v. Earle, 13 Pet. 519, 10
L. ed. 274; Horn Silver ^lin. Co. v. New
York, 143 U. S. 305, 36 L ed. 164, 4 Inters.
Com. Rep. 67, 12 Sup. Ct. Rep. 403; His-
key ▼. Pacific States Sav. L. & BIdg. Co.
10^
SUPREME OOUBT OF THE UNITED STATES.
Oct. Tmmm,
27 Utah, 409, 76 Pac. 20; Fowler ▼. Bell,
90 Tex. 150, 39 L.RJL 254, 69 Am. St. Rep.
788, 37 S. W. 1058; Coler t. Tacoma R. ft
Power Co. 65 N. J. £q. 347, 103 Am. St. Rep.
786, 54 Atl. 413; White ▼. Howard, 46 N. Y.
144; Falls y. United States SaT. L. & Bldg.
Co. 97 Ala. 417, 24 URJL. 174, 38 Am. St.
Rep. 194, 13 So. 25; Walter ▼. Whitlock,
9 Fla. 86, 76 Am. Deo. 607; Harding ▼.
American Glucose Co. 182 111. 551, 64 L.ItA.
738, 74 Am. St. Rep. 189, 55 N. E. 577;
United States Mortg. Co. t. Qross, 93 III.
483; Faulkner v. Hyman, 142 Mass. 53, 6
N. £. 846; People v. Howard, 60 Mich. 239,
16 N. W. 101; State ex rel. St. Louis, K.
C. & C. R. Co. V. Cook, 171 Mo. 348, 71
S. W. 829; Toomey ▼. Supreme Lodge, K.
P. 74 Mo. App. 507; Fisher t. Lord, 63 N.
H. 514, 3 Atl. 927.
The rule of the Doyle and Prewitt Cases,
properly qualified and limited in its scope, is
applicable to this statute, and is sufficient to
sustain its constitutionality.
Home Ins. Co. ▼. Morse, 20 Wall. 446, 22
Ia. ed. 365; State ex rel. Drake v. Doyle,
40 Wis. 175, 22 Am. Rep. 692; Doyle ▼.
Continental Ins. Co. 94 U. 8. 535, 24 L. ed.
148; Barron t. Burnside, 121 U. S. 186, 30
L. ed. 915, 1 Inters. Com. Rep. 296, 7 Sup.
Ct. Rep. 931; Security Mul^ L. Ins. Co. ▼.
Prewitt, 202 U. S. 246, 60 L. ed. 1013, 26
Sup. Ct, Rep. 619, 6 Ann. Cas. 317; National
Council ▼. SUte Council, 203 U. S. 163, 61
L. ed. 137, 27 Sup. Ct. Rep. 46; Swing ▼.
Weston Lumber Co. 206 U. 8. 278, 61 L.
ed. 800, 27 Sup. Ct. Rep. 497; Western U.
Teleg. Co. ▼. Kansas, 216 U. S. 1, 64 L. ed.
355, 30 Sup. Ct. Rep. 190; Pullman Co. ▼.
Kansas, 216 U. S. 56, 54 L. ed. 378, 30
Sup. Ct. 232; Ludwig ▼. Western U. Teleg.
Co. 216 U. S. 146, 64 L. ed. 423, 30 Sup. Ct
280; Southern R. Co. t. Greene, 216 U. S.
400, 54 L. ed. 636, 30 Sup. Ct. Rep. 287, 17
Ann. Cas. 1247; Hemdon y. Chicago, R. I.
k P. R. Co. 218 U. S. 136, 64 L. ed. 970, 30
Sup. Ct. Rep. 633 ; Western U. Teleg. Co. v.
Julian, 169 Fed. 166; Harrison v. St. Louis
ft S. F. R. Co. 232 U. S. 318, 68 L. ed. 621,
L.R.A.1015F, 1187, 34 Sup. Ct. Rep. 333.
It is a cardinal rule of construction that
when a statute is susceptible of two con-
structions, one of which supports the act
and gives it effect, and the other renders it
unconstitutional and void, the former will
be adopted even though the latter would be
the more natural interpretation of the lan-
guage used.
United States v. Coombs, 12 Pet. 75, 9
L. ed. 1005 ; United States ▼. Central P. R.
Co. 118 U. S. 235, 30 L. ed. 173, 6 Sup. Ct.
Rep. 1038; Missouri ex rel. Barton County
v. Kansas City, Ft. S. & G. R. Co. 32 Fed.
722; Grenada County v. Brogden (Grenada
County ▼. Brown) 112 U. S. 261, 28 L. ed.
1028
I 704, 6 Sup. Ct. Rep. 126; Singer Mfg. Co.
' Y. McCollock, 24 Fed. 667 ; Bigelow ▼. Wcit
Wisconsin R. Co. 27 Wis. 478; Palms v.
Shawano County, 61 Wis. 211, 21 N. W.
77; Johnson v. Milwaukee, 88 Wis. 889, 60
N. W. 270.
The complainant in this case has no right
to contend that the statute in question is
unconstitutional, while at the same time re-
taining the benefits that it received by res-
son of a license having been issued it hj
virtue of such law.
Ferguson v. Landram, 5 Bush, 230, 196
Am. Dec. 350; Daniels v. Teamey, 102 U. S.
421, 26 L. ed. 189.
The scope and meaning of a state statute,
as determined by the highest court of the
state, concludes this court in determining
whether or not such statute violates the
Federal Constitution.
Smiley v. Kansas, 196 U. 8. 447, 40 L. ed.
646, 25 Sup. Ct. Rep. 289; National Cotton
Oil Co. V. Texas, 197 U. 8. 115, 49 L. ed.
689, 25 Sup. Ct. Rep. 379; Tampa Water-
works Co. ▼. Tampa, 199 U. S. 241, 50 L.
ed. 170, 26 Sup. Ct. Rep. 23; Horn Silver
Min. Co. ▼. New York, 143 U. S. 305, 36 L
ed. 164, 4 Inters. Com. Rep. 67, 12 Sup. Ct.
Rep. 403; Ducat ▼. Chicago, 10 Wall. 410,
19 L. ed. 972; Paul ▼. Vii^a, 8 WaU. 168,
19 L. ed. 367.
The Wisconsin statutes relating to foreign
companies do not in any way interfere with
or affect interstate commerce.
Ashland Lumber Co. ▼. Detroit Salt Ca
114 Wis. 66, 89 N. W. 904; Beaser y. Bar-
ber Asphalt Paving Co. 120 Wis. 699, 98
N. W. 526 ; Chicago Title & T. Co. ▼. Bash-
ford, 120 Wis. 281, 97 N. W. 040; Greek-
American Sponge Co. v. Richardson Drug
Co. 124 Wis. 469, 109 Am. St. Rep. 961,
102 N. W. 888; Presbyterian Ministers Fund
V. Thomas, 126 Wis. 281, 110 Am. St. Rep.
919, 105 N. W. 801; Allen v. Milwaukee,
128 Wis. 678, 6 L.ILA.(N.S.) 680, 116 Am.
St. Rep. 54, 106 N. W. 1099, 8 Ann. Cas.
392; Chickering-Chase Bros. Co. v. White,
127 Wis. 83, 106 N. W. 797; Catlin & P. Co.
V. Schuppert, 130 Wis. 642, 110 N. W. 818;
Elwell V. Adder Mach. Co. 136 Wis. 82, 116
N. W. 882.
The revocation of the license of the re-
spondent does not deprive it of any consti-
tutional rights.
Pratt V. Brown, 3 Wis. 603; Madison, W.
& M. PL-road Co. v. Reynolds, 3 Wis. 287;
Blair v. Milwaukee ft P. du C. R. Co. 20
Wis. 254, 10 Am. Neg. Cas. 518; SUte v.
Milwaukee Gaslight Co. 29 Wis. 454, 9 Am.
Rep. 598; Chicago Title & T. Co. v. Bash-
ford, 120 WU. 281, 97 N. W. 940; Coe v.
Rockman, 126 Wis. 515, 106 N. W. 290;
Louisville ft N. R. Co. v. Kentucky, 183 U.
S. 503, 46 L. ed. 298, 22 Sup. Ct. Rep. 95;
241 U. 8.
1UI5. DONALD T. FHILADBLPUIA & R. CUAL & I. 00. 331
Chicago, B. A Q. R. Go. t. Iowa (Chicago, foreign corporatlone on the one hand and
B. & Q. B. Co. V. Cutta) 94 U. 8. 165, £4 domestic corpontiona and individual! (reai-
L. ed. 94; Oaborne t. Florida, 164 U. S. dent or nonreiident) on the other.
650, 41 L. ed. SSS, 17 Sup. Ct. Rep. 214; Sontbem R. Co. v. Greene, 216 U. S. 400,
United SUtes ex rel. Attj'. Gen. v, Delaware 413, 64 L. ed. 636, 540, 30 Sup. Ct Rep.
A H. Co. 213 U. S. 366, 63 h. ed. 836, £D 287, 17 Ann. Caa. 1247; Herndon t. Chicago,
Sup. Ct. Rep. SZT; Newport k. C. Bridge Co. R. I. A P. R. Co. 218 U. 8. 136, 64 L. ed.
V. United States, 105 U. S. 470, 26 L. ed. 070, 30 Sup. Ct. Rep. 633.
1143; New York ft N. E. R. Co. t. Bristol, The statute is unconstitutional at all
131 U. S. 566, 38 L. ed. 260, 14 Bnp. Ct events as to this appellee, bacauae appellee
Rep. 437. is not within the daas of fi»eign eorpora-
,, „ „ „ „ . ,, tiouB which the state may arbitrarily ts-
..?«"■ .\r,r »."?s.rpi',n «• "- •'• ^^"^ '< *»"'"--•
X'SX^'JZ SrS,™ ., .M. ""l B,».» i. » „ to.„.U.U ..iHraph
court It would mn tb>l nothtag nor. "^^^ „ j,, ^ , ^u j„ „.
th.o Ih. .Ut^out ol '"l- wu '"1"™','" S. 1. S3, 37. 51 L. rf. 355, 358, 37^ 30 Sup.
dcB,o..lr.t. tb. «n«»«,t«t,o..l,l7 « »• ^t. E,p. lio, H^to .. si. LouU i S.
kpolution in q"«l.on. ,„ „ „ F. E. Co. 232 U. S. 318, 332, 53 U «i. S21,
Western U. Teleg. Co. v. KauMLH. 216 U. S. ... ,. ^ ^ _ ,,,
. Kansas, 216 U. S. S6, 64
Pensacola Teleg. Co. v. Western U. Teleg.
r?.? S; ? *,.?^',. J2i ■„ U T.I.J. Co. V. !«.* 105 U. S. 460, 21 L. «1.
■ul. 4M. .1(1 Sun. Ct. R<m. BBO- TtArnitnn ^ _. ■_ . _ ' _
I., ed. 423, 30 Sup. Ct. Rep. 2S0; Hemdmi
1067; Western U. Teleg. Co. v. Att?. Qen.
T. Chicago. R. I. & P. R. Ci. 218 U. 8. 136, ""' ' "-™" «. ,7i ;^ «n So^
■J T ^ a-in nn o..» nt u— nit Ti.— < ^^° "■ °' "^Oi Bo». 31 L, ed. 780, 796, a
s.\i..'Suu i"s: ?rcf2^=ui: L'o' n"\"ro.'"5;^i!'S'T,ri,'srs:
Head, 234 U. S. 149, 164, 68 L. ed. 126B,
78, 68 L. ed. 867. 858, 34 Sup. Ct. Rep. 664;
i. 710, 66
1265, 34 suj. Ct E.P "«;».-« P. ^ a/eiuTurw ^1 cjs;. t ?vs;
Co. V. Larabee, 234 U. S. 469, 472, 473, 68 ,
L. ed. 1398, 1407, 34 Sup. Ct Ilep. 970;
South Carolina ex rel. Ph<enix Mut L. Ina.
Co. V. McMaater, 237 U. S. 6>-72, 60 L. ed. , ,
839-843, 36 Sup. Ct. Rep. 604. "'■ J'wt'M McReynolds delivered tha
opinion of the court:
Mr. Rush Taggart argued the cause, and. These appeala bring up for oondderation
with Mr. FranciB Raymond Stark, filed a the validity of a Wisconsin statute provid-
brief for the Western Union Telegr^b Com- i„g for revocation ot licensee granted to cor.
P^'f: porationl not organized under the laws of
The statute is uneonstitutional generally: that state. They were heard together, and
(1| Because it is a direct attempt to to dispose ot them by one opinion will be
limit and restrict the judicial power of the convenient.
United States. Terms and conditions upon which foreign
(2) Because It requires a stipulation in corporations might do local business, and
advance not to exercise a Federal right. penalties for failure to comply therewith,
Hemdon v. Chicago, R. I. 4 P. R. Co. 218 were first prescribed by the legialature of
U. S. 135, 54 L. ed. 670, 30 Sup. Ct Rep. Wisconsin in 1898. Amendatory and sup-
033 ; Harrison t. St. Louis & S. F. R. Co. 232 plemental aUtntes were enacted, and finally
U. S. 318, 68 I^ ed. 621, L.R.A.1013F, 1187, the act of June 20, 1905, added four new
34 Sup. Ct. Rep. 333; South Carolina ex rel. sectiona to the statutes of 189S, one of which
Phouix Mut L. Ins. Co. v. McMaater, 237 follows:
U. S. 63, 71, 69 L. ed. 830. 843, 36 Sup. Ct. Sec. 1770f. "Whenever any foreign cor-
Rep. 604; Missouri P. R. Co. v. Larabee, poration doing buainess in this atate shall
234 U. S. 460, 58 L. ed. 1398, 34 Sup. Ct. remove or make application to remove into
Rep. 079; Home Ins. Co. v. Morse, 20 Wall, any district or circuit court of the United
446, 22 L, ed. 365; Barron v.'Burnside, 121 States any action or proceeding commenced
U. S. ISO, 30 L. ed. 915, 1 Intera. Com. Rep. against it by any citizen of this state, upon
205, 7 Sup. Ct. Rep. 031; Southern P. Co. v. any claim or cause of action arising within
Denton, 146 U. S. 202, 36 L. ed. 042, 13 this state, it ihaU be the duty ol the secre-
8np. Ct. Rep. 44. tary of state, upon such fact being made to
(3) Because It discriminates between appear to him, to revoke the license of such
CO K ed. loa*
331-333
SUPREME COURT OF THE UNITED STATES.
Oct. Tebh,
corporation to do business within this
Btate.V
Since 1860 the Western Union Telegraph
Company, a [332] New York corporation,
has been continuously carrying on within
Wisconsin both intra and interstate com-
merce, and for use therein has acquired and
owns a large amount of property. In 1907
it filed with the secretary of state a copy
of its charter, paid the prescribed fee, and
took out a license to do intrastate business.
The Philadelphia & Reading Coal & Iron
Company, a Pennsylvania corporation, since
prior to 1898, within Wisconsin has been
continuously shipping and selling coal both
in intrastate and interstate commerce, and
for use therein has purchased at great ex-
pense docks and other properties. Having
paid required fees and filed its charter with
the secretary of state, it received a license,
November 10, 1898.
The Western Union Telegraph Company
removed to the United States district court
a civil suit begun against it in the circuit
court, Dane county, Wisconsin, during 1911;
and in 1912 an action against the Phila-
delphia & Reading Coal & Iron Company was
likewise removed. Averring that so far as
the same directs or attempts to direct an-
nulment of its right to do business, §
1770f, above quoted, is in conflict with the
Federal Constitution, each of the appellees
filed an original bill praying an injunction
restraining the secretary of state from re-
voking its license because of such removal.
The lower court sustained the claim of un-
constitutionality (216 Fed. 199), granted
preliminary injunctions, and these direct ap-
peals were taken.
Consideration of the Wisconsin statutes
convinces us that they seek to prevent ap-
pellees and other foreign commercial cor-
porations doing local business from exer-
cising their constitutional right to remove
suits into Federal courts. To accomplish
this is beyond the state's power. The ac-
tion of the court below in holding § 1770f
inoperative, and enjoining its enforcement
as to appellees, was correct and its decree
must be affirmed.
[333] We are asked in effect to reconsider
the question discussed and definitely deter-
mined in Harrison v. St. Louis & S. F. R.
Co. 232 U. S. 318, 58 L. ed. 621, L.R.A.1915F,
1187, 34 Sup. Ct. Rep. 333. We there said
(p. 328) : "The judicial power of the United
States as created by the Constitution and
provided for by Congress pursuant to its
constitutional authority is a power wholly
independent of state action, and which
therefore the several states may not, by
any exertion of authority in any form, di-
rectly or indirectly, destroy, abridge, limit,
or render inefficacious."
Affirmed.
toto
SOUTHERN RAILWAY COMPANY, PIff.
in Err.,
V.
MAGGIE GRAY, Administratrix of Ken-
neth L. Gray, Deceased.
(See S. O. Reporter's ed. 333-339.)
Master and serTant — employers' lia-
bility — Federal common law con-
trols.
1. Rights and obligations under the
Federal employers* liability acts of April
22, 1908 (36 Stat, at L. 65, chap. 149), and
April 6, 1910 (36 SUt. at L. 291, chap.
143, Comp. Stat. 1913, § 8667), depend upon
those statutes* and applicable principles of
the common law as interpreted and applied
in the Federal courts.
[For other cases, see Master and Servant, II.
a, in Digest Sup. Ct. 1908.1
Trial — taking: case from Jnry — em-
ployers* liability — last clear chance.
2. The trial court should have granted
a motion to dismiss as of nonsuit an action
brought under the Federal employers' lia-
bility acts of April 22, 1908 (35 SUt. at
L. 66, chap. 149), and April 5, 1910 (36
Stet. at L. 291, chap. 143, Comp. Stat. 1913,
§ 8657), for the death of a railway brake-
man who, havinff gone to sleep on the track
some f of a mile from his train after set-
ting his sicnal lights on the track to warn
an expected passenger train, was struck and
killed by the passenger engine, where the
evidence shows that the engineer sounded
the customarr flagman's signal when it first
became possible to see the signal lights,
then about 1,250 feet distant, and almost
immediately thereafter, seeing the body, did
everything possible to check the train, there
being uncontradicted testimony that the
train could not have been stopped in less
than 1,900 feet, and nothing to indicate
that after the engineer saw or could have
seen the brakeman's body, the train could
have been stopped in time to prevent the
accident.
Sup. ct. 1908.]
[No. 356.]
Argued May 5, 1916. Decided May 22,
1916.
IN ERROR to the Supreme Court of the
State of North Carolina to review a
Note. — On the constitutionality, applica-
tion, and effect of the Federal employers'
liability act — see notes to Lamphere v. Ore-
gon R. & Nav. Co. 47 L.RA.(KS.) 38; and
Seaboard Air Line R. Co. v. Horton, L.RJL.
1916C, 47:
On the doctrine of last clear chance — see
note to Bogan v. Carolina C. R. C6. 56
L.R.A. 418.
On the applicability of the doctrine of
last clear chance where the danger is not
actually discovered — see note to Bourrett t.
Chicago A N. W. R. Co. 36 L.RJ1.(N.S.)
957.
141 V. 8.
1915. SOUTHERN R. CO. v. GRAY.
judj;incnt which affirmed a judgment of the v. Walker, 121 C. C. A. 679, 203 Fed. 085;
Superior Court of Randolph County, in that Hart v. Northern P. R. Co. 116 C. C. A.*
state, in favor of plaintiff in an action of 12, 196 Fed. 180; Atchison, T. & S. F. R. Co.
death brought under the Federal employers' v. Taylor, 116 C. C. A. 440, 196 Fed. 878;
liability act. Reversed and remanded for Newport News & M. Valley Co. v. Howe,
further proceedings. 3 C. C. A. 121, 6 U. S. App. 172, 52 Fed.
See same case below, 167 N. C. 433, 83 362; Bogan v. Carolina C. R. Co. 55 L.R.A.
g Y g^Q 424, note; New York, N. H. & H. R. Co. v.
rru * \ ^ ^ A ' 4.U • ; « Kelly, 35 C. C. A. 571, 93 Fed. 745; Little
The facts are stated m the opmion. _ /' *. t?i ^ • r> t>ii- oi t i> a
'^ Rock R. & Electric Co. v. Billmgs, 31 L.R.A.
Mr. L. E. Jeffries argued the cause, (N.S.) 1031, 98 C. C. A. 467, 173 Fed. 903,
and, with Messrs. H. O'B. Cooper and L. L. 19 Ann. Cas. 1173.
Oliver, filed a brief for plaintiff in error* Where, in an action under the Federal
In determining what constitutes negli- uct, the claim is made and denied that thero
gence under the Federal employers' liability was no evidence tending to show liability,
act, recourse must be had to the common such ruling, when duly excepted to, is re-
law as interpreted by the Federal courts. viewable, because inherently involving the
Second Employers' Liability Cases (Mon- operation and effect of the Federal law.
dou V. New York, N. H. & H. R, Co.) 223 Seaboard Air Line R. Co. v. Padgett, 236
U. S. 1, 56 L. ed. 327, 3 L.R.A.(N.S.) 44, U. S. 6(J8. 59 L. ed. 777, 35 Sup. Ct. Rep.
32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; 481; St. rx)uis, I. M. & S. R. Co. v. Tayior,
Michigan C. R. Co. v. Vreeland, 227 U. S. 210 U. S. 281, 52 L. ed. 1061, 28 Sup! Ct.
59, 57 L. ed. 417, 33 Sup. Ct. Rep. 192, Ann. Rep. 616, 21 Am. Neg. Rep. 464; Seaboard
Cas. 1914C, 176; Western U. Teleg. Co. v. Air Line R. Co. v. Duvall, 225 U. S. 477,
Commercial Mill. Co. 218 U. 8. 416, 64 L. 56 L. ed. 1171, 32 Sup. Ct. Rep. 790; St.
ed. 1091, 36 L.R.A.(N.S.) 220, 31 Sup. Ct. Louis, I. M. & S. R. Co. v. McWhirter, 229
Rep. 59, 21 Ann. Cas. 815; Rice v. Minnesota U. S. 26.), 57 L. ed. 1179, 38 Sup. Ct. Rep.
A N. W. R. Co. 1 Black, 374, 17 L. ed. 151; 858; Central Vermont R. Co. v. White, 238
United States v. Sanges, 144 U. S. 311, 36 U. S. 507, 59 L. ed. 1433, 36 Sup Ct. Rep.
I*, ed. 446, 12 Sup. Ct. Rep. 009; Charles 865, Ann. Cas. 1916B, 252, 9 N. C. C. A. 205.
River Bridge v. Warren Bridge, 11 Pet. The doctrine of comparative negligence is
420, 9 L. ed. 773; Standard Oil Co. v. United inapplicable.
States, 221 U. S. 1, 65 L. ed. 619, 34 L.R.A. Southern R. Co. v. Johnson, 111 Va. 499,
(N.S.) 834, 31 Sup. Ct. Rep. 602, Ann. Cas. 69 S. E. 323, Ann. Cas. 1912 A, 81; Great
1912D, 734; United States v. American To- Northern R. Co. v. Wiles, 240 U. S. 444,
bacco Co. 221 U. S. 106, 56 L. ed. 663, 31 ante, 732, 36 Sup. Ct. Rep. 406.
Sup. Ct. Rep. 632; Seaboard Air Line R. Co.
▼. Padgett, 236 U. S. 668, 59 L. ed. 777, 36 t^ „„ w ^ i -. * ^a ♦».«
o ^5. » ^oi ax T T Af •. a Mr. Thomas H. OalTert argued the
Sup. Ct. Rep. 481; St. Louis, I. M. & S. , . j^ ^ j ^ ^ Barrimrer
R, Co. V. Taylor, 210 U. S. 281, 62 L. ed. ^^^^' I • w ^» / \i *• 1 '^^""'S^^*
lAdi t%o o ^rii. T> aia ai A TiT ry "icd a brief for defendant m error:
1061, 28 Sup. Ct. Rep. 616, 21 Am. Neg. Rep. ., x. * * *v . 4. « .u
^«A. Q.«K^-.H Au Ti«. u n^ V iw.n Upon a motion to nonsuit, the court could
McWhirter, 229 U. S. 265, 67 L. ed. 1179, T". "T"* """'*' uv^^* V • TV — ^TIT " JT
33 Sup. Ct. Rep. 858; Central Vermont r! ^^"^^^ ^ ^^^^^"'^ plamtiffs right to re-
Co. ▼. White, 238 U. S. 507, 69 I* ed. 1433, ™™. . ^ -, „ ™ .v „„
UK s,.« r* p«« SAK Ann P.. loiftP Winbome Guano Co. v. Plymouth Mer-
oL o^v ^' n r .,«,' ^t. ^\li^ ' cant"* Co. 168 N. C. 223. 84 S. E. 272.
262 9 N. C. C A. 265 ! Seaboard A.r Line ^.^^ ^.^ ^^^^
R, Co. V. Horton, 233 U. 8. 492, 58 L. ed. ..... ,. . .„ ., , . ., ^ li«:«4.;ff
1062, L.R.A.1915C, 1, 34 Sup. Ct Rep. 636, " ^^%^«^* °'''!^- rH? f^v^ i^tnH^:
Ann. Cas. 1915B, 476, 8 N. C. C. A. 834. ^ »^»^?J wirnot b^irrantS
Under the law as applied by the Federal *> hS v^'wiLn, 166 N. C.323, 81 8. E.
courts, the defendant is liable if it could ^^^^^^ ^ ^^^^^ dumber Co. 165
have avoided the mjury by the exercise of ' qi q i? ako
ordinary care, only after discovering the ^\r' ^zu\ ,• •« ^ -i * *
perilous situation. Contributory negligence wiU not defeat
Inland ft Seaboard Coasting Co. v. Tolson, recovery if it be shown that the defendant
139 U. S. 661, 36 L. ed. 270, 11 Sup. Ct. °»»g^*» ^7 ^^^ exercwe of reasonable care
Rep. 653; Grand Trunk R. Co. v. Ives, 144 and prudence, have avoided the consequences
U. S. 408, 36 L. ed. 485, 12 Sup. Ct. Rep. of the plaintiff's negligence.
679, 12 Am. Neg. Cas. 659; Baltimore A Inland A Seaboard Coasting Co. v. Tol-
O. R. Co. V. Hellenthal, 31 C. C. A. 414, 60 son, 139 U. 8. 661, 36 L. ed. 270, 11 Sup.
U. S. App. 156, 88 Fed. 116; Iowa C. R. Co. Ct Rep. 663; Grand Trunk R. Co. v. Ives.
•0 Ia. ed. lOSl
334, 335
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
,144 U. S. 408, 36 L. ed. 485, 12 Sup. Ct
Rep. 679, 12 Am. Neg. Gas. 659; Sullivan
▼. New York, N. H. ft H. R. Co. 154 Mass.
524, 28 N. K 911, 12 Am. Neg. Cas. 70.
It is the duty of the engineer and fireman
to keep a proper lookout on the track.
Arrowood y. Southern Carolina & G. Ex-
tension R. Co. 126 N. C. 629, 36 S. E. 151;
Smith T. Norfolk & S. R. Co. 114 N. C. 729,
25 L.R.A. 287, 19 S. K 863, 923.
And it is for the jury to say whether,
under all the circumstances, the defendant's
employees were negligent in failing to keep
a proper lookout for the warning lights
on the track, which would have put them on
notice of some danger, with respect to which,
whatever it might be, they must bring tiie
train under immediate control.
Dallago V. Atlantic Coast Line R. Co.
165 N. C. 269, 81 S. E. 318.
It was for the jury to determine, under
the circumstances, the distance in which
the warning lights or body of the deceased
could have been seen, as well as the distance
within which the train oould have been
stopped.
Draper v. Atlantic Coast Line R. Co. 161
N. C. 307, 77 8. E. 231 ; Davis v. Seaboard
Air Line R. Co. 136 N. C. 117, 48 S. E.
591, 1 Ann. Cas. 214; Wright v. Southern
R. Co. 127 N. C. 225, 37 S. £. 221; Hender-
son V. Atlantic Coast Line R. Co. 159 N. C.
581, 75 S. £. 1092; Holman ▼. Norfolk k
W. R. Co. 159 N. C. 44, 74 S. E. 577; Edge
V. Atlantic Coast line R. Co. 153 N. C. 212,
69 S. E. 74; Powell v. Southern R. Co. 125
N. C. 374, 34 S. E. 530; Pickett' v. Wilming-
ton & W. R. Co. 117 N. C. 628, 30 JmRJl
257, 53 Am. St. Rep. 611, 23 S. E. 264.
In those jurisdictions in which the doc-
trine of discovered peril is applied, a quali-
fication is recognized, as where the defend-
ant, by the exercise of reasonable care,
might have foreseen that some injury would
result from his act or omission, or that con-
sequences of a generally injurious nature
might have been expected. To render the
defendant liable it is not necessary that he
could have contemplated, or even been able
to anticipate, the particular consequences
which oisued.
Title, Negligence, 29 Cyc 495; Title,
N^ligence, 21 Am. & Eng. Enc Law, 2d ed.
487; Robinson v. Melville Mfg. Co. 165 N.
C. 495, 52 L.R.A.(N.S.) 385, 81 S. E. 681;
Ward V. North Carolina R. Co. 161 N. C.
179, 76 8. K 717; Hudson ▼. Atlantic Coast
Line R. Co. 142 N. C. 198, 65 8. K 103;
Drum ▼. Miller, 135 N. C. 204, 65 L.RA.
899, 102 Am. St. Rep. 528, 47 S. E. 421,
16 Am. Neg. Rep. 215; Shearm. & Redf.
Neg. 5th ed. § 99; 1 Thomp. Neg. i§ 219 et
seq.; 29 Cyc. 531; Klockenbrink ▼. St
Louis & M. River R. Co. 81 Mo. App. 866.
10S9
Mr. Justice HcReynolds delivered the
opinion of the court:
Kenneth L. Gray, an experienced brake-
man, was of the crew in charge of plaintiff
in error's north-bound interstate freight
train which started from Spencer at 9:45
p. u, August 29, 1912. Seeking damages
for his death, the administratrix brought
this suit under the Federal employers' lia-
bility act (chap. 149, 35 Stat, at L. 65,
Cotnp. Stat. 1913, f 8657, chap 143, 36
Stat, at L. 291 ) in the superior court, Ran-
dolph County, North • Carolina. Among
other things here amended complaint al-
leges:
"5. That on the 30th day of August, 1012,
the intestate of the plaintiff was on a
freight train running from Spencer in the
state of North Carolina to Washington,
District of Columbia, through the state of
Virginia, and when the freight train upon
which the intestate of the plaintiff was
operating in going north arrived at Dry
Fork, in the state of Virginia, the intestate
of the plaintiff was sent forward about three
quarters of a mile to signal a. passenger
train of defendant coming south; that the
intestate of the plaintiff, when he had got-
ten about three quarters of a mile from
Dry Fork, for some reason — loss of sleep
or for some other [335] cause unknown to
the plaintiff — ^laid down by the side of the
tra^ of the defendant with his head on
the end of the cross-ties and went to sleep;
that shortly thereafter passenger train No.
37, coming south as aforesaid, carelessly
and negligently ran over the intestate.
"7. That the death of the intestate of
the plaintiff was caused without fault on
his part and by the wrongful and n^igent
act of the defendant, in that both the en-
gineer and the fireman upon the passenger
train which killed the intestate of the plain-
tiff could have easily seen the intestate of
the plaintiff lying in a helpless condition
as aforesaid upon the track of the defend-
ant, the track of the defendant being
straight a sufficient distance upon which the
said passenger train was running toward
the intestate of the plaintiff to have stopped
the train or slackened its speed sufficiently
to have prevented the killing of the in-
testate of the plaintiff, ran their train onto
the intestate of the plaintiff without ring-
ing the bell, without blowing its whistle,
without slackening its q>eed, or without
stopping the said train; in that the serv-
ants of the defendant did not keep proper
lookout on the track in front of the en-
gine, and have the engine and train of the
defendant in proper control so that they
could stop the engine of the defendant in
S41 U. 8.
lUi5. SOUTHERN R. CX). t. GRAY. 835-888
time to have prevented the wrongful killing reached point in the cut where it first be-
ef the intestate of the plaintiff; in that the came possible to see the lights, he blew a
servants of the defendant did not see the flagman's signal; almost immediately there-
intestate of the plaintiff, which it was their after, seeing the body, he put on brakes,
duty to do and which they could have done turned off steam, and did everything possi-
by ordinary care, until the train was so ble to check the train; before this could be
near the prostrate form of the intestate of done, a low step struck the brakeman's head,
the plaintiff that the servants of the de- Just before No. 37 blew for that station (it
fendant could not stop the train in time to was not scheduled to stop there) the freight
save the Kfe of the intestate of the plain- engine, standing at Dry Fork, signaled for
tiff; in that the servants of the defendant Gray's return.
wrongfully killed the intestate of the plain- Three engineers testified that, in the cir-
tiff upon the said occasion when they had cumstances, the pasenger train could not
the last clear chance to save his life, which have been stopped in less than 1,900 feet,
they failed to do by the exercise of ordinary and no other evidence was offered on this
care." point. There is nothing indicating that
[336] The accident occurred at -6x14 A. after the engineer saw or could have seen
If., — twenty minutes before sunrise, — when the brakeman's body the train could have
it was somewhat foggy and ordinary objects been stopped before reaching it.
on the ground could not readily be seen In an effort to discredit the passenger
without artificial light. Approaching Dry engineer, only witness to some circum-
Fork station the freight train stalled, and stances, he was asked on cross-examination
having been divided into two sections, these concerning prior contradictory statements;
were hauled onto sidings there. After pla- but the exclusion of all or any part of his
cing section 1, and as returned by the evidence would not change the result. Of
main track to bring up section 2, the freight course, the contradictory statements can
engineer directed Gray to flag south-bound have no legal tendency to establish the truth
passenger train No. 37. It was the latter's of their subject-matter. Donaldson v. New
duty, with a red and white lantern in hand, York, N. H. k H. R. Co. 188 Mass. 484, 486,
to go forward eighteen telegraph poles (half 74 N. E. 916; McDonald v. New York C.
a mile) and lay a torpedo on the track; ft H. R. R. Co. 186 Mass. 474, 72 N. £. 55;
then to go nine poles further and place two Com. v. Starkweather, 10 Cush. 59; Sloan v.
torpedoes; then to return, stand near pole New York C. R. Co. 45 N. Y. 125; Pufdy
eighteen and await the expected train. No v. People, 140 111. 46, 29 N. E. 700.
torpedo was put in place; but having ad- Following local practice, at close of all
vanced some three quarters of a mile he the evidence a motion was made to dismiss
set the lanterns on the track, lay down with as of nonsuit, because negligence by the
his head on a cross-tie, and went to sleep, railroad had not been shown. The court
There is nothing to explain this action. denied this and submitted two issues to the
From Banister Hill, 2i miles southward, jury, — "whether the intestate of the plain-
and almost to Dry Fork, the track, follow- tiff was killed by the negligence of the de-
ing several curves, descends on a heavy fendant, as alleged in the complaint," and
grade. Commencing say f of a mile down "what damage, if any, is the plaintiff en-
this grade it runs in a straight line i mile; titled to recover." In connection with thess
then around a sharp curve to the right, a lengthy and rather involved charge wm
passing through a deep cut, to a point some given, the objections to which it is not now
600 feet from where the brakeman lay; necessary for us to consider. Judgment
then again in a straight line some 400 feet; ^p^n ^ [338] verdict for the administratrix
and thence around a moderate curve to the ^^^ affirmed by the supreme court 167 N.
left perhaps a half mile. q 433^ 33 g £ 349
On the west side of this last curve, ap- piaintiff in error maintains that the trial
proximately 217 feet from its north end ^^^^ ^^^^ ,^ overruling its motion to dis-
IS the spot where Gray slept. Commg jouth ^^ ^^^ ^^^^ objections to tht
along the track m broad daylight one can , ' . y m j m i a. -
flr.t%ee it when he reaches i ^int on the '^'8«- „<r*"?'*i.'" *"'*«'«»»°* " ^/^
right-hand curve in the deep cut 1^64 feet «i"" »" ^*™^»^'" *f • «°"'«t' "«» "»;
'^ sist that the verdict is adequately supported
Passenger train No. 37, properly equipped, '>y •vidence. Concerning the latter they
790 feet long, composed of ten cars, — six *^*
steel sleepers and four other cars,—* tender "On the testimony and the law applica-
and engine, came down the long grade run- ble to the ease the jury ooold have arrived
ning 55 miles an hour. The engineer says at the following conclusions:
[337] that, approaching the right-hand "1. That there was an unobstructed view
curve, he blew » station signal; when he of more than 1,200 feet from the danger
•0 Ii« ed. loss
338-340
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
signals and the place the intestate was
struck.
**2. That the red and white lights were
on the track. This was undisputed.
''3. That it was the duty of the engineer
to keep A lookout for danger signals.
. . •
**4. That the fact the train approached
about 1,300 feet distant around a curve did
not excuse the engineer from keeping a look-
out down the track.
"5. That the lights on the track could in
fact be more easily seen when they were
in the darkness and out of the direct rays
of the headlight as the train was entering
the straight track from the curve.
**6. That in the exercise of ordinary care
the engineer could have seen the lights at
a point more than 1,200 feet distant.
•
"7, That the engineer should have blown
his signal as soon as he saw the danger
signals, or by the exercise of ordinary care
could have seen them, which was when he
was more than 1,200 feet distant.
*'8. That instead of bringing his train un-
der control and trying to stop it as soon
as he saw, or, by the exercise of ordinary
care, could have seen, the lights, the en*
gineer waited until he saw the intestate
lying beside the track."
As the action is under the Federal em*
ployers' liability [339] act, rights and ob-
ligations depend upon it, and applicable
principles of common law as interpreted
and applied in Federal courts. Seaboard
Air Line R. Co. v. Horton, 233 U. S. 492,
58 L. ed. 1062, L.R.A.1015C, 1, 34 Sup.
Ct. Rep. 635, Ann. Cas. 1915B, 475, 8
y. C. C. A. 834; Central Vermont R. Co.
V, White, 238 U. S. 507, 50 L. ed. 1433,
35 Sup. Ct. Rep. 865, 9 N. C. C. A.
265; Great Northern R. Co. v. Wiles,
240 U. S. 444, ante, 732, 36 Sup. Ct. Rep.
406.
Negligence by the railway company is
essential to a recovery; and there is not a
scintilla of evidence to show this under
the most favorable view of the testimony
urged by counsel for defendant in error.
When it first became possible for the en-
gineer to see signal lights 1,264 feet away
he had a right to suppose the brakeman
was standing there on guard. Immediately,
he says, the customary signal was sounded.
No duty to the brakeman demanded an in-
stant effort to stop the train, — ^the indicated
danger was more than half a mile away.
Moreover, application of emergency ap-
paratus on that moment, it appears, would
not have caused a stop in time to prevent
the accident. There is no evidence that the
engineer could have seen the brakeman a
10S4
single moment before he did, or omitted
thereafter to do all within his power.
We think the motion to ^iaTnimi ahould
have been granted. The judgment below ia
accordingly reversed and the cause remand-
ed to the Supreme Court of North Carolina
for further proceedings nqt incoaaistant
with this opinion.
Reversed.
[340] LE ROY BRAZEE, Plff. in Err.,
V.
PEOPLE OF THE STATE OF MICHIGAN
(See S. C. Report^'s ed. 340-344.)
Constltatlonnl law — police power -
regulating employment agency.
1. The state, in the exercise of its po-
lice power, could, consistently with the Fed-
eral Constitution, enact so much of Mich.
Pub. Acts 1913, act No. 301, as provides for
the licensing of private employment agen-
cies, and prescribes reasonable regulations
in respect to them, to be enforced accord-
ing to the legal discretion of a commis-
sioner, including a provision making it a
misdemeanor to send one seeking employ-
ment to an employer who has not applied
for help.
[For other cases, see Constitutional Law, IV.
c: IV. a, G; IV. b^ 7, in Digest Sup. Ct
Statnten — invalid in part.
2. The possible invalidity of so much
of Mich. Pub. Acts 1913, act No. 301,
licensing and regulating private employ-
ment agencies, as prescribes the fees whidi
may be demanded or retained, does not af-
fect the validity of other provisions of the
act from which tl^e provision in respect to
fees is separable.
[For other cases, see Statutes, I. d, 4, in Digeat
Sup. Ct. 1908.1
[No. 402.]
Argued April 6, 1916. Decided May 22,
1916.
IN ERROR to the Supreme Court of the
State of Michigan to review a judgment
which affirmed a conviction, in the Record-
er's Court of the City of Detroit, in that
state, upon a charge of violating a state
statute regulating emplo3rment agencies by
sending one seeking employment to an em-
NoTB.-~On police power to license em-
ployment agencies — see notes to People ex
rel. Armstrong v. Warden, 2 L.RJ^.(N.S.)
859; and Spokane v. Macho, 21 L.R.A.
(N.8.) 263.
On statutes part valid and part invalid —
see notes to Titusville Iron Works v. Key-
stone Oil Co. 1 LJLA. 363; and Fayette
County ▼. People's ft D. Bank, 10 LJUL
196.
241 V. 8.
ID15. BRAZEE y. MICHIGAN. 341, 342
plover who had not applied for help. Af- Williams v. Fears, 179 U. 8. 270, 45 L.
firmed. ed. 186, 21 Sup. Ct. Rep. 128; Engel v.
See same case below, 183 Mich. 259, O'Malley, 219 U. S. 128, 66 L. ed. 128, 31
LuRA.— , — -, 149 N. W. 1053. Sup. Ct. Rep. 190; Bacon v. Walker, 204
The facts are stated in the opinion. U. S. 311, 51 L. ed. 499, 27 Sup. Ct. Rep.
M ^ . «- ** ^ , ., ^ 289; Chicago, B.& Q. R. Co. V. McGuire, 219
Mr. Proctor Knott Owens argued the _. * _.. ® * t 7 ooo n-, o r^x d
A at jt ^ u ' e * I • 4:<r :» ... U. S. 549, 55 L». ed. 328, 31 Sup. Ct. Rep.
cause and filed a brief for plamtiff in er- .-^ ^ ' . ^,. ,-- tt o too 1*
*^ 259 ; Gundling v. Chicago, 177 U. S. 188, 44
'^!r*, ♦ 4 X . .. . _ x,.^ x^ L. ed. 728, 20 Sup. Ct. Rep. 633; Kidd, D.
The statute in question is contrary to.-,-, ', f ^*^ ooittto
Au 1^*1 A J \ t 4.U r^ -♦•*«*:/« «# « JP- Co. v. Musselman Grocer Co. 217 U. S.
the 14th Amendment of the Constitution of .__ _^ _ , ___ .. ^ ^. _ ^^^
Au T' M J oi. A u • J • 1 * ^.,« 461, 54 L. ed. 839, 30 Sup. Ct. Rep. 606;
the Lniled States, as being a denial of due t. ,, t. i • -.Am ,t a o^o oa
process of law and the eoual protection of ^"""^^^^ ^- Pennsylvania, 127 U. S. 678, 32
thr^ts protection oi j^ ^ ^^^^ ^ ^^p ^^ ^^p ^^^2^ ^^.^ .
Ex7arte Dickey, 144 Cal. 234, 66 L.R.A. ^^^^^^/^'^T.'V^ ^If '^o^ti ^L^^n^
928, 103 Am. St Rep. 82, 77 Pac. 924, 1 ??«' 24^'°- ^t- ^^P'/^^nf M H «-n ?^
Ann. Cas. 428; Yick Wo v. Hopkins, 118 U. ?'^^ n^^ t- ""; ^'f ^i ^7^^^^^^^^
S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Y^'^' ^ v ^ /^t* p ' 9^n r Q
Re Grice. 79 Fed. 627; Butchers' Union S. ^^J ^ast v. Van Deman L L. Co. 240 L. S.
H
Sup
V. Berrien Circuit Judge (People ex rel. -7 "' -"•,»"-, •-«, "".o'tr "*'*.Vo*">.-"xt
Valentine v. Coolidge) 124 Mich. 604, 50 ^oore v. Mmneapohs, 43 Minn. 418, 4o N
L.R.A. 493, 83 Am. St. Rep. 352. 83 N. W. W. 719; Mc^re v. St. Paul, 48 Minn 331,
694; SUite v. Moore, 113 N. C. 697, 22 ^J ^'J^' ^-}^> P"<^J ^- ^«>P»^' ^?J"«,^l^'
L.R:A. 472, 18 S. E. 342; Moore t. St. Paul, ^^ ^-^.^f^,' ^^ P^ i^'^Pnf ni \«^'
48 Minn. 332, 51 N. W. 219; Chaddock v. ^' ^^t'\ 7^ZW. V^' U Jx
j\ Tti xMi u MT A J T> A QAo in A^ ^^ L.R.A. 73, 95 Alu. St. Rep. 241, 67 N.
Day, 75 Mich. 527, 4 L.R.A. 809. 13 Am. ' Diokev 144 Cal 234 60
St. Rep. 468, 42 N. W. 977; SUte v. Loom- fJl^ ^J"^ Pf™ P'""^^/.* 1?* ^^t' f *! ^"
is, 115 Mo. 307. 21 L.R.A: 789. 22 S. W. l^^'^J^l^, l?^ ^J^, ^*- ^?' ^^' } f ""*
Cas. 428, 77 Pac. 924; People ex rel. Arm-
75; Atty, Gon. ex rel. Dingeman v. Lacy,
180 Mich. 321), 146 N. W. 871; Spokane v. '^^' . , „ , . j *i. * * i
Macho, 51 Wash. 322, 21 L.R.A. (N.8.) 263, , ^\ '^ '^f the state, and the state alone,
130 Am. St. Rep. 1100, 98 Pac. 755; Robi- ^ determine what special legislation may
Af ao Tiif- u can «T V TXT oi . oe required to fit the locality, so long ns
son V. Miner, 68 Mich. 560, 37 N. W. 21; .,./., .. . . ... •'' , "...
state ex rel. Luria v. Wagoner, 69 Minn, ^l^f lepslat.on w not arbitrary and wtl.-
206, 38 I.R.A. 677. 65 Am. St. Rep. 666, 72 •'«J,"'y '«*??.»*"«.'»"*•, „.«,„, .
N. W. 67, Stete V. Mitchell. 97 Me. 66. 94 ^.F^f* "■ ^ij""""' }^^ ^ S. 68, 30 L. ed.
A cn, ri ^ AQ1 Ko 4 4^1 OQT i]lt;ii;.,«. « 5/8, 7 Sup. ct. Rep. 350; New York ex rcl.
Am. St. Rep. 481, 53 Atl. 887; Williams v. * *^ Vk n « -inA tt a c-.t
»% A •!. e% TiM- \! KOQ Tv.,.:«^ - n^v^i, Lieberman v. Van De Carr, 199 U. S. 5i>2,
Detroit, 2 .^^^^^^ S^f;_^^,»"\;_^^ 50 L. ed. 305. 26 Sup. a. iep. 144; Quong
^"""^llo i ^v'li w?" rl^'^l Wing V. Kirkendall, 223 U. S 59, 56 L. ed
Pa. 422; Sprmg Valley Water Co. ▼. San » » »
Francisco, 165 Fed. 667; People use of SUte Z *^ ^^ °^' ^\Jz^^' . 'Q,%r^ m '
»j < TT wv W1 o!ia Til 10R OK state V. O'Hara, 36 La. Ann. 93; Texas Bkg.
Bd. of Health v. Wilson, 249 111. 195, 35 ' . -, ^' ^ <, »
T x> A /vrfi \ ^MA qa jn v iai . iLr.fYi.>«»o « 1°*- ^<>- ^- State, 42 Tex. 636; State v.
L.R A.(N^ ) 1074. 94 N. E. 141; MaUiews 3 ^^ p^^^^.
1 «? i 1/1 J V I ^« kJLii! to'. V. Circuit Judge. 50 N. J. L. 686. 1
Am. St. Rep. 241. 67 N. E. 28; KellyTiUe , „' • -« .. .^, ISJ
Coal Co. V. Harrier, 207 IlL 624. 99 Aa. St. ^"-*- ^°' ^^ ^". ^7*.
Rep. 240 69 N E. 927; Coppage y. Kan«^ MoBeynolds delivered the
236 U. S. 1, 59 L. ed. 441, L.R.A.1915C, . . . ., ^ ^,,.4.
960, 35 Sup. Ct. Rep. 240; Adair t. United ^PJ?'^" ^' the court;
o,x 1 «io TT o -lo; fro T J ^oA OQ o Brazee, having taken out a license to
f^^' ^o-,^\f a"' r 7^; ' ^' -^nduot •" employment agency in Detroit
Ct Rep. 277. 18 Ann. Cm. 764. ^^^^ ^^^ 3,,^'' j^y.^ j*, ^, Michigan,
Mr. Grant Fellows, At^rney General of 1913, was thereafter convicted upon a charge
Michigan, argued the cause, and, with Mr. of violating its provisions by sending one
David H. Crowley, filed a brief for defend- seeking employment to an employer who had
ant in error: not applied for help. He claimed the
This law is a proper exercise of the police statute was invalid upon its face because in
power of the state. [342] conflict with both state and Federal
•0 li. ed. 10»*
342-344
SUPREME OOUBT OF THE UNITED STATES.
Oor. TteK,
Ck>nBtitutioiia, and lost in both trial and fu-
preme courts. 183 Mich. 259, LJIA. — , — ,
149 N. W. 1053. Now he insifU it offends
that portion of the 14th Amendment which
declare!: "No itate shall make or enforce
any law which shall abridge the privileges
or immunities of citizens of the United
States; nor shall any state deprive any per-
son of life, liberty, or property without due
process of law; nor deny to any person
within its jurisdiction the equal protection
of the laws."
The general purpose of the iM^t is well
expressed in its title — "An Act to Provide
for the Licensing, Bonding, and Regulation
of Private Employment Agencies, the Limit-
ing of the Amount of the Fee Charged by
Such Agencies, the Refunding of Such Fees
in Certain Cases, the Imposing of Obliga-
tions on Persons, Firms, or Corporations
Which Have Induced Workmen to Travel
in the Hope of Securing Employment, Char-
ging the Commissioner of Labor with the
Enforcement of This Act, and Empowering
Him to Make Rules and Regulations, and
Fixing Penalties for the Violation Hereof."
It provides: Sec. 1. 'No private employ-
ment agency shall operate without a license
from the commissioner of labor, the fee for
which is fixed at $25 per annum except in
cities over two hundred thousand popula-
tion, where it is $100; this license may be
revoked for cause; the commissioner is
charged with enforcement of the act, and
given power to make necessary rules and
regulations. Sec. 2. A surety bond in the
penal sum of $1,000 shall be furnished by
each applicant. Sec. 3. Every agency shall
keep a register of its patrons and transac-
tions. Sec. 4. Receipts containing full in-
formation regarding the transactions shall
be issued to all persons seeking employment
who have paid fees. Sec. 5. "The entire
fee or fees for the procuring of one situa-
tion or job and for all expenses, incidental
thereto, to be received by any employment
agency, from any applicant for employment
at any time, whether for registration or
other [343] purposes, shall not exceed 10
per cent of the first month's wages;" no
registration fee shall exceed $1 and in cer-
tain contingencies one half of this must be
returned. Sec. 6. ''No employment agent or
agency shall send an applicant for employ-
ment to an employer who has not applied to
such agent or agency for help or labor;" nor
fraudulently deceive any applicant for help,
etc. Sec. 7. No agency shall direct any
applicant to an immoral resort, or be con-
ducted where intoxicating liquors are sold.
Sec. 8. Violations of the act are declared
1086
to be misdemeanors and punishment is pre-
scribed.
The supreme court of Michigan held 'the
business is one properly subject to police
regulation and control;" the prescribed li-
cense fee is not excessive; provisions of the
state Constitution in respect of local legis-
lation are not infringed; and no arbitrary
powers judicial in character are conferred
on the commissioner of labor. But it did
not specifically rule concerning the validity
of limitations upon charges for services
specified by § 5.
Considering our former opinions it seems
clear that without violating the Federal
Constitution a state, exercising its police
power, may require licenses for employ-
ment agencies, and prescribe reasonable
regulations in respect of them, to be en-
forced according to the legal discretion of a
commissioner. The general nature of the
business is such that, unless regulated, many
persons may be exposed to misfortunes
against which the legislature can properly
protect them. Williams ▼. Fears, 179 U.
S. 270, 275, 45 L. ed. 186, 189, 21 Sup. Ct
Rep. 128; Gundling ▼. Chicago, 177 U. S.
183, 188, 44 L. ed. 725, 728, 20 Sup. Ct
Rep. 633; New York ex rel. Lieberman v.
Van De Carr, 199 U. S. .552, 562, 563, 50
L. ed. 305, 310, 311, 26 Sup. Ct. Rep. 144;
Kidd, D. & P. Co. ▼. Musselman Grocer Co.
217 U. S. 461, 472, 54 L. ed. 889, 845, 30
Sup. Ct. Rep. 606; Engel ▼. CMalley, 210
U. S. 128, 136, 55 L. ed. 128, 136, 31 Sup.
Ct. Rep. 190; Rast ▼. Van Deman & L. Ca
240 U. S. 342, 365, ante, 679, 690, 36 Sup. Ct
Rep. 370; Armour & Co. v. North Dakota,
240 U. S. 510, 513, ante, 771, 774, 36 Sup. Ct
Rep. 440; See Moore ▼. Minneapolis, 43
Minn. 418, 45 N. W. 719; Price v. People,
193 111. 114, 55 L.R.A. 588, 86 Am. St. Rep.
306, 61 N. E. 844 ; People ex rel. Armstrong
y. Warden, 183 N. Y. 223, 2 L.RJ^.(N.S.)
859, 76 N. E. 11, 5 Ann. Cas. 325. In its
general scope, and so far as now [344]
sought to be enforced against plaintiff in
error, the act in question infringes no pro-
vision of the Federal Constitution. Hie
charge relates only to the plainly misehier-
ous action denounced by § 6. Provisions of
§ 5 in respect of fees to be demanded or re-
tained are severable from other portions of
the act, and, we think, might be eliminated
without destroying it. Their validity was
not passed upon by the supreme court of
the state, and has not been considered by
us.
The judgment of the court below is af-
firmed*
241 V. 8.
SPOKANE & L B. R. CO. T. UNITED STATES.
UNITED STATES.
E S. C. Rsporter's «d. 344-301.)
1. P&eBeDger ckri operated In trkiat
<m % standard gauge inUnirbBD inUrttat«
electric railwaj are not within the Excep-
tion in favor of cari "used upon Btreet rail-
vays," which is made by the unendment of
March Z, 1003 (32 SUt. at L. S43, chftp.
976, Comp. Stat. 1913, g 86]3), to the Fed-
1913, S 8605), although the; i
local ilreet railway trackiB for the mile and
a quarter tying between tbe oompauy'a
jards, near Uie city limits, and the tenninal
(For other cawa, xe Master and Berrant, II. a,
2, i. In DlEeat Hap. Ct. 1908.)
Master »nd servant — oKfety appliances
— penalties — dlfflcnlty or Impoaalbll-
Ity of compliance with statale.
2. The difficulty or inipoaaibili^ of
equipping paaieuger cars used on an mter-
urban interstate electric railway with the
grab irons and automatic couplers re-
quired by the Federal safety appliance act
of March 2, 1693 (27 SUt at L. 631, chap.
196, Comp. Stat. 1913, g 8906), and iU
amendments, does not relieve the railway
company from liability to the prescribed
penalties for violations of those acts.
iFor otber c*hb, aee Master and Serraiit. II. a,
3, In Digest Sup. Ct. lOOS.l
Evidence — expert teatimoay — snIB-
clency of safety appliances.
3. Whether or not openings in the sills
or buflers of passenger cars operated on an
interstate interurban electric railway were
a sufficient protection to employees, and
were sufficient to accomplish the purposes
intended to be accomplished by the provi-
sions of the Federal safety appliance act
of March 2, )8!)3 {27 Stat, at L. 631, chap.
196, Comp. Stat. 1913, g SeOG), and iU
amendmcnlB, requiring secure grab irons or
hand holds in the ends and sides of each
ear for greater security to men in conpling
and uncoupling cars, and were better than
those commonly used upon cars engaged in
interstate commerce, Is not a subject for
expert tcatiniony, but is a question for the
Note. — On the spplicability of the com-
merce clause or atatute* thereunder to
street railways or to interurban roads —
•ee note to Omaha k C. B. Street R. Co. v.
Interstate Cmnmerce Commission, 46 LJLA.
(N.S.) 385.
On duty and liability under Federal and
state railway safety appliance acta — see
notes to Chicago, M. & St. P. R. Co. v.
United States, 20 L.e.A.(N.S.) 473, and
Lake Shore ji M. S. R. Co. v. Benson, 41
L.RJ^.(N.S.) 48.
«0 Ii. Od.
' to determine from the evidence, under
ler instructions,
other cues, see BTldence, VII. 1, In Dl-
St Sap. Ct looa.]
mitted I>ecember IB, lOlS. Decided
June "5, IS 16.
ERROR to the United States Cironit
yniTt of Appeals for the Ninth Circuit
eview a judgment which affirmed a judg-
t of the District Court for the Eastern
.rict of Washington, enforcing penalties
violations of the Federal safety appli-
f acts. Affirmed.
M same case below, L.RjL— , — , 127 C.
L 61, 210 Fed. 243.
he facts are stated in the opinion.
r. Will O. Graves submitted the cause
plaintift in error. Messrs. F. H. Graves
B. H. Kizer were on the brief;
he language of the exception relied upon
imple, and under accepted rules it does
seem permissible to limit its operation
'eading into it the word "exclusively."
nited States v. Temple, 105 U. S. S7, 26
d. 967', C^erolcee Tobacco (Boudinot v.
ted SUtes) 11 Wall. 61S, 20 L. ed. 227.
oreover, to limit the exception to cars
usively used up«i street railways, or
le In use upon street railways, is con-
y to the meaning given the turn "used,"
t appears in other parts of the act.
ihnsoD V. Southern P. Co. 196 U. S. 1,
'-.. ed. 363, 26 Sup. Ct. Rep. ISS, 17 Am.
. Rep. 412; Wabash R. Co. v. United
;es, 93 0. C. C. 393, 188 Fed. 1; South-
R. Co. V. Snyder, 109 C. C. A. 344, 187
. 492; Erie R Co. v. Russell, 106 C. C.
160, 183 Fed. 722; Davis v. Cleveland,
;. A St L. R. Co. 146 Fed. 403.
ut if it is said that the language is so
tral as to he ambiguous, then the con-
sional intent is to be sought, — sought
only in the entire context of the see-
, — statutes or series of statutes in pari
«ria (Atkins v. Fibre Disintegrating
18 Wall. 272, 21 L. ed. 841),— but also
he light of contemporaneous events and
general knowledge of mankind concern-
the causes for the exception and what
designed to be achieved,
reston v. Browder, 1 Wheat, 116, 4 L. ed.
United States v. Union P. R. Co. Bl
1. 72, 23 L. ed. 224; Church of the Holy
lity V. United States, 143 U. 8. 457, 38
k1. 226, 12 Sup. Ct. Rep. 511; United
tes V. Whitridge, 197 U. S. 136, 143, 49
d. 698, ess, 26 Sup. Ct. Rep. 406.
^at was said 1:7 the court in the Omalia
set R. Case seems thoroui^ly applica-
uo— controlling, indeed— in the ease at l>ar.
10S7
SUPREME COURT OF THE UNITED STATES.
Got. Tbem,
Omaha & C. B. Street R. Co. v. Inter-
state Commerce Commission, 230 U. S. 324,
57 L. ed. 1501, 46 L.RA.(N.S.) 385, 33 Sup.
Ct. Rep. 890.
Error was committed in excluding expert
testimony relative to the sufficiency of the
hand holds on the cars.
Inland & Seaboard Coasting Co. y. Tolson,
139 U. S. 551, 560, 35 L. ed. 270, 273, 11
Sup. Ct. Rep. 653; Eastern Transp. Line ▼.
Hope>, 95 U. S. 297, 298, 24 L. ed. 477, 478 ;
United States Smelting Co. v. Parry, 92
0. C. A. 159, 166 Fed. 415; Bellcfontaine &
1. R. Co. V. Bailey, 11 Ohio St. 335 ; Ogden
V. Parsons, 23 How. 167, 16 L. ed. 410;
Union Ins. Co. v. Smith, 124 U. S. 405, 31
L. ed. 407, 8 Sup. Ct. Rep. 534; Texas & P.
R. Co. V. Watson, 190 U. S. 287, 47 L. ed.
1057, 23 Sup. Ct. Rep. 681; Union P. R. Co.
V. Clopper, 131 U. S. cxcii, Appx. and 26
L. ed. 243; Union P. R. Co. v. Novak, 9 C.
C. A. 629, 15 U. S. App. 400, 61 Fed. 573;
Chicago G. W. R. Co. v. Price, 38 O. C. A.
239, 97 Fed. 423; Pittsburgh, S. & N. R. Co.
V. Lamphere, 69 C. C A. 542, 137 Fed. 20;
Chicago, R. I. & P. R. Co. v. Hale, 99 C. C.
A. 379, 176 Fed. 71; Troxell v. Delaware, L.
& W. R. Co. 180 Fed. 871; Mahoning Ore
& Steel Co. V. Blomfelt, 01 C. O. A. 390, 163
Fed. 827 ; Wabash R. Co. v. United States,
93 C. C. A. 393, 168 Fed. 1; Louisville &
N. R. Co. V. Hall, 87 Ala. 708, 4 L.R.A.
710, 13 Am. St. Rep. 84, 6 So. 277; Louis-
ville & N. R. Co. V. Davis, 99 Ala. 593,
12 So. 786; T^uisville & N. R. Co. v.
Binion, 107 Ala. 645, 18 So. 75; Louis-
ville & N. R. Co. V. Banks, 132 Ala. 471,
31 So. 573; Boan v. W. T. Smith Lum-
ber Co. 184 Ala. 535, 63 So. 564; Kan-
sas City Southern R. Co. v. Henrie, 87 Ark.
443, 112 S. W. 907; Rowland v. Oakland
Consol. Street R. Co. 110 Cal. 513, 42 Pac.
983; Peters v. Southern P. R. Co. 160 Cal.
48, 116 Pac. 400; Colorado Midland R. Co.
V. O'Brien, 16 Colo. 210, 27 Pac. 701, 13 Am.
Neg. Cas. 537; Baltimore & P. R. Co. v.
Elliott, 9 App. D. C. 341 ; Goodwyn v. Cen-
tral R. Co. 2 Ga. App. 470, 68 S. E. 688;
Ivouisville, N. A. & C. R. Co. v. Frawley, 110
Ind. 18, 9 N. E. 594; Louisville & S. I. Trac-
tion Co. V. Snead, 49 Ind. App. 16, 93 N. E.
177; Whitsett v. Chicago, R. I. & P. R. Co.
67 Iowa, 150, 25 N. W. 104; Reifsnyder v.
Chicago, M. & St. P. R. Co. 90 Iowa, 76, 57
N. W. 692; Brownfteld ▼. Chicago, R. I. &
P. R. Co. 107 Iowa, 254, 77 N. W. 1038, 5
Am. Neg. Rep. 331; Schroeder v. Chicago &
N. W. R. Co. 128 Iowa, 865, 103 N. W. 985;
Kansas City, Ft. S. & M. R. Co. v. Blaker,
68 Kan. 244, 64 LJIA. 81, 75 Pac. 71, 1
Ann. Cas. 883; Stewart ▼. Louisville & N.
R. Co. 136 Ky. 717, 125 8. W. 154; Balti-
more Belt R. Co. V. Sattler, 100 Md. 306, 59
Atl. 654, 3 Ann. Cas. 660; Baltimore & S. P.
1038
R. Co. y. Hackett, 87 Md. 224, 39 AtL 510;
Baltimore & 0. R. Co. y. Wbitacre, 124 Md.
411, 92 Atl. 1060; Johnson y. Detroit & M.
R. Co. 135 Mich. 853, 07 N. W. 760; Coins
V. Chicago, R. I. & P. R. Co. 47 Mo. App.
173; Copenhaver v. Northern P. R. Go. 42
Mont. 453, 113 Pac. 467 ; Missouri P. R. Co.
V. Fox, 60 Neb. 531, 83 N. W. 744, 8 Am.
Neg. Rep. 463; .Jamieson v. New York k
R. Beach R. Co. 162 N. Y. 630, 57 N. E.
1113; Freemont v. Boston & M. R. Co. 187
N. Y. 571, 80 N. E. 1109; Cincinnati & Z. R.
Co. V. Smith, 22 Ohio St. 227, 10 Am. Rep.
729; Missouri, O. & G. R. Co. y. Miller, —
Okla. — , 145 Pac. 367; Jones v. Shaw, 16
Tex. Civ. App. 290, 41 S. W. 690 ; Galveston,
H. & S. A. R. Co. V. Pitts, — Tex. Civ. App.
— , 42 S. W. 255; International k G. N.
R. Co. V. Mills, 34 Tex. Civ. App. 127, 78
8. \\\ 11; San Antonio & A. Pass. R. Co. v.
Beauchamp, 54 Tex. Civ. App. 123, 116 S.
W. 1163; St. Louis Southwestern R. Co. v.
Neef, — Tex. Civ. App. — , 138 S. W. 1168;
Atchison, T. k S. F. R. Co. v. Bryant, —
Tex. Civ. App. — , 162 S. W. 400 ; i isher v.
Waupaca Electric Light k R. Co. 141 Wis.
515, 124 N. W. 1006.
Assistant Attorney General Underwood
and Mr. John C. Brooke submitted the
cause for defendant in error:
The act is remedial and should be liber-
ally construed. Its primary object is to
promote the public welfare by securing the
safety of employees and travelers.
Johnson v. Southern P. Co. 196 U. S. 1,
49 L. ed. 363, 25 Sup. Ct. Rep. 158, 17 Am.
Neg. Rep. 412; United SUtes v. Central of
Georgia R. Co. 157 Fed. 894; United SUtes
V. Chicago, B. & Q. R. Co. 237 U. S. 410, 413,
59 L. ed. 1023, 1027, 35 Sup. Ct. Rep. 634;
United States v. Erie R. Co. 237 U. S. 402,
59 L. ed. 1019, 35 Sup. Ct. Rep. 621.
The facts of this case bring it within both
the letter of the statute and the scope of its
purpose.
Southern R. Co. v. United States, 222
U. S. 20, 56 L. ed. 72, 32 Sup. Ct. Rep. 2,
3 N. C. C. A. 822; Spokane & I. E. R. Co.
V. Campbell, 133 C. C. A. 370, 217 Fed. 518;
United States v. Atchison, T. k S. F. R.
Co. 220 U. S. 37, 44, 55 L. ed. 361, 363, 31
Sup. Ct. Rep. 362.
Ihe exception relied upon is in the nature
of a proviso, and should be construed
strictly, and not extended to cover excep-
tions not clearly within its terms.
United States v. Dickson, 15 Pet. 141, 165,
10 L. ed. 689, 698; Arnold v. United States,
147 U. S. 494, 499, 37 L. ed. 253, 255, 13
Sup. Ct. Rep. 406; Brown v. Maryland, 12
Wheat. 419, 6 L. ed. 678.
Testimony of expert witnesses to the
effect that openings in the buffer of a car
141 V. S.
1016.
SPOKANE & I. E. R. CO. v. UNITED STATES
345-347
were better thmn the ordinary grab iron was
properly excluded.
Milwaukee &, St. P. R. Co. v. Kellogg, 94
U. S. 469, 24 L. ed. 256;' Congress A, E.
Spring Co. v. Edgar, 99 U. S. 645, 25 L. ed.
487 ; Stillwell & B. Mfg. Go. v. Phelps, 130
U. S. 520, 82 L. ed. 1035, 9 Sup. Ct. Rep.
GOl ; Montana R. Co. ▼. Warren, 137 U. S.
348, 34 L. ed. 681, 11 Sup. Ct. Rep. 96;
White V. Ballou, 8 Allen, 408; Simmons v.
New Bedford, V. & N. S. B. Co. 97 Mass.
361, 93 Am. Dec. 99; Inland & Seaboard
Coasting Co. v. Tolson, 139 U. S. 551, 559,
35 L. ed. 270, 273, 11 Sup. Ct. Rep. G.'iS.
Technical words or phrases in a statute
will be understood in a technical sense when
the act treats of the subject in relation to
which such words are technically employed.
Sutherland, Stat. Consir. 2d ed. § 395.
The precautions taken by a carrier might
afford as complete, or indeed fuller, protec-
tion to its employees than the means de-
manded by the law. It none the less follows
that imposition of the penalty must be vis-
ited upon the carrier guilty of a noncompli-
ance with the act of Congress.
United SUtes v. Philadelphia k R. R.
Co. 223 Fed. 217; Virginian R. Co. v. United
States, 139 C. 0. A. 278, 223 Fed. 748.
Mr. Chief Justice Wliite delivered the
opinion of the court:
The United States brought this suit
against the railroad company to recover
penalties for fifteen alleged violations of the
safety appliance act. The violations con-
sisted in hauling in interstate commerce on
October 23, 1911, twelve cars which were
not provided with hand holds or grab irons
at the ends, as required by the act, and
three cars which were not equipped with
automatic couplers. The answer admitted
that at the time named all fifteen cars had
been used in interstate commerce, and that
three of them were not equipped with auto-
matic couplers, but denied that the other
twelve were not provided- with hand holds
or grab irons, as required by the act, and
denied that it had in any respect violated
the act, because all fifteen cars were used
by the company upon its line of street rail-
way, and were therefore expressly excepted
from the operation of the act. A verdict
and judgment against [346] the company
on all fifteen charges was affirmed by the
court below.
We briefly state the material facts. The
railroad company operated a street railway
system in Spokane, Washington, and sev-
eral interurban electric lines, one of which
extended from Spokane to Cceur d*Alene,
Idaho, a distance of about 40 miles. Over
this line passenger trains composed of two
or more cars were operated, starting at a
•0 Jj. ed.
I station near the center of Spokane and
I running for a mile and a quarter on the
street railway tracks to the company's
yards near the city limits, and thence over
its private right of way to Coeur d'Alene.
The road was standard gauge, with rails of
standard weight, and the passenger trains
were made up according to standard rail-
road rules, with markers to designate the
trains, and were run on schedules and by
train orders. Passengers traveled on tick-
ets entitling them to ride to and from desig-
nated stations, at which regular stops were
made, and express matter and baggage were
carried on the passenger trains. Tiie strei't-
car business was entirely separate from
that done by the interurban liiu\ the em-
ployees of the one having nothing whatever
to do with the other, and although stops
wore made by interurban trains within tlie
city limits, and while on the street railway
tracks, tliey were made solely for the pur-
pose of taking on and letting off passengers
to or from stations outside the city. In
addition to its passenger trains, the inter-
urban line also operated freight trains,
which, however, started from the company's
yards and ran directly to C<Eur d'Alene,
and did not, therefore, enter upon the street
irailway tracks.
The fifteen cars here in question were
passenger cars, and on the day named were
used in passenger trains which were run
from the station in Spokane to the city
limits, and thence over the company's right
of way to Oceur d'Alene. Twelve of them
(those which it was charged were not
equipped at the ends with grab irons or
hand holds) [347] were cars regularly used
on the interurban lines, and were rounded at
the ends and equipped with radial couplers
to enable the trains to make sharp turns.
As the swinging of these couplers from one
side to the other across the ends of the cars
would break off grab irons of the type ordi-
narily used on the ends of cars, they were
not used. It was claimed, however, that
the requirements of the safety appliance act
with respect to hand holds or grab irons
were in substance complied with by a differ-
ent, and what was asserted to be an equiva-
lent, appliance; that is, openings in the
top of the buffer or sill extending across
the ends of the cars, just above the couplers.
To support this claim the company offered
testimony of experienced railroad men to
the effect "that the hand holds or grab
irons in the buffers or sills of such cars
were sufficient to protect men who might be
required to go between the cars in coupling
or otherwise handling them, that they were
sufficient to accomplish purposes intended
to be accomplished by the provisions of the
safety appliance act requiring hand holds
1089
347-350
SUPREME COURT OF THE UNITED STATES.
Got. TKbm,
or grab iioiia to be placed upon the ends of
oars used in interstate commerce, and that
they were better than those commonly used
upon cars engaged in interstate commerce."
The United States objected to the intro-
duction of the testimony, and it was ex-
eluded on the ground "that it was not a
question for expert testimony, but was a
matter of common knowledge." During the
trial (at whose request it does not appear)
the jury were taken to inspect the open-
ings in some of the cars.
The other three cars were large street
cars which were regularly used only on the
street railway tracks, but which, because
of unusually heavy traffic on the day named,
were coupled together with link and pin
couplers and operated as a train to Cceur
d'Alene.
The assignments of error present two
questions which we consider separately.
[348] 1. It is urged that error was
committed in construing the safety ap-
pliance act, since, when correctly in-
terpreted, the fifteen cars in question
were expressly excepted from its require-
ments. To appreciate the contentions
based upon this proposition it is neces-
sary to recur to the text of the orig-
inal act and the amendments thereto. By
the act of March 2, 1893 (chap. 196, 27
Stat, at L. 531, Comp SUt. 1913, § 8605),
it was made unlawful for any common
carrier ''to haul or permit to be hauled
or used on its line any car used in moving
interstate traffic not equipped with couplers
coupling automatically by impact" (§ 2),
or **to use any car in interstate commerce
that is not provided with secure grab irons
or hand holds in the ends and sides of each
car for greater security to men in coupling
and uncoupling cars" (§ 4), with the
proviso that the prohibitions of the act
should not apply to "trains composed of
four-wheel cars or to locomotives used in
hauling such trains" (§6). By the act
of April 1, 1896 (chap. 87, 29 Stat, at L.
86, Comp. Stat. 1913, § 8610) the proviso
of § 6 was amended as follows: "That
nothing in this act contained shall apply
to trains of four-wheel cars or to trains
composed of eight-wheel standard logging
cars ... or to locomotives used in
hauling such trains when such cars or loco-
motives are exclusively used for the trans-
portation of logs." By the amendment of
March 2, 1903 (chap. 976, 32 Stat, at L.
943, Comp. Stat. 1913, § 8613), the pro-
visions of the act relating to automatic
couplers, grab irons, etc., were extended and
made applicable to "all trains, locomotives,
tenders, cars, and similar vehicles used on
any railroad engaged in interstate com-
merce, and in the territories and the Dis-
1040
trict of Columbia, and to all other loco-
motives, tenders, cars, and similar vehicle!
used in connection therewith," and to the
exceptions from the requirements of the
original act and the amendment of 1896
were added ''trains, cars, and locomotives
. . . which are used upon street rail-
ways."
The contention is that as the trains in
which the fifteen cars were hauled were
operated over the street railway [340]
tracks from the station in Spokane to the
yards of the company, they were ''used upon
streets railways," and were henoe eiqpressly
exempted from the requirements of the act
by the amendment of 1903. This, it it
said, results from the unambiguous text
of the exception contained in that amend-
ment, and is from a twofold point of view
made additionally certain by the context of
the act which we have quoted. The argu-
ment is that the word "used" in the amend-
ment of 1903, excepting cars, etc, ''used
upon street railways," must be construed as
having the same significance as the same
word in the amendment making the act
applicable to all cars, etc, "used on any
railroad engaged in interstate commerce."
From this premise it is insisted that as the
latter provision has been construed as en-
larging the scope of the act by causing it to
embrace all cars used on interstate com-
merce railroads, although at the particular
time the cars are employed in intrastate
commerce (Southern R. Co. v. United
States, 222 U. S. 20, 56 L. ed. 72, 32 Sup.
Ct. Rep. 2, 3 N. C. C. A. 822), it must fol-
low that the word "used" in the street rail-
way excepting clause under consideration
must have the same construction, and there-
fore exclude from the operation of the act
all cars used upon street railways, however
temporary such use, and however frequent
or material may be their use in interstate
commerce on other than street railways.
Again, it is urged that the judgment of the
court below can .be affirmed only by con-
struing the word "used" in the exception
as meaning exclusively used, — a construc-
tion which, it is said, would be wholly un-
warranted in view of the amendment of
1896, excepting from the act certain cara,
etc, "exclusively used for the transporta-
tion of logs," and the demonstration thereby
afforded that if such a meaning had been
contemplated by Congress in the amend-
ment of 1903, the word "exclusively" would
have been employed. But we think the
want of merit in the contentions is clear,
and the unsoundness of the argument ad-
vanced [350] to sustain them apparent. We
say this because, while it is conceded that
I the obvious purpose of Congress in enacting
' the law and its amendments was to secure
341 V. B.
1915.
CUBBINS ▼. MISSISSIPPI RIVER COM.
350, 361
the safety of railroad employees, and that
the amendment of 1903 sought to enlarge
and make that purpose more complete, yet
it is insisted that th^ exception in the act
should receive such a broad construction as
would destroy the plain purpose which
caused the act to be adopted. But to so
treat the act would be in plain disregard
of the elementary rule requiring that ex-
ceptions from a general policy which a law
embodies should be strictly construed; that
is, should be so interpreted as not to de-
stroy the remedial processes intended to be
accomplished by the enactment. That the
meaning contended for would be in direct
conflict with this rule would seem free
from doubt, since the inevitable result of
sustaining the contention would be to put
it in the power of a railroad, by operating
a train for a trifling distance over tracks
within the exception, to thereby secure the
right tliereafter to operate such train over
long distances without regard to compliance
with the safeguards of the statute which
otherwise would be controlling. And this
reasoning disposes of the contention deduced
from the use of the word "exclusively" in
the provision excepting cars used on logging
railroads, and its absence in the street rail-
way clause, since, on the face of the statute,
the object of both provisions was to exempt
both the logging and street railway cars
from the operation of the act only when
used for logging, on the one hand, and on
street railways, on the other, and not to
exempt them when not so used.
The suggestion is made in argument that
in any event the railroad company was not
liable for the penalties because of the diffi-
culty of equipping the twelve cars with grab
irons which would not interfere with the
lateral movement of the radial couplers, and
because the other three cars were so con-
structed that they could not be [351]
provided with automatic couplers, and were
used only on the one day because of un-
usually heavy traffic. But this merely as-
serts that the statute may be violated with
impunity if only the railroad finds its pro-
visions onerous, or deems it expedient to
do so.
2. It is contended that error wigi com-
mitted in rejecting the testimony of experts
oflTered by the railroad company as to
the protection afforded to employees by the
openings in the buffers at the ends of the
twelve cars. Without stopping to point out
the inappositeness of the many authorities
cited in support of the contention, we think
the court was clearly right in holding that
view of the full and clear instruction given
on the subject, concerning which no com-
plaint is made.
Affirmed.
Mr. Justice McReynolds took no part in
the consideration and decision of this case
JOHN F. CUBBINS, Appt.,
v.
MISSISSIPPI RIVER COMMISSION and
the Yazoo-Mississippi Delta Levee Board.
(See S. C. Reporter's ed. 351-370.)
Waters — riparian rights — obstruct-
ing flow — protection against acci-
dental or extraordinary floods.
1. Riparian owners may, without lia-
bility to other riparian owners, protect
themselves from the consequences of ac-
cidental and extraordinary floods by erect-
ing defensive works along the front of their
lands.
[For other oases, see Waters, II. b, in Digest
Sup. Ct. 1908.]
Waters — riparian rights — obstruct-
ing flow — protection against acci-
dental or extraordinary floods.
2. The entire valley which the Missis-
sippi river traverses may not be regarded
as the high-water bed of the river, so that
levees may not be erected on its natural
banks as a protection against accidental
and extraordinary floods without liability
to riparian owners whose lands may be
damaged by the consequent raising of the
flood level.
[For other caftes, see Waters, II. b, in Digest
Sup. Ct. 1908.]
Waters — riparian rights — obstruct-
ing flow — protection against acci-
dental or extraordinary floods.
3. A riparian owner may not complain
of the building of levees along the natural
banks of the Mississippi river for the pur-
pose of containing the water in times of
flood within the river, and preventing it
from spreading over the alluvial vallev
through which the river flows, even though
the resulting increase in the volume of <£e
Note. — On the right of riparian owner as
against other riparian owners to confine
flood waters within banks of stream — see
note to Jefferson v. Hicks, 24 L.RA.(N.S.)
214.
On liability of municipality for confining
flood water within banks of stream to in-
jury of riparian owner — see note to Walters
V. Marshalltown, 26 LJt.A.(N.S.) 199.
As to whether casting water up<m oppo-
the question was not one for expertT, and | ^^. ^*^^ 5^ '**?*"« 5"^ **L* "*^^ " *
that the jury. aUer hearing the testimony ff^^al'^^o^'^^^n^otrt ~^
and inspecting the openmgs, were compe-|worth Improv. Dist V. FU Worth, 48
tent to determine the issue, particularly in L.RA.(N.S.) 994.
60 li. ed. 66 1041
SUPREME COURT OF THE UNITED STATES.
Oct. Tmmm^
waters within the river raiees its flood level
so as to overflow his land.
[For other cases, see Waters, li. b, in Digest
Sup. Ct. 1008.]
Waters — power of Ck>ngre88 — Im-
proving navigation — Mississippi
levees.
4. The building of levees along the
natural banks of the Mississippi river un-
der the authority vested in Congress to im-
prove navigation gives rise to no valid
cause for complaint to riparian owners
whose lands are overflowed as a consequence
of the resulting increase in the volume of
the river and the raising of the flood leveL
[For other cases, see Waters, I. d, 8, in Digest
Sup Ct 1008.1
[No. 299.]
Argued April 24, 1916. Decided June 5,
1916.
APPEAL from the District Court of the
United States for the Northern Dis-
trict of Mississippi to review a decree dis-
missing the bill in a suit to enjoin the en-
larging, strengthening, repairing, or main-
taining of levees along the Mississippi river.
Afiirmed.
The facts are stated in the opinion.
Mr. Bamette E. Moses argued the cause
and filed a brief for appellant:
The right of the appellee levee district for
the reclamation of lands, to construct levees
along the Mississippi river, a navigable
fresh-water stream, which have the effect of
obstructing the natural flow, and turning
the water upon the lands of an owner on
the opposite side of the river, is not a local
question, but is one of general law, on which
decisions of the state courts are not binding
on the Federal courts.
Carlo, V. A C. R. Co. v. Brevoort, 25
L.ILA. 527, 62 Fed. 129; Hollingsworth v.
Tensas Parish, 4 Woods, 280, 17 Fed. 115.
The term "property," in its legal signifl-
cation, means only the right of the owner
to possess, use, enjoy, and dispose of a
thing.
Eaton V. Boston, C. ft M. R. Co. 51 N. H.
511, 12 Am. Rep. 147.
The land of appellant, in its natural con-
dition, was from 8 to 10 feet above the
highest natural flood heights of the Missis-
sippi river, and the highest natural floods
did not overflow it nor interfere with the
use and occupancy thereof. His property in
his land was full, absolute, and complete.
His right to use, possess, and enjoy it was
unlimited and unqualifled. In its natural
condition his land constituted neither a part
of the bed nor a part of the bank of the
river.
Paine Lumber Co. v. United States, 55
Fed. 866; Carpenter v. Hennepin County, 56
Minn. 513, 58 N. W. 295.
104S
Appellant had an entire, absolute^ and un-
qualified property in hik land on the eastern
side of the Mississippi river, situated above
the highest natural fiood waters. His land
was subject to no easement or servitude in
favor of appellees or any other person. It
was upland.
Chandler Dunbar Water Pow^ Co. v.
United States, 229 U. S. 70, 57 L. ed. 1078,
83 Sup. Ot. Rep. 667.
The distinction between the police power
and the right of eminent domain is a ques-
tion of general jurisdiction, and not one of
local law.
Hollingsworth v. Tensas Parish, supra.
The construction of works for the im-
provement of navigation is an exercise of
the power of eminent domain, and the owner
of private property taken for that purpose
must be compensated.
United States v. Lynah, 188 U. S. 445, 47
L. ed. b39, 23 Sup. Ct. Rep. 349; Arimond
V. Green Bay & M. Canal Co. 31 Wis. 316;
King V. United States, 59 Fed. 0 ; Williams
V. United SUtes, 104 Fed. 50; Carlson v.
St. Louis River Dam & Improv. Co. 73 Minn.
128, 41 L.R.A. 371, 72 Am. St. Rep. 610, 75
N. W. 1044; Velte v. United States, 76 Wis.
278, 45 N. W. 119; Desty, Fed. Const 322.
Ilie construction of levees for the recla-
mation of lands from overflow, although
referable in a certain sense to the police
power, is likewise an exercise of the power
of eminent domain, and the owner of prop-
erty "taken" for such purpose must be com-
pensated therefor.
Reelfoot Lake Levee Dist. v. Dawson, 97
Tenn. 172, 34 L.RJL 725, 36 S. W. 1041;
Levee Inspectors v. Critt^iden, 36 C. C. A.
418, 94 Fed. 613; Hollingsworth v. Tensas
Parish, supra; Head v. Amoskeag Mfg. Co.
118 U. S. 9, 28 L. ed. 889, 5 Sup. Ct. Rep.
441 ; Hughes v. Mississippi Levee Comrs. —
Miss. — , 27 So. 744; Ex parte Martin, 13
Ark. 198, 58 Am. Dec 321; Carson v. St
Francis Levee Dist. 59 Ark. 513, 27 S. W.
590.
The police power, under which, as in the
case of Reelfoot Lake Levee Dist. v. Daw-
son, 97 Tenn. 172, 34 L.RJL 725, 36 S. W.
1041, it has several times been attempted,
in valo, to justify the taking of private
property for levee purposes, without com-
pensation, is founded upon the maxim 8ie
utere tuo ut oHenum non Icsdos, which is
very different from the power of eminent
domain. The* police power extends only to
the regulation of the private injurious use
of property; and to hold that, by reference
to it, the right exists -to take the property
of another for the purpose of enhancing the
value of one's own, would be a subversion
of the very maxim upon which the alleged
right is admitted to be founded.
141 V. 8.
1915.
Dill. Mun. Corp. f 93 ; Cooley, Const. Lim.
p. 594; Penrioe v. Wallis, 37 Miss. 172;
Sweet Y. Rechel, 159 U. S. 309, 40 L. ed. 196,
16 Sup. Ct Bep. 43.
The primary purpose for which levees are
constructed by the appellee levee districts,
along the Mississippi river, is the reclama-
tion of land.
Hagar v. Reclamation Dist. Ill U. S. 701,
28 L. ed. 569, 4 Sup. Ct. Rep. 663; Leovy v.
United States, 177 U. 8. 621, 44 L. ed. 914,
20 Sup. Ct. Rep. 797 ; Manigault v. Springs,
199 U. S. 473, 50 L. ed. 274, 26 Sup. Ct.
Rep. 127 ; Carson ▼. St. Francis Levee Dist.
59 Ark. 532, 27 S. W. 590.
An owner of land on one side of a stream
has no right to build levees upqpi his tide
which will prevent the escape of flood water,
in times of ordinary flood, over his side, and
cast them upon land on the opposite
side.
Cairo, V. A, C. R. Co. v. Brevoort, 25
L.R.A. 527, 62 Fed. 129 ; Rex v. Trafford, 1
Bam. & Ad. 874, 1 Moore & S. 401, 2 Cromp.
ft J. 265, 9 L. J. Mag. Cas. 66, 8 Bing. 204 ;
Paine Lumber Co. v. United States, 55 Fed.
854; Woodruff ▼. North Bloomfleld Oravel
Min. Co. 9 Sawy. 441, 18 Fed. 782; Jones v.
United SUtes, 48 Wis. 385, 4 N. W. 519;
Velte V. United SUtes, 76 Wis. 278, 45 N.
W. 119; Burweli ▼. Hobson, 12 Oratt. 322,
65 Am. Dec. 247 ; O'Connell ▼. East Tennes-
see, V. & G. R. Co. 87 Ga. 246, 13 L.R.A.
304, 27 Am. St. Rep. 246, 13 S. £. 489;
Gcrrish v. Clough, 48 N. H. 9, 2 Am. Rep.
165, 97 Am. Dec. 561; Parker v. Atchison,
58 Kan. 29, 48 Pac. 631; Shane ▼. Kansas
City, St. J. A C. B. R. Co. 71 Mo. 238, 86
Am. Rep. 480; Gulf, C. & 8. F. R. Co. v.
Clark, 2 Ind. Terr. 319, 51 S. W. 962;
Barden ▼. Portage, 79 Wis. 126, 48 N. W.
210; Crawford v. Rambo, 44 Ohio St. 279,
7 N. E. 429; Sullivan v. Dooley, 31 Tex.
Qiv. App. 589, 73 S. W. 82; Byrd v. Bless-
ing, 11 Ohio St. 362; Meyers v. St. Louis, 8
Mo. App. 266; Menzies v. Breadalbane, 3
Bligh, N. R. 414; Rix v. Johnson, 5 N. H.
520, 22 Am. Dec. 472 ; Jones v. Soulard, 24
How. 41, 16 L. ed. 604; Adams v. Frothing-
ham, 3 Mafs. 352, 3 Am. Dee. 151; Rex v.
Tarborough, 3 Barn. & C. 91, 2 Bligh. K. R.
147, 1 Dow. & C. 178, 5 Bing. 163, 4 Dowl.
& R. 91, 27 Revised Rep. 292, 1 Eng. Rul.
Cas. 458; Scratton ▼. Brown, 4 Barn, k C.
485, 6 Dowl. & R. 536, 28 Revised Rep. 344;
Gould, Waters, § 209, and notes.
Th6 all^ations of appellant's bill show a
taking of his property within the constitu-
tional provisions requiring compensation.
Pumpelly v. Green Bay & M. Canal Co.
18 Wall. 16^, 20 L. ed. 557 ; United States
Y. Lynah, 188 U. S. 445, 47 L. ed. 539, 23
Sup. Ct. Rep. 349; Boston A R. Mill Corp.
Y. Newman, 12 Pick. 467, 23 Am. Dec. 622;
•0 li. ed.
CUBBINS Y. MISSISSIPPI RIVER OOM.
4
Hooker y. New Haven k N. Go. 14 Conn.
146, 36 Am. Dec. 477; King y. United
States, 59 Fed. 9; Lowndes y. United States,
105 Fed. 838; United States v. Great Falls
Mfg. Co. 112 U. S. 645, 28 L. ed. 846, 6
Sup. Ct. Rep. 306; High Bridge Lumber
Co. V. United States, 16 C. C. A. 460, 37 U.
S. App. 234, 69 Fed. 326; Paine Lumber Co.
Y. United States, 55 Fed. 854; Jones v.
United SUtes, 48 Wis. 385, 4 N. W. 519;
Velte V. United States, 76 Wis. 278, 45 N.
W. 119; United States v. Welch, 217 U. 8.
333, 54 L. ed. 787, 28 L.R.A.(N.S.) 385, 80
Sup. Ct. Rep. 527, 19 Ann. Cas. 680; United
SUtes Y. Grizzard, 219 U. S. 180, 55 L. ed.
165, 31 L.R.A.<N.S.) 1135, 31 Sup. Ct. Rep.
162 ; United SUUs y. Sewell, 217 U. S. 601»
54 L. ed. 897, 30 Sup. Ct. Rep. 691 ; Monon-
gahela Nav. Co. v. United States, 148 U. S.
312, 336, 37 L. ed. 463, 471, 13 Sup. Ct.
Rep. 622; Scranton v. Wheeler, 179 U. S.
141, 153, 45 L. ed. 126, 133, 21 Sup. Ct. Rep.
48; United States v. Chandler-Dunbar
Water Power Co. 229 U. S. 70, 57 L. ed.
1078, 33 Sup. Ct. Rep. 667; Chicago, B. &
Q. R. Go. v. Illinois, 200 U. S. 593, 50 L. ed.
609, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175;
McKenzie v. Mississippi A R. River Boom
Co. 29 Minn. 288, 18 N. W. 123; Manigault
Y. Springs, 199 U. S. 485, 50 L. ed. 280, 26
Sup. Ct. Rep. 127 ; Bierer v. Hurst, 155 Pa.
523, 26 AtL 742.
Tlie Urm "natural conditions" is applica*
ble to and should be considered in connec-
tion with the ordinary high-water sUge of
the river, as well as the low-water sUge
thereof, in determining the questions in the
cases at bar.
Burweli y. Hobson, 12 Gratt. 322, 65 Am.
Dec. 247; Angell, Watercourses, § 333; Rex
Y. Trafford, 1 Barn. & Ad. 874, 1 Moore &
S. 401, 2 Cromp. & J. 265, 9 L. J. Mag. Cas.
66, 8 Bing. 204; Cairo, V. A, C. R. Co. y.
Breyoort, 25 L.R.A. 527, 62 Fed. 129.
The facte in Jackson v. United States, 230
U. S. 1, 57 L. ed. 1363, 33 Sup. Ct. Rep.
1011, warrant the belief that the injuries
might have been held to be remote or conse-
quential because the work of the govern-
ment, upon which the third ground of com-
plaint was based, operated only te restore
natural conditions at the Bougere crevasse,
and the injuries to the Jackson land, in so
far as this work was concerned, were not
the direct and proximate result of the work,
but were the direct and proximate result of
the operation of natural forces, after the
restoration of natural conditions. This in-
tervention of natural forces, as the direct
cause of the injuries, made those injuries
remote and consequential, in so far as the
work of the government was concerned, and
there was, therefore, no liability on iU
part
104S
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Barnes v. Marshall, 68 Cal. 569, 10 Pac.
115; Bedford v. United States, 102 U. S.
225, 48 L. ed. 417, 24 Sup. Ct. Rep. 238;
Gulf, O. & S. F. R. Co. V. Clark, 41 C. C. A.
697, 101 Fed. 678.
The facts in the Jackson Case warrant
the belief that the injuries might have been
held to be remote or consequential because
the injury alleged in the third ground of
complaint amounted to a mere increase in
pressure on the Jackson levee, and the de-
struction could have been prevented by
building the Jackson levee higher. The gov-
ernment was not liable, upon this theory,
because the failure of the Jacksons to build
their levee higher and thus prevent the
injury was the direct and proximate inter-
vening cause of the injury, and the work of
the government was only a remote or con-
sequential cause, in fact.
Manigault v. Springs, 199 U. S. 485, 50
L. ed. 280, 26 Sup. Ct. Rep. 127.
The Jacksons were the first to disturb
natural conditions by building a levee, and
they could not recover when a levee was
built by others on the opposite bank, even
though the Jackson levee and land were
thereby destroyed.
Avery v. Empire Woolen Co. 82 N. Y.
582 ; Menzies v. Breadalbane, 3 Bligh, N. R.
421; Wilhelm v. Burleyson, 106 N. C. 381,
11 S. E. 590; Davis v. Munro, 66 Mich. 485,
33 N. W. 408 ; Harding v. Whitney, 40 Ind.
370; 30 Am. & Eng. Enc. Law, 2d ed. p. 387.
The term "consequential damages" has
been used in applying the comprehensive
rule stated by counsel, to designate injuries
which, in fact, did not amount to a material
impairment of the value of land.
Gibson v. United SUtes, 166 U. S. 269, 41
L. ed. 006, 17 Sup. Ct. Rep. 578; Northern
Transp. Co. v. Chicago, 99 U. S. 635, 25 L.
ed. 336.
The permanency of the injury has been
expressly treated as one of the determining
factors in considering this question.
HoUingsworth v. Tensas Parish, 4 Woods,
280, 17 Fed. 116; Cumberland & 0. Canal
Corp. Y. Hitohings, 57 Me. 146.
The term "consequential damages" has
also been used to designate those injuries
which, in fact, did not result, directly and
proximately, from the work of the defend-
ants.
Bedford v. United States, 102 U. S. 226,
48 L. ed. 417, 24 Sup. Ct. Rep. 238.
Its application, in any particular case,
however, has always been determined by the
facts in that case; and the phrase has been
used broadly to designate all those injuries
which, in fact, were not such as to amount
to a "taking" within the rule before stated.
The use of this term to designate, as a
matter of law, injuries resulting from work
1044
done by the government, for which immu-
nity from liability was claimed, regardless
of the facts as to proximate cause, or the bh-
ture of the injury, has been expressly re-
pudiated by this court.
United States v. Lynah, 188 U. S. 445, 47
L. ed. 539, 23 Sup. Ct. Rep. 349; Mononga-
hela Nav. Co. v. United SUtes, 148 U. S.
312, 37 L. ed. 463, 13 Sup. Ct. Rep. 622;
Scratton v. Brown, 4 Bam. & C. 485, 6
DowL A R. 536, 28 Revised Rep. 344.
No provision for compensation is made by
the state acts for the land of appellant; and
such provision is an indispensable requisite
to their constitutionality.
Sweet V. Rechel, 159 U. S. 380, 40 L. ed.
188, 16 S^p. Ct. Rep. 43; Head v. Amoskeag
Mfg. Co. 113 U. S. 9, 28 L. ed. 889, 5 Sup.
Ct. Rep. 441; Adirondack R. Co. v. New
York, 176 U. S. 335, 44 L. ed. 492, 20 Sup.
Ct. Rep. 460; Cherokee Nation v. Southern
Kansas R. Co. 135 U. S. 641, 34 L. ed. 295,
10 Sup. Ct. Rep. 965; Benedict v. New York,
39 C. C. A. 290, 98 Fed. 789; Gardner v.
Newburgh, 2 Johns. Ch. 162, 7 Am. Dec 526;
Ex parte Martin, 13 Ark. 198; Bloodgood
V. Mohawk &, H. River R. Co. 18 Wend.
9, 31 Am. Dec. 313; Meriwether v. St
Francis Levee Dist. 91 C. C. A. 285, 165 Fed.
317.
The constitutional provision requiring
cranpensation is merely declaratory of the
coDunon law, and the right to compensation
was recognized before the Constitution.
Staton V. Norfolk & C. R. Co. Ill N. C.
278, 17 L.R.A. 839, 16 S. £. 181; Gardner v.
Newburgh, 2 Johns. Ch. 162, 7 Am. Dec.
526; Withers v. Buckley, 20 How. 84, 15 L.
^.816; Kaukauna Water Power Co. v. Green
Bay A, M. Canal Co. 142 U. S. 254, 35 L. ed.
1004, 12 Sup. Ct. Rep. 173; Sinnickson v.
Johnson, 17 N. J. L. 129, 34 Am. Dec. 184.
Taking private property without compen-
sation is a deprivation thereof without due
process of law.
Cooley, Const. Lim. p. 357; Kaukauna
Water Power Co. v. Green Bay & M. Canal
Co. 142 U. S. 264, 35 L. ed. 1004, 12 Sup.
Ct Rep. 173 ; Muhlker v. New York ft H. R.
Co. 197 U. S. 644, 49 L. ed. 872, 26 Sup. Ct
Rep. 522; Pumpelly v. Green Bay ft M.
Canal Co. 13 WaU. 166, 20 L. ed. 557;
Scott V. Toledo, 1 Ii.RA. 688, 36 Fed. 385.
Solicitor General Davis argued the cause,
and, with Mr. Robert Szold, filed a brief
for the Mississippi River Commission:
Complainant is entitled to no recovery
at law, because his damages are remote «nd
consequential. The authorities are conclu-
sive.
Bedford v. United SUtes, 192 U. 8. 217,
48 L. ed. 414, 24 Sup. Ct Rep. 23r ; Jackson
V. United States, 230 U. S. 1, 67 L. ed. 1363,
241 V. 8.
1916.
CUBBINS ▼. MISSISSIPPI RIVEK COM.
868-360
38 Sup. Ct Rep. 1011; Hughes ▼. United
Stotet, 280 U. S. 24, 67 L. ed. 1374, 46
LJa.A.(K.S.) 624, 83 Sup. Ct. Rep. 1010.
Mr. Gerald FitzGerald argued the cause
and filed a brief for the Yazoo-Mississippi
Delta Levee Board:
The principle of self-defense applies to
persons, commonwealths, and nations.
Rex T. Suaeez County, 8 Bam. & C. 355;
Bowditch ▼. Boston, 101 U. S. 16, 25 L. ed.
080; Hoard ▼. Dea Moines, 62 Iowa, 326, 17
N. W. 627; Shelbyville & B. Tump. Co. v.
Green, 90 Ind. 205; Cairo & V. R. Co. v.
Stevens, 73 Ind. 283, 38 Am. Rep. 139;
Dubose ▼. Levee Comra. 11 La. Ann. 165;
Baaa ▼. State, 34 La. Ann. 494; Famham,
Waters, § 357, p. 1340; Jackaon v. United
Stotes, 230 U. S. 1, 57 L. ed. 1363, 33 Sup.
Ct. Rep. 1011; Kanaaa City, M. & B. R. Co.
▼. Smith, 72 Mias. 677, 27 L.R.A. 762, 48
Am. St Rep. 579, 17 So. 78; Lamb v. Recla-
mation Diat. 73 Cal. 135, 2 Am. St. Rep. 775,
14 Pac 625; McCoy v. Plumb Bayou Levee
Diat. 95 Ark. 345, 29 L.R.A.(Kj6.) 396, 129
S. W. 1097.
When progreaa and development, not in
the exerciae of eminent domain, but in an
effort to combat the dangeroua and trouble-
some "Father of Watera" from deatroying
life and property, causes consequential in-
juries to one's property, he can claim no
compensation therefor.
Jackson ▼. United States, 230 U. S. 1, 57
L. ed. 1363, 33 Sup. Ct. Rep. 1011; Bedford
V. United SUtes, 192 U. S. 217, 48 L. ed.
414, 24 Sup. Ct Rep. 238; Hughes v. United
States, 230 V. S. 24, 57 L. ed. 1374, 46
L.ItA.(N.S.) 624, 33 Sup. Ct. Rep. 1019;
Gibson v. United SUtes, 166 U. S. 272, 41
L. ed. 1000, 17 Sup. Ct. Rep. 578; Northern
Transp. Co. ▼. Chicago, 99 U. S. 635, 25
L. ed. 336.
Mr. Chief Justice White delivered the
opinion of the court:
The conditions out of which this contro-
versy arises are substantially the same as
those which were relied upon in Jackson v.
United Statea, 230 U. S. 1, 57 L. ed. 1363,
33 Sup. Ct Rep. 1011. We therefore here
make a briefer statement of the topography
of the country with which the case is con-
cerned, and of the other general conditions
involved, than we would do if such were not
the caae, ainoe, if a fuller atatement aa to
any particular aapect ia desired, it can be
readily found by a reference to the report
of that case.
The complainant, as the owner of a piece
of land on the east bank of the Miaaiaaippi
river, adjacent to Memphia,[369] Tenneaaee,
on hia own behalf, and on behi^lf of othera
owning aimilar land in the aame locality,
60 li. ed.
oommenoed this suit against the Mississippi
River Commission and fifteen local state
levee boards operating on the river between
Cape Girardeau, Missouri, and the mouth
of the river at the Gulf of Mexico, three of
these boards being organised imder the laws
of Missouri, four under the law of Arkansas,
one under that of Tennessee, one under the
law of Mississippi, and six under the law
of Louisiana.
It was alleged that in flood seasons, when
the water in the Mississippi river rose
above its natural low-water banks, such
water would flow out and over the vast ba-
sins in which the alluvial valley between
Cape Girardeau and the Gulf formed itself,
and would then, either by percolation gradu-
ally flow back into the river, or be carried
over and through the basins by the streams
flowing through them into the Gulf of
Mexico, where such streams emptied. It
was further alleged that the land of the
complainant) when the river in the flood
periods was thus permitted to discharge
its waters, was so situated that it was be-
yond the reach of overflow from the river.
It was then alleged that in 1883 the Miaaia-
aippi River Commiaaicm, acting under the
authority of Congreaa, had deviaed a plan
known aa the Eads Plan, by which it waa
contemplated that on both banka of the-
river, except at certain placea, which were
atated, a line of embankment or leveea
would be built which, in timea of high
water or flood, would hold the water rela-
tively within the linea of the low-water
banka, thua improving navigation by caua-
ing the water to deepen the bed, and aav-
ing the country behind the leveea from in-
undation. It waa averred that, to further
thia plan, the various state levee boards,
which were made defendants, were organ-
ized, and that all of them, within the scope
of their power and the limits of their finan*
cial ability, had aided in carrying on thia
work, and that, as the result of their work
and of the leveea built by the Miaaissippi
[360] River Commiaaion, it had come to paaa
that from Cairo to the Gulf, a diatance of
about 1,050 miles, on both sides of the river,
except at points which were stated, there was
a continuous line of levee restraining the
water trom flowing out into the basins, as
above stated, and which, in many instances,
cut off the outlets connecting the streams
which drained the basins and ultimately
carried off the water to the Gulf. It was
charged that this line of levees as a whole
had been virtually adopted by the Miaais-
sippi River Con^mission, which body had as-
sumed control Of the whole subject, and that
such body and all the atate agencies co-oper-
ating were engaged in strengthening, ele-
vating, reviewing, repairing, and increasing
1045
360-363
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tbm»
the lines of levee so ai to more effectuaUy
accomplish the purpose in view.
It was charged "that the effect of the clos-
ing by the defendants of the natural outlets
along the said river, and the confining of
the flood waters between the levee system as
a whole, is to obstruct the natural high-
water flow of the water of said river in and
along its natural bed for its entire length,
thereby raising the level of the water to
such an extent that said flood waters, with-
in the last five years, hav^ attained a suf-
ficient height to flow over complainant's
land, and when there is now a high-water
stage in said river, the waters of said river
accumulate, flow over, and remain standing
upon and over said lands of complainant to
a depth of from 4 to 8 feet, so that complain-
ant is now being interrupted in the profit-
able use, occupation, and enjoyment of his
said land." And it was further alleged that
^^said land is being covered with superin-
duced additions of said, silt, and gravel,
now from 6 inches to 3 feet in depth; the
houses and fences thereon are being washed
Away, rendering the said land and the houses
'thereon unfit for occupancy, driving away
-the tenants, doing irreparable harm and in-
jury to said land, impairing its usefulness,
;[361] causing the practical destruction
thereof, and destroying its market value."
It was averred that to obstruct the river
as alleged was a violation of the legal rights
of the complainant, since he was entitled to
the natural flow of the river within its nat-
ural high or low-water bed, free from inter-
ference by the acts of the defendants. Aver-
ring that no proceedings had been taken to
expropriate the land, and that no offer to
pay for the same had been made, and that
the acts complained of constituted a taking
without compensation, in violation of due
process of law under ttie Constitution of the
United States, and that there was no ade-
quate remedy at law, the prayer was for an
injunction against the Mississippi River
Commission and all its officers, employees,
agents, and contractors, wherever found,
and against all the local levee boards and
their officers, employees, agents, and con-
tractors, perpetually prohibiting them from
further building any levees, from enlarging,
strengthening, repairing, or doing any act
to maintain the levees already built, and
for general relief.
The bill was amended by alleging that the
overflow of complainant's land, as averred,
instead of having happened within flve
years, had occurred within one year, and
the original prayer was addfd to by asking
that if it was found that the injunction
prayed could not be granted, the case be
transferred from the equity to the law side,
and be converted into a law action to recov-
1046
I er from the Yacoo-Mississippi Delta Levee
Board, the local Mississippi board whidi
■ alone of the defendants had been served, the
sum of $500,000 as the value of the planta-
tion alleged to have been wrongfully taken.
A motion by that corporation was made to
dismiss the bill on the ground that it stated
no basis for relief, and in any event it al-
leged no ground for equitable jurisdiction,
since at best, upon the theory that a cause of
action was [362] stated, there was plainly
an adequate remedy at law. On the hearing
the motion to dismiss was joined in by the
Mississippi River Commission, and the case
is here as the result of the action of the
court below in dismissing the bill for want
of equity.
At the threshold we put out of view as
primarily negligible contentions as to
whether, in any event, in view of the vast
public interests which would have been
detrimentally affected, the injunction prayed
could have been granted, and whether the
suit should not have been dismissed so far
as the Mississippi River Commission was
concerned, on the groimd that it was really
a suit against the United States without its
consent, and not a mere action against in-
dividuals acting as officers, to prevent them
from violating the rights of the complain-
ant by taking his property without compen-
sation. We say these contentions are neg-
ligible because underlying them all is the
fundamental issue whether, under the aver-
ments of the bill, there was any right to re-
lief whatever, and to that decisive question
we come. Its solution involves deciding
whether the complainant, as an owner of
land fronting on the river, had a right to
complain of the building of levees along the
banks of the river for the purpose of con-
taining the water in times of flood within
the river, and preventing it from spreading
out from the river into and over the allu-
vial valley through which the river flows to
its destination in the Gulf, even although
it resulted that the effect of thus keeping
the water within the river was, by increas-
ing its volume, to so raise its level as to
cause it to overflow the complainant's lana.
While we are of the opinion that in sub-
stance a negative answer to the proposition
must follow from applying to this case the
doctrines which were upheld in Jackson v.
United States, 230 U. S. 1, 67 L. ed. 1363,
33 Sup. Ct. Rep. 1011, and Hughes v. United
States, 230 U. S. p. 24, 67 L. ed. 1374, 46
L.R.A.(N.S.) 624, 33 Sup. Ct. Rep. 1019, as
the unsoundness of the distinctions at-
tempted in the argument to be drawn be-
tween those cases and this, [363]
and the decisive application of those
cases to this, will be more readily
appreciated 1^ a recurrence to the legal
141 U. 8.
1916.
CUBBINS T. MISSISSIPPI RIVER OOM.
363-365
principles by which the controversy is
to be governed, we address ourselves
to that subject, looking at it in a twofold
aspect: First, with reference to the rights
and obligations of the landowners and the
power of the state to deal with the subject;
and second, with reference to the power of
United States to erect levees to confine the
water for the purpose of improving naviga-
tion, as superimposed on the right of the
landowners or that of the state authorities
to construct such levees, if such right ob-
tains, and if not, as independently existing
in virtue of the dominant power to improve
navigation vested in Congress under the
Constitution.
1. Without seeking to state or embrace
the whole field of the Roman law concerning
the flow of water, whether surface or sub-
terranean, or to trace the general differences
between that law, if any, as it existed in the
ancient law of the continent of Europe,
whether customary or written, or as it pre-
vailed in France prior to, and now exists in,
the Code Napoleon, one thing may be taken
as beyond dispute, that not only under the
Roman law, but under all the others, the
free flow of water in rivers was secured
from undue interruption, and the respec-
tive riparian proprietors, in consequence of
their right to enjoy the same, were protected
from undue interference or burden created
by obstructions to the flow, by deflections
in its course, or any other act limiting the
right to enjoy the flow, or causing addition-
al burdens by changing it. But while this
was universally true, a limitation to the
rule was also universally recognized by
which individuals, in case of accidental or
«ztraordinary floods, were entitled to erect
such works as would protect them from the
consequences of the flood by restraining the
came, and that no other riparian owner was
entitled to complain of such action upon the
ground of injury inflicted thereby, because
all, as tl\e result of the [364] accidental
and extraordinary condition, were entitled
to the enjoyment of the common right to
construct works for their own protection.
Demolombe after commenting upon article
640 of the Code Napoleon generally dealing
with the servitudes arising from the flow of
water, and pointing out that, under the
Roman law as well as under the ancient
French law and the Code Napoleon, it was
the duty of proprietors whose lands bor-
dered upon or were traversed by rivers to
permit the water of such rivers to flow
their natural course unimpeded, and quot-
ing the Roman law, fluminis Haturalem cur-
ium non avertere (L. 1, Cod. de Alluvioni-
bus), additionally states that under both the
Roman and ancient law and under the
Code Napoleon such proprietors were bound
40 li. ed.
"to undertake to do no work the result of
which would be to change the direction of
the stream or enlarge its bed, or to injure
in any manner other proprietors whose lands
border upon or are traversed by the stream"
(Demolombe, vol. 11, No. 30, p. 36). But
the author at once proceeds to add that the
principles thus stated in no way serve to
prevent or to limit the right of proprietors
whose lands border on or ate traversed by
rivers "from guarantying themselves against
damage by defensive works, constructed
either upon the border of the rivers or in
the interior of their property, against either
the permanent and insensible action of the
rivers or streams, or particularly against
the damage caused by the accidental or ex-
traordinary overflow of their banks; Ripam
9uam adversua rapidi amnU impetum munire
prohibitum non est (L. 1, Cod. de Alluv.)."
And proceeding, the author states that this
right of the proprietors undoubtedly exists
"even when tiie effect of the dikes or other
works done will be, as is nearly always the
case, to render the waters of the river more
hostile and damaging to other properties, the
owners of which would have no cause of com-
plaint because each one is entitled to do the
same in his own behalf, [365] as the right
of preservation and of legitimate defense- is
reciprocal, since it is impossible to conceive
that the law would impose upon the pro-
prietors bordering upon streams an obliga-
tion to suffer their property to be devoured
[by accidental or extraordinary overflows]
without the power on their part to do any-
thing to protect themselves against the dis-
aster." Proceeding to elucidate and state
the limitations by which the right thus uni-
versally recognized is safeguarded, the au-
thor says: "It is necessary, however, that
the works constructed [for the purposes
stated]- do not encroach upon the natural
bed of the water courses, that they should be
of course constructed in conformity to the
police regulations, if any exist, and finally,
tiiat they are in fact constructed by those
who build them for the defense of their own '
property, because constructions would not be
tolerated which had been erected by a pro-
prietor upon his own land without any ne-
cessity whatever for his own protection, but
with the only and disloyal purpose of in-
juring the property of others." Demolombe
further states: "What I have just said of
streams and rivers is equally applicable to
accidental torrents of water, which, like
avalanches, may sometimes precipitate
themselves upon certain properties; Such
a case is likewise one of vis major, against
which each one has a right, by the natural
law, on his own behalf to sedc to protect
himself as best he may, — a right which, as
well said by the court of Aix, is like that
1047
SIUMIM 8UPBKME COURT OF TUU UNITED STATES. OOE. Tom,
which obUlUB to reiist the incursion of >i to cause it to ftbrogftta the rule itadi. But
enemy, without being preoccupied u U into these dlfferencea Mid eontruietie* it ••
what mif be the result or the wrong euf not at all neceuary to enter, ainee there it
fered by a neighbor who may not have ha<! no decided caee, whatever may be the dif-
tbe toreaight to aucceulutly avoid the dia ference aa to the application of tba linita-
aoter." The author then proceede: "Thesi tion, holding that it doee not eiiet, and
principlea, which are lustained both by rea when in (act the very atatement of the g«-
son and by eonccptiona of equity, have beev eral rule requiree it to be determined whcth-
(or all time recognised both in the Romai er that rule aa correctly atated would In-
law and In our ancient French Juriiprudence dude aituatione which the limitation, if
They are to-day aupported by the nnaul' recognized, would exclude. We place in the
moiia accord of the decided caiea and of tht margin a few of the many adjudged caaea
opinions of authore. (Comp. L. Z, [366] | from which the eituation juat stated will
&, ff. de aqua el aqua; L. unic, ff. de ripa be made manifeat.i
munienda; L. 1, ff. ne quid >« flum. fubl.; Were the overflowa In thia eaae accidental
Coepolla, tract. 2, cap. XXXVUI. n* 2; and extraordinary! is, then, the proposition
Troneon, but I'art. 22S de la cont. de Paris; to which the case reduces itaelt. That tha
Henrys, liv. IV., title II., quaest. 73 Domat, volume of water from the vast watershed
Loia civilee. liv. II., title VIII.,, sec. III., which the MissisaippI river drains, and
n" B; Air, 19 Mai, 1813, Raousaet, Sirey, which, by meana of percolation and tribu-
1814, 11., 9fc Duranton, t. V., n* 162: Par- taries, reaches that river, ia suaeeptible now
dessuB, t. I, n' 92; Qamier, t. III., n* 677; and again of being ao aimultaneonaly
Daviel. t. I., no* 384-386, et t. II., n" 607, drained off from the waterahed into ths
698; Tauliei, t. H., p. 361.) river, and thus ao vastly Increaaing the
See Mailhot v. Pugh, 30 La. Ann. 1SS9, amount of water to be carried off in a
where some of the authors referred to by given time as to cause the overflow of the
Demolombe and others are quoted, and one valley which the river traverses, and to
or more of the adjudged French cases en- thereby endanger the enormous interests
forcing the limitation are atated and com- concerned, is too well known to require any-
mented upon. thing but statement. But that the poasi-
That the general right to an unrestrained bllitiea of auch a result do not, when such
flow of tivera and streams, and the duty overflows occur, cause them to be not acei-
not to unduly deflect or change the same by dental, is, to say the least, perauaaivel; es-
works constmcted tor Individual benefit, as tablished by the ruling in Viterbo v. Fried-
^alified by the limitation aa to accidenUl lander, ISO U. S. TOT, 30 L. ed. 776, 7 Sap.
and extraordinary floods which prevailed in Ct. Rep. SS2. And leaving aside this view,
Some and on the Continent, and which to- it Is obvions from the aituation and the
day govern in Prance, as stated by DemO' causes which. In the nature of things, may
lomlie, also obtained in Scotland, was recog- accidentally bring about the emptying into
nixed in 1741, in the case of Farquharson the river at one and the aame time of the
V. Farquharson, Morison's Diet. 12,779. volumes of water from all the vait sources
And the character of the limitation of the of supply which drain the expanaive water-
rale is well Illustrated by Menzies v. Bread- shed [368] into the river, in the abaenoe of
albanc, 3 Bligh, N. R. 414 (H. L.}, where which accidental unison there could be no
it was held that it did not apply to a case flood, that the accidental character of the
wliere a structure was erected in the eatab- unity of the conditions upon which the flood
lished high-water channel of a atream. It depends serves to affix that character to the
ia apparent also from the opinions id Nield result, — the flood itself. But saaiuning. as
v. London & N. W. S. Co. L. R. 10 Excb. we think it must be aasumed, that the words
4, 44 L. J. Exch. N. S. 16, 23 Week- Rep- "accidental" and "extraordinary" are to be
60, 23 Eng. Rul. Cas. 766, and the state- taken as relating to the river, — that is, i*
ment found In Coulson on the Law of alone embracing conditions not usually tbert
Waters, 3d. ed. pagea 177 et seq., that the occurring, and not ordinary to the stream ia
limitation as to accidental and extraordi- its usual condition, having r^^rd to the
nary overflows likewise exists in England, .
In this country it is also certain, with- 1 Bur well v. Hobaon, 12 Gratt. 322, (£
out going into a review of decided cases, Am. Dec. 247; Cairo, V. A Q. H. Co. v. Bre-
that the limitation is recognized, although voort, 25 L.RJ.. 627, 62 Fed. 120; Craw-
It is true to say that much contrariety and J?."i " Bambo, 44 Ohio St. 27B. 7 N. E. 4»!
«mfii«lon PTUt in the adiudirpd na»-a as to 0 Connell v. Eaat Tennessee, V. A G. R. Oo.
confusion exi»t in Uie adjudged eases as to
when .t IS applicable^ some cases extending ^48, :3 S. E- 489; Taylor v. Fickaa, 64 M.
the rule M far as to virtually render the jq7_ 31 ^m. Rep. 114; BhelbyvUle A B.
limitation inoperative, others extending the Turnp. Co. v. Green, 99 Ind. 206; Uailhot
(367] limitation to such a d«^[r«e as really v. Fugh, 30 La. Ann. 13GB.
1048 141 U. S.
l*Jlu.
CUBBIN8 T. MISSISSIPPI BiVER COM.
86S-370
flow through its natural bed, whether in
high or low water, — ^that view would be here
irrelevant, since there is no suggestion of
any bed of the river in high or low water
except the space between the natural banks
along which the levees were built, unless
the whole valley be considered as such bed.
Indeed, irom the face of the bill it is ap-
parent that the rights relied upon were as-
sumed to exist upon the theory that the
valley through which the river travels, in
all its length and vast expanse, with its
great population, its farms, its villages, its
towns, its cities, its schools, its colleges, its
universities, its manufactories, its network
of railroads, — some of them transcontinen-
tal,— are virtually to be considered from a
legal point of view as constituting merely
the high-water bed of the river, and there-
fore subject, without any power to protect,
to be submitted to the destruction resulting
from the overflow by the river of its natural
banks. In fact, the nature of the assump-
tion upon which the argument rests, is
shown by the contention that the building
of the levees under the circumstances dis-
closed was a work, not of preservation, but
of reclamation; that is, a work not to keep
the water within the bed of the river, for
the purpose of preventing destruction to the
valley lying beyond its bed and banks, but
to reclaim all the vast area of the valley
from the peril to which it was subjected by
being situated in the high -water bed of the
river. If it were necessary to say anything
more to demonstrate the unsoundness of this
view, [360] it would suffice to point out that
the assumption is wholly irreconcilable with
the settlement and development of the valley
of the river, that it is at war with the
action of all the state governments having
authority over the territory, and is a com-
plete denial of the legislative reasons which
necessarily were involved in the action of
Ck>ngress creating the Mississippi River
Commission, and appropriating millions of
dollars to improve the river by building
levees along the banks in order to conflne the
waters of the river within its natural banks,
and, by increasing the volume of water, to
improve the navigable capacity of the river.
2. Although, in view of the conclusion
just stated, it is unnecessary to refer to the
power of Congress to build the levees under
the paramount authority vested in it to
improve the navigation of the river, we can-
not fail to point out the complete demon-
stration which that power affords of all
want of legal responsibility to the complain-
ant for the building of the levees complained
of. In this connection it is to be observed
that the complete application of this power
•0 li. ed.
is, in the reason of things, admitted by the
erroneous assumption upon which alone
the arguments proceed in seeking to avoid
the effect of the well-defined limitation as to
accidental and extraordinary floods; that
is, the erroneous contention as to the high-
water bed of the river, which we have dis-
posed of. We say this, since it is apparent
that if the property in the valley were to
be treated as in the bed of the river, that
would be true also of the property of the
complainant, hence, causing it to come to
pass that, as to such property, so situated,
there would be no possible lawful ground
of complaint to arise from the action of
Congress in exerting its lawful power over
the bed of the river for the improvement of
navigation.
These conclusions dispose of the case with-
out the necessity of recurring, as we proposed
at the outset to do, [370] to the rulings in
the Jackson and Hughes Case, but, in the
light of the principles we have stated, we
direct attention to the fact that the attempt
to distinguish the Jackson Case upon the
ground that relief was there denied because
the proprietor on one side of the river, who
complained of the increase of the flood level
and injury to his land from the levees erect-
ed on the other side, or from the levee sys-
tem as a whole, had himself erected a levee
to protect his property, and therefore was
estopped, is without foundation. It is plain
when the context of the opinion in the
Jackson Case is considered, that the denial
of the right to relief in that case was rested
not upon the conception that a right exist-
ing on one side of the river was destroyed
by estoppel, and a right not existing on the
other was conferred by the same principle,
bu^ upon the broad ground that the rights
of both owners on either side embraced the
authority, without giving rise to legal in-
jury to the other, to protect themselves
from the harm to result from the accidental
and extraordinary floods occurring in the
river, by building levees, if they so desired.
Additionally, when the principle laid down
in the Jackson Case is illustrated by the
ruling which was* made in the Hughes Case,
it becomes apparent that the contention
here urged as to the identity between the
great valley and the flood bed of the river
was adversely disposed of, since under no
view could the ruling in the Hughes Case
have been made except upon the theory that
the bank of the river was where it was
found, and did not extend over a vast and
imaginary area.
Affirmed.
Mr. Justice Pitnej concurs in the result.
104f
871
SUPREME COURT OF THE UNITED STATES.
Cot. Tbem,
[371] ATCHISON, TOPEKA, & SANTA
FE RAILWAY COMPANY, Plff. in Err.,
V.
J. R. HAROLD.
(See S. C. Reporter's ed. 871-379.)
Commerce — local transportation as
part of interstate shipment — con-
tinuous movement.
1. A carload of grain originally
shipped from Yanka, Nebraska, consigned
to Topeka, Kansas, to tlie order of the con-
signors, with a direction to notify, "care of
Santa Fe for shipment," a grain company
residing and doing business at Kansas City,
Missouri, to whidi the bill of lading was
indorsed with draft for the purchase price
attached, must be deemed to have moved
in a continuous interstate commerce ship-
ment from the date of its departure from
Yanka to the termination of the transit
over the Santa Fe Railroad from Topeka,
Kansas, to Elk Falls, Kansas, under an ex-
chuige bill of lading which the grain com-
pany had obtained from the agent of the
Santa Fe at Kansas City, consigning the
identical car then still in transit to their
own order at Elk Falls, and, therefore, the
delivery of tiie car to the Santa Fe at To-
peka for further movement was not a new
and distinct shipment in intrastate com-
merce.
[For other cases, see Commerce, I. b, in Digest
Sup. Ct. 1908.]
Error to state court — decision of Fed*
eral question.
2. A holding that facts which were
otherwise pertinent and controlling in a
suit against a carrier for delay in the de-
livery of an interstate shipment, in which
the carrier relied upon certain conditions in
the interstate bill of lading as a defense.
Note. — On the general subject of writs of
error from the United titates Supreme
Court to state courts — see notes to Martin
Y. Hunter, 4 L. ed. U. S. 07; Hamblin v.
Western Land Co. 37 L. ed. U. S. 267; Re
Buchanan, 39 L. ed. U. S. 884; and Kipley
v. Illinois, 42 L. ed. U. S. 098.
On what adjudications of state courts
can be brought up for review in the Su-
preme Court of the United States by writ
of error to those courts — see note to Apex
Transp. Co. y. Garbade, 62 L.R.A. 513.
On how and when qu^tions must be
raised and decided in a state court in order
to make a case for a writ of error from the
Supreme Court of the United States — see
note to Mutual L. Ins. Co. ▼. McGrew, 63
Ii.RA^ 33.
As to local transportation of goods as
part of interstate or foreign shipment— see
notes to Missouri P. R. Co. v. Sherwood T.
& Co. 17 L.R.A. 643, and Gulf, C. & S. F. R.
Co. Y. Texas, 61 L. ed. U. S. 540.
As to when the transit of goods com-
menced in another state may be deemed to
have been terminated so as to subject the
ffoods to local taxation. General OU Co. t.
Grain, 62 L. ed. U. S. 755.
1050
must be put out of view because a bill of
lading in the hands of an innocent pur-
chaser is in fact negotiable paper, givins
ffreater rijghts to him tlian could be enjoyed
by the shipper or by the one from whom he
had acquired the bill, amounts to a deci-
sion of a Federal question which will sus-
tain a writ of error from the Federal Su-
freme Court to a state court.
For other cases, see Appeal and Error, 1888-
1430, in Digest Sup. Ct. 1008.)
Commeroe — exclusiveness of Federal
regulation — carrier's liability to in^
nocent holder of interstate bill of
lading.
3. Congress has so asserted, by the Car
mack amendment of June 20, 1006 (34
Stat, at L. 593, chap. 3591, Comp. SUt.
1913, § 8592), S 7, to the act of February
4, 1887 (24 SUt. at L. 379, chap. 104),
§ 20, its power over the subject of inter-
state shipments, the duty to issue bills of
lading, and the responsibilities thereunder,
as to preclude the application to an inter-
state commerce shipment of a local and ex-
ceptional rule of law which invests the in-
nocent holder of a bill of lading with rights
not available to the ^pper, such as the
right to rely on erroneous recitals in the
bill of lading as to the date of the carrier's
receipt of the goods.
[For other cases, see Carriers, II. b. In Digest
Sup. Ct. 1908.J
[No. 847.]
Argued May 2, 1916. Decided June 5»
1916.
IN ERROR to the Supreme Court of the
State of Kansas to review a judgment
which affirmed a judgment of the District
Court of Sedgwick County, in that state, in
favor of the owner of a bill of lading in an
action to recover from a carrier for delay
in delivery. Reversed and remanded for
further proceedings.
See same case below, 93 Kan. 456, 144
Pac 823.
The facts are stated in the opinion.
Mr. Alfred A. Scott argued the cause,
and, with Messrs. Robert Dunlap, William
R. Smith, and Grardiner Lathrop, filed s
brief foiw plaintiff in error:
The case at bar is analogous to an action
for personal injuries brought by an em-
ployee of a railway company, where it is
held that if the evidence shows that the
employee was engaged in interstate com-
merce at the time of his injury, the Federal
law controls, to the exclusion of all state
laws, notwithstanding no reference be made
to the Federal law in the pleadings; that
the state court is bound to take the same
notice of a Federal law as of a state law,
and be goremed accordingly.
Toledo, St. L. ft W. R. (>>. T. Slavin, 236
141 V. 8.
J 016.
ATCHISON, T. & S. F. H. CO. y. HAROLD.
U. S. 454, 59 L. ad. 671, 35 Sup. Ct. Rep.
306.
This action is in its essence a Federal
case, and not simply a case involving a Fed-
eral question, — an important distinction
which has been recognized by this court.
Pratt ▼. Paris Gaslight & Coke Co. 168
U. S. 255, 42 L. ed. 458, 18 Sup. Ct. Rep. 62.
The shipment in question was interstate.
Southern P. Terminal Co. ▼. Interstate
Commerce Commission, 219 U. S. 498, 527,
56 L. ed. 310, 320, 31 Sup. Ct. Rep. 279;
Railroad Commission ▼. Worthington, 225
U. S. 101, 109, 56 L. ed. 1004, i008, 32
Sup. Ct. Rep. 653; Texas & N. 0. R. Co.
▼. Sabine Tram Co. 227 U. S. Ill, 128, 129,
67 L. ed. 442, 449, 450, 33 Sup. Ct. Rep.
229 ; Railroad Commission v. Texas k P. R.
Co. 229 U. S. 336, 57 L. ed. 1215, 33 Sup.
Ct. Rep. 837; Baer Bros. Mercantile Co. ▼.
Denver Jb R. G. R. Co. 233 U. S. 479, 58 L.
ed. 1055, 34 Sup. Ct. Rep. 641; Kirby ▼.
Union P. R. Co. 04 Kan. 485, L.RJL— , — ,
146 Pa6. 1183.
The shipment being interstate, the mean-
ing and effect of the bill of lading and the
rights of an assignee thereunder must be
interpreted and determined by Federal law,
rules, and decisions, and not by the laws,
rules, decisions, or policies of the state of
Kansas.
Adams Exp. Co. ▼. Croninger, 226 U. S.
491, 57 L. ed. 314, 44 L.R.A.(N.S.) 257, 33
Sup. Ct. Rep. 148; Missouri, K. k T. R.
Co. ▼. Harriman, 227 U. S. 657, 57 L. ed.
690, 33 Sup. Ct. Rep. 397; St. Louis k S.
F. R. Co. ▼. Woodruff Mills, 105 Miss. 214,
62 So. 171; Southern R. Co. ▼. North State
Cotton Co. 107 Miss. 71, 64 So. 965.
Under the Federal rule the plaintiff in
error was not bound by the recitab in the
bill of lading, but could show the actual
facts as to the receipt of the goods.
Pollard ▼. Vinton, 105 U. S. 7, 26 L. ed.
998; Shaw ▼. North Pennsylvania R. Co.
(Shaw ▼. Merchants' Nat. Bank) 101 U.
S. 557, 25 L. ed. 892; Friedlander ▼. Texas
k P. R. Co. 130 U. S. 416, 32 L. ed. 991, 9
Sup. Ct. Rep. 570; St. Louis, I. M. & S. R.
Co. ▼. Knight, 122 U. S. 79, 30 L. ed. 1077,
7 Sup. Ct. Rep. 113; Missouri P. R. Co. ▼.
McFadden, 154 U. S. 155, 38 L. ed. 944, 14
Sup. Ct. Rep. 990.
Mr. Ray Campbell argued the cause,
and, with Messrs. W. A. Ayers and J. Gra-
ham Campbell, filed a brief for defendant
in error:
That a judgment of the state supreme
court may be reviewed by this court, it must
affirmatively appear from the record that a
Federal right, privilege, or immunity was
specially set up and claimed in the trial !
court.
•0 Ii. ed.
Louisville k N. R. Co. v. Woodford, 234
U. S. 46, 58 L. ed. 1202, 34 Sup. Ct. Rep.
739; El Paso k S. W. R. Co. v. Eichel, 226
U. S. 590, 57 L. ed. 369, 33 Sup. Ct. Rep.
179; Seaboard Air Line R. Co. v. Duvall,
225 U. S. 477, 56 L. ed. 1171, 32 Sup. Ct.
Rep. 790; Cincinnati, N. 0. k T. P. R. Co.
V. Slade, 216 U. S. 78, 64 L. ed. 390, 30
Sup. Ct. Rep. 230; Waters Pierce-Oil Co.
V. Texas, 212 U. S. 112, 53 L. ed. 431, 29
Sup. Ct. Rep. 227; Louisville k N. R. Co.
V. Smith, H. k Co. 204 U. S. 551, 51 L. ed.
612, 27 Sup. Ct. Rep. 401; Layton ▼. Mis-
souri, 187 U. S. 356, 47 L. ed. 214, 23 Sup.
Ct. Rep. 137; Erie R. Co. ▼. Purdy, 185 U. S.
148, 46 L. ed. 847, 22 Sup. Ct. Rep. 605.
Even though a Federal question had been
presented to the state supreme court in the
briefs of the railway company, which does
not show from the record, the question was
not specially set up or claimed.
Zadig ▼. Baldwin, 166 U. S. 485, 41 L. ed«
1087, 17 Sup. Ct. Rep. 639.
The Kansas supreme court held that by
the laws and decisions of Kansas, Harold
was entitled to certain relief frcmi the rail-
way company. Before such decision of the
state court is reviewable here, it must af-
firmatively appear that, in according such
relief to defendant in error, a Federal right
was not only claimed by plaintiff in error,
but that it was necessarily denied it by the
decision complained of. It must be mani-
fest, from the decision of the state court,
that its judgment could not have been ren-
dered without denying a claimed Federal
right.
Atlantic Coast Line R. Co. ▼. Glenn, 239
U. S. 388, ante, 344, 36 Sup. Ct. Rep. 154;
Mellon Co. ▼. McCafferty, 239 U. S. 134,
ante, 181, 36 Sup. Ct. Rep. 94; Chicago, B.
& Q. R. Co. ▼. Railroad Commission, 237
U. S. 220, 59 L. ed. 926, P.U.R.1915C, 309,
35 Sup. Ct. Rep. 560; Western U. Teleg.
Co. ▼. Wilson, 213 U. S. 52, 53 L. ed. 693,
29 Sup. Ct. Rep. 403; Waters-Pierce Oil Co.
▼. Texas, 212 U. S. 112, 53 L. ed. 431, 29
Sup. Ct. Rep. 227; Vandalia R. Co. ▼. In-
diana, 207 U. S. 359, 52 L. ed. 246, 28
Sup. Ct. Rep. 130; Arkansas Southern R.
Co. ▼. German Nat. Bank, 207 U. S. 270,
52 L. ed. 201, 28 Sup. Ct. Rep. 78; Leathe
▼. Thomas, 207 U. S. 93, 52 U ed. 118, 28
Sup. Ct. Rep. 30.
A Federal question must be set up and
decided by the state court of last resort,
prior to the filing of a petition for rehear-
ing, in order that such decision may be re-
viewable by this court.
St. Louis & S. F. R Co. v. Shepherd, 240
U. S. 240, ante, 622, J6 Sup. Ct. Rep. 274;
Louisville 4^ N. R. Co. v. Woodford, 234 U.
S. 46, 58 L. ed. 1202, 34 Sup. Ct Rep. 739 ;
Consolidated Turnp. Co. t. Norfolk k 0. P.
1051
372-374
SUPREME CX)URT OF THE UNITED STATES.
Oct. TERMy
R. Co. 228 U. S. 326, 57 L. ed. 857, 33 Sup.
Ct. Rep. 510; Forbes ▼. State Council, 216
U. 8. 396, 64 L. ed. 534, 30 Sup. Ct. Rep.
295; Waters-Pierce Oil Co. v. Texas, 212
U. S. 112, 53 L. ed. 431, 29 Sup. Ct. Rep.
227; McCorquodale ▼. Texas, 211 U. S. 432,
53 L. ed. 269, 29 Sup. Ct Rep. 146.
Not only does the record fail to show
that the shipment was interstate, but it
shows conclusively that it was intrastate.
Gulf, C. A S. F. R, Co. V. Texas, 204 U. S.
403, 51 L. ed. 540, 27 Sup. Ct. Rep. 360;
Southern P. Terminal Co. v. Interstate Com-
merce Commission, 219 U. S. 498, 55 L.
ed. 310, 31 Sup. Ct. Rep. 279; Railroad
Commission ▼. Worthington, 225 U. S. 101,
56 L. ed. 1004, 32 Sup. Ct. Rep. 653; Texas
& N. 0. R. Co. V. Sabine Tram Co. 227 U.
S. Ill, 57 L. ed. 442, 33 Sup. Ct. Rep. 229;
Railroad Commission ▼. Texas & P. R. Co.
229 U. S. 336, 57 L. ed. 1215, 33 Sup. Ct.
Rep. 837; Chicago, M. & St. P. R. Co. ▼.
Iowa, 233 U. S. 334, 58 L. ed. 988, 34 Sup.
Ct. Rep. 692; Cincinnati, N. O. A T. P. R
Co. y. Interstate Commerce Commission, 162
U. S. 184, 40 L. ed. 935, 5 Inters. Com. Rep.
391, 16 Sup. Ct. Rep. 700; New York ex rel.
Pennsylvania R. Co. ▼. Knight, 192 U. S.
21, 48 L. ed. 325, 24 Sup. Ct. Rep. 202;
South Covington & C. Street R. Co. v. Cov-
ington, 236 U. S. 637, 59 L. ed. 360, L.R.A.
1916F, 792, P.U.R.1915C, 231, 35 Sup. Ct.
Rep. 158; Pennsylvania R. Co. v. Mitchell
Coal k Coke Co. 238 U. S. 251, 59 L. ed.
1293, 35 Sup. Ct. Rep. 787.
It was the common-law duty of the rail-
way company to issue a correct bill of lad-
ing, and concerning such common-law lia-
bility Congress has not legislated.
Eastern R. Co. v. Littlefield, 237 U. S.
140, 59 L. ed. 878, 35 Sup. Ct. Rep. 489.
Mr. Chief Justice White delivered the
opinion of the court:
We are of the opinion that a motion to
dismiss is without merit, but the reasons
which lead us to that conclusion will be
more clearly appreciated after we have
made a statement of the case. Until that
is done we hence postpone the subject.
J. Bell & Son, having sold a carload of
bulk com to the C. V. Fisher Grain Com-
pany, residing and doing business at
Kansas City, Missouri, on September 21,
1910, shipped the same from Yanka, Ne<
braska, over the Union Pacific Railroad.
The bill of lading identified the car as L.
W. No. 33,791, containing 100,420 pounds
of corn, and the same was consigned to
Topeka, Kansas, to the order of the con-
signors (Bell.& Son), with a direction,
however, in the bill of lading, to, ''notify
C. V. Fisher Grain Company, care of Santa
Fe, for shipment." A drait for the pur*
1059
chase price of the com was mailed to
Kansas City, Missouri, accompanied with
the bill of lading, indorsed over to the
order of the Fisher Grain Company, and
on the presentation of this draft to the
Grain Company at Kansas City, Missouri,
while the car was yet in transit, it [373]
paid the same and became the possessor and
owner of the bill of lading. On the 24th of
September the Grain Company surrendered
to an agent of the Santa Fe at Kansas City,
Missouri, the Yanka bill of lading which it
had thus acquired, and took in exchange
for it another bill, consigning the identical
car to their own order at Elk Falls, Kansas,
a place on the Santa Fe road, with a direc-
tion, however, to notify at Elk Falls the
Nevling Elevator Company. This bill of
lading was dated the same day as the orig-
inal bill for which it was exchanged; that
is, September 21st, although it was in fact
only signed and issued on the 24th of that
month; and although on its face it treated
the car as being at Kansas City, in reality
the car was in transit from Yanka, not hav-
ing yet reached Topeka.
Harold, the defendant in error, a ^n^in
dealer at Wichita, Kansas, who had sold
on September 16th a carload of com to
Shoe & Jackson at Elk Falls, to be shipped
or delivered in a stated number of days,
bought the carload of com described by the
bill of lading issued at Kansas City, and,
paying a draft for the purchase price drawn
by Fisher Grain Company, with the bill an-
nexed, he became the owner of the bill, and
directed that delivery of the com be made
to Shoe & Jackson. The car from Yanka
had then not yet been delivered to the
Santa Fe at Topeka, having reached that
point only on the 28th of September, on
which day it was offered to the Santa Fe
for carriage and delivery at Elk Falls.
Finding that the car was in bad order, the
delivery was declined, and the car turned
back to the Union Pacific. That road, dis-
covering that the damage was such that the
car could not be repaired while it was
loaded, sent it to an elevator, transferred
the grain to another car, S. P. No. 85,721,
and turned that car over to the Santa Fe.
The new car, however, did not contain the
exact quantity of grain originally shipped
from Yanka, as one of the defects in the
old car was a leaky door, and [374] sev-
eral hundred pounds of the com had been
lost in transit. The car was promptly car-
ried by the Santa Fe to Elk Falls and offered
for delivery, but as ihfi period for the fulfil-
ment by Harold of his contract with Shoe
k Jackson had elapsed, and there had been
a decline in the market price of com, the
latter refused to take the car. Thereupoo
this rait againti the Santa Fe was oom-
241 U. 8.
J»15.
ATCHISON, T. k 8. F. B. CO. ▼. HAROLD.
874-376
menccd by Harold to recover the loss which j
he had suffered by the alleged unreasonable
delay in delivery at Elk Falls, consisting
of three items: first, the difference between
the price at which the corn had been con-
tracted to be sold to Shoe & Jackson and
the market price at the date the car was
offered for delivery; second, the amount of
the freight paid on the com which had been
lost; and third, a reasonable attorney's fee
which it was alleged a statute of the state
of Kansas authorized to be recovered in case
of delay of a carrier in the delivery of
grain.
In its defense the company alleged the
shipment over the Union Pacific from
Yanka, averred that the corn was received
by it at Topeka in order to complete the
transportation to Elk Falls, and charged
that, by a condition of the bill of lading
issued at Kansas City, as the delay had
been wholly caused by the Union Pacific,
there was no liability on the part of the
Santa Fe, and that, besides, that company
was not liable, because of a failure to give
a notice of claim in compliance with a con-
dition which was also contained in the
Kansas City bill of lading. Tliere was
judgment in the trial court for the plaintiff,
and the judgment of the court below, aflirm-
ing such action, is the one now under re-
view.
Tlie court, after referring to the bill of
lading sued on (the one issued at Kansas
City), and after stating that "the jshipment
intended to be described in the bill of lad-
ing originated at Yanka, Nebraska, on the
Union Pacific Railway," proceeded to state
the facts which we have recapitulated, and
which had been admitted in [375] evidence
without objection. In substance conceding
that if the facts stated were made the test
of the rights of the parties the judgment
under review was wrong, because there had
been, as a matter of fact, no unreasonable
delay in delivering the corn by the Santa Fe,
it was held that the judgment rendered was
right, since the plaintiff below, as the pur-
chaser of a bill of lading for value, had
a right to rely upon the face of the bill, to
treat the com as having been received by
the carrier at Kansas City on the date the
bill of lading was issued, and therefore to
recover for the unreasonable delay in deliv-
ery which necessarily would result from ex-
cluding from view the facts concerning the
movement of the com from Yanka, Ne-
braska, and the date of its delivery at To-
peka to the Santa Fe. The essence of the
opinion was aptly summed up in the qrlla-
boa which preceded it> drawn by the court,
which is as follows:
"1. The rule which invests the innocent
holder of a bill of lading with rights not
•0 li. ed.
available to the shipper, declared in Wichi-
ta Sav. Bank v. Atchison. T. & S. F. R. Co.
20 Kan. 519; Missouri, K. 4^ T. R. Co. v.
Hutchings, 78 Kan. 758, 99 Pac. 230; ana
Hutchings v. Missouri, K. & T. R. Co. (Sca-
ly V. Missouri, K. & T. R. Co.) 84 Bum. 479,
41 L.R.A(N.S.) 500, 114 Pac. 1079, is fol-
lowed in a case where tlie plaintiff pur-
chased com described in a bill of lading,
and paid tlie shipper's draft attached to the
bill in the usual course of business." [93
Kan. 456, 144 Pac. 823.]
In addition, the allowance of' the attor-
ney's fees under the Kansas statute was
upheld on the ground that the statute was
within the legitimate police power of the
state to enact, and not repugnant to the
state or Federal Constitution.
The motion to dismiss, referred to at the
outset, is based on the ground that the
action of the court involved no question of
interstate, but purely one of intrastate,
commerce. But this disregards the fact
that the bill of lading which was sued upon
was an interstate commerce bill [376] cov-
ering a shipment from Kansas City, Mis-
souri, to Elk Falls, Kansas. True, it is urged
that that bill of lading is not the test of
whether there is jurisdiction, because it was
shown that in reality the shipment was an
intrastate one from Topeka, Kansas, to Elk
Falls in that state. But this assumes tliat
although the judgment rests upon the con-
ception that the previous movement of the
com from Yanka could not be considered as
against the plaintiff because he was an inno-
cent third holder of the bill of lading issued
at Kansas City, nevertheless, for the pur-
pose of determining whether jurisdiction
exists, the facts as to the shipment from
Yanka must be treated as relevant. Leav-
ing aside, however, this contradiction, and
cbnsidering the facts as to the movement
of the grain from its inception, we are of
opinion that, from that point of view, it
was clearly established that the grain
moved in a continuous interstate commerce
shipment from the date of its departure
from Yanka to the termination of the tran-
sit at Elk Falls, and that the delivery of
the car to the Santa Fe at Topeka for
further movement was therefore not a new
and distinct shipment in intrastate com-
merce. We reach this conclusion in view
of the place of business of the Fisher Grain
Company (Kansas City, Missouri), of the
fact that there was no person at Topeka to
whom the grain was consigned, of the in-
dorsement of the bill of lading to the Fisher
Grain Company, and the annexing to it of
a draft drawn on that company at Kansas
City for the purchase price, and because the
order on the face of the bill of lading to
"notify 0. V. Fisher Grain Company, care
105S
376-379
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tbbm,
of Santa Fe for shipment" made it appar-
ent that it was not contemplated that the
interstate shipment should terminate at To-
peka, but that the car should move on as
the result of such direction as might b^
given while it was in transit by the Fisher
Grain Company at Kansas City, Missouri.
But, further, it is said that granting
there was a Federal [377] question, as it
was not asserted or relied upon until appli-
cation for a rehearing, it is not open for con-
sideration. The answer, however, is that the
court considered and disposed of the ques-
tion by holding that the facts which were
otherwise pertinent and controlling must be
put out of view because the interstate com-
merce bill of lading in the hands of Harold,
the purchaser, was in fact negotiable paper,
giving greater rights to such purchaser
than could be enjoyed by the shipper, or by
the one from whom he- had acquired the
bill. It is obvious, therefore, that this was
a decision of a Federal question which we
have power to dispose of as such, and we
come to consider it.
That the local rule applied by the court
below was in direct conflict with the gen-
eral conunercial law on the subject, as re-
peatedly settled by this court, is plain.
Shaw V. North Pennsylvania R, Co. (Shaw
v. Merchants' Nat. Bank) 101 U. S. 557, 25
L. ed. 892; Pollard v. Vinton, 105 U. S. 7,
26 L. ed. 998; St. Louis, I. M. & S. R. Co. v.
Knight, 122 U. S. 79, 30 L. ed. 1077, 7 Sup.
Ct. Rep. 1132; Friedlander v. Texas & P.
R. Co. 130 U. S. 416, 32 L. ed. 991, 9 Sup.
Ct. Rep. 570; Missouri P. R. Co. t. Mc-
Fadden, 154 U. S. 155, 38 L. ed. 944, 14
Sup. Ct. Rep. 990; The Carlos F. Roses, 177
U. S. 655, 665, 44 L. ed. 929, 933, 20 Sup.
Ct. Rep. 803.
Nothing could better point out the ir-
reconcilable conflict between the local doc-
trine applied by the court below and the
general law, as illustrated in the cases cited,
than does the following statement in the
opinion in the Roses Case, last cited (p.
665):
' "A pledgee to whom a bill of lading is
given as security gets the legal title to the
goods and the right of possession only if
such is the intention of the parties, and
that intention is open to explanation. In-
quiry into the transaction in which the bill
originated is not precluded because it came
into the hands of persons who may have
innocently paid value for it."
Whether, in the absence of legislation by
Congress, the attributing to an interstate
bill of lading of the exceptional and local
characteristic applied by the court below,
in [378] conflict with the general commer-
cial rule, constituted a direct burden on in-
terstate commerce, and was therefore void,
1054
need not now be considered. This is bo be-
cause, irrespective of that question, and^
indeed, without stopping to consider the
general provisions of the act to regulate
commerce, it is not disputable that what is
known as the Carmack amendment to the
act to regulate commerce (act of June 29,
1906, chap. 3591, § 7, 34 SUt. at L. 593,
Comp. Stat. 1013, § 8592) wafi an assertion
of the power of Congress over the subject
of interstate shipments, the duty to issue
bills of lading, and the responsibilities there-
under, which, in the nature of things, ex-
cluded state action. Adams Exp. Co. v.
Croninger, 226 U. S. 491, 505, 506, 57
L. ed. 314, 319, 320, 44 L.R.A.(N.S.)
257, 33 Sup. Ct. Rep. 148; Missouri,
K. & T. R. Co. V. Harriman, 227 U. S. 657,
671, 672, 57 L. ed. 690, 697, 698, 33 Sup.
Ct. Rep. 397; Boston & M. R. Co. v. Hook-
er, 233 U. S. 97, 110, 58 L. ed. 868, 875,
L.RJL 1915B, 450, Ann. Cas. 1915D, 593;
Atchison, T. & S. F. R. Co. v. Robinson, 233
U. S. 173, 180, 58 L. ed. 901, 905, 34 Sup.
Ct. Rep. 556; Cleveland, & St. L. R. Co. v.
Dettlebach, 239 U. S. 588, ante, 453, 36 Sup.
Ct. Rep. 177; Georgia, F. & A. R. Co. v.
Blish Mm. Co. 241 U. S. 190, ante, 948, 36
Sup. Ct. Rep. 541.
Indeed, in the argiunent it is frankly
conceded that, as the subject of a carrier's
liability for loss or damage to goods mov-
ing in interstate commerce under a bill of
lading is embraced by the Carmack amend-
ment, state legislation on that subject has
been excluded. It is insisted, however, that
this does not exclude liability for error in
the bill of lading purporting to cover an
interstate shipment, because ''Congress has
legislated. relative to the one, but not rela*
tive to the other." But this ignores the
view expressly pointed out in the previous
decisions dealing with the Carmack amend-
ment, that its prime object was to bring
about a uniform rule of responsibility as
to interstate commerce and interstate com-
merce bills of lading, — a purpose which
would be wholly frustrated if the propo-
sition relied upon were upheld. The prin-
cipal subject of responsibility embraced by
the act of Congress carried with it neces-
sarily the Incidents thereto. See the sub-
ject aptly and clearly illustrated by St. Louis
& S. [379] F. R. Co. V. Woodruff Mills,
105 Miss. 214, 62 So. 171, where a statute of
the state of Mississippi, accomplishing the
very result applied by the court below, was
decided to be no longer applicable to inter-
state commerce because of the taking pos-
session by Congress of the fleld by virtue
of the amendment referred to.
As it follows from what we have said thai
the court below erred in applying the local
law to the interstate commerce shipment
241 U. 8.
1915.
UNITED STATES t. HEMMER.
879-881
under consideration, its judgment must be
reversed and the case remanded for further
proceedings not inconsistent with this opin*
Ion.
And it is so ordered.
UNITED STATES
LOUIS HEMMER, William W. Fletcher, J.
E. Peart, et al.
(See S. C. Reporter's ed. 379-387.)
Indians — homesteads — reatriotlona on
mlienmtlon.
An Indian who had made a home-
stead entry under the act of March 3, 1875
(18 Stat, at L. 420, chap. 131, Gomp. Stat.
1913, § 4611),— giving Indians bom in the
United States, who are heads of families,
or have arrived at the age of twenty-one
years, and have abandoned their tribal rela-
tions, the benefit of the homestead laws,
provided that titles acauired thereunder
should be inalienable for five years from the
date of payment, — and had substantially
performed the conditions entitling him to
a patent, except the making of final proof,
at the date of the passage of the act of
July 4, 1884 (23 SUt. at L. 96, chap. 180.
Comp. Stat. 1913, § 4612), is not affected
by the provisions of the latter act that sueh
Indians as might then be located on the
public lands, or should thereafter so locate,
might avail themselves of the homestead
laws, but that patents issued thereunder
riiould contain a twenty-five years' limita-
tion upon alienation.
(For other cases, see Indians, Vlll., In Digest
Bup. Ct. 1908.]
[No. 86.]
Submitted May 5, 1916. Decided June 5,
1916.
APPEAL from the United States Circuit
Court of Appeals for the Eighth Cir-
cuit to review a decree which, reversing a
decree of the District Court for the Dis-
trict of South Dakota, in favor of com-
plainant in a suit to remove clouds on title
and cancel certain conveyances, and to re-
move the lien of a Judgment, remanded the
cause, witli directions to dismiss the bill.
Affirmed.
See same case below, 123 C. C. A. 1949
204 Fed. 898.
The facts are stated in the opinion.
Assistant Attorney General Knaebel sub-
mitted the cause for the United States.
Mr. liowla Benson submitted the cause
for Louis Hemmer et aL Mr. Qeorge Rioe
was on the brief.
•0 li. ed.
Mr. Justice McKenna delivered the opin-
ion of the court:
This suit was brought in the circuit
court of the United States, eighth judicial
circuit, district of South Dakota, southern
division, by the United States, to remove
clouds from the title to certain described
lands, and to cancel certain instruments
purporting to convey the lands, and pray-
ing that a certain judgment against the
lands be declared no lien thereon, the
ground of suit being that the conveyances
and the judgment were obtained in opposi-
tion to the restrictions upon the alienation
or encumbrance of the lands imposed by
Congress.
After issue joined and hearing had the
district court, successor of the circuit court,
entered a decree in accordance with the
prayer of the bilL 195 Fed. 790. The de-
cree was reversed by the circuit court of
appeals, and the case remanded to the dis-
trict court, with directions to dismiss the
bilL 123 C. C. A. 194, 204 Fed. 898. This
appeal was then prosecuted.
The facts are the following: One Henry
H. Taylor, [381] known and designated
sometimes as Henry Taylor, is and was dur-
ing the times with wMch the suit is con-
cerned a Sioux Indian of the full blood, be-
longing to and a member of the Santee
Sioux Band of Indians, and is not a mem-
ber of and has never had any connection
with the Winnebago Band of Indians.
On October 7, 1878, Taylor entered upon
the lands as a homestead, they being part
of the public domain, and subject to entry
under the homestead laws of the United
States then in force. He established and
continued his residence, and made satis-
factory proof of all facts required by law
On June 6, 1890, a patent was issued to
him which recited, among other things, that
it was granted upon the express condition
that the title conveyed thereby should not
be subject to alienation or encumbrance
either by voluntary conveyance or by judg-
ment, decree, or order of any court, or sub-
ject to taxation of any character, but should
remain inalienable and not subject to tax-
ation for the period of twenty years from
the date thereof, as provided by act of
Congress approved January 18, 1881, 21
Stat, at L. 315, chap. 23. This act applied
only to Winnebagoes.
Taylor continued to own the land until
August 8, 1908, when he and his wife made
a contract with J. E. Peart, one of the
appellees, by which they agreed to convey
the land to Peart in fee simple by war-
ranty deed for the sum of $2,400, certain
land to be accepted in payment of $550 of
such consideration. Time was made the
essence of the contract^ and it was made
1055
881-384
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
binding upon the heirs, executors, admin-
istrators, and assigns of the parties.
September 8, 1908, Peart assigned the
contract to William W. Fletcher, also one
of the appellees herein. After this contract
Taylor and wife took possession of the land
taken in part payment of the consideration,
and Peart took possession of the homestead
land and paid the consideration in full.
[382] Taylor and his wife refused to
convey the homestead land to either Peart
or Fletcher, and the latter instituted suit
against them to compel specific performance,
which suit resulted in a decree compelling
such performance, and a deed was executed
to Fletcher by a commissioner appointed by
the court.
February 5, 1909, Fletcher conveyed the
land by warranty deed to Louis Hemmer,
who, in April, 1909, denied possession to
Taylor, who attempted to remove with his
family back on the land, and has since de-
nied possession to him.
June 10, 1909, the United States issued
a patent to Taylor which recited that he
had established a homestead upon the land
in conformity with the act of Congress of
July 4, 1884 (hereinafter set out), and that
therefore the United States, in considera-
tion of the premises and in accordance with
the provisions of said act of Congress, did
and would hold the land (it was described)
for the period of twenty-five years in trust
for the sole use and benefit of Taylor, or,
in case of his decease, of his widow and
heirs, according to the laws of the state
where ' the land was located, and at the
expiration of that period would convey the
same by patent to Taylor, or his widow and
heirs, in fee, discharged of the trust and
free of all charge or encumbrances whatso-
ever. It was declared that the patent was
issued in lieu of one containing the twenty-
year trust clause dated June 6, 1890, which
had been canceled.
In 1894 and in every year since, the coun-
ty treasurer of Moody county (appellee
Henderson), its auditor (appellee Hornby),
and board of county commissioners have
assessed the land for taxation and levied
taxes against it, and have caused it to be
sold, and are asserting the right to tax the
same. The other appellees assert interest
in the land under tax sales.
It will be observed that Taylor made his
preliminary [383] homestead entry October
7, 1878, by virtue of the provisions of the act
of March 8, 1876, 18 Stat, at L. 4201, chap.
131, Comp. Stat. 1913, § 4611. The act
gave Taylor, as an Indian having the quali-
fications it described (that is, who was bom
in the United States, was twenty-one years
of age, the head of a family, and who had
abandoned his tribal relations), the benefits
of the homestead law, and provided that
the title acquired by virtue of its provisions
should not be subject to alienation or en-
cumbrance, either volimtarily made or
through proceedings in court, and should
"remain inalienable for the period of five
years from the date of the patent issued
therefor."
Taylor, however, did not make his final
proof until December 11, 1884, when he
paid the final fees and received his final
receipt and certificate. Prior to such final
proof and compliance with the homestead
laws Congress passed the act of July 4,
1884, 23 Stat, at L. 96, chap. 180, Comp.
Stat. 1913, § 4612. It provided '*that such
Indians as may now be located on public
lands, or as may, under the direction of the
Secretary of the Interior, or otherwise, here-
after, so locate may avail themselves of the
provisions of the homestead laws . . . ;
but no fees or commissions shall be [384J
charged on account of such entries or proofs.
All patents therefor shall be of the legal ef-
fect and declare that the United States does
and will hold the land thus entered for the
period of twenty-five years, in trust for the
sole use and benefit of the Indian by whom
such entry shall have been made, or in case
of his decease, of his widow and heirs ac-
cording to the laws of the state or territory
where such land is located, and that at the
expiration of said period the United States
will convey the same by patent to said In-
dian, or his widow and heirs as aforesaid,
in fee, discharged of said trust and free of
all charge or encumbrance whatsoever."
Whether the patent to Taylor should have
issued under that act and subject to its
restriction of twenty-five years, or under
the act of 1875, and with a limitation upon
alienation of five years, is the controversy
in the case. The government contends for
the act of 1884, and the contention had
the support of the district court. Appellees
contend for the application of the act of
1875, and the circuit court of appeals ap-
proved the contention. We put to one side
the act of 1881, which prescribes a period
of nonalienation of twenty years, as it is
conceded that the act applied only to Winne-
bagoes, and Taylor is a Sioux.
l"8ec 15. That any Indian bom in the
United States, who is the head of a family,
or who has arrived at the age of twenty-one
years, and who has abandoned, or may here-
after abandon, his tribal relations, shall, on
making satisfactory proof of such abandon-
1056
ment, under rules to be prescribed by the
Secretary of the Interior, be entitled to the
benefits of the act entitled, 'An Act to
Secure Homesteads to Actual Settlers on the
Public Domain,' approved May twentieth,
eighteen hundred and sixty-two, and the acts
241 U. 8.
1916.
UNITED STATES ▼. HSMMER.
884-387
The question in the case, then, is the sim-
ple one: Which act applied to and de-
termined Taylor's rights? Or, to state the
question differently and at the same time
give the test of its solution, Was the act
of 1875 repealed or superseded by the act
of 1884? There are no repealing words in
the latter act, and if i^ repealed the other
located upon the puhUo Umd% broaden it
so as to include Indians who were proceed-
ing under the act of 1875. The rule is
established that under acts of Congress con-
cerning the public lands those are not [386]
regarded as such to which a claim has at-
tached, though Congress may, if it be so
advised, exercise control over them. Hast-
act, it must have done so by implication, ings & D. R. Co. v. Whitney, 132 U. S. 357,
The implication of such an effect is not 361, 364, 33 L. ed. 363, 365, 366, 10 Sup.
favored and the character of the act rejects Ct. Rep. 112; Hodges v. Colcord, 103 U. S.
it Unquestionably the act of 1884 is the 192, 196, 48 L. ed. 677, 678, 24 Sup. Ct. Rep.
more general, and it has criteria of applica- 433 ; Bunker Hill & S. Min. & Concentrating
tion different from that of the act of 1875. Co. v. United States, 226 U. S. 548, 550, 57
The acts, therefore, have different objects. L. ed. 845, 346, 33 Sup. Ot. Rep. 138. Home-
Under the act of 1884 Indians located on the stead entries under the act of 1875 cannot,
[385] public lands at the passage of the therefore, be considered as having been re-
act, or that might, under the direction of ferred to.
the Secretary of the Interior, or otherwise, Taylor and those in like situation did not
thereafter so locate, might avail themselves need the aid of the act of 1884. Its Ian-
of the provisions of the act. guage was not of confirmation of rights, but
The act of 1875 was more circumscribed. ^^^^ permissive and prospective, and related
It did not apply to Indians generally, but to the initiation and acquisition of rights
to those of special qualifications,— those ^y ^ different class. And having this defl-
who had separated themselves from their ^^^ purpose, it would be difficult to sup-
tribes and the influence of their tribes, who ^hat, besides, righU acquired under
had advanced therefore, to a higher status .^^ ^^^ ^^^ ir^t^nA^ to be limited with-
*nd were better prepared to manage the r ^^^ ^^^^^^^ ^ ^^^ ^^^ ^^j^ ^^^^
affairs than Indians m general. And it , .. x i • i. xi
might wellhave been considered that a five- !?*H^ , ** ^f^f T^ ^ *"!!'"[! J" *u
year restriction upon the alienation of their ^^7^] ^l^^..^^. progressed beyond the
titles, added to their five years' residence, P«"»* ^' subjection to the power of Congress,
would give them an appreciation of values ^® having, as we have said, completed his
•ufficient to protect them against the im- residence upon the land, and nothing re-
providence of their race and the imposition maining but to make final proof and receive
of others. ^h® assurance of his title, which, we have
Therefore, the acts had no repMgnancy, seen, was his situation nearly a year before
but had different fields of application, and the passage of the act of 1884.
this, it might be contended, even consider- Congress has undoubtedly by ite legisla-
ing their future operation. Of this, how- tion indicated a policy to protect Indians
ever, we need not express opinion. The act against a hasty and improvident alienation
of 1884 applied te Indians then located on of their lands, and the government has cited
the public lands. Regarding Taylor sim- ik number of statutes. But, as we have
ply as an Indian, those words might be con- pointed out, such policy was satisfied by the
sidered to be applicable to him; regarding act of 1875, and we do not think there is
the purpose of the act, which was to con- anything in the history of the act of 1884
fer a benefit, not confirm one, they did not which sustains the contention that it was
apply to him or to Indians in his situation, intended to be an amendment of the act of
for he, and Indians such as he, were the 1875, or to indicate that the latter act was
beneficiaries of the prior act, and he and not sufficiently potent for the purposes of
other Indians, it may be, — but certainly he, protection, llie recommendation of the In-
— ^had substantially performed ito condi- terior Department was for the remission of
tions. What remained to be done, and could fees, and this was responded to, but con-
have been done before the act of 1884 was fined as we have indicated; and the Interior
passed, was not much more than ceremony. Department considered it to be so confined,
Nor does the fact that the act of 1884 for fees were exacted from Taylor upon his
applied to such Indians as might then be final proof, manifesting [387] opinion.
amendatory thereof, except that the provi-
sions of the eighth section of the said act
shall not be held to apply to entries made
under this act: Provided, however. That the
title to lands acquired by any Indian by
virtue hereof shall not be subject to
40 li. ed.
tion or encumbrance, either l^ voluntary
conveyance or the judgment, decree, or
order of any court, and shall be and remain
inalienable for a period of five years from
the date of the pi^tent issued there-
fori . . ."
67 1057'
S87-389
8UPRXMB COURT OF THE UNITED 8TATE&
Ooi. IteM,
irithiB a few monthi after the pMMge of
the act of 1884, that it did not apply to him.
Deeree affirmed.
Hr. Justice lioReyBOlde took no part
in the coneideration or decision of this oaee.
MERRILL-RUCKGABER COMPANY,
Appt.,
V.
UNITED STATES.
(See 8. C. Reporter's ed. 887-898.)
Public oontracts — ambiguity — extra
work — decision of snperrisinff archi-
tect.
Any ambiffuity In the speciflcationi
for the construction of the foundation for a
government building arising from the use
of the singular word ''building" instead of
the plural word "buildings" in specifying
the underpinning required to protect ad-
joining property, in the face of the con-
tractor's knowledge, by inspection, of the
material conditions, and of the other parts
of the specifications, which, inter tdia, call
for "rear walls" instead of a "rear wall,"
could, at the utmost, only give ground for
dispute, and the extra cost of underpinning
the rear walls of both buildings must be
borne by the contractor, where the super-
vising architect decides that the contract
calls for such underpinning, and the con-
tract makes final hU decision as to the
proper interpretation of the drawings and
specifications.
[For other cases, see United States, YI. f, in
Digest 8up. Ct 1008.]
[No. 281.]
Argued March 17, 1916. Decided June 6,
1016.
APPEAL from the Court of Claims to re-
view a judgment dismissing the peti-
tion of a public contractor for a recovery for
extra work. Affirmed.
See same case below, 40 Ct. CI. 553.
Statement by Mr. Justice McKenna:
Appellant is a New York corporation
It filed a petition in the court of claims for
the recovery from the United States of the
sum of $4,475.00 for extra work performed
in the construction of the foundation for
the [388] extension and ronodeling of the
United States assay office in New York.
Issue was Joined on the petition and the
court of claims, after hearing, dismissed it.
The facts pertinent to the questions pre-
sented, collated from the findings, are as
follows:
The appellant entered into a oontraet
with the United States through the proper
105t
oflioers of the latter for th^ eonstmetioa
of sueh foundation for the snm of $70,400^
in accordance with speeifieations and draw«
ings prepared in the office of the supervis-
ing architect.
The specifications required bidders to visit
the site and fully inform themselves of the
character of the a*Jne and the eonditioBS
under which the work would have to bs
performed, and failure to do so, it was pro*
vided, would not relieve the successful bid-
der from the neeessi^ of furnishing ma-
terial or performing any labor that mi^t
be required to complete the work in aooord-
ance with the true intent and meaning of
the specifications and drawings, witlurat
additional cost to the government.
The specifications, it was provided, should
supplement the drawings, and ^Mcifleatioas
and drawings were to be reciproeaily ex-
planatory, and the decision of the super-
vising architect as to the proper interprs-
ution of the drawings and specifications
was to be final.
Under the heading "Excavation" it was
provided that "certain portions of old
foundation walls, etc., have been left in
place as retaining walls in connection with
adjoining buildings; the removal of tbeis
walls and the north wall and so much of
the present front building as may be neces-
sary to install work under this oontraet
and such other excavation in eonneeUoa
therewith as may be necessary are to bs
included. . . . The walls, etc., will have
to be removed and the excavation made in
such mftnner as not to endanger adjoining
property nor prevent the occupancy of tbs
present front buildings and all necessary
[380] shoring and underpinning, etc, in
connection therewith, must be done."
Subsequently the supervising architeet
sent to all parties from whom proposals
had been solicited the following addendum
amending the foregoing paragraph of the
specifications:
''Bidders are hereby informed that the
specification is to be amended aa follows:
Page 7, fourth paragraph, under 'Excava-
tion,' after the clause 'and all necessary
shoring, underpinning, etc, in oonnectioB
therewith, must be done,' add. In the case
of the building joining the north line of
the site, the underpinning of tlie nudn rear
walls must be carried to rock by a method
satisfactory to the supervising architect"
A detailed contract was entered into pro-
viding that the work, was to be done in
accordance with the speeifieations and tbs
addendum thereto and the requirements of
certain specified drawings and aneh other
detail drawings and models as might be fur-
nished to appellant by the supervisisf
ard&iteet.
141 V. i>
1915.
MERRILL-RUCKQABER CO. v. Ul^ITED STATES.
889-S91
It wai further provided that ehangei
might be made in the work and materials
when required by the United States, the
▼alue of tuch work and materials to be de-
termined on the basis of the contract unit
o{ Talue, at prevailing market rates, such
rates, in case of dispute, to be determined
by the architect, whose decision should be
binding on both parties, and that no claim
for damages on account of such changes or
for anticipated profits should be made or al-
lowed. No claim for extra materials or
work was to be made or allowed unless spe-
cifically agreed upon in writing, or directed
in writing by the United States.
The assay office extension was located
practically in the middle of the block
bounded by Wall, Nassau, Pine, and William
streets, and among the buildings surround-
ing the site were two on Pine street, num-
bered 25, 27, and 29. Number 26 was ten
stories and Nos. 27 and 29 (being one
[30O] building) was thirteen stories above
the street, and each was one story higher
at the line of the assay office extension.
Appellant submitted detail drawings show-
ing its proposed method of underpinning
and protecting the walls of the Pine street
buildings. Referring to the drawings, the
architect telegraphed the inquiry why they
did "not show underpinning 25 Pine street
extending to rock," to which appellant re-
plied that, in accordance with the addendum
to the specifications, it understood that the
building referred to meant 27-29 Pine
street, as No. 25 Pine street had no rear
wall, but simply a light metallic curtain
wall supported on the side walls, and that
appellant did not consider there was any
rear wall in the building, and therefore it
(appellant) showed the side walls to be
taken care of in the usual manner and be-
lieved its method so provided.
Much correspondence ensued, and finally
appellant was told that it was the opinion
of the architect's office that its letter of the
2d instant (October, 1909) correctly set
forth the position of the office, and that it
was of the opinion the work as therein set
forth was required by the contract, and
that appellant was not entitled to extra
therefor, and appellant was directed to car-
ry out its contract without further delay,
in accordance with that letter. To which
appellant replied that the cost of the under-
pinning to rock of the walls of No. 25 Pine
street #ould be $4,800 in addition to the
price named in the contract, and concluded
as follows:
^'As the contract does not expressly or
impliedly require us to underpin to rock
premisira 25 Pine street, we shall proceed
with the work under the contract, taking
neeesaary steps to protect said premises,
•0 li. ed.
but will not underpin any portion thereof
to rock except upon the understanding that
we are to be paid the reasonable cost there-
of, as indicated above.'
[301] "To which the supervising archi-
tect replied, on October 30, 1909: 'Your
statements are noted and you are now di-
rected to proceed without further delay to
complete the work in line with o.llce letters
of the 2d, 20th, and 26th instance, and with-
out expense to the government. And you are
advised that unless you take action along
this line within a reasonable time considera-
tion will be given to serving the eight days'
notice preparatory to the government as-
suming charge of the work and completing
it at your expense.'
"Upon appeal to the Secretary of the
Treasury the action of the supervising
architect was ratified, and the claimant was
directed in writing by the Secretary to pro-
ceed with said underpinning in accordance
with the requirements of the supervising
architect, otherwise the contract would be
completed at claimant's expense. The claim-
ant did the work under protest, and com-
pleted it and all of the work under said
contract within the time stipulated in the
contract. The actual cost of underpinning
to rock said building No. 25 Pine street
was $4,450. The contractor was paid the
full amount of the contract price, $79,400."
The use of the word "building" in the
addendum to the specifications was the re-
sult of a clerical error in the office of the
supervising architect. But before submit-
ting a proposal for the work, appellant,
through its presidient and agent, made an
investigation of the site of the work and
the buildings surrounding the site, and as-
certained that the rear of both the build-
ings on Pine street adjoined the site on the
north.
Mr. John S. Flannery argued the cause,
and, with Mr. Frederic D. McKenney, filed
a brief for appellant:
A contractor cannot be required, without
compensation, to double the quantities of
work actually specified in an ^vertiscment
for proposals prepared by the government,
by recourse to general requirements, calling
upon the contractor to visit the site and
inform himself of what was needed.
United States v. Utah, N. k C. Stage Co.
199 U. S. 414, 50 L. ed. 251, 26 Sup. Ct. Rep.
69; Beach, Contr. § 716.
As this contract, and the specifications
and addendum forming a part thereof, were
not drafted by the claimant, but by the
representatives of the United States, — ^the
officials of the supervising architect's office,
— and the error in substituting the word
^building" for "buildings" was made in that
105*
892
SUPREME COURT OF THE UNITED STATEa
Ooi. Xbm,
office, the ambiguity, if there is any in the
language of the contract, taking it at a
whole, must be resolved againat the United
States.
Beach, Contr. § 726; Chambers ▼. United
States, 24 Qt. CI. 387 ; Otis ▼. United States,
20 Ct. CI. 315, 120 U. S. 115, 30 L.ed. 609,
7 Sup. Ct. Rep. 449; Edgar k T. Foundry
k Mach. Works ▼. United SUtei, 34 Ct. CL
205; United States ▼. Gibbons, 109 U. &
200, 27 L. ed. 906, 8 Sup. Ct. Rep. 117;
Garrison ▼. United States, 7 WalL 688, 19
L. ed. 277; Anson, Contr. p. 328.
In Collins ▼. United States, 34 Ot. CL
294, it was held that a contractor who ex-
cavates the number of cubic yards required
by his contract is entitled to compensation
for extra excavation below grade, called for
l^ the engineer in charge, notwithstanding
a provision in the contract providing: "The
lock pit must be excavated to the width and
length and depth which the engineer in
charge shall deem necessary."
A specific provision in a contract calling
for one injector and one pump controls gen-
eral provisions of a contract that every-
thing needed for a lighthouse shall be
supplied to make it ready for use.
Erickson ▼. United States, 107 Fed. 204;
Salt Lake City ▼. Smith, 43 C. C. A. 637,
104 Fed. 466.
Nor should the United States be permit-
ted to escape the consequences of the erro-
neous omission of its own representatives
by shielding itself behind the special pro-
Tision of the contract, making the decision
of the supervising architect as to the qual-
ity and quantity of materials furnished
under the contract final, or the general pro-
vision that the decision of the supervising
architect as to the proper interpretation of
the drawings and specifications shall be
final. These clauses do not and cannot re-
late to extra labor and material which the
specifications failed to embrace and the con-
tract did not cover, and for which the claim-
ant seeks compensation upon a quantum
meruit (Salt Lake City v. Smith, supra).
But if they did, and the supervising archi-
tect is to be regarded as the sole arbiter, the
claimant would not be bound by his mani-
fest mistake of law.
United States v. Farragut^ 22 Wall. 406,
420, 22 L. ed. 879, 883.
The appellant should not be compelled to
suffer loss by reason of errors in the speci-
fication admittedly made by the supervising
architect.
Moore t. United States, 46 Ct. CI. 172;
O'Hare v. District of Coliunbia, 18 Ct. CI.
646, 122 U. S. 640, 30 L. ed. 1243; Roettin-
ger V. United States, 26 Ct. CI. 391; Ax-
man V. Unified States, 47 Ot CL 637; Ripley
lOtO
V. United SUtes, 223 U. S. 695, 701, 702, 56
Lw ed. 614, 617, 618, 32 Sup. Ct. Rep. 351
Courts strictly construe agreements for
compulsory arbitrations (Hamilton v. Liv-
erpool klu k Q, Ins. Co. 136 U. S. 255, 34
L. ed. 423, 10 Sup. Ct. Rep. 945), becaust
they deprive the judicial tribunals of their
proper jurisdiction.
An equity court may reform a contract
for a mutual mistake, and place the parties
thereto in the position they would have oc-
cupied had the mistake not been made, but
we know of no authority for the position
that a court of chancery may remold a eon-
tract to accord with the intentions and un-
derstandings of one id the parties, at the
sole cost of the other party thereto.
Hearne v. New England Mut. M. Ins. Co.
20 Wall. 488, 490, 22 L. ed. 395, 396; Mof-
fett, H. k C. Co. V. Rochester, 178 U. S.
384, 44 L. ed. Ili2, 20 Sup. Ct. Rep. 957.
Assistant Attorney General Thompson
argued the cause and filed a brief for ap-
pellee :
The supervising architect being author-
iced to require underpinning where neces-
sary, his judgment cannot be questioned in
the absence of bad faith on his part.
Martinsburg & P. R. Co. t. March, 114 U.
S. 549, 29 L. ed. 255, 5 Sup. Ot. Rep. 1035;
Chicago, S. F. k 0. R. Co. v. Price, 138 U.
S. 185, 34 L. ed. 917, 11 Sup. Ct. Rep. 290;
Kihlberg v. United SUtes, 97 U. S. 398, 24
L. ed. 1106; United States v. Gleason, 175
U. S. 688, 44 L. ed. 284, 20 Sup. Ct. Rep.
228; Fruin-Bambrick Constr. Co. v. Ft
Smith k W. R. Co. 140 Fed. 465.
Though a word in a contract, when stand-
ing alone, may denote the singular, but,
when read with the rest of the contract, the
plural is indicated, it shall be so construed.
O'Brien v. Miller, 168 U. S. 287, 42 L.
ed. 469, 18 Sup. Ct Rep. 140.
Where the complaining party does not
rely upon the representations made by the
other party, but seeks from other quarters
means of verification of the st&tements
made, and actA upon information thus ob-
tained, he cannot be heard to say that be
was misled by the representations of the
other party.
Farnsworth ▼. Duffn«r, 142 U. S. 43, 35
L. ed. 931, 12 Sup. Ct Rep. 164.
[302] Mr. Justice MoKenna, after stat-
ing the case as above, delivered the Opinion
of the court:
The case is in narrow eompasa. It in-
volves for its solution the construction of
a contract, and the rules to guide such con-
struction we need not rehearse. To its
words we at first resort, but not to one or
a few of them, but to all of them as asio-
%A1 U. S.
1915.
UNITED STATES v. JIN FUEY MOY.
892-9M
elated, and aa well to the conditions to
which they were addressed and intended to^
provide for. The argument of appellant
ignores this rule. As we shall sec, it makes
one word dominant, controls all others by
it, and puts out of view the demands of
the physical conditions.
Tlie contract provided that whatever
walls would have to be removed and ex-
cavations made would have to be done in
such manner as not to endanger adjoining
property, and that all necessary shoring
and underpinning, etc., in connection there-
with, had to be done. To this provision
there was subsequently added that "in the
case of the building [italics ours] joining
the north line of the site the underpinning
of the main rear walls must be carried to
rock by a method satisfactory to the super-
vising!; architect."
But there were two buildings "joining the
north line of the site," and appellant se-
lected one as the full measure of its obliga-
tion to carry the underpinning to rock,
as required by the specifications, giving as
a reason, in a communication to the archi-
tect's office, that it did not consider that
there was any rear wall in No. 25 Pine
street, but only a metallic curtain wall.
The architect's office was not impressed
with the distinction between walls, and the
selection of one building joining the north
line of the site, but insisted that the un-
derpinning of the main rear walls of both
of the buildings joining such line must be
carried to rock by a method satisfactory to
the supervising architect. Appellant [303]
filed its appeal to the Secretary of the
Treasury, who affirmed the action of the
architect.
Counsel intimates unfairness on the part
of the supervising architect, but there is no
Just foundation for it; and, besides, there
ia no attempt to impugn the good faith of
the Secretary of the Treasury, who sus-
tained the decision of the architect, and the
contract explicitly provides that "the deci-
sion of the supervising architect as to the
proper interpretation of the drawings and
specifications shall be final." If we may
concede to appellant an ambiguity in the
specifications, arising from the use of
the singular word "building," instead of the
plural word "buildings," against the ma-
terial conditions which appellant's officers
had inspected and knew of, and against, aj
well, the other parts of the specifications,
which, among other things, call for "rear
walls" instead of a "rear wall," seemingly
implying two buildings, and not one only,
the contract, the decision of the architect
upon the dispute was final.
Judgment affirmed.
Mr. Justice McReynolds took no part in
the consideration or decision of this case.
[394] UNITED STATES, PlfT. in Err.,
V.
JIN FUEY MOY.
(See S. C. Reporter's ed. 394-402.)
Food and drugs — statutory restrictions
on possession of narcotics — con-
struction.
The ffrave doubts as to congressional
power which any other construction would
raise require that the provision of the act
of December 17, 1914 (38 Stat, at L. 789,
chap. 1), § 8, making it unlawful for "any
person" who has not registered or paid the
special tax imposed by that act to have in
his possession or control opium or coca
leaves, their salts, derivatives, or prepara-
tions, be construed as referring to those
only who are required by that statute to
register and pay the special tax, viz., all
persons who produce, import, manufacture,
compound, deal in, dispense, sell, distribute,
or give away, any of said drugs, notwith-
staudine the exception in such section in
favor of the possession of drugs prescribed
in good faith by a physician, since this ex-
ception stands alongside of one that saves
employees of registered persons and nurses
under the supervision of a physician, etc.,
and is so far vague that it may have been
intended to mean other persons carrying
out a doctor's order, rather than the pa-
tients.
[No. 626.]*
Argued December 7, 1915. Decided June
5, 1916.
I
N ERROR to the District Court of the
United States for the Western District
of Pennsylvania to review a judgment
quashing an indictment charging a con-
spiracy for the possession of opium and
salts thereof. Affirmed.
See same case below, 225 Fed. 1003.
The facts are stated in the opinion.
Assistant Attorney General Wallace ar-
^ed the cause, and, with Mr. W. C. Herron,
filed a brief for plaintiff in error:
Section 8 of the act should not be re-
stricted to those persons who are required
to register and to pay the tax.
Note. — As to constitutionality, construe-
at the utmost it could only be said that ^}^\ t?"^ ^^ ^', *^^"** prohibiting or
^, ^ * „ . , rwilating sale of poisons — see note to
there was ground for dispute, and, under ■ Katnnan y. Com. 30 L.ILA.(N.S.) 519.
60 li. ed. I0€1
SUPREME COUKT OF THE PMITBD 6TATES.
Ooi. Tbx,
United BUtw t. PorUle, ESS U. S. 27, S«
h. ed. in, 3S Sup. CL B«p. 1.
The decUion of the court below goe« only
on eonstruction, and not the const itutionkl-
itj of the >ct; heDCe, the only queation open
on tbii writ of error is thst of the con-
•truction of the act.
United SUtee t. Barber, 219 U. S. 72, &6
L. ed. 09, 31 Sup. Ct Rep. 209; United
States V. Keitel, 211 U. S. 370, S3 L. ed.
230, 29 Sup. Ct Rep. 123; United SUtei v.
MeMtill, 215 U. S. 31, 64 L. ed. TO, 30 Sup.
Ot Rep. 19; United States v. Portsle, 235
U. S. 31, 59 L. ed. 112, 35 Sup. Ct. Rep. 1
jUsiatant Attorney General Wstlace fllet
ft leparate brief for plaiutlff in error:
It the Kct, under recognised rules of In
terpretation, is subject to but one reaaon
ftble reading, — and we insist that such ii
the esse here, — this court will not substi
tnta a different reading of ita own, tendinf
merely to make the act eonstitutional.
United Statea t. Bennett, 232 U. S. 200
304, S8 L. ed. 612, 010, 34 Sup. Ct Rep
4SS.
We may not read the words "required U
register" Into g 8 if we can otherwise give
It a reasonable meaning.
United States t. Goldenherg, 168 U. S.
95, 42 L. ed. 394, 18 Sup. Ct. Rep. 3; United
Statea V. Portale, 232 U. S. 27, 30, 59 L
ed. Ill, 112, 35 Sup. Ct. Bep. 1.
It the words be taken according to theii
natural si^ifieatlon, it cannot be reason-
ably read otherwise than as the govemnent
reads It. It is therefore self -interpreting.
Black, Const Law, g 40, p. 08; Newell v.
P«>ple, 7 N. Y. 07.
It by one mode of interpretation the right
■mat become shadowy and unsubstantial and
without any ronedial power adequate to
the end, and by another mode it will attain
tta just and secure ita manifest purpose, it
would seem, upon principles of reasoning,
ftbsolutety irresistible that the latter ought
to prevail.
Prigg T. Pennsylvania, IS Pet 539, 012,
10 L. ed. 1060, 1088.
A title, though in a sense part of the
met, has little, if any, weight in interpreta-
tion, where, aa in congressional enactments,
thare is no requirement that the subject of
tlia act shall conform to the title.
Lapina v. Williams, 232 U. S. 7B, S8 L.
ed. 515, 34 Sup. Ct. Rep. 198.
Aa an exercise of the treaty-making power
this act is conetitutional.
Ware v. Hylton, 3 Dall. 199, 1 L. ed. 668;
Clarke v. Harwoode, 3 Dall. 342, 1 L. ed.
688; Chirac v. Chirac, 2 Wheat 250, 4 L. ed.
234; Hughes v. Edwards, 0 Wheat. 489, 0
L. ed. 142; Cameal v. Banks, lO Wheat
181, « -L. ed. 297 ; Eauenstein v. Lynham,
loss
100 U. 6. 4B3, 25 L. ed. S28; Oeofroy v.
Rigg^ 133 U. S. 2SB, 33 L. ed. S42, 10 Snp.
•Ct Rep. 295; Devlin, Treaty-Hakli^ Power,
H 239-296; Robasae's Snoceaalon, 40 U.
Ann. 1406, 22 So. 787; Tellefsen t. Fee.
168 Haas. 188, 4S L.RJL 481, SO Am. St
Rep. 379, 46 N. E. 562; McBvoy r. Wynun,
101 Mass. 276, 114 Am. St Rep. 801, 77 N.
E. 379 ; Mackrauie r. Hare, 239 U. S. 299,
ante, 297, 36 Sup. Ct Rep. 106; Extant and
Limitations ot the Treaty-makiBg Power, I
Am. Journal of International Iaw, pi. 2, pp.
636, 665, 670.
When action la taken within the limit*
ot a delegated power, that action ia sd-
preme over all laws of the stAtea by the
very tetmk ot the Oonstitntion ItaeU.
Gibbons v. Ogden, 9 Wheat 209, 211, S
L. ed. 73, 74; Leiey v. Hardin, 135 U. S.
100, 34 L. ed. 128, 3 Inters. Com. Rep. 36,
ID Sup, Ct Rep. 81; MeDermott v. Wis-
consin, 228 U. S. 115, S7 U ed. 764, 47
L.R.A.(N.B.) 984, S3 Sup. Ct Rep. 431,
Ann. Cas. lOlSA, 30.
Giving the term "police power" a more
restricted meaning, the authorlUea seem ta
permit the Federal government, under the
treaty -making power, to enter this evai
more limited field.
Worcester v. Georgia, 8 Pet. 616, 8 L. ed.
483; United States v. 43 GaUons ot Whi»
key (United States v. lariviere) 93 U. S.
188, 23 L. ed. 846; Compagnie Francaise De
Navigation B Vapeur v. State Bd. of Health,
186 U. S. 380, 46 L. ed. 1209, 22 Sup. Ct
Bep. 811; Haiorono v. Baltimore & 0. B.
Co. 213 U. S. 268, 63 L. ed. 702, 29 Sup. Ct
Rep. 424; Patsone v. Pennsylvania, 232 U.
8. 138, 68 L. ed. 639, 34 Sup. Ct Bep. 281;
He Roas, 140 U. S. 463, 36 L. ed. 581, 11
Sup. Ct. Rep. 897; United Statea v. Por-
tale, 235 U. S. 27, S9 L. ed. Ill, 35 Sup. Ct
Rep. 1; Ho Ah Kow v. Nunan, 6 Sawy. 552,
Fed. Cas. No. 8,546; Baker v. Portland. 6
Sawy. 568, Fed. Oas. No. 777; Re Ah Chong,
6 Sawy. 461; Re Parrott, 1 Fed. 481; 82
Ops. Atty. Gen. 214.
Mr. H. Ralph Barton argued the causey
Mtd, with Mr. George X. McLnnahan, filed
a brief for defendant in error:
Statutes should receive ft aenalMe e«a-
itruction to avoid an absurd conduaion.
Lau Ow Bew V. United Statea, 144 U. S.
(7. 36 L. ed. 340, 12 Sup. Ct Bep. S17.
The CMistruction placed upon g C by tbi
lower court in this case is the same aa that
;iveD in the case ot United Statea t. Woods,
>24 Fed. 278, and United State* v. WiUm,
!26 Fed. 82.
It the meaning ot the statute la donbttel,
:he title ot the act, if expreaaive, may have
;he effect to resolve the doubts, and la tlure-
'ore entitled to eonsideration.
•41 V. B.
1915.
UNITED STATES ▼. JIK FUEY HOY.
United States ▼. Fisher, 2 Cranch, 858,
886, 2 L. ed. 804, 814.
The words "for other purposes" are held
to express no specific purpose, and are not
to be considered in construing the title.
Sutherland, Stat. Constr. 2d ed. § 122.
The act deals with the registration and
payment of the special tax by those who
produce, import, etc., the drugs named, and
the words in § 8 are limited accordingly.
United States t. Palmer, 3 Wheat. 610,
681, 4 L. ed. 471, 477.
The taxing clause in § 1 relates entirely
to persons who produce, import, etc., certain
drugs, and the prohibition in § 8 cannot be
more extensiye than the language of S 1.
United States v. Shelley, 229 U. S. 239,
67 L. ed. 1167, 33 Sup. Ct Rep. 636.
To construe the words "any person" in §
8 as is contended for by the United States
would be to invade the private rights of
citizens of the states entirely within the
jurisdiction' of the state, and would accord-
ingly be unconstitutional.
United States ▼. Dewitt, 9 Wall. 41, 19 L.
ed. 593; Keller ▼. United SUtes, 213 U. S.
138, 53 L. ed. 737, 29 Sup. Ct. Rep. 470, 16
Ann. Cas. 1066.
A convention or treaty is of no superior
efficacy to a law of Congress. Each is
equally the supreme law of the land (Whit-
ney V. Robertson, 124 U. S. 190-194, 31 L.
ed. 386-388, 8 Sup. Ct Rep. 456), subject,
however, to all the limitations of the Con-
stitution (Holmes v. Jennison, 14 Pet. 650-
669, 10 L. ed. 584-593; Holden t. Joy, 17
Wall. 211-243, 21 L. ed. 523-534; United
SUtes V. 43 Gallons of Whiskey (United
States ▼. Lariviere) 93 U. S. 188, 23 L. ed.
846; Johnson v. Gearlds, 234 U. S. 422, 58
L. ed. 1383, 34 Sup. Ct. Rep. 794).
The act of Congress of January 17, 1914
(one of the system of laws following the
opium convention), forbidding the importa-
tion of opium for smoking purposes, is not
materiaL It does not enable or authorize
Congress to pursue drugs within the states
to ascertain their ultimate use.
Keller v. United States, 213 U. S. 138, 53
Ifc ed. 737, 29 Sup. Ct Rep. 470, 16 Ann.
Gas. 1066.
Mr. Levi Cooke also argued the cause
for defendant in error.
Mr. William Strite McDowell also filed a
brief for defendant in error:
The Harrison drug act, like any other act
of Congress, must be construed to avoid ab-
surdities.
United SUtes ▼. Kirby, 7 Wall. 482, 486,
19 L. ed. 278, 280.
The Harrison drug act does not apply to
mere consumers.
€0 li. ed.
United SUtes ▼. Woods, 224 Fed. 280;
United States t. Wilson, 225 Fed. 84.
The words "any person" in § 8 can only
apply to the persons upon whom the act was
intended to operate, to wit: Those men-
tioned in the title and previous sections.
Martin v. Ford, 6 T. R. 101.
Section 8 of the act is only intended to
create a sUtutory rule of evidence.
United SUtes v. Woods, supra.
Presumed crime cannot be the basis of
valid legislation.
United SUtes ▼. Brown, 224 Fed. 185.
Hie title of an act constitutes a part of
it, though only a formal part
Hadden v. The Collector (Hadden v. Bar-
ney) 5 WalL 107, 110, 18 L. ed. 518, 519.
It will not satisfy the demands of a con-
stitutional government to say that this or
that construction is the beneficial intent or
policy of the government, or the reason of
ite enactment
Hadden v. The Collector, supra.
To construe such act as a police regular
tion te suppress the traffic in opium within
the severs! sUtes is to render the act un-
constitutional.
United SUtes ▼. Dewitt, 9 Wall. 41, 44, 19
L. ed. 593, 594.
The presumption is against the unwar-
ranted exercise of legislative authority.
Parsons v. Bedford, 3 Pet 433, 448, 7 Lw
ed. 732, 738; Grenada County ▼. Brogden
(Grenada County v. Brown) 112 U. S. 261,
269, 28 L. ed. 704, 707, 5 Sup. Ct. Rep. 125.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is an indictment under § 8 of the
act of December 17, 1914, chap. 1, 38 SUt
at L. 785, 789. It was quashed by the dis-
trict court on the ground that the statute
did not apply to the case. 225 Fed. 1003.
The indictment charges a conspiracy with
Willie Martin to have in Martin's posses-
sion opium and salts thereof, to wit, one
dram of morphine sulphate. It alleges that
liartin was not registered with the col-
lector of internal revenue of the dis-
trict, and had not paid the special tax
required; that the defendant, for the
purpose of executing the conspiracy, is-
sued to Martin a written prescription
for the morphine sulphate, and that he
did not issue it in good faith, but knew
that the drug was not given for medi-
cinal purposes, but for the purpose of sup-
plying one addicted to the use of opium.
The question is whether the possession con-
spired for it tdthin the prohibitions of the
act.
The act is entitled, "An Act to Provide
for the Registration of, with Collectors of
Internal Revenue, and to Impose a Special
399-402
SUPREME CX)URT OF THE UNITED STATES.
OoT. Temm.,
Tax Upon, All Persons Who Produce, Im-
port, Manufacture, Compound, Deal in, Dis-
pense, 5^11, Distribute, or Give Away Opium
or Coca Leaves, Their Salts, Derivati?fs,
or Preparations, and for Other Purposes."
By § 1 the persons mentioned in the title are
required to register, and to pay [400] a
special tax at the rate of $1 per annum,
with certain exceptions, and it is made un-
lawful for the persons required to register
to produce, etc., the drugs without having
registered and paid the special tax. All
provisions of law relating to special taxes
are extended to this tax. By § 2 it is de-
clared unlawful for any person to sell or
give away the drugs mentioned without a
written order, provided for, excepting de-
liveries by physicians, etc., or on their
order, and certain other cases. Then, after
provision for returns, it is made unlaw-
ful by § 4 for any person who shall not
have registered and paid the special tax
to send, carry, or deliver the drugs in such
wmmerce as Congress controls, again with
exceptions. By § 6 preparations containing
certain small proportions of the drugs are ex-
cluded from the operation of the act, under
conditions. By § 7 internal revenue tax
laws are made applicable, and then comes
§ 8, under which the indictment is framed.
By § 8 it is declared unlawful for "any
person" who is not registered and has not
paid the special tax to have in his pos-
session or control any of the said drugs,
and "such possession or control" is made
presumptive evidence of a violation of this
section and of § 1. There is a proviso that
the section shall not apply to any employee
of a registered person and certain others,
with qualifications, or to the possession of
sny of the drugs which have been prescribed
in good faith by a physician registered un-
der the act, and to the possession of some
others. And finally it is provided that the
exemptions need not be negatived in any
indictment, etc., and that the burden of
proving them shall be upon the defendant.
The district judge considered that the act
was a revenue act, and that the general
words, **any person," must be confined to
the class of persons with whom the act
previously had been purporting to deal. The
government, on the other hand, contends
that this act was passed with two others in
order [401] to carry out the international
opium convention (38 Stat, at L. 1929);
that Congress gave it the appearance of a
taxing measure in order to give it a coating
of constitutionality, but that it really was
a police measure that strained all the
powers of the legislature, and that § 8
means all that it says, taking its words in
their plain, literal s^nse.
A statute must be construed, if fairly
10t4
possible, so as to avoid not only the con-
clusion that it is unconstitutional, but al-
so grave doubts upon that score. United
States ex rel. Atty. Gen. v. Delaware k
H. Co. 213 U. S. 366, 408, 63 L. ed. 836,
849, 29 Sup. Ct. Rep. 527. If we could
know judicially that no opium is produced
in the United States, the difficulties in this
case would be less; but we hardly are war-
ranted in that assumption when the act
itself purports to deal with those who pro-
duce it. § 1. Congress, at all events, con-
templated production in the United States,
and therefore the act must be construed on
the hypothesis that it takes place. If
opium is produced in any of the states,
obviously the gravest question of power
would be raised by an attempt of Congress
to make possession of such opium a crime.
United SUtes v. De Witt, 9 Wall. 41, 19
L. ed. 593. The government invokes article
6 of the Constitution, that treaties made
under the authority of the United States
shall be the supreme law of the land. But
the question arises under a statute, not
under a treaty. The statute does not pur-
port to be in execution of a treaty, but
calls itself a registration and taxing act
The provision before us was not required by
the opium convention, and whether this sec-
tion is entitled to the supremacy claimed
by the government for treaties is, to say
the least, another grave question ; and, if it
is reasonably possible, the act should be
read so as to avoid both.
The foregoing consideration gains some
additional force from the penalty imposed
by § 9 upon any person who violates any
of the requirements of the act. It is a fine
of not more than $2,000, or imprisonment
for not more than [402] five years, or both,
in the discretion of the court. Only words
from which there is no escape could warrant
the conclusion that Congress meant to strain
its powers almost if not quite to the break-
ing point in order to make the probably
very large proportion of citizens who have
some preparation of opium in their posses-
sion criminal or at least prima facie crimi-
nal, and subject to the serious ptmishment
made possible by § 9. It may be assumed
that the statute has a moral end as well
as revenue in view, but we are of opinion
that the district court, in treating those
ends as to be reached only through a reve-
nue measure, and within the limits of a
revenue measure, was right.
Approaching the issue from this point of
view we conclude that "any person nol
registered" in § 8 cannot be taken to mean
any person in the United States, but must
be taken to refer to the class with which
the statute undertakes to deal, — the personi
who are required to register by § 1. It is
241 U. &
igiC. RUSSO-CHINESE BANK v. NAT. BANK UF COMMBHCB. 402, 403
true that tlia exemptioD of possetaioo of icj, and bill of sale attached, la entitled to
druge prescribed in good faith by a pbjsi- demand an accounting from ita correipond-
cian ia a powerful argument, Uken by it- ""t ^'^"^ for 0>e availe of the draft, and to
mU, for a broader meaning. But every '*"'* '^.'f*'-'"'u'^' *''*■ 'TT'^' !?"' *"
.. lun «f «««.». ...ti^^ i. ,7..:^.— ...J .1. nioney which it had received irom the cor-
queetion of con.truet,on » unique, and an ^^poident bank upon the draft, although
argument that would prevail m one case jj ^^^ ^ave had a guaranty agaloat 1.^
may be inadequate In another. Thla ex- given by the drawer of the draft.
emption etanda alongaide of one that aavea iFot other cises, lee Bank*, I. •, 1, In Digest
employee! of regletered periona, aa do SI 1 ^'"'- ^^ ^'''*-'
and i, and nuriei tinder the ■uperviilon of ^^^ 244 1
a physician, etc., aa does g 4, and ia ao tar '^
,.(.,. tb.t Urn., k«« lad to mind ott.r 4, ^ ^ „ jj ^ ,j „„ ^^^
peruiiiB carrying out a doctor'a order, rath- Juno 6 1016
«r than the patienta. Hie general purpoao '
aeenia to be to appl, to poaaeaalon uemp. ^^ „^^ „, (.,„,„„„ „ tt, „„|^
tion, atailar to tho» applied to reglatra- {J g^^, circuit Court ol Appeala lor
lion. Even II lor a moment the «»pe and „,. ^^^ circuit to r.rle. a judgment
Intent ol the act were loat a.ght ol the pro- ,|,,^^ „ , ^„„^ ,^„ „, „ ,'„,» ^^ ,
.1.0 1. not enough to orereome the dominant j„aju„„ „, ,b, d,,,,,.! c„„,i ,„ „,,
■■"• ■■•' " ' """d- Wealem Dl.lrlct ol Oregon to la.or ol de-
tendant Id an action by a collecting bank
to recover from a forwarding bank money
wliich the former had paid to the latter on
account of a draft aent for collection. Af-
Sm aane ease below, 124 C. C. A. 434,
20S Fed. 64S.
The facta are atated in the opinion.
*■ Mr. Warren Oregrory argued the cauae,
NATIONAL BANK OF COMMERCE OF »nd, with Meaera. George H. Whipple and
SEArrLE, WASHINGTON. t. L. Stile., filed a brief for petitioner:
,o o n n _. _i ^ jnt 110 X "^^ t"*l court proceeded upon the aa-
(See 8. C. Reporter-, ed. 403-<lB.) ^^p^.^^ ^^^^ ^J^ ^^ ^ ^^';^^.^^^ j,^^
Appeal — rereralbl* error - inatruc- '"='' '■■umption muat neceaaarily be prem-
ttons — liability ol colltsctlng bank. ""* "pon the propo.ition that the new obli-
1. Instructing the jury that ■ draft re- gatioa cxtinguiBhed the claim againat
celved by a bank for collection, with bill. Clarkaon ft Company on the accepted drnft.
of lading, insurance policy, and bill of sale The pleadings, the testimony, and tlie con-
attached, under instruetione to deliver the juct of the partlei conclusively demonstrate
documenta on payment, must be regarded ^ eontrarv
as paid. «. as to render the collecting bank 'g Wharton
accountable therefor to the forwarding bank. ™ „ , ^ ^ 7, ,V. » , V ^ „
if the collecting bank permitted the .frawees '■ Walker, 4 Barn. & C, 164, 3 L. J. K. B.
(who were also the agent, of the carrier), 183, fl DowL * R. 288; Hyde v. Booraem,
upon acccpling the draft, to take over the 16 Pet. ISS. 10 L. ed. 925; Union Bank t.
ahipment under a atipulation to recognize Stafford, 12 How, 327. 13 L. ed. 1008.
the bank as owner, and an agreement to ae- if we a.aume that the Port Arthur branch
count to it for the proceeds of sale, afforda ^ contrary to ita inatructions, permit
no ground for reveraal, where the court jm- cUrk«.n U, take over the flour, then, to the
mediately thtreatter aaid that the proceed. . . , . , , ... ■. ^i .
of the aa'le under Coe agreement we^ to be "^^ '' *^* "•'"« ">' »*>. «cur.ty that wa.
payment only if they equaled the amount of thereby releaMd, It may have been reBponai-
the draft, and otherwise were to be payment We. There might have been a conver.ion
pro tanto, and where the evidence would to far aa the releaaed Bour wa. concerned,
not have warranted a flnding that the value but this converaion could not eitend fur-
of the shipment waa lea. than the amount ther than the amount and value of tha Bout
of the draft. _ releaaed
[For other e*B«i. Me Appe.l and Bnror, VIII. ■"■""=■«'' , _ , _.„..„, ^
m, 4, Id Dlgeat Sup. Ct IMS.) Commercial Bank v. Tint State Bank fc
Baoka — coUecUona — UablUty of col- T. Co. — Tax. Civ. App. — , 163 S. W. 1176.
lectins bank. If a pledgee converts collateral to bis own
8. A bank forwarding a draft for col- uae, It may operaU aa a payment of the
lection, with billa of lading, In.uranee pol- ei^,a to tha «t*nt of the value of the con-
NoTK.— Aa to liability of collecting bank '*'*«d eollatwal, hut no further,
for n«ligence— aee note to Jefferaon County Randolph, Com. Paper, 2d ad. } 796j
Sav. Bank v. Hendriz, 1 L.RJl(N.S.) 240. Hunt ▼. Nnert 10 Fl<^- S04, SO Am. Dm:.
■0 L. ed. 1«6B
SUPREME COURT OF THE UNITED STATEa
Got. Tkuc,
616; Alden t. Camden Anchor-Rockland
Mach. Co. 107 Me. 508, 78 AtL 977.
The vice of a wrong rule in a charge of
the court is not extracted by the fact that
the right rule was also given therein, be-
cause it is impossible to tell by which rule
the jury was governed.
Armour k Co. v. Russell, 6 L.RA.(NJ3.)
602, 75 C. C. A 416, 144 Fed. 614.
The instruction specified as error is in-
separably connected with the special verdict,
and, if erroneous, the special verdict did
not cure such error.
Boston k A. R. Co. v. O'Reilly, 158 U. S.
334, 39 L. ed. 1006, 15 Sup. Ct. Rep. 830;
Atchison, T. ft S. F. R. Co. v. McClurg, 8
C. C. A. 322, 19 U. S. App. 346, 59 Fed.
860; Deery v. Cray, 5 Wall. 795, 18 L. ed.
653.
The Port Arthur branch was not the
owner either of the documents or the flour,
for two reasons: (a) that the relationship
between these banks was that of principal
and agent, and not of vendor and vendee;
and (b) because the documents were accom-
panied by an invoice or a bill of sale from
the Centennial Mill Company to Clarkson
k Company, showing that the Port Arthur
branch was acting as a collection agent only,
and that it oould not sell the flour to any-
one other than Clarkson. ,
Grant, Banks k Bkg. 6th ed. p. 53 ; Morse,
Banks k Bkg. 4th ed. § 217; Second Nat.
Bank v. Bank of Alma, 99 Ark. 386, 138 S.
W. 472, 2 N. C. C. A 737; Nebraska Hay
k Grain Co. v. First Nat. Bank, 78 Neb. 334,
9 L.RA..(N.S.) 251, 126 Am. St. Rep. 602,
110 N. W. 1019; Hambro v. Casey, 110 U.
S. 210, 28 L. ed. 125, 3 Sup. Ct. Rep. 369;
Balbach v. Frelinghuysen, 15 Fed. 675; Elm
City Lumber Co. v. Childerhose k Pratt. 167
N. C. 34, 83 S. £. 22; W. J. Barton Seed,
Feed k Implement Co. v. Mercantile Nat.
Bank, 128 Tenn. 320, 160 S. W. 848; Ladd
k T. Bank v. Commercial State Bank, 64
Or. 486, 49 L.R.A.(N.S.) 657, 130 Pac.
975; Commercial Bank v. First Nat. Bank,
— Tex. Civ. App. — , 153 S. W. 1175;
American Thresherman v. Citizens' Bank
(American Thresherman v. De Tamble
Motors Co.) 154 Wis. 366, 49 L.RA.(N.S.)
644, 141 N. W. 210; Price Brokerage Co.
V. Rushfeldt, 185 Mo. App. 32, 171 S. W.
976; Wisconsin M. k F. Ins. Co. Bank v.
Bank of British N. A 21 U. C. Q. B. 284;
National Bank v. Merchants' Nat. Bank, 91
U. S. 92, 23 L. ed. 208; Dickerson v. Wason,
47 N. Y. 439, 7 Am. Rep. 455; Tyson v.
Western Nat. Bank, 77 Md. 412, 23 L.R.A.
161, 26 Atl. 520; Midland Nat Bank v.
Brightwell, 148 Mo. 358, 71 Am. St. Rep.
608, 49 S. W. 994; Commercial Nat. Bank
V. Armstrong, 39 Fed. 684 ; Bank of Bay |
Biscayne v. Monongahela Nat. Bank, 126
1066
Fed. 436; Le Caoz v. Eden, 2 DoogL K. B.
594; Bancroft ▼. Bancroft, 110 CaL S74, 42
Pac. 896.
A collecting hank cannot sail the goods
represented by a bill of lading to a third
party without notice to the sender.
Gregg V. Bank of Colombia, 72 & C. 468,
110 Am. St. Rep. 63S, 52 & K. 103.
Usage or eustom cannot be invoked in
contradiction of an express contract.
Smith V. National Bank, 101 Fed. 226;
Morse, Banks k Bkg. i 223; Charles ▼. Car-
ter, 06 Tenn. 607, 36 S. W. S06.
A usage or custom, to be of any effect,
must be shown to have prevailed at the
place to which the goods were sent, and not
from which they came.
Wisconsin M. k F. Jna Co. Bank ▼. Bank
of British N. A. 21 U. C. Q. B. 284; Ehn
City Lumber Co. v. Childerhose k Pratt,
167 N. C. 34, 83 S. E. 22.
Messrs. Warren Gregory and George H.
Whipple also filed a reply brief for peti-
tioner.
Mr. E. 8. McCord argued the cause, and,
with Mr. J. A Kerr, filed a brief for re-
spondent:
Under the plea of payment, and certainly
under the plea of negligence upon the part
of the plaintiff, the defendant would be
permitted to show that the draft had been
paid in money or by dieek or promissory
note to Clarkson k Company and would be
permitted to show facts rendering the Port
Arthur branch liable to it by reason oi the
negligent handling of the shipment bj the
plaintiff.
Buddicum v. Kirk, 3 Cranch, 204. 2 U
ed, 444.
Where the owner of goods shipped them
upon a bill of lading whereby they were
consigned to his own order, at the same
time drawing in favor of a banking partner-
ship "for collection" a draft upon the per-
son to whom the goods were intended to be
delivered upon payment of the draft, and
also attaching to the draft the bill of
lading, so indorsed as to give the partner-
ship control of the possession of the goods,
a delivery of them by this firm to the
drawee of the draft, without requiring its
payment, was, as against the owner, a con-
version.
Hobbs V. Chicago Packing k ProvlsioB
Co. 98 Ga. 576, 58 Am. St Bep. 320, 85
S. E. 584.
Where a pledgee, without spedfie instnie-
tions, takes over Uie collateral, or releasei
the collateral from the pledge, such release
operates in law as payment of the claim; si
least, to the extent of the value of the
collateral.
Hunt V. Nevers, 16 Pick. 600, 26 Am. Dee.
J41 V. 8.
1015.
RUSSO-CniNESE BANK t. NAT. BANK OF GOHMBRCE.
406
616; 2 Randolph, Com. Paper, § 795; Cocke
Y. Chaney, 14 Ala. 65 ; Weetphal t. Ludlow,
2 McCrary, 505, 6 Fed. 348.
The legal title, both under the statutes
of the state of Washington and under the
general rules of law, to the bills of lading
as well as the flour represented by it, passed'
to the Husso-Chinese bank under the in-
dorsements and deliveries of the draft and
the bills of lading to it by the National
Bank of Conunerce.
Shaw T. North Pennsylvania R. Co. (Shaw
T. Merchants' Nat. Bank) 101 U. S. 557,
25 L. ed. 892; North Pennsylvania R. Co.
V. Commercial Nat. Bank, 123 U. S. 727,
31 L. ed. 287, 8 Sup. Ct. Rep. 266; The
Carlos F. Roses, 177 U. S. 655, 44 L. ed.
929, 20 Sup. Ct. Rep. 803.
The steamship company had the right to
release the flour upon the production of the
bills of lading. The bills of lading were
held by the Port Arthur bank. If the Port
Arthur bank held the legal title to and
possession of the bills of lading, that bank
was the only person who had the legal
right to direct the steamship company to
release the flour; and the evidence is un-
contradicted that the Port Arthur bank di-
rected the steamship company to deliver
the flour to Clarkson k Company, mer-
chants. No other person had the right to
direct the steamship company to release
the flour, — not even the consignee of the
flour, the Centennial Mill Company, could
have exercised such right.
First Nat. Bank v. Northern P. R. Co.
28 Wash. 439, 68 Pac. 965; Milwaukee Nat.
Bank v. City Bank, 103 U. S. 668, 26 L. ed.
417.
By the actions of the plaintiff at Port
Arthur the defendant was deprived of the
flour and of the proceeds of the sale thereof,
and the Port Arthur branch rendered itself
liable to the defendant for the full value
of the flour, which the jury must have
found under the evidence at least equaled
the amount of the draft. The defendant
never received either the flour or the pro-
ceeds thereof on account of the draft of
December 11th, 1903. Consequently when
plaintiff paid the money for the recovery of
which it is now suing, on November 9th,
1904, it had received payment of the orig-
inal draft from Clarkson k Company, or
at least had rendered itself liable to the
defendant by reason of its negligence in the
handling of the shipment securing the draft
in question.
Hobbs T. Chicago Packing k Provision
Co. 98 Ga. 576, 58 Am. St. Rep. 820, 25
8. E. 584; Montague v. Stelts, 37 S. C. 200,
34 Am. St. Rep. 736, 15 S. E. 968; Means v.
Bank of Randall, 146 U. S. 620, 36 L. ed.
1107, 13 Sup. Ct. Rep. 186; Dows v. Na-
«0 Ij. ed.
tional Ezch. Bank, iTl U. S. 618, 23 L. ed.
214 ; First Nat. Bank v. Fourth Nat. Bank,
77 N. T. 820, 33 Am. Rep. 618; 1 Morse,
Banks k Bkg. 3d ed. §§ 215, 219; Allen ▼.
Suydam, 20 Wend. 321, 32 Am. Dec. 555;
Donlan v. Clark, 23 Nev. 203, ^5 Pac. 1;
Exchange Nat. Bank v. Third Nat. Bank,
112 U. S. 276, 28 L. ed. 722, 5 Sup. Ct. Rep.
141; Smith v. Miller, 43 N. Y. 171, 3 Am.
Rep. 690.
Where the n^ligence of the collecting
agent has been established and loss has fol-
lowed, the face of the draft is prima facie
the measure of damages which the party
interested therein has sustained, and the
burden is upon the collecting bank to show
what the actual damage was, or to show
that no damage has been actually suffered
by him, in defense of an action brought
against it.
First Nat. Bank v. Fourth Nat. Bank, 77
N. Y. 320, 33 Am. Rep. 618; Second Nat.
Bank v. Bank of Alma, 99 Ark. 386, 138
S. W. 472, 2 N. C. C. A. 737.
The presumption of solvency has been
overcome.
Sahlien v. Bank of Lonoke, 90 Tenn. 221,
16 S. W. 373; 2 Benjamin, Sales, 4th Am.
ed. S 1243.
The National Bank of Commerce, acting
for the Centennial Mill Company, ought to
be permitted to set up any defense against
the Port Arthur bank which the Centennial
Mill Company might have interposed.
Second Nat. Bank v. Bank of Alma,
supra; Wagnon v. Pease, 104 Ga. 417, 80
S. E. 895.
The Port Arthur bank, in assuming to
make the collection of the draft of Decem-
ber 11th, 1903, was acting for the real and
beneficial owner of the draft, no matter who
that owner might be.
Bank of Washington t. Triplett, 1 Pet.
25, 7 L. ed. 37; Diamond Mill Co. v. Groes-
beck Nat. Bank, 9 Tex. Civ. App. 31, 29
S. W. 169; Exchange Nat. Bank v. Third
Nat. Bank, 112 U. S. 276, 28 L. ed. 722, 5
Sup. Ct. Rep. 141; 1 Morse, Banks k Bkg.
3d ed. § 251 ; M'Kinster v. Bank of Utica,
9 Wend. 46.
Mr. Justice Hughes delivered the opin-
ion of the court:
The Russo-Chinese Bank brought this ac-
tion to recover back money which it had
paid to the National Bank of Commerce of
Seattle. Judgment of nonsuit was entered
on the first trial and was reversed by the
circuit court of appeals. 109 C. C. A. 398,
187 Fed. 80. On the second trial, there was
a verdict for the defendant, and the judg-
ment entered accordingly was affirmed. 124
C. C. A. 434, 206 Fed. 646. The case comes
here on certiorarL
1067
407-409
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
[407] The facta are these: In December,
1903, the Centennial Mill Company, of Seat-
tle, shipped bj the steamship "Hyades" of
the "Puget Sound-Oriental Line" 35,312
quarter sacks of fiour to be transported to
Port Arthur, or Dalny, and to be there de-
livered "unto shipper's order or to his or
their assigns (notify Clarkson k Com-
pany)." In accordance with the usual
course of business the Centennial Mill Com-
pany drew its draft, dated December 11,
1903, on Clarkson & Company, for $30,-
194.80, payable ninety days after sight, to
the order of the National Bank of Commerce
(with exchange and collection charges), and,
attaching thereto the original and duplicate
of the bill of lading for the shipment above
described (which was indorsed in blank),
the policy of insurance, and bill of sale to
Clarkson & Company, delivered the draft
to the National Bank of Commerce, of
Seattle, which paid the amount of the draft
to the Mill Company. This bank then for-
warded the draft, with the documents, to
the Port Arthur branch of the Russo-
Ohinese Bank for collection, stating in the
letter of transmittal: "Documents are to
be delivered on payment." The letter, with
the draft and documents, was received on
January 22, 1904.^ In acknowledging re-
ceipt, the Russo-Chinese Bank used the
usual form of letter, which stated that spe-
cific instructions must be given concerning
disposition of bills and documents, and
storage of goods, in case the draft were
dishonored. No such instructions were
given. The draft was presented for accept-
ance on January 23, 1904, and was accepted
on January 30, 1904, by Clarkson & Com-
pany, and the Seattle bank was notified ac-
cordingly. The acceptance fixed April 30,
1904, as the due date, according to the
tenor of the draft, and on the expiration of
two days' grace allowed by the Russian law
it was protested on May 3, 1904. There
was evidence that the draft, with [408]
deed of protest, was mailed to the Seattle
bank on May 26, 1904; and there was
counter testimony that it never was re-
ceived.
The Russo-Japanese War was formally
declared on February 10, 1904. From
February 9th there was a stringent water
blockade of Port Arthur, and about May 3d
the investment was made complete by the
Japanese land forces. Port Arthur fell on
January 2, 1905, and thereupon the Jap-
anese authorities took possession of all the
books and documents of the Russo-Chinese
bank at Port Arthur; these were retained
until March, 1906, when they were returned
iFor convenience, we give the dates "New
Style."
1068
to the bank and taken to its home office at
St. Petersburg.
Clarkson & Company, an importing firm
having its principal place of business at
Vladivostok and a branch office at Port
Arthxir, were also the agents at the latter
place of the steamship company which car-
ried the fiour. On April 29, 1904, the Port
Arthur branch of the Russo-Chinese Bank
wrote to the Shanghai branch of the bank
(in answer to an inquiry requested by a
representative of the Centennial Mill Com-
pany) that the bank had "all shipping
documents," and added: "The flour rela-
tive to the first three bills" (including the
one in question) "is in the hands of Clarkson
& Company and has been sold by them.
They promised to take up the bills as soon
as they get the money of their sale . . .
Bill No. 1559/7035" (that is, the draft here
involved) "is due to-morrow and eh all be
protested if not paid." It was further
stated that the fact that Clarkson & Com-
pany had obtained possession of the goods,
although the bill of lading was held by the
bank, was due to their being the steamship
agents, and could not be prevented. On
July 7, 1904, the Seattle bank wrote to the
Russo-Chinese Bank at St. Petersburg that
Clarkson had advised the drawer that this
draft, and others, had been paid before ma-
turity. The Russo-Chinese Bank replied, in
substance, that it was not in a [409] posi-
tion to trace the matter, but would investi-
gate it as soon as possible. There was fur-
ther correspondence in which the Seattle
bank set forth its information as to the pay-
ment of the draft, and the Russo-Chinese
Bank reiterated its inability to ascertain
the facts. Finally, in response to the de-
mand of the Seattle bank for the return of
the bill of lading attached to the draft, or a
remittance of its amount, the Russo-Chinese
Bank, St. Petersburg, under date of Novem-
ber 9, 1904, forwarded to the Seattle bank a
check for $36,013.70 (being $36,194.80, the
face of the draft, less commission and
charges), and added: "It remains, of course,
however understood that in case your above
remittance proves not to have been paid for
by Clarkson k Co. you are held responsible
to refund the amount of our to-day's cheque."
The Seattle bank (December 5) acknowl-
edged receipt, pointing out that a balance
of $2,298.49 was still needed to make pay-
ment of principal and interest in full, and
stating: "We on our part agree upon re-
turn to us of both sets of bills, allowing
that the draft has not been paid, to reim-
burse you in the sum paid us, provided,
that we were in no wise injured by the fact
I that your Port Arthur branch has indefi-
. nitely held the bills after their maturity,
' at which time they could have been returned
241 U. S.
1916.
RUSSO-CHINESE BANK y. NAT. BANK OF COMMERCE.
40^-412
ib us and we could have collected from the
Steamship Company." On December 29,
1904, tJie Russo-Chinese Bank, St. Peters-
burg, enclosed check for the balance re-
quested, and said: "It remains understood
tiiat in case your above remittance proves
not to have been paid, you declare your-
selves ready to refund us these $2,298.49
with the $36,013.70, sent on 27/9 November
plus accrued interest." And in reply the
Seattle bank agreed "that guarantee con-
tained in our letter of December 5tb shall
also cover this amount."
When the Russo-Chinese Bank obtained
from the Japanese authorities the books
and documents, it ascertained that the
draft in question had been protested for
nonpayment, [410] and had been mailed to
the Seattle bank. Thereupon, on June 27,
1906, the Russo-Chinese Bank demanded the
refunding of the money paid t6 cover the
draft. Ihe demand was refused and this
action was brought.
It was alleged in the complaint that the
payment to the Seattle bank had been made
upon condition that "if it should thereafter
be ascertained that said draft had not been
paid," the money should be refunded, and
that there had been no payment in fact.
The defendant denied that the condition
was as stated, and alleged that it had
agreed to reimburse the plaintiff upon the
return "of both seta of bills" and a show-
ing that the draft "had not been paid,"
provided the defendant was in no wise in-
jured by the negligence of the plaintiff in
the performance of its duties. It was
further averred, among other things, that
the draft had been paid in full by Clarkson
A Company; that it was the duty of the
plaintiff not to permit the fiour represented
by the bill of lading to be appropriated by
Clarkson k Company; and that if the pro-
ceeds of the sale of the flour were not ap-
plied to the payment of the draft, the fail-
ure was due to the plaintiff's carelessness
and breach of duty. The plaintiff in its
reply denied these averments and alleged
affirmatively that Clarkson k Company
were the agents of the steamship company,
and that it was well known to the defend-
ant that, upon arrival, the flour would be
delivered into their keeping as such agents,
whether the draft was paid or not. and that
the appropriation of the flour by them be^
fore payment was a matter not within
plaintiff's control.
The judgment of nonsuit on the flrst
trial, because of a failure to show the re-
turn of the draft and accompanying docu-
ments, and thus to prove the breach of an
express promise, was reversed upon the
ground that the complaint stated a cause
of action upon an implied agreement to re-
60 Ij« ed.
store money paid under mistake of fact*
109 C. C. A. 398, 187 Fed. p. 86.
[411] On the second trial the jury found
a general verdict in favor of the defendant,
and also returned a special flnding as fol-
lows:
"We . . . flnd that the Port Arthur
branch of the Russo-Chinese Bank did re-
ceive payment for the draft dated December
11th, 1903, on account of which the plain-
tiff made the remittance to the defendant
alleged in the complaint."
The court of appeals held that, notwith-
standing the protest of the draft and the
other evidence introduced by the plaintiff
to show that it had not been paid, this spe*
cial flnding had sufficient support. In its
succinct review of the evidence the court
said:
"The flour in question was carried to
Port Arthur by the ship Hyades, which
reached there about the middle of January,
1904. The evidence also shows that Clark-
son k Company were large customers of the
bank. The succeeding ship of the steam-
ship company, also carrying flour among
other things, reached Port Arthur about the
7th of February, 1904. Short" (assistant
manager of Clarkson k Company until, as
he said, February 4, 1904) "testified,
among other things, that when the Hyades
arrived with the 35,312 quarter sacks of
flour in question, there were but from 6,000
to 8,000 sacks in Clarkson k Company's
warehouse, and that when that shipment
arrived he went to the Port Arthur bank
on behalf of Clarkson k Company to accept
the draft drawn for the purchase price of
it, and did so; that when he accepted the
draft Mr. Ofsiankin" (manager of the
Russo-Chinese Bank at Port Arthur), "on
behalf of the bank, authorized Clarkson k
Company to take immediate possession of
the flour and sell it, and that he (Short),
on behalf of that flrm, gave the bank what
he designates as a 'letter of guaranty,' and
what Davidson" (then, as he testified, man-
ager of Clarkson k Company at Port
Arthur) "in his deposition designates as
one of 'hypothecation,' recognizing the flour
as the property of the bank until paid for,
and [412] agreeing to pay over to the bank
the proceeds thereof until full payment was
made; that the letter was 'the regular form
of bank guaranty; it was a printed form,'
said the witness. And both Short and
Davidson testifled that what was done in
the matter of the shipment here in question
was in accordance with a long-established
custom between the Port Arthur bank and
Clarkson & Company; Short testifying that:
'From the year 1900 the same rule existed.
We always gave the bank a letter of guar-
anty against — a letter of guaranty to take
1069
412-414
SUPREME COUitT OF THE UNITED STATEa
Got. Tkuc,
delivery of the cargo, and the cargo belonged
to them until it was paid for, and we sold
it out and deposited the money in the bank
from time to time as Clarkson k Company
got it in.' Davidson, in his deposition,
corroborates the testimony of Short in that
regard. . . . Short testified that upon
the acceptance by Clarkson A. Company of
the draft in question, and the delivery by
that firm to the Port Arthur bank of the
documents mentioned, Clarkson & Com-
pany took possession of the 35,312 quarter
sacks of fiour; and that they thereupon
commenced selling it, and paying into the
bank the proceeds thereof, is a fair infer-
ence from his testimony, as well as that of
Davidson. It appears from the latter's tes-
timony that, by reason of orders of the
Russian military authorities, he was com-
pelled to leave Port Arthur, and did so on
the 17th of February, 1904." After referring
to the fact that Davidson was evidently
confident that the steamer that brought
the fiour was the "Pleiades" (the steamer
that arrived in February, after the "Hy-
ades"), the court continued: — "but the
fiour itself, the witness distinctly testified,
was sold by him before leaving Port Arthur
to the firm of Ginsburg k Company, which
he testified was a large Russian firm doing
an extensive business with the Port Arthur
bank, and with its principal place of busi-
ness at that place, and which sale he testi-
fied he had to make in order to protect
Clarkson k Company against the war con-
ditions then prevailing. His testimony is, in
[413] part, that he arranged with Ginsburg
k Company to pay a part of the money for
which he sold the fiour into the Port Arthur
bank, and to take a draft from that com-
pany on Shanghai in his favor, which he
intended to pay into Clarkson k Company's
branch at that place, and that he took the
head of the firm, Ginsburg, to the Port
Arthur bank, and explained to the manager
of that bank the terms of the sale, to which
he agreed. Short testified that the Pleiades
arrived at Port Arthur about the 7th of
February, and that he himself left there
on board of that vessel, and that not more
than 1,500 or 2,000 sacks of flour were
landed at Port Arthur from that ship, so
that the jury might well have concluded
that the 35,000 or 40,000 sacks of flour
which Davidson thought were brought by
the Pleiades was the consignment of flour
that the Hyades carried to that port a few
weeks before. As a matter of course that,
and all other inconsistencies in the testi-
mony of the various witnesses, as well as
their veracity, were matters for the deter-
mination of the Jury, in the light of all
of the facts and circumstances of the case.
Moreover, there was testimony tending to
1070
show that from the 1st of January, 1904;
to November 23d of the same year, Clark-
son k Company paid into the Port Arthur
bank 126,928 roubles and 97 kopeks." 109
C. C. A. 439-441, 206 Fed. pp. 661-653.
We agree with the court of appeals that
the special finding of the jury was ade-
quately supported. Error is assigned with
respect to the following instruction to the
jury:
"If you find from the evidence in this
case that plaintiff permitted Clarkson Com-
pany to take over the flour under such an
arrangement as the defendant claims with
the stipulation that the plaintiff was the
owner of the flour and with the agreement
that Clarkson k Company would account
to the plaintiff for the proceeds of the sale
of the flour, then I instruct you that such
action on the part of the plaintiT consti-
tutes in law a payment of the draft in
question [414] and the plaintiff cannot re-
cover and your verdict must be for the
defendant."
It is said by the petitioner that "if we
assume that the Port Arthur branch did,
contrary to its instructions, permit Clark-
son to take over the flour, then to the extent
of the value of the security that was there-
by released it may have been responsible."
But it is argued that "although the bank
did without warrant release the security,"
still no damage resulted to the Seattle bank
if Clarkson k Company were in fact able
to pay their draft, and that there was
abundant evidence that Clarkson's financial
standing in Port Arthur at this time was
good; and that in any event the debt could
not be deemed to be paid to a greater ex-
tent than the value of the property. The
trial court, it is insisted, in effect directed
a finding of payment, if the jury found
that the agreement was made as described,
regardless of this value.
This criticism of the instruction fails, we
think, to take proper account of its context.
Immediately following the words quoted,
the court said:
"It Is a general rule of law that where
collateral security is received for a debt
with power to convert the security into
money, this is specifically applicable to the
payment of such debt; the same person be-
ing the party to pay and receive, no act Is
necessary and the law makes the applica-
tion. If the proceeds equal or exceed the
amount of the debt it is de facto paid; no
action would lie for it, and proof of ^ese
facts would support the defense of pay-
ment. And if you And from the evidence
in this case that the plaintiff did consent
to Clarkson taking over the flour in ques-
tion and consented to the sale of the same
141 V. S.
1915.
RUSSOCHINESE BANK v. NAT. BANK OF COMMERCE.
414-417
by Clarkaon k Company, and then Clark-
ton & Company sold the flour in question
and paid over the proceeds thereof to the
plaintiff, tlien such payment of the pro-
ceeds of the sale of such flour to the plain-
tiff operated as a payment of the draft in
question, — provided the proceeds [415] of
the sale of the flour equaled the amount of
the draft; and if such proceeds did not equal
or exceed the amount of the debt then it
was A payment pro fanfo— that is, a pay-
ment of 80 much of the said draft as the
proceeds of the sale of the flour would pay
of the same; and this is the law, notwith-
standing the fact that plaintiff may have
received the proceeds of the sale of said
flour and placed the same to the credit of
Clarkson & Company in its bank, and per-
mitted Clarkson k Company to use said
funds for other purposes."
In this, the trial judge* made his mean-
ing sufficiently clear. If the proceeds of
the sale under the agreement were to be
payment only if they "equaled the amount
of the draft," and otherwise were to be
"payment pro tanto," plainly the agree-
ment itself was not to be treated as consti-
tuting payment regardless of the value of
the flour. Taking the instructions on this
point in their entirety we think that their
fair import was that the flnding of pay-
ment in consequence of the stated arrange-
ment was to be reached only in ca&e the
value of the flour was. not less than the
amount of the draft.
Moreover, the record does not disclose
a controversy as to the value of the flour.
The evidence as to this amply supported a
flnding that the flour was at least worth
the amount of the draft, and indeed it could
not be said that a different conclusion would
have had adequate support in the proof.
Mr. Friedburg, officer of the Russo-Chinese
Bank, testified that be did not know "the
price of the flour," but that, so far as he
knew, "during the siege of Port Arthur
the price of flour was a little higher than
before the outbreak of the war, but there
was a lot of flour in the go-downs of the
government and no scarcity was felt of it."
Mr. Clarkson testifled, referring to the Gins-
burg sale: "The first I heard was that the
flour had been sold at two roubles a sack.
I flrmly believe at that time, that as war
had broken out, the flour that [416] was in
Port Arthur at the time was worth fully
Rbls. 3.00 a sack; consequently I considered
that any sale made at Rbls. 2. was at least
one rouble below the market value. To the
best of my knowledge and belief the sell-
ing price before hostilities commenced was
from Rbls. 2M to Rbls. 2.60 a sack. . . .
Acting under instructions from me, the
bank in Port Arthur refused to let Gina-
60 Ij* ed.
I burg ft Company have the flour at Rbls.
1 2.00, whereupon Ginsburg & Company
agreed to pay Rbls. 2.40." Mr. Short, when
asked "the market price of the flour" at the
time he left, said: "It was selling from
two forty to two sizty-flve roubles a sack."
Mr. Davidson testifled that there was "no
market price of flour at that time;" but
when asked whether "there were not two
separate bills of sale" made by him to Gins-
burg k Company for that flour, one at 2.
roubles and the other at 2.40 roubles," he
answered that it was "quite true there were
two prices" arranged by him, and that "the
lower price was sufficient to meet the draft."
He added: "I made the sale to Ginsburg k
Company at what I considered a fair mar-
ket value under the circumstances; namely,
that I had to leave Port Arthur, and that
there was no one there I considered eligible
to succeed me. The profit was 20 to 25
per cent, as near as I can remember." It
cannot be said that the evidence warranted
a finding that the value of the flour was
less than the amount of the draft.
The Russo-Chinese Bank received the
draft, with documents attached, for collec-
tion. It was instructed that "documents
are to be delivered on payment." It was
on these terms that it was intrusted with
the bill of lading, indorsed in blank, which
represented the flour. It was its plain duty
not to permit Clarkson k Company, upon
whom the draft was drawn, to have the con-
trol and disposition of the flour until the
draft was paid. See Milwaukee Nat. Bank
V. City Bank, 103 U. S. 608, 670, 671, 26
L. ed. 417, 418. It is no answer to say
that Clarkson k Company were the agents
of the steamship [417] company, for, while
they might be able to obtain custody of the
flour, it would only be in their capacity as
such agents, and without the right of dis-
position. Nor was the case altered by the
acceptance of the draft, for the condition
attached to the delivery of the flour with
the ju9 diaponendi was payment, not accept-
ance. If, in these circumstances, the bank
entered into an agreement with Clarkson k
Company, as was testifled, that the latter
were to take over the flour and sell it,
promising to account for the proceeds, this
was manifestly a misappropriation of the
property, and there arose in consequence
liability to account for its value. This
action was brought by the Russo-Chinese
Bank to recover money which it had paid
to the Seattle bank, and, with respect
neither to the express promise to refund
nor the promise implied in law, can it be
said that the plaintiff was entitled to suc-
ceed if» at tae time of the payment to the
Seattle bank, it paid merely what it owed.
There U no theory which permits it to
1071
417-419 SUPREME CX)URT OF THE UNITED STATES. Ocr. Tbim,
recover, save that it paid under a mistake
of fact; that is, that upon the actual facts
it was not liable to make the payment it
did make. If, however, it appeared that
relation to the commercial paper involved,
was entitled to demand an accounting from
its correspondent, and on the same ground
to resist this action for the recovery back
the value of the flour was equal to the of the money which it had received upon
amount of the draft, and it was found that the draft.
the bank, contrary to its instructions, had As we discover no error in the record,
permitted Clarkson & Company to take and the judgment must be affirmed.
dispose of the flour, it would necessarily Judgment affirmed.
follow that the Russo-Chinese Bank was
accountable to the Seattle bank to the ■
amount of the draft, and was in the same
position, so far as the right of the Seattle [419] ST. LOUIS k KANSAS CITY LAND
bank against it was concerned, as if it had COMPANY, Chicago, Burlington, ft
received the avails of the draft. It could Quincy Railroad Company, et al., Plffs. in
not, by an agreement in violation of its Err.,
duty, invest Clarkson & Company with the ^*
right of disposition, without accountabil- KANSAS CITY.
ity. The instruction, to which we have re- ,^ «^« ,. *..*^-— .
ferred, affords no ground for reversal. ^^ee S. C. Reporter's ed. 419-431.)
Error is also assigned with respect to the ^^^^ ^ ^^^ ^^^ _ ^, ^^^
instruction to the jury that the Russo- « qoestlons of local Uw.
Chinese Bank became invested with the title i, j^^ extent of the authority eon-
and ownership of the flour, and that it ferred upon a city by its charter with re-
could [418] not be excused from an obliga- spect to assessments for beneflts to pay an
tion to account by saying that the flour had award for property condemned for street
disappeared without its knowledge. It is widening purposes, the construction of the
argued that the relatior between the banks Korc-On the general subject of wriU of
was that of principal and agent, not of error from the United States Supreme Court
vendor and vendee; that it took the draft to state courts— see notes to Martin v. Hun-
for collection. But the charge, as we view ter, 4 L. ed. U. S. 97; Hamblin v. Western
it, was not to the effect that the relation Land Co. 37 L. ed. U. S. 267 ; JKe Buchanan,
of vendor and vendee was created, but, on 39 L. ed. U. S. 884, and Kipley v. Illinois,
the contrary, it was distinctly stated to ^2 L. ed. U. 8. 998.
the jury that the Rus8o-C»iinese Bank "was ^ ^° ^^*^ questions the Federal Supreme
obligated as an agent to act in good faith ^"^^ will consider in reviewing the judg-
jT a X Ai. . UA * i.u XT X- in 1 ments of state courts — see note to Missouri
and protect the rights of the National Bank ^ ^^i jjiu ^ Dockery, 63 L.R.A. 671.
of Commerce in the collection of the draft," As to what constitutes due process of
and that, as "the agent" for the owner, it law, generally — see notes to People v.
"was obligated to account for the amount O'Brien, 2 L.R.A. 255; Kuntz v. Sumption,
of the draft, to account for the security 2 L.R.A. 655; Re Gannon, 5 L.R.A. 350;
which the bill of lading constituted," In Ulman v. Baltimore, 11 L.R.A. 224; Oilman
view of the special flnding that the draft ^- ,?*?^^; ^^>?;^«^^A?-^**'r«,M ^^'**
had been paid, it is not necessary to inquire ^•"'24 L. ed. U S. 436, and Wilson v,
— ♦« ™i.!Ui. i ♦i,^.^ ^ ij *u -,• u North Carolina, 42 L. ed. U. S. 865.
as to whether there would otherwise have .^^ ^^^^ ^^ i^^^i i^^ generally
been liability on the part of the plaintiff ^ constitute due process of law— see notes
because of a failure to exercise reasonable to Kuntz v. Sumption, 2 L.RJL. 657 ; Chau-
care. The special flnding, supported by vin v, Valiton, 3 L.R.A. 194, and Ulman v.
adequate evidence, was based, under the in- Baltimore, 11 L.R.A. 225.
structions of the court, upon the transac- As to the validity of class l^slation,
tion with Clarkson & Company to wliich generally— see notes to State y. w>odwill,
we have referred, and it must be deemed S„L.R.A. 621, and State v. Loomis, 21 LJIA.
controlling. We flnd no instruction with
reference to that transaction, or its legal
effect if found to be as testifled, which was
prejudicial to the plaintiff.
Complaint is also made with respect to
certain requests for instructions and rul-
ings on the admission of evidence, but they
are wholly without merit and it is unneces-
sary to review them. It is said that the
Seattle bank suffered no loss because it had
a guaranty from the Centennial Mill Com<
789.
As to constitutional equality of privileges,
immunities, and protection, senerally — see
note to Louisville Safety Vault ft T. Co. v.
Louisville ft N. R. Go. 14 L.R.A. 679.
On the necessity of providing In statute
for notice and hearing on question of dam-
ages or compensation in eminait domsin
proceedings — see note to Sterritt ▼. Young*
4 L.R.A.(N.S.) 169.
On landowner's right to notice and hesr-
ing with respect to assessments for improve-
ments— see note to Chicago, M. ft St. P. R.
pany; but the Seattle bank, in view of its Co. v. Janesville, 28 LJLA.(KJ3.) 1201.
1072 '^^ U. S.
1916.
ST. LOmS & K. C. LAND CO. t. KANSAS CITY.
yariouf proTisionf of the charter, the valid-
Ibr, scope, and effect under the ftate law
of the ordinances adopted by the city, the
scope and effect of the original and supple-
mentary proceedings, and the rights of the
parties thereto under the state law, are all
state questions, as to which the decision of
the state court is controlling on writ of
error from the Federal Supreme Court.
[For other cases, tee Appeal and Error, 2072-
2226, in Dlffest Sop. Ct. 1908.]
£rror to state court — scope of rcTiew
— non-Federal question.
2. The ruling of a state court as to
the effect with respect to a supplemental
curative proceeding to assess benefits from
the widening of a street of a decree in a
court of the same state, holding the original
assessments void for want of the required
notice as to the complainant in that suit
and certain interveners, does not present a
Federal question which may be reviewed by
the Federal Supreme Court on writ of er-
ror.
[For other cases, see Appeal and Error, 2072-
2226, In Digest Sup. Ct. 1908.]
Constitutional lavr — due process off law
— public improremeutfit — hearing.
3. Owners of property assessed for
benefits from the widening of a street are
not entitled, by virtue of the due process
of law clause of U. S. Const., 14th Amend.,
to be heard either in the original or sup-
plemental curative proceedings upon the
amounts of the awards to the owners of the
property condemned, although the city
charter provides a single proceeding, em-
bracing lx>th the proposed condemnation and
the assessment for benefits, and requires no-
tice to the property owner within the bene-
fit district.
[For other cases, see Constitutional Law, 746-
763, In Digest Sup. Ct. 1908.]
Constitutional law — equal protection ^ _.
of the laws *— public improvements. | I
4. The equal protection of the laws is "^
not denied to the owners of property as-
sessed in a supplemental curative proceed-
ing for benefits from the widening of a .
street, without any opportunity to be heard
upon the amounts of the awards to the own-
ers of the property cocJeraned, because in
the original proceeding there was such op-
portunity, together with a right to appeal,
where the asserted inequality springs solely
from the fact that certain assessed owners,
despite the defect in the publication of no-
tice in the original proceeding, appeared
and acquiesced herein.
[For other cases, see Constitutional Law, 871-
379, Id Digest Sup. Ct. 1908.]
Constitutional law *— due process of law
-^qual protection of the laws — pub-
lic Improvements.
6. The owners of property sought to be
assessed in a supplemental curative pro-
ceeding for benefits from tiie widening of
a street are not entitled, by virtue of U. S.
Const., 14th Amend., to a redetermination
of the assessments laid upon the property
of other owners in the oriffinal proceedings,
which those owners, despite the defects in
such original proceedings, accepted and
paid.
[For other cases, see Constltutlenal Law, 871-
879, 6C9-681, In Digest Sup. Ct. 1908.]
S^rror to state court — scope off review
— non-Federal question.
6. Whether the assessment of benefits
in street-widening proceedings upon a por-
tion of one's property is in effect an ad-
ludicatioB that the other portions were not
benefited, so as to preclude their assess-
ment in supplemental curative proceedings,
is a question of state law which is not open
for review in the Federal Supreme Court
on writ of error to a state court.
[For other cases, see Appeal and Error, 2072-
2226, In Digest Sup. Ct 1908.]
Conatltntlonal law — due process off law
-^ual protection off the laws — pub-
lic Improvements.
7. There is nothing in the Federal Con-
stitution to prevent the assessment in sup-
plemental curative proceedings for bene-
fits from the widening of a street of
property omitted from the original pro-
ceeding.
[For other cases, see Constitutional Law. 871-
879, 659-«8irin Digest Sup. Ct. 1908. J
Constitutional law — application off
Federal Constitution to states.
8. State courts are not bound by the
provision of U. S. Const., 7th Amend., that
no fact tried by a jury shall be otherwise
re-examined in any court of the United
States than according to the rules of the
common law.
[For other cases, see Constitutional Law, II.
b, in Digest Sup. Ct. 1908.]
[No. 261.]
Argued March 7« 1916. Decided June 6,
1916.
N ERROR to the Supreme Court of the
State of Missouri to review a judgment
which affirmed a judgment of the Circuit
Court of Jaclcson County, in that state, en-
forcing assessments for benefits from the
widening of a street. Affirmed.
See same case below, 260 Mo. 396, 169
S. W. 62.
The facts are stated in the opinion.
Messrs. I. N. Watson, Kenneth McC.
Deweese, and H. M. liangworthy argued
the cause, and, with Mr. Edward White,
filed a brief for plaintiffs in error:
In condemnation proceedings property
owners whose properties are sought to be
charged with benefits to pay damages for
property taken or damaged are entitled to
notice and opportunity to be heard in order
to ccmstitute due process of law.
St. Louis V. Ranken, 96 Mo. 505, 9 S. W.
910; St. Louis v. Brinckwirth, 204 Mo. 302,
102 S. W. 1091; Davidson v. New Orleans,
96 U. S. 97, 24 L. ed. 616; Hagar v. Rec-
lanuktion Diet. Ill U. S. 701, 28 L. ed. 569,
4 Sup. Ct. Rep. 663; Londoner T. Denver,
60 li. ed.
68
107S
SUPREME COURT OF THE UNITED STATES.
Got. Tbbm,
210 U. S. 375, 52 L. ed. 1108, 28 Sup. a.
Rep. 708.
(a) Such proceedings are in violation of
common law and common right, and the
utmost strictness is required in order to
give validity to them.
Ells V. Pacific R. Go. 51 Mo. 203; Whit-
ely T. Platte County, 73 Mo. 30; Zimmer-
man V. Snowden, 88 Mo. 220; Anderson v.
Pemberton, 89 Mo. 65, 1 S. W. 216; Chicago,
R. I. & P. R. Co. V. Young, 96 Mo. 42, 8 S.
W. 776; Williams v. Kirby, 169 Mo. 622, 70
S. W. 140; Spurlock v. Doman, 182 Mo.
242, 81 S. W. 412; Tarkio v. Clark, 186
Mo. 285, 85 S. W. 329.
(b) Section 16 of Article 9 of the Con-
stitution of Missouri requires all courts to
take judicial notice of the provisions of the
charter of Kansas City.
Walsh V. Missouri P. R. Co. 102 Mo. 589,
14 S. W. 873, 16 S. W. 757; St. Louis v.
Lang, 131 Mo. 412, 33 S. W. 54.
(c) Publication of the court's order for
four consecutive weeks, the last insertion
to be not more than one week prior to the
date set for impaneling the jury, was a
jurisdictional fact necessary to give the
municipal court jurisdiction to hear and de-
termine the cause.
Kansas City v. Duncan, 185 Mo. 580, 37
S. W. 513 ; St. Louis v. Brinckwirth, 204 Mo.
302, 102 S. W. 1091 ; St. Louis v. Ranken,
96 Mo. 505, 9 S. W. 910 ; St. Louis v. Koch,
169 Mo. 591, 70 S. W. 143.
This record shows that no legal notice was
given to property owners in the benefit dis-
trict of the proceedings, and such property
owners had no opportunity to be heard in
said proceedings.
The judgment in condemnation proceed-
ings is rea judicata as to the particular facts
held in judgment.
Union Depot Co. v. Frederick, 117 Mo.
148, 21 S. W. 1118, 1130, 26 S. W. 360;
Burke v. Kansas City, 118 Mo. 309, 24 S. W.
48; New Madrid County v. Phillips, 125
Mo. 61, 28 S. W. 321.
There was but one cause, one proceeding,
one order, one jury, one verdict, and one
Judgment.
State ex rel. Holden v. Gill, 84 Mo. 248;
Kansas City v. Mulkey, 176 Mo. 247, 76 S.
W. 973; Kansas City v. Hennegan, 152 Fed.
249; Anderson ▼. Pemberton, 89 Mo. 66, 1
S. W. 216.
In this statutory and summary proceed-
ing,— this l^gal coupe de main, in deroga-
tion of common law and common right, —
the utmost strictness is required in order to
give validity; and unless, upon the face of
the proceedings had, it affirmatively appears
that every essential prerequisite of the
statute conferring the authority has been
fully complied with, every step, from in-
1074
ception to termination, will be oomm «o»
judice.
Whitely v. Platte County, 7S Mo. 30; Col-
ville V. Judy, 73 Mo. 651; EUs t. Pacific
R. Go. 51 Mo. 200.
The charter of Kansas City has intrusted
the estimate of damages and the assessment
of benefits to the same Jury, and there are
many precedents for intrusting the per-
formance of both duties to the same per-
sons.
Bauman v. Ross, 167 U. S. 693, 42 L. ed.
289, 17 Sup. Ct. Rep. 966.
In the supplemental proceedings plain-
tiffs in error were denied rights accorded
property owners in the benefit district in an
original proceeding, and their property
taken without due process of law, and they
were denied the equal protection of the law,
in violation of the 14th Amendment to the
Constitution of the United States.
Stae ex rel. Tuller v. Seehom, 246 Mo.
577, 151 S. W. 724; Goodrich v. Detroit, 184
U. S. 432, 46 L. ed. 627, 22 Sup. Ct Rep.
397; Kansas City v. Duncan, 136 Mo. 580,
37 S. W. 513; St. Louis v. Meier, 77 Mo.
13; Stuart v. Palmer, 74 N. Y. 183, 30 Am.
Rep. 289; Sp«icer ▼. Merchant, 126 U. S.
346, 31 L. ed. 763, 8 Sup. Ct Rep. 921;
Davidson v. New Grleans, 96 U. 8. 97, 24 L.
ed. 616; Hagar v. Reclamation Dist 111 U.
S. 701, 28 L. ed. 669, 4 Sup. Ct Rep. 663;
Londoner v. Denver, 210 U. S. 373, 385, 52
L. ed. 1103, 1112, 28 Sup. Ct Rep. 708;
Pittsburgh, C. C. ft St. L. R. Go. ▼. Backus,
164 U. S. 426, 38 L. ed. 1036, 14 Sup. Ct
Rep. 1114; Fallbrook Irrig. Dist v. Brad-
ley, 164 U. a 11^171, 41 L. ed. 369-393, 17
Sup. Ct Rep. 66.
A reassessment was a re-examination of a
fact decided by a jury which could not be re-
examined under the Constitution of the
state of Missouri or under the second clause
of the 7th Amendment to the Constitution
of the United States without depriving the
Union Depot Bridge ft Terminal Railroad
Company of its property without due process
of law.
Chicago, B. ft Q. R. Go. t. Chicago, 166 U.
S. 243-263, 41 L. ed. 987-994, 17 Sup. Ct
Rep. 581.
The jury were permitted in this supple-
mental proceeding to make another assess-
ment of benefits against its property with-
out any notice other than the supplemoital
ordinance and notice thereunder to the
Union Depot Bridge ft Terminal Railroad
Company, that the city deemed any of its
property had been omitted, or that a proper
assessment had not been made against this
property. Plaintiffs in error therefore con-
tend that the ordinance and the order of
publication thereunder were not sufficient to
constitute due process of law against the
141 V. &
1915.
8T. LOUIS A K. C. LAND CX>. y. KANSAS CITY.
Union Depot Bridge ft Terminal Railroad
Company.
Bellingham Bay ft B. C. R. Co. v. New
Whatcom, 172 U. S. 314, 43 L. ed. 460, 19
Sup. Ct. Rep. 205.
Plaintiffs in error were entitled to a hear-
ing in relation to the proportion each piece
of property should bear to the whole cost of
the improvement in the benefit district.
Voigt V. Detroit, 184 U. S. 115, 46 L. ed.
459, 22 Sup. Ct. Rep. 337.
The exaction from the owner of private
property of the cost of a public improve-
ment in substantial excess of the special
benefits accruing to him is, to the extent
of such excess, a taking, under the guise of
taxation, of private property for public uses
without compensation.
Fallbrook Irrig. Dist. v. Bradley, 164 U.
S. 174, 41 L. ed. 394, 17 Sup. Ct. Rep. 56;
Norwood V. Baker, 172 U. S. 279, 43 L. ed.
447, 19 Sup. Ct. Rep. 187; French v. Barber
Asphalt Paving Co. 181 U. S. 340, 341, 45 L.
ed. 888, 889, 21 Sup. Ct. Rep. 625; Lon-
doner V. Denver, 210 U. S. 373, 52 L. ed.
1103, 28 Sup. Ct. Rep. 708.
The decision of the state supreme court in
this case is more than the mere construc-
tion of a local statute. The effect of it is
to arbitrarily take away from the plaintiffs
in error and other property owners in the
benefit district valuable rights, which were
clearly granted them, and in the case of the
Union Depot, Bridge, ft Terminal Company
it appears that property was acquired by
it during the time that those rights were
plainly in existence. This construction of
the charter amounted to the unlawful taking
of property, and was an impairment of con-
tractual rights as welL
Muhlker v. New York ft H. R. Co. 197 U.
S. 544, 49 L. ed. 872, 25 Sup. Ct. Rep. 522.
Messrs. I. K. Watsoa, H. M. Langworthy,
Edward White, Kenneth McC. De Weese, and
£. M. Jones also filed a brief for plaintiffs
in error on motion to dismiss or aiBrm.
Messrs. Jesse C. Petherbrldge and Ar-
tbnr F. Smith argued the cause, and, with
Mr. Andrew F. Evans, filed a brief for de-
fendant in error:
The assessment of benefits to pay for land
taken in the widening of a public street is
the exercise of the taxing power of a munici-
pality, as distinguished from the exercise of
its power of eminent domain, and therefore
is not taking private property without due
process of law, if notice of the time and
place of the proposed assessment is given,
as was done in this case; and plaintiffs in
error were not denied the equal protection
of the law, in violation of the 14th Amend-
ment of the Federal Constitution.
Goodrich v. Detroit, 184 U. S. 432, 437, 46
«0 li. ed.
L. ed. 627, 630, 22 Sup. Ct. Rep. 397 ; Voigt
V. Detroit, 184 U. S. 115, 122, 46 L. ed. 459,
462, 22 Sup. Ct. Rep. 337 ; Lombard v. West
Chicago Park Comrs. 181 U. S. 33, 45 L. ed.
731, 21 Sup. Ct. Rep. 507; Londoner v. Den-
ver, 210 U. S. 373, 378, 52 L. ed. 1103, 1109,
28 Sup. Ct. Rep. 708; WUloughby v. Chi-
cago, 235 U. S. 45, 59 L. ed. 123, 35 Sup.
Ct. Rep. 23; State ex reL TuUer v. Seehom,
246 Mo. 583, 151 S. W. 724; Kansas City
V. St. Louis ft K. C. Land Co. 260 Mo. 395,
169 S. W. 62; St Louis t. Ranken, 96 Mo.
507, 9 S. W. 910; Kansas City ▼. Ward, 134
Mo. 172, 35 8. W. 600.
The plaintiffs in error, not being the
owners of any of the property taken in the
original proceeding, were not necessary par-
ties thereto, and were not entitled to notice
of such original proceedings.
Goodrich v. Detroit, 184 U. 8. 432, 46
L. ed. 627, 22 Sup. Ot. Rep. 397; Voigt v.
Detroit, 184 U. S. 115, 120, 46 L. ed. 459,
461, 22 Sup. Ct. Rep. 337; Weyerhaueser
v. Minnesota, 176 U. S. 550, 44 L. ed. 583, 20
Sup. Ct. Rep. 485 ; Spencer v. Merchant, 125
U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep.
921; 1 Page ft J. Taxn. p. 213; State ex rel.
TuUer v. Seehom, 246 Mo. 583, 151 8. W.
724; Kansas City v. St. Louis ft K. C. Land
Co. 260 Mo. 395, 169 S. W. 62; St. Louis t.
Ranken, 96 Mo. 507, 9 S. W. 910; St. Louis
V. Brinckwirth, 204 Mo. 303, 102 S. W.
1091; St Louis V. Calhoun, 222 Mo. 53, 120
S. W. 1152; Kansas City v. Ward, 134 Mo.
179, 35 S. W. 600.
The construction placed on a statute of
a state, or on an ordinance or charter pro-
vision of a city in such state, by the highest
judicial tribunal of that state, will be fol-
lowed by this court
King T. Portland, 184 U. S. 61, 46 L. ed.
431, 22 Sup. Ct. Rep. 290; Baltimore Trac-
tion Co. ▼. Baltimore Belt R. Co. 151 U. S.
137, 38 L. ed. 102, 14 Sup. Ct Rep. 294;
Long Island Water Supply Co. y. Brooklyn,
166 U. S. 685, 41 L. ed. 1165, 17 Sup. Ct
Rep. 718; Louisville, N. 0. ft T. R. Co. t.
Mississippi, 133 U. 8. 587-^90, 33 L. ed.
784, 785, 2 Inters. Com. Rep. 801, 10 Sup.
Ct Bap. 348; Merchants' ft M. Nat Bank v.
Pennsylvania, 167 U. 8. 461, 42 L. ed. 236,
17 Sup. Ct Rep. 829; Willoughby t. Chi-
cago, 235 U. S. 45, 59 L. ed. 123, 35 Sup.
Ct Rep. 23; Minnesota Iron Co. t. Kline,
199 U. 8. 593, 50 L. ed. 322, 26 Sup. Ct. R^.
159, 19 Am. Neg. Rep. 625.
Proceedings under the Kansas City char-
ter were valid.
' State ex rel. Tuller t. Seehorn, 246 Ma
583, 151 S. W. 724; Kansas City t. St
Louis ft K. C. Land Co. 260 Ma 395, 169
S. W. 62.
I A decision by the state supreme ooart
' that the formalities of the state or muniei-
1075
420-422
SUPREME COyRT OF THE UNITED STATEa
Oct. Temm,
pal taxing laws luiTe been observed presents
BO Federal question where the contention is
that the manner of their obserrance was a
denial of due process of law.
French v. Taylor, 199 U. S. 274, 50 L. ed.
189, 26 Sup. Ct. Rep. 76; C(Mrry v. Camp-
bell, 164 U. S. 629, and 24 L. ed. 026, 14
Sup. Ct. Rep. 1183.
The original proceedings were valid as to
those who abided the judgment.
State ex rel. Tuller v. Seehom, supra.
The judgment in the Union Pacific in-
junction case affected only the rights of
plaintiffs in error as to their assessments in
the original proceeding.
Kansas City ▼. St. Louis ft K. C. Land
Co. supra.
The provisions of the charter of Kansas
City, Missouri, are regarded as having the
same force as a legislative enactment, and
ordinances passed in pursuance thereof are
binding.
Morrow ▼. Kansas City, 186 Mo. 683, 86
8. W. 572; McGhee v. Walsh, 249 Mo. 266,
155 S. W. 445 ; Ex parte Smith, 231 Mo. 122,
182 S. W. 607.
The charter of Kansas City is a public act
of which the courts take judicial notice.
Kansas City v. Smart, 128 Mo. 298, 30
S. W. 773.
Mr. Justice Hughes delivered the opinion
of the court:
This was a supplemental proceeding to
assess certain parcels of land in Kansas
City, Missouri, for benefits. The assess-
ments were for the purpose of meeting an
unpaid portion of damages which had been
awarded for property condemned in widen-
ing Sixth street. Judgment for the assess-
ments was entered on the verdict of a jury
and was afiSrmed by the supreme court of
Missouri, m hone, 260 Mo. 395, 169 S. W.
62. This writ of error is prosecuted by
owners of property thus assessed.
In October, 1909, the common council of
Kansas City passed an ordinance providing
for the condemnation of property within
specified limits, and for the raising of the
amount of the award by special assessments
against property within a described benefit
district, in accordance with article 6 of the
city's charter. Proceedings accordingly
[421] were then brought in the municipal
court of Kansas City, resulting in an award
of $166,299J^7 for property taken and in the
maldng of assessments of like amount for
benefits. There were over 13,000 different
tracts within the benefit district. No ap-
peal was taken from the judgment. The
city collected on the assessments about
$89,000. It was discovered that the publi-
eation of the required notice of the pro-
ceeding was defective, and in aa appropriate
1076
suit in equity, brought by the Union Pacific
Railroad Company, a decree was obtained
in favor of that company, and of certain
interveners, annulling the assessments
against their properties; and no appeal waa
taken from that decree.
Thereupon, Kansas City attempted to re-
peal the original ordinance, presumably — as
the state court suggests — ^for the purpose
of abandoning the proceeding and returning
the assessments paid. At the suit of owners
of the land condemned — who were entitled
to the awards — decree was entered enjoin-
ing the city from abandoning the con-
demnation proceedings. The city then
enacted a "supplemental or curative ordi-
nance," basing its action on the authority
of § 231 of article 6 of the city's charter.
[422] "The object of said sensible charter
1 Section 23 is as follows:
"Sec. 23. Defective proceedings — supple-
mental.— When by reason of any error,
defect, or omission in any proceedings, or in
the verdict or judgment therein that may be
instituted under tne provisions of this arti-
cle, a portion of the private property sought
to be taken, or some interest therein, cannot
be acquired, or an assessment is made
against private property which cannot be
enforced or collected, or when, by reason of
any such defect, private property in the
benefit district is omitted, the city may, by
ordinance, institute, carry on and maintain
supplemental proceedings to acquire tlie
right and title to such property or interest
therein intended to be taken by the first
proceeding, but which cannot on account of
such defect, error or omission, be acquired
thereunder, or to properly assess against
any piece or parcel of private property
against which an assessment was in the first
proceeding erroneously made or omitted to
be made, the proper amount such private
property, exclusive of the improvements
thereon, is benefited by the proposed im-
provement to be determined by the verdict
of the jury in such supplemental proceedings ;
and the original assessments may be revived,
corrected, increased or diminished as ma^
be necessary or equitable under the provi-
sions of this article for the original pro-
ceedings. Such supplemental proceedings
shall he instituted and conducted as to the
particular piece or pieces of private prop-
erty sought to be acquired or assessed in
like manner and with like effect as in the
original proceedings, and shall be known and
described as supplemental proceedings for
the purposes specified in the original ordi-
nance; and a supplemental verdict and
assessment shall be made, confirmed and
copies of the original verdict certified in
every particular as in the original proceed-
ings ; and the assessmmts as establisned and
corrected by such supplemental verdict shall
be collected by the city treasurer in the same
manner and under like conditions and re-
strictions, powers and duties as in the case
of original proceedings."
141 V. 8.
191 &
ST. LOUIS A K. C. LAND CO. v. KANSAS CITY.
42^-425
provision,'' it is said by the state court,
"was to afford a remedy when by any error,
defect, or omission in condenmation pro-
ceedings, assessments made against private
property cannot be enforced or collected, or
where property in the benefit district is
omitted, etc. In such case it was provided
that the city may, by ordinance, institute
and carry on supplemental proceedings to
make a proper assessment against any parcel
of property in the benefit district erro-
neously omitted or erroneously made in the
first proceeding, etc" 260 Mo. p. 406.
Under this ordinance the supplemental
proceeding was instituted in the municipal
court. The notice required by the charter
was given and the plaintiffs in error (with
the exception of the Union Depot Bridge k
Terminal Railroad Company) appeared.
The jury returned a verdict which was ''the
same as to the amount of benefits as the
verdict returned in the original proceeding."
State ex rel. Graham v. Seehorn, 246 Mo.
541, 552, 151 S. W. 716; see 260 Mo. p. 406.
An appeal was taken from the judgment to
the circuit court of Jackson county. While
[423] the case was pending in that court,
the presiding judge, having announced that
he purposed to "try out the question of the
amoimt of damages awarded to property
owners whose property was taken or dam-
aged under the original proceeding as well
^ the question of assessing benefits over
nonpaying properties within the benefit dis-
trict/' two prohibition suits were brought in
the supreme court of the state. The one was
brought by owners of property in the benefit
district who contended that the municipal
court had no jurisdiction of either the orig-
inal or the supplemental proceedings, and
hence that the circuit court had no jurisdic-
tion on appeal. This contention was over-
ruled and the writ denied. State ex rel.
Graham v. Seehorn, supra; see 260 Mo. p.
407. The other prohibition suit was brought
by the owners of property which was sought
to be taken for public use. They urged that
there was no provision for an appeal in a
supplemental proceeding begun in the muni-
cipal court, and that, in any event, the cir-
cuit court had no jurisdiction to award
damages. The court sustained the right of
appeal, but it was held that the verdict
and judgment in the original proceedings
were valid "as to those who appeared and
accepted them;" that the original proceed-
ings, unappealed from, became res judicata.
The jury were not to include in their verdict
"assessments of benefits and damages upon
property properly included in the first ver-
dict." In answer to the contention that
property owners in the benefit district were
entitled to be heard on the question of the
amount to be paid for the property taken in
60 If. ed*
condemnation, the court ruled that, while it
was entirely proper as a matter of grace to
permit such owners to aid the city in pre-
venting an unduly high valuation of the
property condemned, they were not necessary
parties in the determination of that issue,
and that this question was not open to
retrial in the supplemental proceedings
where the owners of the property condemned
[424] had acquiesced in the awards. Ac-
cordingly, a writ issued prohibiting the cir-
cuit court from retrying the question of the
amount of damages awarded to the owners
of property condemned. State ex rel. TuUer
V. Seehorn, 246 Mo. 568, 151 S. W. 724; see
260 Mo. 407-409.
The circuit court then resumed the trial
of the appeal in the supplemental proceed-
ing. The plaintiffs in error appearing
(with the exception of the Union Depot
Bridge Company) challenged the, validity
of the proceedings under the state law,. and
each company also claimed protection under
the due process and equal protection clauses
of the 14th Amendment from any assess-
ment of benefits until it had "oppor-
tunity to be heard upon the amount of dam-
ages that shall be awarded to property
owners and the benefits assessed against it,
as provided by the charter of Kansas City
in the original proceedings," and that it
was entitled to notice of those proceedings.
The right to retry the amount of the award
in condemnation was frequently reiterated
during the progress of the cause and denied.
It was also unsuccessfully contended that
the decree in favor of the Union Pacific
Railroad Company, and interveners, annul-
ling the former assessments as to them, was
a bar. The court further ruled, over excep-
tions, that under the decision of the su-
preme court the jury was concluded from
changing the assessments on the property
of those owners who had paid under the
original proceedings; and a general offer of
testimony assailing such assessments was
rejected. It appeared that, after deducting
from the total awards of damages for prop-
erty condemned the amount which had
already been paid by property owners, there
remained a balance of $76,981.98. Among
the instructions given to the jury (and to
each of which a general exception was
taken) were the following:
"This balance you may assess against the
city generally, including any benefit to any
property of the city [425] within the ben-
efit district, and against such of the remain-
ing private property, lots, tracts, and par-
cels of land, exclusive of the improvements
thereon, in the benefit district, as you may
deem is benefited, if any, and in the pro-
portion which you may deem the same
benefited, by the opening and widening of
1077
42S-427 BtTPBEME COURT OF THE UNITED STATES. OCT. Tbv,
Sixth street, mad upon vbich no Bnesi- riglit had been denied, the juir shonld aet
meiita have been paid under the original agsess any benefit,
proceedings," The jury rendered a verdict lafiag
"If the jury And and believe from the aseeBsnients upon the properties of tba
evidence that the benefit! to the city at plaintiffs in error, and motiona for a new
large and the special benefit! to all the trial vere denied. The Union Depot Bridga
property within the benefit district does not Company was aaaeaaed with two otherii
equal the damages heretofore awarded for jointly, and appeared and objected to Um
the proposed taking of property for widen- verdict. Thereupon, the court recalled Um
ing Sixth street from Broadway to Bluff Jurors and directed separate assessment^
streets, or if the Jury find that the damages which were made. The Union Depot Bridgi
ao swarded exceeds in amount all such bene- Company asked for an instruction to Ui*
fits as would accrue from such widening of effect that a portion of iU property bad
Sixth street, — then the Jury will ao state in been assessed in the original proceeding,
their verdict and will asses! no beneftti in that the asiessmcnt had been paid, and that
these proceedings." the remainder of the lands were then fonnd
"The Jury are instructed that, in det^r- not to be benefited and should not b*
mining the special benefit, if any, to be aasessed, Tbis instruction waa refnsed.
assesaed againat any piece of property, they This company also moved for a new trial,
are not allowed to assess any sum against insisting that it was deprived of its prop-
any piecb of property except aucb sum as erty without due process of law and denied
they may find said property is actually and the equal protection of the laws, in viola-
specially benefited and enhanced in value, tion of the 14th Amendment,
as distinguished from any general benefit [427] On appeal the supreme court of Uie
■uch property may receive, if any, in com- state entered Judgment of afflrmanee, and it
mon with other property of the city, by is to review that Judgment that this writ of
reason of the widening of Sixth street." error has been aued out.
"In paaaing upon the issue as to whether The extent of the authority conferTMl
or not the damages in this cose exceed the upon the city by its charter, the constnic-
benefits, the jury should not and must not tion of the various provisions of the cbar-
be influenced by the fact that the damages ter, the validity, scope, and effect under
have been determined by another jury in the state law of ths ordinances adopted hj
another proceeding. Private property must the city, snd the scope and effect of tha
not be assessed in excess of the actual bene- original and supplemental proceedings, and
fits accruing thereto, if any, as distin- the rights of the parties thereto, under ths
guiahed from the benefits accruing to the state law, are state queaUons, aa to which
city in general." the decision of the state court la control-
"Upon your request for further Instruc- ling. Long Island Water Supply Co. v.
tion in regard [426] to your duties aa to Brooklyn, 186 U. S. 685, 41 L. ed. 1165, IT
assessing benefits in this proceeding, you are Sup. Ct. Rep. 718; Castillo v. UcOonnico,
instructed that you may not assess any bene- 168 (J. S. 674, 883, 42 L. ed. 622, 625, 18
fits in this supplemental proceeding against Sup, Ct, Rep. 229; King v. Portland, 184
any property in the benefit district which U. S. 61, 46 L. ed. 431, £2 Sup. Ct Bep.
waa adjudged in the original proc<>eding to 290; Willoughby v. Chicago, 2SS U. S. 45,
have been damaged by reason of a part 69 L. ed. 123, 35 Sup. Ct. Rep. 23. Bo, the
thereof being taken for the widening' of ruling aa to the effect, with respect to ths
Sixth street from Broadway to Bluff aupplemental proceeding, of the decree in a
atreet." court of the same state, holding the prior
Among the inatruotions refused was one assessmenta void for want of the required
(apparently asked by a party not one of notice, aa to the complainant in that suit
the plaintiffa in error, but in whose excep- ""d cerUin interveners, does not preaent a
tion the others joined) to the effect that the Federal question. Phtenix F. 4 M. Ins. Oft
property owner was entitled under the 14th "■ Tennessee, 181 U. S. 174, 186, 40 L. ed.
Amendment "to introduce evidence and be ««0' «*' 1« Sup. Ct. Rep. 471.
heard upon the question, (a) of the cost of " " ''•°^.'?" '***^ "** " V^^ •*
the improvement in question to pay which ^^r^' 7 t ""'^ ""^ " ^
. t. .. . . J J .1.1 I "" '" order to pay an award for property
such beneflU are to be assessed, and (b) of ,„„a,„„^ j, „„^ ^titled, by virtue of tt.
what proportion of the toUl benefit, if any, „th Amendment, to insist u™ being made
Of said Improvement, should be assessed ^ p^^y to the condemnation proceeding,
against other property in the benefit die- or to be heard with respect to the amount
trict. that upon the plat of which ia marked of the award. He may not demand, a* a
the word 'paid' as well as all other prop- Federal right, that the power of eminent
ertyi" and that, inasmuch aa the alleged domain shall not be exercised save upon
107S 14] tl. S.
1016.
8T. LOUIS ft K. C. LAND 00. y. KANSAS OITY.
427-430
notice to him. Voigt v. Detroit, 184 U. S.
115, 122, 46 L. ed. 459, 462, 22 Sup. Ct.
Rep. 337; Goodrich y. Detroit, 184 U. S.
432, 437, 438, 46 L. ed. 627, 630, 631, 22
Sup. Ct. Rep. 397; Londoner y. Denver, 210
U. S. 373, 378, 52 L. ed. 1103, 1109, 28 Sup.
Ct. Rep. 708. Ab well might it be argued,
as was suggested in Goodrich y. Detroit,
supra, that whenever the city contemplated
A public improvement of any description,
it would be necessary to give notice to all
those who might be taxed to pay for it.
The established rule is "that it is only
those whose property is proposed to be
taken for a public improvement [428] that
due process of law requires shall have prior
notice." (Ibid.)
Nor is there ground for a distinction be-
cause the charter of Kansas City provided
Ji single proceeding, embracing both the
proposed condemnation and assessment for
benefits, and required notice to the prop-
erty owners within the benefit district.
The question under the 14th Amendment
is one of state power, not of state policy;
of what the state must accord, not of what
it may grant or withhold in its discretion.
Castillo V. McOonnico, 168 U. S. 674, 683,
42 L. ed. 622, 625, 18 Sup. Ct. Rep. 229;
Willoughby v. Chicago, 235 U. S. 45, 59
L. ed. 123, 85 Sup. Ct. Rep. 23. With re-
spect to neither proceeding, original or
supplementary, was it essential to due
process of law in making assessments that
the assessed owners should be heard on the
junount of the awards in condemnation.
Nor was there a denial of the equal protec-
tion of the laws because in the original pro-
ceeding there was such an opportunity,
together with a right of appeal. The as-
serted inequality sprang solely from the
fact that certain assessed owners, despite
the defective publication of notice, appeared
iind acquiesced in the proceedings. There
is no ground for the charge of a denial of
•equal protection because some owners were
willing to waive defects in procedure and
others were not. Differences due to volun-
tary action and diverse individual choices
constantly arise under equal laws. We con-
clude that the contention based on the re-
fusal to reopen the case as to the damages
awarded is wholly without merit.
With respect to the amount of the assess-
ments to pay these damages, it is apparent
that the question presented relates solely
to the right to insist upon a re-determina-
tion of the assessments laid upon the prop-
oi^ies of other owners, which those owners
had accepted and paid. Under the rulings
of the court, none of the plaintiffs in error
were assessable except for benefits actually
4tn4 specially accruing to their respective
properties; they were heard as [429] to
«0 li. ed.
these benefits and as to the amoimt of their
own assessments. Their objection as to the
matter of apportionment struck at the
finality of the other assessments. In the
only instance in which it could be said that
any right under the Federal Constitution
was specially and appropriately set up as
to apportionment it was urged that these
owners were entitled to be heard upon
"what proportion of the total benefit, if
any, of said improvement, should be assessed
against other property in the benefit dis-
trict, that upon the plat of which is marked
the word 'paid' as well as all other prop-
erty;" and because this was not allowed,
and the assessments which had been ac-
quiesced in and paid by other owners were
held to be final, a peremptory instruction
was asked that the jury should assess no
benefits. It is apparent that this objection
goes directly to the validity of the supple-
mental proceeding as such, and denies the
power of the state to authorize it. It
means that the only proceeding that could
constitutionally be taken in such a case
would be to have a trial de novo as to all
the assessments; and thus, where, as in
this instance, thousands of tracts are in-
volved, if a defect is found in the publica-
tion of the notice in the original proceed-
ing, and a property owner challenges his
assessment upon that ground, it would not
be sufiicient to give him a hearing as to
the amount of his own assessment, but he
could demand as a constitutional right a
re-determination of the assessments of all
others.
This contention is inadmissible. It is
true that all taxes and assessments are laid
by some rule of apportionment. Where the
scheme of distribution is palpably arbitrary
and constitutes a plain abuse, it may be
condemned as violative of the fundamental
conceptions of justice embodied in the 14th
Amendment. The principles involved in
such cases have recently been discussed and
need not be restated. Wagner v. Leser, 239
U. S. 207, ante, 230, 36 Sup. Ct. Rep.
66; Houck v. Little River Drainage Dist.
239 U. S. 254, 265, ante, 266, 274, 36 Sup.
Ct. Rep. 58; [430] Myles Salt Co. v. Iberia
k St M. Drainage Dist. 239 U. S. 478,
485, ante, 392, 896, 36 Sup. Ct. Rep. 204;
Gast Realty A Invest. Co. y. Schneider
Granite Co. 240 U. S. 55, 58, 59, ante,
523, 525, 36 Sup. Ct. Rep. 254; Embree Y.
Kansas City A L. B. Road Dist. 240 U.
S. 242, 250, 251, ante, 624, 628, 629,
36 Sup. Ot. Rep. 317. But the mere fact
that there may be inequalities is not enough
to invalidate state action. Davidson y. New
Orleans, 96 U. S. 97, 105, 24 L. ed. 616,
620; Walston y. Nevin, 128 U. S. 578, 582,
32 L. ed. 544, 546, 9 Sup. Ct. Rep. 192;
1079
480-432
SUPREME COURT OF THE UNITED STATES.
Oct. Temm,
FaUbrook Irrig. Dist t. Brmdlej, 164 U. S.
112, 176, 177, 41 L. ed. 369, 394, 17 Sup. Ct
Rep. 56; Houck ▼. Little RiTer Drainage
Dist 239 U. S. 478, 485, ante, 392, 396, 36
Sup. Ct. Rep. 58. Where aeaeesmente are
made by a political subdivision, a taxing
board, or court, according to special benefits,
the property owner is entitled to be heard as
to the amount of his assessment, and upon
all questions properly entering into that de-
tennination. 'If the legislature," as has
frequently been stated, "provides for notice
to and hearing of each proprietor, at some
stage of the proceedings, upon the question
what proportion of the tax shall be assessed
upon his land, there is no taking of his
property without due* process of law."
Spencer t. Merchant, 125 U. S. 345, 355,
356, 31 L. ed. 763, 767, 768, 8 Sup. Ct. Rep.
921; Paulsen t. Portland, 149 U. S. 30, 41,
37 L. ed. 637, 641, 13 Sup. Ct. Rep. 750;
Bauman v. Ross, 167 U. S. 548, 590, 42 L.
ed. 270, 288, 17 Sup. Ct. Rep. 96(1; Goodrich
T. Detroit, 184 U. S. 432, 437, 438, 46 L. ed.
627, 630, 631, 22 Sup. Ct. Rep. 397. What
is meant by his "proportion of the tax" is
the amount which he should be required to
pay, or with which his land should be
charged. As was said in Fallbrook Irrig.
Dist y. Bradley, 164 U. S. p. Vt 5, 41 L. ed.
394, 17 Sup. Ct Rep. 56, when it is found
that the land of an owner has been duly
included within a benefit district, "the
right which he thereafter has is to a bear-
ing upon the question of what is termed
the apportionment of the tax, i. e., the
amount of the tax which he is to pay." See
also French t. Barber Asphalt Paving Co.
181 U. S. 324, 341, 45 L. ed. 879, 888, 21
Sup. Ct Rep. 625. It is a very different
thing to say that an owner may demand
as a constitutional privilege, not simply an
inquiry as to the amount ot the aMsessment
with which his own property should rightly
be charged in the light of all relevant facts,
but that he should not be assessed at all
unless the assessments of other owners who
have paid without [431] queation and are
not complaining shall be reopened and rede-
termined. The 14th Amendment affords no
basis for a demand of that sort.
The separate contention of the Union
Depot Bridge Company is, as the state
court said, virtually one of res judioata. It
was insisted that, as a portion of its prop-
erty was assessed in the original proceed-
ing, and the assessment had been paid, It
could not be assessed on other portions in
the supplemental proceeding; that it must
be concluded that the jury in the original
proceeding had found that the other tracts
were not benefited. The question whether
the first Judgment had this effect was a
matter of state law; there Is nothing in
1080
the Federal Constitution to prevent the
assessment in the supplemental proceedings
of properties omitt^ from the first pro-
ceeding. Phcenix F. & M. Ins. Co. t. Tennes-
see, supra. The 7th Amendment, invoked
in. this connection, has no applicatios.
Minneapolis & St L. R. Co. v. BomboUs,
decided May 22, 1916 [241 U. S. 211, ante,
961, 36 Sup. Ct. Rep. 595.] The company
appeared in the supplemental proceeding
and was heard, and, so far as any Federal
question is concerned, does not appear to
be in a different case from that of the other
property owners.
We find no error in the decision of the
Federal questions and the Judgment is
affirmed.
Judgment affirmed.
[432] LEVINDALE LEAD k ZINC MIN-
ING COMPANY, W. H. Aaron, and M. L.
Levin, Plffs. in Err.,
V.
CHARLES COLEMAN.
(See S. C. Reporter's ed. 432-440.)
Indian allotments — restrictions on
alienation — nonmembers of tribe.
1. The restrictions on alienation of
Osage Indian allotments, imposed by the
act of June 28, 1906 (34 SUt at L. 539,
chap. 3572), do not apply to lands or any
interest therein which have come into the
possession of a white man not a member of
the tribe, under allotments made in the
right of certain deceased Indians to their
respective heirs.
[For other cases, see Indians, YIII., in Digest
8up. Ct. 1908.]
Indian allotments — restrictions on
alienation — ncmmembers of tribe.
2. A reslrictioA on alienation of Indian
allotments which have come into the pos-
session of a white man not a member of
the tribe, under allotments made in the
right uf deceased Indian allottees to their
respective heirs, was not imported into the
Osage allotment act of June 28, 1906 (34
Stat, at L. 639, chap. 3572), by the provi-
sion of the amendatory act of April 18,
1912 (37 Stat, at L. 86, chap. 83), that
"when the heirs of such deceased allottees
have certificates of competency, or are not
members of the tribe, the restrictions 'on
alienation are hereby removed," but such
provision should be regarded as intended to
meet the ruling of an inferior state court,
which had erroneously decided that the re-
strictions imposed by the earlier act ap*
plied to nonmembers of the tribe.
[For other cases, see Indians, YIIL, in Difest
Sap. (X 1908.]
[No. 322.]
•Argued April 25, 1916. Decided Jtms 6»
1916.
i41 V. s.
1015.
LEVINDALE L. ft Z. MIN. CO. v. COLEMAN.
433--436
IN ERROR to the Supreme Court of the
State of Oklahoma to review a decree
which afiirmed a decree of the District Court
-of Osage County, in that state, annulling a
conveyance of an Indian allotment. Re-
versed and remanded for further proceed-
ings.
See same case below, 43 Okla. 13, 140
Pac. COT.
Ihe facts are stated in the opinion.
Mr. II. P. White argued the cause and
filed a brief for plaintiffs in error.
Mr. Preston A. Shinn argued the cause
and filed a brief for defendant in error.
[433] Mr. Justice Hnghca delivered the
opinion of the court:
Charles Coleman, the defendant in error,
brought this suit to set aside a conveyance
of an undivided interest in lands inherited
from his Indian wife and child, who were
members of the Osage Tribe. Judgment
was entered annulling the conveyance upon
the ground that it was executed in violation
of restrictions imposed by Congress. The
judgment was afiirmed by the supreme court
of the sUte (43 Okla. 13, 140 Pac. 607), and
this writ of error has been sued out.
The case was decided upon a motion for
judgment on the pleadings, and there were
special findings of the facts which the plead-
ings disclosed. It appears that the plain-
tiff, Charles Coleman, was a white man,
lawfully' married to an Indian woman, Mary
Chesewalla; that their child, Joseph Cole-
man, was born on February 27, 1906, and
died on the same day, leaving his father
and mother his sole heirs; that his mother
died intestate on February 28, 1906, leav-
ing as her sole heirs Charles Coleman, Her-
bert Chesewalla, and Floyd Chesewalla ; that
both decedents were duly enrolled as mem-
bers of the Osage Tribe, and were entitled
to allotments under the act of Congress of
June 28, 1906 (34 SUt. at L. 639, chap.
3572) ; and that, after their death, allot-
ments were made in their right to the heirs
of each respectively, the allotment deeds
being approved by the Secretary of the In-
terior and recorded in the year 1909. By
the death of his wife and child the plain-
tiff took title as heir to an undivided one-
half interest in the lands allotted in the
right of the former, and to an undivided
three-fourths interest in lands allotted in
the right of the latter. These lands have
not been partitioned. In February, 1909,
Charles Coleman conveyed by warranty
deed his undivided interest to the defend-
ant (plaintiff in error) the Levindale Lead
ft Zino Mining Company. It is further set
forth that his wife had not received [434]
a certificate of competency. There was no
eo li. ed.
finding and no basis in the record for a
finding that Charles Coleman was a member
of the Osage Tribe by adoption, enrolment,
or otherwise.
The lands prior to the allotment were
Indian lands (17 Stat, at L. 228, chap.
310), and there is no controversy as to the
power of Congress, in providing for allot-
ments, to impose restrictions upon aliena-
tion. The question is as to the construc-
tion of the provisions of the allotment act
of June 28, 1906.
That act provided that the roll of the
Osage Tribe as it existed on January 1,
1906, with the additions specified, should
be the roll of the tribe and constitute its
"legal membership." Children born be-
tween January 1, 1906, and July 1, 1907,
to persons whose names were on the roll
on the first-mentiened date, "including the
children of members of the tribe who have,
or have had, white husbands," were to be
recognized as members for the purposes of
the division. (Sec. 1.) All lands were to
be divided "among the members of said
tribe, giving to each his or her fair share
thereof in acres" as specifically set forth;
that is, "each member" as shown by the
roll was to be allowed to make three selec-
tions of 160 acres each in the manner de-
scribed. (Sec. 2.) Restrictions were im-
posed as follows:
"Each member of said tribe shall be per-
mitted to designate which of his three
selections shall be a homestead, and his
certificate of allotment and deed shall desig-
nate the same as a homestead, and the same
shall be inalienable and nontaxable until
otherwise provided by act of Congress. The
other two selections of each member, to-
gether with his share of the remaining lands
allotted to the member, shall be known as
surplus land, and shall be inalienable for
twenty-five years, except as hereinafter pro-
vided." (Sec. 2, Fourth.)
After "each member" had made the three
selections, the [435] remaining lands of
the tribe, except as stated, were to be divided
"as equally as practicable among said mem-
bers by a conunission to be appointed."
(Sec. 2, Fifth.) The Secretary of the In-
terior in his discretion, at the request of any
"adult member of the tribe," was to issue
"to such member a certificate of competency,
authorizing him to sell and convey any of
the lands deeded him by reason of this act»
except his homestead, which shall remain
inalienable and nontaxable for a period of
twenty-five years, or during the life of the
homestead allottee," if, upon investigation,
"he shall find any such member fully com-
petent" to care for his affairs. It was pro-
vided that upon the issuance of such a cer-
tificate of competency the lands of sueh
IQSl
435-437
SUPREME CX)URT OF THE UNITED STATES.
Oct.
9»
tf
'Member/' except homestead lands, should
"become subject to taxation/' and that
"such member," except as provided, should
have the right to "manage, control and dis-
pose of his or her lands the same as any
citizen of the United States.'' It was fur-
ther provided that the surplus lands should
be "nontaxable" for the period of three
years from the approval of the act "except
where certificates of competency are issued
or in case of the death of the allottee, un-
less otherwise provided by Congress." (Sec.
2, Seventh.) Oil, gas, coal or other min-
erals "covered by the lands" were "reserved
to the Osage Tribe for a period of twenty-
five years." (Id. §3.) Ail funds belonging to
the tribe, and moneys accruing to it, were
to be "held in trust by the United Statei
for the period of twenty-five years" from
January 1, 1007, except as provided. The
funds of the tribe, and moneys accruing
from the sale of Kansas lands, together with
those due upon claims against the United
States, were to be segregated and placed to
the credit of the "individual members" of
the tribe "on a basis of a pro rata division,
or "to their heirs as hereinafter provided,
and such credit was to draw interest, to be
''paid quarterly to the members entitled
thereto;" and the disposition of royalties
[4136] from mineral leases was specially
prescribed. (Sec. 4.) At the expiration of
twenty-five years from January 1, 1907, the
lands, mineral interests, and moneys held in
trust by the United SUtes were to be the
absolute property of the "individual mem-
bers" of the tribe, according to the roll,
"or their heirs, as herein provided," and
deeds were to be issued accordingly. (Sec.
5.) Sections 6 and 7 are as follows:
"Sec 6. That the lands, moneys, and min-
eral interests, herein provided for, of any
deceased member of the Osage Tribe shall
descend to his or her legal heirs, according
to the laws of the territory of Oklahoma,
or of the state in which said reservation
may be hereinafter incorporated, except
where the decedent leaves no issue, nor
husband nor wife, in which case said lands,
moneys, and mineral interests, must go to
the mother and father equally.
"Sec. 7. That the lands herein provided
for are set aside for the sole use and bene-
fit of the individual members of the tribe
entitled thereto, or to their heirs, as herein
provided; and said members, or their heirs,
shall have the right to use and to lease
said lands for farming, grazing, or any oth-
er purpose not otherwise specifically pro-
vided for herein, and said members riiall
have full control of the same, including the
proceeds thereof: Provided, That parents
of minor members of the tribe shall have the
control and use of said minors' lands, to-
1081
gether with the proceeds of the same, until
said minors arrive at their majority: And
provided further, That all leases given on
said lands for the benefit of the individual
members of the tribe entitled thereto, or
for their heirs, shall be subject only to the
approval of the Secretary of the Interior."
Deeds to the Osage lands were to be exe-
cuted by the principal chief, but were not
to be valid until approved by the Secretary
of the Interior (i 8), and it was further
provided that whatever was necessary to
carry into effect the provisions of the act
should be done under the authority [437]
of this officer (S 12). R^^lations have been
adopted by the Secretary of the Interior
governing the leasing (under SS 7, 12) of
lands "allotted to Osage Indians." These
provide, among other things, that "lands of
deceased allottees may be leased by the heirs
jointly," as stated. (Regulations 11, 12,
approved October 25, 1910; 8, approved
June 17, 1913.)
llie provisions of the allotment act must
be construed in the light of the policy they
were obviously intended to execute. It waa
a policy relating to the welfare of Indians,
— awards of the United States. The estab-
lishment of restrictions against alienation
"evinced the continuance, to this extent, at
least, of the guardianship which the United
States had exercised from the beginning."
Heckman v. United SUtes, 224 U. S. 413,
436, 66 L. ed. 820, 829, 32 Sup. Ct. Rep.
424; United SUtes v. Kagama, 118 U. S.
376, 384, 30 L. ed. 228, 230, 6 Sup. Ct.
Rep. 1109; United SUtes v. Rickert, 188
U. S. 432. 437, 43^, 47 L. ed. 532. 536, 23
Sup. Ot. Rep. 478; Marchie Tiger v. West-
em Invest. Co. 221 U. S. 286, 316, 55 L. ed.
738, 749, 31 Sup. Ct Rep. 578; WiUiams
V. Johnson, 239 U. S. 414, 420, ante, 358, 360,
36 Sup. Ct. Rep. 150. This policy did not em-
brace white men, — ^persons not of Indian
blood, — ^who were not as Indians under na-
tional protection, although they might in-
herit lands from Indians; and, with respect
to such persons, it would require clear lan-
guage to show an intent to impose restric-
tions.
Taken in their natural sense, the provi-
sions of the fourth paragraph of S 2 apply
only to allotmento made to members of the
tribe. There is nothing to suggest that a
nonmember should designate a "homestead,"
and unless lands were thus segregated the
restrictions as to "homesteads" would not
apply. With respect to "surplus lands," it
will be observed that it is only selections of
each "member," and the share of remain-
ing lands "allotted to the member," which
constitute lands so described and thus come
under the sUted restrictions. It was early
ruled administratively that under g 6 the
141 U. 8.
1016.
LEVINDALE L. k Z. MIN. CO. ▼. COLEMAN.
437-440
right to the member's share, though un-
allotted in his lifetime, passed to his legal
heirs as there [4138] defined, and this we
assume to be the meaning of the statute.
But the fact that the nonmember takes in
the right of the deceased member is not
enough to subject him to restrictions which
are plainly imposed for the protection of
members. It is urged that the restrictions,
by virtue of their terms, were to run with
the land until they expired by limitation or
were removed (Bowling v. United States,
233 U. 8. 628, 68 L. ed. 1080, 34 Sup.
Ct. Rep. 669), but restrictions would
not run with the land unless they had
attached. And, even where they had at-
tached, they would run only according
to the intendment of the statute. Wf
find no indication of an intent that they
should apply to lands, or an interest in
lands, which had come lawfully into the
ownership of white men who were nonmem-
bers of the tribe. Emphasis is placed by
the defendant in error on the provisions of
S 7 as to leases; but it would be an inad-
missible construction of this section to say
that the word "heirs" was there used in
contradistinction to ''members." This pro-
vision as to leases, in the light of the pur-
pose of the act, had reference, we think, to
the "individual members" who received al-
lotments and the Indian heirs of such mem-
bers.
The view we have taken of the inapplica-
bility of the restrictions upon alienation in
a case like the present finds support in the
fact that there was no provision for giving
to nonmembers certificates of competency.
Under the seventh paragraph of S 2, any
"adult member" of the tribe, although a
full -blood Indian, who could satisfy the
Secretary of the Interior of his ability to
transact hia own business, might obtain a
certificate and thus be enabled to dispose of
his "surplus land;" but a competent white
man, not a member, could not be relieved.
It would seem to be evident that such an
incongruous result was not intended, the
language plainly showing that Indians alone
were deemed to be subjected to the restric-
tions.
It is insisted that subsequent legislation
ffi pari materia indicates the contrary. Ref-
erence is made to the acts [439] of March
3, 1909 (36 SUt. at K 778, chap. 266), and
of April 18, 1912 (37 Stat, at L. 86, chap.
83). The former does not aid this con-
tention, but is rather opposed to it. The
statute authorized the Secretary of the In-
terior to sell "part or all of the surplus
lands of any member" of the Osage Tribe,
but contained no authority to deal with
•0 li. ed.
lands of nonmembers. It will also be ob-
served that prior to this act there was a
joint resolution of February 27, 1909 (36
Stat, at L. 1167), providing that "home-
steads of members of the Osage Tribe" may
consist of land designated from any one or
more "of their first three allotment selec-
tions;" this docs not suggest that nonmem-
bers were supposed to designate **home-
steads." But it is the act of 1912 upon
which chief reliance is placed. This was
"supplementary to and amendatory of" the
act of 1906, and provides, among other
things, in § 6, relating to the lands "of de-
ceased Osage allottees," that "when tne heirt
of such deceased allottees have certificates
of competency or are not members of the
tribe, the restrictions on alienation are here-
by removed." We lay aside the suggestion
that "deceased Osage allottees" may be
taken to mean only members who received
allotments in their own right while living,
expressing no opinion upon that point. For
not only is a legislative declaration of the
intent of a previous act not absolutely con-
trolling, but we think that in the present
instance the purpose of Congress is mani-
fest. This suit had been decided in the
district court of the state in December, 1910,
and it had been there held that the restric-
tion applied to nonmembers. The case had
been appealed, but it may well be supposed
that Congress intended to remove the re-
striction upon a nonmember, if such a re-
striction could be deemed to exist. That,
we are satisfied, was the object of the pro-
vision, and it was not an attempt to im-
port into the earlier act a restriction which
lay wholly outside its express terms and the
policy of guardianship it was intended to
execute.
[4M0] We confine ourselves to the single
point presented. There is no c<mtroversy
whatever as to the authority of the Secre-
tary of the Interior, where there are un-
divided interests belonging to Indians, ade-
quately to protect those interests according
to the statutory provisions to this end. Our
conclusion simply is that the act ot 1906
placed no restrictions upon the alienation
of land, or undivided interests in land, of
which white men who were not members of
the tribe became owners.
The judgment is reversed and the case ia
remanded for further proceedings not incon-
sistent with this (pinion*
It is so ordered.
Mr. Justice McReynolds took no part
in the consideration and decision of thii
case.
loss
SUPREME COURT OF THE UNITED STATES. Ocn. Tmi,
PACIFIC LIVE STOCK COMPANY, Appt,
JOHN H. LEWIS, Juan T. ChlnDock, ud
QcoTga T. Cochru, Conatituting tbe Stats
Wkter Board bf the SUt« of Oregon, et
. eept th« Tiew of tbe hlgliMt itate court,
the neeewary mult of the highnt Murfi
eoDitmctton of a state ttatnte, that tk«
froceeding authorited and eontrolled br )
mtA'» (Or.) I«wt, tit. 43, ehtip. B, U«i
IS13, ehapa. hi, M, and B7, lor th*
determination of the relative rtgfata <f
,r, a n T^ *" '''" claimanta to the water of the
(See B. 0. Reporter'! ed. *4(MBS.) itream for irrimtion or other beneflriil
pnrpoeee, ii, while pending before the State
AppMl - from dialrlct conM - OMe re- ^,^^1 ^■'^' T^i^ P"limiaarj and ad-
nuinded to aiue court minlrtrative, not JudicUl.
1. An order of a Federal dUtrict court, 'Tu.SS'"fl»rct iSosS'^^ ^"^ *■ *■ *
remanding a cauae to a lUte court, ii not „ . ' . ,
mbject to review by the Federal Supreme ConetHnUonal law — dne prooM* oC
Court, either directly or Indirectly. '■* — ppoeeedlnje befMe SUta Wat«r
[For otti«r c(ip(, we Appeal and Error, III. Board — fees.
d, 8. b. In Ulinc Sup. Ct 1B08.I 4. A claimant to rlghU in the waUn ol
Oonrta — oonHlctlnc Jurladlcllon — a atream ia not deprived of property with-
priority — Identity of proceicdlnis. out due proceH of law, contrary to U. S.
2. The proceeding before the State Wa- Conat., ]4t]i Amend., becauae, in the pre-
ter Board, . authorized by 3 Lord'e (Dr.) Ilminarj Bdminiitrative proceeding before
Lawa, tit. 43, chap. 6, Lawa 1913, ebapa. 8S, the State Water Board, lnitiat«d under I
80, and 97, looking to the complete aacer- t«rd'a (Or.) Uiwa, tit. 43, chap. 0, Lawa
tainnent and adjudication of the relative 1913, chapa. S2. 80, and 97, to determioa
rights of all the claimanta to the watera of the relative righta of all the ciaimanu lo
« atream for irrigation and other iMneficial the water of the atream for irrigation and
purpoiea, ia ao eaaentially different from other beneficial purpoaea, be la required, at
pending private auita between a few only hia own expenae, Botwithatandins the in-
of auch daimanta, previoualy l>cguB in a conclusiveneaa of the board'a flndinga and
Federal court, to reatraln alleged encroach- order, to aasert and prove hie claim before
menta npon plaintiff'a righLa in the water the board, and to pay tor having it eon-
of the atream, aa to preclude the applica- aidcred, a fee of 16 centa per acre tor tbe
tion of the rule that where the aame matter ^rat 100 acrea, 6 centa per acre for the neit
ia brought before court* of competent ju- BOO acrea, and 1 cent per acre for any ex-
riadiction, tbe one Brat obtaining juriadic- ceaa over 1,000 acrea. — all under penaltv ol
tion will retain it until tbe controveray la forfeiting hia claim if be refuaea, — wher*
determined, to the entire exclusion of the ^U the evidence laid before the board go«a
other, and will maintain and protect ita before tbe court on final bearing, there to
Jvrladietlon by an appropriate injunction, be accorded Ita proper weight and value,
[tor other caaei, tei- Courta, VI. g, 1, In Dl- l*'"' other caaea. aee Conxltutional Law. IT.
■eat Bup. Cl. IQOS.) b, B. a. in Dlseat Hup. CI. 1008.1
Federal courts — followInK ntale court Conetitutlonnl law — due proccaa ol law
decision — conatrnctlou of loc»l ■IbI> — proceed insB before Sute Wal«r
nie. Board — evidence.
3. The Federal Supreme Court will ac- ^- '^^^ proceedinga before the State
Water Board authorised and controlled bf
NoTE.-On direct review in Federal Su- ?„}f ^**if '^''i' 'f*"' V'i,^^ =''JP <"• "*"
preme Court of judgmenta of district or 1613. chape. 82, 86. and 97, for the purpoM
circuit court8-.ee notea to Gwin v. United ?' determining the relative rights of aU
SUtes, 40 U ed. U. 8. 741, and B. Altman f*". e'".""'"*' to the water of a atream for
k Co. V. United SUtea, 68 L. ed. U. S. 884. '"igation and other beneacial purposes, are
Aa to state decisions and Uwa as rules of "5" wanting in due proceaa of law because
decision in Federal courts-.ee notes to t">e a«ora statement, of claimant, are ta^M
Qark v. Graham, B L. ed. U. S. 334 : Elmen- '" P*''" '" """ *"' matance, and the rtaU
dorf v. Taylor, 6 L. (d. U. 8. 200; JackK)n ""g'n^r'a "port ia accepted, though not
ex dem. St. John r. Chew, 6 L. ed. U. S. 'V"' ^, !"? """i' " P""""": ^"" evidence,
B83; Mitchell v, Burlington, 18 L. ed. U S "^^r* F'*'""*"'" atatemeota are open t.
361; United Statea eTrel. Bute v. Muaca- P"""''" "lapMtion, opportuMty ia given lor
tine, 10 L. ed. U. S. 490; Forepauoh v. ""tf't'ns t*"™. ""a- «P<n> the hearing ol
DeUware, L. A W. R. Co. 6 L.R.A. 608; and tl"^?""^**. witness, may be examined, in-
SnareiT. Co. V.Friedman, 40 L.R-A.(N.S.) "'"ding those making the ataUment^ and
3g0 any appropriate evidence may be produced.
As to what constitute, due proee.. of law, f.""* "''f * "'^ measuremente and examina-
Cnerally— see notes to Pwple v. O'Brien, 2 , *'°"' '^°™ '" . *]"*, '"f"^'' * "?"« ^
R.A. 2G6; Kunti v. Sumption. 2 L.R.A. RJ^." .""j* "P*""*^ in the diadiarge of hia
656; Re Gannon. 6 L.R.A. 369; Ulman ,. I oOcial duties and under unction of hu
Baltimore, 11 L.R.A. 224; Qilma^ v. Tucker, «*^ of office, and timely notice of the date
13L.R.A. 304; Pearson v.Yewdall, 24 L.ed. I *''f" *^*' "' ^ *^"' *■ «*'"» ^ •"
U. S. 436, and WilsMi v. North Carolina, 42 | r''""°'*' „ „„ „^.. , , _
I^ pd II R flHS ^^ l*^""^ other isaea, ae* ConsUtnllonal law, IT.
7-™: ^- °- ""*■ b. 8, d, in Dlfcat Sop. Ct 1908.1
1916.
PACIFIC UVB STOCK CO. v. LEWIS.
ConsUtuUonal law — dae proceM of
law — prima facie correctness of ad-
ministraUYe order.
6. The requirement of 3 Lord's (Or.)
Laws, tit 43, chap. 6, Laws 1913, chaps.
82, 86, 97, that, pending final adjudication
by the court, the waters of a stream shall
be distributed to the Tarious claimants ac-
cording to the administrative order of the
State Water Board unless a suitable bond is
given to stay the operation of such order,
is not wanting in due process of law, where
the order is made only after adequate notice
and full opportunity to be heard.
{For other cases, lee Conitltutlonal Law, IV.
b, 8, a, in Digest 8ap. Ct 1908.]
[No. 300.]
Argued March 16, 1916. Decided June 5,
1916.
APPEAL from the District Court of the
"United States for tiie District of Ore-
gon to review a decree dismissing the bill
in a suit to enjoin a proceeding before the
State Water Board for the determination
of the relative rights of the claimants to
the water of a stream for irrigation and
other beneficial purposes. Affirmed.i
See same case below, on motion for in-
terlocutory injunction, 217 Fed. 95.
The facts are stated in the opinion.
Mr. £dward F. Treadwell argued the
cause, and, with Messrs. Alexander Britton.
Evans Browne, and F. W. Clements, filed a
brief for appellant:
A water ri^t by appropriation or by vir-
tue of riparian ownership is a vested right
of property as much as the land on which
it is enjoyed or of which it is a part.
San Joaquin & K. River Canal & Irrig.
Co. V. Stanislaus County, 233 U. S. 454, 68
L. ed. 1041, 34 Sup. Ct. Rep. 652; Palmer
V. Railroad Commission, 167 Cal. 163, 138
Pac. 997.
If such a taking of property be deemed a
taking for a public use, then it is taken
without compensation, and the taking of
private pr<^»erty for public use without com-
pensation is a taking without due process
of law.
Chicago, B. & Q. R. Co. v. Chicago, 166
U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep.
581.
If such taking be considered as for the
private benefit of other appropriators, then
the taking of private property for a private
use is equally in violation of the due process
provision of the Constitution.
iLeave granted to present petition for re-
hearing herein within thir^ days, on motion
of Mr. Evuis Browne in behalf of counsel
for the appellant.
June 12, 1916.
40 li. ed.
Davidson v. New Orleans, 96 U. S. 97, 24
L. ed. 616.
Even when the state desires to take the
property of an individual for public use,
and proceeds to do so by the ordinary pro-
cess of eminent domain, the owner cannot
be made to bear any portion of the expense
incident to such proceeding, either in the
trial court, or in any appellate court to
which the proceeding may be taken by either
side.
San Diego Land & Town Co. ▼. Neale, 88
Cal. 67, 11 L.RJL 604, 25 Pac. 977; San
Francisco v. Collins, 98 Cal. 263, 33 Pac.
56.
One of the essentials of due process of
law is the existence of a tribunal having
jurisdiction to decide the matter in issue.
Carr v. Brown, 20 R. I. 215, 38 LR.A.
294, 78 Am. St Rep. 855, 38 Atl, 9 ; Chi-
cago, B. & Q. R. Co. V. Chicago, supra;
Twining v. New Jersey, 211 U. S. 78, 53
L. ed. 97, 29 Sup. Ct. Rep. 14.
The distinction between requiring one to
submit his rights to a special tribunal hav-
ing jurisdiction and authority to make a
final and binding adjudication as to the
rights of property, and requiring the sub-
mission of the same to a mere ministerial
board having no such authority, has been
cjearly and emphatically recognized by this
court.
United States v. Throckmorton, 4 Sawy.
42, Fed. Cas. No. 15,121; Botiller v.
Dominguez, 130 U. S. 238, 32 L. ed. 926,
9 Sup. Ct. Rep. 525.
Following the same course of reasoning,
it has been held that the owner of a vested
water right cannot be held liable for the
expenses of a mere administrative proceed-
ing for the purpose of ascertaining the ex-
tent and existence of his rights. This was
directly held by the supreme court of South
Dakota, passing upon the water law of that
state, in the case of St. Germain Irrig.
Ditch Co. V. Hawthorne Ditch Co. 32 S. D.
260, 143 N. W. 124.
llie immunity of the owner of a vested
right in water from the acts of the state
engineer under the water law of the state
of Nevada has been recently passed upon
by the supreme court of the state of Ne-
vada in the case of Knox v. Kearney, 37
Nev. 393, 142 Pac 526. In that case the
legislature of the state of Nevada had
passed an act providing in substance the
same as the Or^on act for a proceeding
before the state engineer for the determina-
tion of water rights, and requiring all
claimants to appear in such proceeding and
to set up and establish their rights on pain
of forfeiting the same. Knox, the owner of
a vested water right, brought his bill in
equity against the state engineer, alleging
10A&
SUPREME COURT OF THE UNITED STATES.
Oct.
the ownership of such right and the threat-
ened interference therewith by the state
engineer, pursuant to the provisions of that
act. In fact, his complaint was, in all sub-
stantial particulars, tiie same as the bill of
complaint here under review.
See also Anderson v. Kearney, 37 Nev.
314, 142 Pac. 803.
The opinion of the United States district
court, in sustaining the demurrer to the bill
of complaint in the case at bar, is based on
the contention that it was optional with
complainant to appear or not to appear in
the adjudication proceeding. This is con-
trary to the decision of the supreme court
of Oregon, construing this act.
Pacific Livestock Co. y. Cochran, 73 Or.
417, 144 Pac. 668.
Of course it is well settled that a decision
of the highest court of a state, construing
an act of the legislature of the state, is
binding and conclusive in the Federal
courts.
Forepaugh v. Delaware, L. & W. R. Co. 5
L.R.A. 608, note; Esty, Fed. Proc. 9th ed.
pp. 808 et seq.
If the proceeding to adjudicate water
rights be held to be a judicial proceeding
for the final determination of water rights,
the Federal court, having acquired jurisdic-
tion over the subject-matter, as between the
complainant and the defendants, the Wil-
liam Hanley Company, the Silvies River
Irrigation Company, and Harney Valley Im-
provement Company, before such proceeding
was instituted, that court should retain that
jurisdiction to the end, and should enjoin
the defendants from prosecuting and pro-
ceeding in the state tribunal in such a man-
ner as to interfere with the prior jurisdic-
tion of the Federal court; and the bill of
complaint herein should have been sustained
for the purpose of protecting that jurisdic-
tion and giving that relief.
Taylor v. Taintor, 16 Wall. 366, 370, 21
L. ed. 287, 290; Harkrader y. Wadley, 172
U. S. 148, 164, 43 L. ed. 399, 404, 19 Sup.
Ct. Rep. 119; Prout v. Starr, 188 U. S.
537, 644, 47 L. ed. 684, 587, 23 Sup. Ct.
Rep. 398; Ex parte Young, 209 U. S. 123,
161, 162, 52 L. ed. 714, 729, 730, 13 L.R.A.
(N.S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann.
Cas. 764; Rickey Land & Cattle Co. v.
Miller & Lux, 218 U. S. 258, 262, 54 L. ed.
1032, 1038, 31 Sup. Ct. Rep. 11; Pitt v.
Rodgers, 43 C. C. A. 600, 104 Fed. 390;
Mercantile Trust & D. Co. v. Roanoke & S.
R. Co. 109 Fed. 6; Iron Mountain R. Co.
v. Memphis, 37 C. C. A. 410, 96 Fed. 131 ;
Home Ins. Co. v. Virginia-Carolina Chemical
Co. 109 Fed. 689; Starr v. Chicago, R. I.
k P. R. Co. 110 Fed. 6; State Trust Co.
v. Kansas City, P. & 6. R. Co. 110 Fed.
12; Central Trust Co. r. Western North
1086
Carolina R. Co. 112 Fed. 471; Stewart ▼.
Wisconsin C. R. Co. 117 Fed. 782; Equitable
Trust Co. V. Pollitz, 124 C. C. A. 634, 207
Fed. 74 ; French v. Hay, 22 Wall. 238, 253,
22 L. ed. 854, 858; Dietzsch v. Huidekoper,
103 U. S. 494, 26 L. ed. 497; Western U.
Teleg. Co. v. Louisville & N. R. Co. 120
C. C. A. 257, 201 Fed. 922; St Louis, I. M.
ft S. R. Co. v. Bellamy, 211 Fed. 172.
Where a case is removed, a bill in eqiutj
will lie to restrain proceedings in. a state
court.
Madisonville Traction Co. y. St. Bernard
Min. Co. 196 U. S. 239, 244, 49 L. ed. 462,.
464, 25 Sup. Ct. Rep. 251 ; Wagner v. Drake,
31 Fed. 853; Baltimore & 0. R. Co. v. Ford,
35 Fed. 173; Abeel v. Culberson, 56 Fed.
331; Mutual L. Ins. Co. v. Langley, 145 Fed.
415; Chicago, R. I. & P. R. Co. v. Stepp,.
151 Fed. 908, affirmed in 22 L.RJL(N.S.)
350, 90 C. C. A. 431, 164 Fed. 785; McAlister
V. Chesapeake & O. R. Co. 85 C. C. A. 316,
157 Fed. 743, 13 Ann. Cas. 1068; Donovan
V. Wells, F. k Co. 22 L.ILA.(N.S.) 1250,
94 C. C. A. 609, 169 Fed. 371.
The proceeding was removable:
(a) The suggestion that a (Hroceeding to
determine water rights is in the nature of
a partition suit, and therefore not remov-
able, is not sustainable, for the reason that
it is universally held that appropriatora of
water are not tenants in common, nor joint
tenants, but that the right of each is sepa-
rate.
Foreman v. Boyle, 88 Cal. 290, 26 Pac.
94; Senior v. Anderson, 138 Cal. 723, 72
Pac. 349; Norman v. Corbley, 32 Mont. 195,.
79 Pac. 1059; Telluride v. Davis, 33 Colo.
355, 108 Am. St. Rep. 101, 80 Pac. 1051;
Hildreth v. Montecito Creek Water Co. 13»
Cal. 22, 72 Pac 395; McMuUen v. Halleek
Cattle Co. 193 Fed. 282; SUnbrough v.
Cook, 3 L.R.A. 400, 38 Fed. 369; Connell r.
Smiley, 156 U. S. 335, 39 L. ed. 443, 15 Sup.
Ct. Rep. 353; Sharp v. Whiteside, 19 Fed.
150; Fritden v. Boatmen's Bank, 212 U. S.
364, 53 L. ed. 551, 29 Sup. Ct. Rep. 366;
Elkins V. Howell, 140 Fed. 157; Mississippi
& R. River Boom Co. v. Patterson, 98 U. S.
403, 25 L. ed. 206; Pacific R. Removal Cases,
115 U. S. 1, 29 L. ed. 319, 5 Sup. Ct. Rep.
1113; Searl v. School Dist. 124 U. S. 197,
31 L. ed. 415, 8 Sup. Ct. Rep. 460; Madison-
ville Traction Co. v. St. Bernard Min. Co.
196 U. S. 239, 49 L. ed. 462, 25 Sup. Ct.
Rep. 251 ; Sugar Creek, P. B. & P. C. R. Co
V. McKell, 75 Fed. 34; Deepwater R. Co.
V. Western Pocahontas Coal ft Lumber Co.
152 Fed. 824.
(b) The claim that the proceeding is not
judicial, because the board has no power to
make an adjudication of the rights of the
claimants, is unfounded under the terms of
the act.
141 U. 8.
J 915.
PACIFIC LIVE STOCK CO. v. LEWIS.
Wattles V. Baker County, 69 Or. 255, 117
Pac. 417; Gray, Nature k Sources of Law,
p. 110.
(c) If the suggestion be adopted that the
proceeding is, to all intents and purposes,
in the court all the time, and the board is
in effect a standing examiner, created by
the state, charged with the duty, when re-
quested by the users of water, of examining
into and reporting to the court the facts
on which the rights of the various claimants
are based, so tliat such rights may be au-
thoritatively settled and determined by a
judicial tribunal, — then we are aa much en-
titled to have the evidence taken and the
facts found in the Federal courts as we are
to have the adjudication made therein.
Prentis v. Atlantic Coast Line Co. 211
U. S. 210, 238, 63 L. ed. 150, 163, 29 Sup.
Ct. Rep. 67; Smyth v. Ames, 169 U. S. 478,
42 L. ed. 838, 18 Sup. Ct. Rep. 418; Willcox
V. Consolidated Gas Co. 212 U. S. 19, 63
L. ed. 382, 48 L.R.A.(N.S.) 1134, 29 Sup.
Ct. Rep. 192, 16 Ann. Cas. 1034; Des Moines
City R. Co. V. Des Moines, 161 Fed. 864.
(d) The third ground relied upon, name-
ly, that the proceeding is by the state, finds
no support in the act. The state has no
title to the water whatever.
Howell V. Johnson, 89 Fed. 666; Palmer
▼. Railroad Commission, 167 Cal. 163, 138
Pac. 997; Keene v. Smith, 44 Or. 625, 76
Pac. 1066.
(e) The main ground, however, for the
contention that the proceeding is not remov-
able, is the claim that the proceeding is ad-
ministrative, and not judicial. The pro-
ceeding is judicial no matter what may be
the nature of the action of certain officials
therein.
People ez rel. Morgan v, Hayne, 83 Cal.
Ill, 7 L.R.A. 348, 17 Am. St. Rep. 217, 23
Pac. 1; Re Silvies River. 199 Fed. 496.
(f) There is one, and only one, proceed-
ing provided or contemplated from the in-
auguration of the proceeding.
The jurisdiction of the Federal courts
eannot in any way be affected, abridged, or
defeated by state legislation prescribing new
or different modes of procedure for the de-
termination of civil rights, or creating spe-
cial tribunals to determine such rights, or
prescribing new forms of procedure for the
ascertainment and determination thereof.
Pennsylvania v. Wheeling & 6. Bridge, 13
How. 618, 662, 14 L. ed. 249, 268; Dodge v.
Woolsey, 18 How. 331, 346, 16 L. ed. 401,
407; Barber y. Barber, 21 How. 682, 689,
16 L. ed. 226, 229; Payne v. Hook, 7 Wall.
425, 19 L. ed. 260; Mississippi Mills ▼.
Cohn, 150 U. S. 202, 37 L. ed. 1062, 14 Sup.
Ct. Rep. 76; Williams v. Crabb, 69 L.R.A.
425, 54 C. C. A. 213, 117 Fed. 193; Ray v.
Tatum, 18 C. C. A. 464, 30 U. & App. 636,
60 li* ed.
72 Fed. 112; Robinson v. Campbell, 3 Wheat.
212, 4 L. ed. 372; Lorman v. Clarke, 2 Mo-
Lean, 568, Fed. Cas. No. 8,516; Fletcher v.
Morey, 2 Story, 565, Fed. Cas. No. 4,864;
Gordon v. Hobart, 2 Sumn. 401, Fed. Cas.
No. 6,609 ; Parsons v. Lyman, 5 Blatchf . 170,
Fed. Cas. No. 10,780; Lawrence v. Nelson,
143 U. S. 215, 36 L. ed. 130, 12 Sup. Ct.
Rep. 440; Suydam v. Broadnoz, 14 Pet. 67,
10 L. ed. 357; Union Bank v. Vaiden, 18
How. 503, 16 L. ed. 472; Hyde v. Stone, 20
How. 170, 175, 15 L. ed. 874, 875; Hess v.
Reynolds, 113 U. S. 73, 28 L. ed. 927, 5 Sup.
Ct. Rep. 377; Borer v. Chapman, 110 U. S.
587, 30 L. ed. 632, 7 Sup. Ct. Rep. 342;
Byers v. McAuley, 149 U. S. 008, 37 L. cd.
867, 13 Sup. Ct. Rep. 906; Brun v. Mann,
12 L.R.A.(N.S.) 154, 80 C. C. A. 513, 151
Fed. 145; Craigie v. McArthur, 4 Dill. 474,
Fed. Caa. No. 3,341; Foley v. Hartley, 72
Fed. 570; Re Foley, 76 Fed. 390; Toms v.
Owen, 62 Fed. 417 ; Wood v. Paine, 66 Fed.
807; Heaton v. Thatcher, 59 Fed. 731; Wick-
ham V. Hull, 60 Fed. 326; Zimmerman v.
Carpenter, 84 Fed. 747; Brown v. Ellis, 86
Fed. 357; Domestic & F. Missionary Soc. v.
Gaither, 62 Fed. 422 ; Continental Nat. Bank
v. Heilman, 81 Fed. 36; Brendel v. Charch,
82 Fed. 262; Re Cilley, 58 Fed. 977; Com-
stock V. Heron, 6 C. C. A. 266, 6 U. S. App.
626, 56 Fed. 803; Martin v. Fort, 27 C. C.
A. 428, 64 U. S. App. 316, 83 Fed. 19;
Hayes y. Pratt, 147 U. S. 657, 37 L. ed.
279, 13 Sup. Ct. Rep. 503; Jordan v. Tay-
lor, 98 Fed. 646; Hale v. Coffin, 114 Fed.
574; Hale v. Tyler, 115 Fed. 834; Carrau
•v. O'Calligan, 60 C. C. A. 347, 125 Fed.
663; Gallivan v. Jones, 42 C. C. A. 408, 102
Fed. 427; Re Jarnecke Ditch, 69 Fed. 161;
Colorado Midland R. Co. v. Jones, 29 Fed.
193; Goldey v. Morning News, 156 U. S.
518, 523, 39 L. ed. 617, 619, 15 Sup. Ct. Rep.
559; Black's Dillon, Removal of Causes,
§§ 22, 90, 148; Simkins, Federal £q. Suit,
p. 828; Barney v. Globe Bank, 6 Blatchf.
107, Fed. Cas. No. 1,031; Richmond v.
Brookings, 48 Fed. 241.
A proceeding for the adjudication of rela-
tive water rights as between private indi-
viduals ia a judicial proceeding, and is a
case within the meaning of the Federal stat-
utes regarding the right of removal.
1. For definition of judicial power, judi-
cial proceedings, actions, suits, and cases,
see:
Johnston v. Com. 1 Bibb 698; State ex
rel. Newell v. Newell, 13 Mont. 302, 34 Pac.
28; People ex rel. Bendon v. County Judge,
13 How. Pr. 398; McBride's Appeal, 72 Pa.
480; Jacoby v. Shaler, 105 Pa. 610; Cohen
V. Virginia, 6 Wheat. 407, 5 L. ed. 291;
Marion v. Ganby, 68 Iowa, 142, 26 N. W.
40; Harris v. Phoenix Ins. Co. 36 Conn. 310;
Osbom V. Bank of United States, 9 Wheat.
1087
SUPREME COURT OF THE UNITED STATES.
Oct. TkBM,
738, 819, 6 L. ed. 204, 223; Ex parte Milli-
gan, 4 Wall. 2, 18 L. ed. 281; People v.
Board of Education, 54 Cal. 375; Sinking
Fund Cases, 99 U. S. 761, 25 L. ed. 516;
Smith V. Strother, 68 Cal. 194, 8 Pac. 852;
Wulzen y. San Francisco, 101 Cal. 15, 40
Am. St. Rep. 17, 35 Pac. 353; Qrider v.
Tally, 77 Ala. 424, 54 Am. Rep. 65; Hereford
▼. People, 197 111. 222, 64 N. E. 310; Mar-
tin y. Simpkins, 20 Colo. 438, 38 Pac. 1092.
2. The tribunals given jurisdiction in the
adjudication proceeding are courts.
3 Bl. Com. 23; Stenberg v. SUte, 48 Neb.
312, 67 N. W. 190; Tissier v. Rhein, 130 111.
110, 22 N. E. 848; Re Allison, 13 Colo. 528,
10 L.R.A. 790, 16 Am. St. Rep. 224, 22 Pac.
820; Shoultz v. McPheeters, 79 Ind. 376;
Mason v. Woemer, 18 Mo. 570; White
County y. Gwin, 136 Ind. 562, 22 L.R.A.
402, 36 N. E. 237; Malone v. Murphy, 2
Kan. 250; People ex rel. Garling y. Van
Allen, 55 N. Y. 31.
3. Proceedings to adjudicate water rights
before state boards are held to be judicial.
Wattles v. Baker County, 59 Or. 255, 117
Pac. 417; Cleghorn's Appeal, 3 Haw. 216;
Palolo Land ft Improv. Co. y. Territory, 18
Haw. 30; Thorp v. Woolman, 1 Mont. 168,
8 Mor. Min. Rep. 87; Farm Invest. Co. y.
Carpenter, 9 Wyo. 110, 50 L.R.A. 747, 87
Am. St. Rep. 918, 61 Pac. 258; Whiting y.
Townsend, 57 Cal. 515; Tyler y. Registration
Ct. Judges, 175 Mass. 71, 51 L.R.A. 433, 55
N. E. 812; Anderson v. Kearney, 37 Nev.
314, 142 Pac. 803; 3 Kinney, Irrigation, 2d
ed. p. 2901.
4. The fact that the proceeding is before
the state water board does not prevent it
from being a "case," and removable.
Waha-Lewiston Land ft Water Co. v.
Lewiston-Sweetwater Irrig. Co. 158 Fed.
137; Mississippi ft R. River Boom Co. v.
Patterson, 98 U. S. 403, 25 L. ed. 206;
Pacific R. Removal Cases, 115 U. S. 1, 29
L. ed. 319, 6 Sup. Ct. Rep. 1113; Searl v.
School Dist. 124 U. S. 197, 31 L. ed. 415, 8
Sup. Ct. Rep. 460; Madisonville Traction
Co. y. St. Bernard Min. Co. 196 U. S. 239,
49 L. ed. 462, 25 Sup. Ct. Rep. 251; Colorado
Midland R. Co. v. Jones, 29 Fed. 193;
Mineral Range R. Co. y. Detroit ft L. S.
Copper Co. 25 Fed. 515.
5. The power here claimed to be "non-
judicial" has in other cases been held or
assumed to be so strictly "judicial" that it
could be vested only in a court or other body
authorized to perform judicial functions.
People ex rel. Kern v. Chase, 165 III. 527,
36 L.R.A. 105, 46 N. E. 454; People ex rel.
Deneen v. Simon, 176 111. 165, 44 L.R.A. 801,
68 Am. St. Rep. 175, 52 N. E. 910; SUte
ex rel. Monnett v. Guilbert, 56 Ohio St. 575,
38 L.R.A. 519, 60 Am. St. Rep. 756, 47 N. E.
551 ; Tyler y. Judges of Ct. of Registration,
1088
175 Mass. 71, 51 L.ILA. 433, 65 N. E. 812;
State ex rel. Douglas y. Westfall, 86 Mina.
437, 57 L.R.A. 297, 89 Am. St. Rep. 671, 89
N. W. 175; People ex rel. Smith y. Crin-
man, 41 Colo. 450, 92 Pac. 949; AmeriesB
Land Co. y. Zeiss, 219 U. S. 47, 66 Lw ed.
82, 31 Sup. Ct Rep. 200.
6. Under the act, all claimants in the
stream are defendants and parties to the s^
tion, whether they appear or suffer a de-
fault.
Vanderpoel y. Van Balkenburgh, 6 N. Y.
198; Bonnemort y. Gill, 167 Mass. 340, 45
N. E. 768; Botiller y. Dominquez, 130 U. S.
238, 32 L. ed. 926, 9 Sup. Ct. Rep. 525;
Robbins y. Chicago^ 4 WalL 657, 672, 18
L. ed. 427, 430.
7. In a proceeding under the act, all un-
known claimants are adverse parties from
the beginning. The mere possibility of td-
verse parties would, however, be snlBcient to
render a proceeding ''judicial."
Re Pacific R. Commission, 32 Fed. 241;
Ormsby y. Webb, 134 U. S. 47, 33 L. ed. 805,
10 Sup. Ct. Rep. 478.
8. Various classes of proceedings held to
be judicial, analogous to those authorized
by the act, here claimed to be nonjudicial
(a) The Torrens act of the various statei,
and the burnt records act of Illinois and
California, (b) Proceediings for the con-
firmation of tax titles, etc.
Worthen v. Ratcliffe, 42 Ark. 330; Parker
V. Overman, 18 How. 137, 15 L. ed. 818;
Thomas v. Lawson, 21 How. 381, 16 L. ed.
82.
(c) Suits under general equity jurisdie-
tion to establish title.
Sharon v. Tucker, 144 U. S. 533, 86 L. el
532, 12 Sup. Ct. Rep. 720; Blight v. Banks,
6 T. B. Mon. 192, 17 Am. Dec. 136; Hord
V. Baugh, 7 Humph. 576, 46 Am. Dec 91;
Montgomery y. Kerr, 6 Coldw. 199; Bohart
V. Chamberlain, 99 Mo. 622, 13 S. W. 85;
Gwin V. Brown, 21 App. D. C. 312 ; Johnson
V. Thomas, 23 App. D. C. 148; Harvey v.
Miller, 24 App. D. C. 53; Moody v. Hoi-
comb, 26 Tex. 714.
9. Determination even of future ri|^ts ii
judicial.
Bispham, £q. pp. 51, 607; Cross y. Be
Valle, 1 Wall. 5, 15, 17 L. ed. 616, 519;
Sharon v. Tucker, 144 U. S. 633, 36 L. ed.
532, 12 Sup. Ct. Rep. 720; Pom. £q. Jul.
§ 17L
The controversy between the petitioner!
who instituted the adjudication proceeding
and the Pacific Live Stock Company is s
separable controversy which that company
is entitled to remove into the Federal court
McMuUen v. Halleck Cattle Co. 193 Fed.
282; Stanbrough v. Cook, 3 L.R.A. 400, 38
Fed. 369; Connell v. Smiley, 166 U. S. 335,
39 L. ed. 443, 15 Sup. Ct. Rep. 363; Sharp
141 U. &
1916.
PACIFIC LIVE STOCK CO. v. LEWIS.
▼. Whiteside, 19 Fed. 160 ; Fritzlen ▼. Boat-
men's Bank, 212 U. S. 364, 53 l^. ed. 661,
29 Sup. Ct. Rep. 366; Elkins ▼. Howell, 140
Fed. 157.
The same rule has been applied to a con-
demnation suit prosecuted against several
defendants owning separate parcels of land.
Mississippi &, R. River Boom Co. v. Pat-
terson, 98 U. S. 403, 25 L ed. 206; Pacific
R. Removal Cases, 115 U. S. 1, 29 L. ed.
319, 5 Sup. Ct. Rep. 1113; Searl v. School
Dist. 124 U. S. 197, 31 L. ed. 416, 8 Sup.
Ct. Rep. 460; Madisonville Traction Co. v.
St. Bernard Min. Co. 196 U. S. 239, 49 L.
ed. 462, 25 Sup. Ct. Rep. 251 ; Sugar Creek,
P. B. & P. C. R. Co. V. McKell, 75 Fed. 34;
Deepwater R. Co. ▼. Western Pocahontas
Coal & Lumber Co. 152 Fed. 824.
The mere fact that the legislature au-
thorizes several suits to be brought in the
same proceeding cannot affect the right of
removal.
Barney v. Latham, 103 U. S. 205, 26 L.
ed. 514 ; Hoge v. Canton Ins. Office, 103 Fed
613; Union P. R. Co. v. Myers, 116 U. S. 1,
22, 29 L. ed. 319, 327, 6 Sup. Ct. Rep. 1113;
Deepwater R. Co. t. Western Pocaliontaa
Coal ft Lumber Co. 152 Fed. 824.
On appellees' own interpretation of the
nature, character, and effect of the adjudi-
cation proceeding, the same is clearly in vio-
lation of fundamental constitutional prin-
ciples.
The legislature has authorized a proceed-
ing for the determination of water rights,
w^hich is not judicial, but purely adminis-
trative, and merely preliminary to the in-
stitution of judicial proceedings in the cir-
cuit court.
Re Willow Creek, 74 Or. 610, 144 Pac.
605, 146 Pac. 475; Re Silvies River, 199
Fed. 496.
Any owner of \ water right is required
to appear in this purely administrative pro-
ceeding and set up and defend his right on
pain of forfeiting it.
Pacific Livestock Co. v. Cochran, 73 Or.
417, 144 Pac. 668.
In such purely administrative proceeding
the State Water Board thereupon proceeds
to take evidence ew parte, and without any
opportunity or right of cross-examination.
In such purely administrative proceeding
the State Water Board collects data relating
to the various rights on the stream entirely
ex parte and without any opportunity for
cross-exam inat ion .
The conclusions of the State Water Board
are based either wholly or partially on this
merely ex parte, hearsay, non-oathbound evi-
dence, with no opportunity to cross-examine
or to be confronted with the witnesaet
gathering or giving it.
•0 li. ed.
Anyone filing his claim in this merely ad-
ministrative proceeding is required to pay
an arbitrary sum of money in the nature of
a tax on his land.
Ibid.
This purely administrative determination,
pending judicial proceedings to which it is
merely preliminary, possibly extending over
several years, is enforced as a judgment.
Wattles V. Baker County, 69 Or. 266, 117
Pac. 417.
Under the decisions of the supreme court
of the state, this purely administrative de-
termination is prima facie correct; in other
words, anyone who questions it must affirm-
atively prove that it is wrong.
Re Willow Creek, supra.
Any determination based upon informa-
tion gathered in an informal manner with-
out an opportunity to confront and cross-
examine the witness is in violation of funda-
mental constitutional principles.
Interstate Commerce Commission v. Louis-
ville A N. R. Co. 227 U. S. 89. 57 L. ed.
432, 33 Sup. Ct. Rep. 185; Whitfield v.
Hanges, 138 C. C. A. 199, 222 Fed. 764;
United States v. Baltimore & O. S. W. R.
Co. 226 U. S. 14, 57 L. ed. 104, 33 Sup. Ct.
Rep. 6; Stadtlander v. New York Edison
Co. P.U.R.1916B, 688.
None of the cases based on the "co-owner"
doctrine hold that ownership can be de-
termined in an administrative proceeding.
Ohio Oil Co. V. Indiana, 177 U. S. 190, 44
L. ed. 729, 20 Sup. Ct. Rep. 670, 20 Mor.
Min. Rep. 466; Lindsley v. Natural Car-
bonic Gas Co. 220 U. S. 61, 65 L. ed. 369, 31
Sup. Ct. Rep. 337, Ann. Cas. 1912C, 160;
Hudson County Water Co. v. McCarter, 209
U. S. 349, 62 L. ed. 828, 28 Sup. Ct. Rep.
529, 14 Ann. Cas. 560.
The power to establish rules of evidence
does not authorize the state to make a mere
administrative fiat prima facie evidence of
ownership.
Lindsley v. Natural Carbonic Gas Co. 220
U. S. 61, 66 L. ed. 369, 31 Sup. Ct. Rep.
337, Ann. Cas. 1912C, 160; Bailey v. Ala-
bama, 219 U. S. 219, 66 L. ed. 191, 31 Sup.
Ct. Rep. 146; Mobile, J. & K. C. R. Co. r.
Turnipseed, 219 U. S. 36, 65 L. ed. 78,
32 L.R.A.(N.S.) 226, 31 Sup. Ct. Rep. 136,
Ann. Cas. 1912A, 463, 2 N. C. C. A. 243;
People v. McBride, 234 111. 146, 123 Am.
St. Rep. 82, 84 N. £. 866, 14 Ann. Cas. 994;
SUte V. Beswick, 13 R. I. 211, 43 Am. Rep. 26.
The police power is not sufficient to justi-
fy an eop parte legislative determination of
property rights.
White V. Farmers' Highline Canal ft
Reservoir Co. 22 Colo. 191, 43 Pac. 1028; Ft.
Lyon Canal Co. v. Arkansas Valley Sugar
Beet k Irrigated Land Co. 39 Colo. 332, 90
Plus. 1023; Com. ▼. Alger, 7 Gush. 63.
69 lost
SUPREME COURT OP THE UNITED STATES.
Oct. Tebm,
Mr. George M. Brown, Attorney General
of Oregon, and Messrs. George T. Ck>chmn
and Will R. King argued the cause, and,
with Messrs. J. 0. Bailey, James T. Chin-
noek, and Percy A. Cupper, filed a brief
for appellees :
The proceedings to determine water rights
provided for by the statutes of Oregon, while
pending before the State Water Board, are
administrative in character, the statutory
provisions therefor are a valid exercise of
the police power of the state, and since a
hearing and sufficient notice are provided
for, the statutes attacked do not conflict
with any provision of the 14th Amendment
to the Constitution of the United States.
Re Willow Creek, 74 Or. 610, 144 Pac.
505, 146 Pac 475; Farmers' Independent
Ditch Co. V. Agricultural Ditch Co. 22
Colo. 513, 55 Am. St Rep. 149, 45 Pac
444; Farm Invest. Co. ▼. Carpenter, 9 Wyo.
110, 50 L.R.A. 747, 87 Am. St. Rep. 918,
61 Pac. 258 ; Louden Irrigating Co. v. Handy
Ditch Co. 22 Colo. 102, 43 Pac. 535 ; Farm-
ers' Canal Co. v. Frank, 72 Neb. 136, 100 N.
W. 286 ; Will^ v. Decker, 11 Wyo. 496, 100
Am. St. Rep. 939, 73 Pac 210; Cookinham
V. Lewis, 58 Or. 498, 114 Pac 88, 115 Pac.
342; Wattles v. Baker County, 59 Or. 261,
117 Pac 417; Re Silvies River, 199 Fed.
495; Montezuma Canal Co. v. Smith ville
Canal Co. 218 U. S. 371, 385, 54 L. ed. 1074,
1080, 31 Sup. Ct. Rep. 07 ; Pacific Livestock
Co. V. Cochran, 73 Or. 417, 144 Pac. 668;
Combs V. Farmers' Hig^line Canal & Reser-
voir Co. 38 Colo. 420, 88 Pac. 396; Nichols
V. Mcintosh, 19 Colo. 22, 34 Pac 278; Craw-
ford Co. V. Hathaway (Crawford Co. v.
Hall) 67 Neb. 325, 60 L.R.A. 889, 108 Am.
St. Rep. 647, 93 N. W. 794; Enterprise Irrig.
Dist. V. TriState Land Co. 92 Neb. 121,
138 N. W. 179; Pacific live Stock Co. v.
Lewis, 217 Fed. 95; Anderson v. Kearney,
37 Nev. 314, 142 Pac. 803; McCook Irrig.
& Water Power Co. v. Crews, 70 Neb. 115,
96 N. W. 996, 102 N. W. 249.
The determination and adjudication of
existing rights is a necessary and essential
part of the regulation and control which the
state has assumed over its waters in the in-
terest of the people of the state, and the
statutory proceedings provided for by the
legislation attacked by appellant are well
within the police power of the state, and a
necessary prerequisite to the orderly distri-
bution of the waters of the state among
those entitled thereto.
Farm Invest. Co. v. Carpenter, 9 Wyo.
148, 50 L.R.A. 747, 87 Am. St. Rep. 918,
61 Pac 258; Montezuma Canal Co. v.
Smithville Canal Co. 218 U. S. 371, 385,
54 L. ed. 1074, 1080, 31 Sup. Ct. Rep. 67;
1 Wiel, Water Rights, 3d ed. S 756, p. 830;
White V. Farmers' High-line Canal k Reser-
lOtO
voir Co. 22 Colo. 197, 31 L.R.A. 828, 4S
Pac 1028f Com. v. Alger, 7 Cush. 84;
Holden v. Hardy, 169 U. S. 366, 392, 42 U
ed. 780, 791, 18 Sup. Ct. Rep. 383; Ohio
Oil Co. V. Indiana, 177 U. S. 190, 44 L. ed.
729, 20 Sup. Ct. Rep. 576, 20 Mor. Min. Rep.
466; Lindsley v. Natural Carbonic Gas Co.
220 U. S. 61, 77, 55 L. ed. 309, 377, 31 Sup.
Ct. Rep. 337, Ann. Cas. 1912C, 160; Hud-
son County Water Co. v. McCarter, 209 U.
S. 349, 52 L. ed. 828, 28 Sup. Ct. Rep. 539,
14 Ann. Cas. 560; Ft. Lyon Canal Co. v.
Arkansas Valley Sugar Beet & Irrigated
Land Co. 39 Colo. 341, 90 Pac 1023; Broad
Run Invest. Co. v. Deuel k S. Improv. Co.
47 Colo. 579, 108 Pac 755; Ormsby County
V. Kearney, 87 Nev. 314, 142 Pac 803*;
Clark V. Nash, 198 U. S. 361, 368, 49 L. ed.
1085, 1087, 25 Sup. Ct. Rep. 676, 4 Ann.
Cas. 1171; Fallbrook Irrig. Dist v. Bradley,
164 U. S. 112, 159, 160, 41 L. ed. 369, 38S,
389, 17 Sup. Ct. Rep. 56; Enterprise Irrig.
Dist. V. Tri-SUte Land Co. 92 Neb. 121 »
138 N. W. 179; Crawford Co. v. Hathaway
(Crawford Co. v. Hall) 67 Neb. 325, 60
L.R.A. 880, 108 Am. St. Rep. 647, 93 N.
W. 794; Farmers' Canal Co. v. Frank, 72
Neb. 136, 100 N. W. 286; American Land
Co. V. Zeiss, 219 U. S. 47, 60, 55 L. ed. 82,
04, 31 Sup. Ct. Rep. 200; Hough v. Porter,
51 Or. 318, 95 Pac 732, 98 Pac 1083, 102
Pac. 728; Hamp v. State, 19 Wyo. 377, 118
Pac. 653; McLean v. Farmer's High Line
Canal & Reservoir Co. 44 Colo. 184, 96 Pac
16; 3 Kinney, Irrig. & Water Rights, 2d ed.
§§ 1341, 1568, pp. 2430, 2842; Meade, Irrig.
Inst. pp. 6, 80, 82, 274, 369; Whited v.
Cavin, 55 Or. 107, 105 Pac 396; Carson v.
Centner, 33 Or. 515, 43 L.R.A. 130, 52 Pac
506; Donnelly v. Cuhna, 61 Or. 76, 119 Pac
331; Turner v. Cole, 31 Or. 159, 49 Pac
971; Caviness v. La Grande Irrig. Co. 60
Or. 431, 119 Pac. 731 ; Andrews v. Donnelly,
59 Or. 147, 116 Pac. 569 ; Re Willow Creek,
74 Or. 622, 144 Pac. 505, 146 Pac 475;
Little Walla Walla Irrig. Co. v. Finia Irrig.
Co. 62 Or. 351, 124 Pac 666, 125 Pac. 270 ;
Nevada Ditch Co. v. Bennett, 30 Or. 91,
60 Am. St. Rep. 777, 45 Pac. 472; Dreyer
V. Illinois, 187 U. S. 83, 84, 47 L. ed. 85,
23 Sup. Ct. Rep. 28, 15 Am. Crim. Rep.
253.
The proceeding here questioned being one
well within the police powers of the state, it
does not constitute a taking of property in
any sense, and the question of compensation
for property taken for a public use does not
enter into the case.
Barbier v. Connolly, 113 U. S. 27, 31, 28
L. ed. 923, 924, 5 Sup. Ct. Rep. 357; Chi-
cago, B. & Q. R. Co. V. Chicago, 166 U. S.
226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581;
Noble State Bank v. Haskell, 219 U. S. 104,
110, 111, 55 L. ed. 112, 116, 117, 32 LJtA.
141 V. S.
1016.
PACIFIC LIVE STOCK CO. v. LEWIS.
(N.8.) 1062, 31 Sup. Ct. Rep. 186, Ann. Cas.
1012A, 487.
The essential elements of due process are,
first, notice, and second, opportunity to be
heard.
Davidson r. New Orleans, 96 U. S. 97,
102, 107, 24 L. ed. 616, 618, 620; Public
Clearing House v. Coyne, 194 U. S. 497, 608,
48 L ed. 1092, 1097, 24 Sup. Ct. Rep. 789;
Ballard v. Hunter, 204 U. S. 241, 255, 61 L.
ed. 461, 471, 27 Sup. Ct Rep. 261, 266;
Sheldon r. Hoyne, 261 111. 226, 103 N. £.
1021; Reetz v. Michigan, 188 U. S. 606, 47
L. ed. 503, 23 Sup. Ct. Rep. 390; Dreyer v.
Illinois, 187 U. S. 71, 83, 84, 47 L. ed. 79,
86, 23 Sup. Ct. Rep. 28, 16 Am. Crim. Rep.
263; Re Willow Cre^, 74 Or. 610, 144 Pac
606, 146 Pac. 476; Re Silvies River, 199
Fed. 601; Farm Invest. Co. v. Carpenter, 9
Wyo. 134, 60 LR.A. 747, 87 Am. St. Rep.
918, 61 Pac. 258.
The appellant may be required to appear
in these proceedings before the State Water
Board and submit its claim; and should it
refuse to do so, within the time required by
statute and in the manner therein provided,
the decree of the circuit court will be final
and conclusive, to the same extent as in any
other suit or action in which a party is in
default.
Pacific Livestock Co. v. Cochran, 73 Or.
428, 144 Pac. 668; Re Silvies River, 190
Fed. 602 ; Anderson v. Kearney, 37 Nev. 314,
142 Pac. 803; Miles v. Strong, 68 Conn. 287,
36 AtL 65; United States v. Throckmorton,
4 Sawy. 42; Botiller v. Dominguez, 130 U.
S. 238, 32 L. ed. 926, 9 Sup. Ct. Rep. 626;
Patterson v. Northern Trust Ob. 170 111.
App. 511; Upshur County v. Rich, 135 U.
8. 467, 34 L. ed. 196, 10 Sup. Ct. Rep. 651 ;
Waha-Lewiston Land & Water Co. v. Lewis-
ton-Sweetwater Irrig. Co. 168 Fed. 137; Re
Willow Cre^, 74 Or. 610, 144 Pac. 606, 146
Pac. 476; Washington ex rel. Oregon R. A.
Nav. Co. V. Fairchild, 224 U. 8. 610, 66 L.
ed. 863, 32 Sup. Ct. Rep. 636.
The statutory provision requiring claim-
ants at the time of their appearance in the
proceedings to pay certain fees is not a
denial of due process of law nor of the equal
protection of the law. Whatever other ex-
pense the appellant may incur is a matter
of discretion with it, optional to a large
extent, and controllable by it.
Flint V. Stone Tracy Co. 220 U. 8. 108,
169, 56 L ed. 389, 420, 31 Sup. Ct Rep.
342, Ann. Cas. 1912B, 1312; .Pacific Live-
stock Co. V. Cochran, 73 Or. 417, 144 Pac
668.
If it should be the opinion of the court
that the section providing for fees is in-
valid for any reason, it is clearly separable
from the rest of the act.
Sheldon v. Hoyne, 261 111. 222, 103 N. E.
60 Ii« ed.
1021 ; Berea College v. Kentucky, 211 U. 8.
45, 63 L. ed. 81, 29 Sup. Ct. Rep. 33;
Reagan v. Farmers' Loan & T. Co. 164
U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep.
660, 14 Sup. Ct. Rep. 1047; McMahan v.
Olcott. 65 Or. 649, 133 Pac. 836; Flint v.
Stone-Tracy Co. 220 U. S. 107, 177, 65 L. ed.
389, 424, 31 Sup. Ct. Rep. 342, Ann. Cas.
1912B, 1312; Louisville & N. R. Co. v. Finn,
235 U. & 601, 610, 69 L. ed. 379, 384, P. (J.
R.1916A, 121, 35 Sup. Ct Rep. 146.
The determination of the State Water
Board is not a final decree or adjudication
of rights, but is prima facie correct and
binding until modified by the circuit court
in subsequent proceedings in that court
Re Willow Creek, 74 Or. 610, 144 Pac.
605, 146 Pac 476; Pacific Livestock Co. v.
Cochran, 73 Or. 429, 144 Pac. 668; Re
Silvies River, 109 Fed. 502; State ex rel
Atty. Gen. v. Hawkins, 44 Ohio St 109, 5
N. E. 228; Underwood v. McDuffee, 16 Mich.
368, 93 Am. Dec 194; Mackin v. Detroit*
Timkin Axle Co. — Mich. — , 163 N. W.
53; Johnson v. WabaiU> R* Co. 259 Mo. 634,
168 8. W. 713.
Appeals may be taken from administra-
tive boards or officers.
Carothers v. Wheeler, 1 Or. 194 ; Portland
V. Kamm, 6 Or. 362; Re Schollmeycr. 69 Or.
210, 138 Pac. 211 ; Kadderly v. Portland. 44
Or. 165, 74 Pac. 710, 76 Pac 222; Washing-
ton ex rel. Oregon R. k Nav. Co. v. Fair-
child, 224 U. 8. 610. 56 L. ed. 863, 32 Sup.
Ct Rep. 535; Waha-Lewiston Land & Water
Co. V. Lewiston-Sweetwater Irrig. Co. 168
Fed. 137.
There can be no question but that the
legislature of Oregon has power to make the
findings of the board prima facie correct,
and to require the claimant aggrieved
thereat to assume the burden of establish-
ing the incorrectness of those findings.
Cincinnati, N. O. & T. P. R. Co. v. Inter-
state Commerce Commission, 162 U. 8. 184,
196, 40 L. ed. 935, 939, 5 Inters. Com. Rep.
391, 16 Sup. Ct Rep. 700; Meeker v. Lehigh
VaUey R. Oo. 236 U. S. 412, 430, 59 L. ed.
644, 667, P.U.R.1915D, 1072, 36 Sup. Ct.
Rep. 328, Ann. Cas. 1916B, 691.
It is within the power of the state to
prescribe the rules of evidence, and to alter
them, and to put the burden of proof upon
one or the other of the parties by creating
disputable presumptions.
Fong Yue Ting v. United States,' 149 U.
8. 698, 729, 37 L. ed. 905, 918, 13 Sup. Ct.
Rep. 1016; Lindsley v. Natural Carbonic
Gas Co. 220 U. 8. 61, 81, 65 L. ed. 369, 378,
31 Sup. Ct. Rep. 337, Ann. Cas. 1912C, 160.
So, it was held that a statute making the
findings and order of the Interstate Com-
merce Commission prima facie evidence of
facts therein stated in judicial proceedings
lOtl
SUPREME COUBT OF THE UNITED STATES.
Oct. Tebv,
was merelj the establiflhment of a rule of
evidence, and would in no wise work a
denial of due process of law.
Meeker t. L^igh Valley R. 06. and Cin-
cinnati, N. O. ft T. P. R. Co. ▼. Interstate
Commerce Commission, supra.
There can be no constitutional objection,
under the Federal Constitution, because the
legislature of Oregon has provided a pro-
ceeding of a special character not known to
the common law, or because rules of evi-
dence or forms and matters of procedure are
changed by the act in question.
Tyler v. Registration Ct. Judges, 175
Mass. 74, 51 L.RJI. 433, 55 N. £. 812;
State ex rel. Oregon R. A. Nav. Co. v. Rail-
road Commission, 52 Wash. 31, 100 Pac
179, 224 U. S. 510, 56 L. ed. 863, 32 Sup. Ct
Rep. 535; Brown v. New Jersey, 175 U. S.
172, 175, 44 L. ed. 119, 120, 20 Sup. a.
Rep. 77 ; West v. Louisiana, 194 U. S. 258,
48 L. ed. 965, 24 Sup. Ct. Rep. 650; Fong
Yue Ting v. United States, 149 U. S. 698.
729, 37 L. ed. 905, 918, 13 Sup. Ct. Rep.
1016; League v. Texas, 184 U. S. 156, 158,
46 L. ed. 478, 480, 22 Sup. Ct. Rep. 475;
Holmes v. Hunt, 122 Mass. 506, 23 Am.
Rep. 381; Meeker v. Lehigh Valley R. Co.
236 U. S. 412, 430, 59 L. ed. 644, 657,
P.U.R.1915D, 1072, 35 Sup. Ci, Rep. 328,
Ann. Cas. 1916B, 691; Ballard v. Hunter,
204 U. S. 255, 51 L. ed. 471, 27 Sup. Ct.
Rep. 261; HurUdo v. California, 110 U. S.
516, 537, 28 L. ed. 232, 239, 4 Sup. Ct. Rep.
Ill, 292; Duncan v. Missouri, 152 U. S. 377,
382, 38 L. ed. 485, 487, 14 Sup. Ct. Rep.
570; Twining v. New Jersey, 211 U. S. 78,
101, 53 L. ed. 97, 107, 29 Sup. Ct. Rep. 14;
Simon v. Craft, 182 U. S. 427, 436, 45 L. ed.
1165, 1170, 21 Sup. Ct. Rep. 836.
The statute provides proper notice and
ample opportunity to be heard, and there-
fore due process of law is afforded.
Re Willow Creek, 74 Or. 614, 144 Pac.
505, 146 Pac. 475; Tyler v. Registration Ct.
Judges, 175 Mass. 79, 51 L.R.A. 433, 55
N. E. 812; Farm Invest. Co. v. Carpenter, 9
Wyo. 152, 50 L.ILA. 747, 87 Am. St. Rep.
918, 61 Pac. 258; Grannis v. Ordean, 234
U. S. 385, 394, 68 L. ed. 1363, 1368, 34 Sup.
Ct. Rep. 779; Ballard v. Hunter, 204 U. S.
241, 254, 51 L. ed. 461, 471, 27 Sup. Ct. Rep.
261, 266; Hamilton v. Brown, 161 U. S.
256, 274, 40 L. ed. 691, 699, 16 Sup. Ct.
Rep. 585; American Land Co. v. Zeiss, 219
U. S. 47, 70, 55 L. ed. 82, 98, 31 Sup. Ct.
Rep. 200.
A hearing before final decree, with full
opportunity to appear and defend, after
notice, is all that can be adjudged vital
under the guaranty of due process of law.
Holden y. Hardy, 169 U. S. 366, 387, 42
L. ed. 780, 789, 18 Sup. Ct. Rep. 383; Iowa
C. R. Co. T. Iowa, 160 U. S. 389, 393, 40
109S
L. ed. 467, 469, 16 Sup. Ct Rep. 344; WU-
son V. Standefer, 184 U. S. 399, 415, 46 L.
ed. 612, 619, 22 Sup. Ct. Rep. 384; Hooker
V. Los Angeles, 188 U. S. 314, 318, 4/ L. vd.
487, 491, 63 L.R.A. 471, 23 Sup. Ct. Rep.
395; Oamegie Natural Gaa Co. v. SSwiger,
72 W. Va. 557, 46 L.RA.(N.S.) 1080, 7»
S. £. 3.
The statutes here involved do not denj
appellant the equal protection of the law.
Duncan v. Missouri, 152 U. S. 377, 382,
38 L. ed. 485, 487, 14 Sup. Ct. Rep. 570;
Missouri v. Lewis (Bowman v. Lewis) 101
U. S. 22, 25 L. ed. 989; Connolly v. Union
Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679,
22 Sup. Ct. Rep. 431; Minneapolis A. St.
L. R. Co. V. Beckwith, 129 U. S. 26, 32 L. ed.
585, 9 Sup. Ct. Rep. 207; Fallbrook Irrig.
Dist. V. Bradley, 164 U. S. 112, 155, 41 L.
ed. 369, 387, 17 Sup. Ct. Rep. 56.
Appellant cannot, by a bill in equity to
restrain the State Board or tribunal from
further proceedings under the statutes, re-
view the action of the Federal district court
in remanding the proceedings to Uie State
Board, upon the ground that it had no
jurisdiction.
Ex parte Hoard, 105 U. S. 578, 580, 26
L. ed. 1176, 1177; Ex parte Detroit River
Ferry Co. 104 U. S. 519, 620, 26 L. ed, 815,
816; Morey v. Lockhart, 123 U. S. 56, 57,
31 L. ed. 68, 69, 8 Sup. Ct. Rep. 65;
Missouri P. R. Co. v. Fita^rald, 160 U. S.
556, 40 L. ed. 536, 16 Sup. Ct. Rep. 389;
Manley v. Olney, 32 Fed. 708; Teel v.
Chesapeake & O. R. Co. 47 LJl.A.(N.S.)
21, 123 C. C. A. 240, 204 Fed. 918.
A bill in equity to restrain the State
Board from proceeding under a valid stat-
ute cannot be maintained upon the theory
that appellant is deprived of its property
without due process of law because the
United States district court refused juris-
diction, and remanded the proceeding to
the State Board.
Baltimore & 0. R. Co. v. Koontz, 104 U.
S. 5, 26 L. ed. 643; Black's Dill. Removal
of Causes, S 225, p. 366; Germania F. Ins.
Co. V. Francis, 52 Miss. 466, 24 Am. Rep.
674; Knahtla v. Oregon Short Line & l^ N.
R. Co. 21 Or. 140, 27 Pac. 91; Kentucky v.
Powers. 201 U. S. 1, 24, 50 L. ed. 633. 644.
26 Sup. Ct. Rep. 387, 5 Ann. Cas. 692.
The contention that, since complainant
has taken the steps n<H!essary to remove th^
proceeding to the Federal court, this suit
may be maintained to restrain either the
members of the board or the other defend-
ants, is unfounded, because the Federal
court heretofore remanded the proceeding
to the State Board.
Madisonville Traction Co. v. St. Bernard
Min. Oo. 196 U. S. 239, 245, 49 L. ed. 462,
464, 25 Sup. Ct. Rep. 251; Chesapeake k
S41 V. 8.
1916.
PACIFIC LIVE STOCK CO. v. LEWIS.
0. R. Co. v. C6ckrell, 232 U. S. 146, 155, 54
L. ed. 544, 548, 34 Sup. Ct. Rep. 278;
Springer v. American Tobacco Co. 208 Fed.
199; Birdaeye v. Shaeffer, 37 Fed. 827,
affirmed in 140 U. S. 117, 35 L. ed. 402, 11
Sup. Ct. Rep. 886; Missouri P. R. Ca v.
Fitzgerald, 160 U. S. 556, 40 L. ed. 536, 16
Sup. Ct. Rep. 389.
The proceeding before the board is ad-
ministrative, and though it may subsequent-
ly become a judicial proceeding, while it
remains administrative, and pending before
administrative officers, it is not a suit or
action brought in a state court, and can-
not be removed to the Federal courts.
Re Silvies River, 199 Fed. 501; Re Willow
Creek, 74 Or. 610, 144 Pac. 505, l46 Pac.
475; Kaw Valley Drainage Dist. v. Metro-
politan Water Co. 108 C. O. A. 393, 186
Fed. 319; Weston v. Charleston, 2 Pet. 449,
464, 7 L. ed. 481, 486; Upshur County v.
Rich, 135 U. S. 467, 477, 34 L. ed. 106, 200,
10 Sup. Ct. Rep. 651; Re Jarnecke Ditch,
69 Fed. 161 ; Waha-Lewiston Land k Water
Co. V. Lewiston-Sweetwater Irrig. Co. 158
Fed. 137 ; Reetz v. Michigan, 188 U. S. 505,
507, 47 L. ed. 563, 565, 23 Sup. Ct. Rep.
390; Black's Dill. Removal of Causes, p. 28,
§ 16.
If it be admitted that the proceeding is
judicial in character, and in a court, and
a suit, it was not removable, because there
was no separable controversy.
Waha-Lewiston Land ft Water Co. v.
Lewiston-Sweetwater Irrig. Co. 158 Fed.
143; Hough v. Porter, 51 Or. 370, 95 Pac.
732, 98 Pac. 1083, 102 Pac. 728; Eraser v.
Jennison, 106 U. S. 191, 194, 27 L. ed. 131,
132, 1 Sup. Ct. Rep. 171; Re Jarnecke Ditch,
69 Fed. 168; Torrence v. Shedd, 144 U. S.
527, 36 L. ed. 528, 12 Sup. Ot. Rep. 726;
Ayres v. WUwall, 112 U. S. 187, 193. 28
L. ed. 693, 695, 5 Sup. Ct. Rep. 90; Fidelity
Ins. Trust & S. D. Co. v. Huntington, 117
U. S. 280, 281, 29 L. ed. 808, 899, 6 Sup. Ct.
Rep. 733; McMullen v. Halleck Cattle Co.
193 Fed. 282; Farm Invest. Co. v. Car-
penter, 9 Wyo. 134, 50 L.R.A. 747, 87 Am.
St. Rep. 918, 61 Pac. 258; Montezuma Canal
Co. V. Smithville Canal Co. 218 U. S. 371,
54 L. ed. 1074, 31 Sup. Ct. Rep. 67.
Whether the proceeding was removable or
not at the time appellant attempted to re-
move it can only be determined from the
record in the state tribunal at the time of
the application for removal, and not by the
allegations contained in the petition for re-
moval, or Bubeequent proceedings had before
the State Board.
Thomas v. Great Northern R. Co. 77
C. C. A. 255, 147 Fed. 86; Louisville & N. R.
Co. V. Wangelin, 132 U. S. 599, 33 L. ed. |
474, 10 Sup. Ct. Rep. 203; Rife v. Lumber (
Underwriters, 122 C. C. A. 346, 204 Fed.
•0 li. ed.
32; Indiana use of Delaware County v.
Alleghany Oil Co. 85 Fed. 872; Corbin v.
Van Brunt, 105 U. S. ^76, 577, 26 L. ed.
1176; Re Jarnecke Ditch, 69 Fed. 168; Ex
parte Nebraska, 209 U. S. 436, 441, 52 L. ed.
876, 878, 28 Sup. Ct. Rep. 581 ; Arkansas v.
KansaCs & T. Coal Co. 183 U. S. 185, 188,
46 L. ed. 144, 146, 22 Sup. Ct. Rep. 47;
Mountain View Min. & Mill. Co. v. Mc-
Fadden, 180 U. S. 533, 45 L. ed. 656, 21
Sup. Ct. Rep. 488; Chicago, B. & Q. R. Co.
V. WiUard, 220 U. S. 413, 55 L. ed. 521, 31
Sup. Ct. Rep. 460; Powers v. Chesapeake
A O. R. Co. 169 U. S. 92, 96, 97, 42 L. ed.
673-675, 18 Sup. Ct. Rep. 264; Chesapeake
A, 0. R. Co. V. Cockrell, 232 U. S. 146, 153,
58 L. ed. 544, 547, 34 Sup. Ct. Rep. 278.
The proceeding was not removable because
the state is a necessary party to the pro-
ceeding.
Kansas v. Colorado, 206 U. S. 46, 93, 51
L. ed. 956, 973, 27 Sup. Ct. Rep. 655; Bou-
quillas Land A. Cattle Co. v. Curtis, 213
U. S. 339, 53 L. ed. 822, 29 Sup. Ct. Rep.
493; United States v. Rio Grande Dam &
Irrig. Co. 174 U. S. 690, 43 L. ed. 1136, 19
Sup. Ct. Rep. 770; Gutierres v. Albuquerque
Land & Irrig. Co. 188 U. S. 545, 47 L. ed.
588, 23 Sup. Ct. Rep. 338; Ohio Oil Co. v.
Indiana, 177 U. S. 190, 44 L. ed. 729. 20
Sup. Ct. Rep. 576, 20 Mor. Min. Rep. 400;
Lindsley v. Natural Carbonic Gas Co. 220
U. S. 61, 66 L. ed. 369, 31 Sup. Ct. Rep.
337, Ann. Cas. 1912C, 160; Hudson County
Water Co. v. McCarter, 209 U. S. 349, 52
L. ed. 828, 28 Sup. Ct. Rep. 529, 14 Ann.
Cas. 560; Hough v. Porter, 51 Or. 318, 95
Pac. 732, 98 Pac. 1083, 102 Pac. 728;
Williams v. Altnow, 51 Or. 275, 95 Pac. 200,
97 Pac. 539; Hedges v. Riddle, 63 Or. 257,
127 Pac. 548; Pacific Livestock Co. v. Davis,
60 Or. 258, 119 Pac. 147; Re Silvies River,
199 Fed. 503 ; Ex parte Nebraska, 209 U. S.
436, 445, 52 L. ed. 876, 880, 28 Sup. Ct.
Rep. 581; Indiana use of Delaware County
V. Alleghany Oil Co. 85 Fed. 870; Re
Willow Creek, 74 Or. 613, 144 Pac. 505, 146
Pac. 475; Ferguson v. Ross, 3 L.R,A. 322,
38 Fed. 161.
The defendants other than the members
of the State Water Board, who were par-
ties to certain suits brought by appellant
in the Federal court, should not be enjoined
from protecting their rights before the
State Board and state court in these pro-
ceedings, because of these prior suits in the
Federal court.
Watson V. Jones, 13 Wall. 679, 715, 20
L. ed. 666, 671; Buck v. Colbath, 3 Wall,
334, 345, 18 L. ed. 257, 261; Farm Invest.
Co. V. Carpenter, 9 Wyo. 135, 50 L.RA. 747,
87 Am. St. Rep. 918, 61 Pac. 258; Re Willow
Creek, 74 Or. 690, 144 Pac. 505, 146 Pac.
475; Re Silvies River, 199 Fed. 501;
442, 443
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbm,
ties Ti Baker County, 59 Or. 261, 117 P&c.
417; Claypool v. CNeiU, 66 Or. 613, 133
Pac. 349; Cooper ▼. Cedar Rapids Water
Power Co. 42 Iowa, 398; Hanson v. Willard,
12 Me. 142, 28 Am. Dec. 162; Spensely ▼.
Janesvllle Mfg. Co. 62 Wis. 649, 22 N. W.
574; Warren v. Westbrook Mfg. Co. BS Me.
58, 35 L.R.A. 388, 51 Am. St. Rep. 372, 33
Atl. 605; Roberts v. Claremont R. & Light-
ing Co. 74 N. H. 220, 124 Am. St. Rep. 962,
66 Atl. 485; Caviness v. La Grande Irrig.
Co. 60 Or. 421, 119 Pac. 731; Jones v.
Conn, 39 Or. 37, 54 L.R.A. 630, 87 Am. St.
Rep. 634, 64 Pac. 855, 65 Pac. 1068; Pacific
Livestock Co. v. Davis, 60 Or. 258, 119 Pac.
147; Wiel, Waters Rights in the Western
States, 3d ed. *p. 678, § 624; Rickey Land
& Cattle Co. V. Miller & Lux, 218 U. S. 258,
54 L. ed. 1032, 31 Sup. Ct. Rep. 11; Watson
V. Jones, 13 Wall. 679, 20 L. ed. 666; Hough
V. Porter, 61 Or. 318, 95 Pac. 732, 98 Pac.
1083, 102 Pac. 728; Umatilla Irrig. Co. v.
Umatilla Improv. Co. 22 Or. 366, 30 Pac.
30; Nevada Ditch Co. v. Bennett, 30 Or. 59,
CO Am. St. Rep. 777, 45 Pac. 472; Whited v.
Cavin, 56 Or. 98, 105 Pac. 396; Davis v.
Chamberlain, 61 Or. 305, 98 Pac. 154;
Watts V. Spencer, 61 Or. 262, 94 Pac. 39;
Little Walla Walla Irrig. Co. v. Finis Irrig.
Co. 62 Or. 348, 124 Pac. 666, 126 Pac. 270;
Hindman v. Rizor, 21 Or. 112, 27 Pac. 13;
Pacific live-Stock Co. v. Hanley, 98 Fed.
327.
The allegations of the bill of complaint as
to certain threatened acts and proposed
future orders and regulations of the board,
which, it is alleged, will impair appellant's
vested rights, do not bring this case within
the class of cases arising under the provi-
sions of the 14th Amendment, and raise no
Federal question.
Monongahela Bridge Co. v. United States,
216 U. S. 177, 195, 64 L. ed. 435, 443, 30
Sup. Ct. Rep. 356; United States ex rel.
Atty. Gen. r. Delaware & H. Co. 213 U. S.
366, 63 L. ed. 836, 29 Sup. Ct. Rep. 627;
Murray v. Wilson Distilling Co. 213 U. S.
151, 171, 63 L. ed. 742, 751. 29 Sup. a.
Rep. 458; Re Willow Creek, 74 Or. 616, 144
Pac. 606, 146 Pac. 476.
Mr. Justice Van Deranter delivered the
opinion of the court:
This is a bill in equity to enjoin a pro-
ceeding before the State Water Board of
Oregon, looking to the ascertainment and
adjudication of the relative rights of the
various claimants to the waters of Silvies
river, in that state, the grounds upon which
such relief is sought being (a) that it is
essential to protect a jurisdiction previously
acquired by the district court, and (b) that
the local statute, 3 Lord's Oregon Laws,
title XLni.9 chap, t, Laws 1913, chaps.
1094
j 82, 86, and 97, authorizing and controlling
I the proceeding, is repugnant to the due
process of law clause of the 14th Amend-
ment. An interlocutory injunction was de-
nied by the district court, three judges
sitting (217 Fed. 95), and motions to dis-
miss the bill, as disclosing no right to re-
lief, were afterwards sustained.
The plaintiff, a California corporation,
owns large tracts of land along the river,
and claims a vested right to use upon these
lands a portion of ttie waters of the stream
for irrigation and other beneficial purposes.
The defendants are the members of the
State Water Board, and a few out of many
persons and corporations claiming similar
rights in the waters of the river. The stat-
ute under which the proceeding assailed is
being conducted was enacted in 1909 and
amended in 1913, and most of the rights af-
fected by the proceeding are claimed to have
arisen prior to the [443] statute, — the
plaintiff's as much as thirty years before.
All claimants to the waters of the river, in-
cluding the plaintiff, were brought into the
proceeding by due notice and in conformity
with the stiitute.
A general outline of the statute, as it has
been construed by the supreme court of the
state, 1 will serve to simplify the questions
to be considered. It recognizes that in Ore-
gon rights to use the waters of streams for
irrigation and other beneficial purposes may
be acquired by appropriation, adopts a com-
prehensive scheme for securing an economi-
ci^l, orderly, and equitable distribution of
the waters among those . entitled to their
use, incidentally prescribes a mode of de-
termining the relatives rights of the vari-
ous claimants to the waters of each stream,
and in large measure commits the adminis-
tration of the scheme to the State Water
Board and officers acting under the super-
vision of its members. When one or more
users of water from any stream request it,
the board, if finding that the conditions
justify it, is required to set in motion a
proceeding looking to an ascertainment an^
adjudication of all rights to the waters of
that stream. Every material step in the
proceeding is to be attended with notice
and an opportunity to be heard, the ade-
quacy of which is manifest. In the be-
ginning each claimant is required to pre-
sent to the division superintendent a sworn
1 See Wattles v. Baker County,- 69 Or.
266, 117 Pac. 417; Pringle Falls Power Co.
V. Patterson, 65 Or. 474, 484, 128 Pac. 820,
J 32 Pac. 527; Claypool v. O'Neill, 65 Or.
611, 133 Pac. 349; Pacific Livestock Co. v.
Cochran, 73 Or. 417, 144 Pac. 668; Re Wil-
low Creek, 74 Or. 592, 144 Pac. 606, 146
Pac. 476; Re North Powder River, 75 Or.
83, 144 Pac. 485, 146 Pac 476.
141 V. S.
1915.
PACIFIC LIVE STOCK CO. v. LEWIS.
443--446
statement of his claim, Bhowing its nature,
inception, and extent, and all the particu-
lars upon which it ia baaed. These state-
ments are to be exposed to public inspec-
tion, so that every claimant may determine
whether there is occasion for him to oppose
or contest the claims of others. The state
engineer, or a qualified assistant, is to
measure the flow of the stream, the carrying
capacity of the several ditches taking water
[444] therefrom, and the land irrigated or
susceptible of irrigation from each ditch,
and also to take such other observations as
may be essential to a proper understanding of
the claims involved, a report of all of which
is to be made in writing. Any claimant
desiring to contest the claim of another
may present to the division superintendent
a sworn statement showing the grounds of
contest, and obtain a hearing before that
officer, at which the parties may present
whatever evidence they have, and may se-
cure the attendance of witnesses by com-
pulsory process. After the evidence in the
contests is taken, it and the sworn state-
ments of the several claimants, with the
report of the engineer's measurements and
observations, are to be laid before the board,
— the statements and the report both being
regarded as evidence appropriate to be con-
sidered. The board is then to examine all
the evidence, make findings of fact there-
from, enter an order embodying the findings
and provisionally determining the relative
rights of the several claimants, and trans-
mit the evidence and a copy of the order
to the circuit court of the county wherein
the stream or some part of it lies. Excep-
tions to the board's findings and order may
be presented to the court, and in disposing
of them the court is to follow as near as
may be the practice prevailing in suits in
equity. All parties in interest, including
the board, as representing the state, are to
be fully heard. Further evidence may be
taken by the court, or the matter may be
remanded with directions that additional
evidence be taken, and that the matter be
again considered by the board, in which
event the evidence and a copy of the further
order of the board are to be transmitted
to the court as in the first instance. In
short, upon exceptions the court may re-
examine the whole matter, and enter such
decree as the law and the evidence may re-
quire, whether it be an afl&rmance or a
modification of the board's order. And even
where no exceptions are presented, a de-
cree giving effect [446] to the order is to
be entered; that is to say, the matter is not
to be left as if the order in itself constituted
an effective adjudication. An appeal from
the court's decree may be taken to the su-
preme court of the state "as in other cases
60 L. ed.
in equity," except that the time therefor
is substantially shortened. When the rights
involved are adjudicated the decree is to
be "conclusive as to all prior rights and
the rights of all existing clainmnts," and
the right of each claimant as so settled is
to be appropriately entered and shown upon
the records of the board and upon those of
the proper county. Each claimant also is
to receive from the board a certificate set-
ting forth the priority, extent, and purpose
of his right, and, if it be for irrigation pur-
poses, a description of the land to which it
is appurtenant. That the statute is not
intended to take away or impair any vested
right to any water or to its use is express-
ly declared in its 1st and 70th sections,
3 Lord's Oregon Laws, §§ 6594, 6596.
At the time the statute was adopted, and
continuously until this suit was begim,
there were pending undetermined in the
district court > two suits in equity brought
by the present plaintiff, one against two
Oregon corporations and the other against
another corporation of that state, in each
of which suits the relative rights of the
parties thereto in the waters of Silvies
river were in controversy. These rights are
reasserted and again brought in contro-
versy in the proceeding before the board.
When that proceeding was first set in
motion, the Pacific Live Stock Company,
the plaintiff In this suit, presented to the
board a petition and bond for the removal
of the proceeding, or a part of it, alleged to
involve a separable controversy, to the dis-
trict court of the United States, [446] upon
the ground that it was a suit between citi-
zens of different states. But the attempted
removal was not sustained, for the district
court remanded the proceeding, and in that
connection held that, while it was pending
before the board, it was essentially prelimi-
nary and administrative, and not a suit at
law or in equity within the meaning of the
removal statute. 199 Fed. 495.
Thereafter the plaintiff presented to the
division superintendent a sworn statement
of its claim, accompanied by the fee pre-
scribed,— at the same time protesting that
the fee was extortionate, that the matter
should be adjudicated In the Federal court,
and that the local statute was repugnant
to the 14th Amendment. More than two
hundred other claimants also appeared and
submitted statements of their claims, all
being described as higher up the stream
than that of the plaintiff. When the state-
ments were opened to public Inspection
many contests were initiated. Several of
>The suits were begun in the circuit
court, and, when it was abolished, were
transferred to the district court.
1095
446-448
SUPREME COURT OF THE UNITED STATES.
Oct. Tebh,
these were against the plaintiff's claim; a
large number were by the plaintiff against
other claims, and there were others in
which, it is said, the plaintiff was not di-
rectly concerned. It was at this stage of
the proceeding, and before any evidence was
taken in any of the contests, that this suit
was brought.
Upon the assumption (1) that the re-
moval proceedings were effective, (2) that
the proceeding before the board is substan-
tially identical with the pending suits, and
(3) that that proceeding is essentially ju-
dicial in its nature, the plaintiff insists
that the continued prosecution of the pro-
ceeding before the board constitutes an in-
admissible interference with the district
court's jurisdiction, and that this jurisdic-
tion should be maintained and protected by
an appropriate injunction.* The insist-
ence must [447] be overruled, because the
assumption upon which it rests cannot be
indulged.
Nothing was accomplished by the removal
proceedings. The district court did not take
jurisdiction under them, but, on the con-
trary, by its remanding order, adjudged
that they were unauthorized. That order is
not subject to review, either directly or in-
directly, but is final and conclusive. Ju-
dicial Code, § 28 [36 Stat, at L. 1094, chap.
231, Comp. Stat. 1913, § 1010]; Missouri
P. R. Co. V. Fitzgerald, 160 U. S. 556. 680-
583, 40 L. ed. 536, 542, 543, 16 Sup. Ct.
Rep. 389; McLaughlin Bros. v. Hallowell,
228 U. S. 278, 286, 57 L. ed. 835, 839, 33
Sup. Ct. Rep. 465. In so holding, it is not
intimated that the result would be different
if the order were now open to review. See
Upshur County v. Rich, 135 U. S. 467, 474,
et seq., 34 L. ed. 196, 199, 10 Sup. Ct. Rep.
651, and cases cited.
The rule that where the same matter is
brought before courts of concurrent juris-
diction, the one first obtaining jurisdiction
will retain it until the controversy is -de-
termined, to the entire exclusion of the
other, and will maintain and protect its
jurisdiction by an appropriate injunction,
is confined in its operation to instances
where both suits are substantially the same;
that is to say, where there is substantial
identity in the interests represented, in the
rights asserted, and in the purposes sought.
Buck V. Colbath, 3 Wall. 334, 345, 18 L. ed.
257, 261; Watson v. Jones, 13 Wall. 679,
• See Rev. Stat. § 720; Taylor v. Taintor,
16 Wall. 366, 370, 21 L. ed. 287, 290;
French v. Hay (French v. Stewart) 22 Wall.
250, 253, 22 L. ed. 857, 858; Rickey Land
k Cattle Co. v. Miller & Lux, 218 U. S. 258,
262, 54 L. ed. 1032, 1038, 31 Sup. Ct. Rep.
11; Chesapeake & O. R. Co. v. Cockrell, 232
U. S. 146, 154, 58 L. ed. 544, 547, 34 Sup.
Ct. Rep. 278.
1096
715, 20 L. ed. 666, 671; Rickey Land k
Cattle Co. V. Miller & Lux, 218 U. 8. 258,
26^, 54 L. ed. 1032, 1038, 31 Sup. Ct. Rep.
11. This is not such an instance. The pro-
ceeding sought to be enjoined, although in
some respects resembling the prior sUits, is
essentially different from them. They are
merely private suits brought to restrain al-
leged encroachments upon the plaintiff's
water right, and, while requiring an asci*r-
tainment of the rights of the parties in the
waters of the river, as between themselves,
it is certain that they do not require any
other or further determination respecting
those waters. Unlike them, the proceeding
in question is a quasi public proceeding,
set in motion by a public agency of the
state. All claimants are required to appear
and prove their claims; no one can refuse
without [448] forfeiting his claim, and all
have the same relation to the proceeding.
It is intended to be universal and to result
in a complete ascertainment of all existing
rights, to the end, first, that the waters may
be distributed, under public supervision,
among the lawful claimants according to
their respective rights without needless
waste or controversy; second, that the
rights of all may be evidenced by appro-
priate certificates and public records, al-
ways readily accessible, and may not be
dependent upon the testimony of witnesses,
with its recognized infirmities and uncer-
tainties; and, third, that the amount of sur-
plus or unclaimed water, if any, may be
ascertained and rendered available to in-
tending appropriators.
Referring to a situation resembling that
to which this proceeding is addressed, the
supreme court of Maine said in W^arren
V. Westbrook Mfg. Co. 88 Me. 58, 66, 35
L.R.A. 388, 51 Am. St. Rep. 372, 33 Atl.
665 : "To make the water power of econom-
ic value, the rights to its use, and the
division of its use, according to those rights,
should be determined in advance. This
prior determination is evidently essential
to the peaceful and profitable use by the
different parties having rights in a com-
mon power. To leave them in their uncer-
tainty— to leave one to encroach upon the
other — to leave each to use as much as he
can, and leave the other to sue at law after
the injury — is to leave the whole subject-mat-
ter to possible waste and destruction." In
considering the purpose of the state in au-
thorizing the proceeding, the supreme court
of Oregon said in Re Willow Creek, 74 Or.
592, 613, 617, 144 Pac. 505: *'To accelerate
the development of the state, to promote
peace and good order, to minimize the dan-
ger of vexatious controversies wherein the
shovel was often used as an instrument of
warfare, and to provide a convenient way
for the adjustment and recording of the
241 V. S.
1915.
PACIFIC LIVE STOCK CO. v. LEWIS.
448-461
rigbts of the yarious claimants to the use
of the water of a stream or other source of
supply at a reasonable expense, the state
enacted the law of 1909, thereby [440] to a
limited extent calling into requisition its
police power. . . . Water rights, like all
other rights, are subject to such reason-
able regulations as are essential to the gen-
eral welfare, peace, and good order of the
citisens of the state, to the end that the
use of water by one, however absolute and
unqualified his right thereto, shall not be
injurious to the equal enjoyment of others
entitled to the equal priyilege of using water
from the same source, nor injurious to the
rights of the public." The district court,
when making the remanding order,.. jMud :
"The water is the rea or subject-matter of
the controversy. It is to be divided among
the several claimants according to their
respective rights. Each claimant is there-
fore directly and vitally interested, not only
in establishing the validity and extent of
his own claim, but in having determined
all of the other claims." [199 Fed. 502.]
And that court further said that what was
intended was to secure in an economical
and practical way a determination of the
rights of the various claimants to the use
of the waters of the stream, "and thus
[to] avoid the uncertainty as to water titles
and the long and vexatious controversies
concerning the same which have heretofore
greatly retarded the material development
of the state." In such a proceeding the
rights of the several claimants are so close-
ly related that the presence of all is essen-
tial to the accomplishment of its purposes,
and it hardly needs statement that these
cannot be attained by mere private suits in
which only a few of the claimants are pres-
ent, for only their rights as between them-
selves could be determined. As against
other claimants and the public the deter-
mination would amoimt to nothing. And
so, upon applying the test before indicated,
it is apparent that the assumed substantial
identity between the proceeding and the
pending suits does not exist.
The supreme court of the state holds that
while the proceeding is pending before the
board it is merely preliminary [450] and
administrative, not judicial, and as this hold-
ing is a necessary result of that court's
construction of the statute, we accept it as
correct. The question was first suggested
in Pacific Livestock Co. v. Cochran, 73 Qt,
417, 144 Pac. 668, and the court then said,
p. 429: "It is not necessary here to de-
cide whether the proceeding by the board
to deiermine water rights is judicial or
administrative. To a large extent it is
administrative, but like many proceedings
of that character, the board must also act
60 li. ed.
in a quasi judicial capacity. A determina-
tion of the water rights to a stream finally
ends as a report to the circuit court, and
a decree of final determination by that
court." Afterwards the question was both
raised and determined in Re Willow Creek,
74 Or. 692, 144 Pac. 605. llie court there
reviewed the several provisions bearing upon
the duties and powers of the board, and
said, pp. 610, 612, 614: "Their duties are
executive or administrative in their nature.
In proceedings under the statute the board
is not authorized to make determinations
which are final in character. Their findings
and orders are prima facie final and binding
until changed in some proper proceeding.
The .findings of the board are advisory
rather than authoritative. It is only when
the courts of the state have obtained juris-
diction of the subject-matter and of the
persons interested, and rendered a decree in
the matter, determining such rights, that,
strictly speaking, an adjudication or final
determination is made. It might be said
that the duties of the water board are
quasi judicial in their character. Such
duties may be devolved by law on boards
whose principal duties are administrative.
. • . The duties of the board of control
are similar to those of a referee appointed
by the court. ... By proceeding in ac-
cordance with the statute, when the mat-
ter is presented to the court for judicial
action, it is in an intelligible form. The
water board and state may then be repre-
sented by counsel."
[451] As an alternative to its first con-
tention, which we hold untenable, the plain-
tiff insists that the statute is repugnant to
the due process of law clause of the 14th
Amendment, first, because it requires a
claimant, at his own expense, to assert and
prove his claim before the board, and to
pay an extortionate fee for having it con-
sidered,— all under penalty of forfeiting his
claim if he refuses, — ^notwithstanding the
board acts only administratively and its
findings and order are not conclusive; sec-
ond, because it permits the board to ac-
cept and act upon the sworn statements of
claimants taken ear parte and upon the data
set forth in the unsworn report of the en-
gineer, without, as is asserted, affording
any opportunity for showing their true
value, or the want of it, by cross-examina-
tion or otherwise; and, third, because it
requires that the board's findings and or-
der, although only administrative in char-
acter, be followed and given effect in the
distribution of the water pending the action
of the circuit court upon them.
A serious fault in this contention is that
it does not recognize the true relation of
the proceeding before the board to that be-
461-464
SUPREME COURT OF THE UNITED STATES.
9oT. TkiM,
fore the court. They are not independent
or unrelated, hut parts of a tingle statu-
tory proceeding, the earlier stages of which
are before the board and the later stages
before the court. In notifying claimants,
taking statements of claim, receiving evi-
dence, and making an advisory report, the
board merely paves the way for an adjudi-
cation by the court of all the rights in-
volved. As the supreme court of the state
has said, the board's duties are much like
those of a referee. (And see Washington
ex rel. Oregon R. & Nav. Co. v. Fairchild,
224 U. S. 610, 626, 627, 66 L. ed. 863, 868,
869, 32 Sup. Ct. Rep. 636.) All the evi-
dence laid before it goes before the court,
where it is to be accorded its proper weight
and value. That the state, consistently
with due process of law, may thus commit
the preliminary proceedings to the board
and the final, hearing and adjudication to
the court, is not debatable. [452] And so,
the fact that the board acts administratively
and that its report is not conclusive does
not prevent a claimant from receiving the
full benefit of submitting his claim and sup-
porting proof to the board. That he is to
do this at his own expense affords no ground
for objection; on the contrary, it is in ac-
cord with the practice in all administra-
tive and judicial proceedings. The fee
alleged to be extortionate is a charge gradu-
ated according to the amount of land irri-
gated under the claim submitted, and is 16
cents per acre for the first 100 acres, 6
cents per acre for the next 900 acres, and
1 cent per acre for any excess over 1,000
acres. The purpose with which it is exacted
is explained in the following excerpt from
the opinion of the supreme court of the
state in Pacific Livestock Co. v. Cochran,
73 Or. 417, 429, 430, 144 Pac. 668: "The
board is required to take testimony which
consumes the time of a stenographer paid
by the state ; to make, through the state
engineer, an examination of the stream and
the works diverting water therefrom, in-
cluding the measurement of the discharge
of the stream and of the capacity of the
various ditches and canals; to examine and
measure the irrigated lands, and to gather
such other data as may be necessary; to
reduce the same to writing and make it a
matter of record in the office of the state
engineer; to make maps and plats of the
various ditches and of the stream, — all at
the expense of the state. That these serv-
ices are beneficial to the claimant and neces-
sary to the preservation of his rights in
the stream and the protection and ' assur-
ance of his title goes without saying.
. . . It is reasonable to assume that the
expense to the state of the investigation,
mapping, taking testimony, and other acts
1098
involved in the determination of the claim-
ant's rights, will equal and in many cases
exceed the amount of the fee charged; and
I that the method indicated by the act by
which the amount is determined is [453]
eminently fair." In our opinion, the charge
is not extortionate and its exaction is not
otherwise inconsistent with due process of
law.
Upon examining the statute and tha deci-
sions of the supreme court of the state
construing and applying It, we are per-
suaded that it is not intended that the
board shall accept and act upon anjrthing
as evidence that Is devoid of evidential
value, or in respect of which the claimants
concerned are not given a fair opportunity
to show its true value, or the want of it,
in an appropriate way. On the contrary,
the statute discloses a fixed purpose to se-
cure timely notice to all claimants of every
material step in the proceeding, and full
opportunity to be heard in respect of all
that bears upon the validity, extent, and
priority of their claims. And while it if
true, according to the concessions at the
bar, that the sworn statements of claim are
taken ex parte in the first instance, it also
is true that they are then opened to public
inspection, that opportunity is given for
contesting them, and that, upon the hesr-
ing of the contests, full opportunity is had
for the examination of witnesses, including
those making the statements, and for the
production of any evidence appropriate to
be considered. Thus the fact tliat tbe
original statements are taken e» parte be-
comes of no moment. And while it is true
that the state engineer's report is accepted
as evidence, although not sworn to by him,
it also is true that the measurements and
examinations shown therein are made and
reported in the discharge of hia ofiicial
duties and under the sanction of his oath
of office, and that timely notice of the date
when they are to begin is given to all claim-
ants. The report becomes a public docu-
ment accessible to all, and is accepted u
prima facie evidence, but not as conclusive.
Re Willow Creek, 74 Or. 692, 628, 144 Pac.
505. Of the occasion for such a report, the
supreme court of the state says in that case,
p. 613 : "In a proceeding [454] before tbe
board, provision is made for an Impartial
examination and measurement of the water
in a stream, of the ditches and canals, and
of the land susceptible of irrigation, and for
the gathering of other essential data by the
state engineer, including the preparation of
maps, all to be made a matter of record in
the office of the state engineer, as a founda-
tion for such hearing and to facilitate a
proper understanding of the rights of the
parties interested. Under the old procedure
141 U. 8.
1015. UONTBUBANO Y BAUOS t.~LA. COUPAfTlA GENERAL DB TABACOB. 464, 45B
■uch infomMtion wu often omitted. When | 386, 54 L. td. 1074, 1080, SI Sup. Ct Kep.
meuurementa w«r« made by the Vftrioua 07.
p*rti«s to K cnit the; wer« nuirlj k1w*7I Decree Kfflrmed.
mftde tj different methods ftnd were con-
flicting. Tha other evidence in regard there- ■"
to, beins mere eatimateB, rendered • deter- _ _ __
ml..tlo5 ol,«..l, jmU 10, Ih. ™rt ALi^'MraO MOOTELIBiSO Y RAMOS
.Kd of ,n..llo..bl. .™r.cj. .nd ..te. ..ha ^J piS" "" ' ' ' " '
made." Coniidering the nature of the re- '' ,
s.r .';,d„t'r,rpur'.jT.:: ^ compa,^ qe^^ld- tabacos
as evidence Is not violative of due process, ^■'^ AnAo-
McGker V. Lehigh Valley R. Co. 236 U. 8. (See S. C. Reporter's ed. 455-*a].)
412, 430, 50 L. ed. 844, 667, P.U.R.1915D,
1072, 35 Sup. Ct. Rep. 328. Appeal — mode of r«Tl«w.
The provision that the water shall be die- 1. Appeal is ths proper method of re-
tributed in contormitjr with the board's or- viewing, in the Federal Supreme Court, un-
der pending the adjudication by the court ^^r the act of July 1, 1902 (32 Stat, at L.
ha. the sanction of many precedents in the f?' ■**§■ '368. Comp. SUt. 1B13, § im).
!..«;. i.iir.- •» r- «™.. _ J « .1. _. 1 i 10. » decree of the supreme court of the
legslation of Congress and of the «^veral f-hiH ;„ i,,^„d, -^ an^ction of ui equi-
states, notably in the provision In the inter- table nature.
state commerce act directing that ths orders [irar other csiea, lee Appeal and Error, II
of the Commiasion shall be effective from a t^ tn Digest Sup. Ct IMS.]
dat« shortly after they are made, unless APPe*' — r«>™ PliUlpplnc IslnndB an-
tbeir operation be restrained by injunction. f '*""" *»"•"' " '""ow'nK decision be-
TUese legislative prwedents. while not con- "^/The concurrent views of the two
trolling, are entitled to much weight, es- i(,„„ „„,tg ^3,^^ .^rtaln contracts should
pecially as they have been widely accepted be construed as creating an agency rather
as valid. Although containing no provision than as being contracts of sale will not be
for an . injunction, ths statute under con- disturbed by the Federal Supreme Court on
sideration permits tlie same result to be appeal from the supreme court of the Phil-
reached in another way, for It deelsres that 'PP""^ Islands, unless convinced that audi
the operation of the board's ordsr "mar be Tlf '■^'^"'"y erroneous.
K . . , _.» L _. . I""" "•*>■' «»•**• •«< Appeal and tCrror, VIII,
sUyed in whole or in part" by giving » m, 1, In Dlgett Bnp. Ct. 1008.1
bond in such amount as the judge of the
court in which the proceeding is pending may [No. 217.]
preacribe, conditioned for the payment of
such damages [455} as may accrue by rea- Submitted March 8, 1016. Decided June S,
son of ths stay. It is not, therefore, as If 1^16.
til e requirement were absolute. As has been _ _ . . ,. _ „
seen, the order Is made only afUr adequaU H*^ APPEAL from, and IN ERROR to.
notice and full opportunity to be heard, and ^ "" S^P"""* Co"'* <>' t*"* Philippine
when made is, with reason, deemed prima '"'""*•' ^ ""«^ » <*«'« "''"'>' »«"»»» a
facie correct. It relates to flowing water, '1'^™ °' ^' 9°'"* "^ ^•"* Instanoe of tbe
to the use of which there are conflicting Judicial Dm t net of Manila^ m favor of do-
claims. Unless diverted and used, the water '^"'l"''* m a suit m which pU.ntiff^ in addi-
wUI pan on and be lost. No claimant is t'**" f° claiming damages, prayed for tha
in poasession, and all assert a right to take ~n«latlon of a certain contract and of the
from the eommon source. In this situation '^^'tgi.gu given to secure it, and defendant
we think it is within the power of Uie ">1««'. '« affirmative relief, and for an ac-
sUte to require that, pending the dual ad- °7"t'"K ""d dam^es. Wnt of error d*
judictionrtl'e water shall be distributed ""'"«*, ^«re« affirmed on the appeal,
according to the board's order, unless a ^* '"=*' *"' '*^^ "■ ">« "P*"'""^
•aitable bond be given to st*y its operation. Mr. Henrr W. Van Dyke submitted the
Such ■ requirement is not arbitrary, doea cause for appellants and plaintiffs in error:
not take from one and give to another, and Since the action is one tliat involves not
is not otherwise offensive to a right con- alone claims for damages, but. on the one
ception of due process. Detroit ft U. R. — — ■ — — ■ —
Co. v. Michigan R. Commission, 240 U, S. Noti.— On distinction between apNal and
BS4, ante, 802, 36 Sup. a. Rep. 424; Wad- ?*"■ "' *7'";T*f? "^J? *"°*" ^""^ *■
ley Southed R. Co v^ Georgia, 235 U. 8. ^°Sn' .njiliate i^ni^o^ of Federal Su-
661, 660, 60 L. ed. 40B. 411, P.U.R.IB15A, ^me CSurt over supreme court of Philip-
166, as Sup. Ct. Rep. 214; Monteiuma Canal pine Islands— «« note to MarUnei v. Inter-
Co. T. SmitfaTille Canal Co. 218 U. 8. 871, national Bl^. (>oip. S5 L. ed. U. S. 438.
•§ Ii. «d. 10*9
45»-4M
SUPREME COURT OF THE UNITED STATES.
Oct. Tkem,
side, prayers for the rescinding of con-
tracts and cancelation of mortgages, and, on
the other, for an accounting, for the ap-
pointment of a receiyer, and for relief in
the nature ot specific performance, it is
essentially an action of an equitable char-
acter, and, as such, under the rulings of the
court in De la Rama v. De la Rama, 201
U. S. 303, 50 L. ed. 765, 26 Sup. Ct. Rep.
485; Behn t. Campbell, 205 U. S. 403, 51 L.
ed. 857, 27 Sup. Ct. Rep. 502, and Osell
T. Insular Collector of Customs, 239 U. S.
93, ante, 163, 36 Sup. Ct. Rep. 39, review-
able here on appeaL
Even if the writ of error, and not the ap-
peal, should be sustained in this case, the
court might consider not, of course, ques-
tions of fact, but the facts as found by the
court of first instance, for the purpose of
determining whether those facts are suffi-
cient to support the judgment (Allen v. St.
Louis Nat Bank, 120 U. S. 20, 30 L. ed.
573, 7 Sup. Ct. Rep. 460; Stanley v. Albany
County, 121 U. S. 535, 30 L. ed. 1000, 7
Sup. Ct. Rep. 1234; Preston v. Prather, 137
U. S. 604, 34 L. ed. 788, 11 Sup. Ct. Rep.
162, 1 Am. Neg. Cas. 599); or at least —
that is, if the findings in the case should be
regarded not as special findings of fact, and
therefore as not falling within the principle
established in those and other like cases —
the court may consider them, nevertheless,
for the purpose of determining whether the
principles of law the courts below applied
to them were properly applied.
Mr. Clement L. Bonv6 submitted the
cause for appellee and defendant in error.
Mr. Justice Pitney delivered the opinion
of the court:
This action was commenced by appellants
on the 4th day of March, 1911, in the court
of first instance of the city of Manila. It
was in its nature a suit in equity. The
whole controversy turns upon the construc-
tion of certain instruments in writing, the
provisions of which will be outlined in stat-
ing the case. The complaint averred that cm
October 25, 1905, the parties entered into a
written contract whereby the tobacco com-
pany, through a representative, "delivers to
Don Alejandro Montelibano for the purpose
of collection, under the conditions herein-
after expressed, the following credits."
There followed a detailed statement of the
credits, mentioning the names of the debt-
ors and the amount due from each, the
aggregate being P:179,177.86. The com-
pany guaranteed the existence and legiti-
macy of the credits, but not the solvency of
the debtors. Montelibano obligated himself
to pay to the company as the value of the
credits the sum of P. 130,000 in instalments
1100
of P.20,000 in the month of December in
each of the years 1906, 1907, 1908, and 1009,
and the balance of P.oO,000 in December,
1910. It was agreed that if he should pay
the P.130,000 at the times provided "all the
credits and documents of the debtors [457]
which are now delivere4 to him as specific-
ally stated in paragraph one, will be trans-
ferred to him, and consequently Don Ale-
jandro Montelibano agreed to pay in cash
to the Compafiia General de Tabacos de
Filipinas in the instalments set out the sum
of 130,000 pesos, in order to acquire the
ownen^ip of the rest of the credits." All
cancelations of credits were to be made by
the company upon the proposal of Don Ale-
jandro, "the latter, however, being author-
ized to issue partial receipts for whatever
sums he may collect." The company was
not to advance to him any sum for use in
the collection of the credits, nor to accept
responsibility for actions instituted by him
for their collection, **said party accepting
whatever responsibilities may arise by rea-
son of his negotiations." The company con-
ferred upon him authority to conduct upon
his own responsibility all negotiations by
him deemed requisite for the collection of
the credits; "and in the event of any
judicial action being instituted, the com-
pany shall sell to Mr. Montelibano the
credit which is the object of such litiga-
tion." The contract was publicly ratified
by Montelibano and his wife, who is the
other appellant, on the 10th day of Novem-
ber following its date, and in the ratifica-
tion the instrument, besides being copied at
large, was described as the document "in
which the said company ceded to the said
Mr. Montelibano all the credits set forth
in the same to the end that the cessionary
might carry into effect the collection from
all the debtors of the company of the debts
set forth in the inserted document, the total
amount of which aggregates the sum of
179,177 pesos and 86 centavos, by means of
the authority conferred by said company
upon said Mr. Montelibano to enable him
to carry out upon his own responsibility all
the negotiations he might deem necessary
for the collection of the credits mentioned,
and that in the event [458] of any judicial
action being instituted the company would
cede in sale to Mr. Montelibano the credit
which was the object of said litigation."
The wife joined in the contract and the rat-
ification in order to pledge certain real es-
tate owned by her as security for the per-
formance of the contract by her husband.
The complaint averred that appellants
had taken all steps possible to carry into
effect the collection of the credits, but had
only been able to collect amounts aggregat-
ing P.29,491.04; that the renudning credits
141 U. 8.
1915. MONTELIBANO Y RAMOS ▼. LA COMPa!$IIA GENERAL DE TABACOS. 158-460
■et forth in the firot clause of the contract
did not exist in the amount therein stated,
and were not legitimate in their nature, and
for this reason, in spite of plaintiff's efforts
to collect them, it had been impossible to
do so. Plaintiffs claimed that defendant
company was responsible to the plaintiffs
for damages in the sum of P.129,734.29, and
prayed thut they might recover this amount,
and that the contract of October 25, 1005,
and the mortgages given to secure it, might
be canceled.
The appellee filed an answer and a cross
complaint setting up the contract of Octo-
ber 25, 1905, and the ratification of No-
vember 10, and also an agreement after-
wards made between the parties under date
December 7, 1908, supplemental to and mod-
ifying in certain respects the previous con-
tract; setting up that defendant had
complied with all the terms and conditions
of these contracts on its part to be per-
formed; that Montelibano had paid defend-
ant only P.20,736.95 on account of the
instalments agreed to be paid ''under
the provisions of said contracts whereby the
said plaintiff had the option of purcha&ing
and acquiring the ownership of said credits
for the sum of P.l 30,000;" that after the
expiration of t)ie term of the option, when
he was by the terms and conditions of the
contracts obligated to account for all sums
of principal and interest collected on ac-
count of said credits, and to return to de-
fendant all credits remaining [450] uncol-
lected, defendant demanded of said plaintiff
an accounting of his transaction in connec-
tion with the credits as agent of the defend-
ant, and payment of all sums of principal
and interest collected, but he refused to
comply with the demand to pay over any
sum collected by him, to render accounts, or
in any manner to comply with his obliga-
tions under the contracts. Defendant prayed
that the action of plaintiffs be dismissed;
that the plaintiff Alejandro Montelibano be
required to render an accounting of the sums
collected by him, of the credits remaining
uncollected, and of all his transactions un-
der the contracts, and that judgment be
Tendered in favor of defendant and against
the plaintiff Alejandro for the sum found
to be due; that a receiver be appointed to
eare for the imcollected credits and the
mortgaged property; and for other relief.
Before trial plaintiffs asked for a dis-
missal of the action. The motion to this
effect was denied, and the case came on for
hearing upon defendant's prayer for afiirma-k
tive relief and for an accounting and dam-
ages. The tfial court treated the contract
as turning over the credits to Montelibano
for collection for defendant's account, sub-
ject to an option to purchase the entire
40 li. ed.
amount of credits for the sum of P.130,000,
payable in instalments strictly as prescribed
by the contract; found that he had not
only failed to pay the stipulated instal-
ments in order to avail himself of the
! option, but had not turned over or ac-
counted for the amount actually collected
by him; that he had collected P.61,715.98,
and paid over only P.20,736.95, leaving a
balance collected by him and undelivered to
the defendant of P.40,979.03, in addition to
which certain claims against Emilio Escay
and Quirino Gamboa had been prosecuted
to judgment and execution, and the prop-
erty of the debtors acquired by Montelibano
through the execution sales, and that these
properties were held by Montelibano in
trust for the [460] company. *'The conclu-
sions are that the plaintiff having failed to
perform the contract on his part, the de-
fendant is entitled to a return of his [its]
property in so far as it can be returned, and
to judgment for the value of the balance
which cannot be returned, which value must
be determined as the proceeds which the
plaintiff received from such claims, together
with legal interest upon the amount of cash
received by the plaintiff upon such claims
from the time of the commencement of this
action, which was by filing the complaint
herein on the 4th day of March, 1911."
Judgment was therefore entered in favor
of the defendant and against the plaintiff
Montelibano for the sum of P.40,979.03, less
P.22,086.43 (the amount of the Escay debt)
if defendant should seek to recover the
Escay property from plaintiff, with interest
from March 4, 1911, the date of the com-
mencement of the action; also for the
possession and delivery of certain enumer-
ated credits aggregating P.103,645.70 ; also
for the Escay property, and in case delivery
thereof could not be had, the sum of
P.40,000, the value thereof, provided defend-
ant did not elect to take the full judgment
for money collected as above stated, and if
such election should be made, then this
clause in relation to the return of the prop-
erty to be annulled; also for the property
known as the Gamboa property, or, in case
delivery thereof could not be had, the sum
of P.6,178.10; and for the costs.
The supreme court of the Philippine
Islands affirmed this judgment, holding
that the title to the credits never passed to
the plaintiff Alejandro Montelibano; that
they were delivered into his possession for
collection, with an agreement that he could
become the owner thereof by paying P.130,-
000 in the manner specified; that none of
these payments haring been made as agreed,
the credits remained the property of the
defendant coinpany, and a refusal to deliver
1101
460-462
SUPREME COUBT OF THE UNITED STATES.
Oct. Term,
them was properly the basis of a demand for
affirmative relief.
[461] The case comes to this court under
§ 10 of the act of July 1, 1902 (chap. 1369,
32 SUt. at L. 691, 605, Gomp. Stat. 1913, §§
3804, 1225), on account of the amount in
controyersy. The action being of an equi-
table nature, the proper method of review is
by appeal, and the writ of error will be dis-
missed, be la Rama v. De la Rama, 201
U. S. 303, 309, 50 L. ed. 765, 767, 26 Sup.
Ct. Rep. 485; Gsell v. Insular Collector of
Customs, 239 U. S. 93, ante, 163, 36 Sup. Ct.
Rep. 39; De la Rama v. De la Rama, 241
U. S. 154, 160, ante, 932, 934, 36 Sup. Ct.
Rep. 518.
The principal contention of appellants,
and the one upon which all others turn, is
that the court of first instance and the
supreme court of the Islands erred in hold-
ing that, under the terms of the contracts
of October 25, 1905, and December 7, 1908,
the credits involved were delivered to the
appellant Alejandro Montelibano not as
purchaser, but merely as agent for purposes
of collection, with an option to purchase
that was not carried out, and that therefore
the tobacco company was entitled to the
proceeds so far as collected, and a return
of the uncollected credits or their value.
In support of this there is an elaborate
argument respecting the construction of the
instruments in question. It concedes that
many of their clauses are consistent with*
the view that Montelibano had but an option
to purchase the credits, and that if this
option were not accepted he was to account
to the company for all that he collected;
but it is argued that other clauses and the
general intent of the agreements are to the
contrary. It would be tedious to recite
the argument in detail, and we content our-
selves with saying that it has not convinced
us that the courts below clearly erred; and
since they concurred in their findings both
upon questions of fact and upon questions
of law, it is our duty to afiirm their judg-
ment. Ker k Co. v. Oouden, 223 U. S. 268,
279, '66 L. ed. 432, 435, 32 Sup. Ct. Rep.
284 ; De Villanueva v. Villanueva, 239 U. S.
293, 299, ante, 293, 296, 36 Sup. Ct. Rep. 109.
Writ of error dismissed.
Decree affirmed on the appeaL
tion under the Federal employers' liability
act of April 22, 1908 (^5 SUt. at L. 65,
chap. 149, Comp. Stat. 1913, § 8657),
brought by the head brakeman of a 'inani-
fest train," whose injury waa due to the
"working" of the train at both ^da at the
same time, that if the jui^ believed from
the evidence that the method adopted by
the carrier in making up the train on the
occasion in question was the usual and ordi-
nary one, then plaintiff assumed all the
risks incident thereto, and could not re-
cover because of any injury received on ac-
count of such method, even though it was
the direct and proximate cauae of ^e in-
jury, is properly refused because (a) it
failed to define what state of facts should
charge plaintiff with an assumption of the
risk, the evidence leaving in doubt what
method was adopted in making up the train
in question; (b) it ignored the question
whether plaintiff had knowledge or was
chargeable with notice of the customary
method; and (c) it required the aoquittal
of defendant if the usual method of doing
the work was pursued, irrespective of the
question of the negligence of tiie rear-end
switching crew in carrying it out.
[For other cases, see Trial, Vll. d, in Digest
Sup. Ct. 1908.]
Appeal — reversible error — modiflca*
tion of instrnction.
2. The master has no valid cause foi
complaint because a requested instruction
on the assumption of the risk of an extraor-
dinary danger ffrowine out of customary
methods, which ignored the question wheth-
er the injured employee knew or had no-
tice of such methods, waa modified io as to
exclude the assumption of risk aa a de-
fense unless the customary method waa one
that a reasonably careful employer would
have adopted.
[For other cases, see Appeal and Error. S142,
6143, in Digest Sup. Ct 1008.)
[No. 278.]
Argued March 10, 1916. Decided June B,
1916.
I
[462] CHESAPEAKE & OHIO RAILWAY
COMPANY, Plff. in Err.,
V. .
CLAUDE L. PROFFITT.
(See S. C. Reporter's ed. 462-469.)
Triml — requested iiiatmction — aaaomp-
tion of risk.
1. A requested instruction^ in an ac-
1102
N ERROR to the United SUtes Circuit
Court of Appeals for the Fourth Circuit
to review a judjgment which affirmed a judg-
ment of the District Court for the Eastern
District of Virginia in favor of plaintiff in
an action under the Federal employers' lia-
bility act. Affirmed.
See same case below, 134 C. C. A. 37,
218 Fed. 23.
The facta are stated in the opinion.
Note. — On the constitutionality, applica-
tion, and effect of the Federal employers' lia-
bility act — see notes to Lamphere v. Or^fon
R. & Nav. Co. 47 L.R.A.(N.S.) 38, and Sea-
board Air Line R. Co. y. Horton, LJLA
1916C, 47.
Generally, as to servant's assumption of
risk — see notes to Pidoock v. Union P. R.
141 U. 8.
1915.
CHESAPEAKB Jb O. R. CO. t. PROFFIIT.
Messrs. Walter Ijeake and Dayld H.
Ijeake argued the cause, and, with Mr.
Henrj Taylor, Jr., filed a brief for plain-
tiff in error:
Under the common-law doctrine of as-
sumed risks, as construed and applied in
the Federal courts, the servant assumes the
risks arising from the master's method of
doing the work where the dangers or de-
fects are open and obvious or known to the
servant, and he continues in the employ-
ment of the master, even though such risks
may have been originally due to the mas-
ter's negligence.
1 Labatt, Mast Jb S. § 274; Butler v.
Frazee, 211 U. S. 466, 467, 53 L. ed. 285,
29 Sup. Ct. Rep. 136; Schlemmer v. Buffalo,
R. & P. R. Co. 220 U. S. 690, 596, 55 L. ed.
596, 600, 31 Sup. Ct. Rep. 661; Choctaw, O.
k G. R. Co. V. McDade, 191 U. S. 698, 48 L.
ed. 96, 24 Sup. Ct. Rep. 24, 15 Am. Neg.
Rep. 230; Texas A P. R. Co. v. Harvey, 228
U. S. 319, 57 L. ed. 852, 33 Sup. Ct Rep.
518; Gila Valley, G. & N. R. Co. v. Hall,
232 U. S. 94, 58 L. ed. 521, 34 Sup. Ct Rep.
229; Seaboard Air Line R. Co. v. Horton,
233 U. S. 492, 58 L. ed. 1062, L.R.A.1915C,
1, 34 Sup. Ct Rep. 635, Ann. Cas. 1915B,
475, 8 N. C. C. A. 834.
The doctrine of assumed risks, as ap-
plicable to common carriers, has not been
changed by the employers' liability act ex-
cept in the one case where the violation by
such common carrier of any statute enacted
for the safety of employees contributed to
the injury and death of an employee.
Gulf, C. k S. F. R. Co. V. McGinnis, 228
U. 8. 173, 57 L. ed. 785, 33 Sup. Ct. Rep.
426, 8 N. C. 0. A. 806; Seaboard Air Line
R. Co. V. Moore, 228 U. S. 433, 57 L. ed.
907, 33 Sup. Ct Rep. 580; Second Employ-
ers' Liability Cases (Mondou v. New York,
N. H. k H. R. Co.) 228 U. S. 1, 56 L. ed.
327, 38 L.RJL(N.S.) 44, 32 Sup. Ct Rep.
169, 1 N. C. C. A. 876; Norfolk k W. R. Co.
V. Earnest, 229 U. 8. 114, 57 L. ed. 1096,
33 Sup. Ct. Rep. 654, Ann. Cas. 1914C, 172;
American R. Oo. y. Birch, 284 U. S. 547, 56
L. ed. 879, 82 Sup. Ct. Rep. 603; Hall v.
Vandalia R. Co. 169 111. App. 12; NeU y.
Idaho & W. N. R. Co. 22 Idaho, 102, 125
Pac. 331; Barker y. Kansas City, M. k 0.
R. Co. 88 Kan. 767, 43 L.R.A.(N.S.) 1121,
129 Pac. 1151; Freeman v. Powell, — Tex.
CiY. App. — , 144 S. W. 1038; Southern R.
Co. Y. Jacobs, 116 Va. 189, 81 S. E. 99; Sea-
board Air Line R. Co. v. Horton, 233 U. S.
492, 58 L. ed. 1062, L.R.A.1915C, 1, 34 Sup.
Ct Rep. 635, Ann. Cas. 191 5B, 475, 8 N. C.
0. A. 834; Southern R. Co. v. Crockett, 234
U. S. 730, 58 L. ed. 1564, 84 Sup. Ct. Rep.
897.
The method of conducting the business in
this case, that is, of shifting and coupling
at both ends of the train at the same time,
without any notice and warning to those
working at the other end oi the train, was
open, obvious, and known to the plaintiff,
and he, therefore, assumed the risk of any
injury from that source.
Chicago, M. & St P. R. Co. y. Voelker,
70 L.R.A. 264, 65 C. C. A. 226, 129 Fed.
522; Johnson v. Southern P. Co. 196 U. S.
19, 49 L. ed. 370, 25 Sup. Ct Rep. 158, 17
Am. N^. Rep. 412.
Instruction "B," on the subject of the as-
sumption of risks, as asked for by the de-
fendant should have been given, and the
modification thereof by the court was im-
proper, and should not have been given,
since it was a violation of the doctrine of
assumed risks.
Butler V. Franzee, 211 U. S. 466, 467, 53
L. ed. 285, 29 Sup. Ct Rep. 136.
There was no evidence in the case show-
ing or tending to show that the violence
of the impact caused by the cars coupled
from the rear of the train was the proxi-
mate cause of the injury to the plaintiff.
Patton V. Texas A P. R. Co^ 179 U. S.
663, 45 L. ed. 364, 21 Sup. Ct. Rep. 275.
The instruction given by the court on the
measure of damages, as asked for by the
plaintiff, was erroneous on the question of
the allowance of compensation (a) for any
physical pain the plaintiff will suffer in the
future, and (b) for being unable to follow
his calling or to do any other -work he
would have done had he not been injured.
13 Cyc 139; Smith v. Milwaukee Build-
ers' k T. Exch. 91 Wis. 360, 30 L.R.A. 504,
51 Am. St Rep. 912, 64 N. W. 1041; Ford
Y. Des Moines, 106 Iowa, 94, 75 N. W. 630,
4 Am. Neg. Rep. 379; Shults v. Griffith,
103 Iowa, 150, 40 L.ItA. 117, 72 N. W. 445 ;
Norfolk R. k Light Co. v. Spratley, 103
Va. 388, 49 S. E. 502; Watson, Personal
Injuries, § 384; Washington k G. R. Co. v.
Oo. 1 L.RJ1. 131; Foley v. Pettee Mach.
Works, 4 LJtA. 61; Howard v. Delaware
k H. Oanal Co. 6 URJL 75; Hunter v.
New York, 0. A W. R. Co. 6 L.R.A. 246;
Georgia P. R. Co. v. Dooly, 12 L.R.A. 342;
Kehler v. Schwenk, 13 L.R.A. 374, and
Southern P. Co. v. Seley, 38 L. ed. U. S.
891.
On volenti n<m fit infuria as defense to
action by injured servants — see note to
40 It, ed.
CMaley v. South Boston Gaslight Co. 47
L.RJL 162.
As to whether sen^ant may assume the
risk of dangers created by the master's
negligence — see note to Scheurer v. Banner
Rubber Co. 28 L.R.A.(N.S.) 1215.
As to servant's assumption of ris)c of
dangers imperfectly appreciated — see note
to Tuckett Y. American Steam k Hand
Laundry, 4 L.R.A.(N.S.) 990.
IIOS
463, 464
SUPREME COURT OF THE UNITED STATES.
OoT. Tbuc,
Harmon (Wafihington & G. R. Co. v. Tob-
riner) 147 U. S. 584, 37 L. ed. 289, 13 Sup.
Ct. Rep. 557; 1 Joyce, Damages, §S 246,
276; Richmond & D. R. Co. y. Elliott, 149
U. S. 267, 37 L. ed. 729, 13 Sup. Ct. Rep.
837; Boston k A. R. Co. ▼. O'Reilly, 158
U. S. 334, 39 L. ed. 1006, 16 Sup. Ct. Rep.
830; Norfolk A W. R. Co. v. Holbrook, 235
U. S. 625, 59 L. ed. 392, 35 Sup. Ct. Rep.
143, 7 N. C. C. A. 814.
Messrs. Hill Carter and O. T. Meredith
argued the cause and filed a brief for de-
fendant in error:
Not only did the court in Seaboard Air
Line R. Co. v. Horton, 233 U. S. 492, 58 L.
ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct Rep.
635, Ann. Cas. 1915B, 475, 8 N. C. C. A.
834, declare that, by reason of the language
of the employers' liability act, the doctrine
of the so-called assumption of risk from
the negligence of a fellow servant had been
abolished, but, in all cases arising imder
such act, so far as we have found, this
court has refused to allow a master's ex-
emption from liability for the negligence of
a fellow servant upon the old doctrine of
being fellow servants.
Norfolk A W. R. Co. v. Earnest, 229 U.
S. 114, 57 L. ed. 1096, 33 Sup. Ct. Rep.
654, Ann. Cas. 1914C, 172; Wright v. Yazoo
& M. Valley R. Co. 197 Fed. 94, 235 U. S.
376, 59 L. ed. 277, 35 Sup. Ct. Rep. 130;
Southern R. Co. v. Gadd, 233 U. S. 572, 58
L. ed. 1099, 34 Sup. Ct. Rep. 696; McGov-
em V. Philadelphia & R. R. Co. 235 U. S.
389, 59 L. ed. 283, 35 Sup. Ct. Rep. 127,
8 N. C. C. A. 67 ; New York C. & H. R. R.
Co. V. Carr, 238 U. S. 260, 59 L. ed. 1298,
36 Sup. Ct. Rep. 780, 9 N. C. C. A. 1 ; Cen-
tral Vermont R. Co. v. White, 238 U. S.
507, 59 L. ed. 1433, 36 Sup. Ct. Rep. 865,
Ann. Cas. 1916B, 252, 9 N. C. C. A. 265.
Where a requested instruction should not
have been given, because there was no evi-
dence to warrant it, the judgment will not
be reversed because it was improperly mod-
ified.
Decatur Cereal Mill Co. v. Gogerty, 180
111. 197, 54 N. E. 231.
A judgment will not be reversed because
of an erroneous instruction unless the court
is satisfied that the jury was thereby mis-
led.
Seaboard Air Line R. Co. v. Padgett, 236
U. S. 668, 59 L. ed. 777, 35 Sup. Ot. Rep.
481; Bicknese v. Brandl, 46 Ind. App. 269,
91 N. E. 41; Larson v. Chicago & N. W. R.
Co. 89 Neb. 247, 131 N. W. 201 ; Devine v.
Chicago & C. River R. Co. 168 111. App.
460; McCary v. Alabama G. S. R. Co. 182
Ala. '697, 62 So. 18; Richardson t. Wood,
113 Me. 328, 93 Atl. 836.
Neither can the motion to set aside the
1104
verdict in the case at bar because it is c<m-
trary to the law and evidence, or because
it is excessive, be considered by this court.
Such questions are left to the discretion of
the trial court, and are not reviewable by
and in the courts of the United States.
New York, L. E. A W. R. Co. v. Winter,
143 U. S. 61-75, 36 L. ed. 76-81, 12 Sup.
Ct. Rep. 356, 8 Am. Neg. Cas. 690; North-
em P. R. Co, V. Charless, 2 C. C. A. 380, 7
U. S. App. 359, 51 Fed. 662; Hughes, Fed.
Proc. 2d ed. 1913, § 148, p. 411; Newcomb
V. Wood, 97 U. S. 581, 24 L. ed. 1085; Moore
V. United States, 160 U. S. 57, 37 L. ed. 996,
14 Sup. Ct. Rep. 26; South Penn Oil Co.
V. Latshaw, 49 C. C. A. 478, 111 Fed. 698, 21
Mor. Min. Rep. 600; Victor- American Fuel
Co. V. Peccarich, 126 C. C. A. 390, 209 Fed.
668; St. Louis, I. M. & S. R. Co. v. Craft,
237 U. S. 648, 69 L. ed. 1160, 36 Sup. Ct
Rep. 704, 9 N. O. C. A. 764.
Mr. Justice Pitney delivered the opinion
of the court:
This was an action brought in the United
States district court imder the Federal em-
ployers' liability act of April 22, 1908
(chap. 149, 36 SUt. at L. 65, Comp. SUt.
1913, § 8657).
Plaintiff was a brakeman in defendant's
employ, and, during the night of July 2,
1912, was called for duty at Gladstone, Vir-
ginia, to take his place as head brakeman
on a fast interstate freight train, known
as a ''manifest train," comprising about
forty cars, which had just come into the
division terminal yard at Gladstone and
was about to be taken forward. He got
upon the road engine and this was attached
to the train, plaintiff making the coupling.
Just after this he met the yard master, who
had charge of all the work done in the yard,
whose orders plaintiff waa bound to obey,
and who told plaintiff, according to his
testimony, to "cut out three cars at the
head end of the train [numbers 2, 3, and 4]
and switch them off on a side track and
come back and couple up, and they would
be ready to go." Plaintiff proceeded with
the road engine and crew to take out the
three cars, returned to the main track with
the engine and car number 1, coupled the
latter to the forward end of the train, and
was in the act of coupling up the air hose,
an operation that required him to step be-
tween the rails. While [464] he was in
this position, a collision took place, caused
by the acts of the yard crew, who (unknown
to plaintiff), under orders of the yard mas-
ter, and with the aid of the yard engine,
were engaged in switching cars at the rear
end of the train, and who, negligently, at
the jury doubtless found, drove a cut ci
twenty-nine cars into the standing cars
141 U. 8.
1915.
CHESAPEAKE A 0, R. CO. t. PROFIITT.
464-466
(about eight in number) with undue rio-
lence. According to the testimony of the
road engineer and fireman the jar of the
impact was such that, although their engine
was standing; with its independent brakes
set, it was thrown forward 20 feet along the
track. Naturally plaintiff was knocked
down and run oyer, and he sustained seri-
ous personal injuries, including the loss of
an arm.
In view of the character of the question
that is to be passed upon, a somewhat par-
ticular recital of the evidence is necessary.
There was testimony that when a manifest
train came into a terminal yard such as
Gladstone, destined to points further along
the line, the engine and caboose were
changed and sometimes cars were taken out
and otliers brought into the train ; and that,
in order to save time, it was customary to
have such shifting operations, when neces-
sary, done at both ends of the train, the road
engine and road crew operating at the
front, the yard engine and yard crew at the
rear. Whether plaintiff knew of this cus-
tom was, under the evidence, open to dis-
pute. He at one time denied that he knew
it was customary for both ends of a mani-
fest train to be "worked" at the same time;
and while this was afterwards qualified, it
appears not to have been withdrawn. He
admitted that it was customary to follow
the instructions of the yard master, but de-
nied that on this occasicm the yard master
told him anvthin<v to the effect that the rear
end of the train was to be worked. He testi-
fied that he had no notice that anything
was to be done at that end of the train be-
yond attaching the eaboose, and that [465]
after putting the second, third, and fourth
cars upon the side track, and coming back
to the train, he looked up the track, which
was straight, saw no lamp or other signal,
and then proceeded with his coupling oper-
ations, with the result already mentioned.
Whether it was usual, in conducting such
switching operations, to have a man at the
forward end of the moving cut of cars, was
in dispute. Plaintiff testified that "it is
the custom to have a man on the front end
of a cut of cars that is being switched into
other cars, who looks out for that and runs
and stops the engine just before they get
there, in making the coupling." Two of
defendant's witnesses contradicted this; one
in terms denying the custom of giving a
warning as stated by plaintiff; the other
declaring tliat "all the warning he knew
oi being given, or the practice, was for the
men in and about the train to take care
of themselves and see for his own danger
when he attempts to do any work, and the
witness knew of no signals given;" while
another and experienced witness, called by
00 L. cd.
defendant, being asked If it was customary
when running in a cut of cars to have a
man on the front end with a light, replied:
"Well, on the yard in switching cars they
eome right down to the book rule. It says
where cars are being shoved a man must
be placed on the head car." Whether there
was a man at the forward end of the cut of
cars that produced the collision in question
was in controversy. As to plaintiff's oppor-
tunity to gain knowledge of the alleged cus-
tom, it did not distinctly appear that he
had previously worked on a manifest train.
He testified tliat he had been employed aa
brakeman something more than five years,
part of the time as an extra man and part
of the time as a regular man; that he was
an extra man when hurt; had been a regu-
lar brakeman until about three weeks be-
fore the accident, when he was "pulled off
the local freight."
Plaintiff recovered a verdiet for substan-
tial damages, [466] and the judgment was
affirmed by the circuit court of appeals. 134
C. C. A. 37, 218 Fed. 23.
There are numerous assignments of error,
but most of them are manifestly unfounded.
The only ones requiring notice are based
upon the refusal of the trial court to in-
struct the jury in accordance with defend-
ant's Request B, and the modified instruction
that was given in its stead. The re-
quested instruction was, in substance: That
if the jury believed from the evidence that
the method adopted by defendant in mak-
ing up the train on the occasion in question
was the usual and ordinary method of doing
this work, then plaintiff assumed all the
risks incident to that method, and they
should not find a verdict in his favor be-
cause of any injury received on account of
said method of doing the work, even though
it was the direct and proximate cause of
his injury. The instruction given was, in
substance: That defendant had the right
to adopt reasonable rules and regulations
for the conduct and method of handling its
trains in its yards, and of making up trains
for their departure therefrom, and that if
the jury believed from the evidence that the
custom prevailed in the Gladstone yard of
making up the train from both ends at the
same time, that is to say, by working the
train engine and crew at the forward end
and the yard engine and its crew at the
rear end, and that such method was one
that reasonably prudent and careful men
would have adopted in the conduct of the
business, then the plaintiff assumed the
risks reasonably and usually incident to and
arising from such method of making up
trains, and they should not find a verdict
in his favor because of any injury received
solely on account of said method of making
70 110ft
466-469
SUPREME COURT OF THE UNITED STATES.
Oct. TksM,
np the train, although they believed from
the OTidence that the method adopted waa
the proximate cause of the injury.
The argument for plaintiff in error is
that an employee assumes the risks arising
from the employer's method of [467] doing
the work, where the dangers are open, obvi-
ous, or luiown to the employee, even though
they be due to the employer's n^ligence In
establishing the method or system; that
the eustomary method of shifting and
coupling cars at both ends of a manifest
train at the same time^ without notice or
warning to those working at the other end,
was open, obvious, and luiown to plaintiff;
and that he therefore assumed the risk of
any injury from that source.
It appears to have been conceded by plain-
tiff in the circuit court of appeals that the
attaching and detaching of cars by working
on lx>th ends of the train at the same time
was customary at the Gladstone yard; but
it does not appear to have been conceded
in that court or in the trial court that
plaintiff Icnew of this custom, or had had
such opportunity for luiowledge as to be
charged with notice of it. Nor was it con-
ceded that the custom included the pushing
in of a cut of cars without a man at their
head to give warning to other workmen and
to signal the engineer to slacken speed. As
already shown, the evidence left these mat-
ters open to dispute.
There are several reasons why error can-
not be attributed to the trial court for
refusing the requested instruction B.
(a) The evidence left it in doubt what
method was adopted in making up the train
in question and what was the usual and or-
dinary method, and the request therefore
failed to define what state of facts should
charge plaintiff with an assumption of the
rUk.
(b) The request ignored the question
whether plaintiff had knowledge or was
chargeable with notice of the customary
method. The argument in effect concedes,
what is plainly inferable from the evidence,
that the danger to a brakeman at work in
switching at one end of a manifest train,
arising from switching operations conducted
by another crew at the other end, is not
among the ordinary [468] risks of a brake-
man's employment. But, if it was an un-
usual and extraordinary danger, plaintiff
could not be held to have assumed it, in the
absence of Icnowledge or notice on his part.
To subject an employee, without warning,
to unusual dangers not normally incident j
to the employment, is itself an act of negli- j
gence. And, as has been laid down in
repeated decisions of this court, while an em-
ployee assumes the risks and dangers ordi-
narily incident to the employment in which
1106
he voluntarily engages, so far as these are
not attributable to tha negligence of the
employer or of those for whose eonduet the
employer ia responsible, the employee has a
right to assume that the employer baa exer-
cised proper care with respect to providing
a reasonably safe place of work (and this
includes care in establishing a reasonably
safe wyBtem or method of work), and is not
to be treated as assuming a risk that is
attributable to the employer's negligence
until he becomes aware of it, or it is so
plainly observable that he must b^ presumed
to have known of it. The employee is not
obliged to exercise care to discover dangers
not ordinarily incident to the employment,
but which result from the employer's negli-
gence. Texas & P. R. C!o. v. Archibald, 170
U. S. 665, 671, 672, 42 L. ed. 1188, 1191, 18
Sup. Ct. Rep. 777, 4 Am. Neg. Rep. 74G;
Choctaw, 0. k G. R. Co. v. McDade, 191 U.
S. 64, 68, 48 L. ed. 96, 100, 24 Am. Neg.
Rep. 24, 15 Am. Neg. Rep. 230 ; Texaa k P.
R. Co. V. Harvey, 228 U. S. 319, 321, 57 L
ed. 852, 855, 33 Sup. Ct Rep. 518; Gila
Valley, G & N. R. Co. v. Hall, 232 U. & 94,
101, 58 L. ed. 521, 524, 34 Sup. Ct. Bq).
229; Seaboard Air Line R. Co. y. Horton,
233 U. S. 492, 504, 58 L. ed. 1062, 1070,
L.R.A. 1915C, 1, 34 Sup. Ct Rep. 635, Ann.
Cas. 1915B, 475, 8 N. C. C. A. 834.
(c) The request required defendant to be
acquitted if the usual method of doing the
work was pursued, irrespective of the ques-
tion of the negligence of the yard erew in
carrying it out. N^ligence in the doing
of the work was the gravamen of plaintiff's
complaint, in his declaration aa in his evi-
dence, and defendant was not entitled to sn
instruction making the pursuit of a cus-
tomary system decisive of the issue, without
regard to whether due care was exercised in
doing the work itself. Even if plaintiff knew
smd assumed the risks of an inherently
[460] dangerous method of doing the work,
he did not assume the increased risk at-
tributable not to the method, but to negli-
gence in pursuing it Had the instruction
been given in form as requested, the jury,
in view of the issue and the evidence, might
easily have interpreted it sis meaning that
if defendant's employees usually and cus-
tomarily made up trains in such a manner
that by a violent collision produced by neg-
ligent switching operations at the rear end
of a long train a brakeman engaged in the
performance of his duties at the forward
end, and having no notice or warning of
the rear-end switching, was in danger of
serious personal injury, there waa no liabil-
ity. This, of course, is not the law.
Nor is the modification of the requested
instruction a matter of which defendant
may complain. The court evidently under-
141 U. S.
1915.
CHICAGO A N. W. R. 00. ▼. BOWER.
4«0, 470
ftood the request as meaning no more than
what it said, and as not intended to embrace
the hypothesis that plaintiff knew or had
Botioe that the usual method of making up
trains was that adopted on the occasion in
question. In the absence of such knowledge
or notice, the custom eould not be made
binding upon plaintiff; certainly not with-
out a finding that it was one that a reason-
ably careful employer would have adopted.
It was this finding that the modification
called for.
Judgment affirmed.
[470] CHICAGO & NORTHWESTERN
RAILWAY COMPANY, Plff. in Err.
▼.
WILLIAM BOWER.
(See S. C. R^orter's ed. 470-476.)
Trial — sufflciency of evidence to go to
tlie jury — negligence.
1. The submission to the jury of the
question whether a railway company was
negligent in furnishing a high-pressure
locomotive with a lubricator having, tubular
glasses is proper where there Is evidence
tending to show that this type of appliance
had been kept in use after its insufficiency
had been demonstrated by experience, and
perhaps under conditions materially differ-
ent from those which obtained when its use
began, in the face of notice that it was not
safe and suitable.
(For other cases, see Trial* VI. b, in Digest
Sup. Ct. 1008.J
Blaster and servant — assumption of
risk — increased haaard.
2. An experienced railway engineer,
though aware of certain dangers naturally
incident to the use of a lubricator having
tubular glasses, does not assume the in-
creased risk of explosion of the glasses at-
tributable to the railway company's negli-
gence in maintaining such a type of ap-
pliance on a high-pressure engine, where
he did not know and had no ground to be-
lieve that the railway company had been
wanting in the exercise of proper care for
his safety, or that, because of such want of
care, the danger to him was greater than it
should have been.
(For otlicr cases, see Master and Servant, II.
b. in Digest Sap. Ct. 1008.]
[No. 301.]
Argued March 10 and 17, 1910. Decided
June 5, 1016.
IN ERROR to the Supreme Court of the
State of Nebraska to review a judgment
which affirmed a judgment of the District
Court for Holt County, in that state, in
favor of plaintiff in an action under the
Federal employers' liability act. Affirmed.
See same ease below, 96 Neb. 410, 148
N. W. 146.
The facts are stated in the opinion.
Mr. A. A. McLaughlin argued the cause,
and, with Mr. William G. Wheeler, filed a
brief for plaintiff In error:
The mere happening of the accident is not
evidence of negligence.
Patton V. Texas & P. R. Co. 170 U. S.
658, 663, 664, 45 L. ed. 361, 364, 365, 21
Sup. Ct. Rep. 276; Chicago A N. W. R. Co.
V. O'Brien, 67 C. C. A. 421, 132 Fed. 503;
Chicago, B. & Q. R. Co. v. Kellogg, 65 Neb.
748. 76 N. W. 462, 5 Am. Neg. Rep. 50;
Cudahy Packing Co. v. Roy, 71 Neb. 600,
09 N. W. 231.
The fact that the Bull's Eye lubricator
may have been a new and better appliance
was not sufficient to show that the defend-
ant was n^ligent in using the lubricator
complained of.
4 Thomp. Neg. § 3993; Washington k O.
R. Co. V. McDade, 135 U. S. 654, 570, 34
L. ed. 236, 241, 10 Sup. Ct. Rep. 1044;
Westinghouse Electric A Mfg. Co. v. Heim-
lich, 62 C. C. A. 92, 127 Fed. 93; Omaha
Bottling Co. V. Theiler, 59 Neb. 257, 80 Am.
St. Rep. 678, 80 N. W. 821; Central Gran-
aries Co. v. Ault, 76 Neb. 249, 106 N. W.
418, 107 N. W. 1016.
An employee assumes the risk oi injury
in using defective machinery or appliances
when defects and dangers are known to him,
or, in the exercise of reasonable care, the
same should have been known to him.
Seaboard Air Line R. Co. v. Horton, 233
U. S. 492, 504, 68 L. ed. 1062, 1070, L.R.A.
1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cfeis.
1015B, 476, 8 N. C. C. A. 834; Texas A P.
R. Co. V. Harvey, 228 U. S. 310, 321, 322,
67 L. ed. 862, 866, 856, 33 Sup. Ct. Rep.
618; Chicago, B. A Q. R. Co. v. Shalstrom,
45 L.R.A.(N.S.) 387, 115 C. C. A. 616, 195
Fed. 720; Utah Consol. Min. Co. v. Bate-
Note. — Generally, as to servant's assump-
tion of risk — see notes to Pidcock v. Union
P. R. Co. 1 L.R.A. 131; Foley v. Pettee
Mach. Works, 4 L.ILA. 61; Howard v. Dela-
ware A H. Canal Co. 6 L.ILA. 76; Hunter
v. New York, O. A W. R. Co. 6 'UB.JL. 246;
Georgia P. R. Go. v. Dooly, 12 L.ILA. 342;
Kehler v. Schwenk, 13 L.R.A. 374, and
Southern P. Co. v. Seley, 38 L. ed. U. 8.
301.
On volenti non fit injuria as defense to
•0 li. ed.
action by injured servants — see note to
O'Maley v. South Boston Gaslight Co. 47
L.R.A» 162.
As to whether a servant may assume the
risk of dangers created by the master's
negligence — see note to Scheurer v. Banner
Rubber Co. 28 L.R.A.(N.S.) 1215.
As to servant's assumption of risk of
dangers imperfectly appreciated — see note
to Tuckett V. American Steam A Hand Laun-
dry, 4 L.R.A. (N.S.) 990.
1107
470-472
SUPREME COURT OF THE UNITED STATES.
Oct. Tkem,
man, 27 L.R.A.(N.S.) 958, 99 0. C. A. 365,
176 Fed. 63; St. Louis Ck>rdage Co. ▼. Mil-
ler, 63 L.RJ1. 651, 61 C. C. A. 477, 126 Fed.
511, 15 Am. Neg. Rep. 476; Ittner Brick Co.
▼. KUlian, 67 Neb. 689, 93 N. W. 951, 13
Am. Neg. Rep. 652; Vanderpool v. Part-
ridge, 79 Neb. 165, 13 L.RJ^.(N.S.) 668,
112 N. W. 318; New York, N. H. A H. R.
Co. T. Virvari, L.R.A.1915C, 9, 126 C. C. A.
632, 210 Fed. 118; Schlemmer v. Buffalo, R.
k P. R. Co. 220 U. S. 590, 506, 65 L. ed.
596, 600, 31 Sup. Ct. Rep. 561.
Instruction No. 3, requested by defend-
ant in error, and given to the jury, was
erroneous in that it advised the jury that
if plaintiff in error was negligent in fur-
nishing or maintaining lubricator glass, the
defendant in error would not assume the
risk, and the supreme court of Nebraska
erred in not reversing the case because of
the giving of such instruction.
Texas & P. R. Co. v. Harvey, 228 U. S.
319, 321, 57 L. ed. 852, 855, 33 Sup. Ot.
Rep. 518 ; Seaboard Air Line R. Co. v. Hor-
ton, 233 U. S. 492, 504, 58 L. ed. 1062, 1070,
L.R.A.1915C, 1, 34 Sup. Ct Rep. 635, Ann.
Cas. 1915B, 475, 8 N. C. C. A. 834; Gila
Valley G. & N. R. Co. v. HaU, 232 U. S. 94,
101, 102, 58 L. ed. 521, 524, 525, 34 Sup.
Ct. Rep. 229.
Messrs. A. A. McLaughlin, William G.
Wheeler, and Wymer Dressier filed a sep-
arate brief for plaintiff in error.
Mr. Michael F. Harrington argued the
cause and filed a brief for defendant in
error.
Mr. Justice Pitney delivered the opinion
of the court:
We have here under review a judgment
of the supreme court of Nebraska, affirm-
ing a judgment in favor of defendant [471]
in error in an action baaed upon the Federal
employers' liability act of April 22, 1908
(chap. 149, 35 Stat, at L. 65, Comp. Stat.
1913, S 8657), for the loss of an eye caused
by the breaking of a lubricator glass on a
locomotive engine upon which he was at
work aa engineer in the employ of plaintiff
in error. 96 Neb. 419, 148 N. W. 145.
No question is made but that the cause
of action arose in interstate commerce so
as to bring the case within the Federal act.
The facts upon which the question of lia-
bility depends are these: The plaintiff in
the action (defendant in error) was an ex-
perienced locomotive engineer. At the time
of his injury, which occurred at night in
the month of November, 1910, he had just
oiled his engine, taken it from the round-
house, and placed it upon the outgoing
track in readiness for his run. The engine
was equipped with a Nathan lubricator, an
llOS
appliance containing oil for the steam
cylinders and the air pump, the oil being
conducted to and within the parts where
needed under steam pressure from the boiler.
In order to give the engineer a view of the
interior of the apparatus, and thus enable
him to see that the oil was dropping, three
cylindrical glass tubes were attached, one
carrying the oil for eaeh steam cylinder
and one for the air pump. Each t>f these
glasses was surrounded with a shield of
perforated metal in two parts, hinged to-
gether and lightly clamped upon the glass
tube by means of a spring to hold it in
place. When the lubricator was in opera-
tion, the tubes were required to sustain
the same steam pressure as the boiler.
These tubular glasses would sometimes
break. This was most liable to occur:
(1) when a glass was newly installed, and
before it had been properly tempered; (2)
when it was subjected to a sudden change
of temperature, as when steam was admitted
to it while cold; and (3) they would, after
six or seven weeks' use, sometimes "wear
thin" and break for this reason. The
metal shield was designed in part, at least,
to prevent injury to the [472] engineer
from flying pieces in case the glass should
break. This type of lubricator had been in
use for over twenty years, and had been
used upon all defendant's engines down to a
time between three and four years prior to
the accident. Then a new type, known as
the Bull's Eye, came into use, and was recog-
nized as a better appliance because, being
unbreakable, it was safer for the engineer,
and at the same time obviated the loss of
time and delay of trains attributable to
breakage of lubricators of the Nathan type;
and defendant began to instal Bull's Eye
lubricators in the place of the older type
upon engines already in use, and to place
them upon all new engines. During the
earlier period of the use of the Nathan, and
before the construction of locomotives of
classes Q and R, the engines carried only
140 to 150 pounds boiler pressure, while en-
gines of the classes mentioned carried 190
pounds. An experienced witness called by
defendant testified that, at the time of the
trial (about a year after the accident), ap-
proximately 25 per cent of the engines were
still using the Nathan lubricator and 76
per cent were equipped with the Bull's Eye;
that the Bull's Eye was and had been, for
three or four years, recognized as "the prop-
er appliance;" that the Nathan was dan-
gerous to the men, and that the change was
being made partly because of this and part-
ly because the breaking of the old style
lubricator sometimes delayed trains.
Plaintiff testified that during most of the
time for the past twenty years he had
141 V. 8.
1916.
CHICAGO & N. W. &. CO. t. BOWER.
472^76
operated locomotives equipped with Natban
lubricators baving tubular glasses, but not
all of these were high-pressure eugines. The
engine on, which he was injured was of
class R, and carried a boiler pressure of
190 pounds. He bad operated it for about
two months prior to the time of his injury.
During hia experience of twenty years,
lubricator glasses had broken with him on
three previous occasions, the last being
about three weeks before the occurrence in
question. At this [473] time he asked that
a Bull's Eye be substituted on his engine.
He testified that this was not because he
considered the old lubricator dangerous, but
because he wanted to save time on the road
in the event of a breakdown. He also tes-
tified that he knew that when a new glass
was put into a Nathan lubricator it was
liable to burst if the steam was turned on
suddenly, or if steam was turned on quickly
in cold weather, and that on the occasion in
question, following the correct practice, he
first partially opened the throttles, admit-
ting the steam to the tubes to warm them,
afterwards fully opening the throttles, and
that it was aboui. seven minutes after this
was done that the explosion occurred.
Ihe trial court submitted the case to the
jury with instructions to the effect that the
burden of proof was upon plaintiff to show
that defendant had carelessly and negli-
gently maintained the shield and spring and
glass in tlie lubricator in a weak and dan-
gerous condition, that the lubricator glass
was not of sufficient strength for use upon
the engine in question or any other engine
carrying 100 pounds of steam, and that this
fact was known to defendant, or that its
experience with said glass and lubricator
had been such that it ought to have known
til at the same was insufiicient and danger-
ous; and that if they believed from a pre-
ponderance of the evidence that defendant
was thus negligent, and that plaintiff was
injured as a result of it, they should find
for the plaintiff, otherwise for the' defend-
ant.
The principal controversy is as to wheth-
er the evidence was sufficient to go to the
jury upon the question of defendant's neg-
ligence in furnishing the locomotive in ques-
tion with a lubricator having tubular
glasses as described.
The rule of law is: That the employer
is under a duty to exercise ordinary care
to supply machinery and appliances rea-
sonably safe and suitable for the use of
the employee, [474] but is not required to
furnish the latest, best, and safest appli-
ances, or to discard standard appliances
upon the discovery of later improvements,
provided thoite in use are reasonably
safe and suitable. Washingtcm dt Q. R.
•0 li. ed.
fCo. Y. McDade, 135 U. S. 554, 570,
34 L. ed. 235, 241, 10 Sup. Ct Rep.
1044; Patton v. Texas Jb P. R. Co.
179 U. S. 658, 664, 45 L. ed. 361»
364, 21 Sup. Ct. Rep. 275. In our opinion,
a correct application of this rule required
the preilent case to be submitted to the jury.
Properly limiting the inquiry (and, as we
have seen, the trial court did so limit it),
there was no question of attributing neg-
ligence to an employer for merely failing to
promptly instal the latest, best, and safest
appliance; It was a question of keeping an
older type of appliance in use after its in-
sufficiency had been demonstrated by ex-
perience, and perhaps under conditions ma-
terially different from those which had
obtained when its use began, in the face of
notice that it was not reasonably safe and
suitable. It was reasonably inferable from
the evidence that defendant's experience had
shown that a glass tube capable of with-
standing the lower pressures of 140 to 150
pounds could not be relied upon to with-
stand a pressure of 190 pounds, and that
the difficulty could not be obviated, as was
attempted, by using thicker glass for the
tubes, because its very thickness increased
the danger of bursting when steam was first
admitted; there being evidence from a wit-
ness called by defendant that the older typo
of lubricater was a dangerous instrument
to be used upon a high-pressure boiler, and
that they broke rather frequently; that it
was for this reason, in part, that defend-
ant had introduced the Bull's Eye, begin-
ning three or four years before the accident,
installing them first upon high-pressure en-
gines of the Q and R classes, and having
already placed them upon a majority of
defendant's engines of all sizes. In this
state of the evidence it could not be said,
as matter of law, that defendant was free
from negligence in delaying so long to in-
stal a Bull's Eye lubricator upon the engine
in question.
[475] The only other question relates to
whether plaintiff assumed the risk of per-
forming his duty upon a locomotive equipped
with the Nathan lubricator. Instructions
were given to the jury upon the subject,
but they are open to some criticism which
perhaps can be obviated only by holding,
as the supreme court of Nebraska held,
that there was nothing in the evidence that
would sustain a finding that plaintiff as-
sumed the risk.
The crucial question is whether he knew
or had sufficient notice of the increased dan-
ger attributable to the employer's negli-
gence. Plaintiff testified without contra-
diction that it was his understanding — ^he
had been "always taught to believe" — ^that
the Nathan lubricator would stand the boil-
llOt
475. 476
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tebm,
er pressure of 190 pounds. Assuming, as
the undisputed evidence shows he had a
right to assume, that the glass was being
subjected to no greater bursting strain than
it was designed to withstand, he still knew
that, under special circumstances that have
been pointed out, there waa danger of a
glass bursting unless precautions were
taken. Any risk of this character, im-
affected by his employer's negligence, he un-
doubtedly assumed, as a risk ordinarily in-
cident to the occupation he pursued. But
this throws no light upon his right to re-
cover, because if he was subjected to no
greater risk than that just now indicated,
the employer was not negligent and there
was no ground of recovery. Under the trial
court's instructions, the jury must be pre-
sumed to have foimd that the Nathan lubri-
cator glasses had been shown by experience
to be incapable of withstanding a pressure
of 190 pounds, that defendant knew of this,
and nevertheless negligently maintained
such glasses upon plaintiff's engine. There
was present, therefore, an extraordinary
danger, not normally incident to plaintiff's
employment; it was in its nature latent,
and not obvious; and there is no evidence
in the record that plaintiff had received any
notice or warning of the increased hazard
attributable to his employer's [476] negli-
gence. In short, while he knew there were
certain dangers naturally incident to the use
of tubular glasses upon the lubricator, there
is nothing to show that he knew or had any
ground to believe that his employer had
iiecn wanting in the exercise of proper care
for his safety, or that because of such want
of care the danger to him was greater than
it ought to have been. Without this, he
could not be held to have assumed the in-
creased risk. Gila Valley, G. & N. R. Co.
v. Hall, 232 U. S. 94, 101, 58 L. ed. 521,
524, 34 Sup. Ct. Rep. 229; Seaboard Air
Line R. Co. v. Horton, 233 U. S. 492, 504,
58 L. ed. 1062, 1070, L.R.A.1015C, 1, 34
Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8
X. C. C. A. 834.
Judgment affirmed.
SAN ANTONIO k ARANSAS PASS RAIL-
WAY COMPANY, Plff. in Err.,
V.
WILLIAM WAGNER.
(See 8. 0. Reporter's ed. 476-486.)
Appeal — record — noticing error not
assigned.
1. The failure to plead or prove that
plaintiff, in an action based on the safety
appliance acts of March 2, 1898 (27 Stat.
1110
at L. 581, chap. 196, Comp. Stat. 1913,
§ 8605), and March 2, 1903 (32 Stat, at L.
943, OiKp. 976, Comp. Stat. 1913, § 8613),
and the employers' liability act of April 22,
1908 (35 Stat, at L. 65, chap.' 149, Comp.
Stat. 1913, § 8657), was emploved in inter-
state commerce at the time of his injury,
will not be noticed as a "plain error^ wiUi
which the Federal Supreme Court, on writ
of error, may deal, under rule 21, f 4, al-
though not assigned, since (a) the omission
may have been due to an oversi^t that
would have been corrected if the point had
been properly raised below, and (b) the
safety appliance acts being in any event
applicable, — the railway being admittedly
a highway of interstate commerce, — ^whether
plaintiff was employed in such commerce or
not, the only materiality of the question
whether the employers' liability act also vp*
plies is in its bearmg on the defense of eoo-
tributory negli^^ce, and that defense not
having been raised at the trial, the failure
of pleading or proof should not be consid-
ered as a ground for reversal, it not having
been made the basis of any assif^nment of
error.
[For other cases, see Appeal and Error, Y. t,
in Digest Sap. Ct 1908.]
Note. — On the general subject of writs of
error from the United States Supreme
Court to state courts — see notes to Martin
V. Hunter, 4 L. ed. U. 8. 97; Hamblin v.
Western Land Co. 37 L. ed. U. S. 267; Be
Buchanan, 39 L. ed. U. 8.. 884, and Kip^y
V. Illinois, 42 L. ed. U. S. 998.
On what questions the Federal Supreme
Court will consider in reviewing the judg-
ments of state courts — see note to Missouri
ex rel. Hill v. Dockery, 68 L.R.A. 571.
On the constitutionality, application, and
effect of the Federal employers' liaHlity
act^— see notes to Lamphere v. Oregon R. k
Nav. Co. 47 L.R.A.(N.S.) 38, and Seaboard
Air Line R. Co. v. Horton, LJLA.19150. 47.
On du^ and liability under Federal and
state railway safety appliance acts — see
notes to Chicago, M. & St. P. R. Co. ▼.
United States, 20 L.R.A.(N.S.) 473, and
Lake Shore & M. S.« R. Co. ▼. Benson, 41
L.R«^.(N.S.) 49.
Error to state court in eases arising under
Federal safety appliance acta.
Jurisdiction.
A party who insists, by way of objection
to or requests for instructions, upon a con-
struction of a Federal statute such aa the
safetv appliance act of March 2, 1893, which
will lead to a judgment in his favor, seta up
a claim of a right or immunity, under such
statute, within the meaning of U. S. Rev.
Stat. S 709, governing write of &tot from
the Supreme Court of the United States to
state courte. St. Louis, I. M. Jb 8. R. Co.
V. Taylor, 210 U. 8. 281, 52 L. ed. 1061,
28 Sup. Ct Rep. 616, 21 Am. Neg. Rep. 464.
A decision of a stete court adverse to
plaintiff in error's contention that, by the
true construction of the Federal employers'
141 U. S.
1915.
SAN ANTONIO & 4. P. R. CO. t. WAGNBR.
Appeal — ooiiBlderixic matters ontalde
record.
2. The Federal Supreme Court will
look only to the certified transcript of the
record to ascertain what rulings on evi-
dence were made by the trial court.
[For other cases, see Appeal and Brror, Y. h,
in Digest Sap. Ct. 1908.]
Elvidcnce — safflciency — defect in auto-
matic couplers.
3. Evidence that the coupling pin on
a box car failed to drop as it should have
done at the first impact with a locomotive,
and required manipulation in preparation
for the second impact, and that the draw-
bar of the engine was so far out of line
as to require adjustment in preparation
for the second impact, together with the
testimony of an experienced brakeman as
an expert that when 'the coupling appara-
tus of automatic couplers is in proper
condition and the couplers are properly
connected they couple by impact auto-
matically, is sufficient to sustain a finding
that one or both couplers did not measure
up to the standard prescribed by the safety
appliance acts of March 2, 1893 (27 Stat,
at L. 531, chap. 196, Comp. Stat. 1913,
§ 8606), and March 2, 1903 (32 Stat, at L.
943, chap. 976, Comp. Stat. 1913, § 8613),
f}iss., "couplers coupling automatically by
impact, and which can be uncoupled with-
out the necessity of men going between the
ends of the cars."
[For other cases, see Brldence, XII. d, in
Digest Sup. Ct. 1908.1
Master and servant — safety appliances
— negligence — employers' liability.
4. A violation of the Federal safety
appliance acts of March 2, 1893 (27 Stat, at
liability and safety appliance acts, it could .
rely upon the common-law defense of as- 1
sumption of risk, is reviewable in the Fed-
eral Supreme Court. Southern R. Co. v.
Crockett, 234 U. S. 725, 68 L. ed. 1564, 34
Sup. Ct. Rep. 897.
Whether or not legislative power is un-
ooiistitutionally delegated to the American
Railway Association and the Interstate
Commerce Commission by the provision of
the safety appliance act of March 2, 1893,
§ .1, that, after a date named, only cars with
drawbars of uniform height shall be used in
interstate commerce, and that the standard
shall be fixed by the association and declared
by the Commission, is a Federal question
within the meaning of U. S. Rev. Stat. §
TOO, governing writs of error from the Su-
preme Court of the United States to state
courts. St. Louis, I. M. & S. R. Co. ▼.
Taylor, supra.
A state court, by deciding that a railway
employee who was killed while attempting
to make a coupling with a car not equipped
with an automatic coupler, as required by
the act of March 2, 1893, § 2, was, as a
matter of law, guilty of contributory negli-
gence in lifting his head a litle too high
after he had been warned of the danger,
cannot defeat the appellate jurisdiction of
the Federal Supreme Court, where § 8 of
that statute was specially invoked as ex-
cluding the defense of assumption of risk.
Schlemmer v. Buffalo, R. & P. R. Co. 205
U. S. 1, 51 L. ed. 681, 27 Sup. Ct. Rep. 407.
But no substantial Federal question
which will sustain a writ of error from
tlie Federal Supreme Ourt to a state court
is presented by a contention that a state
safety appliance act, if applicable^ is repug-
nant to the due process of law clause of
U. S. Const., 14th Amend., because it is con-
strued by the state court to exact a usual
and ordinary degree of care in the appli-
ances to which it relates. Erie R. Co. v.
Solomon, 237 U. S. 427, 59 L. ed. 1033, 36
Sup. Ct. Rep. 648.
And .the contention that error, to the
prejudice of an interstate railwav carrier
concerning the Federal safety appliance act»
if that act applied, was committed by in-
60 Ij. ed.
structing the jury that it exacted a usual
and ordinary degree of care in the appli-
ances to which it relates, is too clearly
lacking in merit to serve as the basis of a
writ of error from the Federal Supreme
Court to a state court. Ibid.
Review.
The question whether the right to re-
cover for the negligent killing of a rail-
way brakeman, Imis^ upon the company's
noncompliance with the safety appliance
acts of March 2, 1893, and March, 2, 1903,
was barred as a matter of law because
the brakeman, after unsuccessfully trying to
work an automatic coupler, had attempted
to effect the uncoupling by hand, contrary
to a rule of the railway company forbidding
him to step between moving cars, is not
Federal in character, but is a question out-
side the Federal statutes, which cannot be
considered by the Federal Supreme Court
on a writ of error sued out under the Judi-
cial Code, § 237, 36 Stat, at L. 1214, chap.
231, Comp. Stat. 1913, § 1214, to a state
court. Minneapolis, St. P. k S. Ste. M. R.
Co. V. Popplar, 237 U. S. 369, 69 L. ed. 1000,
35 Sup. Ct. Rep. 609.
A ruling that the evidence is insufficient
to sustain a recovery under a petition which,
while founded on the safety-appliance act of
March 2, 1893, fails to state a cause of ac-
tion under that statute, but at most shows
a riffht of recovery at common law, does not
involve a Federal question open to examina-
tion in the Federal Supreme Court on a writ
of error to a state court. Brinkmeier v.
Missouri P. R. Co. 224 U. 8. 268, 56 L. ed.
758, 32 Sup. Ct. Rep. 412.
The refusal to allow an amendment to the
petition in an action founded on the original
safety-appliance act of March 2, 1893, after
the cause had twice been tried without de-
cisive result, and the period of limitation
had expired, so as to allege that the cars
were used in moving interstate traffic, in-
volves only a question of pleading and prac-
tice under the local law, which is not re-
viewable in the Federal Supreme Court on
writ of error to & state court. Ibid.
1111
SUPREME COURT OF THE UNITED STATES. Ocr. Tknc,
L. 581, chap. 196, Comp. Stat. 1913, § 8605),
and March 2, 1903 (32 Stat, at L. 943, chap.
976, Ck>mp. SUt. 1913, § 8613), by an inter
ployert' liabilitj act, it must first be estab-
lished that that section of the safety appli-
ance act has been violated by the carrier
state carrier, is in itself negligence render- ^^ showing that its cars were not equipped
ing the railway company liable for the re- *:... ^^„J:i«,„ ^,„.u«« «„4.««.«*:«^n„ k«
suiting injury to an employee under the em- ^'^^ ^ ^i .1 ?^.J^ ^ automaticaUy hj
ployers' liability act of April 22, 1908 (35 impact, and that they eould not be coupled
But. at L. 66, chap. 149, Comp. Stat. 1913, and uncoupled without the necessity of men
§ 8657), as being the result of a "defect or going between the ends of the cars, the test
insufficiency, due to its negligence, in its being whether the person operating tlie
cars, engines, appliances," etc., within the coupler is required, by reason of its de-
meaninff of the latter act. • fcctivo condition, to go between the ends
[For other cases, see Master and Senrant, II. , ,, ^ ^^.^ . *^^^ .Jf ^49^4. . ^„«.i:„„ ^
a, in Digest Sup. CL 1908.1 of the cars m order to effect a coupling or
uncoupling.
[No. 811.] Chicago, M. & St P. R. Cb. v. Voelker,
supra; Wheeling Terminal Co. ▼. Russell,
Submitted April 14, 1916. Decided June 126 C. C. A. 519, 209 Fad, 795; Johnson ▼.
5, 1916. Southern P. Co. 196 U. S. 1, 49 L. ed. 363,
25 Sup. Ct. Rep. 158, 17 Am. Neg. Rep.
T N ERROR to the Court of Civil Appeals l]^} ^l^ff?' J^'t ^' ?* ?^'l' J^'t^
J for the Fourth Supreme Judicial Dis- ^*^«' ^20 U. a 559, 55 U ed. 582^
trict of the State of Texas to review a judg- ^t- gP" ^^^'-J^VL ^^ luf 5
ment which affirmed a judgment of the ^;^220 U S;^8^f« ^^ «^^^' LnW^=
District Court of Bexar County, in that ^^'^^^l P.T'^?' ^ ^J^Fa^^
sUte, in favor of plaintiff in an action un- ^f-^'^'^y * Safety Appliance Acts, 1909 ed.
der the Federal safety appliance and em- » 72a. , , ^ ^ - . . . xt.
ployers* liability acts. Affirmed. The issues raised by defendant m the
See same case below, — Tex. Civ. App. -, *"»! c^^^t m iU specml answer, stricken
166 S W 24 ^^^ ^y ^® court, whether or not its cars
The facts are stated in the opinion. ^«''« properly equipped with couplers coup-
ling automatically by impact, and whether
Messrs. Samuel Herrick, Rnfns S. ^^y could be coupled and uncoupled with-
Day, and Robert J. Boyle submitted the ^^^ the necessity of plaintiff going between
cause for plaintiff in error. Mr. A. B. t^^ ^nds of the engine and car, should have
Storey was on the brief: been submitted to the jury under all the
There is no provision in the safety appli- evidence admissible by both plaintiff and
ance acts prohibiting or precluding adjust- defendant, it being necessary to establish
ment of the coupler prior to or at the time the truth or falsity of the facta claimed by
of impact, or providing directly or indi- defendant in order to ascertain whether or
rectly that a drawbar out of alignment shall not the Federal statute had been violated,
be regarded as a defect in the automatic Texas & P. R, Co. v. Harvey, 228 U. S.
coupler or equipment, nor is the fact that 319^ 57 l. ed. 852, 33 Sup. Ct. Rep. 518;
the drawbar is out of alignment evidence Richmond & D. R. Co. v. Powers, 149 U. S.
per s« of such defect, or that the cars are 43^ 37 L. ed. 642, 13 Sup. Ct Rep. 748, 7
not equipped with couplers coupling auto- Am. Neg. Gas. 369; Chicago, R. I. A P. K.
matically by impact, or that they cannot Co. v. Brown, 229 U. S. 317, 57 L. ed. 1204,
be coupled or uncoupled without the neces- 33 Sup. Ct. Rep. 840, 3 N. C. C. A. 826;
sity of men going between the ends of the United Stotes v. Denver & R. G. R. Co. 90
cars. C. C. A. 329, 163 Fed. 519; Union P. R. Go.
Morris v. St. Louis S. W. R. Co. — Tex. v. Brady, 88 C. C. A. 579, 161 Fed. 719;
Oiv. App. — , 158 S. W. 1055; Chicago, M. Suttle v. Choctaw, 0. & G. R. Co. 75 C. C.
& P. S. R. Co. V. United States, 116 C. C. A. , A. 470, 144 Fed. 668; Parker ▼. Atlantic
City R. Co. 87 N. J. L. 148, 93 AtL 574.
The safety appliance act which makes it
the duty of common carriers to equip their
cars with couplers which can be uncoupled
without the necessity of men going between
the ends of the cars imposes upon the em-
ployees the correlative duty of using these
couplers when furnished, and of refraining
from unnecessarily going between the ends
of the cars to uncouple them; and failure
of a servant to discharge this duty, which
directly contributes to hia injury, is fatal
to an action lor danui|pea on aeeount of it
1//J 141 V. 8.
444, 196 Fed. 882; Willett v. Illinois C. R.
Co. 122 Minn. 513, 142 N. W. 883, 4 N. C.
C. A. 479; Chicago, M. & St. P. R. Co. v.
Voelker, 70 L.R.A. 264, 65 0. C. A. 226, 129
Fed. 526.
In order for the plaintiff to recover in an
action for damages for personal injuries re-
ceived by reason of the negligence of a
common carrier, under § 2 of the safety ap-
pliance act, as amended by the act of March
2, 1903, and to eliminate the defense by
the carrier of contributory negligence on
the part of plaintiff under § 3 of the em-
1015.
SAN ANTONIO & A. P. R. CO. ▼. WAGNEB.
Gilbert r. Burlington, C. R. ft N. R. Co.
63 0. C. A. 27, 128 Fed. 629; Union P. R.
Co. V. Brady, 88 0. C. A. 679, 161 Fed. 719;
Suttle y. Choctaw, 0. & G. R. Co. 75 C. C. A.
470, 144 Fed. 668; Morrii v. Diiluth, 8. 8.
& A. R, Co. 47 C. C. A. 661, 108 Fed. 747;
Chicago, B. & Q. R. Co. ▼. United States,
127 O. C. A. 438, 211 Fed. 12.
In the absence of any violation of the
Federal saftey appliance act, contributory
negligence it ' a legitimate defense by a
common carrier in an action to recover dam-
ages for personal injuries, in order that the
same may be diminished by the jury in pro-
portion to the amount of negligence attrib-
utable to the person injured, the defendant
in the trial court in the case being denied
the right by the ruling of the court to plead
this defense, or introduce its evidoice to
sustain such plea.
Southern R. Co. v. Snyder, 124 C. C. A.
60, 205 Fed. 868; Schlemmer v. Buffalo, R.
k P. R. Co. 220 U. 8. 500, 55 L. ed. 506,
31 Sup. Ct. Rep. 561; Lloyd ▼. Southern
R. Co. 166 N. C. 24, 81 S. E. 1003, 7 N. C.
C. A. 520; Delk v. St. Louis & S. F. R. Co.
220 U. S. 580, 55 L. ed. 590, 31 Sup. Ct.
Rep. 617; Second Employers' Liability
Cases (Mondou v. New York, N. H. k H.
R. Oo.) 223 U. S. 1, 56 L. ed. 327, 38 L.R.A.
(N.S.) 44, 32 Sup. Ct Rep. 160, 1 N. C.
C. A. 875; Ellis v. Louisville, H. & St. L.
R. Co. 155 Ky. 745, 160 S. W. 512; Cain
V. Southern R, Co. 199 Fed. 211; Neil v.
Idalio & W. N. R. Co. 22 Idaho, 74, 125
Pacf 331 ; Norfolk & W. R. Co. v. Earnest,
220 U. S. 114, 57 I., ed. 1006, 38 Sup. Ct.
Rep. 654, Ann. Cas. 101 4C, 172.
If a correct construction of § 2 of the
safety appliance act imposes upon common
carriers the absolute duty of equipping
their engines and cars with couplers coup-
ling automatically by impact, and which
can be coupled and uncoupled without the
necessity of men going between the ends of
the cars, and further interprets a deflected
drawbar at the time of such impact to be
a defect or insufficiency in fudi coupler,
then, in order to show a violation of the
statute by the carrier, and afford an em-
ployee a cause of action under the employ-
ers' liability act, it must be proved that the
misalignmmt of the drawbar at the time
of such impact was due to the negligence
of the carrier, before he will be entitled to
recover damages for injuries sustained.
Seaboard Air Line R. Co. v. Horton, 233
U. S. 402, 58 L. ed. 1062, 34 Sup. Ct. Rep.
635, L.R.A.1015C, 1, Ann. Cas. 1915B, 475,
8 N. C. C. A. 834; Grand Trunk Western
R. Co. V. Lindsay, 120 C. C. A. 166, 201
Fed. 837, 233 U. S. 42, 58 L. ed. 838, 34
Sup. Ct. Rep. 581, Ann. Cas. 1914C, 168;
60 Ij. ed.
Pennsylvania Co. v. Cole, 131 0. C. A. 244,
214 Fed. 048.
The coupler must be discovered in a de-
fective and inoperative condition before the
statute would be violated.
The court of civil appeals having held
that the automatic coupler in use by plain-
tiff in error at the time of the accident
should have been operative for each car as
to the device of that particular car, in
order that an employee would not have to
go to another car to make the coupling of
the car in question, such construction of
the Federal safety appliance act imposes
upon plaintiff in error and upon interstate
commerce a double burden in that such in-
terpretation, if sustained by this court, will
require two employees, one at each car, in
order to make the coupling now effected by
one, and would thereby increase twofold not
only the operating expense of plaintiff in
error, but of every carrier by railroad
throughout the United States.
Wabash R. Co. v. United States, 03 C. C.
A. 393, 168 Fed. 1; United States v. Mont-
pelier & W. River R. Co. 175 Fed. 874;
United States v. Philadelphia & R. R. Co.
162 Fed. 403.
In refusing to admit in evidence testi-
mony showing that adjustment at times
was necessary before the coupler would
couple automatically by impact, the trial
court thereby eliminated all expert testi-
mony as to equipment and operation of the
hand lever at the side of the car, and, in
holding that a deflected drawbar was a
defect and insufficiency in the coupler of
the engine under the safety appliance act,
and due to the negligence of defendant,
without any evidence to support it, the
court denied to defendant the defense of
contributory negligence on the part of
plaintiff in the trial court, permissible
under the employers' liability act where
there is no defect or insufficiency due to
the negligence of the carrier, such court
holding as a matter of law that plaintiff
in error had violated the safety appliance
act, and precluded it from proving under
its special answer, the equipment of the
car and couplers with a hand lever, and
the negligence of the plaintiff in failing to
use the same in preparing the couplers for
coupling automatically by impact, which
failure was negligence, and proximately
caused or contributed to cause the injuries
complained of.
United States r. Montpelier ft W. River
R. Co. supra; Wheeling Terminal R. Co. v.
Russell, 126 C. C. A. 519, 209 Fed. 795;
Johnson v. Southern P. Co. 196 U. S. 1,
49 L. ed. 363, 25 Sup. Ot Rep. 158, 17 Am.
Neg. Rep. 412; Chicago, B. & Q. R. Co. v.
United SUtet, 220 U. S. 559, 56 L. ed. 582,
477, 478
SUPREME COURT OF THE UNITED STATES.
Cor. Tbm,
81 Sap. Ct. Rep. .612; Delk y. St. Louis ft
S. F. R. Co. 220 U. S. 680, 55 L. ed. 500, 81
Sup. Ct Rep. 617 ; Long v. Southern R. Cb.
155 Ky. 286, 159 B. W. 779; Helm ▼. Cin-
cinnati, N. 0. & T. P. R. Co. 156 Ky. 240,
160 S. W. 945; BUii ▼. LouisviUe, H. ft
St. L. R. Co. 155 Ky. 745, 160 S. W. 512;
Devine v. Chicago ft C. R. R. Co. 259 III
449, 102 N. E. 803; Grand Trunk Western
R. Co. ▼. Lindsay, 120 C. a A. 166, 201
Fed. 887, 283 U. S. 42, 58 L. ed. 838, 84
Sup. Ct. Rep. 581, Ann. Gas. 1914C, 168.
In order to hold plaintiff in error liable
for violation of the safety appliance-em-
ployers' liability acts, it must be shown
that the employee's injuries resulted in
whole or in part by reason of some defect
or insufficiency in its couplers, due to its
negligence, on the car or engine in question;
and it must further be shown that a reason-
able effort was made to operate the coupler
by hand lever, and the same failed to work
by that means, before such employee would
be justified in going between the ends of the
cars.
Nichols T. Chesapeake ft O. R. Co. 115
C. C. A. 601, 105 Fed. 918; Chicago, R. L ft
P. R. Co. V. Brown, 229 U. S. 817, 57 L. ed.
1204, 33 Sup. Ct. Rep. 840, 3 N. C. C. A. 826;
Burho y. Minneapolis ft St L. R. Go. 121
Minn. 326, 141 N. W. 300; MorHs r. St.
Louis S. W. R, Co. — Ter. Civ. App. — ,
158 S. W. 1055; United States v. LouisviUe
ft N. R. R. Co. 156 Fed. 193.
Under the rules of practice and the de-
cisions of the Texas courts when either a
foreign statute or contributory negligence
is relied on as a defense, the same must be
specially pleaded and proved, unless it ap-
pears from the pleading of plaintiff.
Foreign statute: Blethen v. Bonner,
93 Tex. 143, 53 S. W. 1016; QiU v. Ever-
man, 94 Tex. 209, 59 8. W. 531; Interna-
tional ft G. N. R. Co. V. Moody, 71 Tex. 614,
9 S. W. 465; Porcbeler v. Bronson, 50 Tex.
555; Armendias v. De La Sema, 40 Tex.
304; Anderson v. Anderson, 23 Tex. 641.
Contributory negligence: Canadian P. R.
Co. V. Clark, 20 C. C. A. 447, 88 U. S. App.
573, 73 Fed. 76; New York, S. ft W. R.
C6. V. Thierer, 137 C. 0. A. 295, 221 Fed.
571; Missouri P. R. Co. v. Watson, 72 Tex.
631, 10 S. W. 731, 6 Am. Neg. Cas. 574;
Missouri P. R. Co. v. Porter, 73 Tex. 304,
11 S. W. 324; San Antonio ft A.' P. R. Co.
T. Bennett, 76 Tex. 151, 13 S. W. 319;
Brown v. Sullivan, 71 Tex. 470, 10 S. W.
288; Gulf, C. ft S. F. R. Co. v. Shieder, 88
Tex. 152, 28 L. R. A. 588, 80 S. W. 902.
Hie construction placed upon the prao-
tioe and procedure acts by the highest oourt
of a state, and as to the sufficiency of the
pleadings, is binding upon the Federal
courts.
1114
Iowa C. R. Co. V. Iowa, 160 U. 8. 889, 40
L. ed. 467, 16 Sup. Ct. Rep. 844; Halferty v.
Wilmering, 112 U. 8. 718, 28 L. ed. 858, 5
Sup. Ot Rep. 864; Grand Ri^ids ft L R.
Co. V. Butler, 159 U. S. 87, 40 L. ed. 85, 15
Sup. Ot Rep. 991.
llie diarge o< the court, sustained on
appeal, whieh omitted to instruct the Jury
as to the law of ne^^igenoe or contributory
negligence, was an assumption by the oourt
that defendant had violated the safety ap-
l^ianoe aict, in whieh event contributory
negligence was not a bar to plaintiff's ri|^
to recover, and logicaUy followed in order
and sequence the elimination of defendant's
special exceptions and special defenses, and
the exclusion of aU evidence as to adjust-
ment of the coiqilers prior to the impact,
and sustained the allegation of plaintiff,
without evidence to support it, that it was
necessary for him to go between the ends of
the cars to effect a coupling.
Grand Trunk Western R. Co. v. Lindsay,
283 U. S. 42, 58 L. ed. 838, 34 Sup. Ct Rep.
581, Ann. Cas. 1914C, 168; Seaboard Air
Line R. Co. v. Horton, 233 U. 8. 492, 58
L. ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct Rep.
685, Ann. Cas. 1915B, 475, 8 N. a a A.
884.
Messrs. Perry J. Lewis and H. O. Gart-
er submitted the cause for defendant in
error. Mr. John Sehom was on the brief.
Mr. Justice Pitney delivered the opinion
of the court:
The judgment that is brought undef re-
view by this writ of error is the outcome
of an action begun in the district oourt of
Bexar county, Texas, by defendant in error
against plaintiff in error, resulting in a
Judgment in his favor. This was affirmed
by the court of dvil appeals, a r^earing
was denied (166 S. W. 24, 28), and oi^
writ of error is directed to that oourt be-
cause the supreme court of Texas refused
to review the judgment
We shall describe the parties according
to their attitude in the trial court Plain-
tilTs petition alleged that on October 1%
1911, he was employed as a brakemaa by
defendant, a common carrier by railroad
engaged in both interstate and intrastate
eommeree; that defendant had in use in
both kinds of commerce a certain engine and
a [478] certain car, and it became plaintiff's
duty to couple them together; that the
couplers would not couple automatically by
impact, as required by law, ''and for the
purpose of making said coupling it be-
came necessary for the plaintiff to stand
upon the footboard of said engine, between
said engine and car, and to shove the
knuokle of the coupler on said engine so
as to bring it into proper position to make
141 U. S. .
1915.
SAN ANTONIO ft A. P. R. CO. ▼• WAGN£R.
478--480
the coupling as aforesaid;" that plaintiif
placed his left foot against the knuckle of
the coupler of the engine for the purpose
•f pushing it into position, when he lost his
bakince, slipped and fell, and his left foot
was caught between the couplers and
crushed. Defendant interposed a general
denial and certain special defenses, which
latter were struck out on demurrer. They
set up that defendant was a common car-
rier engaged in interstate conunerce, and
invoked the provisions of the Federal safety
appliance act of March 2, 1893 (chap. 196,
27 Stat, at L. 531, Comp. 8Ut. 1913, §
^05), and the amendment of March 2,
1903 (chap. 976, 32 Stat, at L. 943, Comp.
Stat. 1913, § 8613), averring that all coup-
lers attached to railroad engines, tenders,
or cars must have sufficient lateral motion
to permit trains to round the curves, and
must be provided with adjustable knuckles
which can be opened and closed, and such
couplers must be adjusted at times in order
that they may couple automatically by im-
pact, and that there is no kind of automatic
coupler constructed or that can be con-
structed which will couple automatically at
all times without previous adjustment, be-
cause of the lateral play necessary to en-
able coupled cars to round curves; that the
engine and car upon which plaintiff was em-
ployed at the time of his injury were en-
gaged in interstate commerce, and were
equipped with automatic couplers which
would couple automatically by impact as
required by the acts of Congress, but an
adjustment was necessary for this purpose,
and could have been made by the plaintiff
going, between the cars while they were
standing, but without going between the ends
of the cars while in motion, or [479] between
a moving engine and cars, and without
kicking the coupling or in any manner en-
dangering his own personal safety; with
more to the same effect.
At the trial the evidence tended to show
that plaintiff was engaged in switching at
one of defendant's yards, and was riding
upon the footboard at the rear of the en-
gine in order to make a coupling between
it and a box car; that at the first impact —
to use plaintiff's words — "the coupling
wouldn't make; I coupled up against them
but it wouldn't make." He then signaled
the engineer to draw ahead, and this having
been done, he adjusted the knuckle and pin
upon the box car, and '^ gave the engineer
a back-up signal to couple In again, and
I got back on the footboard of the engine;
when I got on the footboard I looked down
and I seen the drawhead on the engine was
shifted way over to my side, and I reached
up with my left foot to shift the drawhead
over so it would couple^ and my right foot
60 Ij« ed.
slipp^ on the wet footboard;" as a result
of which his left foot was caught between
the drawheads and crushed. He testified
that at the first impact the drawhead on
the engine was in line with that on the
box car, and that the only thing that pre-
vented the coupling at this time was the
failure of the pin on the box car to drop.
And further: *'When the coupling appara-
tus of these automatic couplers are in
proper condition and they are properly con-
nected, they couple by impact automatical-
ly; ... when the brakeman couples a
car, he pulls a lever on the outside of the
car ; that opens the knuckle — ^that raises the
pin and opens the coupler up; then all ha
has to do is to give a signal and they back
right up. He has nothing to do with refer-
ence to fixing the knuckle, or anything of
that sort." He testified in effect that the
coupler was out of order. The court of
civil appeals held that, so far as this was
opinion evidence, it was admissible as the
opinion of a qualified expert, plaintiff hav-
ing been employed by defendant as a brake-
man for eight years, and being acquainted
with the [480J operation of couplers. A wit-
ness called by defendant testified: "These
couplers are made to couple automatically
by impact, — ^they are supposed to be in such
condition as that, so when they come to-
gether they will couple without the neces-
sity of men going in between the cars to
couple or uncouple, and should be in that
condition. If they do not couple with the
automatic impact, they are not ^in proper
condition."
The trial court instructed the jury that
if the locomotive and car in question were
not equipped with couplers coupling auto*
matically by impact without the necessity
of plaintiff going between the ends of the
cars, and by reason of this and as a proxi-
mate result of it plaintiff received his in-
juries, the verdict should be in his favor;
otherwise in favor of defendant; and that
the burden of proof was upon plaintiff to
establish his case by a preponderance of the
evidence.
The court of civil appeals treated the case
as coming within the Federal employers'
liability act of April 22, 1908 (chap. 149,
35 SUt. at L. 65, Comp. Stat. 1913, § S667 ) ,
and the assignments of error in this court
and the argument thereon proceed upon that
basis. We shall decide the case upon that
assumption, although we find nothing in
the record to show that, in fact, plaintiff
was employed in interstate commerce at the
time he was injured. We are asked to take
notice of the omission of pleading and proof
of the fact as a "plain error," and deal
with it, although not assigned, under para-
graph 4 of our Rule 21. We must decline
480-483
SUPREME CX)URT OF THE UNITED STATES.
OOT. Tbkic,
to do thii, principally for two reasoiui:
(a) The omission may have. been due* to an
oversight that would have been corrected if
the point had been properly raised by the
present plaintiff in error in the state courts.
(b) Since the safety appliance acts are in
any event applicable,— defendant's railroad
being admittedly a highway of interstate
commerce, — whether plaintiff was employed
in such commerce or not (Texas & P. R. Co.
y. Rigsby, 241 U. S. 33, 42, ante, 874, 878, 36
Sup. Ct. Rep. 482), [481] the only material-
ity of the question whether the employers'
liability act also applies is in its bearing up-
on the defense of contributory negligence;
the former act leaving that defense imtouched
(Schlemmer ▼. Buffalo, R. & P. R. Co. 220
U. S. 590, 506, 55 L. ed. 506, 600, 31 Sup.
Ct. Rep. 561), while the latter (§ 3, 35
Stat, at L. 66, Comp. Stat. 1913, § 8659)
abolishes it in any case where the violation
by the carrier of a statute enacted for the
safety of employees may contribute to the
injury or death of an employee, and in
other cases limits its effect to the diminu-
tion of the damages. Now, an examination
of the record discloses that defendant at the
trial raised no question of contributory
negligence. Such negligence was averred in
the special defenses that were struck out,
but not as constituting a defense against
a violation of the safety appliance acts; and
the special defenses contained an allegation
to the effect that, at the time of his injury,
plaintiff was engaged in interstate com-
merce. In this state of the record, we do
not deem it proper to consider the omission
to plead or prove that plaintiff's injury oc-
curred in interstate commerce, as a ground
for reversing the judgment, it not having
been made the basis of any assignment of
error.
In the court of civil appeals, as in this
court, error was assigned upon the action
of the trial court in striking out the special
defenses. The appellate court held, how-
ever, that, under the general denial, defend-
ant was at liberty to show all that had been
averred in the special defenses respecting
the couplers, and that it was permitted to
prove all that it offered upon that subject.
It is insisted here, and the insistence is
many times repeated, that the trial court
refused to admit in evidence testimony of-
fered to show that all automatic couplers
necessarily require adjustment at times in
order that they may operate automatically
upon impact, and that the adjustment is
accomplished by means of hand levers fitted
to the cars and operated by the trainmen
without going between the cars; the object
being to show that the engine and car [482]
were equipped as required by law, and that
the drawbtf on the engine was thrown out of
1116
line by reason of plaintiff's failure to use
the hand lever on the box car in preparation
for the first impact. It is insisted, also,
that certain testimony with reference to
adjusting couplers on engines and cars,
made necessary by lateral play, in order
that they might couple automatically by
impact, having been admitted, was after-
wards excluded as inadmissible, lliere is
nothing in the certified transcript to sus-
tain either of these contentions. There is
an assertion to the same effect in the n.o-
tion for rehearing filed in the court of civil
appeals, where it was stated that 'the ex-
clusion of the testimony would be made to
appear by reference to the stenographer's
official report of the trial. The court of
civil appeals declared, however, that no
such document had been filed or would be
filed in that court; proceeding thus: 'This
cause has been considered on the agreed
statement of facts, approved by the trial
judge, and the effect of such statement of
facta cannot be impaired or destroyed by
a document not filed among the papers, and
which has no place among the pi4>er8. The
statement of facts bears out the statement
of this court that appellant was permitted
to introduce all the testimony it desired
on the subject of the coupler on the engine.
The record fails to show that any testimony
offered by appellant was withdrawn by the
court from the jury."
Eliminating, therefore, because unsup-
ported by anything in the record, the in-
sistence that appellant was deprived of the
opportunity of presenting at the trial the
matters that had been set up in the special
defenses, the remaining questions. are few
and easily disposed of.
There was sufficient evidence to warrant
the jury in finding that the coupler upon
the box car or that upon the engine, or both,
were in bad repair, and that for this reason
they did not measure up to the standard
prescribed by the act of March 2, 1893,
for such equipment, [483] via.: *'Coup-
lers coupling automatically by impact, and
which can be uncoupled without the neces-
sity of men going between the ends of the
cars." This standard was, by the 1st sec-
tion of the 1903 amendment, made to apply
"in all cases, whether or not the couplers
brought together are of the same kind,
make, or type;" and was extended to "all
trains, locomotives, tenders, cars, and simi-
lar vdiicles used on any railroad engaged
in interstate commerce, . • • and to all
other locomotives, tenders, cars, and similar
vehicles used in connection therewith," sub-
ject to an exception not now material. As
has been held repeatedly, this amendment
enlarged the scope of the original act so
as to embrace all locomotives, cars, and simi-
241 U. 8.
1915.
CHESAPEAKE & 0. R. 00. v. KELLY.
483-485
lar vehicles used on any railway that is a
highway of interstate commerce, whether
the particular vehicles are at the time em-
ployed in interstate commerce or not.
Southern R. Oo. v. United States, 222 U. S.
20, 26, 56 L. ed. 72, 74, 32 Sup. Ct. Rep.
2, 3 N. 0. C. A. 822; Texas & P. R. Oo. v.
Rigsby, 241 U. S. 33, 37, ante, 874, 876, 36
Sup. Ot. Rep. 482.
'Ihat the act requires locomotives to be
«quipped with automatic couplers, and that
its protection extends to men when coup-
ling as well as when uncoupling cars, are
points set at rest by Johnson v. Southern
P. Co. 196 U. 8. 1, 15, 18, 49 L. ed. 363,
368, 369, 25 Sup. Ct. Rep. 158, 17 Am. Neg.
Rep. 412.
It is insisted that neither the original
act nor the amendment precludes adjust-
ment of the coupler prior to or at the time
of impact, or treats a drawbar out of align-
ment as a defect in the automatic coupler,
or as evidence that the cars are not equipped
with couplers measuring up to the statu-
tory standard. The evidence of bad repair
in the automatic equipment was not con-
fined to the fact that the drawbar on the
engine was out of line; the fact that the
coupling pin on the box car failed to drop
as it should have done at the first impact,
and required manipulation in preparation
for the second impact, together with the fact
that the drawbar on the engine was so far
out of line as to require adjustment in prep-
aration for the second [484] impact,, and
the opinion evidence, being sufficient to sus-
tain a finding that the equipment was de-
fective. The jury could reasonably find that
the misalignment of the drawbar was great-
er than required to permit the rounding of
curves, or, if not, that an adjusting lever
should have been provided upon the engine
as upon the car, and that there was none
upon the engine. We need not in this case
determine, what was conceded in Chicago,
R. I. & P. R. Co. V. Brown, 229 U. S. 317,
320, 57 L. ed. 1204, 1205, 33 Sup. Ct. Rep.
840, 3 N. 0. 0. A. 826, that the failure of
a coupler to work at any time sustains a
charge that the act has been violated.
It is argued that in actions based upon
the employers' liability act the defendant
cannot be held liable without evidence of
negligence; Seaboard Air Line R. Co. v.
Horton, 233 U. S. 402, 501, 68 L. ed. 1062,
1068, L.R.A.1915C, 1. 34 Sup. Ct. Rep. 635,
Ann. Cas. 1915B, 475, 8 N. 0. C. A. 834,
^being cited. But in that case, as the opin-
ion shows (p. 507), there was no question
of a violation of any provision of the safety
appliance act; and in what was said (p.
501) respecting the necessity of showing
negligence, reference was had to causes of
action independent of that act. The em-
60 li. ed.
ployers' liability act, as its 4th section very
clearly shows, recognizes that rights of ac-
tion may arise out of the violation of the
safety appliance act. As was stated in
Texas & P. R. Co. ▼. Rigsby, 241 U. 8. 33,
39, ante, 874, 877, 36 Sup. Ct Rep. 482,
484, — "A disregard of the command of the
statute [safety appliance act] is a wrongful
act, and where it results in damage to one
of the class for whose especial benefit the
statute was enacted, the right to recover the
damages from the party in default is im-
plied." If this act is violated, the question
of negligence in the general sense of want of
care is immaterial. 241 U. S. 43, and casee
there cited. But the two statutes are im
pari materia, and where the employers' lia-
bility act refers to "any defect or insuffi-
ciency, due to its negligence, in its cars, en-
gines, appliances," etc., it clearly is the
legislative intent to treat a violation of the
safety appliance act as "negligence," — what
is sometimes called negligence per se,
[485] In various forms plaintiff in error
raises the contention that it was plaintifTa
improper management of the coupling opera-
tion that was the proximate cause of his
injury. But any misconduct on his part
was no more than contributory negligence,
which, as already shown, is, by the employ-
ers' liability act, excluded from considera-
tion in a case such as this.
Judgment affirmed.
CHESAPEAKE & OniO RAILWAY COM-
PANY, Plff. in Err.,
V.
ADDIE KELLY, as Administratrix of
Matt Kelly, Deceased.
(See S. 0. Reporter's ed. 485-494.)
Jury — infringement of right — non-
unanimous verdict — action under
Federal statute.
1. The requirement of U. S. Const., 7th
Amend., that trials by jury be according to
the course of the common law, i. e., by a
unanimous verdict, does not control the
state courts, even when enforcing rights un-
der a Federal statute like the employers'
liabilitv act of April 22, 1908 (35 Stat, at
L. 65, chap. 149, Comp. Stat. 1913, § 8657),
and such courts may, therefore, give effect,
in actions under that statute, to a local
Note. — On number and agreement of
jurors necessary to constitute a valid ver-
dict— see notes to State v. Bates, 43 L.R.A.
33, and Silsby v. Foote, 14 L. ed. U. S. 894.
On the constitutionality, application, and
effect of the Federal employers' liability
act — see notes to Lamphere v. Oregon R. a
Nav. Co. 47 L.R.A.(N.S.) 38, and Seaboard
Air Line R. Co. ▼. Horton, L.R.A.1915C, 47.
SUPREME COURT OF THE UNITED STATES. Oct. T^in,
practice permitting a leti tlian unanimoiu peeunlaiy adTantage to the dcpeoSMit
verdict. widow and infant children.
""sVct-'l'sori ■* '"^- '■ "■ '• '" """■ H«'""7 V- Delo-'re k A. TVleg. *
Damagea - lor duth - tnlupe beneAu Teleph. Co. 69 N. J. L. 335, Sfi Atl. 252;
— present c»»h value. McCabe y. NamganBett Electric Lighting
2. Th« pieient cash value of the future Co. 26 R. I. 427, 69 Atl. 112; Loniarilk ft
benefit* of wliicb the beneflciuiei were de- N. B. Co. t. TrammFll, 93 AU. 3M, 9 So.
prived by the death, making adequate »]■ 870; Benton t. North Carolina R. Do. 122
lowance, according to the circuinitencea, for n_ q^ 1007 30 g, j;. 333; Wateon ». Sea-
the earning power of money, ta the proper ^^^ ^j^ j^ine R. Co. 133 N. 0. 188. 4S
tneamire of recover; m an action agalnat an q ™ ,,, -b-ji™ - r«.t~-~ e* n u t
interaUte railway carrier nndw the em- ^ \ ^'^' ^''^^J' ^'^^ ^^ Z' ^'^
ployere' Itability let of April 22, IBOa (35 0. R- Co. 101 Wla. 2W, 77 N. W. WB;
Stat, at L. U, chap. 149), as amended by Southern R. Co. t. Hill, ISO Oa. 649, TT
the act of ^rU S, 1910 (36 Stat, at L. B. E. S03.
291, chap. 143, Comp. Stat. 1S13, g 8062), It waa error for the jnrj to eooalda the
for the benefit of the widow and dependent hlgb wages in the hazardoua employment
children of an employee killed while engaged without alao considering that the eip»-
in interstate commerce. 1. _. ,1.. ._ t\..i _i___ • _-- 1—
I»or other ctsei. Me D.m.ee.. TI. ]. In Dl- J^"^ <*' '"* "" "** ""Pl°y°>"t *« '*"
cast Sup. Ct. 1908.1 than normal.
Stewart t. Louisville & N. R. Co. 136 Ky.
[No. 321.] 724, 12fi S. W. 1S4.
Messrs. John T. Shelby, K. L. Worthing-
Argued AprU 10 and 20, 1918. Decided j^n, W. D. Cochran. Le Wright Browning.
June 5, 1910. David H. Leake, Walter Leake, W. F. Evans,
Wiiliani H. Bremner, Frederiok M. Miner,
IN ERROR to the Court of Appeals of the and Benjamin D. Warfleld alio filed a joiat
State of Kentucky to review a judgment brief for plaintiffs in error in this and firs
which affirmed a judgment of the Circuit other cases (Nos. 321, 399, 453, 478, 486,
Court tor Montgomery County, in that 743) on the question of the application ol
state, in favor of plaintiff in an action un- the 7th Amendment to the Federal Consti-
der the Federal employera' liability act. tution:
Reversed and remanded for further proceed- The words "right of trial by jury," as
ings. found in the 7th Amendment to the Const)*
See snme case below, 160 Ky. 296, 160 tution oI the United States, which is te hs
8. W. 736; on rehearing, 161 Ky. esfi, 171 preserved in all suite at law when tbs
' S. W. 185. amount in eo]^troversy exceeds t20, imply
The facte are Stated in the opinion. a common-law jury of twelve mm, wheat
m -. I. m c. .^ n ^ ■ rerdiot must be unanimous.
Messrs- John T. Slielby, Bobert Ii, o. ■* 1 -i>_ i- r. wi •-,■,. t7 e ^
„„,,. „ .„j ,„._ t^',i ofc.iw .. Capital Traction Co. t. Hof, 174 U. 8. 1,
Northc^W, and John Cr.l, Shelby ar- J Ct Rep. 680; Ameri-
gned the ^use, and. with Mesers H. T. ^^^ ^ ^ ^..^P j^^ P^^ S ■ „
Tnltn' 6^^^ l71' nVTff . ' L. ed. 1079, 17 Sup. «. Rep. «8; Spring-
Apperson. filed a brief for pia.nliff in er- ^j^^ ^ ^^;^^ jjg U, S. 707, 41 L. 4.
Plaintiff should have 1
make out her case by a fair preponderance .. _i ■• „i.- 1. ^i. „
-» .«,. *. .!.«™„ f t~ means not merely suite which the common
of the testimony. . , ' -, ■ , , ... j
U W.11. <B, 20 L. id. 887, P1««.U r f'~"'»W but m.t. In jhldi kp,l rijll.
r.nl, 22 W.ll. 118, 22 L. «1. 7801 M«3.1r. "'j^?* "■"?"•?" .""".i ."S'
,. Bloml, 100 U. S. 148, 60 L. rf. 130, 28 l'^^""""'" " ''^t. In .quit; ul •!■
SuD Ct. Hen 1 niralty.
Under the practice in Kentucky, it is the ?»««« »■ Bedford, 3 Pet. 433, 7 L. ed-
duty of the trial court, when it undertakes '^^-
to give an instruction, to give a correct one The rigU of trial by jury is not a mere
on the subject; and if a party offers one natter of procedure, but a snbetantive
that is incorrect, it then also becomes the 'ight.
duty of the court to ^ve a correct instruc- Walker t. Hew Mexico ft S. P. R. Oa. KS
tion on the subject to which it refers. J. 8. 603, 41 L. «d. B37, 17 Sup. Ct Re^
Louisville, H. ft St. L. R. Co. t. Roberta, 121, 1 Am. Neg. R^. 768; American Pnb.
144 Ky. 824, 130 S. W. 1073. I^o. v. Fisher, and Springville t. Thomas,
The jury should have been told to award lupra; Slocum y. New Yark L. Ins. Co. 228
tliat sum which represented the present J. S. 364, 67 L. ed. 879, 33 Sup. Ct Bqt.
emah valut ot msonabla axpectatimt of 623, Ann. Cas. lOUD, 1029; Atlantic Coast
ill» 141 V. s.
1915.
CHESAPEAKE & 0. R. CX). v. KELLY.
Line R. Co. ▼. Burnette, 239 U. S. 199, ante,
226, 36 Sup. Ct. Rep. 75; Norfolk Southern
R. Co. y. Ferebee, 238 U. S. 269, 59 L. ed.
1303, 85 Sup. St. Rep. 781.
The state courts do not take jurisdiction
of these causes as a matter of comity, as
held by the state supreme courts in the
Minnesota and Virginia cases, but as agen-
cies of the Federal system.
Second Employers' Liability Cases (Mon-
dou V. New York, N. H. & H. R. Co.) 223 U.
S. 1, 56 L. ed. 327, 88 L.RJL(N.S.) 44, 32
Sup. Ct. Rep. 169, 1 N. C. C. A. 875 ; Claf -
lin y. Houseman, 93 U. S. 130, 23 L. ed.
833; St. Louis, I. M. & S. R. Co. y. Mc-
Whirter, 229 U. S. 265, 57 L. ed. 1179, 33
Sup. Ct. Rep. 858; Seaboard Air Line R.
Co. v. Horton, 233 U. S. 492, 58 L. ed.
1062, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635,
Ann. Cas. 1915B, 475, 8 N. C. C. A. 834.
The right of trial by jury, as provided
by the 7th Amendment, is a fundamental
right which inheres in every cause of action
of common-law nature created by the Fed-
eral government, and applies wherever the
law is sought to be enforced within the lim-
its of the Federal Union; and Congress
and ihe states (in such cases) are power-
less to take it away.
Walker v. New Mexico & 8. P. R. Co. 165
U. S. 593, 595, 41 L. ed. 837, 840, 17 Sup.
Ct. Rep. 421, 1 Am. Neg. Rep. 768; Ameri-
can Pub. Co. y. Fisher, 106 U. S. 464, 41 L.
ed. 1079, 17 Sup. Ct. Rep. 618; Springville
V. Thomas, 166 U. S. 707, 41 L. ed. 1172, 17
Sup. Ct. Rep. 717; Bauman y. Ross, 167
U. S. 548-592, 42 L. ed. 270-289, 17 Sup.
Ct. Rep. 966; Thompson v. Utah, 170 U. S.
343-350, 42 L. ed. 1061-1066, 18 Sup. Ct.
Rep. 620; Guthrie Nat; Bank y. Guthrie,
173 U. S. 528-537, 43 L. ed. 796-800, 19
Sup. Ct. Rep. 513; Capital Traction Co. v.
Hof, 174 U. S. 1, 43 L. ed. 873, 19 Sup.
Ct. Rep. 580; Maxwell v. Dow, 176 U. S.
581, 596, 44 L. ed. 597, 603, 20 Sup. Ct.
Rep. 448, 494; Black v. Jackson, 177 U. S.
349, 44 L. ed. 801, 20 Sup. Ct. Rep. 648;
Downes v. Bidwell, 182 U. S. 244, 270, 45
L, ed. 1088, 1100, 21 Sup. Ct. Rep. 770;
Rassmussen y. United States, 197 U. S. 516-
526, 49 L. ed. 862-865, 25 Sup. Ct Rep.
614; Second Employers' Liability Cases
(Mondou v. New York, N. H. & H. R. Co.)
223 U. S. 1, 65-59, 56 L. ed. 327, 348-350,
38 L.R.A.(N.S.) 44, 82 Sup. Ct. Rep. 169,
1 N. C. C. A. 875; Slocum v. New York
L. Ins. Co. 228 U. S. 364, 377, 57 L. ed.
879, 885, 33 Sup. Ct. Rep. 523, Ann. Cas.
1914 D, 1029; Central Vermont R. Co. v.
White, 238 U. S. 507, 59 L. ed. 1433, 35
Sup. Ct Rep. 865, Ann. Cas. 1916B, 252,
9 N. 0. C. A. 265; Atlantic Coast Line
R. Co. y. Bumette, 239 U. S. 199, ante,
60 li. ed.
1226, 36 Sup. Ct Rep. 75; Wliallon y.
Bancroft, 4 Minn. 109, Gil. 70; Nerval v.
Rice, 2 Wis. 22; Gaston v. Babcock, 6 Wis.
503; Ross v. Irving, 14 111. 171; Baltimore
& 0. & C. R. Co. V. Ketring, 122 Ind. 5,
23 N. E. 527; Swarz y. Ramala, 03 Kan.
633, 66 Pac. 649; State v. Doty, 32 X. J.
L. 403, 90 Am. Dec. 671; Byers v. Com. 42
Pa. 89.
The judicial power of the United States
extends to the oaaus foederis in whatever
forum presented, and necessarily the lim-
itations upon that power extend along
with it
Cohen v. Virginia, 6 Wheat. 384, 5 L. ed.
286; Gulf, C. k S. F. R. Co. v. Hefley, 158
U. S. 98, 104, 39 L. ed. 910, 912, 15 Sup.
Ct. Rep. 802; Northern P. R. Co. v. Wash-
ington, 222 U. S. 370, 50 L. ed. 237, 32 Sup.
Ct. Rep. 160; Second Employers' Liability
Cases (Moudou v. New York, N. ^. k H. R.
Co. 223 U. S. 1, 56 L. ed. 327, 38 L.R.A.
(N.S.) 44, 32 Sup. Ct Rep. 169, 1 N. C. C.
A. 875; Michigan C. R. Co. y. Vreeland,
227 U. S. 59, 57 L. ed. 417, 33 Sup. Ct Rep.
192, Ann. Cas. 1914 C, 170; Barron v. Bal-
timore, 7 Pet. 243, 8 L. ed. 672: Holmes
v. Jennison, 14 Pet 582, 10 L. ed. 600; Fox
y. Ohio, 5 How. 434, 12 L. ed. 223; Spies
y. Illinois, 123 U. S. 166, 31 L. ed. 86,
8 Sup. Ct. Rep. 21, 22; Brown y. Walker,
161 U. S. 606, 40 L. ed. 824, 5 Inters. Com.
Rep. 369, 16 Sup. Ct Rep. 644; Marbury v.
Madison, 1 Cranch, 137, 2 L. ed. 60; Mc-
CuUoch V. ^iaryland, 4 Wheat. 316, 4 L. ed.
579; Central Vermont R. Co. v. White, 238
U. S. 512, 59 L. ed. 1436, 35 Sup. Ct Rep.
865; Norfolk Southern R. Co. y. Ferebee,
238 U. S. 269, 59 L. ed. 1303, 35 Sup. Ct.
Rep. 781; Walker v. New Mexico k S. P.
R. Co. 165 U. S. 693, 41 L. cd. 837, 17 Sup.
Ct Rep. 421, 1 Am. Neg. Rep. 768; Atlantic
Coast Line R. Co. y. Bumette, 239 U. S. 199,
ante, 226, 36 Sup. Ct Rep. 75; Parsons v.
Bedford, 3 Pet. 433, 7 L. ed. 732; Supreme
Justices y. Murray, 9 Wall. 274, 19 L. ed.
658; Chicago, B. k Q. R. Co. y. Chicago, 106
U. S. 226, 41 L. ed. 979, 17 Sup. Ct Rep.
581; Capital Traction Co. y. Hof, 174 U.
S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep. 580.
Congress has not granted jurisdiction of
cases under the Federal employers' lia-
bility act to state courts which do not
answer the requirements of the 7th Amend-
ment.
Qaflin y. Houseman, 93 U. S. 130, 23
L. ed. 833; 3 Story, Const § 1748; The
Moses Taylor, 4 Wall. 411, 18 L. ed. 397;
American Pub. Co. y. Fisher, 166 U. S. 464,
41 L. ed. 1079, 17 Sup. Ct. Rep. 618; Wal-
ker v. New ^lexico k S. P. R. Co. 165 U. S.
695, 41 L. ed. 840, 17 Sup. Ot. Rep, 421, 1
Am. Neg. Rep. 768; State y. Sinnott, 89
1119
SUPREME COURT OF THE UNITED STAI^.
Oct. Tebm,
Me. 41, 35 AtL 1007; Rogers ▼. Bonnett, 2
OkU. 653, 37 Pac 1078; Clark v. Com. 29
Pa. 120; Second Employeri' Liability Cases
(Mondou y. New York, N. H. & H. R. Co.)
223 U. S. 1, 12, 56 L. ed. 327, 332, 32 Sup.
Ct. Rep. 169, 38 LJR.A.(NJS.) 44, 1 N. C. C.
A. 875; United States ▼. Curtis, 107 U. S.
671, 27 L. ed. 534, 2 Sup. Ct. Rep. 501;
United States ▼. Hall, 131 U. S. 50, 33 L.
ed. 97, 9 Sup. Ct. Rep. 663; Cohen ▼. Vir-
ginia, 6 Wheat. 414, 5 L. ed. 293; Kansas
City Southern R. Co. ▼. Leslie, 238 U. S.
599, 59 L. ed. 1478, 35 Sup. Ct. Rep. 844;
Central Vermont R. Co. ▼. White, 238 U.
S. 507, 59 L. ed. 1433, 35 Sup. Ct Rep.
865, Ann. Cat. 1916B, 252, 9 N. a C. A.
265.
Mr. Edward O. 0*Rear argued the
cause, and, with Messrs B. G. Williams
and F. W. Clemoits, filed a brief for de-
fendant in error:
The jury was correctly instructed as to
the method of ascertaining the damages.
Chesapeake & O. R. Co. v. Dixon, 104 Ky.
613, 47 S. W. 615; Louisville & N. R. Co.
▼. Morris, 14 Ky. L. Rep. 466, 20 S. W.
539; Chesapeake & O. R. Oo. ▼. Lang, 100
Ky. 221, 38 S. W. 503, 40 S. W. 451, 41 S.
W. 271 ; Louisvilft & N. R. Co. ▼. Simrall,
127 Ky. 55, 104 S. W. 1011.
Messrs. Edward C. OHear, B. Q. Wil-
liams, C. B. Stuart, A. C. Cruce, M. K.
Cruce, R. S. Dinkle, George B. Martin,
George B. Leonard, B. F. Procter, George
H. Lamar, C. U. McElroy, D. W. Wright,
C. W. Allen, and H. W. Walsh also filed a
joint brief for defendants in error in this
and five other cases (Nos. 321, 399,- 453,
478, 485, 743), on the question of the appli-
cation of the 7th Amendment to the Federal
Constitution :
Federal rights are enforced in a state
court as a subject of litigation between par-
ties before it.
Federalist, No. 82; Clafiin v. Houseman,
93 U. S. 130, 135, 23 L. ed. 833, 838; Sec-
ond Employers' Liability Oases (Mondou v.
New York, N. H. k H. R. Co.) 223 U. S. 1,
56 L. ed. 327, 38 L.R.A.(N.S.) 44, 32 Sup.
Ct. Rep. 169, 1 N. C. C. A. 875.
That Federal laws are laws of the sev-
eral states does not change the nature of
jurisdiction of the state courts.
Black, Law Diet. Jurisdiction; Clafiin ▼.
Houseman, supra; Gibson ▼. Bellingham &
N. R. Co. 213 Fed. 48.
Federal rights are not enforced in state
courts by a delegated authority from the
Federal government.
Martin ▼. Hunter, 1 Wheat. 304, 330, 4 L.
ed. 97, 103; Robertson v. Baldwin, 165 U.
S. 275, 41 L. ed. 715, 17 Sup. Ct. Rep.
326; Cohen ▼. Virginia, 6 Wheat. 264, 421,
1120
5 L. ed. 257, 295; Cincinnati N. O. Sl T.
P. R. Co. ▼. Gregg, 25 Ky. L. Rep. 2329, 80
S. W. 512; niinois C. R. Co. ▼. Curry, 127
Ky. 643, 106 S. W. 294; Illinois C. R. Co. t.
Eblin, 114 Ky. 817, 71 S. W. 019; McElvain
V. St Louis & S. F. R. Co. 151 Mo. App. 126,
131 S. W. 736; Western U. Teleg. Co. ▼. BiU-
soly, 116 Va. 562, 82 S. K 91; Southern
R. Co. V. Jacobs, 116 Va. 189, 81 S. K 99;
Louisville & N. R. Co. v. Scott, 133 Ky.
724, 118 S. W. 990, 19 Ann. Cas. 392, af-
firmed in 219 U. S. 209, 55 I., ad. 183, 31
Sup. Ct. Rep. 171; Grand Trunk Western
R. Co. V. Lindsay, 233 U. S. 42, 48, 58 L.
ed. 838, 842, 34 Sup. Ct. Rep. 581; Fed-
eralist, No. 82; Kansas Oity Western R.
Co. ▼. McAdow, 240 U. S. 51, ante, 520, 36
Sup. Ct. R^. 252.
That the provisions of the 7th Amendment
are applicable to the judiciary of the terri-
tories and the District of Columbia does
not show that those provisions must be
followed in state courts, in trying cases
involving Federal laws. The United States
has created those courts by virtue of its
authority as soverign of the territory and
of the district; but the United States has
not created state courts. The reason the
7th Amendment applies to the territories
and the District is that the United States is
sovereign, and the 7th Amendment is binding
upon the United States in creating its judi-
ciary. The reason does not lie in the fact
that the courts of the territories are en-
forcing Federal law.
Capital Traction Co. v. Hof, 174 U. S.
1, 5, 43 L. ed. 873, 874, 19 Sup. Ct. Rep.
580; Thompson v. Utah, 170 U. S. 343, 348,
42 L. ed. 1061, 1066, 18 Sup. Ct Rep. 620;
American Ins. Co. v. 356 Bales of Cotton,
1 Pet 511, 546, 7 L. ed. 242, 253.
The 7th Amendment applies to the Fed-
eral judiciary, not to Federal rights.
Barron v. Baltimore, 7 Pet. 243, 246, 249,
8 L. ed. 672, 674, 675; Walker ▼. Sauvinet,
92 U. S. 90, 92, 23 L. ed. 678, 679; Brown
▼. New Jersey, 175 U. S. 172, 174, 44 L. ed.
119, 120, 20 Sup. Ct. Rep. 77; Maxwell v.
Dow, 176 U. S. 581, 44 L. ed. 597, 20 Sup.
Ct. Rep. 448, 494; Pearson v. Yewdall, 95
U. S. 294, 24 L. ed. 436 ; Ohio ex rel. Uoyd
V. Dollison, 194 U. S. 447, 48 L. ed. 1065,
24 Sup. Ct. Rep. 703; Bolln v. Nebraska,
176 U. S. 87, 44 L. ed. 383, 20 Sup. Ct
Rep. 287, affirming 51 Neb. 581, 71 N. W.
444; Brown v. Walker, 161 U. S. 606, 40 L.
ed. 824, 5 Inters. Com. Rep. 369, 16 Sup.
Ct Rep. 644; Monongahela Nav. Co. v.
United States, 148 U. S. 324, 37 L. ed.
467, 13 Sup. Ct Rep. 622; McElvaine v.
Brush, 142 U. S. 158, 35 L. ed. 973, 12 Sup.
Ct Hep. 156; Eilenbecker v. District Ct
134 U. S. 34, 33 L. ed. 803, 10 Sup. Ct
Rep. 424; Spies v. Illinois, 123 U. S. 131,
241 V. S.
IMS. CHESAFEAK£ ft O. B. CO. t. KEIXY. 486-488
« L. ed. SO, 8 Sup. Ct. Rep. 21; Edwards & St L. B. Co. v. BomboIU, 241 U. S. 811.
r. KUott, 21 Wftll. 6S2, 22 L. ed. 4D0; Su- Ante, 081, 80 Sup. Ct. Bep. 59S.
pr«me JuetiM* t. Murmjr, 0 Wall. 277, 10 Tha only other matt«r rEquiring consider-
L. «d. 660; Fox y. Ohio, S How. 410, 12 L. atioti U the InitructioQ of the trial court,
«d. 213; LiviiigBton T. Moor^ T Pet. 061, aJDrmed bj the court of appeala, respecting
8 lU ed. T81. the method of ucertainlii^ the damagei,
6t*te courts, whether providing » eom- We Bu-j any in paasing that while the aot
mon-law jurj or not, maj take juriadietlon of Congreu doea not require that in such
«f caeee involving Federal rights, and de- eases damages tw apportioned among the
termine the case in aceordaxice with thdr beceflciaxies {Central Vvmont B. Co. v.
usual and custonwrr methods of trial. White, 239 U. 8. 607, B16, 69 L. ed. 143S,
Winters v. Minneapolia t Bt. L. R. Co. 1438, 3S Sup. Ot. Rep. 865, 0 N. C. C. A.
126 Minn. 260, 148 N. W. 106; Oheeapeake 266), It U not in the present ease insisted
A O. B. Co. T. Kellj, IQI K7. 665, 171 S. that the act probibiU such an apportion-
W. 186; LoniBvtIle & N. R. Co. v. Winkler, mat, and II there be any queation about
162 Kf. 843, 173 8. W. 161, 9 N. G. C. A. this it U not now before Ui.
146; Bombolie v. Uinneapolis ft St. L. R. Respecting the matter with which we havs
Co. 128 Minn. 112, 160 N. W. 385; St. LouU to deal, the trial court, after sUting that
ft S. F. R. Co. V. Brown, — Okla. — , 144 if the Jury should And for the plaintiff they
Pac. 1075; Chesapeake ft 0. B. Co. t. Cama- should fix the damagea at auch sum [488]
ban, — Va. — ~, SS S. E. 866; Qibson v. as would reasonably eompeuaate the depend-
BelliDgham ft N. R. Co. 213 Fed 488; 16 ent members of Kelly's family for the pe-
Columbia L. Rev. 618; 3 Va. L. Rev. 312; 1 cuniary loss, tf any, shown by the evidence
Va. L. Bf^. 721. to have been sustained by them because of
Kelly's injury and death; and that, in fixing
Mr. Justice Pitney delivered the opin- the amount, they were authorized to take
Ion of the court: into consideration the evidence showing the
In this action, which was founded upon decedent's age, habita, buslneaa ability, eam-
the employers' liability act of Congresa ot ing capacity, and probable duration of life,
April 22, 1S08 (chap. 149, 35 SUt. at L. and also the pecuniary loss, if any, which
65), as amended by act ot April 6, 1910 the jury might find from the evidence that
(chap. 143, 36 Stat, at L. 291, Comp. Stat, the dependent members of his family had
1S13, g 866E), defendant In error, as ed- sustained because of being deprived of aueh
miniatratriz of Matt Kelly, deceased, retwv- maintenance or eupport or other pMuniary
ered a judgment in the Montgomery [487] advantage, it any, which the Jury might be-
-circuit court for damages because of the lieve from the evidence they would have de-
death at the intestate while employed by rived from his life thereafter, — proceeded as
plaintiff in error in interstate commerce, follows: "11 the jury find tor the plaintilf
The verdict was for 819,011, which was ap- they will find a gross sum tor the plaintilT
portioned among the widow and infant ohil- againat the defendant which muat not ax-
'dren of the deceased, excluding a son who ceed the probable earnings of Matt Kelly
bad attained his majority. The court of had he lived. The gross sum to be found
appeals ot Kentucky affirmed the Judgment, for plaiutitT, if the jury find for the plain-
«nd denied a rehearing. 160 Ky. 296, 169 tiff, must be the aggn^ate ot the sums which
S. W. 736, 161 Ky. 655, 171 S. W. 1B5. the jury may find from the evidence and
Upon the present writ of error the first ^ "• the pecuniary loas above described,
■contention Is that the limitation of the 7th ^^^'^ e**''" dependent member ot Matt
Amendment to the Federal Constitution f^e'lj'a tamfly may have sustained by bis
preserving the common-law right ot trial death;" following this with an instruction
by jury inheres in every right of action ""P**!"? tk* "Pportionment, with which, aa
■created under the authority of that Consti- Z'.^r" "'*■ """" ?<". "«", «">«">«»■
tution. and that because, as is said, the P**""^*,I*?,^"*f? " '■"'""="»" t^at the
. .- . . ... jUTv should fix the damaeea at that sum
«urt. of Kentucky are unable to ««« '^^ r^r^nU the present cask value ot
that right to hfgants by reason of a Uw q,, reasonable expectation ot pecuniary ad-
«f the sUte, passed pursuant to a provi- ,anUge ... to said Addle Kelly during
Bion ot Its Constitution, by the terms ot her widowhood and while dependent, and
which in all trials of olvil actions in the pecuniary advantage to said infant children
circuit courts three-fourths or more ot the while dependent and until they becoma
jurors concurring may return a verdict, twenty-one years of age." This was re-
those courts are without jurisdiction of fosed.
actions arising under the Federal employera' Laying aside questions ot form, the acntrt
liability act. This contention has been set of appeals treated the instruction given and
«t rest by our recsnt decision in Uinneapolis the refnsal et tha requested Instruction as
•A I:, sd. 71 WXV
488-^1
SUPREME COURT OF THE UNITED STATES.
Cor. Temm,
raiiiiif the ^[iiestioii *that what the bene-
fieUxy iB entitled to is not a lump sum equal
to what he would reoeiye during the esti-
mated term of dependency, [489] but the
preeent eaah Talue of tuch aggregate
amount.'' Defendanfi contention was over-
ruled upon the ground that the whole loss of
the beneficiaries is sustained at the time of
the death of tde party in question, the court
saying: "While that loss is, in a measure,
future support, the father's death precipi-
tated it, so that it is all due, and we are
not impressed with the argument that the
sum due should be reduced by rebate or
discount. The value of a father's support
is not so difficult to estimate, and the aver-
age juryman is competent to compute it,
but to figure interest on deferred payments,
with annual rests, and reach a present cash
value of such loss to each dependent is
more than ought to be asked of anyone less
qualified than an actuary." [160 Ky. 803.]
We are constrained to say that, in our
opinion, the court of appeals erred in its
conclusion upon this point. The damages
should be equivalent to compensation for
the deprivation of the reasonable expecta-
tion of pecuniary ^benefits that would have
resulted from the continued life of the de-
ceased. Michigan C. R. Go. v. Vreeland,
227 U. 8. 59, 70, 71, 67 L. ed. 417, 421,
422, 38 Sup. Ct. Rep. 192, Ann. Gas. 1914G,
176; American R. Go. v. Didricksen, 227
U. S. 145, 149, 57 L. ad. 456, 457, 38 Sup.
Gt Rq>. 224 ; Gulf, G. & S. F. R. Go. v. Mc-
Ginnis, 228 U. S. 173, 175, 57 L. ed. 785,
786, 33 Sup. Gt. Rep. 426, 3 N. G. G. A.
806. So far as a verdict is based upon the
deprivation of future benefits, it will afford
more than compensation if it be made up
by aggregating the benefits without taking
accoimt of the earning power of the money
that is presently to be awarded. It is self-
evident that a given sum of money in hand
is worth more than the like sum of money
payable in the future. Ordinarily a person
seeking to recover damages for the wrongful
act of another must do that which a rea-
sonable man would do under the circum-
stances to limit the amount of the damages.
Wicker v. Hoppook, 6 Wall. 94, 99, 18 L.
ad. 752, 758; The Baltimore, 8 Wall. 377,
887, 19 L. ad. 463, 465; United States ▼.
Smith, 94 U. 8. 214, 218, 24 L. ed. 115;
Warren ▼. Stoddart, 105 U. 8. 224, 229, 26
L. ad. 1117, 1120; United States ▼. United
States Fidelity ft G. Go. 286 U. 8. 512, 526,
69 L. ed. 696, 708, Z5 Sup. Gt R^. 298.
and [490] the putting out of money a** in-
terest is at this day so common a matter
tiiat or4ina^rily . it cannot be excluded from
aoosideimtioo in determining the present
equivalent of future payments, since a rea-
sonable man, even from selfish motives,
IISS
would probably gain some money by way of
interest' upon the money recovmd. Savings
banks and other established financial insti-
tutions are in many cases aooessiUe for the
deposit of moderate sums at interest^ with-
out substantial danger of loss; the sale d
annuities is not unknown; and, for larger
siuns, state and municipal bonds and other
securities of almost equal standing are oooi-
monly available.
Local conditions are not to be disregard-
ed, and besides, there may be cases where
the anticipated pecuniary advantage of
which the beneficiary has been deprived
covers an expectancy so short and is in the
aggregate so small that a reasonable man
could not be expected to make an invest-
ment or purchase an annuity with the pro-
ceeds of the judgment But, as a rule, and
in all cases where it is reasonable to sup-
pose that interest may safely be earned
upon the amount that is awarded, the ascer-
tained future benefits ought to be discount-
ed in the making up of the award.
We do not mean to say that the discount
should be at what is commonly called the
*'legal rate" of interest; that is, the rate
limited by law, beyond which interest is
prohibited. It may be that such rates are
not obtainable upon investments on safe
securities, at least, without the exercise of
financial experience and skill in the ad-
ministration of the fund; and it is evident
that the compensation should be awarded
upon a basis that does not call upon the
beneficiaries to exercise such skill, for where
this is neceesarily employed, the interest re-
turn is in part earned by the investor rather
than by the investment. This, however, is a
matter that ordinarily may be adjusted by
scaling the rate of interest to be adopted in
computing [401] the present value of the
future benefits ; it being a matter of common
knowledge that, as a rule, the best and
safest investments, and those which require
the least care, yield only a moderate return.
We are not in this case called upon to lay
down a precise rule or formula, and it is
not our purpose to do this, but merely to
indicate some of the considerations that sup-
port the view we have expressed that, in
computing the damages recoverable for the
deprivation of future benefits, the principle
of limiting the recovery to compensation
requires that adequate allowance be made,
according to circumstances, for the earning
power of money; in short, that when future
payments or other pecuniary benefits are t»
be anticipated, the verdict should be mada
up on the basis of their present value only.
We are aware that it may be a diffienlt
mathematical computation for tha ordinal
juryman to calculate interest on deforsd
payments, with annual rests, and reach a
141 U. 8»
1916.
CHESAPEAKE & O. R. 00. ▼. KELLY.
401-4M
present cash value. Whether the difficulty
should be met by admitting the testimony
of expert witnesses, or by receiving in evi-
dence the standard interest and annuity
tables in which present values are worked
out at various rates of interest and for
various periods covering the ordinary ex-
pectancies of life, it is not for us in this
ease to say. Like other questions of pro-
cedure and evidence, it is to be determined
according to the law of the forum.
But the question of the proper measure of
damages is inseparably connected with the
right of action, and in cases arising under
the Federal employers' liability act it must
be settled according to general principles of
law as administered in the Federal courts.
We are not reminded that in any previous
ease in this court the precise question now
presented has been necessarily involved.
But in two cases the applicability of pres-
ent values has been recognized.
Vicksburg & M. R. Co. v. Putnam, 118 U.
8. 545, 30 L. ed. 257, 7 Sup. Ct. Rep. 1, 10
Am. Neg. Gas. 574, was a [402] review of
a judgment recovered in a circuit court of
the United States in an action for person-
al injuries where the damages claimed in-
eluded compensation for the impairment of
plaintiff's earning capacity. Assuming, for
purposes of illustration, that plaintiff's ex-
peetancy of life was thirty years, the trial
judge instructed the jury (p. 551) that it
would not be proper to allow him in gross
the siun of the annual losses during his
expectancy, "for the annuity will be pay-
able one part this year and another part
next year, and each of the thirty parts pay-
able each of the thirty years. You must
have a sum such that, when he dies, it will
all be used up at the end of thirty years."
Having called attention to certain tables
that were in evidence, he proceeded to say:
^Add that to the present worth of annuity
if you find he was damaged." The judg-
ment was reversed, not because of the recog-
nition of the rule of present values, but be-
eause of the conclusive force that was given
1^ the trial judge to the life and annuity
tables. In the course of the opinio^ the
eoort, by Mr. Justice Gray, said (p. 654)
that the compensation should include "a
fair recompense for the loss of what he
would otherwise have earned in his trade
or profession, and has been deprived of the
capacity of earning by the wrongful act
of the defendant. ... In order to assist
the Jury in making such an estimate, stand-
ard life and annuity tables, showing at any
afs the probable duration of life, and the
present value of a life annuity, are compe-
tent evidence. . . . But it has never
been held that the rules to be derived from
•oeh tables or computations must be the
60 Ju eO.
absolute guides of the judgment and tha
conscience of the jury."
In Pierce v. Tennessee Ooal, Iron ft R.
Co. 173 U. 8. 1, 43 L. ed. 591, 19 Sup. Ct.
Rep. 335, 5 Am. Neg. Rep. J47, which was
an action founded upon defendant's breach
and abandonment of a contract of employ-
ment construed by this court to be limited
only by plaintiff's life, the trial court ruled
(p. 6) that no recovery could be allowed be-
yond [403] the instalments of wages due
up to the date of the trial, refusing to
charge, as. requested by plaintiff, that he was
"entitled to the full benefit of his contract^
which is the present value of the money
agreed to be paid and the articles to be fur^
nished under the contract for the period of
his life, if his disability is permanent," etc
This court held (p. 10) that the circuit
court had erred in restricting the damages
as mentioned, and in declining to instruct
the jury in accordance with plaintiff's re-
quest; citing Vicksburg & M. R. Co. v. Put-
nam, ubi supra, and quoting the reference to
the ^'present value of a life annuity;" and
also citing (p. 13) Schell v. Plumb^ 55 N.
Y. 592, and making the following quotation
from the opinion of the court of appeals of
New York in that case: "Here the con-
tract of the testator was to support the
plaintiff during her life. That was a con-
tinuing contract during that period ; but the
contract was entire, and a total breach put
an end to it, and gave the plaintiff a right
to recover an equivalent in damages, which
equivalent was the present value of her
contract."
That where future payments are to be
anticipated and capitalized in a verdict the
plaintiff is entitled to no more than their
present worth is commonly recognized in
the state courts. We cite some of the cases,
but without intending to approve any of
the particular formulae that have been fol-
lowed in applying the principle; since in
this respect the decisions are not harmoni-
ous, and some of them may be subject to
question. Louisville & N. R. Co. v. Tram-
mell, 98 Ala. 350, 355, 9 So. 870; McAdory
V. Louisville & N. R. Co. 94 Ala. 272, 276,
10 So. 507; Central R. Co. v. Rouse, 77 Ga.
393, 408, 8 S. E. 307; AtlanU ft W. P. R.
Co. V. Newton, 85 Qa. 517, 528, 11 S. £.
776; Kinney v. Folkerts, 78 Mich. 687, 701,
44 N. W. 152, 84 Mich. 616, 624, 48 N.
W. 283; Hackney v. Delaware k A. Teleg.
A Teleph. Co. 69 N. J. L. 385, 837, 55 AU.
252; Gregory v. New York, L. B. A W. R.
Co. 55 Him, 303, 308, 8 N. Y. Supp. 525;
Benton v. North Carolina R. Co. 122 N. C.
1007, 1009, 30 S. E. 883; Poe ▼. Raleigh *
A. Air Line R. Go. 141 N. 0. 525, 528, 64
S. B. 406; [404] Johnson v. Seaboard Aiv
Line R. Co. 168 N. a 431, 452, 79 S. B. 690,
404
SUPREME COURT OF THE UNITED STATES.
Got. Tkm,
Ann. Cat. 1915B, 698, 4 N. C. C. A. 627;
Goodhart ▼. PenniylvanU R. Co. 177 Pa. 1,
17, 65 Am. St. Rep. 706, 35 Atl. 191 ; Irwin
▼. Pennsylvania R. Co. 226 Pa. 156, 75 Atl.
19; Reitler v. Pennsylvania R. Co. 238 Pa.
1, 7, 85 Atl. 1000; McCabe v. Narragansett
Electric Lighting Co. 26 R. I. 427, 435, 59
Atl. 112; Houston & T. C. R. Co. ▼. Willie,
53 Tex. 818, 328, 37 Am. Rep. 756; Rndiger
T. Chicago, St. P. M. & 0. R. Co. 101 Wis.
292, 303, 77 N. W. 169; Secord ▼. John
Schroeder Lumber Co. 160 Wis. 1, 7, 150
N. W. 971. See also St. LouU, L M. & S.
R. Co. V. Needham (C. C. A. 8th) 3 C.
C. A. 129, 10 U. S. App. 339, 62 Fed. 371,
377; Baltimore k 0. R. Co. v. Henthorne
(C. C. A. 6th) 19 C. C. A. 623, 43 U. S.
App. 113, 73 Fed. 634, 64L
Judgment reversed and the cause re-
manded for further proceedings not incon-
sistent with this opinion.
CHESAPEAKE k OHIO RAILWAY COM-
PANY, Plff. in Err.,
▼.
JAMES R. GAINEY, Jb.,1 Administrator
de bonii non of the Estate of Richard
Dwyer, Deceased.
(See S. C. Reporter's ed. 494-496.)
Jury — Infringement of rigbt — non-
ananlmoBA verdict — action under
Federal statute.
1. The requirement of U. S. Const., 7th
Amend., that trials by jury be according to
the course of the common law, i. e., by a
unanimous verdict, does not control the
state courts, even when enforcing rights
under a Federal statute like the employers'
liability act of April 22, 1908 (35 Stat, at
L. 65, chap. 149, Comp. Stat. 1913, § 8657),
and suc^ courts may, therefore, give effect,
in actions under that statute, to a local
practice permitting a less than unanimous
verdict.
(For other cases, see Jury, I. d, 2, In Digest
Sup. Ct. 1908.]
Damages — for death — future benefits
— present cash value.
2. The present cash value of the future
1 Death of Sarah Dwyer suggested, and
appearance of James R. Gainey, Jr., admin-
istrator de honig non of Richard Dwyer, de-
eeased, as party defendant in error herein,
filed and entered January 31, 1916.
Note. — On number and agreement of
jurors necessary to constitute a valid ver-
dict— see notes to State v. Bates, 43 L.R.A.
33, and Silsby v. Foote, 14 L. ed. U. S. 394.
On the constitutionality, application, and
effect of the Federal employers' liability
Act — see notes to Lamphere v. Oregon R. A
Nav. Go. 47 L.R.A.(N.S.) 38, and Seaboard
Air Line R. Co. v. Horton» LJUL1915C, 47.
11S4
I benefits of which the beneficiarr was de-
. prived by the death, making adequate al-
I lowance according to the circumstances for
I the earning power of money, is the proper
I measure of recovery in an action sgaintt
an interstate railwav carrier under the Fed-
eral employers' liability act of April 22,
1908 (35 SUt at L. 65, chap. 149), at
amended by the act of April 5, 1910 (36
Stat, at L. 291, chap. 143, Comp. SUt. 1913,
§ 8662), for the benefit of the widow of
an employee killed while engaged in inter-
state commerce.
[For other cases, see Damages, VI. j. in Di-
gest Sup. Ct. 1908.]
[No. 453.]
Submitted April 19, 20, 1916. Decided
June 5, 1916.
IN ERROR to the'Court of Appeals of the
State of Kentucky to review a judgment
which, on a Second Appeal, affirmed a judg-
ment of the Circuit Court of Boyd County,
in that state, in favor of plaintiff in an ac-
tion of death under the Federal employers'
liability act. Reversed and remanded for
further proceedings.!
See same case below, 162 Ky. 427, 172
S. W. 918.
The facts are stated in the opinion.
Messrs. E. Ii. Worthington, W. D.
Cochran, and lie Wright Browning sub-
mitted the cause for plaintiff in error. Mr.
P. K. Malin was on the brief:
The instruction on the measure of dsm-
ages was erroneous.
Hackney v. Delaware db A. Teleg. &
Teleph. Co. 69 N. J. L. 335, 55 AtL 252;
McCabe v. Narragansett Electric Lighting
Co. 26 R. I. 427, 59 AU. 112 ; LouisviUe k
N. R. Co. V. Trammell, 93 Ala. 354, 9 Sa
870; Benton v. North Carolina R. Co. 122
N. C. 1007, 30 S. E. 333; Rudiger v. Chi-
cago, St. P. M. db O. R. Co. 101 Wis. 292,
77 N. W. 169; Southern R. Co. v. Hill, 139
Qa. 549, 77 S. E. 803; Irvin v. Southern R.
Co. 164 N. O. 5, 80 S. B. 78; Thornton v.
Seaboard Air Line R. Co. 98 S. C. 348, 82
S. ^. 433; Kansas City Southern R. Co. ▼.
Leslie, 233 U. S. 599, 59 L. ed. 1478, 35 Sup.
Ct. Rep. 844; American R. Co. v. Didriek-
sen, 227 U. S. 145, 57 L. ed. 456, 33 Sup
Ct Rep. 224; New York, C. db St. L. R. Co.
V. Niebel, 131 C. C. A. 248, 214 Fed. 952;
Michigan C. R. Co. v. Vreeland, 227 U. S.
59, 57 L. ed. 417, 33 Sup. Ct. Rep. 192, Ana.
Cas. 1914C. 176.
1 Leave granted to present petition for
rehearing herein within thirty days, on mo-
tion of Mr. George H. Lamar, in behalf of
counsel for the ddfendant in error.
June 12, 1016.
141 V. &
1015.
SPOKANE & I. E. R. 00. y. CAMPBELL.
496^97
Messrs. E. L. Worthington, LeWright
Browning, and W. D. Cochran also united
in a joint brief raising the question of the
application of the 7ih Amendment to the
Federal Constitution, an abstract of which
will be found in connection with the report
of Chesapeake & 0. R. Co. y. Kelly, ante,
1117.
Mr. R. S. Dinkle submitted the cause
for defendant in error. Messrs. Watt M.
Prichard and George B. Martin were on
the brief:
The instruction of the lower court de-
fining the measure of damages was not
erroneous.
Chesapeake & 0. R. Co. y. Kellj, 160 Ky.
296, 169 S. W. 736.
Messrs. R. 8. Dinkle and George B. Mar-
tin also united in. a joint brief raising the
question of the application of the 7th
Amendment to the Federal Constitution, an
abstract of which will be found in connec-
tion with the report of Chesapeake & 0.
R. Co. ▼. Kelly, ante, 1117.
Mr. Justice Pitney delivered the opin-
ion of the court:
This was an action under the employers'
liability act of Congress of April 22, 1908,
as amended April 5, 1910 [496] (chap. 149,
35 SUt. at L. 65, chap. 143, 36 Stat, at L.
291. Comp. Stat 1916, § 8662). It was
brought to recover damages for the death
of Richard Dwyer, caused by the negligence
of the railroad company, while he was in
its employ in interstate commerce. The
sole beneficiary was decedent's widow, who
originally qualified as administratrix and
brought the action, but has died since the
allowance of the present writ of error.
Laying aside a contention based upon
the 7th Amendment to the Federal Con-
stitution, which has been disposed of in
Minneapolis & St. P. R. Co. y. Bombolis,
241 U. S. 211, ante, 961, 36 Sup. Ct. Rep.
595, the only question raised relates to the
method adopted in ascertaining the damages.
The jury returned a verdict for $16,000.
On appeal to the Kentucky court of appeals
it was insisted that this amount was gross-
ly excessive, and was the result of erroneous
instructions to the jury. It was contend-
ed that the verdict of $16,000 if placed at
interest would yield an annual income great-
er than the amount the widow would have
received had she lived, and would yet leave
her the principal to dispose of at the time
of her death. The court overruled this con-
tention, oa the authority of Chesapeake &
O. R. Co. V. Kelly, 160 Ky. 296, 169 S. W.
736, where the same court held that in such
a case the whole loss is sustained at the
60 li. ed.
time of intestate's death, and is to be in-
cluded in the verdict without rebate or
discount. A reading of the opinion of the
court of appeals in the present case (162
Ky. 427, 172 S. W. 918) makes it evident
that it was only upon this theory that the
court was able to reach a conclusion sus-
taining the verdict. Since we have held;
in Chesapeake k 0. R. Co. v. Kelly, this
day decided [241 U. S. 485, ante, 1117, 36
Sup. Ct. Rep. 630], that the theory is erro-
neous, it results that the judgment hero
und^r review must be reversed and the
cause remanded for further proceedings not
inconsistent with this opinion.
[497] SPOKANE k INLAND EMPIRE
RAILROAD COMPANY, PlflT. in Err.,
V.
EDGAR E. CAMPBELL.
(See S. C. Reporter's ed. 497-^10.)
Trial — general verdict — special find-
ings — proximate cause.
1. A general verdict for plaintiff in an
action by a railway employee to recover
damages for injuries received by him in a
head-on collision, in which the jury made
special findings that the air bk-akes were
insufficient to enable him to control the
speed of his train, and that his violation of
a train order was the proximate cause of
the accident, must mean not only that the
brake equipment was defective, but that
it was a proximate cause of the collision,
where the jury were instructed that before
a verdict could be returned for the plain-
tiff, based on the allegation that the brakes
Note. — On the applicability of the com-
merce clause or statutes thereunder to street
railways or to interurban roads — see note to
Omaha k C. B. Street R. Co. v. Interstate
Commerce Commission, 46 LR.A.(N.S.)
385.
On duty and liability under Federal and
state railway safetv appliance acts — see
notes to Chicago, M. & St. P. R. Co. v.
United States, 20 L.R.A.(N.S.) 473, and
Lake Shore & M. S. R. Co. v. Benscm, 41
L.R.A.(N.S.) 49.
As to constitutionality, application, and
effect of the Federal employers' liabilitv
act — see notes to Lamphere v. Oregon R. it
Nav. Co. 47 L.R.A.(N.S.) 38, and Seaboard
Air Line R. Co. v. Horton, L.ILA.1915C, 47.
As to duties of master and servant in re-
gard to rules promulgated for the safe con-
duct of a business — see note to Nolan v.
New York, N. H. & H. R. Co. 43 L.RJL
305.
As to the relation of the proximate-cause
doctrine to the rule of liability of a master
for injuries to his servant caused by the
combined negligence of himself and a fellow
servant — see note to Luts v. Atlantic k P.
R. Co. 16 L.IUA. 819.
1125
SUPRXaiB OOUBT OF THE UNITED STATES. Oor. Ttt^
w«r« dafsetire and out of repair, thej miut trmin brakes, under tba Mfe^ applianM Mti
be utlified, from a prepondertace of the of March 2, 1893 (27 Stat, at L SSI, chap,
tcatimon^, not only that th* braka were In 196, Comp. Stat. 1913, f BOOS), and March
fact defectiTB. or out of repair, but that 2, 1903 (32 Stat, at L. 94S,cfa«!). STCCon^
their defective eoodition wae the direct or Stat. 19IS„ | S813}, waa owed by an inter-
froxiniBte cauM of the oolliaion. state interurban electric railwaj oomoHn
Var other cutst, met Trial, Z., ID DlCMt Bop. U) a motorman who had wrongfully ezpoied
CL 1«(8.] himeelf to danger by taking oat Ma traia
Brldcnce — anffldencr — prozlnutte in xiolation of orders.
C*<>M- [For oCber ciki, mc Muter and Serrant, IL
2. Evidence that a motorman, after dia- ■■ 2, d, 1° DlKnt Bup. Ct isos-l
covering a train which waa approaching Hftater and servant — safety appUanoea
from the oppoeito direction on the same — servant Beting outside employment.
track, would have had ample time to avoid 0. The violation of a train order by
a collieian tiad the train-brake equipmtint the motormui ot an interstate interurban
been adequate, supports a finding that the electric railway does not suspend the rcls-
defective brake equipment was the proxl- tion of employer and employee so aa to ab-
mate cause of the ensuing cDlHalon. solve the former from its duty toward him
(For other cues, «« ETldence, XII. b. In under the istety appliance acta of March Z,
Ul«eit sop. Ct. 1908.] 1893 ^z^ gtat. at L. 631. chap. 198, Comp.
Evidence — Bufflciency — defecUve safe- gtat. 1913, § SB05), and Mari^ 2, 1903 (32
ty appilanM. Stat, at J-. 943, chap. B76, Comp. Stat. 1913.
3. The jury might reasonably infer g 8613), with respect to power or train
that the train-brake equipment, which was brakes.
wrecked in a collision, was defective or out iFor oihsr cu«i. ue Hut«r and SerTant, II,
of repair, where, notwithstanding tcBtimony ■, 2. d. In DI^Ht Snp. CL 190a]
that the brakes were inspected and found Master and aerrant — employers' Ua-
in perfect order before tlie train started, bllltj — safety appliances — ezclu-
there is evidence that when the motorman slveness of Federal recnlatlon.
threw the air drake into emergency, the 7. State statutes which, like 2 Ida. Bet.
brakes took hold and then "leaked off" lo Code, gf 6926, G90S, render a wilful viola-
aa to release the brakes, and there waa evi- tion or omission of duty on the part of a
dence which would have warranted the jury railway employee whereby human life or
in finding that the motorman properly ap- safety la endangered punishable aa a mit-
plied the air wiien 600 feet Or more from demeanor, and make wilful or negligent con-
the place where the collision occurred, and duct which causes a collision of trains and
that the brakes refused t^i work, and there the resulting death of a human being a
was expert evidence that the train could criminal offense, have no bearing on the
have been stopped Inside of 300 feet if the right of the motorman of an interstate in>
brakes had been in proper order. terurban electric railway to recover dam-
(For other cues, tee ErlUeuce, XII. d, ]□ ages from his employer for injuries sus-
Digest Bop. Ct. 1908.1 tained in a oonisfon because of defective
Master and servant — aafety appliances power or train brakes, since his right to
— interstate electric railway — power recover depends upon the employers' lia-
'"«''«"■ bllity act of April 22, 1908 (35 SUt at h.
4. Electric motors and traina drawn by fls, chap. 149, Comp. SUt. 1B13, 8 8667),
them on an interstate interurban electric snd the safe^ appliance acts of March 2,
railway must be deemed to have been 1893 (87 SUt. at L. 631, chap. 196, Comp.
brought within the provisions of the aafety sut 1913, § 8e05), and March 2, 1903 (32
appliance act of March 2, 1883 (27 SUt. stat. at L. 943, chap. 978, Comp. SUt. 1913,
at L. 631, chap. 196, Comp. SUt 1913, | BB13), to which all sUM k-gislatlon af-
I 8806), respecting power or train brakes fecting the subject-matter must yield.
on locomotives and trains, by the deolara- [For other cawi, see Muter sod Serrant, IL
Uon of the amendatory act of March 2, 1903 «. Z. d. In DUest Sup. Ct J008-]
(32 SUt. at L. 943, chap, 976, Comp. Stat. Master and servant — employera* Ila-
1913, I 8613), t 1, that the provisions re- bllltj — safety appliances — contr I bn-
latlng to train brakes shall be held to ap- tory negligence — concnrrlng proxl-
ply to all trains, locomotives, tenders, cars, mate canaea.
and similar vehicles used on any railroad 8. A recovery may be had under the
engaged in interaUte commerce, and to all Federal employers' liability act of April 22,
other locomotives, tenders, cars, and similar 1908 (35 SUt. at L. 66, chap. 149, Comp.
vehicles used in connection therewith, and SUt. 1913, | 86S7), where the emplovers
of S 2, that whenever any train is operated contributory negligence and the railway
with power or train brakes, not leas than company's violation of the safety applianee
60 per cent of the cars of such train shall acU of March 2, 1893 (27 SUt. at L. 631,
have their brakes used and opecated by the chap. 196, Comp. SUt. 1913, g 6606), and
engineer of the locomotive drawing the March 2, 1903 (32 SUt. at L. 943, chap,
train. 976, Comp. SUt. 1913, S 8613), are eon-
(For other cases, see Muter and Servant, II. curring proximate eauaes, in view of the
a. a, d. In Digest Hop. Ct 19091 provUion of 8 1 of the employers' lUbili^
Master and servant — safety appliances act, imposing a liability for an injury to
— emplojee dlsoberlng orders. an employee resulting "in whole or in part"
0. The duty with respect to power and frran the negligence of any of the officer^
4111 341 U. S.
1915.
SPOKANE & L E. R. 00. ▼. CAMPBELL.
agents, or employees of the carrier, or by
reason of any defeet or insufficiency due to
its negligence in its cars, engines, ap-
pliances, or other equipment* and of the
proviso to I 3 of that act, that no employee
Injured or killed shall be held to have been
guilty of contributory n^ligence in any
case where a violation of the safety ap-
Sliance act "contributed" to the injury or
eath of such employee.
(For other cases, see Matter and Servant, II.
a ; ProzUnate Cause, in Digest Sop. Ct. 1908.]
[No. 325.]
Argued April 26, 1916. Decided June 12,
1916.
IN ERROR to the United SUtes Circuit
Court of Appeals for the Ninth Circuit
to review a judgment which affirmed a judg-
ment of the District Court for the Eastern
District of Washington in favor of plain-
tiff in an action under the Federal employ-
ers' liability and safety appliance acts. Af-
firmed.
See same case below, 133 C C. A. 370, 217
Fed. 618.
The facts are stated in the opinion.
Mr. \¥ill O. Graves argued the cause,
and, with Messrs. F. H. Graves and B. H.
Kizer, filed a brief for plaintiff in error:
Judgment should have been entered foi
defendant upon the special findings
Sudden ▼. Morse, 56 Wash. 372, 104 Pac
645; Cameron ▼. Stack-Gibbs Lumber Co.
68 Wash. 543, 123 Pac. 1001; Mercier v.
Travelers' Ins. Co. 24 Wash. 154, 64 Pac.
158; HobartT. Seattle, 32 Wash. 332, 73
Pac 383; Abby ▼. Wood, 43 Wash. 379, 86
Pac. 558; Crowley ▼. Northern P. R. Co.
46 Wash. 85, 89 Pac. 471 ; Evans ▼. Ore^n
& W. R. Co. 58 Wash. 434, 28 L.R.A.(N.S.)
455, 108 Pac. 1095; Pepperall v. City Park
Transit Co. 15 Wash. 176, 45 Pac. 743, 46
Pae. 407.
The Jury's findings establish that Camp-
bell was not in the course of his employ-
ment when he was injured, and consequently
judgment could not be entered for him upon
the cause of action pleaded and established
by the general verdict.
North Carolina R. Co. r. Zachary, 232 U.
8. 248, 260, 58 L. ed. 591, 596, 34 Sup. Ct.
Rep. 305, Ann. Cas. 1914C, 159, 9 N. C. C.
A. 109; St. Louis & S. F. R. Co. ▼. Conarty,
238 U. 8. 243, 249, 59 L. ed. 1290, 1292, 35
Sup. Ct Re^. 785; Central Vermont R. Co.
▼. White, 238 U. S. 507, 59 L. ed. 1433, 35
Sup. Ct. Rep. 865, Ann. Cas. 1916B, 252,
9 N. C. C. A. 265; Reese v. Philadelphia &
R. R. Co. 239 U. S. 463, ante, 384, 36 Sup. Ct.
Rep. 134; Seaboard Air Line R. Co. ▼. Hor-
ton, 238 U. S. 492, LJELA.1915C, 1, 58 L
ed. 1062, 34 Sup. Ct Rep. 635, Ann. Cas.
1915B, 475, 8 N. 0. a A. 834; St Louis,
60 Ii. ed.
1 1. M. & 8. R. Co. T. MoWhirter, 229 U. S.
' 265, 67 L. ed. 1179, 83 Sup. Ct Rep. 858;
4 Thomp. N^. 2d ed. g 8749; Williamson
▼. Berlin MUls Co. Ill C. C. A. 185, 190
Fed. 1; Baltimore & 0. R. Co. r. Doty, 67
G. C. A. 38, 133 Fed. 866; Burnett v. Roa-
nc^e Mills Co. 152 N. C. 35, 67 S. E. 30;
Chesapeake & 0. R. Co. ▼. Bamesy 132 Ky.
728, 117 a W. 261; Harris r. United
S. S. Co. 75 N. J. L. 861, 70 AtL 155; Mo-
Gill T. Maine & N. H. Granite Co. 70 N. H.
125, 85 Am. St Rep. 618, 46 AtL 684; Lind-
quist ▼. Sling's Crown Plaster Co. 139 Iowa,
107, 117 N. W. 46; Martin ▼. Kansas City,
M. & B. R. Co. 77 Miss. 720, 27 So. 646;
Pioneer Min. k Utg, Co. r. Talley, 152 Ala.
162, 12 L.RJL(N.S.) 861, 43 So. 800; Du-
vall ▼. Armour Pacldng Co. 119 Mo. App.
150, 95 S. W. 978; LouisvUle & N. R. Co.
V. Holland, 164 Ala. 73, 137 Am. St Rep.
25, 51 So. 365; Buckley ▼. New York C. &
H. R. R. Co. 142 App. Div. 8, 126 N. Y.
Supp. 480; Bryant ▼. Fissell, 84 N. J. L.
72, 86 Atl. 458, 8 N. C. C. A. 585; Reimers
v. Proctor Pub. Co. 85 N. J. L. 441, 89 Atl.
931, 4 N. C. C. A. 738; Anderson ▼. Mis-
souri P. R. Co. 95 Neb. 358, L.RJ^. — , — ,
145 N. W. 842; Hobbs ▼. Great Northern R.
Co. 80 Wash. 678, L.R.A.1915D, 503, 142
Pac 20; Vanordstrand ▼. Northern P. R.
Co. 86 Wash. 665, 151 Pac. 89; Tope v.
HiU's Plymouth Co. 102 L. T. N. S. 632, 3
B. W. C. C. 339; Martin ▼. Fullerton [1908]
S. C. 1030; Jenkinson ▼. Harrison, A. & Co.
4 B. W. C. C. 194; Losh ▼. Richard Evans &
Co. 19 Times L. R. 142, 51 Week. Rep. 243;
Marriott v. Brett & Beney, 5 B. W. C. C.
145; Whelan ▼. Moore, 43 Jr. L. T. 205, 2
B. W. C. C. 114; Smith ▼. Lancashire & Y.
R. Co. [1899] 1 Q. B. 141, 68 L. J. Q. B.
N. S. 51, 47 Week. Rep. 146, 79 L. T. N. S.
633, 15 Times L R. 64; Williams v. Wigan
Coal & I. Co. 3 B. W. C. C. 65; Reed v.
Great Western R. Co. [1909] A. C. 31, 78 L.
J. K. B. N. S. 81, 99 L. T. N. S. 781, 25
Times L. R. 36, 58 Sol. Jo. 31, 2 B. W. C. C.
109; Morrison r. Clyde Nav. Trustees
[1909] 8. C. 59, 49 Scot L. R. 40; Revie v.
Gumming [1911] 8. C. 1032, 48 Scot L. R.
831; Wemyss Coal Co. ▼. Symon [1912]
S. C. 1239, 49 Soot L. R. 921; Scalzo ▼.
Columbia Maccaroni Factory, 17 B. O. 201.
Campbell's criminal act waa both out oi
the or^ary, and inconsistent with his duty
to his employer; and therefore in its com-
mission he was beyond the scope of his em-
ployment
Seaboard Air-Line R. Co. ▼. Chapman, 4
Ga. App. 706, 62 8. E. 488; Ll<^d T. North
Carolina R. Co. 151 N. O. 536, 45 IJLA.
(N.S.) 378, 66 S. E. 604.
In construing the British workmen's
compensation act, the English courts
frequently had occasion to remar
SUPREME OOUBI 07 THE UNITED STATES. Ooi. laa,
otrvfull; deflno the distinction betwem im- PhiUdelphik 4 B. R. Co. SS9 U. 6. Ui,
proper mi^ done in the coutm of an em- ante, 8M, 36 Sup. Ct Hep. 184.
ployment, whioh do not debar recovery, and Tbe Federal acta made radical change* ia
conduct BO unrelated to the employment aa tbe dutj owed bj a niaater to hia acrvaal^
to be without ita pale, which doea bar re- but the acta, in reaped ot all ineideotal
oattry. mattera not apedBcaJlj deftlt with, are to
Plumb T. Cobden Flour Milla Oo. [1S14] be conetrued in the light <rf Federal de«i-
A. a 62, S3 L. J. K. B. N. 8. 107, IDQ L. lioni made prior to their enactment.
T. N. S. 7S9, 30 Timea L. R. 174, SB Bol. Jo. Central Vermont R. Ca t. WUte, 238 U.
IS4, 61 Boot. L. R. 861, 7 B. W. C. 0. 1, 8. SOT, SB L. ed. 1433, 3S Snp. Ct. Rep. BS5,
Ann. Caa. 1914B, 40S; Bamei t. Nunn^j Ann. Caa. 19163, 252, B N. C. C. A. 265.
Colliery Co. [IB12J A C. 44, 81 L. J. E. B. Such, too, ia the eiTect of the UcWhirtw,
N. S. 213, lOS L. T. N. 8. 061, 28 Timea Horton, and Reeae Caaea; Patton t. Texas
L. R. 136, 6S Sol. Jo. ISB, 40 Scot. L. B. & P. R. Co. 179 U. S. 361, 4S L. ed. 361,
688, S B. W. C. C. 196; Parker t. Earn- 21 Sup. Ct. Rep. 27G, merely aUtes a rule
brook [1S12] W. N. 20S, 107 L. T. N. S. of evidence; that in an action by a iervaat
240, 60 Sol. Jo. 760, S B. W. C. C. 608. to recover damagei for a breach of the mas-
The worda "locomotive" and "locomotive ter'a duty to him, it is not sufficient that
engine" mean to the average man a steam it appears that the master may have
locomotive. breathed hia duty, and in consequence the
Whibehouae r. Grand Trunk R. Co. 2 servant was injured; the evidence must
Haskell, 189, Fed. Caa. No. 17,565. point to the fact that he did breach it, aad
Common or popular words when used in that the injury complained of resulted
a statute are to be understood in a popular from tbe breach. It baa been uniformly
aense. followed by the Federal courts aa a mis of
Sutherland, Stat. Conetr. | 247; Hartford evidence under t>oth Federal and state lia-
T. Northern P. K. Co. 91 Wia. 374, 84 N. W. bility acU.
1033. Chicago t N. W. R. Co. t. O'Brien, 67 C.
The u*e in statutes relating to railroad C. A, 421, 132 Fed. 593; Shandrew v. Cbi-
operation ot the worda "loccwiotive," "loco- cago, St. P. H. ft 0. R. Co. 73 C. C. A. 430,
motive engine" or "looomotive engineer," 1^2 Fed. 320; Lyddy v. Louisvillo ft N. IL
indieatos the legislative intention to re- Co. 117 C. C. A. 20, 197 Fed. S24; Smitk
strict the operation ol the statute to the v. lllinoii C. R. Co. 119 C. C. A. 33, 209
uaual steam railroad. Fed. 553; Norfolk ft W. B. Co. v. Eauser,
Birmingham R. Light ft F. Co. v. Ozburn, 126 C. C. A. 167, 211 Fed. 667 ; Midland
4 AU. App. 390, 56 So. 69B; Qalveaton & Valley R. Co. v. Fulgham, I.R.A. — , — ,
W. R. Co, V. Oalvestcm Electric R. Co. 58 104 C C. A. 161, 181 Fed. 91; Crucibb
Tex. Civ. App. 427, 123 S. W. 1140; Kam- Steel Forge Co. v. Moir, 135 C. C. A. 49,
manu v. St. Louii ft N. E. R. Co. 173 111. 219 Fed. 161, 8 N. C. C. A. 1000.
App. 277; Conover v. Public Service R. Co. I^e state courta, too, hold that the lia-
80 N. J. L. 681, 76 Atl. 187; Indianapolis bility acts. Federal or aUte, have not dia-
ft Q. Rapid Transit Co. v. Andis, 33 Ind. pensed with the necessity for conneetiDg bj
App. 625, 72 N. E. 146; Fallon v. West End evidence, not surmise, tlie breach of tks
Street R. Co. 171 Maaa. 249, 60 N. E. 630, master's duty with the servant'* injury.
4 Am. Neg. Rep. 288; Mudd v. Missouri, Bowers v. Southern R. Co. ID Gl App.
K. ft T. R. Co. 146 Uo. App. 388, 124 8. W. 367, 73 S. £. 677; South Covington ft C
69; Norfolk ft P. Traction Co. v. Ellington, Street R. Co. v. Finan, 163 Ky. 340, IH
108 Va. 246, 17 L.R.A.(N.S.) 117, 61 S. E. 8. W. 742; Scroggins v. Atlantic ft G. P.
779; Cleveland ft E. R. Co. v. Somers, 24 Cement Co. 17S Ala. 213, 60 So. 171;
Ohio C. C. 67. WrighUville ft T. R. Co. v. T<Hnpkina, 9 G*.
When Campbell admita that the failure ■*??■ "*' ""> ^- ^- '^i ^ohjiam v. Nash-
might have been due to the breaking of any "'"*• C. ft 8t. L R. Co. 177 Ala. 284, 61
of a half Ao^ parts of tbe system, occa- ^^ p"' U^ aIT «3R^T.''^<^'' ^ *
sioocd by his applying the brake, improp- ^- ^- "" ***■ '>'^' ^^ ^ ^•
erly, cerUinly there is no liability but that , ^ " «otion by a servant to recow
Of an insurer under which the company can f-V^T" '""^ *"■ ^T^. '** .V*^"™" "*
be held. The insurer idea is exploded by ^"""'' "^ P^-^Ptio" f n^Ugeace ar««
Di I T 1. > o Ti n .. .-. . ' *''°™ ^lie mere failure of uipbaiioea, bnt to
220 U. 5. M6. 67 I. «I. 1179. 33 Sup. «. ^ j,,^ „ „,,' .pp,^^ 4™ t, lb.
Rep. 868; Seaboard Air Line K. Co. t. Hot- niMter's neglect. Like thoM OM* i
ton, 233 U. S. 482, 68 L. ed. 1082, I.IU. Lo„ney T. MetropoUtin B. Co. 200 U. >.
ISieC, 1, 34 Sup. Ct. Kep. 636, Ann. Ce«. 480, 60 L. ed. 664, 26 Sup. Ct. Bop. 303, II
1816B, 476, 8 N. C. a A. 834; Beeoo t. Am. Stg. Bop. 827, In wUeli it ma nidi
"" Kin. •.
I91S. SPOKANE & I. B. R. CO. T. CAMPBELL.
'^o bold a nuiter responsible, a servant a character to give KTOund for a reaaoiiable
must Rhow that tha appliance* and instm- infereDce that, it due care had bee* en-
meDtallties fumiihed were deleetlTe. A plowed hf tha part; charged with care in
defect cannot be inferred from 13ie mere (act the premises, the thing that happened amiia
of an injury. Here must be some sub- would not have happened.
itantiTB proof of the negligence. Enowl- Sweeney t. Erring, 228 tJ. B. 233, 23B, S7
edge of the defect or some omission of dnty L. ed. BIG, 819, 33 Sup. Ct Hep. 41S, Ann.
in regard to it must be shown." Cas. 1914D, 90S.
Texas ft P. B. Co. t. Barrett, 168 IT. B. It is only applicable when the nature of
017, 41 L. ed. 1136, IT Sup. Ct. Rep. 707, the accident points stronglj to ita cause be-
1 Am. Neg. Rep. 745; Fatton t. Texas k ing the defendant's negligence, and aa wdl
P. R. Co. 179 U. S. SS8, 4S L. ed. 361, 21 i^Tcludes an inference that it waa otlierwiaa
Sup. Ct. Rep. 27S. See also Midland Val- occasioned.
l«y E. Co. T. Fulgham, L.RjL — , — , 104 Byen t. Cam^e Steel Co. IB L.R-A.
C. C. A. 151, 181 Fed. 93. (N.S.) 214, 86 C. C. A. 347, 169 Fed. 347;
A statute whicb simply imposes a new Lucid t. E. I. Du Pont De Nemours Pow-
obligation upon an employer, or Tenders him der Co. L.RJL — , —, 118 C. 0. A. 61, 199
liable for the n^ligence of an employee Fed. 377.
who would, apart from ita prariaions, have There was no eridence that the bralces
been rq^arded as a mere coservant of the were defective unless the case is based upon
injured person, leaves upon the plaintifT the safety appliance act. Campbell's con-
tlie burden of proving the existence of such tributory negligence, which at least is In-
eulpability a* will entitle him to maintain disputable, waa a complat« defense under
the action. that act.
4 Labatt, Mast. & S. 2d ed. p. 4902. Reese v. Philadelphia & R. R. Co. 239 U.
The questions of negligence and of proz- S. 463, ante, 384, 36 Sup. Ct Rep. 134;
imato cause are still to be determined ae- Seaboard Air Line v. Horton, 233 U- S.
cording to the general existing rules on 492, 68 L. ed. 1062, L.R.A.1916C, 1, 34 Sup.
that subject. Ct. Rep. 636, Ann. Cfts. 19168, 476, 8 N. C.
Bowers v. Southern B. Co. 10 Oa. App. C A. 834; Schlemmer t. Buffalo, R. ft P.
S67, 73 S. E. 677. R. Co. 220 U. 8. E90,.S& L. ed. 696, 31 Sup.
Under the Federal statute the plaintiff Ct Rep. 661; Minneapolis, St. P. ft S. Ste.
must show negligence under the rules ordi- M. R. Co. t. Popplar, 237 U. S. 369, 69 L.
narily applicable to cases of that character, ed. 1000, 36 Sup, Ct Rep. 609.
South Covington ft C. Street R. Co. v. The cue is like that of a iUte in which
Finan, 153 Ky. 340, 156 B. W. 743. the common-law rule of negligence prevails.
The rule re* xpta loguilur is merely one but a Htatnte has been passed affecting the
of evidence (Sweeney v. Erving, 22S U. S. rule. The fact that a plaintiff might have
233, 67 L. ed. 816, 33 Sup. Ct. Rep. 416, maintained a common-law action doei not
Ann. Cas. 19I4D, SOS), and there being deprive him of the right to sue undmr tha
nothing in the Federal acts to iudicato an statute, but, If he counta on common-law
intent to affect rules of evidence, it has been nf^ligence, he cannot claim the benefits of
held, wherever the question has been pre- the statute.
senUd, that they remain aa before. C I^batt, Mart, ft B. 2d ed. | 1667; Welch
Smith V. Illinois C. R. Co. 119 C. C. A. t. Waterbury, 136 App. Div. 3)G, 120 N.
as, 200 Fed. 653; Weiss v. Belt R. Co. 186 Y. Supp. 10S9; Fleiaher v. Carsten* Pack-
lU. App. 43; Chesapeake ft 0. R. Co. v. Ing Co. 81 Wash. 241, 142 Fac. 694; Wiaer
Walker, 159 Ky. 237, 167 B. W. 128; Ridge v. Northwestern Improv. Co. 86 Waeh. 438,
T. Norfolk Southern R. Co. 167 N. C, 610, 160 Pac 019.
v-^' ~'^~^ ?? 1 w'f'o^^"^r^'- M'- H. I*WBd« M«ry argued tha
^« m" , iA w I ^ w' " ^Ti <*««. '"d, with Messrs. B. H. Bdden, W.
576; NorfoU. 4 W^ R^ Co. v Hauser 12» ^ '^^ ^ ^ ^ ^^ ^ ^.^^
C. C. A. 167, 211 Fed. 6B7; Lyddy v. . _ j..' j._,. •- „„,.
Louiaville ft N. R. Co. 117 C. C. A. 20, 197 '"^ , 4^!!^ 1^™! Court i. ««.id«.
Fad. 624; Courtney v. New York, N. E. ft , Th« F«>'«»1 S^P'""* ^^ m, J^
H. R. Co. 213 Fed. 388; PennsylvanU R. ^t^' T"' *'" ""•*, K° ^*^^^ "f^*
Co. V. Knox, 134 C. C. A. 426, 218 Fed. 748; '»^" ">*» *« '"'^^^' ''''•"»' ?•*•»
Hdm V. Cincinnati K. O. 4 T. P. R. Co. ''^^ •■*' ^**^ committed In reUtion to tha
168 Ky. 240, 160 S. W. 946; Cincinnati, N, federal employers' liability act
O. ft T. P. R. Co. V. Goldston, 166 Ky. 410, Yaioo ft M. Valley R. Co. v. Wrij^t, 235
IBl S. W. 246. U. S. 376, 69 L. cd. 277, 36 Sup. Ct Rep.
In any event, res ipto Icquitar is only 130; Chicago Junetion R. Co. t. King, 222
applicable where the eircnmstauces of the V. S. 222, 66 L. ed. 173, 32 Sup. Ct Rep.
oeeurrenee that baa eansad the lujuiry are of 79; Seaboard Air Lin* R.'Co. t. Moora, SSft
■0 Zi. ed. Ill*
SUPREME COURT OF THE UNITED STATES.
Ooz. Tmc,
U. S. 433, 67 L. ed. 907, 33 Sup. Ct Rep.
680; Chicago, R. L ft P. R. Co. y. Brown, 229
U. S. 317, 67 L. ed. 1204, 33 Sup. Ct. Rep.
840, 3 N. C. a A. 826; Southern R. Co. ▼.
Ckuld, 233 U. & 677, 68 L. ed. 1100, 34 Sup.
Ct Rep. 696; Bdm ▼. Campbell, 206 U. S.
403, 61 L. ed. 867, 27 Sup. Ct. Rep. 602.
We mutt look to the object and purpose
of the act of Congress in the passage of the
act in question, in order to arrive at a
true conclusion as to the application of the
act.
Schlemmer ▼. Buffalo, R. & P. R. Co. 206
U. S. 1, 61 L. ed. 681, 27 Sup. Ct. Rep. 407.
The safety appliance act has been given
a liberal construction by Federal courts,
that the intent of Congress might be effec-
tuated.
Chicago, M. ft St. P. R. Co. r. United
States, 20 L.RA.(N.S.) 473, 91 C. C. A.
373, 166 Fed. 423; Johnson y. Southern P.
Co. 196 U. S. 1, 49 L. ed. 363, 26 Sup. Ct.
Rep. 168, 17 Am. Neg. Rep. 412; United
States y. Chicago ft N. W. R. Co. 167 Fed.
616; Winkler y. Philadelphia ft R. R. Co.
4 Penn. (Del.) 80, 63 Atl. 90; Spokane ft
I. £. R. Co. y. United States, L.RA. — , — ,
127 C. C. A. 61, 210 Fed. 243.
Some state decisions are in point and
may be of assistance to the court in deter-
mining the question. .
Kent y. Jamestown Street R. Co. 206 N.
Y. 361, 98 N. £. 664.
If it should be held that the finding
actually made as to insufficiency of brakes
to control the speed of the train imme-
diately prior to the accident, and the find-
ings presumed, are inconsistent with the
finding that the leaving of Coeur d'Alene,
in violation of his orders, by plaintiff, was
the proximate cause of the accident (which
inconsistency is assumed for the purpose of
argument only), the findings would neutral-
ize each other, and the general verdict must
controL
Farmers' Say. Bank v. Forbes, 161 Iowa,
627, 132 N. W. 69; Conwell v. Tri-City R.
Co. 136 Iowa, 190, 112 N. W. 646; Indian-
apolis Southern R. Co. v. Tucker, 61 Ind.
App. 480, 98 N. E. 431; Morrow v. Bone-
brake, 84 Kan. 724, 34 L.R.A(N.S.) 1147,
116 Pae. 686; Seigel, W. ft C. Livestock
Commission Co. v. Jc^son, 4 Okla. 99, 44
Pac. 206; Daube v. Philadelphia ft R. CkMil
ft I. 0>. 23 C. C. A. 420, 46 U. S. App. 691,
77 Fed. 713.
In order for moti<m for judgment upon
special interrogatories to be granted, the
inconsistency between special findings and
the general verdict must be irreconcilable.
Fishbaugh v. Spunaugle, 118 Iowa, 337,
92 N. W. 68 ; Drake v. Justice Gold Min.
0>. 32 Colo. 269, 76 Pac 913; Tarashonsky
y. IllinoU C. R. Co. 139 Iowa, 709, 117 N.
1130
W. 1074; MeCorkle v. MaUory, 30 Wash.
632, 71 Pac 186.
Special findings must be findings of ulti-
mate facts, and not mixed questions of law
and fact, or conclusions, and the court
should disregard any finding which is a
conclusion.
Fishbaugh v. Spunaugle, 118 Iowa, 337, 92
N. W. 68; Lake Shore ft M. S. R. Co. v.
Mcintosh, 140 Ind. 261, 38 N. E. 476.
There is a wide distinction between a
proximate cause and a cause which proxi-
mately contributed to an injury, and this
distinction is recognized by Congress in the
employers' liability act, and by the courts
in interpreting similar statutes.
McFail v. Barnwell County, 67 S. C. 294,
36 S. E. 662; Wragge v. South Carolina ft
G. R. Co. 47 S. C. 106, 33 LJLA. 191, 68
Am. St. Rep. 870, 26 S. E. 76.
There can be a proximate cause and a
contributing cause to an injury, and two or
more acts of negligence may proximately
contribute to the same injury.
Chicago ft N. W. R. Co. v. Prescott, 23
L.R.A. 664, 8 C. C. A 109, 19 U. S. App.
291, 69 Fed. 237; Andrews v. Mason City
ft Ft. D. R. Co. 77 Iowa, 669, 42 N. W. 613;
S^J^SS^^d ^« Minnei^olis ft St L. R. Co.
38 Minn. 66, 36 N. W. 672; Corey v. North-
em P. R. Co. 32 Minn. 467, 21 N. W. 479;
(Dhoctaw, 0. ft O. R. Co. v. Holloway, 191
U. S. 334, 48 L. ed. 207, 24 Sup. Ct. Rep.
102, 16 AuL Neg. Rep. 236.
The defenses of asstimption of risk and
contributory negligence are not available to
the company under the act of Congress.
Grand Trunk Western R. Co. v. Lindsay,
120 C. C. A 166, 201 Fed. 844; Louisville
ft N. R. Ck>. V. Wene, 121 C. C. A 246, 202
Fed. 887.
The finding that disobedience of orders
was the proximate cause of the injury does
not negative the implied finding that the
failure of brakes to work immediately prior
to the oollisicm was a cause contributing to
the injury.
Dendng t. Merchants' Cotton-press ft
Storage Co. 90 Tenn.*306, 13 LJtA. 618, 17
S. W. 89; Atchison, T. ft S. F. R. Co. v.
Calhoon, 218 U. 8. 1, 63 L. ed. 671, 29 Sup.
Ct Rep. 321.
Under the safety appliance act, an abso-
lute datj rests on a carrier, not only to
equip its trains with brakes, but also to
maintain the equipment in accordance with
the standard set by Congress.
St. Louis, I. M. ft S. R. Co. r. Taylor,
210 U. S. 281, 62 L. ed. 1061, 28 Sup. Ct
Rep. 616, 21 Am. Neg. Rep. 464; Delk v.
St. Louis ft S. F. R. Co. 220 U. S. 680, 56
L. ed. 690, 31 Sup. Ct. Rep. 617; Chicago^
B. ft Q. R. Co. v. United States, 220 U. &
659, 66 L. ed. 682, 31 Sup. Ct. Rep. 612;
241 U. 8.
1916.
SPOKANE & I. E. R. 00. ▼. CAMPBELL.
498, 499
Donegan v. Baltimore & N. T. R. Co. 91 C.
0. A. 555, 165 Fed. 869; AtUntio Coast
Line R. Co. ▼. United States, 94 C. C. A.
86, 168 Fed. 176; United States v. Atchi-
son, T. ft S. F. R. Co. 90 C. C. A. 827, 163
Fed. 617; United States ▼. Denyer & R. O.
R. Co. 90 C. C. A. 329, 163 Fed. 619; Chi-
oago, M. k St. P. R. Co. v. United States,
20 L.R.A.(N.S.) 473, 91 C. C. A. 373, 166
Fed. 423; United States t. Wheeling & L.
£. R. Co. 167 Fed. 198; Indiana Union
Traction Co. t. Abrams, 180 Ind. 64, 101
N. E. 1.
Failure to perform a statutory duty is
negligence per »e.
Cummings y. Kenny, 97 App. Diy. 114,
89 N. Y. Supp. 679; Grand Trunk Western
R. Co. y. Lindsay, 120 C. C. A. 166, 201
Fed. 836; Indiana Union Traction Ca T.
Abrams, 180 Ind. 54, 101 N. E. 1; Waverly
Co. y. Beck, 180 Ind. 523, 103 N. E. 332;
Qallenkamp y. Garvin Mach. Co. — N. Y.
— , 99 N. E. 718; PinneU v. Kelly, 64 Ind.
App. 59, 99 N. E. 772.
The duty resting upon a common carrier
by railroad, engaged in interstate commerce,
to equip its trains with sufficient air brakes
and with automatic couplers, is an absolute
duty, and the requirement of the statute is
not satisfied by using reasonable care to see
that the equipment furnished is in perfect
condition.
Chicago, B. k Q. R. Co. v. United SUtes,
220 U. S. 659, 55 L. ed. 582, 31 Sup. Ct.
Rep. 612; Delk y. St. Louis & S. F. R. Co.
220 U. S. 580, 55 L. ed. 590, 31 Sup. Ct. Rep.
«17; St. Louis, L M. & S. R, Co. y. Taylor,
210 U. S. 281, 52 L. ed. 1061, 28 Sup. Ct
Rep. 616, 21 Am. Neg. Rep. 464. See also
Indiana Union Traction Co. y. Abrams, 180
Ind. 54, 101 N. E. 1.
Can it be said that Congress, in passing
these statutes, did not take into consider-
ation the fact that men are human and are
liable to misread and misinterpret orders,
and that in just such unforeseen emergen-
cies, safety appliances must be at hand, for
the protection of the lives of these same
employees and lives of passengers intrusted
to their care? If the employee has been
n^ligent, then his damages are to be de-
creased according to the degree of his neg-
ligence; but he is not entirely deprived of
his right to have the Jury compare his neg-
ligence with the negligence of the master
in his failure to furnish proper appliances.
Grand. Trunk Western R. Co. v. Lindsay,
^3 U. S. 42, 68 L. ed. 838, 34 Sup. Ct.
Rep. 681, Ann. Cas. 1914C, 168; Louisville
^ K. R. Co. v. Wene, 121 0. C. A. 245, 202
Fed. 887.
«0 li. ed.
Mr. Justice Pitney delivered the opinion
of the court:
This action was brought by Campbell in
the United States district court for the east-
ern district of Washington to recover dam-
ages for personal injuries, and was based
upon the Federal employers' liability act of
April 22, 1908 (chap. 149, 35 SUt. at
L. 66, Comp. SUt 1913, § 8657), and
the safety appliance act of March 2,
1898, as amended March 2, 1903 (chap. 196,
27 Stat, at L. 631, Comp. SUt 1913, §
8606; ehap. 976, 32 SUt at L. 943, Comp.
SUt 1918, i 8613). A judgment in plain-
tilTs favor was affirmed by the circuit court
of iqppsals (133 C. C. A. 370, 217 Fed. 618),
and the ease comes here on writ of error.
At the time of Campbell's injury, July
31, 1909, the company was operating a single
track electric railway between the city of
Spokane, in the state of Washington, and
the town of Coeur d'Alene, in the sUte of
Idaho. It was operated under sUndard
railroad rules. The running time of regular
trains was fixed by a time-Uble, upon which
they were designated by numbers. Special
trains were run by telegraphic orders given
by a train despatcher, whose office was in Spo-
kane. Under the rules, regular trains were
superior to special trains, and specials were
required to look out for and keep out of the
way of [499] the regulars. Unless a special
train had orders from the train despatcher,
fixing a meeting point with the regular
train, or in some other way giving it a
right to disregard the time when the latter
was due according to the time-Uble, it was
required to be clear of the main line at any
point five minutes before the regular train
was due at that point according to the time-
table. Campbell was an experienced motor-
man, had been in the company's employ for
several years, and was conversant with iU
rules and its methods of train operation.
On the day he was injured he was the motor-
man in charge of a special train running
between Spokane and Coeur d'Alene, made
up of a combined motor and passenger car
and two trailers, and referred to in the
train orders as Motor 6, that being the
number of the motor car. The train was
equipped with Westinghouse air brakes.
After several trips between the termini, it
was at Coeur d'iUene about 4:30 o'clock in
the afternoon, ready to sUrt for Spokane
when ordered to dq so. Regular train No.
20 was about due to arrive. Under orders
presently to be mentioned, the nature of
which was in dispute, Campbell started his
train west from Coeur d'Alene, and had pro*
ceeded some distance when he disoovered a
train approaching on the same track from
the opposite direction. Upon seeing this,|
he applied th« brakes, without sueoess, and'
llSl
409-602
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
there was a collision, in which he received
serious personal injuries. The train with
which he collided was regular No. 20.
His complaint in the action counted upon
two grounds of recovery: (a) That the
company, through its agents and employees,
negligently instructed him to proceed with
his train from C<eur d'Alene to Spokane,
and to meet and pass No. 20 at the town
of Alan, a station west of the point of col-
lision; and (b) that the collision was di-
rectly due to the failure of the company to
furnish him with a motor and train sup-
plied with proper air brakes [500] in
working condition. The action was tried
before the district court and a jury, when
evidence was introduced to the following
effect:
Campbell testified that having arrived in
Cceur d' Alene with his train about 4:20 p.
ic., and brought it into position to return to
Spokane, he received through the conductor,
Whittlesey, orders both written and oral
for the running of the train; that the writ-
ten order said that "motor 5 would run
special Cceur d'Alene to Spokane and would
meet Ntunber 20 at Alan;" that when the
written order was received Campbell was
in his cab, ready to start, and that the
conductor, on delivering the order to him,
said: ''All right, go ahead; get out of
town.'' Campbell was unable to produce the
written order. If its contents were as he
testified, he was justified in at once leaving
Cceur d'Alene and running to Alan, the
order giving him a right of way over all
trains to that point. But defendant's evi-
dence was to the effect that the written
order actually read: "Motor 5 will run
spl. C. d'Alene to Spokane, meet spl. 4 east
at Alan." Campbell admitted that if this
was in fact the order, it did not authorize
him to leave Cceur d'Alene before No. 20
came in, for it made no mention of that
train, and did not supersede the right given
to it by rules and time-table. Nor was it
contended in his behalf that the conductor's
verbal order could in any way modify the
written order. It appeared that there was
a land registration in progress at Cceur
d'Alene, and because of the resulting rush of
travel bicoming trains stopped at the west
end of the yard and went on a Y switch,
where the tniin was turned and then backed
down to the Cceur d'Alene station, while
trains ready to leave Cceur d'Alene, upon
the arrival of an incoming train, would
run to the end of the yard, between the legs
of the Y, wait there for the incoming train,
anit pull out as soon as it headed in on the
Y. Whittlesey testified that he intended the
train to go to the Y and [501] wait there
for No. 20. Because, as Campbell testified,
his orders were to go to Alan to meet No.
11S2
20, he did not stop at the Y. He testified
that soon after passing this point, and while
running at about 30 miles per hour (there
was a slight descending grade), he saw an
east-bound train (it was proved to be No.
20), coming on the same track at a distance
which, from his testimony and that of
others, might have been fotmd to be up-
wards of 800 feet. He immediately shut
off the power, and then "dynamited her,"
that is, threw his air brake into emergency
so as to apply the air pressure upon the
train brakes to the full capacity. He testi-
fied in effect that the brakes took hold
properly, and held for approximately 35 or
40 feet, when the air released (another wit-
ness said it "leaked off"), and after that
there was nothing he could do to stop the
train except to reverse, which he endeavored
to do but without success. There was no
hand brake. He testified that if the air
brakes had worked properly he could have
stopped his train and avoided a collision;
that when they took hold they reduced the
speed to about 20 miles per hour; that when
released the train shot forward at approxi-
mately 18 or 20 miles an hour; "then I
stopped it a little bit with my reverse, so
that at the moment of collision I think we
were going about 15 miles an hour." No.
20 meanwhile had been brought almost, if
not quite, to a stop.
Under instructions from the U'ial co^t
the jury, besides reuming a general ver-
dict, which was in favor of the plaintiff,
with $7,500 damages, made three special
findings in writing: (1) That Campbell,
before leaving Cceur d'Alene, received a
train order reading as follows: "Motor 5
will run Spl. C. d'Alene to Spokane, meet
special 4 east at Alan;" (2) that the air
brakes on .Campbell's train immediately be-
fore the collision were insufficient to enable
him to control the speed of the train; (3)
that CTampbell's leaving Cceur d'Alene in vio-
lation of [502] his orders was the proxi-
mate cause of the accident. There was a
motion for judgment in favor of defendant
on the special findings notwithstanding the
general verdict, which was denied, and it is
to this ruling as well as to certain instruc-
tions given and refused to be given that the
assignments of error are addressed.
The general verdict and the special find-
ings were taken pursuant to the state prac*
tice prescribed by certain sections of the
Code, permitting the trial judge to instruct
tl^e jury, if they render a general verdict,
to find upon particular questions of fact, to
be stated in writing, and providing that
'Sehen a special finding of facts shall be in-
consistent with the general verdict, the
former shall control the latter, and the
court shall give judgment accordingly." 1
241 U. 8*
1916.
SPOKANE ft I. £. R. CO. y. CAMPBELL.
502-504
Rem. ft Bal. Anno. Code, §§ 364, 365. The
rule established by decisions of the supreme
court of the state is that where the general
yerdict and the special findings can be har-
monized by taking into consideration the
entire record of the cause, including the evi-
dence and the instructions to the jury, and
construing it liberally for that purpose, it
is the duty of the court to harmonize them ;
and that where a special finding ia suscep-
tible of two constructions, one of which will
support the general verdict and the other
will not, that construction shall be adopted
which will support the general verdict. Pep-
perall y. City Park Transit Co. 15 Wash. 176,
180, 183, 45 Pac. 743, 46 Pac. 407; Mercier
▼. Travelers' Ins. Co. 24 Wash. 147, 153,
154, 64 Pac. 158; McCorkle v. Mallory, 30
Wash. 632, 637, 71 Pac. 186; Crowley v.
Northern P. R. Co. 46 Wash. 85, 87, 88,
80 Pac. 471; Sudden ft Christenson v.
Morse, 55 Wash. 372, 375, 104 Pac. 645;
Cameron v. Stack-Gibbs Lumber Co. 68
Wash. 539, 544, 123 Pac. 1001.
Whether, under the conformity act (Rev.
Stat. § 914, Comp. Stat. 1913, § 1537), the
trial court was required to adhere to the
state practice governing the effect of the
general verdict and the special findings may
not be free from doubt. See Nudd v. Bur-
rows, 91 [503] U. S. 426, 441, 23 L. ed. 286,
290; Indianapolis ft St. L R. Co. ▼. Horst,
03 U. S. 291, 300, 23 L. ed. 898, 901, 7 Am.
Neg. Cas. 331; United States Mut. Acci.
Asso. V. Barry, 131 U. S. 100, 119, 120, 33
L ed. 60, 66, 9 Sup. Ct. Rep. 755; Lincoln
y. Power, 151 U. S. 436, 442, 38 L. ed. 224,
227, 14 Sup. Ct. Rep. 387; £z parte Chat-
eaugay Ore ft Iron Co. 123 U. S. 544,
554, 32 L. ed. 508, 511, 9 Sup. Ct. Rep. 150;
United States v. United States Fidelity ft G.
Co. 236 U. S. 512, 529, 59 L ed. 696, 704,
35 Sup. Ct. Rep. 298; Bond v. Dustin, 112
U. S. 604, 609, 28 L. ed. 835, 836, 5 Sup.
Ct. Rep. 296; Glenn v. Sumner, 132 U. S. 152,
156, 33 L ed. 301, 10 Sup. Ct. Rep. 41;
Central Transp. Co. v. Pullman's Palace
Car Co. 139 U. S. 24, 40, 35 L. ed. 55, 61,
11 Sup. Ct. Rep. 478; Knight v. Illinois C.
R. Co. 103 C. C. A. 514, 180 Fed. 368, 372.
The court of appeals held (133 C. C. A.
370, 217 Fed. 523) that the Federal courts
are not bound by local rules of practice
with respect to submitting special findings
along with a general verdict, or with re-
spect to interpreting such verdicts; and
that in this case it must be determined as
matter of law, and without reference to the
testimony, whether the special findings en-
titled defendant to judgment notwithstand-
ing the general verdict.
We find it unnecessary to decide the ques-
tioa of practice, and laying aside all tech-
Aiealities will aastune, in favor of plnintiff
•• Xi. ed.
in error, that the verdict is to be inter-
preted according to the local rule, — that is,
by reading the special findings in the light
of the issues and the evidence, but in the
light also of the general verdict, so as to
arrive at the true intent and meaning of
the jury. So considered, the findings estab-
lish that there was no negligence on the
part of the company in giving Campbell his
rimning orders; that he received the order
to meet Special 4 east at Alan, which, ac-
cording to the admitted effect of the rules
of the company, meant that he should not
leave Cceur d'Alene until the arrival of regu-
lar No. 20; that he left Canr d'Alene in
disregard or violation of his orders, and
that this was "the proximate cause" of the
accident. At the same time, the special find-
ings establish that the air brakes on his
train immediately before the collision were
insufficient to enable him to control the speed
of the train. And the general verdict, so far
as [504] it is supported by the evidence,
must be taken as establishing every other
fact in issue, not eliminated by the instruc-
tions of the trial court, that may be neces-
sary to sustain the recovery. To quote from
the brief of plaintiff in error: "The special
findings establish that the general verdict
was based solely upon the theory of negli-
gence in the air-brake equipment of the
train." But the general verdict, interpreted
in the light of the instructions given by the
trial court to the jury, means not merely
that the braking equipment was defective,
but that this was a proximate cause of the
collision. The instruction upon this point
was: "If . . . you find from a pre-
ponderance of the testimony that the air
brakes on the car and train operated by the
plaintiff were defective and out of repair
at and immediately prior to the time of
the collision, and that the defective condi-
tion of the air brakes was the direct and
proximate cause of the collision, or contrib-
uted directly and proximately to the colli-
sion, and to the injury to the plaintiff, your
verdict will be for the plaintiff. . . .
And before you can return a verdict for
the plaintiff based on the allegation that
the brakes were defective and out of repair,
you must be satisfied from a preponderance
of the testimony not only that the brakes
were in fact defective or out of repair, but
that their defective condition was the direct
or proximate cause of the collision, as I
have defined that term to you." It is true
that other parts of the charge indicate that
the trial court entertained the view that
the proximate cause must be either Camp*
beirs disobedience of orders or the defective
air-brake equipment, and that these two
things could not concur as proximate cauiet.
But he did not bind the jury by instmctiona
11^^
604-507
SUPBEME COURT OF THE UNITED STATES.
Got. Tbmm,
to that effect; and yiewing the general ver-
dict and the special findings together, in
the light of the issues, the eyidence, and the
entire charge, it is evident, we repeat, that
the jury must have foimd that the defective
air brakes were a proximate cause of [505]
the collision. In view of the testimony al-
ready mentioned, to the effect that Camp-
bell, after discovering train No. 20, would
have had ample time to avoid the collision
had the train-brake equipment been ade-
quate, the conclusion of the jury waa in
this respect not unreasonable.
It is insisted that there was no evidence
that the provision of the safety appliance
act respecting train brakes was violated. It
is, of course, settled, that if the equipment
was in fact defective or out of repair, the
question whether this was attributable to
the company's negligence is inmiaterial. St.
Louis, I. M. & S. R. Co. v. Taylor, 210 U.
S. 281, 294, 52 L. ed. 1061, 1067, 28 Sup.
Ct Rep. 616, 21 Am. Neg. Rep. 464; Chi-
cago, B. k Q. R. Co. V. United States, 220
U. S. 659, 575, 55 L. ed. 582, 688, 31 Sup.
Ct. Rep. 612; Texas ft P. R. Co. v. Rigsby,
241 U. S. 33, 43, ante, 874, 878, 36 Sup. U.
Rep. 482. Hence the argument is that, ac-
cording to all of the evidence, the equipment
was not defective or out of repair. It ap-
peared without dispute that it consisted of
the Westinghouse standard automatic air
brake, such as is in general use throughout
the country upon passenger trains. A wit-
ness in defendant's employ testified that
shortly before Campbell took the train out
from Cceur d'Alene on the trip in question
he inspected the air brakes and found them
in perfect order. But there was much evir
dence besides that of Campbell himself, to
the effect that when he applied the emer-
gency, the brakes took hold and then leaked
off, so as to release the brakes. The jury
was warranted in finding from the testi-
mony as a whole that Campbell properly
applied the air when 600 feet or more from
the place where the collision occurred, and
that the brakes refused to work. Expert
witnesses called by defendant testified in
effect that the train could have been stopped
inside of 300 feet if the brakes had been
in proper order. The air-brake equipment
was wrecked in the collision, so that there
was no explanation of the cause of its fail-
ure to operate properly; but it was a rea-
■onable inference that there was some de-
fect or want of repair in the valves or pack-
ing.
[506] Next, it is insisted that Camp-
bell's train was not such as the safety ap-
pliance acta require to be equipped with air
brakes. In Spokane ft I. E. R. Co. ▼. United
States, decided June 5, 1916, 241 U. S. 344,
ante, 1087, 86 Sup. Ct Rep. 668, we held that
11S4
this same railroad, with respect to its inters
urban traffic, is subject to the provisions ol
those acts respecting automatic couplers,
and hand holds or grab irons at the ends of
the cars. In that case the particular reli-
ance of the company was upon the conclud-
ing cause of the 1st section of the 1903
amendment (32 Stat, at L. 943, chap. 976,
Comp. SUt 1913, § 8613), which ex-
cepts trains, cars, etc., "which are used
upon street railways.** In the present
case a distinction is sought to be drawn
between steam and electric roads, the
argument being that the provision re-
quiring power brakes, when read in oon-
nection with the context, indicates that
trains drawn by steam locomotives and
operated by a locomotive engineer were
alone within the contemplation of Congress.
It is true that in the act of 1893 the provi-
sion was closely associated with the men-
tion of a locomotive engine as the motive
power; the words of § 1 being: "It shall
be unlawful for any common carrier engaged
in interstate commerce by railroad to use
on its line any locomotive engine in moving
interstate traffic not equipped with a power
driving-wheel brake and appliances for
operating the train-brake system, or to run
any train in such traffic [after a specified
date] that has not a sufficient number of
cars in it so equipped with power or train
brakes that the engineer on the locomotive
drawing such train can control its speed
without requiring brakemen to use the com-
mon hand brake for that purpose." Section
6, prescribing penalties, also uses the words
**locomotive engine" and "locomotives." But
the 1903 amendment, which, as frequently
pointed out, was enacted for the purpose of
enlarging the scope of the act (Southern
R. Co. v. United States, 222 U. S. 20, 26,
56 L. ed. 72, 74, 32 Sup. Ct Rep. 2, 3 N. C.
C. A. 822; Southern R. Co. v. Crockett, 234
U. S. 725, 735, 58 L. ed. 1564, 1568, 34 Sup.
Ct Rep. 897), in its 1st section declares
[507] that the provisions relating to train
brakes (among others) shall be held to ap-
ply to "all trains, locomotives, tenders, cars,
and similar vehicles used on any railroad
engaged in interstate commerce . • . and
to all other locomotives, tenders, cars, amd
similar vehicles used in connection there-
with," subject to exceptions not now perti-
nent The 2d section declares that whenever
any train is operated with power or train
brakes, "not less than fifty per centum of
the cars in such train shall have their
brakes used and operated by the engineer
of the locomotive Rawing such train." Of
course, an important object of having a
train equipped with a system of brakes un-
der the single control of the engineer Is to
permit of a prompt and effective redueticta
141 U^S.
1915.
SPOKANE & I. E. R. 00. T. OAMPBELU
507-4M)t
of speed when the man driving the train is
notified of danger. The importanioe of this
is precisely the same, whatever be the mo-
tive power; and, in view of the beneficial
purpose of the act and the evident intent
of Congress to enlarge its scope so far as
necessary to guard against the dangers in
view, the term "similar vehicles'' must be
held to have the effect of bringing electric
motors and trains drawn by them within the
provision respecting power or train brakes.
The very exemption of trains, cars, and lo-
comotives "used upon street railways" in-
dicates that electric cars were in contempla-
tion. And see Omaha k C. B. Street R. Co.
V. Interstate Commerce Commission, 230 U.
8. 824, 337, 57 L. ed. 1501, 1506, 46 L.RJI.
(NJ3.) 385, 33 Sup. Ct. Rep. 890; Kansas
City Western R. Co. v. McAdow, 240 U. S.
51, 54, ante, 520, 522, 36 Sup. Ct Rep. 252.
It is said that, conceding the power-brake
provision applies to electric trains, the duty
imposed was not owed to Campbell un-
der the special circumstances established
by the jury's findings. The argument is
that the purpose of the brake require-
ments is to place control of the train in
the hands of the engineer so that the
safety of passengers and employees may
be conserved, not that the engineer should be
able to escape injury from peril to which
he had wrongfully exposed himself; and
that Campbell cannot [508] bring him-
self within the class intended to be protect-
ed by pointing out that the situation created
by his disobedience of orders was one that
Congress contemplated as possible and the
consequences of which it desired to guard
against. This gives altogether too narrow
a meaning to the safety appliance act, and
is inconsistent with the provisions of the
employers' liability act, as we shall see.
It is most earnestly insisted that the find-
ings established that Campbell was not in
the course of his employment when he was
injured, and consequently that judgment
could not properly be entered in his favor
vpcfn the cause of action established by the
general verdict. This invokes the doctrine
that where an employee volimtarily and
without necessity growing out of his work
abandons the employment and steps entire-
ly aside from the line of his duty, he sus-
pends the relation of employer and employee,
and puts himself in the attitude of a stran-
ger or a licensee. The oases cited are those
where an employee intentionally, has gone
outside of the scope of his employment, or
departed from the place of duty. The pres-
ent case is not of that character; for Camp-
bell, as the jury might and presumably did
find, had no thought of stepping aside from
the line of his duty. From the fact that
he disregarded and in effect violated the
60 Ii. ed.
order as actually communicated to him, it»
of course, does not necessarily follow that
he did tills wilfully. The jury was not
bound to presume — it would hardly be rea-
sonable to presume — ^that he deliberately
and intentionally ran his train out upon a
single track on which he knew an incoming
train with superior rights was then due.
However plain his mistake, the jury reason-
ably might find it to be no more than a mis-
take attributable to mental aberration, or
inattention, or failure for some other rea-
son to apprehend or comprehend the order
communicated to him. In its legal effect
this was nothing more than negligence on
his part, and not a departure from the
course of his employment.
[509] To hold otherwise would have
startling consequences. The running of
trains on telegraphic orders is an everyday
occurrence on every railroad in the country.
Thousands of cases occur every day and
every night where a failure by conductor or
engineer to comprehend or to remember the
message of the train despatcher may endan-
ger the lives of employees and passengers.
We are not aware that in any case it has
been seriously contended that because an
engineer violated the orders, he went out-
side of the scope of the employment. If he
did so, in the sense of absolving the em-
ployer from the duty of exercising care for
his safety, it is not easy to see upon what
principle the employer's liability to passen-
gers or to fellow employees for the conse-
quences of his negligence could be main-
tained. The unsoundness of the contention
is so apparent that further discussion is
unnecessary.
Plaintiff in error refers to the fact that
the wreck occurred in Idaho, and cites two
sections of the Criminal Code of that state,
one rendering a wilful violation or omission
of duty on the part of one in Campbell's
position, whereby human life or safety is
endangered, punishable as a misdemeanor;
the other making wilful or negligent con-
duct which causes a collision of trains, and
the resulting death of a human being, a
criminal offense. 2 Idaho Rev. Codes §§
6926, 6909. Whether Campbell was or is
punishable criminally under either of these
sections we are not caUed upon to say. But
his right to recover against his employer
depends upon the acts of Congress, to which
all state legislation affecting the subject-
matter must yield. Texas k P. R. Co. ▼.
Rigeby, 241 U. S. 33, 41, ante, 874, 878, 36
Sup. Ct. Rep. 482.
Upon the whole case, we have no dif-
ficulty in sustaining his right of ae-
tion under the employers' liability act. That
act (§ 1, 35 Stat, at L. 65, chap. 149, C
SUt. 1913, S 8657) imposes a liabi?
509-511
SUPREME COURT OF THE UNITED STATES.
Oor. Tkm,
injury to an employee "resulting in whole
or in part from the negligence of any of the
officers^ agents, or employees of such carrier,
or by reason of any defect or insufficiency
due [510] to its negligence in its cars, en-
gines, appliances, ... or other equip-
ment." As was held in San Antonio k A.
Pass. R. Co. V. Wagner, decided June 5,
1916, 241 U. S. 476, ante, 1110, 36 Sup. Ct.
Rep. 626, a yiolation of the safety appliance
act is "negligence" within the meaning of
the liability act. And by the proviso to g 3
of the latter act, no employee injured or
killed shall be held to have been guilty of
contributory n^ligence in any case where a
violation of the safety appliance act "oon-
tributed to the injury or death of such em-
ployee." It is too plain for argument that
under this legislation the violation of the
safety appliance act need not be the sole
efficient cause, in order that an action may
lie. The circuit court of appeals (133 C.
C. A. 370, 217 Fed. 524) held that the ele-
ment of proximate cause is eliminated where
concurring acts of the employer and em-
ployee contribute to the injury or death of
the employee. We agree with this, except
that we find it unnecessary to say the effect
of the statute is wholly to eliminate the
question of proximate cause. But where, as
in this case, plaintiff's contributory negli-
gence and defendant's violation of a provi-
sion of the safety appliance act are concur-
ring proximate causes, it is plain that the
employers' liability act requires the former
to be disregarded.
The assignments of error that are based
upon the instructions given and refused to
be given to the jury raise no question other
than those which have been disposed of.
Judgment affirmed.
[5111 JOHN BINGHAM, Appt.,
V.
JOHN J. BRADLEY, United States Msjshai
for the Northern District of Illinois.
(See S. C. Reporter's ed. 511-518.)
Foreign extradiUon — BulBclency of
complaint — presumption.
1. Extradition to Canada on a charge
of receiving and retaining money, knowing
it to have been stolen, will not be denied
because the Canadian statute treats the re-
ceiving and retaining as distinct offenses,
connecting them with the disjunctive "or,"
where, properly interpreted, the complaints
charge the commission of both offensei,
since, if only one offense, that of receiving
the stolen property, is made extraditable by
the treaties with Great Britain of August 9,
1842 (8 Stat, at L. 572), art. 10, and July
12, 1889 (26 Stat, at L. 1508), art. 1, this
does not render the detention of the accused
under the extradition warrant unlawful, as
it is not to be presumed that the demand-
ing government will, contrary to art. 3 of
the latter treaty, suffer him to be tried or
punished for any offense other than that for
which he is surrendered.
(For other cases, see Extradition, lY. a; ▼.,
in Digest Sup. Ct 1908.]
Bztradition — sufficiency of complaint
—place of crime.
2. The British Consul General's com-
plaint in proceedings to extradite the ac-
cused to Canada sufficiently charges that
the crime was committed in Canada, where
it avers that the accused was a fugitive
from justice from the district of Montreal,
in that Dominion, and that the offense with
which he is charged is an offense within the
extradition treaties between the United
States and Great Britain, and states that
deponent's information is based upon au-
thenticated copies of a warrant issued by
the police magistrate of Montreal, and of
the complaint upon which that warrant was
issued, and upon certain depositions taken
in Montreal, submitted and to be filed with
the complaint in the extradition proceedings.
[For other cases, see Extradition, lY. a, ia
Digest Sup. Ct. 1908.]
Habeas corpus — extradition — evi-
dence.
3. The finding of the United SUtas
Commissioner in foreign extradition pro-
ceedings, that the evidence sustained tiie
charge, cannot be reversed on habeas corpus
if he acted upon competent and adequate evi-
dence, and had jurisdiction of the subject-
matter and of the accused, and the offense is
made extraditable by the treaty with the
demanding government.
[For other eases, see Habeas Corpus, IL b. In
Digest Sup. Ct. 1908.]
Foreign extradition — evidence — ex
parte affldavita.
4. Properly authenticated affidavits are
not rendered inadmissible in proceedings for
t^e extradition to Canada of a fugitive from
justice, because such affidavits were taken
69 parte in the absence of the accused, and
without opportimity for cross-examinatioa,
since the whole object of the extraditi<A
treaty with Great Britain of August 9, 1842
(8 Stat, at L. 572), would be defeated Iff
construing as requiring the demanding gov-
ernment to send its citizens abroad to in-
stitute the proceedings the provisioB of art
10 of the treaty, that extradition ahnXl <mly
be had "upon sudi evidence of criminality as,
according to the laws of the place where
NoTK. — On habeas corpus to review extra-
dition proceedings — see notes to State v.
Jackson, 1 L.RA. 873; Ex parte Davis, 12
LJtA.(N.S.) 226; Com. ex rel. Flower ▼.
Superintendent of County Prison, 21 L.R.A.
{N,8.) 939; Wisener ▼. Burrell, 34 LJUL
JIS6
(N.S.) 755, and Oteiza y Cortes t. Jacobus,
34 L. ed. U. S. 464.
On practice and procedure in extradition
cases — see notes to Cook ▼. Hart, 86 L. ed.
U. S. 934, and lasigi T. Van de Carr, 41
L. ed. U. S. 1046.
S41 U. B.
1»U. BD.'OBAU T. BRADLEY.
tii« fugitive or pcTMn m ehftrged ah*!! be t. Bil^, 116 U. S. SO, 80 L. ed. 644, S Sup.
fcmiid, would justify bis Appreneoaion and Ct. Rep, 291; lUinois es rel. MeNiohoU t.
vommibiient for trial if the crime or offeaee Teme, 207 U. S. 100, B2 L. ed. 121, 28 Sup.
had there been commuted," and of U. B. ReT. Q^^ ^„ gg McNamara t. Henkel, 228 U.
SUt^ S 6271. Cpmp. 8UL 1013, | 10,11]^ g „„, K3, 67 L. ed. 330. 332. 33 8«p. CL
making depoutioni, warrants, or other n. 1411
papera, or copies thereof, admiuible In e*i- Si , , , , „,, . , , , , . ,
dence at the hearing H properly authen- The doctrine in niinoia (which must rula
ticated so ae to entitle them to be receiTed here) la that proof of poeaession of atolen
for similar purposes bj the tribunals of the goods, shortly after the eominisalon of the
foreign country, and declaring that the theft, may give rise to the presumption
eertilicate of the principal diplomatic or that the party haTiiw the goods is the
eoneular offlco: of the United States, resi- thief; but cannot, by itaeU, gire rise to the
dent m the fore^a country, shaU be proof p,,,uB»ption that he receiTsd the goods
«f such authentication. i._,._i__ ti„„ *„ v. .,„.„ t,„* j? h.-
[For otber case* Me Extradition, IV. s, in Dl- knowing them to be stolen. But, if the
gnt Sop. Ct. 1908.] party denlea the theft, and falls to giTs
TNo 602 1 "'^ satisfactory explanation of how the
goods cams into his possession, luch po*-
Submitted April 4, 1616. Decided June 5, tewion, considered in connection with these
lQig_ other facts, may give rise to the presump-
tion that he received the goods, Imowing
APPEAL from the District Court of the **>em to be stolen; and the Federal rule
United SUtes for the Northern Dietrict »«"8 to be snbetantially the same,
of Illinois to inquire into a detention under Qunther t. People, 130 IL. S26, 28 N. E.
a warrant of commibnent Usued in proceed- "01; McNamara v. Heakel, 226 U. B. 520,
Inge to extradite a fugitiv, from justice to ^^*-J^-" ^ «>■ ^^- ^^^' '^- ^3 Sop-
* foreign country. Affirmed. Ct. Rep. 140.
The facta are stated in the opinion. ^^ °"**' ** ^" ''" ^ "L 1' ^T
sumptum the posBeesion must be shown to
Mr. Wllltam Dillon submitted the cause hare be^ shortly after the theft,
for appellant: Huggias t. People, 136 IlL 243, 26 Am.
In order to make out a case for inter- St. Rep. 367, 20 N. E. 1002; Ounther t.
national extradition, under a treaty with a People, supra; Watta T. People^ 204 Dl.
foreign state, it must appear: 1. That the 233, 68 N. E. 603.
party sought to be extradited is charged Where the charge Is for receiving (the
with having committed an act which is: only extraditable offense anggested by this
(a) punishable as a crime under the law charge and eridence), as diitiiigniBhed from
at the country seeking to extradite; (b) retaining or aiding in conccftling, the eri-
punishable SB a crime under the law of the dence must also tend to show a guilty know]-
country from which extradition is sought; edge at the time of the act of receiving,
(c) extraditable as a crime under the Huggins t. People, supra.
"T"" «' • '"•'/ '"'"^ "'• *"° T"; "•"'■• B<.1"nl« 8. Ml.or, Alroc W.
toe.. 2 Tl,.l ft„„ „,d.,™, oOBpetrat B.lkl.,, CUlr K. More, H^h B. How-
under the treaty and the provisions 01 the . _. , _ ,. ,_ _ ,, _. ... . ..
„ , , . . . ,. ._ 1. LI 1 land, and CoUot W. Bell submitted the
Federn statute, there is probable cause for ' , ,, '
«... - .1. . .1. . i. J i. ■ * J. cause for appellee:
«r,m,tled tks or.». h, ,. „ th.,^ with, j,^,._ ^, ^^ ,ubj«t««tn ..d ol th. «.
which it IB Bouirht to extradite him. 3 ,, , . ... . , , > t .
™. . .. . L J .,v ^k _i tlie treaty, and the magistrate has before
That the party charged with the commls- . . , ,' ., T. u j. - i.-
, , ■ ■ . ■.- t 41. bim Iwal evidence on which to exercise his
Sion of audi crime is a lueitive from the ... .,<_ >,. i.^.^
... ... , , , , " _i_j... iudgioent as to the sumciency ot the facta
jnstice 01 the state seekinir extradition, in ; , ... ... ... . ., .
i. . , . , 1 lu . 1. I .1. to establish the criminality of the accused
the sense, at least: a) that he was in the ... _ . . j-ii 1.1 j . ■
, . . ,.' . ^ ^. ^. . for the purpoeea of extradition, his decision
state seeking extradition at the time the . w ■ _ j ■. u
. L J -.1 J ..L iLi cannot be reviewed on habeas corpus,
orime charged was committed there; (b) . ^^j.^^^^ ^ ^enkel, 226 U. S. 520, 57
Uat he was in the state from^hich extra- •
dition IS sought at the time of the applica- "■ ™- "■'"' "■! °";' "■"•■ "P; ""■
tion for such extradition. ^^ o»>J«»"»' *« the introduction of ths
Wright V. Henkel. 190 U. S. 40, 61, 47 L. "* J™'**' affidavits appearing in the record
•d. 04B, 955, 23 Sup. Ct. Rep. 781, 12 Am. * "o* "«" ^alti^. This method of proving
Crim. Rep. 388; Terlinden v. Ames, 184 U. *• probable guilt of the accused is well
S. 870, 46 L. ed. 634, 22 Sup. Ct. Rep. 484, srtnblished, and in many cases is the only
18 Am. Crim. Rep. 424; Ex parte B^gel, practicable method.
114 U. S. 642, 29 L. ed. 260, 6 Sup. Ct. Rice v. Ames, 180 U. S. 371, 376, 46 L.
JUp. 1148, 6 Am. Grim. Rep. 21B; Roberta ed. 677, 681, 21 Sop. Ct Rep. 406, 12 Am.
•• L. ed. 72 WW
512, 613
SUPREME COURT OF THE UNITED STATES.
Oct. Tibm,
Grim. Rep. 356; Yordi ▼. Nolte, 216 U. 8.
227, 231, 54 L. ed. 170, 172, 30 Sup. Ct.
Rep. 90; Ex parte Schorer, 197 Fed. 67;
Powell ▼. United States, 124 C. C. A. 282,
206 Fed. 400.
Possession and disposition in Canada
being otherwise shown, possession and dis-
position in CSiicago is evidence of knowledge
that the money disposed of in Montreal
was stolen.
Com. V. Phelps, 192 Mass. 691, 78 N. £.
741.
In all prosecutions for receiving stolen
goods, the proof of guilty knowledge must,
in the very nature of things, be in the form
of presumptions drawn from all the attend-
ant circumstances.
Huggins y. People, 135 111. 243, 25 Am.
St. Rep. 357, 25 N. £. 1002; McNamara v.
Henkel, 226 U. S. 520, 524, 57 L. ed. 330,
332, 33 Sup. Ct. Rep. 146; Ex parte
Glucksman, 189 Fed. 1010; Fulton v. State,
8 Ala. App. 257, 62 So. 059; James v. State,
8 Ala. App. 255, 62 So. 897.
An extradition proceeding is not a trial,
and all that is necessary to show to war-
rant extradition is probable cause that the
person accused committed tlie offense.
Glucksman v. Henkel, 221 U. S. 508, 512,
56 L. ed. 830, 833, 31 Sup. Ct. Rep. 704.
Like guilty knowledge, the courts hold
that a jury may find the venue from the
presumptions to be drawn from all the evi-
dence.
Heard v. SUte, 121 6a. 138, 48 S. E. 905 ;
Com. V. Phelps, 192 Mass. 591, 78 N. E.
741; Wills V. People, 3 Park. Crim. Rep.
496 ; Brown v. State, — Tex. Crim. Rep. — ,
59 S. W. 1118; Baker y. SUte, 58 Ark.
513, 25 S. W. 603, 9 Am. Crim. Rep. 455;
People v. Cooper, 58 App. Div. 532, 69 N.
Y. Supp. 257; United States v. Britton, 2
Mason, 464, Fed. Cas. No. 14,650.
Mr. Justice Pitney delivered the opin-
ion of the court:
This is an appeal from a final order of
the district court, denying an application
for a writ of habeas corpus in an extradi-
tion case. The facts are to be gathered
from the petition for the writ and the ex-
hibits therein referred to and made a part
of it, which include a sworn complaint by
the British Consul General at Chicago, ap-
plying on behalf of the government of the
Dominion of Canada for the extradition of
appellant to Montreal, certain ew parte affi-
davits taken in Montreal, and a complaint
made and warrant issued against appellant
in that city, and abstract of the oral testi-
mony taken before the United States Com-
missioner at Chicago, and the warrant of
commitment issued by the Commissioner,
under which appellant is held in custody.
list
The complaint of the Consul General
forth on information and belief that i^
pellant, in the month of February, 1915,
was guilty of the crime of receiving and re-
taining in his possession money to tiM
amount of $1,500 in bills of the Bank of
Montreal, the property of that bank, know-
ing the same to have been stolen; that a
warrant has been issued by the police magis-
trate of the city of Montreal for the
apprehension of appellant for the crime mem-
tioned; that appellant is guilty of the in-
dictable offense of receiving money knowing
it to have been stolen, and is a fugitive
from justice from the district of Montreal,
province of Quebec, and Dominion of Can-
ada, and is now within the territory of the
United States; that the offense of which
he is charged is an offense within the treaties
between the United States and Great
Britain; and that deponent's information is
based upon duly authenticated [513] copies
of a warrant issued by the police magistrate
of Montreal and. of the complaint or in-
formation upon which that warrant was
issued, and upon certain depositions of wit-
nesses submitted to be filed with the pres-
ent complaint. The reference is to the
Montreal affidavits, which set forth in sub-
stance that in the month of September, 1911,
a branch of the Bank of Montreal at New
Westminister, British Columbia, was broken
into and a large sum of money ($271,721)
stolen from the bank, including a consider-
able number of $5 bills of the Bank of
Montreal, seventy-eight of these being iden-
tified by their numbers; that on February
10, 1915, in the city of Montreal, appellant
purchased a diamond ring from one Eaves,
a jeweler, and paid for it $250, of which
$245 was composed of new Bank of Mon-
treal $5 bills, more than thirty of these
being identified by the numbers as among
those stolen ; that on February 9, 1916, one
Wakefield purchased in Montreal some
travelers' checks, paying for them In part
with fifty new $5 bills of the Bank of
Montreal, of which twenty or more were
identified as being a part of the stolen
money; and that on February 10, 1915,
Wakefield procured from a firm of bankers
in Montreal an exchange of Canadian bills
for American currency, the exchange in-
cluding fifty new $5 bills of the Bank of
Montreal, of which fifteen or more wert
identified as being a part of those stolen.
Appellant having been apprehended, a
hearing was had before the United States
Commissioner, at which the above-mentioned
documents were introAiced and testimony
was given tending to show that appellant
and Wakefield were together in Montreal on
the 9th and 10th of February, 1916, co-
operating in the exchange of the stolen bills
941 U. 8.
1915.
BIKGHAM V. BRADLEY.
S18-616
for travelerB* checks and United States
enrrency; and that on the evening of Feb-
ruary 10th they left Montreal together in a
manner indicating an intent to evade detec-
tion, and went to Chicago, where almost
[614] immediately they began systematic
efforts to procure the exchange of Bank of
Montreal bills for United States currency.
The Commissioner deeming the evidence
sufficient to sustain the charge, the warrant
of commitment was issued, the proceedings
and evidence being certified in due course to
the Secretary of State, pursuant to § 6270,
Rev. SUt. (Comp. Stat. 1013, § 10,110).
Under the applicable provisions of our
treaties with Great Britain (treaty of
1842, art. 3 0, 8 Stat, at L. 672, 676 ; treaty
of 1880, art 1, 26 Stat, at L. 1608, 1609),
there is included among the extraditable
offenses that of "receiving any money, valu-
able security, or other property, knowing the
same to have been embezzled, stolen, or
fraudulently obtained."
In behalf of appellant it is objected that
while the Criminal Code of Canada defines
as indictable offenses (a) the receiving or
retaining in possession anything obtained
by any offense punishable on indictment,
knowing it to have been so obtained, and
(b) the receiving or retaining in possession
any money or valuable security or other
thing, the stealing whereof is declared to be
an indictable offense, knowing the same to
have been stolen, the offense charged in the
complaint filed and in the warrant issued
in Montreal and in the Consul General's
complaint is that of receiving and retain-
ing in his possession money, etc., knowing
it had been stolen. The argument is that
the Canadian statute treats receiving and
retaining as distinct offenses, connecting
them with the disjunctive "or," while the
complaints treat the two acts as together
constituting one offense. Properly inter-
preted, however, they charge the commission
of both offenses; and if only one, that of
receiving, etc., is extraditable by the treaty,
this does not render appellant's detention
unlawful, since it is not to be presumed
that the demanding government will suffer
him to be tried or punished for any offense
other than that for which he is surrendered,
in violation [515] of article 3 of the treaty
of 1889. Kelly v. Griffin, 241 U. S. 6, 16,
ante, 861, 864, 36 Sup. Ct. Rep. 487.
It is insisted that the Consul General's
complaint does not allege that the offense
was committed in Canada, that the evidence
relied upon raises no presumption that ap-
pellant committed anywhere the offense of
receiving stolen property knowing it to be
stolen (the offense specified in the treaty),
and that it raises no presumption that ap-
60 li. ed.
pellant committed the offense in Montreal
or anywhere in the Dominion of Canada.
The criticism upon the complaint is un-
substantial. It is fairly to be inferred from
what is stated that the crime was committed
in Canada, and it is distinctly averred that
appellant is a fugitive from justice from
the district of Montreal, in that Dominion,
and that the offense with which he is
charged is an offense within the treaties
between the United States and Great Brit-
ain. Besides this, it is stated that depo-
nent's information is based upon authenti-
cated copies of a warrant issued by the
police magistrate of Montreal, and of the
complaint upon which that warrant was is-
sued, and upon certain depositions submitted
and to be filed with the present complaint;
the depositions being those taken in Mon-
treal. It is clear that the intent was to
charge that the offense was committed in
Canada.
As to the effect of the evidence: Tlie
Commissioner doubtless held that the fact
of possession, taken in connection with the
other facts of the case, raised a presumption
either that appellant was a party to the
burglary or that he afterwards obtained
possession of the bills with guilty knowl-
edge. Appellant disputes the inference,
and, assuming it to be well founded, insists
that there is nothing in the law of proba-
bilities to sustain an inference that "pos-
session by a man during a visit of a few
days to Montreal of goods that were stolen
.more than three years previously in British
Columbia makes it more probable [516]
that he received the goods in Canada than
that he received them in the United States."
There is nothing in the evidence to require
the inference that appellant was paying a
brief visit to Montreal. It appears that he
has a brother who is in business in Chicago,
and that he himself was in that city in the
summer of 1914, and, on three occasions,
with intervals of several weeks, exchanged
Canadian money there for United States
currency. This is consistent with the in-
ference that he was then exchanging part
of the stolen money, but does not require the
inference that he had a fixed place of abode
in Chicago. The stolen bills that were in
appellant's possession in Montreal in Feb-
ruary, 1916, are not shown to have been re-
moved from the Dominion after the time
they were stolen from the bank in Septem-
ber, 1911. As it was a reasonable inference
— they being "new bills" — ^that they had
never before been used in exchange, and be-
cause so many of them were found together
in the hands of appellant and his confeder-
ate three and a half years after the burg-
lary, it was further inferable that they
had been retained during the intervening
61&-618
8UPREME COURT OF THE UNITED STATES.
Oct. TkBM,
period with the purpose of awaiting Buoh
opportunity for passing them as might come
from relaxed vigilance on the part of the
authorities; and since the Dominion of
Canada is the natural and convenient mar-
ket for bills of the Bank of Montreal, it
was inferable that the bills had not been
taken out of the Dominion since the time
they were stolen; and, if not, it followed
that appellant must have been within the
Dominion when he received them. That
they were received with knowledge that
they had been stolen, might be inferred from
the fact of the burglary, coupled with the
suspicious circumstances (only a part of
which we have referred to) attending the
efforts to exchange them for other forms of
property.
The Commissioner deemed the evidence
sufScient to sustain the charge (Rev. Stat.
§ 5270, Comp. Stat. 1013, § 10,110), and
since he had jurisdiction of the subject-mat-
ter and of the accused, and [517] the of-
fense is within the treaty, his finding can-
not be reversed on habeas corpus if he acted
upon competent and adequate evidence. Mc-
Namara v. Henkel, 226 U. S. 520, 523, 57
L. ed. 330, 332, 33 Sup. Ct. Rep. 146.
It is insisted that the Montreal affidavits,
essential to show that the alleged offense
was committed within the Dominion, were
incompetent because taken ew parte, in the
absence of appellant, and without opportun-
ity for cross-examination. The treaty of
1842 provides in article 10 that extradition
shall only be had "upon such evidence of
criminality as, according to the laws of the
place where the fugitive or person so
charged shall be found, would justify his
apprehension and commitment for trial, if
the crime or offense bad there been com-
mitted." Sec. 6271. Rev. Stat. (Comp. SUt.
1913, § 10,111), as amended by act of Au-
gust 3, 1882, §§ 5 and 6 (chap. 378, 22 SUt.
at L. 216, Comp. Stat. 1913, | 10,116),
provides that any depositions, warrants, or
other papers or copies thereof shall be ad-
missible in evidence at the hearing if prop-
erlv autlicnticated so as to entitle them to
be received for similar purposes by the tri-
bunals of the foreign country, and that the
certificate of the principal diplomatic or
consular officer of the United States resi-
dent in the foreign country shall be proof
of such authentication. The Montreal affi-
davits, complaints, warrant, etc., are prop-
erly authenticated in accordance with this
provision. It is one of the objects of §
5271 to obviate the necessity of confronting
the accused with the witnesses against him;
and a construction of this section, or of
the treaty, that would require the demand-
ing government to send its citizens to an-
other country to institute legal proceedings,
il40
would defeat the whole object of the treaty.
Rice V. Ames, 180 U. S. 971, 375, 45 L. ed.
577, 581, 21 Sup. Ct. Rep. 406, 12 Am. Crim.
Rep. 356; Yordi v. Nolte, 215 U. S. 227,
231, 54 L. ed. 170, 172, 30 Sup. Ct Rep. 90.
All of the objections savor of technicality.
And since the jurisdiction of the Commis-
sioner is clear, and the evidence abundantly
sufficient to furnish reasonable ground for
the belief that appellant has committed with-
in [518] the Dominion of Canada a crime
that is nn offense under the laws of the
Dominion, as well as under those of Illi-
nois (Jones k A. Anno. Stat. [111.] | 3892),
and is covered by the terms of the treaty,
and that he is a fugitive from justice, a
fair observance of the obligations of the
treaty requires that he be surrendered.
Glucksman v. Henkel, 221 U. S. 508, 512,
55 L. ed. 830, 833, 31 Sup. Ct. Rep. 704.
Final arder affirmed.
NEW YORK LIFE INSURANCE COM-
PANY, Petitioner,
V.
EFFIE J. GOULD DUNLEVY.
(See S. C. Reporter's ed. 518-523.)
Judgment — jurisdiction — personal
judgment against nonresident — ne*
cessity of service.
A court in which a valid personal
judgment has been obtained on domiciliary
service, though empowered through garnisli-
ment proceedings instituted after the judg-
ment debtor had become a nonresident to
inquire whether she held a valid claim
against a life insurance company, sum-
moned as garnishee, for the surrender value
of a policy which she claimed had been as-
signed to* her, and, if found to exist, to
condemn and appropriate it so far as neces-
sary to discharge the original judgment,
could not, without further personal service,
bind her by the rendition, under an inter-
pleader initiated by the insurance company,
which paid into court the sum due on the
policy, of a judgment that there was no
valid assignment, followed by an order for
Note. — On the protection of a nonresi-
dent creditor a^inst garnishment — see
notes to Illinois C. R. (%. v. Smith, 19
L.R.A. 677; Goodwin v. Claytor, 67 L.RJL
209; Starkey v. Cleveland, C. C. & St L.
R. Co. L.R.A.1915F, 880, and King v. Cross,
44 L. ed. U. S. 211.
On validity of personal judgments ren-
dered upon constructive service of process-^
see note to Moyer v. Bucks, 16 L.R.A. 231.
As to what service of process is sufficient
to constitute due process of law — see note
to Pinney v. Providence Loan & Invest. Co.
50 L.R.A. 577.
241 U. S.
1915.
NEW YORK L. INS. CO. ▼. DUNLEVY.
the payment of the fund in court over to
the insured.
[For other casei. tee Judgment, III. c. 1 ;
Conititotional Law, IV. b, 8, in Digest Sop.
Ct. 1908.]
[No. 290.]
Argued March 14 and 15, 1916. Decided
June 5, 1916.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for the
Ninth Circuit to review a judgment which
affirmed a judgment of the District Court
for the Northern District of California in
favor of plaintiff in an action to recover the
surrender value of a life insurance policy.
Affirmed.
See same case below, 130 C. C. A. 473,
214 Fed. 1.
The facts are stated in the opinion.
Mr. James H. Mcintosh argued the
cause, and, with Messrs. Edward J. Mc-
Cutchen, Warren Olney, Jr., Charles W.
Willard, and J. M. Mannon, Jr., filed a
brief for petitioner:
The trial court should J^aye given the
proceedings in the Pennsylvania court the
same faith and credit accorded them by law
or usage in the courts of Pennsylvania.
Crapo V. Kelly, 16 Wall. 610, 21 L. ed.
430; Hancock Nat. Bank v. Famum, 176 U.
S. G40, 44 L. ed. 619, 20 Sup. Ct. Rep. 606 ;
Harris v. Balk, 198 U. S. 215, 49 L. ed.
1023, 25 Sup. Ct. Rep. 625, 3 Ann. Caa.
1084; Converse v. Hamilton, 224 U. S. 243,
56 L. ed. 749, 32 Sup. Ct. Rep. 415, Ann.
Cas. 1913D, 1292; Michigan Trust Co. v.
Ferry, 228 U. S. 346, 57 L. ed. 867, 33 Sup.
Ct. Rep. 550.
The proceedings in the Pennsylvania
court were regular in every way, and con-
formed to the law and usage of the courts
of Pennsylvania.
Wright V. Southern R. Co. 141 N. C. 164,
53 S. E. 831 ; Michigan Trust Co. v. Ferry,
228 U. S. 346, 57 L. ed. 867, 33 Sup. Ct. Rep.
650; Brownfield v. Canon, 25 Pa. 299; Fish
V. Keeney, 91 Pa. 138; McMunn v.
Carothers, 4 Clark (Pa.) 354; Wasserman
T. Bank, 3 W. N. C. 475; Wilbraham v.
Horrocks, 14 Phila. 191; 1 Troubat & H.
Practice, p. 270; Good v. Grant, 76 Pa. 52;
Wilson V. Mayhew, 6 Phila. 273; Hiller v.
Good, 9 Lane. Bar. 129; Wright v. Mc-
Garry, 2 Chester Co. Rep. 467; Dever v.
Rice, 19 W. N. C. 156; Rothchild v. Morri-
■on, 9 Lane. L. Rev. 74; Rodgers v. Santa
CUus Co. 27 W. N. C. 574; Stockham v.
Pancoast, 1 Pa. Dist. R. 135; Stem v.
Jones, 7 Kulp, 19; Kistler v. Thompson, 3
Lack. Jur. 341; Re . Gwinner, ^3 Pittsb. L.
J. N. S. 421; Conshohocken Tube Co. r.
•0 li. ed.
Iron Car Equipment Co. 167 Pa. 589, 31
Atl. 934.
By the law and usage of the Pennsyl-
vania courts und every other court, the com-
pany discharged its obligation to Mrs. Dun-
levy when, pursuant to the writ served upon
it and the order of the court, it paid what
it owed her into court, to the credit of the
cause to which she was a party and in
court.
Michigan Trust Co. v. Ferry, 228 U. S.
346, 57 L. ed. 867, 33 Sup. Ct. Rep. 550;
Roig V. Tim, 103 Pa. 115; Reed v. Pen-
rose, 2 Grant, Cas. 472; Malvin v. Sweit-
aer, 1 Kulp, 5; Stover v. Stover, 3 Del. Co.
Rep. 290; Wells v. Tuck, 1 Kulp, 154;
Ficken's EsUte, 16 PhiU. 269.
Mr. Nat Sclimnlowltz argued the cause,
and, with Messrs. Frank W. Taft and
Clarence Coonan, filed a brief for respond-
ent:
The exemplified record of the Pennsyl-
vania proceedings is not res judicata of any
fact, as no judgment has been rendered or
entered therein.
Dougherty v. Lehigh Qoal & Nav. Co. 202
Pa. 635, 90 Am. St. Rep. 660, 52 Atl. 18;
Bennett Water Co. v. Millvale, 200 Pa. 613,
50 Atl. 155; Middleton Mfg. Co. v. Phila-
delphia & R. R. Co. 145 Pa. 187, 22 Atl.
747, 748.
If judgment had been rendered in the
Pennsylvania proceedings, the proceedings
would not have been res judicata of any
fact as regards the respondent.
20 Cyc. 1149; Finch v. Alexander County
Nat. Bank, 65 111. App. 337; Hukill v.
Yoder, 29 Pittsb. L. J. N. S. 94; Hilliard
V. Burlington Shoe Co. 76 Vt. 57, 56 Atl.
283; Laport v. Bacon, 48 Vt. 176; Hamil-
ton Nat. Bank v. Horton, 68 N. H. 234, 44
Atl. 296; Lewis v. Tams, 4 Phila. 276;
Cummings v. Ed wards- Wood & Co. 95 Minn.
118, 103 N. W. 709, 106 N. W. 304; Shinn,
Attachment & Garnishment, § 725; Web-
ster V. Adams, 58 Me. 317; Puffer v. Graves,
26 N. H. 256; Ruff v. Ruff, 85 Pa. 333.
A determination of personal rights with-
out jurisdiction in personam is ineffectual.
Pennoyer v. Neff, 95 U. 8. 714, 24 L. ed.
565; Dull v. Blackman, 169 U. S. 243, 42
L. ed. 733, 18 Sup. Ct. Rep. 333.
Only two matters could possibly have
been adjudicated by the Pennsylvania pro-
ceedings, and neither of these matters con-
stitute res judicata to the claim of respond-
ent. Any other matters not necessary to
the judgment — matters without which the
judgment could have been pronounced —
are not res judicata for any purpose.
Thormann v. Frame, 176 U. 8. 350, 44 L^
ed. 500, 20 Sup. Ct. Rep. 446.
The full faith and credit clause of the
619-621
SUPREME COITRT OF THE UNITED STATES.
Oct. Tbuc,
Constitution does not preclude Inquiry into
the jurisdiction of the court in which the
judgment is rendered, over the subject-
matter, the parties affected by it, nor the
facts necessary to give jurisdiction.
Ibid.
The garnishment issue as to the owner-
ship of the debt owed by the insurance com-
pany was not a part of the original action
of Boggs &. Buhl v. Dunlevy to the extent
that the jurisdiction acquired in that cause
extended to the garnishment issue.
Ruff V. Ruff, 85 Pa. 333.
Jurisdiction in a garnishment matter de-
pended upon an effective process served
upon the garnishee, wherever found; not
upon a continued jurisdiction over the prin-
cipal defendant.
Harris v. Balk, 198 U. S. 215, 49 L. ed.
1023, 25 Sup. Ct. Rep. 625, 3 Ann. Cas.
1084; I^uisvillc & N. R. Co. v. Deer, 200
U. S. 176, 50 L. ed. 426, 26 Sup. Ct. Rep.'
207.
The payment into court was an ew parte
proceeding. No service of the petition to
that end upon, nor any consent thereto by,
respondent, is claimed or set forth. The
matter, therefore, under no condition, could
be a matter demanding credit in a sister
state.
Thormann v. Frame, supra.
Mr. Justice McRoyiiolds delivered the
opinion of the court:
Respondent, Eine J. Gould Dunlevy, in-
stituted this suit in the superior court,
Marin county, California, January 14, 1910,
against petitioner and Joseph W. Gould,
her father, to recover $2,479.70, the sur-
render value of a policy on his life which
she claimed had been assigned to her in
1893, and both were duly served with proc-
ess while in that state. It was removed
to the United States district court, Febru-
ary 16, 1010, and there tried by the judge in
May, 1912, a jury having been expressly
waived. Judgment for amount claimed was
affirmed by the circuit court of appeals.
204 Fed. 070, 130 C. C. A. 473, 214 Fed. 1.
The insurance company by an amended
answer filed December 7, 1911, set up in
defense (1) that no valid assignment had
been made, and (2) that Mrs. Dunlevy was
concluded by certain judicial proceedings
in Pennsylvania wherein it had been gar-
nished and the policy had been adjudged to
be the property of Gould. Invalidity of
the assignment is not now urged; but it is
earnestly insisted that the Pennsylvania
proceedings constituted a bar.
In 1907 Boggs &, Buhl recovered a valid
personal judgment by default, after domi-
ciliary service, against Mrs. Dunlevy, in the
common pleas court at Pittsburgh, where
1141
she then resided. During 1909, '^e tontiae
dividend period" of the life policy h&Tiiig
expired, the insurance [520] company be-
came liable for $2,479.70, and this suni was
claimed both by Gould, a citizen of Penn-
sylvania, and his daughter, who had re-
moved to California. In November, 1909,
Boggs & Buhl caused issue of an execution
attachment on their judgment, and both
the insurance company and Gould were
summoned as garnishees. He appeared, de-
nied assignment of the policy, and claimed
the full amount due thereon. On February
6, 1910, — after this suit was b^un in Cali-
fornia,— the company a'hswered, admitted
its indebtedness, set up the conflicting
claims to the fund, and prayed to be ad-
vised as to its rights. At the same time it
filed a petition asking for a rule upon the
claimants to show clause why they should
not interplead and thereby ascertain who
was lawfully entitled to the proceeds, and,
further, that it might be allowed to pay
amount due into court for benefit of proper
party. An order granted the requested
rule, and directed that notice be given to
Mrs. Dunlevy in California. This was done,
but she made'^no answer and did not ap-
pear. Later the insurance company filed a
second petition, and, upon leave obtained
thereunder, paid $2,479.70 into court, March
21, 1910. All parties except Mrs. Dunlevy
having appeared, a feigned issue was
framed and tried to determine validity of
alleged transfer of the policy. The jury
found, October 1, 1010, there was no valid
assignment, and tliereypon, under an order
of court, the fund was paid over to Gould.
Beyond doubt, without the necessity of
further personal service of process upon
Mrs. Dunlevy, tlie court of common pleas
at Pittsburgh had ample power through
garnishment proceedings to inquire whether
she held a valid claim against the insurance
company, and, if found to exist, then to
condemn and appropriate it so far as neces-
sary to discharge the original judgment.
Although herself outside the limits of the
state, such disposition of the property
would have been binding on her. Chicago,
[521] R. I. & P. R. Co. V. Sturm, 174 U. S.
710, 43 L. ed. 1144, 19 Sup. Ct. Rep. 797;
Harris v. Balk, 108 U. S. 215, 226, 227, 49 L.
ed. 1023, 1028, 25 Sup. Ct. Rep. 625, 3 Ann.
Cas. 1084; Louisville k K. R. Co. v. Deer,
200 U. S. 176, 50 L. ed. 426, 26 Sup. Ct
Rep. 207; Baltimore k 0. R. Co. v. Host-
etter, 240 U. S. 620, ante, 829, 36 Sup. Ct
Rep. 475; Shinn, Attachment & Garnish-
ment, § 707. See Brigham v. Fayer weather,
140 Mass. 411, 413, 5 N. £. 265. But the
interpleader initiated by the company was
an altogether different matter. This was
an attempt to bring about a final and con-
141 V. 8.
1015.
DUEL V. HOLUNS.
521-523
elufliTe adjudication of her personal rights,
not merely to discover property and apply
it to debts. And unless in contemplation
of law she was before the court, and re-
quired to respond to that issue, its orders
and judgments in respect thereto were not
binding on her. Pennoyer v. Neff, 95 U.
S. 714, 24 L. ed. 565; Shinn, AtUchment
A Garnishment, § 674. See Cross v. Arm-
strong, 44 Ohio St. 613, 623, 625, 10 N. £.
160.
Counsel maintain that having been duly
summoned in the original suit instituted by
Boggs &, Buhl in 1007, and notwithstanding
entry of final judgment therein, "Mrs. Dun-
levy was in the Pennsylvania court and was
bound by every order that court made,
whether she remained within the jurisdic-
tion of that court after it got jurisdiction
over her person or not;" and hence, the
argument is, "When the company paid the
money into court where she was, it was
just the same in legal effect as if it had
paid it to her." This position is supposed
to be supported by our opinion in Michigan
Trust Co. V. Ferry, 228 U. S. 346, 57 L. ed.
867, 33 Sup. Ct. Rep. 530, where it is said
(p. 353) : "If a judicial proceeding is
begun with jurisdiction over the person of
the party concerned, it is within the power
of a state to bind him by every subsequent
order in the cause. Nations v. Johnson, 24
How 105, 203, 204, 16 L. ed. G28, 631, 632.
This is true not only of ordinary actions, but
of proceedings like the present. It is with-
in the power of a state to make the whole
administration of the estate a single pro-
ceeding, to provide that one who has under-
taken it within the jurisdiction shall be
subject to the order of the court in the
matter until the administration [522] is
closed by distribution, and, on the same
principle, that he shall be required to ac-
count for and distribute all that he receives,
by the order of the probate court."
Of course the language quoted had ref-
erence to the existing circumstances, and
must be construed accordingly. The judg-
ment under consideration was fairly with-
in the reasonable anticipation of the exec-
utor when he submitted himself to the
probate court. But a wholly different and
intolerable condition would result from ac-
ceptance of the theory that, after final judg-
ment, a defendant remains in court and
subject to whatsoever orders may be entered
under title of the cause. See Wetmore v.
Karnck, 205 U. S. 141, 151, 51 L. ed. 745,
748, 27 Sup. Ct. Rep. 434; Freeman, Judgm.
4th ed. f 103. The interpleader proceed-
ings were not essential concomitants of the
original action by Boggs &, Buhl against
Dunlevy, but plainly collateral; and, when
aummoned to respond in that action, she
«0 li. ed;
was not required to anticipate them.
Smith V. Woolfolk, 115 U. S. 143, 148, 149,
29 L. ed. 357, 359, 360, 5 Sup. Ct. Rep.
1177; Reynolds v. Stockton, 140 U. S. 254,
260, 35 L. ed. 464, 469, 11 Sup. Ct. Rep.
773; Owens v. Henry (Owens v. McCloskey)
161 U. S. 642, 646, 40 L. ed. 837, 838, 16
Sup. Ct. Rep. 693; Hovey v. Elliott, 167
U. S. 409, 42 L. ed. 215, 17 Sup. Ct. Rep.
841; Freeman, Judgm. 4th ed. § 143.
It has been affirmatively held in Penn-
sylvania that a judgment debtor is not a
party to a garnishment proceeding to con-
demn a claim due him from a third person,
and is not bound by a judgment dischar-
ging the garnishee (Ruff v. Ruff, 85 Pa.
333); and this is the generally accepted
doctrine. Shinn, Attachment A Garnish-
ment, § 725. Former opinions of this
court uphold validity of such proceedings
upon the theory that jurisdiction to con-
demn is acquired by service of effective proc-
ess upon the garnishee.
The established general rule is that any
personal judgment which a state court may
render against one who did not voluntarily
submit to its jurisdiction, and who is not
a citizen of the state, nor served with proc-
ess within its [523] borders, no matter
what the mode of service, is void, because
the court had no jurisdiction over his per-
son. Pennoyer v. Neff, supra; Freeman,
Judgm. 4th ed. § 120a; Black, Judgm. 2d
ed. §§ 904 and 005.
We are of opinion that the proceedings in
the Pennsylvania court constituted no bar
to the action in California, and the judg-
ment below is accordingly affirmed.
ARTHUR B. DUEL, Appt.,
V.
HARRY B. HOLTJNS et al.. Individually
and as Members of the Firm of H. B.
Hollins & Company, Alleged Bankrupts,
and A. Leo Everett, Receiver. (No. 352.)
WIENER, LEVY, k COMPANY, Appts.,
V.
HARRY B. HOLLINS et al.; Individually
and as Members of the Firm of H. B.
Hollins & (Dompany, Alleged Bankrupts,
and A. Leo Everett, Receiver. (No. 353.)
(See S. C. Reporter's ed. 623-631.)
Bankruptcy » assets ^ shares of atock
In possesHion of bankrupt Inroker.
The shares represented by a certifi-
cate of stock in a corporation, found in the
possession of a banicrupt firm of stock
brokers, though insufficient fully to satisfy
those of its customers for whom it had
bought shares in such corporation, ahould
be allotted to such customers pro rata, al-
114S
SUPREME COURT OF THE UNITED STATES. Oot. Tbm,
tliongh neli ibarM arc not the identical 181S, unreported; Re T. A. Melntjn k
one* pnrduued for may of aueb customerB. Co. 104 C. C. A. 424, 181 Fed. MO- It
"oif^^'snr'ct ^8 ]""'"'■ "'■ •■ *" Enni^ 109 C. C. A. 478, 187 Fed. 788; OtJ
Bank v. BUckmore, Sr C. C. A. 614, 41
[Nub. 36£ u)d 353.] V. 5. App. 617, 7fi Fed. 771; Ciawford
Cottnt; V. Strawn, IS LJl.A.(N.S.) IIOO^
Argued Uay 4 and 5, 1918. Decided June 84 C. C. A. 553, IG7 Fed. 40; Re Berr;, Tt
6, 1916. C. C. A. 124, 140 Fed. 176; Thonui r.
Taggart, £09 U. S. 385, %2 L. ed. 84S, »
TWO APPKAU3 from tbe United SUtea Sup. a. Rep. 619; Re Berry, 77 C. C. i
Circuit Court of Appeala for the See- 434, 147 Fed. 209; Re A. O. Brown t Q>.
ond Circuit to review a decree which re- ISO Fed. 432, 113 C. C. A. 34B, 103 Fed.
versed a decree of the Dietrict Court for the M, 90 C. C. A. 345, 175 Fed. 769. 113 a
Southern DUtrict of New York for the al- C. A. 354, 103 Fed. 30; Pint Nat. Bank i.
lotnent pro rata to customera of iharea of Littlefleld, 226 U. S. 110, S7 L. ed. 145,
stock fonod in the poseeuion of a bankrupt 33 Sup. Ct. Rep. 78; Schuyler v. littlf
firm of itock broken. Reverted, and decree Held, 232 U. S. 707, 68 L. ed. 806, 34 Snf
of District Court affirmed. Ct. Rep. 466; Knauth v. Lovell, 212 Fii
See same case below, 135 C. C. A. 312, 337; National City Bank v. Hotcbkiss, HI
219 Fed. 544. U. S. GO, 58, 68 L. ed. 115, 120, 34 Sup^
The faeU are sUted in the opinion. Ot. Rep. 20; Scotteu v. Littlefleld, m
u, ii..^_. 1. nr r -. .. j ^- S- 407, 69 L. ed, 280, 36 Sup. Ct. Ref
Mr. PrederlcL W. LonRfel ow arguri ^^ j, , Roedenbeck, LJL4aei6E, O.
the cBUie, and, with Mr. Lewrls L. Delaaeld, r. n * oot v^ lAa
Th. p.Utta..r, Dml, 1, «t.lW to M „rtU«U. to? .b.,. ot . ..rUa ktoK
ta»t «. .1 tl,. 100 jta,«, .1 Coppr M«k ,^ ^^^^ „ , „ ^^,,,„^d
2>An m tb. boi o HolUn. I Comp.., „ M,^a,^t. thm wltkoul npM U
biita. JS^ ■' *• '"^"^ "'°"°" '' '• "J'"^ -
L. «1 BM, 2a S.p. Ct. B.p. 618, 1. i.n. "' ''"""" "•' "'"'t^'-V <" ".. I~»-
Cm. 081; Beiton t. Kewler. 226 U. S. tJT^.'. - r..~.,t., i- .-., n- va
?'■ " ^ i:^^.^'^'A ^u'\?v 45'^'^?.'supp''^2^;*'ia;jhfr,.'^:«S
2,^3,';, * ^'« L^- "■ " ^- " N. Y. 236; Skiff V. Stoddard. 63 Ow!
ed. 1047, 33 Sup. a. Rep. 600. ^g^^ j.^ ^.R^. 102. 26 Atl. BM, 28 Atl
Mr. Stuart HcNamara ar^ed the cause, 104; lAwrenoe v. Maxwell. 63 N. Y. 1>.
and, with Mr. Carl A. de Oeradorff, filed A itoekbroker, in the aboenea of ipecisl
a brief for Wiener, Levy, t Company: agreement, ia bound to allot speciflc certil-
Appellanta Wiener, I<evy, ft Company are cates to each cuatomer upon diepostng ef
entitled to at leait an undivided %g tboie acquired for. or received from, bin.
interest in the 100 ahares of Amalgamated and will be preanmed to have done so, ii
Copper stodc represented by eertiflcate No. the absence of aubatantiva evidence to tlM
20^73, found in the box of Holljns ft Com- contrary.
pany at the time of the filing of the bank- Douglas v. Carpenter, 17 App. Dtv. 3J]|
ruptcy petition. 46 N. Y. Supp. 219; L^wience v. MaiweU,
Ibid.; Sklfr V. Stoddard. 63 Conn. 19B, 53 N. Y. 23; Markham v. Jaudon, 41 N.
21 L-Rji. 102. 26 Atl. 874, 28 Atl. 104. Y. 235; Schuyler v. Littlefleld, 232 V. 8.
„ _,.„, ■ -. , , ... 707, 58 L. ed. 806, 34 Sup. «. Hep. 4M;
Mr. Wllltam C Armatrong argued the ^homa. v. Taggart 200 U. S. 386, «L ri
mT' r V7 R r'h^„ T.'"^"' 845. 2B Sup. ^ Rep. 610; Re T. A. M^
med a br.ef for Harry B. Hollin. ct .1.. j^^^ ^ ^ 1„ ^P ^ ^ ^^^ ^^
A marginal customer of a rtockbroker ^se. Re T. A. Mclntyr- A ci. 84 1»
who seeka to reclaim stock after hank- 3^^,. r 1 r. T. A. Mclntyre k fo
ruptcy must identify affirmatively the cer- 24 Am. Bankr. Rep. 13; Slmpaon t. 3a»t}
tiflcatea allotted to him. or prove that no city Contracting Co. 165 N. T. 193, »
certiScatea were apeciflcally set aside for uu^. 796, 58 N. E. 806; Crawford ComV
him, and all doubt must be resolved in v. Strawn, 15 LJLA.(N.S.) 1100. 84 C. C
favor of tbe receiver. The decision in Gor- A. 553, 167 Fed. 49; City Bank t. BUek-
man t. LitUefield. 220 U. S. 10, 57 L. ed. more, 21 C. C. A. 514, 43 U. 8. App. SIT.
1047, 33 Sup. Ct. Rep. 600, is not ap- 75 Fed. 773.
plicable to the facta in the case at bar. The stock nought to be i«clalDwd in lU
Re S. H. P. Pen ft Co. dated May 27, proceeding baa been •bown to be the jnf
i'44 141 V. ••
1015.
DUEL V. HOLLU^S.
624-527
erty of Landau to the extent of 50 sharea,
hj positive identification, and any general
identification must yield thereto.
Skiff v. Stoddard, 63 Conn. 198, 21 L.RA.
102, 26 Atl. 874, 28 Atl. 104.
The rights of appellants were fixed at
petition filed, and they can only recover
the proportion of the value of the securi-
ties identified, which their total credit bal-
ance at that time bore to the market value
of all their securities.
Ke T. A. Mdntyre &, Co. 24 Am. Bankr.
Rep. 4; Re Jamison Bros. & Co. 126 C. C.
A. 363, 209 Fed. 541.
Mr. Justice McReynolds delivered the
opinion of the court:
HoUins & Company, brokers and members
of the New York Stock Exchange, went into
bankruptcy November 13, 1913.
On October 13, 1912, they purchased for
appellant Duel 100 shares of Amalgamated
Copper Company stock — "Copper" — ^and
received certificates therefor- which they
subsequently disposed of by deliveries on
account of sales for customers.
October 25, 1912, they purchased for one
Bamberger 30 shares of "Copper," received
a certificate therefor, and pledged this for
their own benefit with the National Bank
of Commerce.
[525] February 25, 1913, they purchased
for appellants Wiener, Levy, & Company
50 shares of "Copper" and received a certifi-
cate. About June 13, 1913, this passed out
of their control "for and in behalf of
another customer."
Prior to November 1, 1913, they were
directed to purchase for one Landau 100
shares of "Copper," and their books charge
them as carrying this number for his
account.
At the close of business November 7,
1913, they were responsible to customers
for 280 shares of "Copper" — Bamberger 30,
Duel 100, Wiener, Levy, & Company 50,
Landau 100; and they held in actual posses-
sion— "in the box" — only two certificates
for 50 shares each. November 10, 1913,
they used these in making delivery on a
short sale. On the same day that sale
was "covered," and on the 11th they received
and placed in their box a certificate (No.
29,373) for 100 shares.
When bankruptcy occurred (November
13th) their entire liability to "long" cus-
tomers on account of "Copper" arose from
purchases of 280 shares as above narrated;
and they actually held only certificate No.
29,373, received two days before. To secure
their own loans they had on pledge with
Kings County Trust Company and National
Bank of Commerce^ respectivel|y, certificates
•0 Ii. ed.
for 50 and 30 shares; and they also had an
outstanding short sale of 100 shares.
In the deposition of Allaire, bankrupts'
cashier, it is said:
"The said certificate No. 29,373 was never
marked or otherwise identified by HoUins k
Company as the property of any particular
person or customer, or placed in any
envelop bearing any indication that the said
stock was held for the special account of
any particular customer or [526] person,
and no memorandum appears upon the
books or records of Hollins & Company to
the effect that said stock was purchased or
held for the special or particular account
of any one customer or person.
«i
It was the practice of Hollins k Com-
pany to use certificates of stock on hand
in making deliveries thereof, indiscrimi-
nately and without regard to particular cer-
tificates or certificate numbers, excepting
only cases where customers deposited cer-
tificates of stock standing in their own
names as margin for their own accounts,
where such certificates were usually retained
in kind, but at no time from the 1st day of
November, 1913, until and including the
13th day of November, 1913, were there any
certificates for Amalgamated Copper stock
standing in the name of any customers.
"Certificate No. 29,373, representing 100
shares of Amalgamated Copper stock, was
not purchased or'received for the account of
any member of the firm of Hollins k Com-
pany, or for the personal account of said
firm as a whole, but was received from the
Stock Exchange Clearing House in the usual
course of business as representing the bal-
ance of Amalgamated Copper stock due said
firm on balance on said date."
The record indicates that all transactions
in question were made in pursuance of the
usual contracts for speculative purchases
and sales of stock upon margins.
By timely petitions appellants claimed
that, in adjusting their accounts for final
settlement with bankrupts' estate, they were
entitled to have allotted to them respec-
tively 100/280 and 50/280 of the 100 shares
of "Copper" represented by certificate No.
29,373. The district court, southern dis-
trict of New York (212 Fed. 317) , sustained
their position and ordered accordingly, but
the circuit court of appeals reached a dif-
ferent conclusion and reversed the order.
135 C. C. A. 312, 219 Fed. 544.
[527] The facts of the present case
differ in some respects from those presented
in Gorman v. Littlefield, 229 U. S. 19, 57
L. ed. 1047, S3 Sup. Ct. Rep. 690; but we
think a logical application of prindplea
there approved requires disagreement with
527-629
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tnat,
the drcuit court of appeals and approval
of order in the district court.
In view of our former opinions it must
be taken as settled: That bankrupts and
their customer stood in the relation of
pledgee and pledgeor. That in their deal-
ings stock certificates issued by same cor-
poration lacked individuality, and, like
facsimile storage receipts for gold coin, could
properly be treated as indistinguishable
tokens of identical values. That, as between
themselves, after paying amount due brok-
ers, the customer had a right to demand
delivery of stocks purchased for his account;
and such delivery might have been made
during iusolvency without creating a prefer-
ence. Richardson v. Shaw, 209 U. S. 366,
52 L. ed. 836, 28 Sup. Ct. Rep. 612, 14 Ann.
Cas. 981 ; Thomas v. Taggart, 209 U. S. 386,
52 L. ed. 845, 28 Sup. Gt. Rep. 519; Sexton
V. Kesslcr & Co. 226 U. S. 90, 56 L. ed. 996,
32 Sup. Ct. Rep. 657 ; (yorman v. Littlefield,
supra.
Summing up the doctrine of Richardson
V. Shaw concerning legal relationship be-
tween customer and broker in buying and
liolding shares, we said in Qorman v. Lit-
tlefield (pp. 23, 24) : "It was held that the
certificates of stock were not the property
itself, but merely the evidence of it, and
tliat a certificate for the same number of
shares represented precisely the same kind
and value of property as another certificate
for a like number of shares in the same cor-
poration ; that the return of a different cer-
tificate or the substitution of one certificate
for another made no material change in the
property right of the customer; that such
shares were unlike distinct articles of per-
sonal property, differing in kind or value,
as a horse, wagon, or harness, and that
stock has no earmark which distinguishes
one share from another, but is like grain of
a uniform quality in an elevator, one bushel
being of the same kind and value as another.
It was therefore [528] concluded that the
turning over of the certificates for the
shares of stock belonging to the customer,
and held by the broker for him, did not
amount to a preferential transfer of the
bankrupt's property."
And we there further declared (pp. 24,
26) : "It is therefore unnecessary for a
customer, where shares of stock of the same
kind are in the hands of a broker, being
held to satisfy his claims, to be able to put
his finger upon the identical certificates of
stock purchased for him. It is enough that
the broker has shares of a certain kind
which are legally subject to the demand of
the customer. And in this respect the trus-
tee in bankruptcy is in the same position as
the broker. Richardson v. Shaw, supra.
It is said, however, that the shares In this
1140
I particular case are not so identified aa to
I come within the rule. But it does appear
that at the time of bankruptcy certificates
were found in the bankrupt's possession in
an amount greater than those which ■honld
I have been on hand for this customer, and
the significant fact is shown that no other
customer claimed any right in those shares
of stock. It was, as we have seen, the duty
of the broker, if he sold the shares specifi-
cally purchased for the appellant, to buy
others of like kind, and to keep on hand,
subject to the order of the customer, certifi-
cates sufficient for the legitimate demands
upon him. If he did this, the identification
of particular certificates is unimportant.
Furthermore, it was the right and duty ol
the broker, if he sold the certificates, to use
his own funds to keep the amount good,
and this he could do without depleting his
estate to the detriment of other creditors
who had no property rights in the certifi-
cates held for particular customers. No
creditor could justly demand that the estate
be augmented by a wrongful conversion of
the property of another in this manner, or
the application to the general estate of
property which never rightfully belonged to
the bankrupt."
[529] When the bankruptcy which occa-
sioned Gorman v. Littlefield took place, the
broker's box contained certificates, not
specifically allotted, for 360 shares of the
designate stock, and the appellant's claim
for 260 was the only one presented by a
customer. We held that, under the circum-
stances, no more definite identification was
essential, and approved his contention. If,
in the instant cause, a certificate for 280
shares of "Copper" instead of 100 had been
on hand, the four customers for whom that
number were purchased might successfully
claim them under rule approved in Gor-
man's Case. And merely because the one
actually in the box represented insuffi-
cient shares fully to satisfy all is not
enough to prevent applica^n of that rule
so far as the circumstances will permit.
The District Court properly awarded to ap-
pellants their fnv rata parts of the 100
shares.
Decree of Circuit Court of Appeals re-
versed, and decree of District Court affirmed.
Mr. Justice Pitney, with whom concurred
Mr. Justice Hughes, dissenting:
In Qorman v. Littlefield, 229 U. 8. 19, 67
L. ed. 1047, 33 Sup. Ct. Rep. 690, the rea-
soning embodied in the following extract
from the opinion (p. 24) was, aa I take it,
essential to vindicate the conclusion reached
by the court: "It is said, however, that the
shares in this particular case are not to
identified aa to come within the rule. But
141 V. 8.
1915.
VIRGINIA V. WEST VIBGINIA.
529-532
it does appear that at the time of bank-
ruptcy certificates were found in the bank-
rupt's possession in an amount greater than
those which should have been on hand for
this customer, and the significant fact is
shown that no other customer claimed any
right in those shares of stock. It was, as
we have seen, the duty of the broker, if he
sold the shares specifically purchased [530]
for the appellant, to buy others of like
kind, and to keep on hand, subject to the
order of the customer, certificates sufficient
for the legitimate demands upon him. If
he did this, the identification of particular
certificates is unimportant."
In the present case, it does not appear
that at the time of the inception of the
bankruptcy proceedings certificates were
found in the brokers' possession equal in
amount to those which should have been on
hand ; several customers are laying claim to
the shares that were on hand; and it affirm-
atively appears that the brokers, having
sold the shares specifically purchased for
these customers, had not bought others of
like kind, nor kept on hand certificates suf-
ficient for the claims of the customers upon
them. Not only was no stock kept on hand
to answer the claims aggregating 280 shares,
but it afiirmatively appears that the 100
shares that were on hand were not acquired
with intent to make restitution. The depo-
sition of Allaire, the only man having
knowledge upon the subject, was that cer-
tificate No. 29,373, representing 100 bhares
of Amalgamated Copper stock, "was re-
ceived from the Stock Exchange Clearing
House in the usual course of business as
representing the balance of Amalgamated
Copper stock due said firm on balance on
said date," — the date being one unconnected
with any transaction for account of the
appellants or either of them.
It is one thing to infer an intent to make
restitution to a customer when the acts
have been done that are necessary to effect
restitution; it is an entirely different mat-
ter to infer an intent to make restitution
when no restitution has in fact been made.
The presumption of an intent to restore
fractional interests in this case must rest
on the merest fiction; and such a fiction
ought not to be indulged in cases of this
character, where it will inevitably result
in creating a series of arbitrary [531]
preferences, contrary to the equity of the
bankruptcy act.
I think the decree of the Circuit Court of
Appeals (135 C. C. A. 312, 219 Fed. 544)
ought to be affirmed, and am authorized to
•ay that Mr. Justice Hughes concurs in
this dissent.
40 li. ed.
COMMONWEALTH OF VIRGINIA, Com-
plainant,
V.
STATE OF WEST VIKGINIA.
(See S. C. Reporter's ed. 531-532.)
Bzecntion — against state.
Execution will not issue on a money
judgmciit against a state, where the. state
legislature has not met since the rendition
of the judgment, and will not again meet in
regular session until the assembling of a
new legislature, the members of which have
not been chosen.
[Matters as to execution* see Execution, In
Digest Sup. Ct. 1008.]
[No. 2, Original.]
Submitted June 5, 1916. Decided June 12.
1916.
PETITION for a Writ of Execution
against the state of West Virginia upon
a money judgment in favor of the common-
wealth of Virginia. Denied without preju-
dice.
The facts are stated in the opinion.
Mr. John Garland Pollard, Attorney
General of Virginia, for the petition.
Mr! A. A. liillj. Attorney General of
West Virginia, and Mr. John H. Holt, op-
posed.
Mr. Chief Justice White delivered the
opinion of the court:
In the original cause of Virginia y. West
Virginia, on the 14th day of June, 1915
[238 U. S. 202, 59 L. ed. 1272, 35 Sup. Ct.
Rep. 795], a decree was rendered in favor
of Virgipia and against West Virginia for
the sum of $12,393,929.50, with interest
thereon at the rate [532] of 5 per centum
from July 1st, 1915, until paid. Virginia
now petitions for a writ of execution
against West Virginia, on the ground that
such relief is necessary, as the latter has
taken no steps whatever to provide for the
payment of the decree. West Virginia re-
sists the granting of the execution on three
grounds: (1) "Because the state of West
Virginia, within herself, has no power to
pay the judgment in question, except
through the legislative department of her
government, and she should be given an
opportunity to accept and abide by the de-
cision of this court, and, in the due and
ordinary course, to make provision for its
satisfaction, before any steps looking to
her compulsion be taken; and to issue an
execution at this time would deprive her of
such opportunity, because her legislature
has not met since the rendition of said
judgment, and will not again meet in ri^gu-
lar aesiion until the second Wednesday in
WW
«tt.63S
SUPREME COURT OF THE UNITED STATES.
Dot. •
Jkhuaij, 1017, and the membeH at that
bod; bave not jet been choseni" (2) b«-
canse preaumptively the it&te of West Vir-
ginU hai do property lubject to execution;
and (3) beeauM, although the Conatitu-
tion Impoaea upon this court tlie duty, and
grants it full power, to couaider controTer-
■iea between atatet, and therefore authority
to render the decree in question, yet with
the grant of juriidiction there naa con-
ferred no authority whatever to enforce a
money judgment againit ft state if, in the
exercise of jurisdiction, auch a judgment
Without going further, we are of t
opinion tliat the flrat ground furnishes i
equate reason for not granting the moti
at this time.
The prayer for the issue ot a writ ol e
cution is therefore denied, without pre;
dice to the renewal of the same after I
next seasiou of the legislature of the stste
West Virginia has met and had a reaac
able opportunity to provide for the pi
ment of the judgment.
And it is to ordered.
(See S. C. Reporter's ed. £33-643.)
JnAginen t^ estoppel bf — decree in ra
case ^ dlamlBBing without prejndlc
1. The L&tial dismissal of a suit by
railway company to enjoin the enforcemt
by state oHicers of a rate-fliing law in
entirety, on the ground that to enforce t
rates as fixed by the state would result
confiscation, although "without prejudic
eatopa the railway company, when sued
the state to recover back passenger fares
excess of the rates established by law, c
lected during the period covered bv an
junction granted in the prior suit, fn
state officers when traveling within I
state, on state buiiness, to asaert that t
rates as fixed by the state were so low
to be confiscatory, since the reservati
"without prejudice" did not leave the c<
Iroversy open aa to the period with whi
NoTS. — On conduaiveness of judgmen
generally — see note* to Sharon v. Terry,
L.R.A. 672; Bollong v. Schuyler Nat. Bai
3L.R.A. 142; Wiesev. Ban Francisco Uusii
Fund Soc. T L.R.A. 677; Morrill v. Morri
11 L.RJL 165; Shores v. Hooper, 11 L.R.
308; Bank o( United SUtes t. Beverly,
h. ed. U. 8. 76; JcAnson Steel Street R
Co. v. Wharton, 38 L. ed. U. 8. 428, a
Southern P. R. Oo. T. United SUtea, 42
td. V. S. 35S.
MI4S
the decree dealt, but merely permitted a re-
newal of the application for relief if jmdl-
fled by future operation and changed eoadi-
[For other OUs, He Judsment, III. f. It
IMKeit Sup. Ct. 190S.]
Estoppel — InoonalBtent poaltions Id
JndlclKl proceedings.
2. A railway company which secured an
Injunction restraining the enforcement ii
its entirety of a state ratc.making law a>
confiscatory cannot avoid the effect of a
final decree of dismissal ai an estoppel in
a subsequent suit by the state to recover
excess passenger fares collected from state
officers during the period covered by the
injunction by asserting that, because the
state was not and could not have been a
party to the prior suit, the restraint ot the
iniunction did not operate against the rste-
making power so far aa the interest of the
state is concerned.
IPor otbcr cat**, lee Estoppel, III. c. In Dlmt
Bnp. Ct. 190B.1
tNo. 16, Original.]
MOTION to Btriiie the defenae ot con-
Bscation from the answer of a railway
company in an original action by which a
state seeks to recover from the railway com-
pany passenger fares in excess of the rate*
establiahed by the state, paid by state of-
ficers when traveling within the state, on
state business. Motion granted.
Thx facta are stated in the opinion.
Mr. John T. Barker, Attorney General
of Missouri, argued the cause, and, with
Messrs. Lee B. Ewing, W. T. Rutherford,
and Kenneth C. Sears, filed a brief for
complainant :
The injunction suit brought by defend-
ant railroad in the district court at KanMS
City has been finally determined and tlie
bill dismissed and injunction dissolved.
Whatever money or property defendant re-
ceived under or by virtue of such injunction
or decree must be restored to complainant,
and defendant will not be heard to deny
such right, and cannot plead that such rates
were confiscatory. lierefore such plea
should be stricken out.
I*ve V. North American Co. — C, C. A.
— , S2e Fed. 103; Missouri Rate Oases;
(Knott T. Chicago, B. A Q. R. Co.) E30'
U. S. 474, SI L. ed. 1G71, 33 Sup. Ct Rep.
075; Bellamy v. St. Louis, I. M. ft S. B. Co.
138 C. C. A. 442, 220 Fed, 878; 3 Cyc. 462-
409; IS Enc. PL & Pr. 871; 2 Freeman,
Judgm. 4th ed. g 481, pp. 832-S34; 1 Bead,.
Inj.p. 34B, S 343; Spelling, Inj. A Extr. Rem.
% 1098; 1 Joyce, Inj. p. 626, | 343; Ming v.
Suggett, 34 Ho. 3S4, 86 Am. Dec. 112; Tnr-
. 210 Mo. 411, 184 Am.
t41 V. S.
1915.
MISSOURI y. CHICAGO, B. & Q. B. 00.
St. Rep. 739, 109 8. W. 33; St. Louis r.
St. Louis Gaslight Co. 70 Mo. 69 ; St. Louis
y. St. Louis (Gaslight Co. 82 Mo. 349; Haeb-
ler y. Myers, 132 N. Y. 363, 15 L.R.A. 588,
28 Am. St Rep. 589, 30 N. E. 963; Lake
Shore & M. S. R. Co. y. Taylor, 134 111.
003, 25 N. E. 588; Starke y. Lewis, 23
Miss. 151 ; Sayaimah Shoe Factory y.
Kaiser, 108 Ga. 767, 33 S. E. 404; New
York y. Brown, 179 N. Y. 303. 72 N. E.
114; Chicot Lumber Co. y. Dardell, 84 Ark.
140, 104 S. W. 1100; Pulteney y. Warren,
6 Ves. Jr. 73, 5 Reyised Rep. 226; Oum-
mings y. Mugge, 94 111. 186; Van Zandt y.
Argentine Min. Co. 2 McCrary, 642, 48 Fed.
770, 7 Mor. Min. Rep. 634 ; St. Louis & S. F.
R. Co. y. Barker, 210 Fed. 902; Hawkes y.
Champion, Cary, 51; Dowche y. Perrot,
Cary, 63; Hill y. Portman, Cary, 140; Bank
of United SUtes y. Bank of Washington, 6
Pet. 8, 8 L. ed. 299; Northwestern Fuel Co.
y. Brock, 139 U. S. 216, 35 L. ed. 151, 11
Sup. Ct. Rep. 523; Ex parte Walter Bros.
89 Ala. 237, 18 Am. St. Hep. 103, 7 ho. 400 ;
Zimmerman v. National Bank, 50 Iowa,
133, 8 N. W. 807 ; Lytle y. Lytle, 94 N. C.
522; Flemings y. Riddick, 5 Gratt. (Va.)
272, 50 Am. Dec. 110; Hier y. Anheuser-
Busch Brewing Co. 60 Xeb. 320, 83 N. W.
77; Thompson y. Reasoner, 122 Ind. 454,
7 L.R.A. 495, 24 N. E. 223; United States
V. Rothstein, 109 C. O. A. 521, 187 Fed.
208; Brown y. Detroit Trust Co. 113 C. C.
A. 490, 193 Fed. 622; Simmons y. Price, 18
Ala. 405; Ward y. Sherman, 155 Cal. 287,
100 Pac. 864; Hess y. Deppen, 125 Ky. 424,
101 S. W. 362, 15 Ann. Cas. 670; Bryant y.
Fairfield, 51 Me. 149; Delano y. Wilde, 11
Gray, 17, 71 Am. Dec. 687; Peck y. Mc-
lean, 36 Minn. 228, 1 Am. St. Rep. 665, 30
N. W. 759; Thompson v. Carroll, 36 N. H.
21; Scott y. Conover, 10 N. J. L. 61; Mur-
ray y. Berdell, 98 N. Y. 480; Britton v.
PhilHps, 24 How. Pr. Ill; Bickett v. Gar-
ner, 31 Ohio St. 28; McFadden y. Swiner-
ton, 36 Or. 336, 59 Pac. 816, 62 Pac. 12;
Whitesell v. Peck, 176 Pa. 170, 35 Atl. 48;
Gates y. Brinkley, 4 Lea, 710; Peticolas y.
Carpenter, 53 Tex. 23; Stanard y. Brown-
low, 3 Munf. (Va.) 229; Keck v. Allender,
42 W. Va. 420, 20 S. E. 437; Singly v.
Warren, 18 Wash. 434, 63 Am. St. Rep.
896, 51 Pac. ]066;Knoxville v. Knoxville
Water Co. 212 U. S. 151, 53 L. ed. 380, 29
Sup. Ct. Rep. 148; Willcox y. Consolidated
Gas Oo. 212 U. S. 19, 53 L. ed. 382, 48
L.R.A.(N.S.) 1134, 29 Sup. Ct. Rep. 192,
15 Ann. Cas. 103^: Des Moines Gas Co. y.
Des Moines, 238 U. S. 153, 59 L. ed. 1244,
P. U. R. 1915D, 577, 35 Sup. Ct. Rep. 811 ;
St. Louis k S. F. R. Co. y. Barker, 210 Fed.
912; State ex reL Barker y. Chicago & A. R.
Co. 216 Fed. 564.
•0 Ii. ed.
Where a carrier alleges a rate to be con-
fiscatory, it may litigate the question 1^
enjoining the representatiyes of the state.
It cannot litigate the question against in-
diyiduals. This would be a collateral at-
tack, and as a direct method is prorided,
that method is exdusiye.
Re Engelhard & Sons Co. 231 U. S. 645,
58 L. ed. 416, 34 Sup. Ct. Rep. 258; Chi-
cago, M. & St. P. R. Go. y. Minnesota, 134
U. S. 418, 33 L. ed. 970, 3 Inters. Com. Repi
209, 10 Sup. Ot. Rep. 462, 702.
Messrs. F. W. Paschal and Clifford B.
Allen filed a brief as amioi ouria,
Mr. Clifford B. Allen also filed a sepa-
rate brief as amicua outue:
This court has decided in the Missouri
Rates' Cases that the statutes of 1905 and
1907 were constitutionally applied to the
Burlington Railroad Company during the
years from 1905 to 1914, indusiye; hence
this question has become res judicata,
St. Louis & S. F. R. Co. y. Barker, 210
Fed. 912; State ex rel. Barker y. Chicago
k A. R. Co. 210 Fed. 564; Merchants Exch.
y. Baltimore & O. R. Co. 34 Inters. Com.
Rep. 341; Wadley Southern R. Co. y.
Georgia, 235 U. S. 651, 59 L. ed. 405, P. U.
R. 1915 A, 106, 35 Sup. Ct. Rep. 214; SUte
ex rel. Barker y. Chicago A A. R. Co. 265
Mo. 682, L.RJL1916C, 309, 178 S. W. 129.
The confiscatory character of a statutory
rate cannot be adjudicated in a suit by a
shipper against a carrier.
Re Engelhard k Sons Co. 231 U. S. 646,
58 L. ed. 416, 34 Sup. Ct. Rep. 258; St.
Louis k S. F. R. Co. y. Gill, 156 U. S. 649,
39 L. ed. 567, 15 Sup. Ct. Rep. 484; Chici^o
& G. T. R. Co. y. Wellman, 143 U. S. 346,
36 L. ed. 180, 12 Sup. Ct. Rep. 400; Cen-
tral of Georgia R. Co. y. Railroad Commis-
sion, 161 Fed. 973; Ex parte Young, 209 U.
S. 123, 52 L. ed. 714, 13 L.ILA.(N.S.) 932,
28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764;
State ex rel. Missouri Southern R. Co. y.
Public Service Commission, 259 Mo. 704,
168 S. W. 1156; State ex rel. Public Serv-
ice Commission y. Baltimore & 0. R. Co.
— W. Va. — , P. U. R. 1915D, 568, 85 S.
E. 714.
It is too late to again contest the al-
leged confiscatory character of the act of
1905.
Central of Georgia R. Co. y. Railroad
Commission, 161 Fed. 973; Southern R. Co.
y. Railroad Commission, 196 Fed. 560.
The railroads should not be permitted to
plead that the rates which they had super-
seded were confiscatory, in an action by
the shippers to recover the money exacted
during the rate-contesting case.
Love v. North American Go. — CCA.
— , 229 Fed. 107.
1149
SUPREME CX)URT OF THE UNITED STATES.
Oct. Tbiii,
Mr. W. T. Alden also filed a brief as
amicus curice:
It is the duty of the defendant to restore
the excessive charges collected during the
pendency of the injunction in the Missouri
Rate Cases.
Love V. North American Co. — C. C. A.
— , 229 Fed. 103; Northwestern Fuel Co. v.
Brock, 139 U. S. 216, 35 L. ed. 151, 11 Sup.
Ct. Rep. 523; Bank of United States v.
Bank of Washington, 6 Pet. 8, 17, 8 L. ed.
299-304 ; Bellamy v. St. Louis, I. M. & S. R.
Co. 136 C. C. A. 442, 220 Fed. 876; Brown
V. Detroit Trust Co. 113 C. C. A. 490, 193
Fed. 622-626; I^nyon v. Chesney, 209 Mo.
1, 106 S. W. 522 ; St. Louis v. St. Louis Gas-
light Co. 70 Mo. 69; Haebler v. Myers, 182
N. Y. 363, 15 L.RJI. 588, 28 Am. St. Rep.
589, 30 N. £. 963; Zimmerman v. National
Bank, 56 Iowa, 133, 8 N. W. 807.
The proper remedy against a schedule of
rates alleged to be imremunerative and con-
fiscatory is by a bill in equity against the
officers and authorities of the state charged
with the duty of establishing or enforcing
such rates. The convenience to the court
and the protection of litigants alike de-
mand that such questions be tested out in
a direct proceeding for that purpose, and
carriers will not be permitted to make
such a defense to a suit for overcharges
filed by individual shippers.
Chicago, M. & St. P. R. Co. v. Minnesota,
134 U. S. 41&-460, 33 L. ed. 970-982, 3
Inters. Com. Rep. 209, 10 Sup. Ct. Rep. 462,
702; fix parte Young, 209 U. S. 123, 164,
52 L. ed. 714-731, 13 L.R.A.(N.S.) 932, 28
Sup. Ct. Rep. 441, 14 Ann. Cas. 764; Re
Engelhard & Sons Co. 231 U. S. 646-649,
58 L. ed. 416-418, 34 Sup. Ct. Rep. 258 ; St.
Louis A S. F. R. Co. v. GUI, 156 U. S. 649-
059, 39 L. ed. 566-571, 15 Sup. Ct. Rep.
484; Central of Georgia R. Co. v. Railroad
Commission, 161 Fed. 972; St. Louis & S.
F. R. Co. V. Barker, 210 Fed. 916; Allen
V. St. Louis, I. M. k S. R. Co. 230 U. S.
553, 57 L. ed. 1625, 33 Sup. Ct. Rep. 1030;
Minnesota Rate Cases (Simpson v. Shep-
ard) 230 U. S. 352, 57 L. ed. 1511, 48 L.R.A.
(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas.
191 6A, 18; Missouri Rate Cases (Knott v.
Chicago, B. & Q. R. Co.) 230 U. S. 474, 57
L. ed. 1571, 33 Sup. Ct. Rep. 975; Chicago
ft 0. R. Go. V. Conley, 230 U. S. 513, 57
L. ed. 1597, 33 Sup. Ct. Rep. 985; Oregon
R. k Nav. Co. V. Campbell, 230 U. S. 525,
57 L. ed. 1605, 33 Sup. Ct Rep. 1026.
It is true this is a rule of procedure
which is founded on convenience, and it
may be deviated from where it would work
hardship or perpetuate injustice, but the
case at bar does not fall within any of the
exceptions established or recognised by the
previous decisions of this court.
150
St. Louis & 8. F. R. Co. v. Gill, 156 U. S.
649-664, 39 L. ed. 567-573, 15 Sup. Ct. Rep.
484; Ex parte Young, 209 U. S. 123-164, 52
L. ed. 714-731, 13 L.R.A.(N.S.) 932, 28
Sup. Ct. Rep. 441, 14 Ann. Cas. 764.
On the contrary, the case at bar presents
those very elements and considerations
which this court has frequently pcHnted to
and relied upon in holding that the proper
mode of relief against a body of rates on
the grotmd that they are unreasonably low
and confiscatory is by a direct proceeding
in equity against the governmental authori-
ties charged with the duty of enforcing such
rates.
(a) To leave such issues to be determined
in suits by private parties, which would be
prosecuted in different localities in great
numbers, and in different courts at the same
time, in which variant decisions would fre-
quently be reached, even on the same state
of facts, would result in business paraljrsis
and legal pandemonium.
Central of (jkorgia R. Co. v. Railroad
Commission, 161 Fed. 972.
(b) The expense of combating the de-
fense of confiscation would be so burden-
some, and the delays attendant upon the
proper presentation of evidence so onerous,
that individual shippers would not have the
means to carry on litigation, and a prac-
tical denial of justice would result in many,
if not most, cases. •«
Ex parte Young, 209 U. S. 123-164, 52
L. ed. 714-731, 13 LJt.A.(N.S.) 932, 28 Sup.
Ct. Rep. 441, 14 Ann. Oas. 764; Chicago,
M. & St. P. R. Co. V. Minnesota, 134 U. S.
418-460, 33 L. ed. 970-982, 3 Inters. Com.
Rep. 209, 10 Sup. Ct. Rep. 462, 702.
(c) This defendant elected in the begin-
ning to contest the validity of the Missouri^
rate acts by a direct proceeding, and after
having carried on litigation of that char-
acter for eight years, it ought not to be per-
mitted now to adopt another mode of relief.
(d) When, in obedience to the mandate
of this court, the bill of this defendant — a
complainant in the Missouri Rate Cases —
was dismissed without prejudice, it was in-
cumbent upon the defendant to proceed
without delay to file a new bill attacking
the constitutionality of the Missouri rate
laws. Its failure so to do constituted
laches, which should bar it from now urging
that defense.
(e) It is an established rule that a car-
rier must charge the published tariff rates
in the transportation of freight and passen-
gers, and cannot depart therefrom to any
extent or in any respect.
Louisville & N. R. Co. v. Mottley, 219 U.
S. 467, 477, 55 L. ed. 297, 301, S4 L.R.A.
(N.S.> 671, 81 Sup. Ct Rep. 265; American
141 V. S.
1915.
MISSOURI V. CHICAGO, B. & Q. R. CO.
Sugar Ref . Co. v. Pelaware, L. ft W. R. Co.
126 C. C. A. 251, 207 Fed. 742.
When the bUls enjoining the enforcement
of the Missouri maximum freight and pas-
senger laws of 1905 and 1907 were dismissed
without prejudice, those laws became
yalid and effective from the date of their
enactment; hence, it was and is unlawful
for the defendant to charge, collect, demand,
or retain any greater or less compensation
for the transportation of property or pas-
sengers than is specified in such acts.
Pierce v. Pierce, 46 Ind. 86; McCollum v.
McOonaughy, 141 low*, 172, 119 N. W. 539.
Messrs. Ernest £. Watson and Herbert A.
Abemethy also filed a brief as amid ourice:
The question of confiscation as to the
past is re9 judioaia,
Chicago, M. & St. P. R. Co. v. Minnesota,
134 U. 6. 418, 458, 33 L. ed. 970, 982, 3
Inters. Com. Rep. 209, 10 Sup. Ct. Rep.
462, 702; Ex parte Young, 209 U. S. 123,
162-167, 52 L. ed. 714, 730-732, 13 L.R.A.
(N.S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann.
Cas. 764; St. Louis & 8. F. R. Co. v. Gill,
156 U. S. 649, 659, 666, 39 L. ed. 567, 570,
573, 15 Sup. Ct. Rep. 484; Southern P. Co.
▼. Railroad Comrs. 78 Fed. 249; Haverhill
Gaslight Go. v. Barker, 109 Fed. 696; St.
Louis & S. F. R. Co. v. Hadley, 161 Fed.
419; St. Louis, I. M. & S. R. Co. v. Bellamy,
211 Fed. 178.
Messrs. O. M. Spencer and Frank Hag-
erman argued the cause, and, with Mr.
Chester M. Dawes, filed a brief for defend-
ant:
A dismissal without prejudice means
that the issues can be again litigated "as
if no previous suit had been commenced.'*
•Northern P. R. Co. v. St. Paul, M. & M. R.
Co. 47 Fed. 536; Mobile County * v. Kim-
ball, 102 U. S. 691. 26 L. Ad. 238; A. H.
Averill Mach. Co. v. AUbrittou, 51 Wash.
30, 97 Pac. 1082; Whitehouse, Eq. Pr. § 395.
If, as the answer alleges, the 2-cent stat-
utory fare requirement was confiscatory,
then complainant cannot recover, and any
defense which so shows is, of course, proper.
(a) The matter stricken at is the plea
that the 2-cent statutory rate was confisca-
tory for the two separate and distinct rea-
sons that it, first, prevented defendant from
earning a fair return upon the value of the
entire property devoted to the use, and
second, actually required the defendant to
carry passengers at a less rate than the
transportation actually cost. The two
ideas are distinct and separate. If the
statute did not permit the defendant to
earn . a fair return upon the value of its
property in the state,"" devoted to its use,
then it was confiscatory and not binding
upon defendant.
•0 Ii. ed.
Smyth V. Ames, 169 U. S. 466, 42 L. ed.
819, 18 Sup. Ct. Rep. 418; Norfolk k W. R.
Co. V. Conley, 236 U. S. 605, 59 L. ed. 745,
P. U. R. 1915C, 293, 35 Sup. Ct. Rep. 437.
Moreover, if that return was so meager
that it was insufiicient to pay for the cost
of that particular service, the statute was,
for that reason, void.
Southern R. Co. v. St. Louis Hay k Grain
Co. 214 U. S. 297, 302, 53 L. ed. 1004, 1006,
29 Sup. Ct. Rep. 678; Northern P. R. Co.
V. North Dakota, 236 U. S. 585, 59 L. ed.
735, L.R.A. — , -, P. U. R. 1915C, 277,
35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1.
(b) Had the bill been filed in the dis-
trict court in the proceedings out of which
the claim arises, instead of here (Krippen-
dorf V. Hyde, 110 U. S. 276, 280-282, 28
L. ed. 145, 147, 148, 4 Sup. Ct. Rep. 27;
Root V. Woolworth, 150 U. S. 401, 411, 413,
37 L. ed. 1123, 1125, 1126, 14 Sup. Ct. Rep.
136), it would have borne every earmark
of the familiar ancillary and dependent bill
in equity. If the bill is correctly framed
in equity and a consideration of the ques-
ti(m of confiscation is limited to that forum,
then the defense is proper because equity
rule 30 expressly permits a defendant to
"state as many defenses, in the alternative,
regardless of consistency, as the defendant
deems essential to his defense."
(c) If, however, r^ardless of the aim of
the pleader, the alleged bill be construed as
a simple petition at law, the same result
follows.
(d) A railroad company can, by its own
original bill in equity, have injunctive re-
lief against the enforcement of statutory
state rates because confiscatory (Smyth v.
Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup.
Ct. Rep. 418; Ex parte Young, 209 U. S.
123, 52 L. ed. 714, 13 L.R.A.(X.S.) 932, 28
Sup. Ct. Rep. 441, 14 Ann. Cas. 764),
though the state could not be made a party
to such an action.
But even if the state could have been so
sued, that remedy would not be now avail-
able, because past, not future, acts, are
here involved, and injunctive relief is, or-
dinarily, to prevent future, not past, wrong-
doing. But even if the proceedings in
equity might have been better suited for
the purpose, that fact would not prevent a
defendant from asserting the defense at law
or to a suit of the state by mandamus or
injunction compelling obedience to the stat-
ute, or any kind of a case in which the
carrier might be called to account because
of a rate charged in excess of that fixed by
statute. The question of convenience is for
the party calling for the constitutional pro-
tection.
St. Louis & S. F. R. Co. v. Gill, 156 U.
S. 649, 666, 39 L. ed. 567, 573, 15 Sup.
ll&l
BUPRraiE COURT OF THE UNITED STATBa
Oct. Tknc,
Ct Bep. 484; Ex parte Young, 209 U. &
123, 165, 166, 62 L. ed. 714, 731, 732, 13
L.ILA.(NJS.) 932, 28 Sup. Ot. Rep. 441, 14
Ann. Cae. 764; Wadley Southern R. Co. v.
State, 137 Ga. 497, 73 S. E. 741, 235 U. 8.
651, 59 L. ed. 405, P. U. R. 1015A, 106, 35
Sup. Ct. Rep. 214; Chicago & G. T. R. Co.
y. Wellman, 143 U. S. 339, 36 L. ed. 176,
12 Sup. Ct. Rep. 400, affirming 83 Mich.
592, 47 N. W. 489; Lake Shore & M. S. R.
Co. V. Smith, 173 U. S. 684, 43 L. ed. 858,
19 Sup. Ct. Rep. 565, rereraing 114 Mich.
460, 72 N. W. 328; Chicago, M. k St. P. R.
Co. v. Minnesota, 134 U. S. 418, 458, 33 L.
ed. 970, 981, 3 Inters. C<mi. Rep. 209, 10
Sup. Ct. Rep. 462, 702; Northern P. R. 06.
V. North DakoU, 236 U« S. 585, 59 L. ed.
735, L.RJi , — , P. U. R. 1915C, 277, 35
Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1, 26
N. D. 438, 145 N. W. 135; Northern P. R.
Co. Y. North Dakota, 216 U. S. 579, 54 L.
ed. 624, 30 Sup. Ct. Rep. 423; State v.
Pacific Exp. Co. 80 Neb. 823, 18 L.R.A.
(N.S.) 664, 115 N. W. 619; State v. Adams
Exp. Co. 80 Neb. 840, 115 N. W. 625; SUte
y. Adams Exp. Co. 85 N^. 25, 42 L.ILA.
(N.S.) 396, 122 N. W. 691; State v. WeUs-
Fargo & Co. 85 Neb. 42, 122 N. W. 697;
Atty. Gen. t. Chicago & N. W. R. Co. 35
WU. 425.
Wherever, as here, the state, which is not
subject to suit by the carrier, in its sover-
eign capacity, itself seeks to enforce a stat-
ute by a recovery of refunds thereunder,
there surely can be no objection to permit-
ting a defense to be made upon the ground
of reasonableness of the rate. In such a
proceeding the state is a party just as it
is in a mandamus or an injunctive proceed-
ing, and a judgment in such an action
would be as binding and as conclusive as
though the proceeding had been instituted
against some officer of the state, as defend-
ant, by the railway company as plaintiff.
Missouri P. R. Oo. v. Tucker, 230 U. S.
340, 346, 57 L. ed. 1507, 1509, 33 Sup. Ct.
Rep. 961.
Complainant cannot recover because of
any common-law right based upon an ex-
orbitant charge ooercively exacted, but, if
it could, defendant would be entitled to a
hearing upon its defense of confiscation.
Texas & P. R. Co. v. Abilene Cotton Oil
Co. 204 U. S. 426, 436, 51 L. ed. 553, 557,
27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075;
Young v. Kansas City, St. J. & C. B. R. Co.
33 Mo. App. 514; State ex rel. Crow v.
Atchison, T. & 8. F. R. Co. 176 Mo. 716, 63
L.R.A. 761, 75 8. W. 776; McOormick v.
Kaye, 41 Mo. App. 268; Boone County^
Home Mut. Ins. Co. v. Anthony, 68 Mo. App. i
428; State v. Dalton, 134 Mo. App. 526, 114 |
S. W. 1132; Davidson v. Schmidt, 146 Mo.
App. 868, 124 S. W. 552; Chicago, M. k' St '
1151
P. R. Co. V. Minnesota, 184 U. & 418, 33 L.
ed. 970, 3 Inters. Com. Rep. 209, 10 Sup. Ct.
Rep. 462, 702; St. Louis & & F. R. Co. ▼.
Gill, 156 U. S. 649, 39 L. ed. 567, 15 Sup.
Ct. Rep. 484; Smyth t. Ames, 169 U. S.
466, 42 L. ed. 819, 18 Sup. Ct Rep. 418; Ex
parte Toung, 209 U. S. 123, 52 L. ed. 714,
13 LJLA.(NJ3.) 932, 28 Sup. Ct Rep. 441,
14 Ann. Cas. 764; Willoox v. Ccmsolidated
Gas Oo. 212 U. S. 19, 53 L. ed. 382, 48
L.RJL(N.S.) 1134, 29 Sup. Ct Rep. 192,
15 Ann. Cas. 1034; Coal k Coke R. Co. r.
Conley, 67 W. Va. 177, 67 S. E. 613; Chesa-
peake & O. R. Co. V. -Conley, 230 U. S.
513, 522, 57 L. ed. 1597, 1603, 33 Sap. Ct
Rep. 985; Winsor Coal Co. v. Chicago k A.
R. Co. 52 Fed. 716.
Complainant cannot recover oo the
ground that it is entitled to the excess fares
paid by its officers, and is entitled to resti-
tution, but, if it could, o<mfiscatioo would
be a defense upon whicJi the carrier would
be entitled to be heard.
Since, legally, neither damage nor wrong
was done by the injunction, the doctrine of
restitution is not involved.
RusseU V. Farley, 105 U. S. 433, 435-446,
26 L. ed. 1060, 1061-1064; Oelrichs ▼. Spain
(Oelrichs v. Williams) 15 WaU. 211, 229, 21
L. ed. 43, 45; Meyers v. Block, 120 U. a
206, 209, 30 L. ed. 642, 643, 7 Sup. Ct R^.
525; Cimiotti Unhairing Co. v. American
Fur Ref. Co. 158 Fed. 172; St Louis v. St
Louis Gaslight Co. 82 Mo. 353; Scheck v.
Kelly, 95 Fed. 941.
The right to claim restitution belongs not
to the state as a passenger, but exclusively
to the party to the record.
McLagan v. Brown, 11 III. 519; Major ▼.
Collins, 17 111. App. 239; Edwards v. Phil-
lips, 91 N. C. 355; 18 Enc. PI. k Pr. 879,
880.
The state never was and could not have
been a party defendant to the original
cause (Ex parte Young, 209 U. S. 123, 52
L. ed. 714, 13 L.ILA..(N.S.) 932, 28 Sup.
Ct. Rep. 441, 14 Ann. Oas. 764), and its
right to make claim on bdialf of its several
officers is not made apparent This sug>
gestion completely answers any claim for
restoration, because, if it exists, it arose in
favor of and is held by the state in its pro-
prietary capacity. On such account alone
it can sue here in this, an original, pro-
ceeding.
While it is the general rule that property
received imder a judgment subsequently re-
versed must be restored, yet the right of
restitution is not absolute, and the party
in possession of the property may deny such
right by showing that he is equitably, and
justly entitled thereto.
3 Cyc. 463; 18 Enc PI. k Pr. pp. 875, 876,
877; Teasdale v. Stoller, 133 Mo. 652, 54
141 V. 8.
1916.
MISSOURI T. CHICAGO, B. & Q. B. 00.
536, 637
Am, St. Rep. 708, 34 8. W. 873; Gould v. j sues to reoover a sum of mon^ for passenger
McFall, 118 Pa. 466, 4 Am. St Rep. 606, 12 | fares in ezceas of the rate established by
Ail. 336; Andrews v. Thum, 18 C. C. A. ' ' '" '— '*- -'^ '~ ^ '* '^'^
308, 33 U. S. App. 393, 71 Fed. 763; Carl-
•cm y. Winter son, 7 Misc. 16, 27 N. Y. Supp.
368; State ez rel. Hayd^ v. Horton, 70
Neb. 334, 97 N. W. 437, 99 N. W. 601;
Dupuy Y. Roebuck, 7 Ala. 484; Crodcer v.
Clements, 23 Ala. 296; Freeman, Judgm. 3d
«d. p 509, § 481.
Mr. O. M. Spencer also filed a separate
brief for defendant:
The defendant herein stands in relation
to this suit and any defense it has, just
as if no former litigation over the rates
in Missouri had ever occurred.
Northern P. R. Co. v. St. Paul, M. & M. R.
Co. 47 Fed. 536; MobUe County v. Kim-
ball, 102 U. S. 691, 26 L. ed. 238; White-
house, £q. Pr. f 395, p. 638; 2 Street, Fed.
Eq. Pr. p. 817, § 1348; A. H. Averill Mach.
Co. .V. Allbritton, 51 Wash. 30, 97 Pac.
1082; Durant v. Essex Co. 7 Wall. 109,
19 L. ed. 156; Shepherd v. Pepper, 133
U. S. 026, 33 L. ed. 706, 10 Sup. Ct. Rep.
438; Thurston v. Thurston, 99 Mass. 39;
Hazen v. LyndonviUe Nat. Bank, 70 Vt.
4S43, 67 Am. St. Rep. 680, 41 AtL 1046;
Reynolds v. Hennessy, 17 R. I. 169, 20 Atl.
307, 23 Atl. 639 ; English v. English, 27 N.
J. Eq. 679; Ballentine v. Ballentine, 2
Monaghan (Pa.) 333, 15 AtL 859; O'Keefe
T. Irvington Real Estate Co. 87 Md. 196,
39 Atl. 428; Lang v. Waring, 25 Ala. 625,
60 Am. Dec. 533; Nevitt v. Bacon, 32 Miss.
212, 66 Am. Dec 609; Tucker v. Wilson,
68 Miss. 693, 9 So. 898; Epstein v. Ferst,
S5 Fla. 498, 17 So. 414.
The mere fact that the railroad company
is now a defendant, and not a complainant,
cannot bar its right to make the same de-
fense again; for while the usual method of
testing the reasonableness of rates is by
•uit in equity, yet the same defense can
be made in any action at law.
Ex parte Young, 209 U. S. 123, 166, 52
L. ed. 714, 731, 13 L.RJk.(N.S.) 932, 28
Sup. Ct. Rep. 441, 14 Ann. Cas. 764; St.
Louis A S. F. R. Co. ▼. Gill, 156 U. S. 649,
39 L. ed. 567, 15 Sup. Ct. Rep. 484; North-
ern P. R. Co. V. North Dakota, 236 U. S.
585, 59 L. ed. 735, L.R.A.— , — , P.U.R.
1915C, 277, 35 Sup. Ct. Rep. 429, Ann. CtiB.
1916A!, 1; Chicago, M. A St. P. R. Co. v.
Minnesota, 134 U. S. 418, 33 L. ed. 970, 3
Inters. Com. Rep. 209, 10 Sup. Ct. Rep. 462,
702; 1 Michie, Carr. p. 119, § 139.
Mr. Chief Justice White delivered the
epinion of the court:
A preliminary outline is essential to dear
the way for an understanding of the case.
By original action here brought, the atate
•0 li. ed.
law, paid by its officers when traveling with-
in the state, on state buainess. Answering,
the railroad alleges among other defenses
that the rates fixed by law were so low as to
be confiscatory, and hence repugnant to the
Constitution of the United States. The mat-
ter for decision arises on a motion on be-
half of the state to strike out this defense
on the ground that the right to assert it is
barred by a decree of this court, establishing
that the rates fixed by the state law were
lawful, and not jeonfiscatory, — a decree the
conclusive effect of which, it is asserted, the
railroad company is estopped from denying.
The case as made by the pleadings and by
the record in which the decree relied on was
rendered, of which we take judicial notice, is
this: In April, 1906, by law, Missouri es-
tablished certain freight rates. Almost at
once the defendant company and others filed
their bUb in [537] the circuit court of the
United States for the western district of
Missouri against the State Board of Ware-
house Commissioners, the attorney general
of the state, and certain shippers, alleged to
be representative, to enjoin the carrying out
of the rate-fixing law on the ground that to
enforce the rates which it fixed would re-
sult in confiscation and a taking of the
property of the railroads in violation of the
Constitution. An injunction was granted
prohibiting the carrying into effect of the
rate law. While these suits were pending,
the state by law fixed a passenger rate, and,
repealing the freight law which had been
enjoined, enacted another, and by supple-
mental bills both these laws were assailed
on the grounds upon which the other law
had been attacked, and injunctions were
awarded restraining their enforcement.
After much testimony offered on the issue
of confiscation, the court permanently en-
joined the enforcement of the state
statutes. On review in this coturt, as
to the railroad now before us and
others, this conclusion was held to be
erroneous, and the decree which was en-
tered here reversed and remanded the ease,
with directions to dismiss the bill, without
prejudice. Missouri Rate Cases (Knott v.
Chicago, B. & Q. R. Co.) 230 U. S. 474, 509,
67 L. ed. 1571, 1696, 33 Sup. Ct Rep. 976.
Although the contentions respectively
pressed in argument are numerous, their
solution depehds upon the application of a
few well-settled principles which we proceed
to state in order to test all the propositions
by applying them, and thus avoid redun-
dancy. ^
1. In Chicago, M. k St. P. R. Co. v. Min-
nesota, 134 U. 8. 418, 33 L. ed. 970, 3 In-
ters. Com. Rep. 209, 10 Sup. Ct. Rep. 462,
73 1'
537^540
8UPRBMB COUBT OF THE UNITED STATES.
Oct. Tbbic,
702, considering a law fixing imilroad rates
in the light of two letUed rules, (a) that,
in exerting the public rate-making power, the
rates cannot be made so low as to be con-
fiscatory, without Tiolating the Constitu-
tion, and (b). that although a state is not
subject to suit without its consent, there is
always the right to enjoin an individual,
whether he is a state officer or not, from do-
ing an act violating the Constitution, that is,
from taking property [538] unlawfully, it
was held that both these propositions con-
trolled in the fullest degree in the
legislatiye fixing of railroad rates. In
fact it. was in that case decided that
from the act of fixing railroad rates
by law there resulted the duty to
provide an opportunity for testing their re-
pugnancy as a unit to the Constitution in
case there was a charge that they were con-
fiscatory. It was accordingly held that, in
virtue of the due process of law provision
of the 14th Amendment, the state could not
by mandamus compel a railroad to comply
with rates fixed by a state law unless an op-
portunity was afforded to test the question
of confiscation.
Developing and applying this doctrine in
many cases, it came to pass that on the
complaint of a railroad as to the confisca-
tory character of rates fixed by state law,
the right was recognized to test the rates
as a unit, and therefore to obtain an
injunction restraining the enforcement of
the slate law in its entirety; and that
for such purpose any officers of the
state having any power to directly enforce
the law, or, by indirection, to give effect to
the same in any manner whatever, were
qualified as defendants to stand in judg-
ment for the relief asked. Reagan v. Farm-
ers' Loan 'k T. Co. 164 U. S. 362, 38 L. ed.
1014, 4 Inters. Com. Rep. 660, 14 Sup. Ct.
Rep. 1047; Smyth t. Ames, 169 U. S. 466,
42 L. ed. 819, 18 Sup. Ct. Rep. 418; Ex
parte Toung, 209 U. S. 123, 62 L. ed. 714,
18 L.RJk.(N.8.) 932, 28 Sup. Ct Rep. 441,
14 Ann. Cas. 764; Willcox v. Consolidated
Gas Co. 212 U. S. 19, 63 L. ed. 382, 18 L.Rj^.
(N.S.) 1134, 29 Sup. Ct. Rq>. 192, 16 Ann.
Cas. 1034; Minnesota Rate Cases (Simpson
V. Shepard) 230 U. S.'362, 67 L. ed. 1611,
48 L.RJ^.(N.S.) 1161, 33 Sup. Ct. Rep. 729,
Ann. Cas. 1916A, 18; Missouri Rate Cases
(Knott V. Chicago, B. & Q. R. Co.) 230 U. S.
474, 67 L. ed. 1671, 33 Sup. Ct. Rep. 976;
Norfolk ft W. R. Co. v. Conley, 236 U. S.
606, 69 L. ed. 746, P.UJR.1916C, 293, 36 Sup.
Ct. Rep. 437.
2. While it is true that the comprehen-
sive right thus recognized was broader and
more efficacious than would be the right of a
railroad merely to resist in each parti<;ular
case an individual effort to enforce a single
^164
rate fixed by law (see Ex parte Toung, 209
U. S. 128, 62 L. ed. 714, 13 L.RJl.(N.S.)
932, 28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764),
it is true also that the recognized broader
right was not, unless it was availed of, ex-
clusive of the latter and narrower one, that
is, the right to resist separate attempts to
enforce a rate. St Louis & S. F. R. Co. ▼.
GUI, 166 U. S. 649, 39 L. ed. 667, 16 Sup.
Ct. Rep. 484. This [639] principle was
but a recognition of the fact that the
broader right to invoke a complete
remedy to enjoin the law, and thus
prevent the enforcement of the rates,
did not take away the narrower right
of a railroad to stand upon the defensive,
and merely resist the attempt to enforce
the rate in each particular case, be-
cause of their confiscatory character.
One right was not destructive of the other,
because there was freedom to elect which
of the two would be pursued.
3. Resulting from the principles just
stated, recognizing that the operation of a
decree enjoining the giving effect to a rate
law, because of its alleged confiscatory
character, differed materially, both as to the
public interest and that of the railroad,
from the consequences which would arise
from a mere decree rejecting the complaint
of a person as to an individual and consum-
mated grievance, based on the claim that an
illegal rate had been charged, it came to
pass that a form of decree came to be ap-
plied in rate cases to meet and provide for
this difference. In other words, in a rate
case where an assertion of confiscation was
not upheld, because of the weakness of the
facts supporting it, the practice came to be
that the decree rejecting the claim and
giving effect to the statute was, where it
was deemed the situation justified it,
qualified as "without prejudice/' not to
leave open the controversy as to the
period with which the decree dealt, and
which it concluded, but in order not to
prejudice rights of property in the future^
if, from future operation and changed con-
ditions arising in such future, it resulted
that there was confiscation. And the same
limitation arising from a solicitude not to
unduly restrain in the future the operation
of the law came to be applied where the as-
serted confiscation was held to be estab-
lished. In other words, the decree enjoin-
ing the enforcement of the statute in that
ease was also qualified as without preju-
dice to the enforcement of the statute in
the future if a change in [540] conditions
arose. The doctrine in the first aspect
nowhere finds a more lucid statement than
the one made on behalf of the court by Mr.
Justice Moody in Knoxville v. KnoxviUe
Water Co. 212 U. S. 1, 63 L. ed. 371, 29 Sup.
14l'u. 8.
1015.
MISSOURI ▼. CHICAGO, B. & Q. R. CO.
640-542
Ct. Rep. 148. It has since been repeatedly
applied in language which, in the completest
way, makes the meaning of the limitation
''without prejudice^ in such a case clear,
and leaves no ground for any dispute what-
ever on the subject. Willcox v. Consoli-
dated «Gas Co. 212 U. S. 19, 53 L. ed. 382,
48 L.KJ^ (N.S.) 1134, 20 Sup. Ct. Rep.
102, 15 Ann. Cas. 1034; Northern P. R. Co.
V. North DakoU, 216 U. S. 570, 54 L. ed.
624, 30 Sup. Ct. Rep. 423; Louisville v.
Cumberland Teleph. k Teleg. Co. 225 U. S.
430, 56 L. ed. 1151, 32 Sup. Ct. Rep. 741;
Missouri Rate Cases (Knott v. Chicago, B.
k Q. R. Co.) 230 U. S. 474, 57 L. ed. 1571,
33 Sup. Ct. Rep. 075; Des Moines Gas Co.
V. Des Moines, 238 U. S. 153, 50 L. ed.
1244, P.U.R.1015D, 577, 35 Sup. Ct. Rep.
811. A complete illustration of the opera-
tion of the qualification is afforded by the
North Dakota Case, just cited, since in
that case, as a result of the qualification
"without prejudice," the case was subse-
quently reopened, and upon a consideration
of new conditions arising in such future
period, a different result followed from that
which had been previously reached. 236
U. S. 585, 50 L. ed. 735, L.R.A.— , — ,
P.U.R.1015C, 277, 35 Sup. Ct. Rep. 420,
Ann. Cas. 1016A, 1. As to the second as-
pect, that is, the significance of the limita-
tion "without prejudice" as applied to a
decree which enjoined the rates as confisca-
tory, the meaning of the reservation as we
have stated it was in express terms, through
an abundance of precaution, defined and
stated in the opinion in the Missouri Rate
Cases (Knott v. Chicago, B. k Q. R. Co.)
230 U. S. 474, 508, 57 L. ed. 1571, 1504, 33
Sup. Ct. Rep. 075.
Let us test the merit of the respective
contentions by these propositions.
(a) It is insisted that the right obtains
to assert, as against the individual suit of
the state, the existence of the confiscation
for the very period covered by the previous
finding that there was a failure to establish
the confiscation, because the reservation
"without prejudice," which was made in
that decree, leaves the whole subject open
for a renewed attack as to individuals, and,
indeed, by general complaint as to the un-
eonstitutionality of the law as a whole.
But this proposition simply disregards the
foundation [541] upon which such a reser-
vation came to be applied, as we have just
pointed out, in cases involving an assault
open the present and future operation of
a law fixing rates. In other words, the
eontention but accepts the doctrine pre-
viously announced, and yet repudiates the
eases by which that doctrine was estab-
lished, by affixing a meaning to the reserva-
tion '^without prejudice," as used in the
•0 li. ed.
cases, wholly destructive of the sole ob-
ject and purpose for which, in those cpses»
the reservation came to be applied. Again,
it is said, conceding that the limitation
"withont prejudice," when applied to a
rate case, imder the authorities, has the
significance which we have affixed to it, that
meaning should only prevent the reopening
of the inquiry as to the period embraced
by the testimony in the case, and therefore
should not be extended so as to prevent the
reopening from the time, at least, of the
close of the testimony. This, it is said,
must be the case, since there might well be
a change in conditions between the time
when the proof in a case was taken and the
entry of the final decree. But this conten-
tion again disregards the doctrine upon
which, as we have pointed out, the reserva-
tion in rate-making cases came to be ap-
plied. In other words, it treats the reser-
vation "without prejudice" as looking
backward, and overthrowing that which
was concluded by the decree, instead of con-
sidering it in its true light, that is, as
looking forward to the future, and provid-
ing for conditions which might then arise,
(b) Conceding, for the argument's sake,
the controlling infiuence of what we have
said, nevertheless the contention is that the
previous decree is here inapplicable, since
the state was not a party to the litigation
in which the decree was entered; indeed,
could not have been made a party without
its consent.' But once more the argument
proceeds upon a disregard of the previous
cases, upon the authority of which the
right was exercised to obtain, on the charge
of confiscation, the exertion of judicial au-
thority [542] to stay or suspend every
vestige of power asserted by the state stat-
ute fixing rates imtil the controversy was
determined. In other words, the proposi-
tion ignores the doctrine settled by
the previous cases that there inhered
in, and went along with, the rate-
making power, a duty on the part of the
state to afford means for judicially
deciding a question of confiscation when
asserted. It is true, as we have previously
pointed out, that because there was a right
on the part of a railroad to sue to prevent,
tlie execution of the state power manifested
in the rate-making law, it did not follow
that the railroad was deprived of its right.
to resist the enforcement of the law by way
of defense when an attempt was made to*
enforce the law against it. But it is true
also, as we have seen, that the right to-
elect between the two was undoubted,— -an.
election the potency of which was pointed,
out in the Gill Case, supra, and was, more-
over, in the clearest way, fully expounded
in the Young Case, 200 U. 8. p. 166,.
1156.
542-644
SUPREME COURT OP THE UNITED STATES.
Cot. Tekh,
52 L. ed. 731, 13 L.RJL.(N.S.) 032, 28
Sup. Ct. Rep. 441, 14 Ann. Caa. 764.
This being true, it is obvious that the ques-
tion here is not how far the decree re-
lied upon was binding upon parties who
were not technical defendants, but how
far is it binding upon the railroad? In
other words, it is whether, when there has
been an election to obtain a remedy by
proceedings against particular defendants,
comprehensive enough to restrain the giv-
ing effect of every vestige of state power
which was embraced in the authority ex-
erted by the state in passing the ratemak*
ing law, it can now be said by the rail-
road, in order to frustrate or limit the
decree rendered in the case, that the re-
straint did not operate as against the rate-
making power so far as the interest of the
state is concerned, because the state was
not a party. The right to restrain the
whole power having been enjoyed for the
purpose of the complaint as to confisca-
tion which was made, the contrary can-
not be assented in order to escape the
effect of the decree, holding that sach
complaint was erroneously made. In last
analysis, [543] the contention comes sim-
ply to asserting that the settled rule of Ex
parte Young and the cases, which pre-
ceded it was wrong, and there was no
right to restrain the complete enforcement
of the' rate law without the presence of
the state as a technical party. And the
cogency of this consideration is made quite
clear by bearing in mind, as expressly
pointed out in the Young Case, supra, that
the power which the court possessed by
virtue of the bringing of the suit at the
instance of the railroad to enjoin and sus-
pend the whole rate-making law comprehen-
sively included the right to stay proceed-
ings brought in other courts, which would
have tended to set aside or frustrate the
authority to completely exercise the ju-
risdiction acquired.
As it results from what we have said
that, in our opinion, by the application of
the most elementary principles of estoppel,
the railroad may not be heard to disavow
what it asserted in order to secure the sus-
pension of the rate law during the suit, it
follows that it was without right in this
case to assert the defense of confiscation,
and the motion to strike out the same must
therefore prevail.
As the view which we have taken of the
controversy has not rendered it necessary to
consider whether, in any event, the suit
was not a class suit binding upon all, into
that subject we have not entered. Addi-
tionally, we have not considered, and ex-
press no opinion upon, the arguments deal-
ing with questions of the ultimate right to
115«
recover in the absence of a condition to
that effect imposed when the injunction
was issued, in view of the terms of the in-
junction bond, etc., etc.
The motion to strike out the defense of
confiscation from the answer is granted.
Mr. Justice McKenha dissents.
[544] OGDEN M. REID, Petitioner,
V.
JAMES C. PARGO, as President of the
American Express Company, et al.
(See 8. C. Reporter's ed. 544-551.)
Appeal — in adiuiralty — trial de no ro.
1. An appeal to a Federal circuit court
of appeals from a final decree of a district
court in a suit in admiralty brings the case
before it for a trial de novo so that the
court may review an interlocutory decree
therein which was not appealed from, and
allow a recovery against a party who was
dismissed by that decree, and may review
both interlocutory and final decrees so far
as essential to grant relief to a party who
had not appeals from either decree.
I For other cases, see Appoal and Error, VIII.
c. 3. in Digest Sup. Ct. 10U8.]
Evidence — sufflciency — negligence.
2. The presumption that a rope, used as
a sling by stevedores in attempting to trans-
fer a boxed automobile from a ship's hold to
a pier, was strong and efficient, arising
from the fact that it held the weight of the
box until it was lifted above the hatch, and
until, by a swinging motion, the danger
of the strain ins or cutting of the rope upon
the unprotected edges of the box was more
likely to result, gives adequate ground for
the inference, there being no evidence of
any defect in the rope, that it was such
cutting and straining which led to the
severance of the rope, and the precipitation
of the car into the water.
[For other cases, see Bvidence, XII. d, in
Digest Sap. Ct 1908.]
Carriers — express companies — liabil-
ity as forwarder.
3. An express company which accepted
in London an automobile to be shipped to
New York, and, having boxed the same,
shipped it by an ocean carrier without de-
claring its value, taking from the steamship
company a bill of lading limiting liability
to $100 unless a greater value is declared
and extra freight paid, was secondarily lia-
ble to the owner, where the car was serious-
ly damaged through the negligence of steve-
dores employed by the^ steamship company
to discharge the cargo, even though the ex-
press company be regarded as a mere for-
warding agent.
[For other cases, see Carriers, II. b, 1, Ut
Digest Sup. Ct. 1908.]
Shipping — vessel as carrier — limitinf
liability — agreed value.
4. A steamship company may, by a
241 U. S.
1915.
KEID ▼. FARGO.
ftipulation in its bill of lading, limit its
liability to $100, unless a greater value
is declared and such extra freight as may
be agreed upon is paid.
[For other cases, see Shipping, IV. c^ 4, In
Digest Sup. Ct. 1908.]
[No. 279.]
Argued March 13, 1916. Decided June 12,
1916.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for the
Second Circuit to review a decree which,
reversing a decree of the District Court for
the Southern District of New York in an
admiralty suit, exonerated stevedores and
an express company from liability for dam-
age to a shipment, and held the steamship
company liable to an amount not exceeding
the limitation stated in the bill of lading.
Reversed and remanded to the trial court,
with directions to enter a decree holding the
stevedores primarily liable, and the steam-
ship company and express company second-
arily liable, with a limitation of the steam-
ship company's liability to that stated in
the bill of lading.
See same ease below, 130 C. C. A. 285,
213 Fed. 771.
The facts are stated in the opinion.
Mr. Oscar R. Houston argued the cause
and filed a brief for petitioner:
One who has not appealed cannot be
heard except in support of the decree be-
low.
Canter ▼. American Ins. Co. 3 Pet. 307, 7
L. ed. 688; Stratton ▼. Jarvis, 8 Pet. 4, 9,
10, 8 L. ed. 846, 848, 849; The William
Bagaley, 5 WaU. 377, 412, 18 L. ed. 583,
591 ; The Quickstep, 9 Wall. 665, 672, 19 L.
ed. 767, 769; The Maria Martin, 12 WaU.
31, 20 L. ed. 251; The Mabey, 13 WaU. 738,
741, 20 L. ed. 473, 474; The Merrimac, 14
WaU. 199, 201, 20 L. ed. 873, 874; The D. R.
Martin, 91 U. S. 365, 366, 23 L. ed. 439,
440; The Stephen Morgan, 94 U. S. 599,
24 L. ed. 266.
Even if the rule of Munson S. S. Line ▼.
Miramar S. S. Co. 03 C. C. A. 360, 167 Fed.
960, is sound, the present case is distin-
guishable.
The Dove, 91 U. S. 381, 384, 385, 23 L.
ed. 354, 355; Bowker v. United States, 186
U. S. 135, 140, 46 L. ed. 1000, 1092, 22 Sup.
Ct. Rep. 802; The Hudson, 15 Fed. 172; Re
New York & P. R. S. S. Co. 155 U. S. 523,
39 L. ed. 246, 15 Sup. Ct. Rep. 183; Bene-
dict, Admiralty, § 410; Henderson v. Kan-
awha Dock Co. 107 C. C. A. 651, 185 Fed.
781 ; The John ft Winthrop, 106 C. C. A. 1,
182 Fed. 380.
The obligation of the Express Company'
•0 li. ed.
to declare the value of the car is quite
analogous to the duty of every forwarding
agent to pass on to the carrier the fuU in-
structions for delivery received by it from
the shipper; and it is well settled that the
forwarder is liable for failure to perform
this duty.
Little Miami R. Co. ▼. Washburn, 22
Ohio St. 324; Chartrand ▼. Southern R. Co.
86 S. C. 479, 67 S. E. 741; Forsythe v.
Walker, 9 Pa. 148; North v. Merchants' &
M. Transp. Co. 146 Mass. 315, 15 N. E.
779; Colfax Mountain Fruit Co. v. Southern
P. Co. 118 Cal. 648, 40 L.RJL 78, 50 Pac.
775.
The obligation of the Express Company is
also analogous to the duty of the seller of
personal property under a contract by
which title is to pass to the buyer upon
shipment by a common carrier. The duty
of such a seller to ship in the usual and
customary manner with reasonable care is
believed to be substantially the same as
that of the forwarding agent in the present
case. It has been held to be negligence on
the part of the seller to ship goods at a
valuation sui>stantially lower than the true
value.
Clarke v. Hutchins, 14 East, 475; Miller
V. Harvey, 83 Misc. 59, 144 N. Y. Supp. 624.
Mr. Walter F. Taylor argued the cause
and filed a brief for James C. Fargo:
The appeal by T. Hogan & Sons, Inc.,
opened the whole case so that the circuit
court of appeals had power to reverse the
portion of the decree holding the Express
Company liable.
Irvine v. The Hesper, 122 U. S. 256, 30
L. ed. 1175, 7 Sup. Ct. Rep. 1177; Yeaton
V. United States, 5 Cranch, 281, 3 L. ed.
101; The Lucille, 19 Wall. 73, 22 L. ed. 64;
The Charles Morgan, 115 U. S. 69, 29 L.
ed. 316, 5 Sup. Ct. Rep. 1172; The Con-
nemara, 108 U. S. 352, 360, 27 L. ed. 751,
754, 2 Sup. Ct. Rep. 754; Munson S. S. Line
V. Miramar S. S. Co. 93 C. C. A. 360, 167
Fed. 960; The Galileo, 29 Fed. 538; The
Umbria, 8 C. C. A. 194, 11 U. S. App. 612,
59 Fed. 489.
The limitation clause contained in the
bill of lading was not intended to apply
and does not apply to shipments on which
the rates are fixed on a basis oth*er than
value. When it is manifest that the rate
on a shipment would not be in any way af-
fected by disclosure of its value, an agree-
ment fixing the limit of liability at any-
thing less than the true value of the goods
would be purposeless from the shippers'
point of view, and there would be no con-
sideration to support it.
Hart V. Pennsylvania R. Co. 112 U. S.
331, 28 L. ed. 717, 5 Sup. Ct. Rep. 151;
T7
SCPKKMS OOURT OF THE UNITED StATBS.
Oct. Tun,
Hiuonr) P. R. Co. *. HBrp«r Btm. 121 C.
C. A. BTO, 201 Fed. 071; GMrge K. Pieroe
Co. T. WelU, F. t Co. 236 U. S. 8TS, 284,
S« L. ed. S76, 682, 3G Sup. Ct. Kep. 301.
The sdmiuion of T. Hogan ft Sou, Ine.,
tbiit the automobile, while in their eiutod;,
fell into the water, is enough to euetain
the cliarge of negligence agatnit them, in
the absence of a satistactorT' explanation
that the fall of the car was attributable to
•ome cause for which they were not re-
■pooeible.
Inland & 8. Coasting Co. t. Tolson, 139
U. S. 551, 605, 35 L. ed. 270, 271, U Sup.
Ct. Rep. 653; Sweeney v. Erring, 228 U. S.
233, 67 L. ed. 816, 33 Sup. Ct. Hap. 416,
Ann. Cm. 19I4D, 906; Marceau v. Hut-
land S. Co. 211 N. Y. 203, SI L.R.A.(N.S.)
1221, 105 N. E. 206, Ann. Cas. 1S16C, 611.
Mr. RoBCoe H. Hnpper argued the
eause, and, trith Mr. Norman B, Beecher,
flled a brief for the International Mercan-
tile Harine Company:
The circuit court of appeals had no power
to direct a decree against the ateamahip
. Chicago ft E. H. Co. 140 U. 3.
S2, 3S L. ed. 331, 11 Sup. Ct. Hep. 690 i
Jackson t. Jackson, 99 C. C. A. ZSB, 176
Fed. 716.
The only fair inference from the evidence
is that the accident was due to the cutting
of the rope on the unprotected edgea of the
case, or to undne strain put upon the sling
in pulling the case sideways across the deck.
If the rope parted because it was cut by
the unprotected edges of the case, the con-
dition of the breali would be fully explained.
Although Hogan's gangway man testified
that there were no jerks, Hogan's wlnchman
was not produced. No sufficient explana-
tion having been given, it would seem that
Hogan must be held.
San Juan Light ft Transit Co. v. Hequena,
224 U. B. 89, S8, 99, 00 L. ed. 880, 684, 32
Sup. Ct. Rep. 399.
If, notwithstanding the pleadings, Reid
be regarded as claiming against the steam-
ship company, it cannot be doubted that
the steamship company can avail itself
against him of this contract, made for its
benefit (Hendrick v. IJndsay, 93 U. S. 143,
23 L. ei]. 860, and particularly by way of
release from liability, Robinson v. Balti-
more ft 0. R. Co. 237 U. 8. 84, 69 L. ed.
849, 30 Sup. Ct Rep. 491. 8 N. C. C. A. 1 ;
Baltimore ft 0. S. W. R. Co. v. Voight, 176
U. S. 498, 44 L. ed. S60, 20 Sup. Ct. Rep.
386).
No more can it be doubted that by these
provisions of the Express Company's con-
ditions of carriage the steamship company
was devested of its insurer's liability both
11S8
aa to Reid and the Bxprei
remained responsible only for such negli-
gence as should be proved against It So
long aa the stipulation does not purport to
avoid liability for negligence, it is no ob-
jection that the burden of proof Is placed
on the shipper.
New Jersey Steam Nav. Co. v. Merchants'
Bank, 6 Hon. 344. 384, ]2 L. ed. 465, 4B3;
Clark v. Barnwell, 12 How. 272, 13 L. ed.
986: York Mfg. Co. v. Illinois C. R. Co. 3
Wall. 107, 18 L. ed. 170; The Folmina. 212
U. S. 354. 362, 63 L. ed. 640, 650, 29 3np.
Ct. Hep. 363, 16 Ann. Caa. 748.
The steamship company's liability, if any
eziBted, was limited to 8100 by the term*
of its bill of lading.
Hart V. Pennsylvania R. Co. 112 U. 8.
331, 28 L. ed. 717, 0 Sup. Ct. Rep. 161-,
Adams Eip. Co. t. Croninger, 228 L'. S. 491,
67 I* ed. 314, 44 L.R.A.(N.8.) 257, 33 Sup.
Ct. Rep. 148; Wells, F. ft Co. v. Neiman-
Usrcui Co. 227 U. S. 469, 67 L. ed. 600, 33
Sup. Ct. Rep. 267) Kansas City Southern
R. Co. T. Carl, 227 U. B. 639, 67 L. ed. 683,
33 Sup. Ct. Rep. 391 ; Missouri, K. ft T. R.
Co. v. Harriman. 227 U. S. 667, 67 L. ed.
OQO, 33 Sup. Ct. Rep. 397; Great Northern
R. Co. T. O'Connor, 232 U. S. 608, 68 L. ed.
703, 34 Sup. Ct Sep. 360, 8 N. C. C. A 63;
Boston ft M. R. Co. v. Booker, 233 U. S. 97,
68 L. ed. 866, L.R.A.iei5B, 4Q0, 34 Sup. Ct
Rep. 620, Ann. Can. IQISD, 503; Atchison,
T. ft S. F. R. Co. r. Robinson, 23S V. 8.
173, 68 L. ed. 901, 34 Bup. Ct. Rep. 656;
George N. Pierce Co. v. Wells, F. ft Co. 236
U. S. 276, fiB L. ed. 070, 36 Sup. Ct Rep.
361; Hohl v. Norddeutscher Lloyd, 99 C. C
A. 166, 176 Fed. 644.
The stipulation for limited liability is
not affected by the fact that the steamship
company's printed schedule names only one
Cau V. Texas ft P. R. Co. 184 U. S. 427.
431, 432, 48 L,. ed. 1053, 1066, 10S7, 24 Sup,
Ct. Rep. 663, 16 Am. Neg. Rep. 069.
In a peculiar sense the Express Compsny,
itself a common carrier, — and aa such not
under the disability mentioned by Mr. Jus-
tice Gray in Liverpool ft G. W. Steam 0>
V. Phenix Ins. Co. (The Montana) 120 U. 8.
397, 441, 32 L. ed. 788, 792, 9 Sup. Ct Rep.
460, — was a competent contractor and could
deal at arm's length with the steamship
company, agreeing that the value of the
motor rar was not nver $100, for the asks
of avoiding the payment of extra freight
George N. Pierce Co. v. Wells, P. ft Co.
230 U. S. 276, 59 L. ed. 676, 35 Sup. Ct
Rep. 351.
Mr. Livingston PIntt argued the causey
and, with Mr. Frank H. Piatt, filed a hrial
for T. Uogan ft Sons:
Where the ship fnmishes the rope used
141 U. 8.
1016.
REID ▼. FARGO.
645-547
by the stevedore, the re8pon8H>ilit7 for the
oondition of the rope rests with the ship,
and the stevedore is justified in assuming
it is safe.
Foster v. Bucknall 8. S. Lines, 124 C. C.
A. 297, 206 Fed. 416; The Phoenix, 34 Fed.
7C0; The Rheola, 19 Fed. 926.
Tlie uncontradicted evidence is that the
stevedores used due care. The stevedores
were not insurers of the safety of the auto-
mobile. There was no presumption of neg-
ligence. The burden remained upon the
petitioner to prove negligence.
Sweeney ▼. Erving, 228 U. S. 233, 240, 67
L. ed. 815, 818, 33 Sup. Ct. Rep. 416, Ann.
Cas. 1914D, 905. See also The King Oruf-
fydd, 65 C. C. A. 495, 131 Fed. 189; Con-
nors V. King Line, 98 App. Div. 261, 90 N.
Y. Supp. 652.
Mr. Chief Justice White delivered the
opinion of the court:
This controversy thus arose: In Decem-
ber, 1910, Reid, the petitioner, delivered in
London to the American Express Company
an automobile, to be carried to New York.
The Express Company, in a communication
concerning the shipment, was informed that
the car was worth about $3,900. The car
was boxed by the Express Company and by
it delivered to the Minnewaska, a steamship
belonging to the International Mercantile
Marine Company, boupd for New York. The
Express Company shipped the 'car in its own
name as consignor, to itself in New York as
consignee, and no express notice was given
to the ship of the real value of the
package and its contents. The bill of
lading issued by the steamship company
expressly limited the liability to $100,
and contained the following clause: "It
is also mutually agreed that the value
of each package shipped hereunder does not
exceed $100, or its equivalent in English
currency on which basis the freight is ad-
juHted, and the carrier's liability shall in no
case exceed that simi, imless a value [546]
in excess thereof be specially declared, and
stated herein, and extra freight as may be
agreed on paid." On the arrival of the
ship at New York, T. Hogan & Sons, In-
corporated, stevedores, were employed to
discharge the cargo. A sling was placed
around the box containing the car, and a
fall, with a hook attached to it, was af-
fixed to the sling, and by a winch the car
was lifted up from the hold, through the
hatchway. When it had passed above the
hatchway, a hook attached to another tackle
was fastened to the sling, this second tackle
being used to swing the package toward
and over the side of the ship, to land it on
the pier. This was not accomplished, how-
ever, because, as the package swung over
•0 li. ed.
the side of the ship, toward the pier, the
sling broke, and the car fell into the water,
and was seriously damaged.
In November, 1911, Reid filed his libel in
the district court of the United States for
the southern district of New York, against
the Express Company, to recover from it
the amount of damage caused to the automo-
bile. Before answering, the Express Com-
pany, in conformity to admiralty rule 59,
of this court, and with rule 15 in admiralty
for the southern district of New York, filed
two petitions, one against the steamship
company, and the other against Hogan ft
Sons, to make them parties defendant on
the ground that, if there was any liability
on the part of the Express Company [547]
on the libel of Reid, both the steamship com-
pany and Hogan & Sons were responsible
therefor, and asking a decree over against
each of them separately in case there was
any decree against the Express Company.
Thereupon the Express Company answered
the original libel, denying responsibility on
the ground, among others, that it was a mere
forwarder. Subsequently both Hogan ft
Sons and the steamship company answered
not only the petitions of the Express Com-
pany, making them parties defendant, but
also the original libel, traversing the al-
leged liability on various grounds. The
latter company, however, referring to the
limitation of liability to $100 in the bill of
lading which it had issued, admitted its
responsibility to that extent, and alleged
that the sum thereof had been offered and
declined.
In March, 1913, an interlocutory decree
was entered, holding that Hogan ft Sons
were primarily responsible, and that the
Express Company was secondarily so, and
that when the amoxmt of the loss was as-
certained, Reid would therefore have the
right to recover the amount from Hogan ft
Sons, and in addition to recover from the
Express Company any part of the sum
which he was unable to collect imder execu-
tion from Hogan ft Sons. The final decree,
which thereafter fixed the amount at $2,-
724.40, carried out the interlocutory decree.
Nobody appealed from the interlocutory
decree, and the Express Company did not
appeal from the final decree, fixing its
secondary liability. Hogan ft Sons, how-
ever, did appeal. The court below, consider-
ing that, on the appeal, the case was before
it for a trial de novo, and therefore that the
rights and liabilities of all the 'parties must
be considered from that point of view, re-
versed the decree below, and held that error
had been committed in the decree rendered
against Hogan ft Sons, because the proof
did not establish that they had been negli-
gent. As to the Express Company, it was also
1159
i
548-550
SUPREME COURT OF THE UNITED STATES.
Oct, Term,
held that error had been [548] committed
in decreeing it to be liable secondarily, be-
cause, in receiving the automobile, it had
acted in the capacity of a mere forwarder,
and had discharged its obligations in that
respect. As to the decree which dismissed
the steamship company, it was held that
error had been committed, because that com-
pany, as an insurer, was liable, not, how-
ever, exceeding the amount of $100, the lim-
itation stated in the bill of lading. As the
result of the allowance of a petition for
certiorari, the correctness of these conclu-
sions is now before us for decision.
At the threshold it is insisted that the
court below had no authority to consider
the case as before it for a new trial, that is,
de novo, and to award relief upon that
theory, and that consequently it erred in re-
viewing the interlocutory decree, which was
not appealed from, by which the steamship
company was dismissed, and allowing a re-
covery against that company, and also in
reviewing both the interlocutory and final
decrees so far as it was essential to grant
relief to the Express Company, because that
company had not appealed. It is not denied
that in the second circuit the right to a
de novo Vial was considered as settled by
Munson S. S. Line v. Miramar S. S. Co. 93
C. C. A. 360, 167 Fed. 960, and that a well-
established practice to that effect obtained,
but it is insisted that a g<meral review of
the adjudged cases on the subject will show
the want of foundation for the rule and
practice. But we think this contention is
plainly without merit, and that the right to
a de novo trial in the court below authorita-
tively resulted from the ruling In Irvine v.
The Hesper, 122 U. S. 256, 30 L. ed. 1175,
7 Sup. Ct. Rep. 1177, — a conclusion which
is plainly demonstrated by the opinion in
that case and the authorities there cited,
and the long-continued practice which has
obtained since that case was decided,
and the full and convincing review of the
authorities on the subject, contained in the
opinion in the Miramar Case. Entertaining
this view, we do not stop to consider the vari-
ous arguments [549] which are here pressed
upon our attention, tending at least indi-
rectly to establish the nonexistence of the
right to the trial de novo in the court below,
or that this case, for reasons which are
wholly unsubstantial, may be distinguished
and made an exception to the general rule,
because to do so would serve no useful pur-
pose, and would be at least impliedly to ad-
mit that there was room to discuss a ques-
tion concerning which there was no room for
discussion whatever.
It is conceded that if the grounds relied
upon to fix liability as against the Express
Company, the steamship company, and Ho-
1 1 AH
gan & Sons are established, there is a right
to an independent recovery as to each,
whatever may be the recourse of these par-
ties to recover over as against each other.
Which of the defendants, if any, was liable
primarily for the loss, is, then, to be con-
sidered. We first approach this question
from the point of view of Hogan & Sons, be-
cause undoubtedly that company was in pos-
session and control of the car at the time it
dropped into the river and was damaged.
While there is some confusion and various
slight contradictions in the testimony, we
are of the opinion that the trial court was
right in holding that the loss occurred
through the fault of Hogan k Sons, and
therefore that the court below erred in re-
versing the decree against that company.
And without undertaking to review the
testimony, to all of which we have given a
careful consideration, we content ourselves
with briefly pointing out the general points
of view which have led us to the conclusion
stated. Without saying that the mere fact
of the dropping of the automobile into the
water in the course of delivery from the
ship's hold to the pier serves to speak for it-
self on the issue of responsibility, that is, to
bring the case within the principle of res
ipsa loquitur, we are of the opinion that, by
analogy, the case well illustrates that rule for
this reason: Some cause must be found for
the dropping of the car into the river, and
only [550] two theories on this subject may
be deduced from the proof: either that the
acident to the car occurred without fault, as
the result of the breaking of the rope com-
posing the sling because of some unseen and
hidden defect in such rope, or that it was
occasioned by some act of negligence or want
of care in handling the car. Tlie first, we
are of opinion, is without any substantial
support in the proof; in fact, to accept it
would confiict with direct and positive proof
to the contrary. That view, therefore, could
only be sustained by substituting imagina-
tion for proof. The second, on the contrary,
we are of opinion, finds cogent support from
the proof which could only be escaped by
overthrowing it by the process of imagina-
tion to which we have just referred. It is
unquestioned that when the sling was put
around the box containing the car, prepar-
atory to attaching the hook in order to
hoist it, no blocks or other means were used
to prevent the rope from being worn or cut
by the edges of the box. The presumption
that the rope was strong and elficient, aris-
ing from the fact that it held the weight of
the box until it was lifted above the hatch,
and until, by the swinging motion, the dan-
ger of straining or cutting of the ropes up-
on the edges was more likely to result, gives
adequate groimd for the inference that such
241 V. 8.
1015.
LANCASTER v. KATHLEEN OIL 00.
550, 551
cutting and straining occurred and led to
the severance of the rope, and the precipita-
tion of the car into the water. And this in-
ference is supported hy various other cir-
cumstances which we do not stop to reca-
pitulate.
Were the steamship company and the Ex-
press Company, in the order stated, liable
to Reid, the libellant, dependent upon his in-
ability to make under execution the amount
of the decree from Hogan & Sons, is, then,
the only remaining question. In substance
this question, however, is negligible since,
in the argument at bar, it was conceded that
T. Hogan k Sons, Incorporated, were amply
solvent, and that there was no question of
their ability [551] to respond to any decree
which might be rendered against them. To
avoid, however, all miscarriage of right from
any possible, though improbable, change of
conditions, without going into detail or stat-
ing the considerations which control our con-
clusion on the subject, we content ourselves
with saying, first, that as to the steamship
company we are of the opinion that, on the
failure to make the amount of the decree
against Hogan & Sons, the libellant will be
entitled to recover over against that com-
pany to the amount of $100, to which its
liability was limited, as stated in the bill of
lading under which the shipment was made ;
second, that even looking upon the Express
Company as a forwarder, under the circum-
stances of the case and the terms of the bill
of lading under which the car was shipped
by that company, the trial court rightly held
it liable, and that recovery against it on
failure to enforce the decree against Hogan
ft Sons will also obtain.
It follows that the decree below must be
reversed and the cause remanded to the trial
court, with directions to set aside its decree
in so far as it dismissed the steamship
company from the case, and to enter a de-
eree in conformity with this opinion.
Reversed and remanded.
OSCAR M. LANCASTER and Patrick M.
Kerr, Appts.,
V.
KATHLEEN OIL COMPANY, Josiah
Brown, et aJ.
(See S. C. Reporter's ed. 551-^56.)
Pleading — Jurisdictional aTerments ^
Federal question.
1. Allegations in a bill filed by the
lessees of an oil and gas mining lease from
None. — On effect of remedy at law upon
equitable jurisdiction to remove cloud on
title— see note to Whitehouse t. Jones, 12
L.R.A.(N.S.) 49.
•0 li. ed.
the heirs of an Indian homestead allottee
for the recovery of possession from a sub-
sequent lessee of the same premises, and for
an injunction restraining the assertion of
any rights under such lease, and any inter-
ference with plaintiffs' rights under their
lease, that plaintiffs' lease, though not ap-
proved by the Secretary of the Interior, was
valid, and that the subsequent lease to
defendant, which had such approval, was
void because, by the act of May 27, 1908
(35 Stat, at L. 312, chap. 19U), the land
descended to the heirs of the Indian al-
lottee free from any restrictions against
leasing the same for oil and mining pur-
poses, and because, if that act did impose
restrictions as to such a lease, it was re-
pugnant to the Federal Constitution, — were
material to the cause of action stated in
the bill, and therefore present a cause of
action within the jurisdiction of a Federal
district court as a Federal court.
(For other cases, see Pleading 337-349, in
Digest Sup. Ct. 1908.]
Cloud on title — when maintainable —
remedy at law — possession.
2. The rule that a suit to quiet title
can only be brought by one in possession has
no application where the legal remedy by
an action in ejectment is not available.
[For other cases, see Cloud on Title, 11. d, in
Digest Bup. Ct. 1008.]
[No. 336.]
Submitted April 26, 1916. Decided June 12,
1916.
APPEAL from the District Court of the
United States for the Eastern District
of Oklahoma to review a decree dismissing
a suit on the ground that the bill alleged
no cause of action within the jurisdiction
of the court as a Federal court. Reversed
and remanded for further proceedings.
The facts are stated in the opinion.
Mr. William F. Tucker submitted the
cause for appellants. Mr. Hulette F. Aby
was on the brief:
The character of the interest of the
lessee in an Oklahoma oil and gas mining
lease is an incorporeal hereditament, a
chattel real, and passes only the privilege
to explore; and this rule of property will
be recognized and given effect by the Fed-
eral courts.
Duff V. Keaton, 83 Okla. 92, ^2 L.R.A.
(N.S.) 472, 124 Pac. 291; Frank Oil Co.
▼. Belleview Gas & Oil Co. 29 Okla. 719,
43 L.RJk.(N.S.) 487, 119 Pac. 260; Guffey
V. Smith, 237 U. S. 101, 59 L. ed. 856, 35
Sup. Ct. Rep. 526.
The owner of an oil and gas mining
lease, under which no development has been
made, cannot maintain ejectment thereon in
the courts of Oklahoma.
Frank OU Co. v. Belleview Gas & Oil
Co. supra; Kolachny t. Qalbreath
SUPREME OOURT OF THE UNITED STATB&
Oct. Tbim,
OkU. 772, 38 LJLA.(N^.) 451, 110 Ffte
902.
Courts of equity will protect ezduBive
rights and licenses, privileges, and ease-
ments, where claimed for a valuable con-
sideration, by injunction.
Alpers V. San Francisco, 32 Fed. 503;
Drush-Swan Electric Light Co. v. Brush
Electric Co. 41 Fed. 163; Duff y. Russell,
133 N. Y. 678, 31 N. E. 622; Franklin
Telcg. Co. V. Harrison, 145 U. S. 459, 36
L. ed. 776, 12 Sup. Ct. Rep. 900; Goddard
V. Wilde, 17 Fed. 845; Joy v. St. Louis,
138 U. S. 1, 46, 34 L. ed. 843, 857, 11 Sup.
Ct. Rep. 243; Lumley v. Wagner, 1 DeG.
M. & G. 604, 21 L. J. Ch. N. S. 898, 16
Jur. 871, 6 Eng. Rul. Cas. 652; Manhat-
tan Mfg. & Fertilizing Co. ▼. New Jersey
Stock Yard & Market Co. 23 N. J. £q. 161;
Philadelphia Ball Club ▼. Lajoie, 202 Pa.
210, 58 L.RJL 227, 90 Am. St. Rep. 627, 51
Atl. 973; 6 Pom. Eq. Jur. 9 773; Singer
Sewing Mach. Co. ▼. Union Buttonhole &
Embroidery Co. Holmes, 253, Fed. Cas. No.
12,904; Steinau ▼. Cincinnati Gaslight &
Coke Co. 48 Ohio St. 324, 27 N. £. 545;
Western U. Teleg. Co. v. Union P. R, Co.
1 McCrary, 558, 3 Fed. 423.
Where, under the laws and decisions of
the state, no remedy at law exists in the
state courts, the United States courts, fol-
lowing in actions at law the local laws and
modes of procedure, can grant no such
remedy, and the owner of a valid oil and
gas mining lease on lands in such state
may maintain an action to enjoin those
claiming the right and about to operate for
and produce and sell the oil and gas there-
from under a later and similar lease from
the same lessors, and in such action the
court will determine the rights of the two
lease claimants; and if the title of the
plaintiff be found valid, plaintiff will be
entitled to injunction, discovery, and ac-
counting.
Allegheny Oil Co. ▼. Snyder, 45 C. C.
A. 604, 106 Fed. 764; Bettman ▼. Harness,
42 W. Va. 433, 36 L.RA. 566, 26 S. B.
271, 18 Mor. Min. Rep. 500; Brown v. Spil-
man, 155 U. S. 665, 39 L. ed. 304, 15 Sup.
Ct. Rep. 245; Coosaw Min. Co. v. South
Carolina, 144 U. S. 550, 36 L. ed. 537, 12
Sup. Ct.*Rep. 689; Eriiardt v. Boaro, 113
U. S. 527, 28 L. ed. 1113, 5 Sup. Ct. Rep.
5G0, 15 Mor. Min. Rep. 472; Franklin
Tcleg. Co. V. Harrison, 145 U. S. 459, 36
L. ed. 776, 12 Sup. Ct. Rep. 900; Friend
V. Mallory, 52 W. Va. 53, 43 S. B. 114;
Gillespie v. Fulton Oil & Gas Co. 230 HI.
188, 86 N. £. 219; Guffey v. Smith, 237
U. S. 101, 59 L. ed. 856, 35 Sup. Ct. Rep.
526; Joy v. St. Louis, 138 U. S. 1, 84 L.
ed. 843, 11 Sup. Ct. Rep. 243; Kolachny ▼.
1162
Galbreath, 26 OkU. 772, 38 LJLA.(N£.)
451, 110 Plu^ 902.
In an action for injunction and account-
ing, brought by the owners of an oil and
gas mining lease while out of possession
of the leased premises, and against the
lessors and lessees of a subsequent lease,
where the lessees of the second lease have
entered thereunder and are about to mine
and remove the oil and gas underlying the
lands, under the second lease, the allega-
tions of the bill as to the character and
derivation of the title of the plaintiff, and
the character and derivation of the claim
and title asserted by the defendant, in
connection with the nature of the acts done
thereunder, are usual, proper, and essential
in such a bill.
Blakeslee v. Missouri P. R. Co. 43 Neb.
61, 61 N. W. 118; Chicago Qty R, Co.
V. General Electric Go. 74 HL App. 465;
Coffeyville Min. & Gas Co. v. Citizens*
Natural Gas & Min. Co. 55 Kan. 173, 40
Pac. 326; Cooke v. Central Dist. & Print-
ing Teleg. Co. 21 Pa. Super. Ct. 43; Doug-
lass T. Nuzum, 16 Kan. 515; Franklin
Teleg. Co. v. Harrison, 145 U. S. 459, 36
L. ed. 776, 12 Sup. Ct Rep. 100; Guffey
▼. Smith, 237 U. S. 101, 59 L. ed. 856, 35
Sup. Ct. Rep. 526; Hungerford v. Cush-
ing, 8 Wis. 332; Joy v. St. Louis, 138
U. 6. 1, 34 L. ed. 843, 11 Sup. Ct. Rep.
243; McClanahan v. Davis, 8 How. 170,
182, 12 L. ed. 1033, 1030; McKinsie v. Ma-
thews, 59 Mo. 99; Mendelson ▼. McCabe,
144 Cal. 230, 103 Am. St. Rep 70, 77 Pac.
915; MiUer ▼. Burket, 132 Ind. 469, 32 N.
E. 309; Ringo ▼. Binns, 10 Pet. 269, 9 L. ed.
420; Ryan v. Fulghum, 96 Ga. 234, 22 S.
E. 940; Shulthis ▼. McDougal, 225 U. S.
561, 56 L. ed. 1205, 32 Sup. Ct. Rep. 704;
Stillwell V. Adams, 29 Ark. 346; Story, Eq.
PI. 506; Wilson Cypress Co. v. Del Pozo j
Marcos, 236 U. S. 635, 50 L. ed. 758, 35
Sup. Ct Rep. 446.
In an action by the lessee under an oil
and gas lease covering Oklahoma lands, for
injunction, discovery, and accounting,
brought against a second lessee of the same
lands, the plaintiff, by pleading the char-
acter and derivation of his title under an
act of Congress, and the character and
derivation of the claim and title asserted
by the defendant, and the facts in relation
thereto, and it being alleged that a decision
of the controversy between the parties de-
pends upon the construction of certain
specified acts of Congress of the United
States, or parts thereof applicable to the
case, and that certain provisions of the acts
of Congress upon which the adverse claim
and title rest are violative of provisions
of the Constitution of the United States,
spedfled in the bill, there is presented by
241 U. 8.
1915. LANCASIER ▼. KATHLEEN OIL (XX.
appropriate allegations a controveny aria- than the mere statement of plaintiffs' right
ing under the Constitution and laws of the and title, the facts constituting the in-
United States, of which the district court vasion of such right, and the nature and
of the United States has jurisdiction. extent of the injury suffered, so as to indi-
Bankers' Mut. Casualty Co. v. Minne- cate the nature of the relief required. It
apolis, St. P. & S. Ste. M. R. Co. 192 U. S. is not necessary to state that the right
371, 381, 48 L. ed. 484, 488, 24 Sup. Ct. was acquired in view of a certain inter pre-
Rep. 325; Cohen v. Virginia, 6 Wheat. 264, tation or construction of some statute
379, 5 L. ed. 257, 285; Little Yoric Gold- (which might or might not govern), and
Washing & Water Co. ▼. Keyes, 96 U. S. say in effect that if such construction be
199, 24 L ed. 656; Osbom v. Bank of sustained the right is enforceable, and, if
United States, 9 Wheat. 739, 824, 825, 6 it be rejected, it is unenforceable; because
L. ed. 204, 224, 225; Shulthis v. MoDougal, such statements are mere argument and
225 U. S. 561, 56 L. ed. 1205, 32 Sup. Ct. have no proper place in the bill.
Rep. 704; Starin ▼. New York, 115 U. S. Shulthis v. McDougal, 225 U. 6. 561, 56
248, 257, 29 L. ed. 388, 390, 6 Sup. Ct. L. ed. 1205, 32 Sup. Ct. Rep. 704; Fletcher,
Rep. 28; Taylor v. Anderson, 234 U. S. 74, Eq. PI. 136.
58 L. ed. 1218, 34 Sup. Ct. Rep. 724; Ten- The mere fact that the plaintiffs ques-
nessee v. Davis, 100 U. S. 257, 25 L. ed. tion their own title will not confer juris-
648; Wilson Cypreas Go. ▼. Del Pozo y diction in equity, much less raise a Fed-
Marcos, 236 U. S. 635, 59 L. ed. 758, 35 eral question. The plaintiff, in equity cases
Sup. Ct. Rep. 446. as in other cases, if he seeks to recover pos-
MesBrs. George 8. RamM,. Edg» A. "f '"f' "P;'" », ^?^^ rig". ««»t rely upon
De Menle.. and Malcolm B. RoMer sub- *»»• •t'«>g«« of h,. »wn title.
mitted the cau«» for appellee.. Messrs _. ^"l^fj "^^"rL Hk '
Edward H. Chandler and Sol H. Eauffmaa *^-' 3'»..3* ^- ."!?•*"'•
were on the brief- •^'**'* *" "^ J"'>«l»«t">»> *» ^^^^T '"'"'■e-
This case is gov'emed by the case of Tay- Y »" ,^'^* ."^ *•"» doubtful state of a
lor V. Anderso^ 234 U. 8. 74, 68 L. ll. !'8?V *• ' <>t^*' K""""!* «' equ.table
1218, 34 Sup. a. Rep. 724. jurisdiction must be shown.
T« ;♦« ^r^ ^ *i,-- • u'11 A Jones V. Jones, 3 Meriv. 161; Hipp v.
In its essence, this is a a bill to recover „ . . m ti o%«i ic t j onn f>
•^<.«».o:^. ^# \L^A T* 11 Av A Au Babm, 19 How. 271, 15 L. ed. 633; Bacon
possession of land. It alleges that the , a %# i ^ n ^oo <> t ^m^a
^i.;»A:4r« ««- av.. i. u — * -i j ^' Jones, 4 MyL & C. 433, 3 Jur. 904;
plaintiffs are the holders of an oil and gas r ui- t /-.-a a t ^ noo T^
•»;.{.« 1^--^ #«^^ Av^ 4 z 1 M Laughlm v. Lamasco City, 6 Ind. 223; Dan.
mimng lease from the fee-simple owners of ^, ^., . . ou-i a-, \^ m «. •» *r^o
♦i.« iJLa -:«: Au^ 1-- *•» Au^ ^ i • Ch. 6th Am. ed. 361; 21 Enc. PI. k Pr. 713;
the land, giving the plaintiffs the exclusive y^ ^jie Ea PL 29
right of possession for oil and gas mining ^ a* a • * i
•™,wv««- 4U..A Av J • J » V In actions to recover possession of real
purposes; that they are deprived of such *. -a. x. i u av i av a xu
tLr^L.«:^» u« Au^ ir-Aui f\'i n property it has long been the rule that the
possession by the Kathleen Oil Company, '^i,';. j. £ ^ -jav x^j
»k;»i, :« ;« ^^«-^ -:^^ -j •- -a i* u • only ultimate facts required to be stated
which IS m possession and is itself boring /^vxi, j 'a* #ai. i j /^v
#«• »^A ^.^^f,-:..^ ^:i A Ai. 1 J are: (1) the description of the lands; (2)
for and producing oil and gas on the land. ,, Laa a ^au** I
Tu.'o o„;a Jo ♦i.^-^*^-.. :« :*1 a •— i the extent or nature of the interest as-
This suit IS, therefore, m its nature, simply . , j /«» au a ai. j r i x •
an equitable action of ejectment; a substi- ^^.^^f',^.*"^ ^^> *^* *^* defendant is
tute for ejectment, brou^-ht in equity be- withholdmg possession.
cause, for technical reasons, ejectment wUl ^J^"^^ ]' Tj'^^T^p' ]1 J^^^f J^^Vf ^
not lie at the suit of the lessee to recover ^- ^cott 14 How 282 14 L. ed 422; John-
possession under an oil and gas lease, on ^^"^ T' ^^^^* «^, ^^\ ^' !i/''x;..^ *'
the ground (whether sound or not) that ^"«*'" ^' Schluyter, 7 Hun, 275; Hihn v.
the right of a lessee under such lea«e is an Mangenberg, 89 Cal. 268, 26 Pac. 968; VVal-
incorporeal hereditament and such a right ^^^ ^' Lockwood, 23 Barb. 228, 4 Abb. Pr.
cannot be enforced by ejectment. In other 309; People v. New York, 28 Barb. 240;
words, an officer charged with a writ of pos- Sanders v. Leavy, 16 How. Pr. 308; En-
session is supposed to be unable to put the wgn v. Sherman, 14 How. Pr. 439; Coryell
lessee in possession on account of the in- v. Cain, 16 Cal. 567, 5 Mor. Min. Rep. 226;
corporeal nature of the right or estate. Garrison v. Sampson, 15 Cal. 93.
Kolachny v. Galbreath, 26 Okla. 772, 38 An allegation that the plaintiff is the
L.R.A.(N.S.) 451, 110 Pac. 902. owner at certain real or personal property
This suit, therefore, differs from the legal is a statement of an ultimate fact, and
action of ejectment only in the nature of sufficient to aver title,
the relief required. The relief required is Payne v. Treadwell, 16 CaL 242; Garwood
to enjoin the alleged trespasser, and pre- v. Hastings, 38 Cal. 216; Gage v. Kauf-
vent it from interfering with the lessees man, 133 U. S. 471, 33 L. ed. 725, 10 Sup
in the prosecution of their rights under the Ct. Rep. 406; Ely v. New Mexico & A. R,
lease. Nothing more is required, therefore, ^ Co. 129 U. 8. Sl^l, 32 L. ed. 688, 9 Sup.
•0 I/, ed. 1168
602, fiS3 SUPREME COURT OF THB UNITED STATES. Oct. Tnn,
Ct. Rep. 293; Johnson v. Vance, S0 Cal. imn invaiion of rigbt would be alt the more
ISS, 24 Pac. 663. enjoinable.
The rale in equity is the aame. Wheelock v. Noonan, 108 N. Y. 179, 2
Wiggm T. New York, 9 Paige, 16 1 Uugh- 1 Am. St. Rep. 406, 15 N. E. 67; Griffith t.
lin T. Lunaaco Citj, 6 lod. 223; Dan. Cb- I Hilliard, 64 Vt. 643, 26 Att. 427; Slater >.
6th Am. «d. 1896, 362. Cunn, 170 Maai. 609, 41 L.ILA. 2es, 40
In a suit for injunction to restrain an S. B. 1017; D Enc. ForniB, 868 i Indian-
injujy to land it is not necessary that the ipolia Natural Gat Co. v. Kibbey, 135 Ind.
petition should aver (ram whom or how 3S7, 35 N. E. 392, 17 Mot. Min. Bep. 611.
the title was obtained. This is a matter of No admission of parties can change the
evidence. law or ^ve jurisdiction to a court in s
Planet Property & Financial Co. t. St. cause of which it hath no jurisdiction.
louU, O. H. 4. a R. Co. 116 Mo.'fllS, 22 Hipp v. Babin, 19 How. 271, 15 L. ed.
S. W. 616. 833; Welby v. Rutland. 2 Bro. P. C. 3B.
If plaintiffs claim the exclusive right to Assuming that it is proper for plaintiffs
dig tor oil and gas, they need only recite to set up defendant's claim, it would onlj
that they are the lessees of a certaiD oil be necessary in this case to allege thst,
and gas lease, executed to them by the subsequent to the execution of plaintiff's
owners of the fee, and then set forth the lease, the tee owners executed another leara
lease or its legal elTect. They need not on the same land to the Kathleen Oil Com-
recite any preaumed defect in their title pany. That certainly would give rise to
and negative it, but that is properly for no Federal question,
the defendants, U the latter so desire. Shulthie v. McDougal, 225 V. S. 561, 56
Payne t. Treadwell, 16 Cat. 242; Gage L. ed. 1206, 32 Sup. Ct. Rep. 704.
T. Kauffman, 133 U. S. 471, 33 L. ed. 726, The role that plaintiffs cannot anticipate
10 Sup. Ct. Rep. 406; Chriaty v. Scott, 14 defendant's defense applies to equity ai
How. 282, 14 L. ed. 422. well as law cases.
The reason, according to Serjeant Tennessee v. Union ft Plantera' Bank, 162
Stephens, is that if it were requisite to U. S. 464, 38 L. ed. 611, 14 Sup. Ct. Rep-
show from whom the party derived his title, 654; Third Street ft Subnrban R. Co. v.
it might b« required on the same principle Lewis, 173 U. S. 457, 43 L. ed. 766, 19
to show from whom that peroon derived his, Sup. Ct. Rep. 461 ; Boston ft M. ConsoL
and so ad mfinitum. Copper ft S. Min. Co. v. Montana Ore Pur-
SUpbens, PI. g 176. chasing Co. 188 U. S. 632, 47 L. ed. 628.
But the better reason is that a simple 23 Sup. Ct. Rep. 434; Louisville ft N. R.
allegation of ownership is the statement of Co. v. Mottley, 211 U. S. 149, 63 L. ed.
an ultimate fact, and the derivation of the 126, 29 Sup. Ct Rep. 42; Shulthia v. Me-
title, if maUrial, Is a matter ot evidence. Dougal, 226 U. S. 661, 66 L. ed. 1205, 3S
Payne v. Treadwell, supra. Sup- Ct. Rep. 704; Denver v. New York
Suita to remove donda are brought by Tniat Co. 220 U. f. 123, 133-135, 67 L. ed.
persona in possession. 1101, 1120, 1121, 33 Sup. Ct. Rep. 667.
Boston ft M. Consol. Copper ft S. Uin.
Co. r. Montana Ore Purchasing Co. 188 Mr. Chief Justice TKlilte delivered the
U. S. 632, 47 L. ed. 626, 23 Sup. Ct. Rep. opinion of the court:
434; Orton v. Smith, 18 How. 263, 15 L. ed. This direct appeal ia prosecuted to reverse
393; Whitehead v. Shattuck, 138 U. S. the decree of the court below, diamiasiBg
146, 34 L. ed. 873, 11 Sup. Ct. Rep. 276; the suit on the ground that the bill alleged
Sharon v. Tucker, 144 U. 3. 533, 36 L. ed. no cause of action within the jurisdiction
632, 12 Sup. Ct. Rep. 720. o' the court aa a Federal court.
Allegations in actions of ejectment that Briefly summarized, the hill all^^ (bat
the defendant Is unlawfully withholding »"» ^^'^^ Liisie Brown received from the
posaeasion from the plaintiff are universal- ""'*^ f^*f^. ' P*,**^* ^ **^"'" t"**! <*^
ly treated in modem practice as sufBeient, f'^ "*■"* "" **'''*^°* "^'^Jf'?'^
.-^ — >■- „^ -, I- ths. »-..t "PI,. _■ allotment aa a member ot the Creek Tribe
ana wny not so in tnu easel The pnn- .... .i ■ i n » , ■.. i. ,„ia
.-■ ii.> ra a, '^ ot Indians; that she died in March, 1B12,
leaving surviving as her sole beirs her
Payne v. Treadwell, supra. husband, Josiah Brown, and tour minor dul-
AppellanU counsel seem to argue that j„„^ .„ „( „hom were mads defendants.
the continuing nature ot the trespasa must jt »», ^Ueged that Brown, the father, was
be ahown by a lease or by some definite appointed guardian of the children, and
claim ot right on the part of the defend- that in April, 1912, he and the cbU-
anta. But why I Could not the trespaae dren, aa owners in fee ot the land is
be ot a continning nature without any claim question, made an oil and gas mla-
of right whatever by the defendants! Such ing lease to the plaintiffs, which was tt>
11«4 141 U.S.
1015.
LANCASTER v. KATULE£N OIL CO.
653-555
corded April 18th, 1912; that, notwithstand-
ing this k-ase, about two months later, that
is, June 2d, 1912, Brown, on his own be-
half and as guardian, made an oil and gas
mining lease covering the identical land, to
the Katlileen Oil Company, also made a de-
fendant, which lease was approved by the
Secretary of the Interior and was duly re-
corded. It was alleged that plaintiffs en-
tered upon the land under their lease, pre-
pared to drill for oil, but, learning of the
subsequent lease to the Kathleen Oil Com-
pany, withdrew and made an application to
the Secretary of the Interior to cancel his
approval of that lease, which was denied.
It was averred that the Kathleen Oil Com-
pany had entered into its lease with full
knowledge of the prior lease to the plain-
tiffs, but that it had nevertheless gone into
possession and was operating under its
lease, and was producing and selling oil and
gas. Tlie bill then alleged that the plain-
tiffs' lease, although not approved by the Sec-
retary, was valid, and that the subsequent
lease to the defendant company, which was
approved by the Secretary of the Interior,
was void because, by the act of Congress
of May 27, 1908 (35 Stat, at L. 312, chap.
199), the land of Lizzie Brown descended
to her heirs free from any restriction
against leasing the same for oil and gas
mining purposes, and because, if that act
did impose restrictions as to such a lease, it
was void for repugnancy to the Constitu-
tion of the United States. The prayer was
tliat the defendant company be enjoined
from entering on the land and from [554]
continuing to operate under its lease, that
all the defendants be restrained from inter-
fering in any manner with the plaintiffs in
conducting operations under their lease, and
from asserting or claiming any right to the
oil and gas deposits under the land, or the
right to mine and remove the same, and
that the defendant company account to the
plaintiffs for the gas and oil which it had re-
moved.
The defendants moved to dismiss on the
ground that the court was without juris-
diction as a Federal court to entertain the
cause. The motion was granted, and a de-
cree of dismissal entered, and, for the pur*
pose of this direct appeal, the court certified
under the statute that the dismissal had
been ordered because "the essential and ap-
propriate allegations of the cause of action
asserted in said bill of complaint did not
disclose a case arising under the Constitu-
tion or a law or treaty of the United
States."
As it is apparent that the court below
erred if the allegations concerning the va-
lidity of the lease of the plaintiffs, and the
invalidity of that of the defendant company,
•0 li. ed.
were material to the cause of action stated
In the bill, we come at once to that ques-
tion. In support of the proposition that
such allegations were not material, it is
argued that the suit was the equivalent of
an action at law in ejectment to recover
possession of the leased premises, but was
brought in equity because, under the law of
Oklahoma, a lessee of an oil and gas min-
ing lease under circumstances here disclosed
had no right to sue in ejectment. Kolachny
V. Galbreath, 26 Okla. 772, 38 L.R.A.(N.S.)
451, 110 Pac. 902. Further, it is said that
as, in a suit in ejectment, it is only neces-
sary to allege a right of possession by the
plaintiff, and a wrongful possession by tlie
defendant, averments by anticipation of as-
sumed defects in the plaintiffs' title, to be al-
leged by the defendant, and of the causes
which would be relied upon to establish
want of title in the defendant, are not rele-
vant or essential, and are to be disregarded
in determining [555] the question of the
jurisdiction of the court as a Federal court.
This, it is said was expressly decided in
Taylor v. Anderson, 234 U. S. 74, 58 L. ed.
1218, 34 Sup. Ct. Rep. 724, and that case
is relied upon as conclusive of this con-
troversy.
But without questioning in the slightest
degree the doctrine expounded or the con-
clusion reached in the Taylor Case, we think
it oan here have no application, since we are
of the opinion that the assumption that the
cause of action alleged in the bill under
consideration is the equivalent of a suit
in ejectment is wholly without foundation.
We say this because the prayer of the bill
makes it clear that the object of the suit
was not only the recovery of possession, but
also an injunction forever restraining the
defendant company from asserting any
rights under its lease, and from interfer-
ing with the rights of the plaintiffs under
their' lease. Such relief, it is apparent,
could be granted only after determining the
rights of the parties under their respective
leases, which would require a construction
of the act of Congress referred to as well
as a decision concerning the authority of
the Secretary of the Interior in approving
the defendant company's lease, and the ef-
fect to be given to such approval.
It is said, however, if the bill be thus
construed, the suit is in substance one to
quiet title, and, under the well-settled rule,
such a suit can be brought only by one in
possession. Whitehead v. Shattuck, 138 U.
S. 146, 34 L. ed. 873, 11 Sup. Ct. Rep. 276;
Boston & M. Consol. Copper & S. Min. Co.
v. Montana Ore Purchasing Co. 188 U S.
632, 47 L. ed. 626, 23 Sup. Ct. Rep. 434.
But this contention overlooks the reason up-
on which the role ii baaed, as pointed out
11«5
665,566
SUPREME COURT OF THE UNITED STATES.
Oct. Tum,
io the cases relied upon, which is that one out
of possession has an adequate remedy at
law by a suit In ejectment. As it is con-
ceded that the legal remedy was not here
available, and that there was hence juris-
diction in a court of equity to determine the
right of possession, it is clear that the rule
has no application, and that the court had
equitable jurisdiction to determine all the
issues presented by the bill.
[556] That the bill, as thus construed,
states a cause of action within the juris-
diction of the court below as a Federal
eourt, is, in substance, conceded, and is
demonstrated by the ruling in Wilson
Pypress Co. ▼. Del Pozo y Marcos, 236 U.
S. 635, 643, 644, 50 L. ed. 758, 766, 767,
85 Sup. Ct. Rep. 446.
It follows from what we have said that
the court below erred in dismissing the
cause for want of jurisdiction as a Federal
court, and its decree must be reversed, and
the cause remanded for further proceedings
In conformity with this opinion.
And it is so ordered.
PEOPLE OF THE STATE OF NEW YORK
ON THE RELATION OF WALTER S.
KENNEDY, as Next Friend of Fayette
Kennedy, Warren Kennedy, and Willis
White, Jr., Plffs. in Err.,
v.
FREDERICK W. BECKER, as Sheriff of
Erie County, New York.
(See S. C. Reporter's ed. 556-^64.)
Indians — reservation of flshin^ riffhta
in treaty — rigjbt to Tiolate state
same laws.
The reservation to the Indians of the
right to fish on the ceded lands, which is
contained in the treaty of September 15,
1797 (7 SUt. at L. 601), by which the
Seneca Indians ceded to Robert Morris cer-
tain lands in the state of New York, does
not give tribal Seneca Indians, residing on
an Indian reservation in charge of an In-
dian agent, the right to take fish from the
waters on the ceded lands outside the reser-
vation in a manner and at a time prohibited
by the game laws of the state.
[For other cases, see Fisheries, III., In Digest
Sup. Ct. 1808.]
[No, 666.]
Argued April 7, 1916. Decided June 12,
1916.
IN ERROR to the Supreme Court of the
State of New York in and for the Coun-
ty of Erie, in that state, to review a judg-
ment entered pursuant to the mandate of
the Court of Appeals of that state, which
affirmed a judgment of the Appellate Divi-
sion of the Supreme Court, Fourth Depart-
ment, which had reversed an order of a
Special Term of the Supreme Court, dis-
charging, on habeas corpus, certain Indians
charged with violating the game laws of
the state. Affirmed, l
See same case below in appellate division,
165 App. Div. 881, 151 N. Y. Supp. 138;
in eourt of appeals, 215 N. Y. 42, 109 N.
E. 116.
The facts are stated in the opinion.
Mr. George P. Decker argued the caut^
and filed a brief for plaintiff's in error:
Defendant in error here fails, unless he
convinces this court that by the treaty of
Big Tree it was the intent and understand-
ing of the parties that a tribal Seneca, in
leaving his residence reserves to fish at the
looua in quo, would be leaving the fron-
tiers of his tribe, and be subjecting himself
in fishing to the jurisdiction of New York.
If that were the understanding, then his
right there would be one falling, like that
of a white man, under the legislative power
of New York to regulate according to the
will of the state legislature. If the state
had that right, it is immaterial here to
know whether the right fell imder the head
of police powers, as publicists classify gov-
ernmental powers, or fell under some other
heading. The Seneca in any case, then,
would have no advantage over the unnatur-
alized Russian who possessed private lands
in New York, with the right to fish upon
them, but who discovered, e. g,, that New
Voric had prohibited the taking of trout
for a term of fifty years. Such would be
an impotent outcome of the Big Tree treaty.
United SUtes ▼. Winans, 198 U. S. 371,
49 L. ed. 1089, 25 Sup. Ct. Rep. 662.
Changed conditions afford no foundation
for eactension of state power cutting down
tribal rights and invading Federal juris-
diction.
The Kansas Indians (Blue Jacket v.
Johnson County) 5 Wall. 737, 18 L. ed.
667.
The loouB in quo, in consequence of the
treaty of Big Tree, remained after 1797 an
Indian reservation for the special and lim-
ited purposes intended, and no less, in legal
contemplation, to the extent of those pur-
poses, than a residence reserve upon which
no white man might lawfully set foot for
any purpose under warrant of mere stats
authority. Hunting grounds of Indians
are to be r^^rded as in possession of the
tribe.
1 Leave granted to present a petition for
rehearing herein withm sixty days if coun-
sel are so advised, on motion of Solicitor
General Davis for the United States.
June 12, 1916.
141 U. S.
1016.
NEW YORK KZ BEL. KENNEDY tk. BECKER.
Mitchel V. United tSates, 0 Pet. 745, 9
L. ed. 295.
Treaties between a white man's govern-
ment and an Indian tribe are to be read by
white men's courts favorably to the In-
dians, or as the Indians had the right to
understand them.
Worcester v. Georgia, 6 Pet. 51 5» 8 L. ed.
483; Jones v. Meehan, 175 U. S. 1, 44 L. ed.
49, 20 Sup. Ct. Rep. 1; Northern P. R. Co.
V. United States, 227 U. S. 355, 57 L. ed.
544, 33 Sup. Ct. Rep. 368.
Federal treaties (and the treaty of Big
Tree was one) are, as compared with state
jurisdiction and legislation, the supreme
law of the land.
The New York Indians (Fellows ▼. Den-
niston) 5 Wall. 768, 18 L. ed. 711.
It was the intent of the treaty of Big
Tree that these rights, then possessed,
should not pass away from the Senecas un-
der the ceding clause.
United States ▼. Winans, 198 U. S. 871,
381, 49 L. ed. 1089, 1092, 25 Sup. Ct. Rep.
662.
If the Senecas were not to be immune
from state control in the enjoyment of fish-
ery and chase <m these lands, it must be
assumed that they would have refused to
cede to Morris.
Dick V. United SUtes, 208 U. a 340, 62
L. ed. 520, 28 Sup. Ct. Rep. 399.
Trci y engagements with Indians saying
that they may have certain rights, either
exclusive or in conunon with white men, are
to be protected.
Holden v. Joy, 17 Wall. 244, 21 L. ed.
534; Re Blackbird, 109 Fed. 139; United
States V. Winans, 73 Fed. 72; Seneca Na-
tion V. Appelby, 196 N. Y. 323, 89 N. K
835.
The fact that Indians, In selling tribal
lands, reserve possessory rights only Um-
porarily, does not operate to subject them
to state jurisdiction in the enjoyment of
those rights before Congress shall take ap-
propriate action putting an end to its pro-
tectorship.
Dick V. United SUtes, 208 U. 8. 840, 52
L. ed. 520, 28 Sup. Ct. Rep. 399.
The treaty of Big Tree, having been nego-
tiated with the United States, operated as
to the reservation of the rights retained,
with all the force of an act of Congress,
for it was expressly ratified by the Senate
and proclaimed by the President.
United States v. Pelican, 232 U. S. 442,
58 L. ed. 676, 34 Sup. (^. Rep. 396.
This treaty did not operate to reserve to
the Senecas only a jus privatum in the
land, but to retain a tribal right in order
to secure the private enjoyment of it by
members of the tribe.
•0 li. ed.
Re Mattson, 69 Fed. 535; McCready t.
Virginia, 94 U. S. 391, 24 L. ed. 248.
The only control by white men to which
tribal Indians may be subjected is that
which may be exercised by Congress.
United States v. Kagama, 118 U. S. 384,
30 L. ed. 231, 6 Sup. Ct. Rep. 1109; United
States V. Sandoval, 231 U. S. 28, 58 L. ed.
107, 34 Sup. Ct Rep. 1.
It was the intent of the Federal Consti-
tution that all shackles previously existing
on Federal departments in right to exclu-
sive control over Indian affairs should be
removed.
Worcester t. Georgia, 6 Pet. 515, 8 L. ed.
488.
No state may tax the lands of Indian
reservations, and this rule was laid down
by this court in the absence of any affirma-
tive act of Congress denying such power to
states.
The New York Indians (Fellows v. Den-
niston) 5 'Wall. 761, 18 L. ed. 708; The
Kansas Indians (Blue Jacket v. Johnson
County) 5 Wall. 737, 18 L. ed. 667.
As to crimes. Congress has the power to
retain exclusive jurisdiction over Indian
lands as against a state, even after those
lands have been allotted to individual In-
dians, and the Indians themselves have be-
come citizens of the United States.
United States v. Pelican, 232 U. S. 451,
58 L. ed. 680, 34 Sup. Ct. Rep. 396.
It follows that if Congress may, in case
of allotted lands and the dissolution of
tribes by affirmative legislation, retain ex-
clusive control over persons of Indian
blood, so, in the absence of affirmative legis-
lation putting Indians still tribal under
state jurisdiction, they retain their status
as tribal Indians, and their tribal rights,
as against state control.
United States v. Winans, 198 U. S. 371,
49 L. ed. 1089, 25 Sup. Ct. Rep. 662.
The better authorities in the New York
courts uphold our contention.
Bishop V. Barton, 2 Hun, 436, affirmed in
64 N. Y. 637 ; People ex rel. Cusick v. Daly,
212 N. Y. 183, 105 N. E. 1048, Ann. Cas.
1915D, 867; Hastings t. Farmer, 4 N. Y.
293; Jackson ex dem. Klock v. Hudson, 3
Johns. 375, 3 Am. Dec. 500; Buffalo, R. &
P. R. Co. V. Lavery, 75 Hun, 396, 27 N. Y.
Supp. 443.
The better authorities of other states
concur with the above cases.
State V. Campbell, 53 Minn. 354, 21
L.ILA. 169, 55 N. W. 553; Re Blackbird,
109 Fed. 139; United States ex rel. Davis
V. Shanks, 15 Minn. 369, Oil. 802; Earl v.
Godl^ (Earl t. Wilson) 42 Minn. 361, 7
L.RJL 126, 18 Am. Bt. Rep. 517, 44 N. W.
264; Kobogam ▼• JmIuoh Iron Co. 76 Mich.
11«7
SUPREME COURT OF THE UNITED STATES.
Got. Tnv,
«B, 43 N. W. 602; I* Riviere t. I* Ri»-
lew, 97 Mo. 80. 10 8. W. 8«.
The Foder*! authoritiei base recently
brought auit to reiniUte the Indians wlio
w«re ousted by the state courts, in the case
of BoyUn t. George, 133 App. Div. 514, 117
N. Y. Supp. 573. It would seem on its face
inejtplicable that the invaaion of tribal
rigbta involved in the above cases coald have
accumulated. The explanation may be tound.
In many inaUnces these Indians have asked
tlie sUite courts to pass upon the question
•ubmitted. Almost always in such eases the
Indiana, defeated in the first insUnce, have
had no means of their own adequate to ap-
peal. They have commonly neglected to ask
the Department of Justice to sue or defend
for them. The right, power, and duty of
the Federal departmenta to protect Indian
rights is thoroughly eatablislied in the fol-
lowing decisions of this court:
United States v. Ricltert, 188 U. 8. 432,
47 L. *d. 632, 23 Sup. Ct Rep. 178; Heck
man v. United SUtes, 224 U. S. 413, SB L
ed. 820, 32 Sup. Ct. Rep. 424; United SUtei
V. Boyd, 88 Fed. o77; United States v
Winans. 73 Fed. 72; United SUtes v. Gray
118 C. C. A. 529, 201 Fed. 281; Unitec
States ¥. Maokey, — C. C. A. — , 21$ Fed
120.
The rule aa to the field open to stafc
jurisdiction in matters of interstate com
merce does not apply as to commerce witl
Indian tribes.
Cherokee Nation ». Georgia, 6 Pel. 1, 18
8 L. ed. 25, 31; Worcester v. Georgia, (
Pet. 515, 681, 8 L. ed. 483, 601; Unite.
SUtes V. Kagama, 118 U. S. 38*. 30 L. ed
231, 9 Sup. Ct. Rep. HOB; The Kansa
Indians (Blue Jacket v. Johnson County
5 Wall. 765, 18 L. ed. 872; Re Heff, 18
U. S. 608, 49 L. ed. 856, 25 Sup. Ct. Eei
SOS.
If a decision is made to-day on this mil
joct which our oourU would not have mad
one hundred years ago, when these Indian
were powerful, our courU would not, i
the language of this court, l>e adminiatei
ing "that superior justice in respect to Ii
dians which becomes our judiciary."
United SUtes v. Rickert, 188 U. S. 481
47 L. ed. 632, 23 Sup. Ct. Hep. 478. 8«
also Dick V. United SUtes, 203 U. S. 3»
52 L. ed. 620, 28 Sup. Ct. Rep. 309.
The Hartford convention should not 1
honored in this cause by thU court for an
purpose prejudicial to the Benecas.
Ogdan V. Lee, 6 Hill. 646; The New Yoi
Indians (Fellows v. DennisUn) 6 Wal
768, 18 I* ed. 712, reversing 23 N. Y. 42t
Fellows V. Blacksmith, IB How. 366, 16 '.
ed. 684, affirming 7 N. Y. 401; Holden
Joy. 17 WalL 844, 21 L. ed. 534; New Yoi
ex r«L Cutler t. IHbble. 81 How. 388, lo
lies
■ ed 149. affirming 16 N. Y. 203; Seoeea
ation T. Appleby, 196 N. Y. 323. 89 N. t
15; Ryan v, Knorr, 19 Hun, 640.
Assistant Attorney General Wwren also
rgued the cause, and. with Mr. W. W.
yar, filed ■ brief for plaintiffs in error;
The language used in treaties with ths
idiana should never be construed to their
rejudice. How the words of the treaty
ere understood by this unlettered people,
ither than their critical meaning, should
>rm the rule of construction.
Worcester v. Georgia, « Pet. 615, 681,
L. ed. 463, 608; Ihe Kaoaas Indians
Blue Jacket v. Johnson County) 6 Wall
37 767, 18 L. ed. 667, 873; ChooUw Na-
ion V. United States, 119 U. S. 1, 27, 88,
0 L. ed. 306, 314, 315, 7 Sup. Ct. Rep. 76;
ones V. Meehan, 176 U. S. 1, 11, 44 L. ed.
9 64, 20 Sup. Ct. Rep. 1; United SUtes
. Winans, 1B8 U. S. 371, 380, 49 L. ed.
089, 10B2, 26 Sup. Ct. Rep. 662; North-
m P. R. Co. V, United SUtea, 287 U. S.
56, 368, 367, 67 L. ad. 644, 648, 650, 83
(up. Ct. Rep. 36B; Winters v. United
iUtea, 207 U. S. 664, 62 L. ed. 340. 28
iup. Ct. Rep. 207.
The Seneca and other New York tnbal
ndUns are wards, not of the eUte. hut of
lie United SUtes.
Worcester v. Geor^, 8 Pet. 616, B L. el
183; The New York Indiana (Fellows v.
Oenniston) 6 Wall. 761, 18 L. ed. 711;
Fellows V. Blacksmith. 18 How. 366, 16 I*
■d. 684; People ei rol. Cuaick v. Daly, 212
S. Y. 183, 105 N. E. 1048, Ann. Oaa. 1816D,
J67. ,.
The hunting and fishing ri^ta mvolved
ire a part of the original Indian righte of
Kcupancy, reserved in the very inatmment
jf cession, never relinquished, and continn-
DUsly held under the andent Indian title.
The loiru* i* quo, therefore, always re-
mained an Indian reservation pro tanto.
United StaUs t. Winans, 108 U. 8. 371,
18 L. ed. lOBB, 26 Sup. Ct. Rep. «a2.
There ia nothing peculiarly 8*cred in sUle
control over flah and game; and ia ths
West the courts have expressly held that
sUte fish and game laws cannot be en-
forced against Indians on their own reser-
vations.
Re Blackbird, 108 Fed. 139; Re Lfneoln,
128 Fed. 247; State v. Campbell, 6S Minn.
364, 21 LJIA. 169, 55 N. W. 653.
The reeerved rights of hunting and fishing
are secured to the Seneca Indiana by the
word of the United SUtea, given at a pub-
lic treaty, which ia the aupreme law of the
land.
Fellows V. Blacksmith, 19 How. 386, 31%
15 L. ed. 6S4, 686.
SUte police lawB must yield when clear-
341 V.B-
1915.
NEW YORK EX SKL. KENNEDY ▼. BECKER.
ly in conflict with the prohibitions of the
Constitution (Eubank v. Richmond, 226 U.
S. 137, 57 L. ecL 156, 42 L.RJl.(N.S.) 1123,
33 Sup. Ct. Rep. 76, Ann. Cas. 1914B, 192),
or with Federal laws or treaties passed or
made in the exercise of powers clearly
granted.
Sligh y. Kirkwood, 237 U. S. 52, 58, 59
L. ed. 835, 837, 85 Sup. Ct. Rep. 501; Geo-
froy V. RiggB, 133 U. S. 258, 266, 267, 33
L. ed. 642, 644, 645, 10 Sup. Ct. Rep. 295.
The United States may, by treaty, con-
tinue in force its legislation iforbidding the
sale of intoxicating liquors to Indians, even
upon lands which have been ceded and
patented to whites under the town-site
laws.
Dick V. United States, 208 U. S. 340, 52
L. ed. 520, 28 Sup. Ct. Rep. 300; Johnson
V. Gearlds, 234 U. S. 422, 58 L. ed. 1383, 34
Sup. Ct. Rep. 794.
And Federal legislation may continue in
force after the Indian lands have been
allotted in severalty and are held under
trust patents, although the Indians have
become citizens of the states.
United States ▼. Pelican, 232 U. S. 442,
447, 58 L. ed. 676, 678, 34 Sup. Ct. Rep.
306; Perrin v. United States, 232 U. S.
478, 58 L. ed. 691, 34 Sup. Ct. Rep. 387.
It cannot be denied that these exertions
of Federal power abridged the free exer-
cise of their ordinary police power to con-
trol the sale of intoxicating liquors by the
states concerned.
Those authorities are applicable here, for
the power of the United States over Indian
relations does not depend upon Federal
ownership of the lands they occupy, but
upon the subject-matter.
Perrin v. United States, 232 U. S. 478,
484, 485, 58 L. ed. 691, 694, 695, 34 Sup.
Ct. Rep. 387; United States v, Sandoval,
231 U. S. 28, 58 L. ed. 110, 34 Sup. Ct.
Rep. 1; United States ▼. 43 Gallons of
Whiskey (United SUtes ▼. Lariviero) 93
U. S. 188, 23 L. ed. 846.
The agreement here involved was within
the scope of the treaty-making power
vested in the government.
Holden v. Joy, 17 Wall. 211, 243, 21 L.
ed. 523, 534; Geofroy v. Riggs, 133 U. S.
258, 267, 33 L. ed. 642, 645, 10 Sup. Ct.
Rep. 295.
The operation of the state fish and game
laws was excluded by the exercise of Fed-
eral power.
The Kansas Indians (Blue Jacket v.
Mr. Blaine F. Sturgis argued the cause,
and, with Mr. A. Frank Jenks and Mr. E. E.
Woodbury, Attorney General of New York,
filed a brief for defendant in error:
When Indians leave their reservations
and cross into territory over which the
state has governmental jurisdiction, they
forfeit the protection accorded them as
wards of the Federal government, and sub-
ject themselves to tiie laws of the state,
the same as other individuals.
C3airmont v. United States, 225 U. S.
551, 56 L. ed. 1201, 32 Sup. Ct. Rep. 787;
Ward V. Race Horse, 168 U. S. 504, 41 L.
ed. 244, 16 Sup. Ct. Rep. 1076; Ex parte
Tilden, 218 Fed. 920.
The governmental power of self-protec-
tion cannot be contracted away, nor can
the exercise of rights granted, nor the use
of property, be withdrawn from the im-
plied liability to governmental regulation
in particulars essential to the preservation
of the community from injury.
New York & N. E. R. Co. ▼. Bristol, 151
U. S. 556, 567, 38 L. ed. 269, 272, 14 Sup.
Ct. Rep. 437.
Every holder of property, however abso-
lute and unqualified may be his title, holds
it under the implied liability that its use
may be so regulated that it shall not be
injurious to the equal enjoyment of others
having an equal right to the enjoyment of
their property, nor injurious to the rights
of the community. All property in this
commonwealth, as well that in the interior
as that bordering on tide waters, is derived
directly or indirectly from the government,
and held subject to those general regula-
tions which are necessary to the common
good and general welfare. Rights of prop-
erty, like all other social and conventional
rights, are subject to such reasonable limi-
tations in their enjoyment as shall prevent
thera from being injurious, and to such rea-
sonable restraints and regulations estab-
lished by law as the legislature, under the
governing and controlling power vested in
it by the Constitution, may think necessary
and expedient.
Com. V. Alger, 7 Cush. 84.
The ultimate fee of all lands occupied by
Indians is in the sovereign, subject to the
right of occupation untU the same is ex-
tinguished under sanction of the govern-
ment. Fletcher ▼. Peck, 6 C^nch, 87, 3
L. ed. 162; Johnson v. M'Intosh, 8 Wheat.
543, 5 L. ed. 681; United States v. Kaga-
ma, 118 U. S. 375, 80 L. ed. 228, 6 Sup.
Ct. Rep. 1109.
The treaty making power was never in-
tended to abridge the right of a state to
regulate its strictly internal affairs.
Johnson County) 5 Wall. 737, 755, 18 L. I Geofroy v. Riggs, 133 U. S. 258, 33 L. ed.
ed. 667, 672. ' ' 642, 10 Sup. Ct. Rep. 295 ; Tucker, Limita-
•0 I/, ed. 74 11«9
559, 560
SUPREME CX)URT OF THE UNITED STATES.
Oct. Teem,
tions on Treaty Making Power 1915, pp.
381, 382.
In construing provisions of a treaty, this
court has always upheld the police power of
the states, where possible.
Ward V. Race Horse, 163 U. S. 504, 41
L. ed. 244, 16 Sup. Ct. Rep. 1076; Patsone
V. Pennsylvania, 232 U. S. 138, 58 L. ed.
539, 34 Sup. Ct. Rep. 281; Compagnie
Frangaise de Navigation It Vapeur v. State
Bd. of Health, 186 U. S. 380, 394, 305, 46
L, ed. 1209, 1216, 1217, 22 Sup. Ct. Rep.
811.
Mr. Herbert B. lioe also argued the
cause and filed a brief for defendant in er-
ror:
The state of New York, except in so far
as it has delegated its inherent powers to
the United States, has the jurisdiction de-
scribed, including jurisdiction over Indians,
for the Federal government is a govern-
ment of delegated powers.
People ex reL Cusick v. Daly, 212 N. Y.
183, 105 N. E. 1048, Ann. Cas. 1915D,
367; Cherokee Nation v. Georgia, 5 Pet.
1, 22, 8 L. ed. 25, 32; Mitchel v. United
States, 9 Pet. 712, 745, 9 L. ed. 283, 205;
New York ex rel. Cutler v. Dibble, 21 How.
366, 16 L. ed. 149; Dick v. United States,
208 U. S. 340, 353, 52 L. ed. 520, 525, 28
Sup. Ct. Rep. 399.
The character of the contracting parties,
the subject-matter of the transaction, and
the language employed by them, indicate
that this grant, far from being a treaty in
the proper sense of that term, was in fact
the familiar conveyance of an interest in
land by one individual or group of common
owners to another individual.
Cherokee Nation v. Georgia, 5 Pet. 1,
17, 22, 8 L. ed. 25, 31, 32; United States
V. Rogers, 4 How. 567, 572, 11 L. ed. 1105,
1107; New York ex rel. Cutler ▼. Dibble,
21 How. 366, 370, 16 L. ed. 140, 151;
United States v. Kagama, 118 U. S. 375,
381, 30 L. ed. 228, 230, 6 Sup. Ct. Rep.
1109; Mitchel v. United SUtes, 9 Pet. 712,
745, 9 L. ed. 283, 295; United States v.
48 Gallons of Whiskey (United States ▼.
Lariviere) 93 U. S. 188, 23 L. ed. 846.
In Ward v. Race Horse, 163 U. S. 504,
41 L. ed. 244, 16 Sup. Ct. Rep. 1076, sinu-
lar to the case at bar, this court held that
a treaty in which the Indians reserved the
right to hunt upon the land ceded had left
them amenable to the game laws of Wy-
oming.
United States v. Winans, 198 U. S. 371,
49 L. ed. 1089, 25 Sup. Ct. Rep. 662, did
not overrule Ward ▼. Race Horse, but is
distinguishable therefrom, and consistent
with the contentions of defendant in error.
1170
Mr. Chief Justice White delivered the
opinion of the court, after reading the fol-
lowing memorandum:
This opinion, by direction of the eourt,
had been prepared by Mr. Justice Hughes,
and was approved before hift resignation.
After that event, it was again considered,
and was re-adopted.
Fayette Kennedy, Warren Kennedy, and
Willis White, Jr., three Seneca Indians, re-
siding on the Cattaraugus Reservation, un-
der the charge of an Indian agent of the
United States, were arrested for spearing
fish in Eighteen Mile creek, in Erie county,
state of New York, at a place outside the
Reservation, and there having certain fish
in their possession, in violation of § 176
of the conservation law of that state. A
justice of the peace committed them to the
custody of the sheriff, and a writ of habeas
corpus was sued out upon the ground that
the commitment was invalid. It was al-
leged that the persons arrested were tribal
Indians, as above stated, and that the place
where the offense was committed was within
the territory included in "certain grants
. . . under sanction of the United States
of America, whereby . . . the right
was reserved to the said Indians to fish
in the waters on and in said lands." The su-
preme court, at special term, discharged the
petitioners, holding that the ancient grants,
agreements, and the treaties mentioned*
and [560] particularljr the treaty made
between the Seneca Nation of Indians and
Robert Morris, in the year 1797, permitted
these Indians to fish in the waters in ques-
tion ''at will, and at all seasons of the year,
regardless of the provisions of the game
laws of the state of New York." The ap-
pellate division of the supreme court, fourth
department, reversed the order, and re-
manded the three Indians to custody (165
App. Div. 881, 151 N. Y. Supp. 138); and
the order of the appellate division w:as
affirmed by the court of appeals. The
court entertained the Federal question pre-
sented, and decided that the state law, not-
withstanding the treaty, was applicable.
215 N. Y. 42, 109 N. E. 116.
Section 176 of the conservation law of
New York prohibits the taking of fish, or
having the same in possession, except as
permitted by the article of which it is a
part. The validity of these provisions with
respect to those subject to the jurisdiction
of the state is not questioned. The con-
troversy relates solely to the state power
over these Indians.
The argument for the plaintiffs in error
has taken a wide range, and embraces an
extended history of the dealings with the
Six Nations. We do not find it to be neces-
sary to review this interesting history, as
241 U. S.
1015. NEW YORK EX bel. KENNEDY ▼. BECKER. 560-563
the question to be determined is a narrow i were subject to the jurisdiction and sover-
one. The locus m quo is within the state eignty of the [562] state of New York.
of New York, being within 1 mile from the I The grant contained the following reserva-
point where Eighteen Mile creek empties
into Lake Erie. It is not within the terri-
torial limits of the Indian Reservation on
which the Scnecas reside. It is within the
territory which was ceded by the Seneca
Nation to Robert Morris by the treaty of
the "Big Tree/' of September 15, 1707 (7
Stat, at L. 601), and the question turns
upon the construction of this treaty; that
is, on the consequences which attached to
the reservation therein of fishing and hunt-
ing rights upon the lands then granted.
These lands were a part of the tract cov-
ered by the compact made in 1786 between
the state of New York and the [561] com-
monwealth of Massachusetts, known as the
Hartford convention. (Journals of Con-
gress, vol. 4, p. 787.) By the terms of this
compact for the settlement of existing con-
tion, which is in question here: — "Also, ex-
cepting and reserving to them, the said par-
ties of the first part and their heirs, the
privilege of fishing and hunting on the
said tract of land hereby intended to be
conveyed."
The right thus reserved was not an ex-
clusive right. Those to whom the lands
were ceded, and their grantees, and all per-
sons to whom the privilege might be given,
would be entitled to hunt and fish upon
these lands, as well as the Indians of this
tribe. And, with respect to this nonexclu-
sive right of the latter, it is important to
observe the exact nature of the controversy.
It is not disputed that these Indians re-
served the stated privilege both as against
their grantees and all who miglit become
owners of the ceded lands. We assume
troversies, Massachusetts ceded, granted, and that they retained an easement, or profit
released to New York all its "claim, right, ^ prendre, to the extent defined; that is
and title" to the "government, sovereignty, not questioned. Tlie right asserted in tliis
and jurisdiction" of the lands, while New p^se is against the state of New York. It
York ceded, granted, and released to Massa- ^^ ^ j-jght sought to be maintained in dero-
chusetU "the right of pre-emption of the g^^jon of the sovereignty of the state. It
soil from the native Indians, and all other j^ ^^^t a claim for the vindication of a right
the estate, right, title, and property" which ^^ p^j^j^t^ property against any injurious
the state of New York had. Subsequently discrimination, for the regulations of the
Massachusetts sold to Robert Morns its ^^^^ ^ppjy ^ ^^ persons equally. It is
"pre-emptive right." By § 12 of the Fed- ^^e denial with respect to these Indians,
eral Indian intercourse act of May 19, 1796 ^„^ ^y^^ exercise of tlie privilege reserved,
(1 Stat, at L. 469, 472, chap. 30), it was ^f ^^ g^ate power of control or reasonable
provided that no conveyance of lands "from regulation as to lands and waters otherwise
any Indian, or nation or tribe of Indians," admittedly within the jurisdiction of the
should be valid imless "the same be made g^^^
by treaty or convention, entered into pur- j^ jg ^^^ ^ y^ doubted that the power to
suant to the Constitution;" and this was preserve fish and game within its borders
subject to a proviso as to the proposal and jg inherent in the sovereignty of the state
adjustment of compensation by state agente ^Q^g^ ^ Connecticut, 161 U. S. 519, 40 U
in the presence and with the approval of ^ 793^ jg g^p q^ j^^p qqO; Ward v. Race
commissioners of the United States. The ^Q^Be, 163 U. 8. 504, 507, 41 L. ed. 244,
lands in question were accordingly conveyed 345, 16 Sup. Ct. Rep. 1076), subject, of
to Robert Morris by the treaty above men- course, to any valid exercise of authority
tioned. From the preamble (as shown by ^^^^^ ^j^g provisions of the Federal Con-
the original on file in the SUte Depart- gtitution. It is not denied—save as to the
ment, a copy of which has been produced members of this tribe— that this inherent
by the government) it appears that the con- p^^^^ extended over the locut in quo and
veyance was made under the authority of ^^ ^^ persons attempting there to hunt or
the United States, and in the presence of f^^^ whether they are owners of the lands
the United Stetes commissioner, and the ^^ others. The contention for the plain-
treaty was proclaimed by the President ^^^ j^ error must, and does, [663] go to
after ratification by the Senate on April ^^ g^^^^^ ^f insisting that the effect of the
11, 1798. The convention is in the form of reservation was to mainUin in the tribe
an indenture by which (identifying the govereignty quoad hoc. As the plaintiffs in
tract as being part of that embraced in the error put it: "The land itself became there-
Hartford convention) these lands were by subject to a joint property ownership
granted by the sachems, chiefs, and warriors and the dual sovereignty of the two peoples,
of the Seneca Nation to Robert Morris, white and red, to fit the case intended, how-
'^is heirs and assigns forever." The lands ever infrequent such situation was to be."
— ^which were soon resold — thus passed by We are unable to take this view. It is
the conveyance into private ownership, and said that the state would regulate the
60 li. ed. 1171
S6S-6U SUPBBllB COURT OF THE UNITED STATES. Oct. Tnii,
whites »nd that th* Indian tribe would can of an Indian agent ; but this fact doM
r^ulate ita member*, but if neither oould not derogate from the authority ol the etatt,
exerciae authority with respect to the other in a caae bice the present, to enforce iU
at the looM in put, sither would be free laws at the loou* in giAo. Ward w. Bue
to deitroj the subject at the power. Such Horse and United Slates t. WLuaiu, tupit.
a duaiitj of sovereignty, instead of main- There is no question of conflict with aoj
taining in each Uie esaential power of iegislation of Congreai or with action undtf
preservation, would in fact deny it to Iwth. its authority; for the case rests on the coa-
It has frequently been said that treaties itruction of the treaty. The only action at
with the Indiana should be construed in the Federal authority, that is pertinent, is
•ense in which the Indians understood found in the oonvention itself. It stioold
them. But it is idle to suppose that there be added that we have not oonaideied aaj
was any actual anticipation at the time question relating to conduct or Aahiig
the treaty was made of the conditions now rights upon territory, not ceded, wiiieh is
ttisting, to which the legislation in ques- comprisea within the Indian Reservation!
tion was addressed. Adopted when game nor is it neceaaary to deal with other nut-
was plentiful, — when the cultivation con- ter* which have been discussed in argument
templated by the whites waa not expected touching the relation of the stats of Nea
to interfere with its abundance, — It can York to the Indians within ita borders,
hardly be supposed that the thought of the We find no error in the judgment of thi
Indiana was concerned with the necessary state court, and it is accordingly affirmed,
exercise of inherent power under modern Judgment affirmed,
eonditiona for the preservation of wild life.
But the existence of the sovereignty of the
■tate was well understood, and this con-
oeption involved all that was necessarily [gasj STATE OF OHIO ON RELATION
Implied in that sovereignty, whether fully OF DAVID DAVIS, Flft. in Err,
appreciated or not. We do not think that v.
it is a proper conetruoUon of the reurva- CHARLES Q. HILDEBRUIT, SecreUry of
tion in the conveyance to regard it a* an StaU of Ohio, SUte Supervisor and la-
attempt either to reserve aovereign prerc^a- specter of ElecUons. and SUte Supff-
tive. or so to divide the inherent power of "»«"■ °' Elections, et aL
preservaUon a. to make if comp«t«.t ezer- ^ g ^ ^g^^t^., ^ MW-8T0.)
cue impossible. Rather are we of the opin- '
ion that the olauae is fully aatisfied by con- Hrrot to atate court — scope of reriew
Sidering it a reservation of a privilege of _ non-Federal anextioa.
fishing and hunting upon the granted lands 1. Whether a state, so far as it had
in common with the [SB4] grantees, and the power to do so, had bv coastitutionsl
others to wliom the privilege might be ex- amendment vested a part of the legislative
tended, but subject, nevertheleai, to that [«"""■ ^ ^» people, by reserving a riaW
necessary power of appropriate regulaUon, ^7 way of referendum to approve or d.i-
if it ■ T J V 1. ■ L J ■ approve by popular »ot« any taw enacled
as to all tbo«. privileged, which inhered in PP^^^^ geJersf assembly, is a question d
the sovereignty of the sUU over the lauds .('^j^ i,„_ ^ decision of which by the iiigh-
where the privilege was exercised. This est sUte court is not reviewable by the Fed-
was clearly recognized in United States v. eral Supreme Court on writ of error to Um
Winans, 19B U. 8. 371, 384, 49 L. ed. 1089, aUte court.
1093, 25 Sup. Ct. Rep. 662, where the court, t^'JJjJ'*'^ a^t'sn^^S^lSoi.)^'"*'' ^*"
in sustaining the fishing rights of the Indiana
Consreaa — reapportionment •
n the ColumbU river, under the provisions „,uoa of referendum m a _„
of the treaty between the United States and ny^ power.
the Yakima Indians, ratified in 18110 [Ifi £. Congress, by providing in the re^
But. at L. Bfil], said (referring to the au- — : r . . . : z^
thority of the state of Washington) : "Nor Nort— On the genersJ subject <>* J^^
J /„ ,.t.. ; ,1. ,. ,,. „?<i* 'i,i„„ n.i. error from the United St«tea Supreme
does t (that ij, the right of taking flsh ^^^ ^ ^^^^^ courts—se notes to liartis
at all usual and accustomed places") 're- , HunUr, 4 L. od. U. S. 97 ; Hamblin v.
•train the ataU unreasonably, if at all, in Western Land Co. 37 L. ed. U. 8. E67-, Rs
the regulation of the right It only fixes Buchanan, 39 L. ed, U. S. 884, and Kipl^
in the land such easementa aa enable the y. Illino^, 42 L. ed. U. S. Q98.
right to be exercised." On what questions the Federal Snprenn
We have assumed the applicability of the Court will consider in reviewing ^e judg-
,.,U ...;.,»..«-,.. it. ™...~«i™ ;. rl H ""DS'.^L'il.lT?-""'
determined by the decision of the state q^ initiative and referendum— see noU
court. We also assume that these Indiani to State ex rel. Davies v. Wtiite, SO L-RA.
are wards of the United States, under the {N.S.) 196.
117* 141 U. 9.
1015.
orao
DAVIS ▼. HILDEBRANT.
portionment aet of August 8, 1911 (37 Stat,
at L. 13, chap. 5, Comp. Stat. 1913, § 15),
that the redistricting of the congressional
districts should be made by each state "in
the manner provided by the laws thereof,"
manifestly intended that where, by the state
Constitution and laws, the referendum is
treated as a part of the legislative power,
the power thus constituted should be held
and treated as the state legislative power
for the purpose of creating congressional
districts by law.
[Matters as to Conneas, see Congress, In
Digest Sap. Ct 1908.] i
Congress •» reapportloiunent — recog-
nition of referendum as state legisla-
tive power.
3. The recognition by Congress in the
congressional reapportionment act of Au-
gust 8, 1911 (37 Stat, at L. 13, chap. 5,
Comp. Stat. 1913, § 15), of the referendum
as a part of the state legislative power for
the purpose of creating congressional dis-
tricts, where, by the state Constitution and
laws, the referendum is so regarded, does
not violate the provision of U. S. Const, art.
1, § 4, that the "times, places, and manner
of holding elections for senators and repre-
sentatives shall be prescribed in each state
by the legislature thereof, but the Congress
may at any time by law make or alter such
regulations."
[Matters as to Congress, see Congress, in
Digest Sup. Ct 1908.1
Courts •* jnrlsdlctloii — political ques-
tion •» republican form of govern-
ment ^ referendum.
4. Whether or not a state has ceased to
be republican in form, within the meaning
of the guaranty of U. S. Const, art. 4, § 4,
because it has made the referendum a part
of the legislative power, is not a judicial
question, but a political one, which is solely
for Congress to determine.
[For other cases, see Courts, L e, 2; Constitu-
tional Law, III. c, in Digest Sup. Ct. 1008. J
Courts •* jurisdiction — political ques-
tion — congressional apportionment
^ referendum •» republican form of
government.
5. The courts may not treat the provi-
sions of the congressional apportionment
act of August 8, 1911 (37 Stat, at L. 13,
chap. 5, Comp. Stat. 1913, § 15), under
which the referendum is recognised as a
part of the state legislative power for the
purpose of creating congressional districts,
where so treated by the state Constitution
and laws, as repugnant to the republican
form of government guaranteed by U. S.
Const, art 4, § 4, since Congress is vested
with the exclusive authority to uphold this
guaranty.
[For other cases, see Courts, I. e, 2 ; Constitu-
tional Law, III. c in Digest Sop. Ct. 1908.]
[No. 987.]
Submitted May 22, 1916. Decided June 12,
1916.
IN ERROR to the Supreme Court of the
State of Ohio to review a judgment deny-
60 li. ed.
ing a writ of mandamus to compel state
election officers to disregard the popular
vote on a referendum disapproving a stat-
ute redistricting the state for the purpose
of congressional elections. Affirmed.
The facts are stated in the opinion.
Messrs. Sherman T. McPlierson and
J. Warren Kelfer submitted the cause for
plaintiff in error:
The Constitution of the United States is
supreme whenever it speaks; and certainly
as to matters relating to its own organiza-
tion and existence.
Ex parte Siebold, 100 U. S. 371, 25 U
ed. 717; Ex parte Tarbrough, 110 U. S.
651, 658, 661, 28 L. ed. 274, 276, 277, 4
Sup. Ct. Rep. 152.
The consequences of a Constitution or
law should be taken into consideration in
construing it.
Slaughter-House Oases, 16 Wall. 36, 7S,
21 L. ed. 394, 409 ; 4 Enc U. S. Sup. Ct. Rep.
50, f 12, and note 83; 6 Am. Jk Eng. Enc
Law, 1079, 1080, note 1; Cooley, Const.
Lim. 62; Dodge v. Woolsey, 18 How. 331, 15
L. ed. 401; Gunn v. Bairy, 15 Wall. 610,
21 L. ed. 212; New Orleans Gaslight Co.
V. Louisiana Light & H. P. & Mfg. Co. 115
U. S. 672, 29 L. ed. 524, 6 Sup. Ct. Rep.
252.
Constitutional mandates are imperative.
The question is never one of amount, but
one of power. The applicable maxim is
obsta principiU, not de minimia non curat
lew. And so, whenever a particular object
is to be effected, the language of the Con-
stitution is alwajrs imperative.
Fairbank t. United States, 181 U. S.
283, 291, 45 L. ed. 862, 866, 21 Sup. Ct.
Rep. 648, 15 Am. Crim. Rep. 135; 4 Enc
U. S. Sup. Ct Rep. 50, 1 12, p. 83.
The Constitution is a written agreement
As such its meaning does not alter. That
which it meant when adopted it means now.
4 Enc U. S. Sup. Ct Rep. 36, f 3, note
39 ; Scott T. Sandford, 19 How. 393, 426, 15
L. ed. 691, 709; MePherson t. Blacker, 146
U. S. 1, 86, 36 L. ed. 869, 877, 13 Sup. Ot.
Rep. 3; Pcdlock t. Farmers' Loan k T. Co.
158 U. S. 601, 621, 89 L. ed. 1108, 1120, 15>
Sup. Ct. Rep. 912; South Carolina t. United
States, 199 U. S. 437, 448, 50 L. ed. 261,.
264, 26 Sup. Ct Rep. 110, 4 Ann. €^
737; Veazie Bank t. Fenno, 8 WaU. 542,.
19 L. ed. 486; Locke t. New Orleans, 4
WaU. 172, 18 L. ed. 334; United States t.
Harris, 1 Abb. (U. S.) 110, Fed. OtuB. No.
15,312; United States v. Bk)ck, 4 Sawy. 211,.
Fed. Cas. No. 14,609; Fox v. McDonald, 101
Ala. 51, 21 LJtJL. 529, 46 Am. St Rep. 98,.
13 So. 416; Evansville t. State, 118 Ind.
441, 4 LJtA. 93, 21 N. E. 267; 9 Bancroft,.
History of U. S. Const. 260; Martin t.
1
SUPREME COURT OP THE UNITED STATES.
Oct. Term,
Hunter, 1 Wheat. 314, 4 L. ed. 99; Gibbons
V. Ogden, 9 Wheat. 1, 6 L. ed. 23; Texaa
V. White, 7 WaU. 721, 19 L. ed. 236;
Minor v. Happersett, 21 Wall. 171, 22 L.
ed. 629; McPherson v. Blacker, 146 U. 8. 1,
36 L. ed. 869, 13 Sup. Ct. Rep. 3.
Courts must look to the history of the
times and examine the state of things then
existing when it (the Constitution) was
framed and adopted in order to correctly
interpret its meaning.
4 Enc. U. S. Sup. Ct. Rep. 37, note, 41;
Rhode Island v. Massachusetts, 12 Pet. 657,
723, 9 L. ed. 1233, 1260; Missouri v. Illi-
nois, 180 U. S. 208, 219, 45 L. ed. 497, 504,
21 Sup. Ct. Rep. 331.
So as to contemporary exposition.
4 Enc. U. S. Sup. Ct. Rep. 37, 38, note,
43.
A state is described and defined — "a gov-
ernment under which the people live, etc."
Texas v. White, 7 WaU. 700, 19 L. ed.
227.
See, as to constitutional limitations of
states,— 4 Enc. U. S. Sup. Ct. Rep. 138,
139, note, 61; Barron v. Baltimore, 7 Pet.
243, 8 L. ed. 672.
The Constitution of the United States
renders void and annuls whatever is done
in opposition to it.
Poole v. Fleeger, 11 Pet. 185, 212, 9 L. ed.
680, 691; Cummings v. Chicago, 188 U. S.
410, 428, 47 L. ed. 525, 530, 23 Sup. Ct.
Rep. 472; 4 Enc. U. S. Sup. Ct. Rep. 180.
The language of the Constitution is im-
perative on the state legislature, to make
laws prescribing the times, places, and man-
ner of holding elections for senators and
representatives, and for the electors of
President and Vice President. ]
Martin v. Hunter, 1 Wheat. 304, 4 L. ed.
97.
Perhaps the safest rule of interpretation
will be found to be to look to the nature i
and objects of the particular powers, duties,
and rights, with all the light and aids of
contemporary history; and to give to the
words of each just such operation and force,
consistent with their legitimate meaning,
as may fairly secure and attain the ends
proposed.
Prigg V. Pennsylvania, 16 Pet. 540, 610, 10
L. ed. 1061, 1087.
Nothing in a state Constitution could
ipiterfere with the right given to the legis-
lature of the state by art. 1, § 4 of the
Constitution of the United States.
1 Hinds, Precedents, p. 653; Martin ▼.
Hunter, supra.
The power exclusively given to the legis-
lature by the supreme organic law of the
United States cannot be either delegated
or assumed in any manner by the people
of the state of Ohio.
1174
McPherson v. Blacker, 92 Mich. 377, 16
L.R.A. 475, 31 Am. St. Rep. 587, 62 N. W.
469, 146 U. S. 1, 35, 36 L. ed. 869, 877, IS
Sup. Ct. Rep. 3; Texas v. White, 7 WalL
700, 721, 19 L. ed. 227, 236; Chisholm v.
Georgia, 2 DaU. 419, 1 L. ed. 440; Leitens-
dorfer v. Webb, 20 How. 176, 15 L. ed.
891; Ex parte Siebold, 100 U. S. 371, 25
L. ed. 717; Re Green, 134 U. 8. 377, 33
L. ed. 951, 10 Sup. Ct. Rep. 586; 6 Am
& Eng. Enc. Law, 1021, note 6; Cincin-
nati, W. & Z. R. Co. V. Clinton County, 1
Ohio St. 77; 1 Bartlett, Election Cases,
pp. 47, 60; 1 Hinds, Precedents, pp. 170-
172, 180, 181, 286, 287, 300-302, 391, 392,
654, 659, 661-672, 841-843, 1099, 1100, §§
309, 310, 313, 359, 360, 363, 367, 522, 524,
525, n. 24, 632, 844, 856; 2 Hinds, Prece-
dents, pp. 24-26, 230, 238, 240, 241, 738,
742, §§ 856, 945, 946, 947, 1132, 1133;
Baldwin v. Trowbridge, 2 Bartlett, Elec-
tion Cases, 46; Donnelly v. Washburn, 1
Ells. 495; McCrary, Elections, pp. 109-112.
Each government is sovereign within its
own powers.
4 Enc. U. S. Sup. Ct. Rep. 185, note 19 ;
Respublica v. Cobbet, 3 DalL 467, 473, 1
L. ed. 683, 685; M'Culloch v. Maryland, 4
Wheat. 376, 4 L. ed. 594.
In the instances where (as under U. S.
Const, art. 1, § 4) the right is given to
exercise a certain power by law, and the
right is reserved to Congress to make or
alter such legislation, the latter's failure
to act leaves the legislature with such full
power.
4 Enc. U. S. Sup. Ct. Rep. 175, note 90;
Sturges V. Crowninshie^d, 4 Wheat. 122, 4
L. ed. 529.
Whenever the will of the nation inter-
venes exclusively in this class of cases, the
authority of the state retires and lies in
abeyance until a proper occasion for its-
exercise shall recur.
4 Enc. U. S. Sup. Ct. Rep. 175, 176, note
91; GUman v. Philadelphia, 3 WalL 713, 18
L. ed. 96.
There has been some confusion rather
than conflict of views growing out of ad-
mitting new states and electing representa-
tives at the same time, as provided in a
prior convention plan. Such provisions
have sometimes been held to anticipate the
action of a yet to be chosen legislature,
but it has always been held that where
there was a state legislature, its power
was exclusive.
1 Hinds, Precedents, pp. 649, 653, 655;
1 Bartlett, Election Cases, p. 392; Jame-
son, Const. Conventions, p. 409.
Such referendum as is provided for by
art. 2,. of the Constitution of Ohio, is not
republican in form for the reason that it
seeks to provide a separate popular form
241 V. 8.
1915.
OHIO EX BEL. DAVIS V. HILDEBRANT.
566
of goYemment, wholly independent of the
representative constitutional government
established for the United States, and in-
consistent with it.
Re Ihincan, 139 U. S. 461, 35 L. ed. 224,
11 Sup. Ct. Rep. 573; Luther ▼. Borden, 7
How. 1, 12 L. ed. 581; 6 Webster's Works,
p. 217; 4 Enc U. S. Sup. Ct. Rep. pp. 319,
330, and notes; Minor v. Happersett, 21
Wall. 162, 175, 176, 22 L. ed. 627, 630, 631 ;
Downes v. Bidwell, 182 U. S. 279, 45 L. ed.
1103, 21 Sup. Ct Rep. 770; Von Holat,
Const. Law, 236, 237; Koehler v. Hill, 60
Iowa, 543, 14 N. W. 738, 15 N. W. 609;
Allyn's Appeal, 81 Conn. 534, 23 LJI.A.
(N.S.) 630, 129 Am. St. Rep. 225, 71 Atl.
794; Cooley, Const. Lim. 7th ed. p. 62; 3
Elliot Debates, p. 55; BUck, Const. Law, 2d
ed. 262; Rice T. Foster, 4 Harr. (Del.) 479;
Martin ▼. Martin, 20 N. J. Eq. 421 ; United
States T. Cruikshank, 02 U. S. 549, 23 L. ed.
590; M'CuUoch T. Maryland, 4 Wheat. 419,
4 L. ed. 604; Cohens v. Virginia, 6 Wheat.
418, 5 L. ed. 294; Pollock ▼. Farmers' Loan
& T. Co. 158 U. S. 601, 39 L. ed. 1108, 15
Sup. Ct. Rep. 912; McPherson t. Blacker,
146 U. S. 1, 36 L. ed. 869, 13 Sup. Ot. Rep.
^; Rhode Island v. Massachusetts, 12 Pet.
657, 9 L. ed. 1233; 12 Hamilton's Works,
28; Federalist, Nos. 10, 14, 48; 2 Elliot,
Debates, 253; 3 Elliot, Debates, 225, 233;
•5 Elliot, Debates, 136, 239; Pacific SUtes
Teleph. & Teleg. Co. v. Oregon, 223 U. S.
124, 125, 56 L. ed. 377, 32 Sup. Ct. Rep.
224 ; State t. Swisher, 17 Tex. 448 ; Clarke
V. Rochester, 28 N. Y. 633; Story, Const.
388; Yearman, Study of Government; Bart-
lett, Election Cases, 446; Cooley, Const
Lim. 194; 15 Jefferson's Writings, 452;
11 Hamilton's Works, 75, 101, 103.
Whenever an action, as in this case, in-
Tolves a denial of individual rights, courts
possess the right and the duty to exclude
the operation of the unconstitutional provi-
sion, and to regard the question arising as
Judicial.
Luther v. Borden, 7 How. 1, 54, 59, 12
L. ed. 581, 604, 606; Pacific States Teleph.
A Teleg. Co. v. Oregon, 223 U. S. 127, 128,
56 L. ed. 377, 32 Sup. Ct. Rep. 220; Forsyth
T. Hammond, 166 U. S. 519, 41 L. ed. 1100,
17 Sup. Ct. Rep. 665; Yick Wo t. Hopkins,
118 U. S. 369, 30 L. ed. 226, 6 Sup. Ct. Rep.
1064; Boyd T. Nebraska, 143 U. S. 135, 6
L. ed. 103, 12 Sup. Ct. Rep. 375; Coyle t.
Smith, 221 U. S. 559, 55 L. ed. 853, 31 Sup.
•Ct Rep. 688; South Carolina t. United
States, 199 U. S. 437, 454, 50 L. ed. 261,
266, 26 Sup. Ct Rep. 110, 4 Ann. Cas. 737;
Taylor t. Beckham, 178 U. 8. 548, 578, 44
X. ed. 1187, 1200, 20 Sup. Ct Rep. 800,
1009; Texas v. White, 7 Wall. 700, 19 L. ed.
^7; Re Duncan, 139 U. S. 449, 461, 85 L.
«d. 219, 224, 11 Sup. Ct Rep. 578.
40 li. ed.
There, necessarily, can be but one legisla-
ture of a state, and especially as empowered
by art. 1, § 4, of the United States Consti-
tution, to prescribe the "times, places, and
manner" of electing representatives.
Pacific States Telei^ ft Teleg. Co. t.
Oregon, 223 U. S. 120, 56 L. ed. 377, 32 Sup.
Ct Rep. 224.
Legislatures are the creatures of the Con-
stitution. They owe their existence to the
Constitution.
Luther v. Borden, 7 How. 66, 12 L. ed.
609; Vanhome t. Dorrance, 2 Dall. 304, 1
L. ed. 391, Fed. Cas. No. 16,857; Vattel,
Nations, chap. 3, § 34.
Congress must always act "by law" in
making or altering the regulations of a
state on the subject; it cannot, "by law,"
authorize a state legislature to act in a
particular manner, or to act with an out-
side agency authorized to reject its action.
Ex parte Siebold, 100 U. S. 371, 25 L. ed.
717; 2 Hinds, Precedents, § 247, p. 240;
1 Bartlett, Election Cases, p. 52.
Mr. Edward G. Turner, Attorney Gen-
eral of Ohio, submitted the cause for de-
fendants in error:
Does the language of U. S. Const, art. 1,
§ 4, refer only to a bicameral body?
1 Story, Const. §§ 548, 560, pp. 408, 416;
1 Bryce, American Commonwealth, pt 2,
chap. XL. p. 484.
Was said section meant to refer only to a
representative bodyt
State ex rel. Schrader v. Polley, 26 S. D.
5, 127 N. W. 848.
Is the question presented in this case a
justiciable one?
Richardson v. McChesney, 128 Ky. 363,
129 Am. St. Rep. 299, 108 S. W. 322, 218
U. S. 487, 54 L. ed. 1121, 31 Sup. Ct Rep.
43; Pacific States Teleph. ft Teleg. Co. v.
Oregon, 223 U. S. 118, 56 L. ed. 377, 32
Sup. Ct. Rep. 224; McPherson v. Blacker,
146 U. S. 1, 36 L. ed. 869, 13 Sup. Ct.
Rep. 3.
Messrs. Edmond H. Moore and Timo-
thy S. Hogan also submitted the oauae for
defendants in error:
The case of McPherson t. Blacker, 146
U. S. 1, 36 L. ed. 869, 13 Sup. Ct Rep. 3,
really supports the contention of the de-
fendants.
If the governor has a qualified negative
on the acts of the legislature, surely the
whole electorate have.
Story, Const § 527.
[566] Mr. Chief Justice White delivered
the opinion of the court:
By an amendment to the Constitution of
Ohio, adopted September 3d, 1912, the leg-
islative power was expressly declared to be
ttIK
56&-568
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
vested not only in the senate and house of
representatives of the state, constituting
the general assembly, but in the people, in
whom a right was reserved by way of ref-
erendum to approve or disapprove by popu-
lar vote any law enacted by the general
assembly. And by other constitutional pro-
visions the machinery to carry out the ref-
erendum was created. Briefly they were
this: Within a certain time after the en-
actment of a law by the senate and house
of representatives, and its approval by the
governor, upon petition of 6 per centum
of the voters, the question of whether the
law should become operative was to be sub-
mitted to a vote of the people, and, if ap-
proved, the law should be operative; and,
if not approved, it should have no effect
whatever. .
In May, 1915, the general assembly of
Ohio passed an act redistricting the state
for the purpose of congressional elections,
by which act twenty-two congressional dis-
tricts were created, in some respects differ-
ing from the previously estabftshed dis-
tricts, and this act, after approval by the
governor, was filed in the office of the secre-
tary of state. The requisite number of
electors imder the referendum provision
having petitioned for a submission of the
law to a popular vote, such vote was taken
and the law was disapproved. Thereupon,
in the supreme court of the state, the suit
before us was begun against state election
officers for the purpose of procuring a man-
damus, directing them to disregard the vote
of the people on the referendum, disap-
proving the law, and to proceed to dis-
charge their duties as such officers in the
next congressional election, upon the as-
sumption that the action by way of refer-
endum was void, and that the law which was
disapproved was [567] subsisting and valid.
The right to this relief was based upon the
charge that the referendum vote was not
and could not be a part of the legislative
authority of the state, and therefore could
have no influence on the subject of the law
creating congressional districts for the pur-
pose of representation in Congress. In-
deed, it was in substance charged that both
from the point of view of the state Consti-
tution and laws and from that of the Con-
stitution of the United States, especially
§ 4 of article 1, providing that "the times,
places and manner of holding elections for
Senators and Representatives, shall be pre-
scribed in each state by the legislature
thereof; but the Congress may at any time
by law, make or alter such regulations, ex-
cept as to the places of choosing Senators;"
and also from that of the provisions of the
controlling act of Congress of August 8,
1011 (chap. 5, 37 Stat, at L. 13, Comp. Stat.
1176
1913, § 15), apportioning representation
among the states, the attempt to make the
referendum a component part of the legis-
lative authority empowered to deal with the
election of members of Congress was abso-
lutely void. The court below advers*»ly dis-
posed of these contentions, and held that
the provisions as to referendum were a part
of the legislative power of the state, made
so by the Constitution, and that nothing in
the act of Congress of 1911, or in the con-
stitutional provision, operated to the con-
trary, and that therefore the disapproved
law had no existence and was not entitled
to be enforced by mandamus.
Without going into the many irrelevant
points which are pressed in the argument,
and the various inapposite authorities cited^
although we have considered them all, we
think it is apparent that the whole case
and every real question in it will be dis-
posed of by looking at it from, three points
of view, — ^the state power, the power of
Congress, and the operation of the provi-
sion of the Constitution of the United
States, referred to.
1. As to the state power, we pass from its
consideraticm, [568] since it is obvious that
the decision below is conclusive on that sub-
ject, and makes it clear that, so far as the
state had the power to do it, the referendum
constituted a part of the state Constitution
and laws, and was contained within the
legislative power; and therefore the claim
that the law which was disapproved and
was no law under the Constitution and
laws of the state was yet valid and opera-
tive is conclusively established to be want-
ing in merit.
2. So far as the subject may be influenced
by the power of Congress, that is, to the ox-
tent that the will of Congress has been ex-
pressed on the subject, we think the case ia
equally without merit. We say this because
we think it is clear that Congress, in 1911,
in enacting the controlling law concerning
the duties of the states, through their legis-
lative authority, to deal with the subject of
the creation of congressional districts, ex-
pressly modified the phraseology of the pre-
vious acts relating to that subject by 'n-
serting a clause plainly intended to provide
that where, by the state Constitution and
laws, the referendum was treated as part of
the legislative power, the power as thus
constituted should be held and treated to be
the state legislative power for the purpoae
of creating congressional districts by law.
This is the case since, under the act of Con-
gress dealing with apportionment, which
preceded the act of 1911, by § 4 it was com-
manded that the existing districts in a state
should continue in force "until the legis-
lature of such state, in the manner herein
241 U. 8.
I'Jio.
BKOWN V. PACIFIC COAST COAL CO.
668-571
prescribed, shall redistrict such state" (act
of February 7, 1891, chap. 116, 26 Stat, at
L. 735) ; while in the act of 1911 there was
substituted a provision that the redistrict-
ing should be made by a state "in the man-
ner provided by the laws thereof." And
the legislative history of this last act leaves
no room for doubt that the prior words were
stricken out and tlie new words inserted
for the express purpose, in so far as Congress
had power to do [669] it, of excluding the
possibility of making the contention as to
referendum which is now urged. Cong. Rec.
vol. 47, pp. 3436, 3437, 3507.
3. To the extent that the contention urges
that to include the referendum within state
legislative power for the purpose of appor-
tionment is repugnant to S 4 of article 1
of the Constitution and hence void, even if
sanctioned by Congress, because beyond the
constitutional authority of that body, and
hence that it is the duty of the judicial
power so to declare, we again think the con-
tention is plainly without substance, for the
following reasons: It must rest upon the
assumption that to include the referendum
in the scope of the legislative power is to
introduce a virus which destroys that pow-
er, which in effect annihilates representa-
tive government, and causes a state where
such condition exists to be not republican
in form, in violation of the guaranty of the
Constitution. Const. § 4, art. 4. But the
proposition and the argument disregard the
settled rule that the question of whether
that guaranty of the Constitution has been
disregarded presents no justiciable contrb-
vcrsy, but involves the exercise by Congress
pf the authority vested in it by the Con-
stitution. Pacific States Teleph. & Teleg.
Co. V. Oregon, 223 U. S. 118, 56 L. ed. 377,
32 Sup. Ct. Rep. 224. In so far as the
proposition challenges the power of Con-
gress, as manifested by the clause in the act
of 1911, treating the referendum as a part
of the legislative power for the purpose of
apportionment, where so ordained by the
state Constitutions and laws, the argument
but asserts, on the one hand, that Congress
had no power to do that which, from the
point of view of § 4 of article 1, previously
considered, the Constitution expressly gave
the right to do. In so far as the proposi-
tion may be considered as asserting, on the
other hand, that any attempt by Congress
to recognize the referendum as a part of
the legislative authority of a state is ob-
noxious to a republican form of government
as provided by § 4 [570] of article 4, the con-
tention necessarily but reasserts the propo-
sition on that subject previously adversely
disposed of. And that this is the inevitable
result of the contention is plainly manifest,
since at best the proposition comes to the
60 It, ed.
assertion that because Congress, upon whom
the Constitution has conferred the exclu-
sive authority to uphold the guaranty of
a republican form of government, has done
something which it is deemed is repugnant
to that guaranty, therefore there was auto-
matically created judicial authority to go
beyond the limits of judicial power, and, in
doing so, to usurp congressional power, on
the ground that Congress had mistakenly
dealt with a subject which was within its
exclusive control, free from judicial inter-
ference.
It is apparent from these reasons that
there must either be a dismissal for want
of jurisdiction, because there is no power to
re-examine the state questions foreclosed by
the decision below, and because -of the want
of merit in the Federal questions relied up-
on, or a judgment of affirmance, it being ab-
solutely indifferent, as to the result, which
of the two be applied. In view, however, of
the subject-matter of the controversy and
the Federal characteristics which inhere in
it, we are of opinion, applying the rule laid
down in Swafford ▼. Templeton, 185 U. S.
487, 46 L. ed. 1005, 22 Sup. Ct. Rep. 783,
the decree proper to be rendered is one of
affirmance, and such a decree is therefore or-
dered.
Affirmed*
[671] STANLEY BROWN, Petitioner,
▼.
PACIFIC COAST COAL COMPANY.
(See S. C. Reporter's ed. 671-574.)
Master and serrant — fellow serrant —
delegation of master^s duty.
As construed by the state courts.
Wash. Laws 1897, chap. 45, imposes an ab-
solute and nondelegable duty upon owners
or operators of coal mines to inspect, pre-
vent, and remove any accumulation of gas,
so that a fire boss, one of whose duties is
Note. — As to master's liability for breach
of nondelegable duties by superior servant —
see note to O'Neil t. Great Northern R. Co.
51 L.R.A. 588.
As to what duties are deemed to be non-
delegable— see note to Quigley t. Levering,
54 L.RJI. 63.
As to assignability of duty of inspec-
tion— see note to Walkowski ▼. Penokee &
6. Consol. Mines, 41 L.R^. 100.
As to what servants are deemed to be in
the same common employment apart from
statute, where no questions as to Yice prin-
cipalship arise— se^ note to Sofield ▼. Gug-
genheim Smelting Co. 50 LJLA. 417.
On statutory duty to ventilate and keep
mine clear from gas — see note to Deserant
▼. Cerillos Coal B. Go. 44 L. ed. U. S.
1127.
1177
572
SUPREME COURT OF THE UNITED STATEa
Oct. Teem,
to test for gas, is not a fellow servant of
the miners, so far as he is engaged in the
Ferformance of that duty.
For other cases, tee Master and Serrant, II.
d, 2; II. d, 6, d. In Digest Sop. Ct. 1908.]
[No. 303.]
Argued March 14, 1916. Decided June 12,
1016.
ON WRIT of CertioraH to the United
States Circuit Court of Appeals for the
Ninth Circuit to review a judgment which
reversed a judgment of the District Court
for the Western District of Washington in
favor of plaintiff in an action for personal
injuries received by a miner from the ex-
plosion of gas. Judgment reversed, and
judgment of District Court affirmed.
See same case below, 128 C. C. A. 247, 211
Fed. 860; on rehearing, 130 C. C. A. 625,
214 Fed. 255.
The facts are stated in the c^inion.
Mr. U. R. Iie» argued the cause, and
Messrs. Charles F. Consaul and Charles C.
Heltman filed a brief for petitioner:
The provisions of the Washington stat-
utes are mandatory and nondelegable.
CosU V. Pacific Coast Co. 26 Wash. 138,
66 Pac. 398; Czarecki v. SeatUe & S. F. R.
A Nav. Co. 30 Wash. 288, 70 Pac. 750;
Delaski v. Northwestern Improv. Co. 61
Wash. 260, 112 Pac. 341; Nalewaja v.
Northwestern Improv. Co. 63 Wash. 303,
115 Pac. 847; Deserant v. Cerillos Coal R.
Co. 178 U. S. 409, 44 L. ed. 1127, 20 Sup.
Ot. Rep. 967, 20 Mor. Min. Rep. 573.
Mr. C H. Farrell argued the cause, and,
with Messrs. W. B. Stratton, J. H. Kane,
and Stanley J. Padden, filed a brief for re-
spondent :
Shot Lighter Rigghi was a fellow servant
of Stanley Brown at common law.
Alaska Treadwell Gold Min. Co. t.
Whelan, 168 U. S. 86, 42 L. ed. 390, 18 Sup.
Ct. Rep. 40; Quincy Min. Co. v. Kltts, 42
Mich. 34, 3 N. W. 240, 16 Am. Neg. Cas.
58; Coal k Min. Co. v. Clay (Consolidated
Coal & Min. Co. v. Floyd) 51 Ohio St. 542,
26 L JIJL 848, 38 N. E. 610 ; Davis v. Trade
Dollar Consol. Min. Co. 54 C. C. A. 636, 117
Fed. 122; Browne v. King, 40 C. C. A. 545,
100 Fed. 561; What Cheer Coal Co. v. John-
son, 6 C. C. A. 148, 12 U. 8. App. 490, 56
Fed. 810; Westinghouse, C. K. ft Co. v.
Callaghan, 19 L.RJl.(N.S.) 361, 83 C C. A.
660, 155 Fed. 307 ; Minneapolis v. Lund in, 7
C. C. A. 344, 19 U. 8. App. 245, 58 Fed.
525; American Bridge. Co. v. Seeds, 11
L.R.A.(N.S.) 1041, 75 C. C. A. 407, 144
Fed. 605; Russell Creek Coal Co. v. Wells,
06 Va. 416, 31 S. E. 614; Stephens v. Doe,
73 CaL 26, 14 Pae. 378.
1176
He was also a fellow servant under the
Washington statute.
Hughes V. Oregon Improv. Co. 20 Wash.
294, 55 Pae. U9; 1 Shearm. ft Redf. Neg.
4th ed. § 235; Colorado Coal ft L Co. v.
Lamb, 6 Colo. App. 255, 40 Pac 251; Whsi
Cheer Coal Co. v. Johnson, 6 C. C. A. 148,
12 U. & App. 490, 56 Fed. 810; Lehigh
Valley Coal Co. v. Jones, 86 Pa. 432, 10
Mor. Min. Rep. 30; Brazil ft C. Coal Co. v.
Cain, 98 Ind. 282; Peterson v. Whitebresst
Coal ft Min. Co. 50 Iowa, 673, 32 Am. Rep.
143, 11 Mor. Min. Rep. 1; Baltimore ft 0.
R. Co. V. Baugh, 149 U. S. 368, 37 L. ed.
772, 13 Sup. Ct. Rep. 914; Northern P. R.
Oo. V. Hambly, 154 U. 8. 349, 38 L. ed.
1009, 14 Sup. Ct. Rep. 983; Northern P. R.
Ca V. Peterson, 162 U. & 346, 40 L. ed.
994, 16 Sup. Ct. Rep. 843; Northern P. R.
Co. V. Charless, 162 U. 8. 359, 40 L. ed. 909,
16 Sup. Ct Rep. 848; Dollar v. Northwest-
cm Improv. Co. 72 Wash. 1, 129 Pac. 578;
Sommer v. Carbon Hill Coal Co. 46 C. C. A.
255, 107 Fed. 230; Pacific Coast Coal Co.
V. Brown, 128 C. C. A. 247, 211 Fed. 860,
130 C. C. A. 625, 214 Fed. 255.
[572] Mr. Justice Holmes delivered the
opinion of the court:
This is an action for personal injuries
caused to the petitioner, the plaintiff, a
miner, by an explosion of gas in a coal
mine, in consequence, it is alleged, of the
defendant's neglect of its duty so to ven-
tilate the mine as to make an explosion im-
possible. The trial judge left to the jury
questions of the plaintiff's contributory
negligence or assumption of risk, but in-
structed them that the law requir^ the de-
fendant to provide a sufficient amount of
ventilation; that the duty of the inspec-
tion, prevention, and removal of any ac-
cumulation of gas was a personal duty of
the defendant that could not be delegated;
and that an employee, one of whose duties
was to test for gas, was not a fellow servant
of the miners so far as he was engaged in
the performance of that duty. There was
a verdict for the plaintiff, which was set
aside by the circuit court of appeals. 128
C. C. A. 247, 211 Fed. 869; 130 a C. A.
625, 214 Fed. 255.
The duty of the fire boss who exploded
the gas was to test for gas as well as to
fire the shots in blasting, which last he was
about to do. It is unnecessary to go into
further details, as the only matter that
requires discussion is whether the circuit
court of appeals was right in reversing the
judgment on the ground that this man was
a fellow servant of the plaintiff, and that
the defendant's duty to secure ventilation
was not absolute. The statute of 1897,
which was in force at the time of the ao-
S41 V. 8.
1915.
SUPREME LODGE, K. OF P. ▼. MIMS.
672-674
«ident, September 7, 1910, enacts that the
owner or operator of every coal mine ''shall
provide in every coal mine a good and suffl-
eient amount of ventilation for such per-
sons and animals as may be employed
therein/' fixing a minimum amount, "and
said air must be made to circulate through
the shafts, levels, stables, and working places
of each mine and on the traveling roads
to and from all [573] such working places."
Then the division of mines into districts or
splits, and the number of men to be em- j
ployed in each, are provided for, and then
the act goes on: "Each district or split
shall be ventilated by a separate and dis-
tinct current of air, conducted from the
down:cast through said district, and thence
directed to the up-cast. ... In all
mines where fire damp is generated, every
working place shall be examined every
morning with a safety lamp by a com-
petent person, and a record of such exami-
nation shall be entered by the person mak-
ing tlie same in a book," etc. Laws of
1897, chap. 45, § 4; Bal. Wash. Code, i
3165; Rem. & Bal. Code, § 7381.
In the ease of a similar accident occur-
ring tmder the same law, the supreme court
aaid: "The duty of inspection, prevention,
and removal of any accumulation of gas is
imposed on the coal company. This duty is
personal, and cannot be delegated. . . .
The gas tester, under the facts in this case,
was not a fellow servant with the plaintiff.
He was the representative of principal
duties of the defendant." The refusal of
the instruction that the gas tester was a
fellow servant with the plaintiff, a miner,
was upheld. Costa v. Pacific Coast Co. 26
Wash. 138, 142, 143, 66 Pac. 398. The lan-
guage of this case was quoted and the same
principle applied in Czarecki v. Seattle &
S. F. R. & Nav. Co. 30 Wash. 288, 294, 295,
70 Pac. 750. And the same words were re-
peated by the judge to the jury in the pres-
ent case.
When this case came before the circuit
court of appeals, it seems to have been
thought that Costa ▼. Pacific Coast Co.
arose under an earlier statute. Upon a
petition for rehearing, the court merely
stated that no decision of the supreme court
had been found that held the person re-
quired to examine the working places every
morning to be the representative of . the
nuister, and that the fire boss must be re-
garded as a fellow servant with the plaintiff.
We are unable to reconcile this view with
the [574] language that we have quoted. It
now is suggested that there is a distinction
between the point decided there and here,
the failure there having been to warn the|
nice inquiry upon this points The state-
ments were statements of the principle of
the decision, and it was the duty of the cir-
cuit court of appeals to follow them. Still
less does it matter in a case like this, if,
as is said, the latter court had decided
otherwise at an earlier time.
Concerning the facts to which the ruling
here dealt with applied, it is enough to say
that the evidence warranted a finding by the
jury that the defendant had neglected the
duties absolutely imposed upon it, with-
out now going into the details of the differ-
ent views that might have been taken. The
other matters that have been argued here,
as to the plaintiff's contributory negligence,
etc., need not be mentioned further than to
say that we see no ground in them for a
different result from that which we have
reached.
Judgment reversed.
Judgment of District Court affirmed.
miner, and that the remarks of the court
were obiter dicta. We shall go into no
60 li. ed.
SUPREME LODGE, KNIGHTS OP PY-
THIAS, Plff. in Err.,
V.
S. MIMS.
(See S. C. Reporter's ed. 674-582.)
Error to state court — Federal question
— rights asserted under Federal
charter.
1. The Federal Supreme Court has
jurisdiction of a writ of error to a state
court to' review a judgment in favor of
plaintiff in a suit which necessarily turns
on the construction of an act of Congress
incorporating the defendant, under which
the latter justifies.
[For other cases, see Appeal and Error, 1751-
1797, In Digest Sup. Ct. 1908.1
Note. — On the general subject of writs
of error from United States Supreme Court
to state courts — see notes to Martin v.
Hunter, 4 L. ed. U. S. 97 ; Hamblin v. West-
ern Land Co. 37 L. ed. U. S. 267; Re
Buchanan, 39 L. ed. U. S. 884, and Kipley
V. Illinois, 42 L. ed. U. S. 998.
On what adjudications of state courts
can be brought up for review in the Su-
preme Court of the United States by writ
of error to those courts— see note to Apex
Transp. Co. v. Oarbade, 62 LJt.A. 613.
On how and when questions must iSe
raised and decided in a state court in order
to make a case for a writ of error from
the Supreme Court of the United Statea*-
see note to Mutual L. Ins. Co. t. McGrew,
63 L.R.A. 33.
On the right of mutual benefit association
to raise rates — see notes to Rejmolds ▼.
Supreme Council, R. A. 7 L.R.A.(N.S.)
1154; Dowdall ▼. Supreme Council, C. M.
B. A. 31 L.R.A.(N.S.) 417, and Thomas t.
KnighU of Maccabees, L.RJL1916> ''^'^
SUPREME COURT OF THE UNITED STATES.
Oct. Tkru,
Benerolent societies — re^^rganlsation
i. membership in new corporation.
2. A member of a voluntary tmincor-
porated fraternal and benevolent associa-
tion, the successor of an earlier corporation,
became, upon incorporation under the act
of June 20, 1894 (28 SUt. at L. 96, chap.
119), a member of the new corporation by
virtue of his assent to § 8 of that act,
providing that all claims, accounts, things
in action, or other matters of business of
whatever nature, now existing, for or
against the present association, shall sur-
vive and succeed to and against tiie new
corporation.
Benevolent societies — changes in con-
stitution — increase of rates.
3. The right of a fraternal and benevo-
lent order, under its charter of June 29,
1894 (28 SUt. at L. 96, chap. 119), § 4,
to amend its constitution at pleasure, pro-
vided that such constitution or amendments
thereof do not conflict with the laws of the
United States or of any state, extends to
an increase in its insurance rates.
Benevolent societies •* changes in con-
stitution •* Increase of rates.
4. A benevolent and fraternal order
having power to alter and amend its con-
stitution at will may raise its inturance
rates, notwithstanding a clause in its laws
that monthly payments of a member of the
endowment rank shall continue the same so
long as his membership continues, since
this clause is not to be regarded as a con-
tract, but as a regulation, subject to the
possibility that a raise in rates may be
necessary in order to pay benefits.
Benevolent societies •» re-organlsatlon
—increase in rates.
6. The assumption, under the act of
June 29, 1894 (28 Stat, at L. 96, chap.
119), § 3, investing the fraternal order in-
corporated by that act with all "claims, ac-
counts, debts, things in action, or other
matters of business of whatever nature now
existing for or against the present" unin-
corporated association, of an existing in-
surance contract with a member, cannot be
deemed the assumption of a contract for
immutable assessments, where both the old
and new organizations possessed the power
to amend their laws.
[Ko. 346.]
Argued May 1 and 2, 1916. Decided June
12, 1916.
IN ERROR to the Court of Civil Appeals
for the Fifth Supreme Judicial District
of the State of Texas to review a judgment
which affirmed, with a modification, a judg-
ment of the District Court of Dallas Coun-
ty, in that state, in favor of plaintiff in a
suit against a fraternal and benevolent or-
der to recover back the dues paid by him as
a member. Reversed.
See same case below, — Tex. Civ. App. — ,
167 S. W. 836.
The facts are stated in the opinion.
1180
Messrs. M. M. Crane and H. P. Brown
argued the cause, and, with Messrs. Edwin
Crane, James P. Goodrich, Ward H. Wat-
son, James £. Watson, and Sol. H. Esarey,
filed a brief for plaintiff in error:
The charter of the plaintiff in error is a
public statute of the United States. By
virtue of the Constitution of the United
States, this court is the final arbiter of all
questions relating thereto and depending
thereon.
Texas & P. R. Co. v. HiU, 237 U. S. 208,
59 L. ed. 918, 35 Sup. Ct. Rep. 575; Texas
ft P. R. Co. V. Marcus, 237 U. S. 215, 59
L. ed. 924, 35 Sup. Ct. Rep. 578.
The judicial construction of a charter of
a Federal corporation constitutes a suit
arising imder tlie laws of the United States.
Pacific R. Removal Cases, 115 U. S. 1, 29
L, ed. 319, 15 Sup. Ct. Rep. 1113; Union P.
R. Co. V. Harris, 158 U. S. 326, 39 L. ed.
1003, 15 Sup. Ot Rep. 843, 10 Am. Neg
Gas. 585.
The mere acceptance of dues or premiums
by the plaintiff in error did not constitute
an assumption of the contract or policy
sued upon.
Eddy V. Hinnant, 82 Tex. 354, 18 S. W.
562; Hutchinson v. International & G. X.
R. Co. —Tex. av. App. — , 111 8. W. 1106.
The policy sued upon and application
therefor, the old policies for which it was
substituted, the constitution and by-laws,
construed together, gave to the old Supreme
Lodge the right to raise the rates in the
event it should become necessary so to do.
Union P. R. Co. v. Myers, 115 U. S 1,
25, 29 L. ed. 319, 327, 5 Sup. Ct. Rep. 1113;
Messer v. Grand Lodge, A. 0. U. W. 180
Mass. 321, 62 N. E. 252; Wineland v.
Knights of Maccabees, 148 Mich. 608, 112
N. W. 696; Williams v. Supreme Council,
C. M. B. A. 152 Mich. 1, 115 N. W. 1060;
Reynolds v. Supreme Council, R. A. 192
Mass. 150, 7 LJLA.(N.S.) 1154, 78 N. E.
129, 7 Aim. Cas. 776; Supreme Lodge, K.
P. V. Knight, 117 Ind. 489, 3 L.RJ^. 409, 20
N. E. 479; Barbot v. Mutual Reserve Fund
Life Asso. 100 Ga. 681, 28 S. E. 498; Mu-
tual Reserve Fund Life Asso. v. Taylor, 99
Va. 208, 37 S. E. 854; Richmond v. Supreme
Lodge, O. M. P. 100 Mo. App. 8, 71 S. W.
736; Miller v. National Council, K. L. S. 69
Kan. 234, 76 Pac. 830; Head Camp, P. J.
W. W. V. Woods, 34 Colo. 1, 81 Pac. 261;
Shepperd v. Bankers' Union, 77 Neb. 85,
108 N. W. 188, 110 N. W. 1019 ; Conner v.
Supreme Commandery, G. C. 117 Tenn. 549,
97 S. W. 306; Champion v. Hannahan, 138
III. App. 387; Pierce v. Bankers' Union, 140
111. App. 495; Mock v. Supreme Council, R.
A. 121 App. Div. 474, 106 N. Y. Supp. 165;
Fullen wider v. Supreme C!ouncil, R. L. 73
III. 331, 180 111. 621, 72 Am. St. Rep. 239,
241 U. 8.
1915.
SUPREME LODGE, K. OF P. ▼. MIMS.
M N. E. 485; Thomas ▼. Knights of Macca-
bees, 85 Wash. 665, LJLA.1916A, 750, 149
Pac 7; Bartram ▼. Supreme Council, R. A.
6 Ont. Week. Rep. 404; Haydel v. Mutual
Rsseire Fund Life Asso. 98 Fed. 200, 44
C. C. A. 169, 104 Fed. 718.
The defendant in error is now estopped
from denying the right of plaintiff in error
to increase the rates as it did in 1910, if
necessary, because he had acquiesced in that
right and concurred with the old corpora-
tion in the fact that it had such power.
Windand t. Knights of Maccabees, 148
Mich. 608, 112 K. W. 696; Qibbs ▼. Knighto
of Pythias, 178 Mo. App. 34, 156 S. W. 11;
Manning ▼. San Antonio Club, 63 Tex. 166,
51 Am. Rep. 639; 29 Cyc. 70.
When an old corporation issues a policy
or a contract, and a new corporation is or-
ganized and receives the dues on the old
certificates issued by its predecessor, the
obligation thus existing by reason of the
dues received must be measured and the
liabilities must be fixed by the laws of the
corporation.
Bollman ▼. Supreme Lodge, K. H. —
Tex. Civ. App. — , 53 S. W. 722, 54 S. W.
246; Wineland v. Knights of Maccabees,
148 Mich. 608, 112 N. W. 696; Gibbs v.
Knights of Pythias, supra.
Any liability under the certificate sued
on must be treated as if it were a liability
under a certificate issued by the new cor-
poration, and limited and controlled by the
new corporation's charter and by-laws.
Watscm V. National Life & T. Co. Ill
O. C. A. 134, 189 Fed. 872; Niblack, Ben.
Soc. 2d ed. § 18, pp. 33, 34; 29 Cyc 70.
Messrs. James E. Watson, H. P. Brown,
M. M. Crane, and Edward Crane filed a
separate brief for plaintiff in error:
The old corporation issuing the contract
sued on reserved the right to amend its by-
laws, and, if necessary, to re-rate its mem-
bership.
Kom V. Mutual Assur. Soc 6 Cranch,
195, 3 L. ed. 196; Thomas v. Knights of
Maccabees, 85 Wash. 665, L.R.A.1916A,
750, 149 Pac. 7; Newman v. Supreme
Lodge, K. P. — Miss. — , L.R.A.1916C, 1051,
70 So. 241; Supreme Lodge, K. H. v. Bieler,
— Ind. — , 105 N. E. 244; Supreme Com-
mandery, K. G. R. v. Ainsworth, 71 Ala.
436, 46 Am. Rep. 332; Barbot v. Mutual
Reserve Fund life Asso. 100 Ga. 681, 28 S.
E. 498; Haydel v. Mutual Reserve Fund
Life Asso. 98 Fed. 200; Mutual Reserve
Fund Life Asso. t. Taylor, 99 Va. 208, 37
S. £. 854; Miller v. National Council, K. L.
S. 69 Kan. 234, 76 Pac. 830.
The by-law fixing the level premium rate
is no more sacred than the provision in the
by-laws and charter authorising it to
•0 L. ed.
change these by-laws. The level rate pre-
mium was subordinate to the power to
change in the ease of necessity.
Kom V. Mutual Assur. Soc. 6 Cranch,
195, 3 L. ed. 196; Powers v. Clark, 127 N.
Y. 425, 28 N. E. 402.
It being the purpose of this organization
to insure its membership and to pay the
insurance upon the death of a member, its
by-laws should be so construed as to make
the accomplishment of that purpose possi-
ble. It must be conceded that the persons
who made the by-law fixing the level pre-
mium rate had no greater authority than
those who subsequently changed it.
Richardson v. Union Cong. Soc 58 N. H.
189; Supreme Lodge, K. P. v. Kutscher, 179
III. 346, 70 Am. St. Rep. 115, 53 N. E. 620 ;
Supreme Lodge, K. P. v. Trebbe, 179 III. 353,
70 Am. St. Rep. 120, 53 N. E. 730; Domes
V. Supreme Lodge^ K. P. 75 Miss. 478, 23
So. 191; Christ Church t. Pope, 8 Gray,
142.
It did have the power to change these
rates, in order to meet its liability, even
though they had been fixed under the level
premium by-law.
Thomas t. Knights of Maccabees, 85
Wash. 665, L.R.A.1916A, 750, 149 Pac. 7;
Fullenwider v. Supreme Council, R. L. 73
III. App. 331, 180 lU. 621, 72 Am. St. Rep.
239, 54 N. E. 485; Newman v. Supreme
Lodge, K. P. — Miss. — , L.RJ1.1916C, 1051,
70 So. 241 ; Messer v. Grand Lodge, A. 0. U.
W. 180 Mass. 321, 62 N. E. 252; Conner v.
Supreme Commandery, G. C. 117 Tenn. 549,
97 S. W. 306; Williams v. Supreme Council,
C. M. B. A. 152 Mich. 1, 115 N. W. 1060;
Bartram T. Supreme Council, R. A. 6 Ont.
Week. Rep. 404; Reynolds v. Supreme Coun-
cil, R. A. 192 Mass. 150, 7 L.RJl.(N.S.)
1154, 78 N. E. 129, 7 Ann. Cas. 150; Su-
preme Lodge, K. H. V. Bieler, — Ind. — ,
105 N. E. 244.
If this were a suit against the old corpo-
ration issuing this policy, it must be held
that the old corporation would have had
the right to increase these rates had it
become necessary so to do. But when we
find that the defendant in error became a
member of the new corporation created by
its charter in 1894, then it must follow that
his rights under his policy, issued by the
old corporation, and the liabilities of the
new corporation to him, must be measured
by the charter and by-laws of the new cor-
porsiion.
Bolhnan v. Supreme Lodge, K. H. — Tex.
Civ. App. — , 53 S. W. 722, 54 S. W. 246;
WineUmd v. Knights of Maccabees, 148
Mich. 608, 112 N. W. 696; Gibbs v. Knights
of Pythias, 173 Mo. App. 34, 156 S. W. 11 ;
Watson V. National Loan k T. Co. 1^
SUPREME COURT OF THE UNITED STATES.
Got. Tebm^
C. A. 134, 189 Fed. 872; Niblack, Ben. Soc
2d ed. § 18, pp. 33, 34; 29 Cyc. 70.
The leading principle of fraternal insur-
ance is that there must be equality between
the members.
Mock V. Supreme Council, R. A. 121 App.
Div. 474, 106 N. Y. Supp. 165; Reynolds
V. Supreme Council, R. A. 192 Mass. 150,
7 L.R.A.(N.S.) 1154, 78 N. E. 129, 7 Ann.
Cas. 150; Hall v. Western Travelers' Acci.
Asso. 69 Neb. 601, 96 N. W. 170; Swan v.
Mutual Reserve Fund Life Asso. 155 N. Y.
9, 49 N. E. 258.
The new corporation had no authority to
receive members except as authorized by
its charter, and it received the membership
with the express understanding that it, the
corporation, would have the power to
change its by-laws when it became neces-
sary. It had no power to repeal a section
of its charter. That could be done by the
American Congress, but not by the corpo-
ration. That charter was the measure of
its power. It could exercise all the powers
conferred upon it, but none other. One of
the powers not conferred upon it was to
deny itself the privilege by contract of
amending its by-laws. Such a contract, de-
priving it of such power, would be ultra
vires and void.
Centra] Transp. Co. ▼. Pullman's Palace
Car Co. 139 U. S. 24, 35 L. ed. 55, 11 Sup.
Ct. Rep. 478; National Home Bldg. & L.
Asso. V. Home Sav. Bank, 181 111. 35, 64
L.R.A. 399, 72 Am. St. Rep. 245, 54 N. E.
619.
Members coming from an old corporation
into a new corporation come subject to the
by-laws of the new corporation.
Gibbs ▼. Knights of Pythias, 173 Mo.
App. 34, 156 S. W. 11 ; Watson t. National
Life & T. Co. Ill C. C. A. 134, 189 Fed.
872; Niblack, Ben. Soc. § 18, pp. 33, 34; 29
Cyc. 70.
The power to conduct a fraternal order
carries with it the power to adopt all rea-
sonable regulations and by-laws necessary
to make the order effective, even to increas-
ing rates.
Ebert ▼. Mutual Reserve Fund Life Asso.
81 Minn. 116, 83 N. W. 506, 834, 84 N. W.
457; Supreme Lodge, K. P. t. Knight, 117
Ind. 489, 3 L.RJL 412, 20 N. E. 479; Clark
V. Mutual Reserve Fund Life Asso. 14 App.
D. C. 154, 43 LJKJ^. 395; Norton v. Catho-
lic Order of Foresters, 138 Iowa, 464, 24
L.R.A.(N.S.) 1030, 114 N. W. 894; May ▼.
New York Safety Reserve Fund Soc. 14
Daly, 389, 13 N. Y. S. R. 70; Willlson ▼.
Jewelers' ft T. Co. 30 Misc. ]97, 61 N. Y.
Supp. 1126; 10 Cyc. 1097.
118S
Mr. Ijawrence C. McBrlde argued the
cause, and, with Messrs. Edward Gray and
Joseph E. Cockrell, filed a brief for defend-
ant in error:
The charter of plaintiff in error, aa
granted by the Congress, did not, expressly
or impliedly, give it the right to raise the
rate of assessment, or otherwise affect
Mims's contract, as was attempted by the
law passed by plaintiff in error in 1910,
and complained of herein.
Smythe v. Supreme Lodge, K. P. 198 Fed.
967, 137 C. C. A. 32, 220 Fed. 438; Wright
V. Knights of Maccabees, 48 Misc. 558, 95
N. Y. Supp. 996, 196 N. Y. 391, 31 L.RJk.
(N.S.) 423, 134 Am. St. Rep. 838, 89 N.
E. 1078; Rosenfeld v. Boston Mut. L. Ins.
Co. — Mass. — , 110 N. E. 305; Minneapolis
V. Minneapolis Street R. Co. 215 U. 8. 417,
64 L. ed. 259, 30 Sup. Ct. Rep. 118; De-
troit V. Detroit Citizens* Street R. Co. 184
U. S. 368, 46 L. ed. 592, 22 Sup. Ot Rep.
410.
The inhibition in defendant's charter as
to having a constitution with power to
amend the same being that such constitu-
tion or amendments must not conflict with
of the laws of the United States or of any
state, the amended by-laws complained of
are inoperative, not only because they con-
flict with the common law of the state of
Texas, as announced in the instant case
and in prior Texas cases which same fol-
lows (Ericson v. Supreme Ruling, F. M. C.
105 Tex. 170, 146 S. W. 160), bat such
amended laws are likewise of no effect be-
cause in conflict with the 5th Amendment
and with the Texas Constitution.
Kent V. Quicksilver Min. Co. 78 N. Y.
159, 4 Mor. Min. Rep. 47; Parish v. New
York Produce Exch. 169 N. Y. 34, 56 L.ILA.
149, 61 N. E. 977.
The right given in defendant's charter U>
"have a constitution and shall have •power
to amend same at pleasure, provided that
such constitution and amendments thereof
do not conflict with the laws of the United
States or of any state," is certainly no
greater than the right usually reserved to
a state to amend or alter a charter granted
by it, and the authorities are to the effect
that such reserved power of alteration and
amendment is not vrithout limit; that al-
terations must be reasonable and consistent
with the scope and object of the act of
incorporation; that a right reserved by tlie
general statutes to amend or repeal privi-
leges and franchises conferred by the char-
ter is one thing, but the power to take froiD
the stockholders or others, rights or prop-
erty interests acquired or vested before such
repeal or amendment; is another and quite
a different thing. The first comes within
the legislative authority; the second lies
241 V. S.
1915.
SUPREME LODGE, K. OF P. ▼. MUfS.
bfeyond the limits of such authority, because
the legislature cannot defeat or impair
rights previously Tested, which have sprung
up or grown out of such corporate privi-
leges or franchises, while the corporation
was allowed to exercise the same.
Shields v. Ohio, 95 U. S. 319, 24 L. ed.
357; Hill v. Glasgow R. Ck>. 41 Fed. 610;
Greenwood v. Union Freight R. Co. 105 U.
S. 13, 26 L. ed. 961.
Under this reserved power legislatures
can only affect future contracts; they can
in nowise change or alter corporate con-
tracts already entered into, so as to affect
the rights of parties already acquired.
Bank of the Old Dominion v. McVeigh,
20 Gratt. 457.
A general power reserved either by stat-
ute or by the constitution of a society, to
amend its by-laws, does not authorize an
amendment impairing vested rights of the
members; the reserved right to amend is
not intended to cover the case of existing
members, and was applicable solely to those
who should join the order after amend-
ments.
Beach v. Supreme Tent, K. M. 177 N. T.
100, 69 N. E. 282.
A by-law must be reasonable. This rule
of reasonableness forbids any retroactive ef-
ficacy in abrogation of subsisting contract
rights; and the articles of association and
by-laws existing at the time of acquisition
of membership are in many respects to be
regarded as establishing between the asso-
ciation and every member, and among them-
selves, such rights of a fundamental
character.
Thomp. Corp. 2d. ed. § 999.
The function of a by-law is to prescribe
the rights and duties of the members with
reference to the internal government of the
corporation, the management of its affairs,
and the rights and duties existing between
the members inter »e. The proper office of
by-laws is to regulate the incidental busi-
ness of a corporation. They should not af-
fect rights of property or create obligations
unknown to the law.
1 Thomp. Corp. 2d ed. § 975.
The very fact alone that the new law
undertook to apply the rate in accordance
with the attained age and occupation of
the member was a breach of the contract.
Ayers v. Grand Lodge, A. 0. U. W. 188
N. Y. 280, 80 N. E. 1020.
As likewise was the attempt of the Su-
preme Lodge to delegate its functions to
the board of control, which has been ex-
pressly decided to be without effect in nu-
merous cases against this self-same plaintiff
in error.
Supreme Xodge, K. P. v. McLennan, 171
lU. 417, 49 N. E. 531; Supreme Lodge, K.
60 li. ed.
P. V. Stein, 75 Miss. 107, 87 LJLA. 775, 65
Am. St. Rep. 589, 21 So. 559.
The right to decrease the financial value
of the benefit certificate does not exist under
the general agreement of the memlier, as,
for instance, to be governed by all the laws
of the order now in force or hereafter to
be enacted.
Supreme Lodge^ K. P. v. Weller, 93 Va.
605, 25 S. E. 891; Richter v. Supreme
Lodge, K. P. 137 Cal. 8, 69 Pac. 483 ; Pear-
son V. Knight Templars & M. Indemnity Co.
114 Mo. App. 283, 89 S. W. 588; Morton v.
Supreme Council, R. A. 100 Mo. App. 76,
73 S. W. 259; Knighto Templars & M. Life
Indemnity Co. v. Jarman, 44 C. C. A. 93, 104
Fed. €38; Dowdall v. Supreme Council, C. M.
B. A. 196 N. Y. 405, 31 L.R.A.(N.S.) 417, 89
N. E. 1075; Evans V. Southern Tier Masonic
Relief Asso. 182 N. Y. 453, 75 N. £. 317:
Ericson v. Supreme Ruling, F. M. 0. 10..
Tex. 170, 146 S. W. 160; Green v. Supreme
Council, R. A. 206 N. Y. 591, 100 N. E.
411; Smythe v. Supreme Lodge, K. P. 198
Fed. 967, 137 C. C. A. 32, 220 Fed. 438;
Gaut V. American Legion of Honor, 107
Tenn. 603, 55 LJRjk. 465, 64 S. W. 1074.
Messrs. Thomas F. West and Lawrence C.
McBride also filed a brief for defendant in
error:
If it appears from the face of the record
that the decision of the state court is en-
tirely consistent with the construction of a
Federal statute contended for by the plain-
tiff in error, no case is made out for the
appellate jurisdiction of the Supreme Court
of the United States.
Ocean Ins. Co. v. Polleys, 13 Pet. 157, 10
L. ed. 105.
When the jurisdiction of this court is in-
voked upon the ground that a right or
immunity specially set up and claimed
under the Constitution or authority, of the
United States has been denied by the judg-
ment sought to be reviewed, it must appear
from the record of the case, either that the
right so set up and claimed was expressly
denied, or that such was the necessary ef-
fect of the judgment in law.
Chicago, B. ft Q. R. Co. v. Chicago, 166
U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep.
581.
Where the judgment of a state court
might have been based either upon a state
law repugnant to the Constitution or laws
of the United States, or upon some other
independent ground, and it appears that the
court did base it upon the latter ground,
the Supreme Court will not take jurisdic-
tion, even though it thinks the state court
decision erroneous.
Klinger y. Missouri, 13 Wall. 257, 20 L.
ed. 635.
676, 676
SUPKEaiE COURT OF THE UNITED STATES.
Oct. Tebm,
A decisi<Hi by a state court, holding that
the rights of parties who make conflicting
claims nnder United States patents are de-
termined by a contract which they have
made, and also that plaintiffs claim is
defeated by estoppel, does not inYoWe a Fed-
eral question for review by the Supreme
Court of the United States on writ of error.
Pittsburgh ft L. A. Iron Co. v. Cleveland
Iron Min. Co. 178 U. 8. 270, 44 L. ed. 1065,
20 Sup. Ct. Rep. 931.
Where the Federal questions involved in
a case were correctly decided by the state
supreme court, the judgment of that court
must be affirmed without determining any
other questicms not of a Federal character.
Swope V. Leffingwell, 105 U. S. 8, 26 L.
ed. 939.
If the Federal question raised in the
state court was erroneously decided, then
this court must inquire whether there is
any other matter or issue adjudged by the
state court sufficiently broad to maintain
the judgment. If this be found to be the
case, the judgment must be affirmed without
examination into the soundness of the de-
cision of such other matter or issue.
Murdock y. Memphis, 20 Wall. 690, 22
L. ed. 429.
Where the supreme court of a state de-
cides a Federal question in rendering a
judgment, and also decides against the
plaintiff in error upon an independent
groimd not involving a Federal question
and broad enough to maintain the judg-
ment, the writ of error will be dismissed
without considering the Federal question.
Hammond v. Connecticut Mut. L. Ins. Co.
150 U. S. 633, 37 L. ed. 1206, 14 Sup. Ot.
Rep. 236.
Fair color for claiming that rights under
the Federal Constitution have been violated
is necessary to give jurisdiction to the Su-
preme Court of the United States on writ
of error to a state court, based on such
Federal question.
Wilson V. North Carolina, 169 U. S. 686,
42 L. ed. 865, 18 Sup. Ct Rep. 435.
A decision which -does not deny the valid-
ity of an act of Congress, or deny any right
claimed under it, does not present a Fed-
eral question merely because the rights of
the parties were in w>m» respects based
upon an act of Congress.
Missouri P. R. Co. v. Fitzgerald, 160 U.
S. 556, 40 L. ed. 536, 16 Sup. Ct. Rep. 389.
It does not follow that the state court
decided against any title, right, privilege,
or immunity in exercising its jurisdiction,
because the suit might have been brought in
a circuit court of the United States, or re-
moved thereto from the state court, on the
ground that it arose under the laws of the
United States.
1184
I Texas ft P. R. Co. v. Griffin, 151 U. 8.
105, 38 L. ed. 90, 14 Sup. Ct. Rep. 259.
The Federal Supreme Court, on a writ of
error to a state court, has not the jurisdic-
tion of a general reviewing court in error,
but is limited to a consideration of the
specific instances of d^iials of Federal
rights.
Waters-Pierce Oil Co. v. Texas, 212 U. a
86, 53 L. ed. 417, 29 Sup. Ot Rep. 220.
The legal correctness of the rule by which
the damages were ascertained and assessed
in the state court is not reviewable in the
Supreme Court of the United States.
Qelston v. Hoyt, 3 Wheat 246, 4 L. ed.
381.
Mr. Justice Holmes delivered the opinion
of the court:
This is a suit against a corporation char-
tered by Congress on June 29, 1894 (chap.
119, 28 Stat, at L. 96), to recover all sums
paid by the plaintiff, the defendant in er-
ror, to the defendant and its predecessors;
the ground alleged being that the defend-
ant, the plaintiff in error, has demanded
monthly dues in excess of its rights, and
thereby has entitled the plaintiff to recover
all that he had paid, with interest
The facts are as follows: The plaintiff
originally took out two certificates of in-
surance from an earlier corporation of the
same name, the charter of which expired on
[576] August 5, 1890. In May, 1885, he
surrender^ these certificates and took out
a new one in what was called the Fourth
Class, by which, in consideration of his
original declarations and representations,
and of the payment ''of all monthly pay-
ments as required, and the full compliance
with all the laws governing this rank, now
in force, or that may hereafter be enacted
and shall be in good standing under said
laws," the sum of $3,000 was to be paid
to the plaintiff's wife, or such other bene-
ficiary as he might direct in proper form,
upon notice and proof of death and good
standing at the time; provided, as here-
after stated. It was further stipulated that
any violation of the conditions mentioned
or the requirements of the laws governing
this rank should avoid all claims. By the
certificate of incorporation the corporation
had power "to alter and amend its Consti-
tution and by-laws at will;" the laws of
1880, then in force, provided that ''these
laws [regulating assessments inter alia}
may be altered or amended at any re^ulur
session of the Supreme Lodge K. of P.;" and
by his original application the plaintiff
agreed to conform to the laws and regu-
lations of the order then in force or that
might thereafter be enacted, or submit to
' the penalties therein contained.
S41 V. 8.
1015.
SUPREME LODGE, K. OF P. ▼. MIM&
676-679
Tho plaintiff contends that his contract
took him out of these reiterated provisions
for possible change; and his ground is that
by article 5, § 4, of the laws of 1884, creat-
ing the Fourth Class, the endowment fund
for the payment of benefits in that class
was to be derived from monthly payments
from each member for each $1,000 of en-
dowment, to be graded according to the age
of the member* at the time of making appli-
cation, and his expectancy of life, the age
to be taken at the nearest birthday, "Said
monthly payments shall be based upon the
average expectancy of life of the appli-
cant, and shall continue the same so long
as his membership continues.'' A table ap-
pended gave the rate for the different ages
from [577] twenty-one to sixty. At that
time members were transferred to the Fourth
Class at the original entry age, which, in
the plaintiff's case, was forty-two. These
same laws of 1884 repeated the former pro-
vision as to amendment by the Supreme
Lodge, now requiring a two-thirds vote. The
recension of 1886 repeated the last-men-
tioned provision, and set forth a form of
application by which the applicant agreed
not only, as heretofore, that he, but also
that "this contract, shall be controlled" by
the laws then in force or that might be en-
acted thereafter. The power to alter was
applied in 1888 to the payments to be made
by the Fourth Class. The board of control
was ordered to rerate members transferred
to the Fourth Class as the plaintiff was,
8o that thereafter they should pay as of
the age at which they were transferred, in-
stead of that at which they first became
members. Thereafter the plaintiff paid as
of the age of forty-eight.
After the charter expired, in 1890, the
business was kept going under the same
name by a voluntary association, the plain-
tiff paying his assessments as before, until
on June 29, 1894, the act of Congress men-
tioned incorporated certain persons named,
''officers and members of the Supreme Lodge
Knights of Pythias," by the name of "The
Supreme Lodge Knights of Pythias," and
authorized them to use the powers "in-
cidental to fraternal and benevolent cor-
porations within the District of Columbia."
By the 3d section of the charter "all claims,
accounts, debts, things in action, or other
matters of business of whatever nature now
existing for or against the present Supreme
Lodge Knights of Pythias, mentioned in
f 1 of this act, shall survive and succeed
to and against the body corporate and poli-
tic hereby created; provided that nothing
contained herein shall be construed to ex-
tend the operation of any law which pro-
vides for the extinguishing of claims or
contracts by limitations of time." This is
60 li. ed«
the main ground upon which the defendant
is [578] sought to be charged with the cer-
tificate issued by the former corporation.
By I 4 "said corporation shall have a con-
stitution and shall have power to amend the
same at pleasure; provided, that such con-
stitution or amendments thereof do not con-
flict with the laws of the United States or
of any state." Amendments to the laws of the
association were adopted this same year,
1894, by one of which the existing rates
were retained, and it was provided that each
member of the endowment rank should con-
tinue to pay the same amount each month
thereafter so long as he remained a mem-
ber, "unless otherwise provided for by the
Supreme Lodge or board of control of the
endowment rank." A similar provision
was made in 1900, but the rate for the age
of forty -eight was made $2.45, or $7.35 for
the $3,000 in the certificate. The plaintiff
paid the rates as established from. time to
time.
The split came in 1010. In that year the
corporation passed a law providing for a
rerating of every member of the Fourth
Class on January 1, 1911, in accordance
with his attained age and occupation, under
which the plaintiff's monthly payment
would be raised to $34.80, unless he ac-
cepted one of several options offered to him.
It should be added that his occupation
played no part, as it was not ranked as
hazardous. He was notified, but declined
to pay or otherwise accede to the change.
On January 20, 1911, he tendered $22.06
for the months of January, February, and
March of that year, the tender was refused,
and in May this suit was begun. The court
of civil appeals affirmed a judgment for the
plaintiff on a verdict directed by the trial
court, modifying it so far as to coi\fine the
recovery to payments made since the issue
of the certificate of 1885, with interest.
An application to the supreme court for a
writ of error was refused.
There is a motion to dismiss, but as the
case necessarily will turn on the construc-
tion of the present charter, an act of Con-
gress, and the defendant justifies imder it,
the [579] motion is denied. Creswill ▼.
Grand Lodge, K. P. 225 U. S. 246, 258, 66 L.
ed. 1074, 1078, 32 Siip. Ct Rep. 822. There
is no ground for treating the plaintiff as not
having come into the new company by vir-
tue of I 3. That section provided for his
doing so, and when he was treated and acted
as a member, the presumption is conclusivs
that he did so in pursuance of the law that
authorized it.
We assume without argument that by
§ 3 of the charter, and his assent thereto,
the plaintiff became a member of the or-
ganization^ with whatever rights he might
76 1185
679-681
SUPREME COURT OF THE UNITED STATES.
Oct. Temu,
hftTe M such. It is not to be conceived,
howeTer, that the charter was intended to
ereate a privileged claBs, or that the right
of the corporation to amend ita laws was
less in his case than in that of one Joining
after 1894. As to later members, we can
have no doubt, notwithstanding the diifer-
enee of opinion in state courts, that the
right to amend extends to a change in the
rates to be paid. Persons who join institu-
tions of this sort are not dealing at arm's
length with a stranger whose mode of pro-
viding for payment does not concern them,
but only his promise to pay. They are
Joining a club the members of which have
to pay any benefit that any member can
receive. The corporation is simply the
machine for collection and distribution. Its
charter expressly provides by § 5 that it
"shall not engage in any business for gain;
the purpose of said corporation being fra-
ternal and benevolent." It is manifest,
therefore, that it would be a perversion of
its purposes if, through some ambiguity of
phrase, the necessary source of benefits were
closed in favor of certain members, while
their right to insist upon payment re-
mained. The essence of the arrangement
was that the members took the risk of
events, and if th^ assessments levied at a
certain time were insufficient to pay a bene-
fit of a certain amount, whether from
diminution of members or any other cause,
either they must pay more or the bene-
ficiaiy take less.
[580] The same conditions applied to the
original corporation, and the plaintiff testi-
fies that he understood them. He says in so
many words that he knew that the only
source of revenue to meet .his and other
policies was from assessments of the in-
sured, and that if, after a proper rate was
fixed for a membership of five thousand,
the membership fell to two thousand, the
rate would have to be increased if the obli-
gations were to be met. The statute and
the words of the law of the company under
which the plaintiff entered the Fourth
Class should be construed in the light of
these considerations. In determining his
rights it is important to bear in mind that
there was no specific promise to him, like
the promise to pay, in the certificate, but
that his whole reliance is upon a law of the
corporation; and that he had notice that
all laws of the corporation were liable to
be repealed. The only language in the cer-
tificate bearing on the matter pointed to
possible changes, one tondition being the
payment of all monthly payments "as re-
quired." It was obvious and imderstood
tiiat, to pay a benefit, an increase in the
assessment might be necessary. In our
opinion the present charter, like the first,
1186
must be construed to anthorise sudi an in-
crease, and the dause in the law of 1884,
relied upon, — that the payments should con-
tinue the same so long as the membership
continued, — ^was not a contract, but was s
regulation subject to the possibility in-
herent in the case. More than ambignops
words in an amendaUe law would be needed
to establish a departure from the ground
on which the relation of the parties obTi-
ously stood, and to create a privilege that
attacked the corporation in its very lifa
Compare the language in Supreme Council,
R. A. V. Green, 237 U. S. 531, 642, 69 L
ed. 1089, 1100, L.ILA.1916A, 771, 35 Sap.
Ct. Rep. 724, and the same case below,
sub nom. Reynolds ▼. Supreme Council, R.
A. 192 Mass. 150, 157, 7 L.R^.(N.S.) 1154,
78 N. £. 129, 7 Ann. Cas. 776.
The persons incorporated in 1894 wen
described as officers and members of the
Supreme Lodge then existing; that is, of s
voluntary association ; and it was the righti
[581] and duties of that association thai
the defendant assumed, if we are to take the
words in their literal sense. We spend no
time upon the inquiry what those righti
and duties were, because, as we have said,
we assume that the plaintiff acquired a
standing in the new company. But in the
second stage, as in the first, the law estab-
lishing the Fourth Class had received a
practical construction as being open to
change, by the continued rating of the plain-
tiff at forty -eight instead of forty-two, as at
first, and although the plaintiff says in a
general way that he protested, he paid, and
he had notice of what the earlier companies
asserted to be their rights when he came
into the new one that asserted the same
and put them in force as against him. We
mention these details to show that the plain-
tiff suffers no injustice and meets with no
surprise when we state our opinion that
the assumption imder § 3 of the new char-
ter of a relation with the plaintiff that
originally arose under a law of the old
corporation was not the assumption of t
contract for immutable assessments, and
decide that the power to amend, gives l7
§ 4, included the power to raise the rate*
to such point as was necessary for the
corporation to go on.
The plaintiff's certificate did not abso-
lutely promise *to pay $3,000 if the plaintiiT
had performed the conditions. It contained
a proviso by which, if one monthly payment
by members holding an equal amount of
endowment should not be sufficient to p^T
the sum, the lunount of the monthly ptj'
ment should be the benefit received. If ^
other Fourth Class certificates were in sifli'
lar form, it may be asked whether it wH
reasonable to increase the asiessments rsth*
S41 V.-^
UlS. BOUTHEBN SURETY CD. t. OKLAHOICA. 681, Stt
tr than to Allow the payiDeiiti to abate, cognizable in a court of the Uoitod Stat«>
The aniwer, in addition to what wa already had the; arisen within a atate were to bt
kaT« aaid, ia that, unleaa the corporation proceeded with in the courts of the atate aa
Mntlnued to make aubatantial paymenta at ■'"!oe«K"-s ol the temporary court., where
death, it could not go on. On the evidence, ^"/^^^ wai not only held hy a magia-
.t the end of 1910 fhe plaiotiff-a certificate Ir^rn'oTTt™ tfZ t^'oS^^'^^Z
was worth Tery little or nothing. It well i,ut had given bail for hla appe.ranw in tha
may hare been [BSa] thought better to re- court at that term, and euch court, through
habilitate the claM rather than to allow the itate'a admiaaion, went out of existence
their certificatea to become waste paper. At before an indictment could bo found and
all events, that waa the prevailing view in returned in regular course,
the republic to which the plaintiff belonged, ^*"gSp°'^^ tms'i'^ ^""^ '"' ''' '° ^'*"*
jnd, aa we have aaid, the charter author. ^.11 _ m Indian TMritory - effect ot
I«ed It to be enforced. It is unnecessary to .dmiasion u state — stale aa bene-
discusa the options that were offered b the flclary,
alternative, but it is proper to remember 3. The atate of Oklahoraa became the
that tor many years the plaintiff hai been beneficiary of a bail bond given for the ap-
ineured, and although by what ha is not Pearanco at the next term of the temporary
likeiy to regard aa bad fortune hU bene- United SUtea court of the Indian Territory
flciary haa not profited by it. she would of a per»n held upon a charge ol adultery
•! ■« L 1. 1 J- J • I \ ., , to await the action of tlie grand jury at
have li he had died. As he happily haa j^at terra by virtue of the oiferalion of tlia
lived, be has to bear the burdens incident proviaiona of the Okla. enabling act of June
to the nature of the enterprise into which ig, IBOB (34 Stat, at L. 207, chap. 3335),
*- ' ■■ SS IB, 20, as amended by the act of March
4, 190T (34 SUt. at L. 1ZE6, chap. 291]),
and of the Oklahoma Constitution accept-
.^_^^ ing tlifm, under which all prosecutions
pending in such temporary courts for ot-
SOUTHERN BURETT COMPANY, P?J. In fenses which would not have been cognizable
Err.j in a court of the United States had tliey
Y been committed within a atate were to be
STATK OF OKLAHOMA. procnded .1th in Ih. ooutl. ot th. .lata
aa successors of the temporary courta, and
(See S. C. Reporter's ed. 682-588.) the aUte therefore, was entiUed to sue upon
rederal eonrta — Jurisdiction — eOocl [BBii™ln crlmlDSl eases, aee Ball and Beeoi-
Of admlBBlon aa atate. nliance, 11., In Disest Bop. Ct. 1908.1
1. A criminal prosecution for adultery
b an offenae which would not have been [No. 124.]
cognisable in a court of the United Statea
had it been committed within a state, with-
in the meanine of the provisions of Okla.
enabling act of Jnne 16, 1906 (34 Stat, at
1286, chap. 2B11). and ot the Oklahoma * S""«,."? Oklahoma to review a judg-
Constitution accepting them, under which "«"* "'"<='' «ffi™ed a judgment of the
all prosecutlona pending in the temporary district Court of Pittsburg County, in that
courts of the Indian Territory for offenses stete, in favor of the state in an action on
which would not have been cognizable In a a bail bond. Affirmed.
court of the United States had they been See same case below, 34 Okla. 781, 127
committed within a state were to be pro- p^^ 409
ceeded with in the courts of the sUte a. 5^^ j^^t, ^„ ,t^ted in the opinion.
successors of the temporary courte.
[For other cases, see Courts, III. b. Id Dieeat Jfr. C. S. Arnold submitted the cause for
P^erai^^ - JurlsdlcUou - eftoct I'':ii"*"L'V""' ^ *^.■ k™.. 1,.
Of admission as state. ^' beneficiary under this b<md could
2. A prosecution or proceeding was "ot *>• changed by legiaUtion, nor could
*^nding" in a temporary United States there be a legislatiTS assignment of the
court of the Indian Territory within the iiond from the United StatM to the State
meaning of the provfeions of Okla. enabling of Oklahoma.
■ot of June 16. IBM (34 Stat, at L 287, Stearns. Suretyship, p. «4; Reese r.
ebap. 3335) 18 16, 20 as amended by Uie uait^ gt^t„ » ^^ j3 „ L. ed. 541;
set of March 4, 1S07 (34 Stat, at L. 1286, »„ (^ t^
diap. 2811), and of the Oklahoma Coniti- r^-T' . "_. . .4. ^ —.. .
tntfon accepting them, that all prosecutions, ^*» diatnct court of Pitteburg county,
eoceedings, causes, and matters pending in I Oklahoma, had no jurisdiction of the offenaa
MS court* which would not have been named in the bond, and for which ha waa
•• li. ed. IIST
6UPR£M£ COURT OF THE UNITED STATES.
Oct. Tmc,
indicted by such court, and consequently
could not forfeit the bond.
United States v. Baum, 74 Fed. 43.
It is a significant fact that prosecutions
for felonies and misdemeanors of a local
nature in the territory of Utah were car-
ried on in the name of the people of Utah,
while crimes deemed to be against the
United States were carried on in the name
of the United States of America.
People T. Berlin, 9 Utah, 383, 35 Pac.
408; People y. Kessler, 13 Utah, 09, 44 Pac.
97; People ▼. Burtleson, 14 Utah, 258, 47
Pac. 87.
The state court had jio jurisdiction of the
case because the crime was committed prior
to statehood, was an offense against the
United States, and could not be transferred
to the state courts by act of Congress.
Pickett ▼. United States, 216 U. S. 456,
54 Lw ed. 566, 30 Sup. Ct. Rep. 265; Martin
V. Hunter, 1 Wheat. 304, 337, 4 L. ed. 97,
105; United States ▼. Baum, 74 Fed. 43;
Gwin ▼. Breedlove, 2 How. 29, 11 L. ed.
167; Re Loney, 134 U. S. 372, 33 L. ed.
949, 10 Sup. Ct. Rep. 584; The Antelope,
10 Wheat. 66, 6 L. ed. 268; Huntington v.
Attrill, 146 U. S. 657, 36 L. ed. 1123, 13
Sup. Ct. Rep. 224.
The act of admission creates a state
upon an equal footing with every other
state, and by this act of admission, a divi-
sion and distribution of the sovereignty is
brought about. Hence, to burden a state
with the prosecution of criminal offenses
committed in the country under the control
of Congress would be an unequal burden,
and prevent that equality guaranteed under
the enabling act to the state, and be assum-
ing to transact business at its own expense,
arising under a foreign jurisdiction.
Shively v. Bowlby, 152 U. S. 34, 38 L. ed.
344, 14 Sup. Ct. Rep. 548; Pollard v. Hagan,
3 How. 233, 11 L. ed. 575; Permoli v. New
Orleans, 3 How. 590, 11 Lw ed. 739; Strader
V. Graham, 10 How. 92, 13 K ed. 337;
Spooner v. McConnell, 1 McLean, 337, Fed.
Cas. No. 13,245; Benner v. Porter, 9 How.
239, 13 L. ed. 121; Hunt v. Palao, 4 How.
589, 11 L. ed. 1115; Calkin v. Cocke, 14
How. 237, 14 L. ed. 402.
If. Congress had the power to transfer
this jurisdiction to the state courts, the
power of the sovereignty exercised by the
Congress to create a- court and attach juris-
diction thereto to hear and determine causes
of action accruing within the territory be-
fore the admission of the state is supreme
and is exclusive; and inasmuch as it failed
to act, the right of action is in suspense
until Congress does act.
Forsyth v. United States, 9 How. 572, 13
L. ed. 263; United States v. Baum, 74 Fed.
43; United States v. Partello, 48 Fed. 677;
1188
McNulty V. Batty, 10 How. 72, 13 U ed.
333; Freeborn v. Smith, 2 Wall. 160, 160,
177, 17 L. ed. 922; United States Exp. Co.
V. Kountze Bros. 8 Wall. 342, 19 L. ed. 457 ;
Koenigsberger v. Richmond Silver Min. Co.
158 U. S. 41, 39 L. ed. 889, 15 Sup. Ct. Rep.
751; Jones v. United States, 137 U. S. 202,
34 L. ed. 691, 11 Sup. Ct. Rep. 80; Ames
V. Colorado C. R. Co. 4 Dill. 251, Fed. Cat.
No. 324; Spooner v. McConnell, 1 McLean,
337, Fed. Cas. No. 13,245; Benner v. Por-
ter, 9 How. 235, 13 L. ed. 119; Inerarity v.
Curtis, 4 Fla. 175; Carter v. Bennett, 4
Fla. 322; Cook v. United States, 138 U. S.
157, 34 L. ed. 906, 11 Sup. Ct. Rep. 268;
Larkin v. Saffarans, 15 Fed. 153; Balti-
more & P. R. Co. V. Grant, 98 U. S. 398,
25 L. ed. 231; South Carolina v. Gaillard,
101 U. S. 433, 25 L. ed. 937 ; Ex parte Mc-
Cardie, 7 Wall. 514, 19 L. ed. 265.
In construing the constitution or statute
granting judicial powers, such constitution
or statute reciting conditions or subjects
over which jurisdiction is extended must be
construed as restrictive, and is not to be
extended by implication or inference to or
over subjects not designated.
Ex parte McCardle, supra; Murdock v.
Memphis, 20 Wall. 620, 22 L. ed. 439;
Northpoint Consol. Irrig. Co. v. Utah & S.
L. Canal Co. 14 Utah, 163, 46 Pac. 824;
United States v. Bailey, 1 McLean, 234,
Fed. Cas. No. 14,495; Durousseau v.
United States, 6 Cranch, 308, 3 L. ed. 232;
Jungk V. Holbrook, 15 Utah, 198, 62 Am.
St. Rep. 925, 49 Pac. 305; Eastman t.
Gurrey, 14 Utah, 171, 46 Pac. 828; Farrell
V. Winchester Ave. R. Co. 61 Conn. 130, 23
Atl. 757.
The court should decline jurisdiction.
Meyer v. Herrera, 41 Fed. 67 ; Re Cilley,
58 Fed. 984; State ex rel. Church v. Weeln,
38 Mo. App. 579 ; Baltimore & P. R. Co. v.
Grant, 98 U. S. 398, 25 L. ed. 231; South
Carolina v. Gaillard, 101 U. S. 433, 25 L
ed. 937.
Mr. R. E. Wood submitted the cause for
defendant in error. Messrs. S. P. Freeing
and Smith C. Matson were on the brief:
It was within the power of Congress to
confer, and within the power of the state to
accept, jurisdiction of the cause pending in
the territorial court of the Indian Territoiy
in which this appellant became surety.
Benner v. Porter, 9 How. 246, 13 U ed.
124; Higgins v. Brown, 20 Okla, 355, 94
Pac. 703; Damon's Case, 6 Me. 148; Hud-
speth V. State, 1 Ark. 20; Drummond v.
Republic, 2 Tex. 157; People v. Richardii
1 Mich. 217, 51 Am. Dec. 75; Cook v.
United States, 1 G. Greene, 66; Bonsell t.
United States, 1 G. Greene, 112; Peopk
V. Daniels, 1 CaL 107; People v. Bonds, 1
S41 V.8*
1915.
SOUTHERN SURETY 00. v. OKLAHOMA.
583-586
NeT. 33; People t. Logan, 1 Nev. 110; Wil-
son V. People, 3 Colo. 326; State v. Wil-
liams, 0 Mont. 179, 23 Pac. 335; State v.
Leehman, 2 S. D. 174, 49 N. W. 3; Thomp-
son y. Utah, 170 U. S. 344, 42 L. ed. 1064,
18 Sup. Ct Rep. 620.
Mr. Justice Van Devanter delivered the
opinion of the court:
This is an action on a bail bond given by
an accused held* upon a charge of adultery
to await the action of the grand jury at
McAlester, in the Indian Territory. The
bond was given shortly before Oklahoma be-
came a state, named the United States as
the obligee, and called for the accused's ap-
pearance before the temporary court at Mc-
Alester at the next term and from term to
term until discharged. When the courts of
the new state were organized, an indict-
ment for the adultery was returned against
the accused in the state court at McAlester.
He did not appear, a forfeiture was declared,
and the state sued on the bond, the surety
alone being reached by the process. There
was a judgment for the state, which [584]
was affirmed (34 Okla. 781, 127 Pac. 409),
and the surety sued out this writ of error.
The Foderal questions presented involve
the construction and application of the en-
abling act, and are, first, whether, after the
admission of the state, the further proceed-
ings upon the charge of adultery were to be
had in a Federal court or in a state court;
and, second, whether, by operation of law,
the state became the beneficiary of the bond
and entitled to sue on it.
By reason of the conditions arising out
of the presence of the Five Civilized Tribes
no organized territorial government was
ever established in the Indian Territory.
Up to the time It became a part of the
state of Oklahoma it was governed under
the immediate direction of Congress, which
legislated for it in respect of many matters
of local or domestic concern which, in a
state, are regulated by the state legislature,
and also applied to it many laws dealing
with subjects which, under the Constitution,
are within Federal rather than state con-
trol. In what was done Congress did not
contemplate that this situation should be
of long duration, but, on the contrary, that
the territory should be prepared for early
inclusion in a state. Courts designated
as *^nited States Courts" were temporarily
established^ and invested with a considerable
measure of civil and criminal jurisdiction,
and there was also provision for beginning
public prosecutions before subordinate mag-
istrates. There being no organized local gov-
ernment, such prosecutions, regardless of
their nature, were commenced and conducted
in the name of the United States, and in
60 Ii. ed.
taking bail bonds it was named as the obli«
gee.
The enabling act (chap 3335, 34 Stat, at
L. 267, chap. 2911, 34 SUt. at L. 1286) pro-
vided that the new state should embrace the
Indian Territory as well as the territory
of Oklahoma. It contemplated that the
state, by its Constitution, would es-
tablish a system of courts of its own,
and provided for dividing the state in-
to two districts, [585] and creating therein
United States courts like those in other
states. The temporary courts were to go
out of existence, and this made it necessary
to provide for the disposition of the busi-
ness pending before them in various stages.
To that end the following provisi<His, among
others, not material here, were embodied in
an amendment to the act (34 Stat, at L.
1286, 1287, chap. 2911):
"Sec. 16. . . . Prosecutions for all
crimes and offenses committed within the
territory of Oklahoma or in the Indian
Territory, pending in the district courts
of the territory of Oklahoma or in the
United States courts in the Indian Terri-
tory upon the admission of such territories
as a state, which, had they been committed
within a state, would have been cognizable
in the Federal courts, shall be transferred
to and be proceeded with in the United
States circuit or district court established
by this act for the district in which the of-
fenses were committed, in the same manner
and with the same effect as if they had been
committed within a state."
'*Sec. 20. That all causes, proceedings, and
matters, civil or criminal, pending in the
district courts of Oklahoma territory, or
in the United Statep courts in the Indian
Territory, at the time said territories
become a state, not transferred to the
United States circuit or district courts
in the state of Oklahoma, shall be
proceeded with, held, and determined by the
courts of said state, the successors of said
district courts of the territory of Oklahoma,
and the United States courts in the Indian
Territory; . . . All criminal cases pend-
ing in the United States courts in the In-
dian Territory, not transferred to the Unit-
ed States circuit or district courts in the
state of Oklahoma, shall be prosecuted to a
final determination in the state courts of
Oklahoma under the laws now in force in
that territory."
Section 28 of the schedule to the state
Constitution referred to these and other
closely related provisions, and [586] said,
they "are hereby accepted and the juris-
diction of the cases enumerated therein is
hereby assumed by the courts of the state."
Thus, by the concurrent 'actioxk of Con-
gress and the state, all prosee^ '
686-588
SUPREME COURT OF THE UNITED STATES.
Oct. Tbm,
ing in the temporary courts of the Indian
Territory, for offenses which would not have
been cognizable in a court of the United
States had they been committed within a
state, were to be proceeded with in the
courts of the state, as successors to the
temporary courts. In other words, the test
of the jurisdiction of the state courts was
to be the same that would have applied had
the Indian Territory been a state when the
offenses were committed. In this view it is
plain that the prosecut'.on in question was
rightly proceeded with in the state court.
Adultery is an offense against the marriage
relation, and belongs to the class of subjects
which each state controls in its own way.
It is a punishable offense only where the com-
mon or statute law of the state makes it
such ; and where punishable, it is cognizable
only in the courts of the state. Of course,
we exclude from present consideration forts,
arsenals, and like places within the exterior
limits of a state, but over which exclusive
jurisdiction has been ceded to the United
States, because they are regarded, not as
part of the state, but as excepted out of it.
And we pass the question of the power of
Congress to deal with such offenses in re-
spect of tribal Indians within a state, be-
cause the statute under which this prosecu-
tion arose was general in its terms, and be-
cause it is not claimed that either of the
participants in the adulterous act was an
Indian.
Some reliance is placed upon § 14 of the
enabling act, which refers in part to offenses
committed prior to the state's admission;
but of this section it is enough for present
purposes to say that when it is read in
connection with the provisions of §§ 16 and
20, before quoted, it is apparent that it was
intended to mark the line separating [587]
the jurisdiction of the Federal courts in the
two districts, as between themselves, and
not the line separating their jurisdiction
from that of the state courts.
Because no indictment was returned in
the temporary court at McAlester before the
state was admitted, it is contended that
this prosecution was not "pending" in that
court in the sense of §§ 16 and 20. These
sections included all pending "causes, pro-
ceedings, and matters," as well as "prosecu-
tions" and "cases," and evidently were de-
signed to be very comprehensive. The ac-
cused not only was held by a magistrate to
await the action of the grand jury at the
next term of the temporary court, but gave
bail for his appearance in the court at that
term. After this was done we think a pros-
ecution or proceeding was pending in the
court in the sense of the statute. That no
indictment was returned in that court in ex-
plained by the fact that the court, through
1190
the state's admission, went out of existence
before an indictment could be found and
returned in regular course.
The enabling act and the state Constitu-
tion united hi declaring that the state
courts, in respect of the prosecutions which
were to be transferred to them, should
be the successors of the temporary courts.
The bail bond was given several months after
the act and the state Constitution were
adopted. Indeed, the state's admission was
inuninent at the time. So, the bond must
be taken as given with the approaching
change in mind, and as meaning that the
accused's appearance should be in the state
court as t^e legal successor of the tem-
porary court, if the latter should go out of
existence before the time for appearance
arrived. The law existing when a contract
is made, and affecting its performance, be-
comes a part of it. Northern P. K. Co.
V. Wall, 241 U. S. 87, ante, 905, 36 Sup. Ct
Rep. 493. ,
The enabling act, when taken in connec-
tion with the schedule to the state Constitu-
tion, leaves no doubt that the state was to
take the place of the United States in
[588] dealing with and conducting this
prosecution. The bail bond was essentially
a part of the proceeding that was trans-
ferred, and was without force or value in
any other connection. So, when the power
and duty resting upon the United States
were passed to the state, there went with
them the rig^t to use and enforce the bond
as the United States might have done, had
the proceeding remained in its control; in
other words, the state became, by operation
of law, the beneficiary of the bond, and was
entitled to suie on it when its condition was
broken.
Judgment affirmed.
WILLIAM L. DAYTON, Trustee, etc,
V.
A H. STANARD, Treasurer of the County
of Pueblo, Colorado, et aL
(See S. C. Reporter's ed. 588-690.)
•
Bankraptoy — property in cnstodUi le^
— sale for taxes and aasessmonts.
1. Sales -for taxes and special assess-
ments of real property belonging to a bank-
rupt estate then in the course of adminis-
tration in a court of bankruptcy are invalid
where made without leave of the bankruptcy
court.
[For other cases, see Bankruptcy, XL b. In
Digest Sap. Ct 1908.]
*
Note. — ^As to right to enforce payment
of delinquent taxes on property in cu9iodia
legis — see note to Eppstein ▼. Orahood* 17
L.R.A.(N.S.) 465.
S41 U. 8*
2915. DATTON ▼. 8TANARD.
Bankruptcy — property In cnstodia legis
— relmbarsement of certlflcate hold*
ers.
2. Holders of oertificates of purchase
of real property belonging to a bankrupt
estate which was sold for taxes and special
assessments when the property was in the
course of administration in a court of bank-
ruptcy are entitled to be reimbursed out of
the general assets, upon the cancelation of
their certificates, for the taxes and assess
Fed. 42, 209 U. 8. 545, 52 L. ed. 919, 28
Snp. Ct. Rep. 571; Re Dana, 98 C. C. A.
238, 167 Fed. 529; Mound Mines Co. ▼.
Hawthorne, 97 G. C. A. 400, 173 Fed. 882;
Re Rathman, 106 C. C. A. 253, 183 Fed.
913; Lazarus ▼. Prentice, 234 U. S. 263,
58 L. ed. 1305, 84 Sup. Ct. Rep. 851; See*
ond Employers' Liability Cases (Mondou t.
New York, N. H. & H. R. Co.) 223 U. S. 1,
57, 56 L. ed. 327, 349, 38 L.R.A.(N.S.) 44,
ments paid by them, with interest at the 23 Sup. Ct. Rep. 169, 1 N. C. C. A. 875;
ordinary lepl rate, by v^^^^^^^ Hecox v. Teller County, 117 C. C. A. 388,
visions of the bankrupt act of July 1, 1898 -q^ ^ , ^,. •" '
(30 Stat, at L. 563, chap. 541, Comp. Stat. ^^^ *^* "^*'
1913, § 9648), S 64a, that the court shall ^0 ^^ interest and penalties accruing,
order the trustee to pay all taxes legally under the terms of the state statutes, for
due and owing by the bankrupt in advance nonpayment of the taxes at particular
of payment of dividends to creditors, but times,' to be counted as part of the taxes to
are not entitled to the larger interest re- \^ paid by the trustee?
ouired by the local law to be paid on re- j^ William F. Fisher & Co. 135 Fed. 228,
i^T^Ll'Ze^s^'t.nl.ru^t^^^ II. b. In 1^8 Fed. 907; Re Wylie, 82 C. C. A. 411.
Digest Sup. Ct 1908.] 153 Fed. 281.
rv ACkA 1 Taxes are to be paid on property in the
[No. 404.] hands of a trustee in bankruptcy only in the
*t^v -..-LJT n tt%ia •iv.'jjT instances and in the way provided by the
Submitted Janu.^ 7. 1916. Decided June bankruptcy law, and ap^llant holders of
' certificates of purchase are not within the
ON WRIT of Certiorari to the United "^e^^ .„ • q- _i k^ n r. a ono ^^t
SUtes Circuit Court of Appeals for the ^J^*!^ 7; ^'^«^^' l^ f ' ^' ^' ^^\}^^
Eighth Circuit to review a d^ree which, l^' ^L^^rTL^'/Ao ?I"I ^' v""' ^i ^'
modifying a decree of the District Court for ^'^' ^«' l^l ^5^1 If ' ^^ Am. N^. Rep.
the District of Colorado, directed that hold- ^fi'^^JI?^ ^" ]ll V: \ ^'^^ h"^' 1^!'
ers of certificates of ourchase at tax sales ^^ ^^P* ^- ^^P* ^^®' ^^ ^^' ^^^' ^P' ^^^''
ers 01 certincates Of purcnase at tax sales ^ . g ^ Diamonds, 2 L.R.A.
made pending bankruptcy proceedmgs be re- /^s ^ 185 72 C CJ A fl 1^0 Fpd flfli
imbursed out of the general fund. for the ^^^'^ ^^^* ^^ ^' ^' ^' ®' ^'^ ^^' ®®^-
amounts of the taxes and assessments, to- Mr. Horace Phelps submitted the cause
gether with interest at the rate payable un- for respondents:
der the local law on redemption from tax Even in banlcruptcy proceedings the lien
sales. Modified by reducing the allowance of a tax purchaser may not be destroyed
of interest to the ordinary legal rate, and without payment of his taxes.
as modified affirmed. Re Eppstein, 17 L.R.A.(N.S.) 465, 84
See same case below, 137 C. C. A. 35, 220 C. C. A. 208, 156 Fed. 42.
Fed. 441. Before the district court of the United
The facts are stated in the opinion. States, in an action brought by the trus-
Mr. Harvey Bidden submitted the cause *•• i" ^'Wcl' these tax purchasers are de-
for oetitioner • fendants or respondents, can declare these
When property is in the custody of the J" "^f *•?*, "***,?' V?* •*'"*"=***» ^
court. whethVr through and by a receiver. ^ )^«*' »' "^'^^roy the hen and relegate
trustee in bankrupt^, or other similar "• *« the condition of a gwieral creditor.
means, neither the title nor possession can '^^^ ,"'™* ''^Tl *ir ""^- ^ /^f
be interfered with, nor a lien fixed upon It. "1^^}^' ?«'•«'«>**<> «»« provisions of the
nor a change in the conditions of the prop- n^V*** ^'oi*<">- „»,„.„
— ^« ^. *wit i^ -..j« ^^^^t K. ^,^t.^t!L Whitehead v. Fanners' Loan ft T. Co. 89
SthfJ'Jr ' ^ ^ Pen-i'wwn c. C. A. 34, 98 Fed. 13, Hecox v. Teller
r^E" 149 U. a 164, 87 K ed. 689. Co-*^ 1" C. C. ^338. IM /ed ^4,
18 Supfa. Rep. 785; King v. Wooten, 4 f^^T' ^l^^'i'^' £• -^^ "*'"?. ^•*-
C. C. A. 619. 2 U. S. App. 661. 64 Fed. 612; 256; Virginia T. 4 C. St«.l ft L Co. v.
Ledoux V. La Bee, 83 Fed. 761; Clark v. B"»^^Ir,"i °*; ^c !'?J."^*' ^,^^
McOhee. 31 C. C. A. 321, 69 U. S. App. 69, "7 Fed. 276; Re Scheldt Bros. 177 Fed.
87 Fed. 789; High, Receivers, 3d ed. 8 140a; ^^■
Virginia T. ft C. Steel ft I. Co. v. Bristol The manifest intent of the law is that
Land Co. 88 Fed. 134; Johnson v. Southern while the estate is in the hands of the tnis-
Bldg. ft L. Asso. 132 Fed. 640; Re Eppstein, tee, his custody shall not constitute a bar-
17 L.RA.(KA) 466, 84 0. 0. A. 208, 166 rier to prevent the eolleetion of taxes whieh
6« Ii. ed. VV%V
689-591
SUPREME COUET OF THE UNITED STATES.
Oct. Term,
would be collectable under the law, if the
property had remained in the poBsesBion
and control of the bankrupt himself.
Re Conhaim, 100 Fed. 268.
Even thou^ the proceedings of the sale
are void, still the owner of the certificate
must have his money before the lien can
be destroyed.
Pueblo Realty Co. ▼. Tate, 32 Colo. 67,
75 Pac 402.
[589] Mr. Justice Van Devanter de-
livered the opinion of the court:
This is a controversy growing out of the
sale for taxes and special assessments of
divers tracts of real property belonging to
a bankrupt estate then in the course of ad-
ministration in a court of bankruptcy. The
property was in ottstodia legia and was sold
without leave of court. Because of tliis the
court held the sales invalid, and entered a
decree canceling the certificates of purchase,
and enjoining the county treasurer from
issuing tax deeds thereon. Thus far there
is no room to complain. Wiswall v. Samp-
son, 14 How. 52, 14 L. ed. 322; Barton v.
Barbour, 104 U. S. 126, 26 L. ed. 672; Re
Tyler, 149 U. S. 164, 37 L. ed. 689, 13 Sup.
Ct. Rep. 786 ; Re Eppstein, 17 L.R.A. ( N.S. )
465, 84 C. C. A. 208, 156 Fed. 42. The court
further directed in its decree that the sever-
al tracts be sold by the trustee free from
any lien for the taxes and assessments, and
that the holders of the certificates of pur-
chase be severally reimbursed out of the
proceeds of the respective tracts, but not out
of the general assets, for the taxes and
special assessments paid thereon, with the
interest and penalties which accrued prior
to the time the trustee took possession. Up-
on appeal to the court of appeals, that court
modified the decree by requiring that the
certificate holders be reimbursed for the
amounts paid at such sales and for subse-
quent taxes, together with interest thereon,
"as provided by the laws of Colorado on
redemption from tax sales of land," the
same to be paid "out of the general fund,
regardless of the amount which the prop-
erty may bring at bankruptcy sale." 137
C. C. A. 35, 220 Fed. 441.
The trustee urges, first, that the certifi-
cate holders should not be reimbursed at
all; second, that, if reimbursed, they should
not be allowed any interest or penalties
other than such as accrued prior to the
time when the trustee qualified and took
possession; and, third, that they should not
be reimbursed out of the general [590]
assets, but only out of the proceeds of the
trustee's sale of the tracks for which they
severally had certificates.
Considering the plain provision in § 64a
of the bankruptcy act» that "the court shall
119S
order the trustee to pay all taxes legally due
and owing by the bankrupt . . . in ad-
vance of the payment of dividends to cred-
itors" [30 Stat, at L. 563, chap. 541, Comp.
Stat. 1913, § 9648], we enterUin no doubt
of the propriety of requiring that the cer-
tificate holders, who had paid the taxes and
assessments at the sales, be reimbursed up-
on the cancelation of their certificates, or
of requiring that the reimbursement be out
of the general assets. The taxes and assess-
ments were not merely charges upon the
tracts that were sold, but against the gen-
eral estate as well.
And while we are of opinion that the cer-
tificate holders were entitled to interest up-
on the amounts paid, at the ordinary legal
rate, applicable in the absence of an express
contract, we think they were not entitled
to the larger interest required to be paid on
redemption from tax sales. They were not
in a position to stand upon the terms of
the redemption statute, for the sales were
invalid, and the only recognition which they
could ask was such as resulted from an ap-
plication of equitable principles to their
situation. The decree of the Circuit Court
of Appeals is modified to conform to what
is here said respecting the allowance of in-
terest. In other respects it is affirmed.
Decree modified and affirmed.
[591] UNITED STATES, Plff. in Err.,
▼.
FRED NICE.
(See S. C. Reporter's ed. 591-^1.)
Indian allottees — emancipation from
Federal control.
1. No intention to dissolve the tribal
relations and terminate the national guard-
ianship upon the making of the allotments
and the issuing of the trust patents without
waiting for Uie expiration of the trust
period can be gathered from the Indian al-
lotment act of February 8, 1887 (24 Stat,
at L. 388, chap. 119, Comp. Stat 1913,
§ 4195), § 6, which grants to the allottees
the privilege of citizenship, and gives them
the benefit of, and requires them to be sub-
ject to, the laws, both civil and criminal,
of the state of their residence, in view of
the provision of § 5, which, after requiring
that the title to the allotted lands be with-
held for twentv-five ^ars, and rendering
them inalienable during that period, au-
thorizes negotiations with the tribe, either
before or after the allotments are completed,
for the purchase of so much of the surplus
lands as the tribe shall, from time to time,
consent to sell, directs that the purchase
money be held in the treasury for the sole
use of the tribe, and requires that it, with
the interest thereon, shall be at all times
subject to appropriation by Congress for
S41 V. S.
1915.
UNITED STATES v. NICE.
the education and civilization of snch tribe
or its members.
[For other cases, see Indians, I., in Digest
Sup. Ct. 1908.]
Indian allottees — Federal control —
emancipation — sale of intoxicating
liqnor.
2. So long as^Indian allottees under the
acts of February 8, 1887 (24 Stat, at L. 868,
chap. 119, Comp. Stat. 1913, § 4195), or
March 2, 1889 (25 Stat, at L. 888, chap.
405), remain tribal Indians and under na-
tional guardianship^ «. e., during the twen-
ty-five years in which, under those acts, the
allotted lands are to be held in trust by
the government and are to be inalienable.
Congress may, as is done by the act of
January 30, 1807 (29 Stat, at L. 506, chap.
109, Comp. Stat. 1913, § 4137), regulate or
prohibit the sale of intoxicating liquors to
such Indians within a state.
[For other cases, see iDdians, 04-61, In Digest
Sup. Ct. 1908.1
[No. 681.]
Argued and submitted April 24, 1916. De-
cided June 12, 1916.
IN ERROR to the District Court of the
United States for the District of South
Dakota to review a judgment sustaining a
demurrer to and dismissing an indictment
charging the unlawful sale of intoxicating
liquors to an allottee within the state
Reversed.
The facts are stated in the opinion.
Assistant Attorney General Warren ar-
gued the cause and filed a brief for plain-
tiff in error:
The decision of this court in United
States V. Pelican, 232 U. S. 442, 58 L. ed.
676, 34 Sup. Ct. Rep. 396, was clearly in-
consistcnc with Re Heff, 197 U. S. 488, 49
L. ed. 848, 25 Sup. Ct. Rep. 506, and must
be deemed to overrule it.
The power of Congress to regulate com-
merce with the Indian tribes is exclusive.
Worcester v. Georgia, 6 Pet. 615, 560, 8
L. ed. 483, 501; Howard v. Ingersoll, 13
How. 381» 400, 14 L. ed. 189, 201; United
States T. 43 Gallons of Whislcey, 93 U. S.
188, 194, 23 L. ed. 846, 847; Dick v. United
States, 208 U. 8. 340, 52 I*, ed. 520, 28 Sup.
Ct. Rep. 399; Joplin Mercantile Co. v.
United States, 236 U. S. 531, 545, 59 L. ed.
706, 711, 35 Sup. Ct. Rep. 291.
Commerce with the Indian tribes includes
commerce with the individual members of
a tribe.
United States ▼. Holliday, 3 Wall. 407,
18 L. ed. 182.
The act of January 30, 1897, is a regula-
tion of commerce with the Indian tribes.
Ibid.
The Heff Case was wrong in treating the
act of 1897 merely as an exerdse of police
power. It waa enacted under the commerce
60 Ii. ed.
clause of the Constitution; and the power
to regulate trade with the Indian tribes
belongs exclusively to 0>ngre88 as long as
any Indian tribal status exists.
Ibid.
It is for Congress, and not for this court,
to say when the tribal existence shall be
deemed to have terminated.
United States y. 43 Chillons of Whiskey,
108 U. S. 491, 496, 27 h, ed. 803, 805, 2 Sup.
Ct. Rep. 906, 93 U. S. 188, 195, 23 L. ed.
846, 847; United States v. Sandoval, 231
U. S. 28, 46, 58 L. ed. 107, 114, 34 Sup. Ct.
Rep. 1; Perrin v. United SUtes, 232 U. S.
478, 482, 486, 58 L. ed. 691, 694, 695, 34
Sup. Ct. Rep. 387; Lone Wolf ▼. Hitchcock,
187 U. S. 553, 565, 47 L. ed. 299, 306, 23
Sup. Ct. Rep. 21 G; United States v. Rickert,
188 U. S. 432, 433, 445, 47 L. ed. 532, 534,
539, 23 Sup. Ct. Rep. 478; Rainbow v.
Young, 88 C. C. A. 653, 161 Fed. 835 ; Unit-
ed States V. Sutton, 215 U. S. 291, 296, 54
L. ed. 200, 202, 30 Sup. CJt. Rep. 116;
lifarchie Tiger v. Western Invest. Co. 221
U. S. 280, 315, 316, 55 L. cd. 738, 749, 750,
31 Sup. Ct. Rep. 578.
The grant of citizenship does not, ipso
facto, terminate the tribal status.
United States v. Sandoval, 231 U. S. 28,
46, 58 L. ed. 107, 114, 34 Sup. Ct. Rep. 1.
An Indian allottee, even though a citi-
zen, is still an Indian, and an Indian ward
as well.
United States v. Celestine, 216 U. S. 278,
200, 54 L. ed. 195, 109, 30 Sup. Ct. Rep.
93; United States v. Pelican, 232 U. S.
442, 58 L. ed. 676, 34 Sup. Ct. Rep. 396;
United States v. Sandoval, 231 U. S. 28,
47, 48, 58 Lw ed. 107, 114, 34 Sup. Ct Rep.
1.
Congress has no authority to dele-
gate a power vested by the Constitution in
it exclusively.
Stoutenburgh v. Hennick, 129 U. S. 141,
149, 32 L. ed. 637, 639, 9 Sup. Ct. Rep.
256; Re Rahrer, 140 U. S. 545, 35 L. ed.
572, 11 Sup. Ct. Rep. 865; CJooley v. Port
Wardens, 12 How. 290, 317, 13 L. ed. 996,
1004.
Even if it could so delegate. Congress
must act expressly, and not by implica-
tion, for the presumption is strongly
against the surrender of Federal power by
implication.
Rhodes V. Iowa, 170 U. S. 412, 42 Lw ed.
1088, 18 Sup. Ct Rep. 664.
Congress, by the act of 1887, dearly did
not terminate the tribal relationship or
status of the allottee Indians. Hence it
had no power irrevocably to commit the
regulation of commerce with the Indian
tribes into the hands of the states. And
when, by the act of 1897, it exercised power
to r^B^ulate, it had the right to do so.
595-597
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm*
Farrell ▼. United States, 49 C. C. A. 188,
110 Fed. 942.
Mr. O. D. Olmstead submitted the cause
for defendant in error. Messrs. W. B.
Backus and W. J. Hooper were on the
brief:
The decision of the district court was
based on the construction given to the stat-
ute under which the indictment was
drawn in Re Heff, 197 U. S. 488, 49 L. ed.
848, 25 Sup. Ct. Rep. 600. The defendant
in error stands on the decision in that case,
and respectfully contends that this decision
correctly construes the statute, and that,
thereunder, he is not guilty of an offense.
[595] Mr. Justice Van Devanter de-
livered the opinion of the court:
This is a prosecution for selling whisky
and other intoxicating liquors to an Indian,
in violation of the act of January 30, 1897
(chap. 109, 29 Stat, at L. 506, Comp. Stat.
1913, § 4137). According to the indict-
ment, the sale was made August 9, 1914,
in Tripp county, South Dakota; the Indian
was a member of the Sioux Tribe, a ward of
the United States, and under the charge
of an Indian agent; and the United States
was still holding in trust the title to land
wli it'll had been allotted to him April 29,
1902. A demurrer was sustained and the
indictment dismissed on the ground that
the statute, in so far as it purports to em-
brace such a case, is invalid, because in
cxci'ss of the power of Congress. The case
is lipre on direct writ of error under the
criminal appeals act (chap. 2564, 34 Stat,
at L. 1246, Comp. Stat. 1913, § 1704).
By the act of 1897 the sale of intoxi-
cating liquor to "any Indian to whom allot-
ment of land has been made while the title
to the same shall be held in trust by
the government, or to any Indian a ward
of the government under charge of any In-
dian superintendent or agent, or any In-
dian, including mixed bloods, over whom
the government, through its departments,
exercises guardianship," is denounced as a
punishable offense.
The allotment to this Indian was made
from the tribal lands in the Rosebud Reser-
vation, in South Dakota, under the act of
March 2, 1889 (chap. 405, 25 SUt. at L.
888), the 11th section of which provided
that each allotment should be evidenced by
a patent, inaptly so called, declaring that
for a period of twenty-five years — and for
a further period if the President should
so direct — ^the United States would hold
the allotted land in trust for the sole use
and benefit of the allottee, or, in case of his
death, of his heirs, and at the end of that
period would convey the [596] aame to him
1194
or his heirs in fee, discharged of .the trust
and free of all charge or encumbrance;
that any lease or conveyance of the land,
or contract touching the same, made dur-
ing the trust period, should be null and
void, and that each allottee should **bB
entitled to all the rights tfnd privileges and
be subject td all the provisions" of f 6 of
the general allotment act of February 8,
1887 (chap. 119, 24 Stat, at L. 388, Comp.
Stat. 1913, § 4195). The act of 1889 recog-
nized the existence of the tribe, as such,
and plainly disclosed that the tribal rela-
tion, although ultimately to be dissolved,
was not to be terminated by the making or
taking of allotments. In the acts of March
3, 1899 (chap. 450, 30 Stat, at L. 1362),
and March 2, 1907 (chap. 2536, 34 Stat
at L. 1230), that relation was recognized
as still continuing, and nothing is found
elsewhere indicating that it was to termi-
nate short of the expiration of the trust
period.
By the general allotment act of 1887
provision was made for allotting lands in
any tribal reservation in severalty to mem-
bers of the tribe, for issuing to each allot-
tee a trust patent similar to that just de-
scribed and with a like restraint upon
alienation, and for conveying the fee to the
allottee or his heirs at the end of the trust
period. Its 6th section, to which particular
reference was made in f H of the act of
1889, declared that, upon the completion of
the allotments and the patenting of the
lands, the allottees should have "the bene-
fit of and be subject to the laws, both civil
and criminal, of the state or territory" of
their residence, and that all Indians bom
in the United States, who were recipients
of allotments under "this act, or under any
law or treaty," should be citizens of the
United States, and entitled to all the rights,
privileges, and immunities of such citizens.
This act, like that of 1889, disclosed that
the tribal relation, while ultimately to be
broken up, was not to be dissolved by the
making or taking of allotments, and subse-
quent legislation 8how.i repeated instances
in which the tribal relation of Indians
[597] having allotments under the act was
recognized during the trust period as still
continuing.
With this statement of the case, we come
to the questions presented for decision,
which are these: What was the status of
this Indian at the time the whisky and
other liquors are alleged to have been soUi
to him? And is it within the power of
Congress to regulate or prohibit the sale
of intoxicating liquor to Indians in his
situation T
The power of Congress to regulate or
prohibit traffic in intoxicating liquor with
tribal Indians withis a state, whether upon
S41 U. 8.
1015.
UNITED STATES ▼. NICE.
697-609
or off an Indian reservation, is well settled.
It has long been exercised, and has repeat-
edly been sustained by this, court. Its
source is twofold; first, the clause in the
Constitution expressly investing Congress
with authority 'Ho regulate commerce . . .
with the Indian tribes," and, second, the de-
pendent relation of such tribes to the
United States. Of the first it waa said in
United States ▼. HoUiday, 3 Wall. 407, 417-
419, 18 L. ed. 182, 185, 186: "Commerce
with the Indian tribes means commerce
with the individuals composing those tribes.
. . . The locality of the traffic can have
nothing to do with the power. The right
to exercise it in reference to any Indian
tribe, or any person who is a member of
such tribe, is absolute, without reference to
the locality of the traffic, or the locality
of the tribe, or of a member of the tribe
with whom it is carried on. . . . This
power residing in Congress, that body is
necessarily supreme in its exercise." And
of the second it was said in United States
T. Kagama, 118 U. 8. 375, 383, 30 L. ed.
228, 231, 6 Sup. Ct. Rep. 1109: "These
Indian tribes are the wards of the nation.
They are communities dependent on the
United States. . . . From their very
weakness and helplessness, so largely due
to the course of dealing of the Federal
government with them and the treaties in
which it has been promised, there arises
the duty of protection, and, with it, the
power." [598] What was said in these
cases has been repeated and applied in many
others.i
Of course, when the Indians are prepared
to exercise the privileges and bear the bur-
dens of one 8u% juris, the tribal relation may
be dissolved and the national guardianship
brought to an end; but it rests with Con-
gress to determine when and how this shall
be done, and whether the emancipation
shall at first be complete or only partial.
CitUeenship is not incompatible with tribal i
existence or continued guardianship, and
BO may be conferred without completely
emancipating the Indians, or placing them
beyond the reach of congressional regu-
lations adopted for their protection.' Thus,
in United States v. HoUiday, a prosecution
for selling spiritous liquor to a tribal In-
dian in Michigan when not on a reserva-
tion, the contention that he had become a
citizen was dismissed as "immaterial;" in
Hallowell v. United States, a prosecution
for talcing whisky upon an allotment held
by a tribal Indian in Nebraska, the fact
that he had been made a citizen was held
not to take the case out of the congres-
sional power or regulation; and in United
States V. Sandoval, a prosecution for in-
troducing intoxicating liquors into an In-
dian pueblo in New Mexico, it was held that
whether tlie Indians [599] of the pueblo
were citizens need not be considered, be-
cause that would not take from Congress
the power to prohibit the introduction of
such liquors among them.
The ultimate question, then, is whether
§ 6 of the act of 1887 — ^the section as origi-
nally enacted — ^was intended to dissolve the
tribal relation and terminate the national
guardianship upon the making of the allot-
ments and the issue of the trust patents,
without waiting for the expiration of the
trust period. According to a familiar rule,
legislation affecting the Indians is to be
construed in their interest, and a purpose
to make a radical departure is not lightly
to be inferred. Upon examining the whole
act, as must be done, it seems certain that
the dissolution of the tribal relation was in
contemplation; but that this was not to
occur when the allotments were completed
and the trust patents issued is made very
plain. To illustrate: Section 5 expressly
authorizes negotiations with the tribe, ei-
ther before or after the allotments are com-
pleted, for the purchase of so much of the
surplus lands "as such tribe shall, from
1 United States v. Forty-three Gallons of
Whiskey (United States v. Larivisre) 93
U. S. 188, 23 L. ed. 846; Dick ▼. United
States, 208 U. S. 340, 52 L. ed. 520, 28
Sup. Ct. Rep. 300; United States v. Sut-
ton, 215 U. S. 291, 54 L. ed. 200, 30 Sup.
Ct. Rep. 116; Hallowell v. United States,
221 U. S. 317, 65 L. ed. 750. 31 Sup. Ct.
Rep. 587; Ex parte Webb, 225 U. S. C63,
56 L. ed. 1248, 32 Sup. Ct. Rep. 769 ; United
States V. Wright, 229 U. S. 226, 57 L. ed.
1160, 33 Sup. Ct. Rep. 630; United States
V. Sandoval, 231 U. 8. 28, 58 h. ed. 107,
34 Sup. Ct. Rep. 1; United States v. Peli-
can, 232 U. S. 442, 58 L. ed. 676, 34 Sup.
Ct. Rep. 396; Perrin v. United States, 232
U. 8. 478, 58 L. ed. 691, 34 Sup. Ct. Rep.
387; Johnson v. Gearlds, 234 U. S. 422, 58
L. ed. 1383, 34 Sup. Ct. Rep. 794; Joplin
Mercantile Co. v. United States, 236 U. S.i
40 li. ed.
531, 545, 59 L. ed. 705, 711, 35 Sup. Ct.
Rep. 291.
« United States v. HoUiday, 3 Wall. 407,
18 L. ed. 182; Cherokee Nation v. Hitchcock,
187 U. S. 294, 308, 47 L. ed. 183, 188, 23
Sup. Ct. Rep.' 115; United States v. Rickert,
188 U. S. 432, 445, 57 L. ed. 532, 539, 23
Sup. Ct. Rep. 478; United States ▼. Celes-
tine, 215 U. S. 278. 54 L. ed. 195, 30 Sup.
Ct. Rep. 93; Marchie Tiger v. Western In-
vest. Co. 221 U S. 286, 311-316, 55 L. ed.
738, 747-749, 31 Sup. Ct. Rep. 578; HaUo-
wcll V. United States, 221 U. S. 317, 324,
65 L. ed. 760, 753, 31 Sup. Ct. Rep. 587;
United States v. Sandoval, 231 U. S. 28, 48,
58 L. ed. 107, 114, 34 Sup. Ct. Rep. 1; Eells
V. Ross, 12 C. C. A. 205, 29 U. 8. App. 59,
64 Fed. 417; Farrell v. United States, 49
C. C. A. 183, 110 Fed. 042; Mulligan v.
United States, 56 C. C. A. 50, 120 Fed. 98.
1195
MM02
SUPREME COURT OF THE UNITED STATES.
Oct. ToMy
time to tiflie, eoiiMnt to sell; " directs that
the pnrehmse mmuj be lidd in the Treas-
VLTj "for the sole use of the tribe;" and
requires that the same, with the interest
thereon, ''shall be at sll times sobject to
appropriation by Congress for the education
and dyilization of such tribe ... or
the members thereof.** This provision for
holding and using these proceeds, like that
withholding the title to the allotted lands
for twenty-five years, and rendering them
inalienable during that period, makes
strongly against the daim that the na-
tional guardianship was to be presently
terminated. The two together show that
the government was retaining control of
the property of these Indians, and the one
relating to the use by Congress of their
moneys in their "education and civiliza-
tion" implies the retention of a control
reaching far beyond their property.
As pointing to a different intention, re-
liance is had [600] upon the provision that
when the allotments are completed and the
trust patents issued the allottees "shall
have the benefit of and be subject to the
laws, both civil and criminal, of the state"
of their residence. But what laws was this
provisicm intended to embrace T Was it all
the laws of the state, or only such as could
be applied to tribal Indians consistently
with the Constitution and the legislation
of Congress T The words, although general,
must be read in the light of the act as a
whole, and with due regard to the situa-
tion in which they were to be applied.
That they were to be taken with some im-
plied limitations, and not literally, is ob-
vious. The act made each allottee incapable
during the trust period of making any
lease or conveyance of the allotted land,
or any contract touching the same, and,
of course, there was no intention that this
should be affected by the laws of the state.
The act also disclosed in an unmistakable
way that the education and civilization of
the allottees and their children were to be
under the direction of Congress, and plain-
ly the laws of the state were not to have
any bearing upon the execution of any di-
rection Congress might give in this matter.
The Constitution invested Congress with
power to regulate traffic in intoxicating
liquors with the Indian tribes, meaning
with the individuals composing them. That
was a continuing power of which Congress
could not devest itself. It could be exerted
at any time and in various forms during
the continuance of the tribal relation, and
clearly there was no purpose to lay any
obstacle in the way of enforcing the exist-
ing congressional regulations upon this sub-
ject, or of adopting and enforcing new ones,
if deemed advisable.
The act of 1887 came under consideration
1196
in United States v. Rickert, 188 U. S. 432,
47 L. ed. 532, 23 Sup. Ct. Rep. 478, a case
involving the power of the state of South
Dakota to tax allottees under that act, ac-
cording to the laws of the state, upon their
allotments, the permanent improvements
thereon, and the [601] horses, cattle, and
other personal property issued to them by
the United States and used on their allot-
ments, and this court, after reviewing the
provisions of the act, and saying: ''These
Indians are yet wards of the nation, in a
condition of pupilage or dependency, and
I have not been discharged from that condi-
tion," held that the state was without
power to tax the lands and other property^
because the same were being held and used
in carrying out a policy of the govemmoit
in respect of its dependent wards, and that
the United States had such an interest in
the controversy as entitled it to maintain
a bill to restrain the collection of the
taxes.
In addition to the fact that both acts —
the general one of 1887 and the special one
of 1889— disclose that the tribal relation
and the wardship of the Indians were not
to be disturbed by the allotments and trust
patents, we find that both Congress and the
administrative officers of the goverrment
have proceeded upon that theory. This is
shown in a long series of appropriation and
other acts, and in the annual reports of the
Indian Office.
As, therefore, these allottees remain
tribal Indians and under national guardian-
ship, the power of Congress to regulate or
prohibit the sale of intoxicating liquor to
them, as is done by the act of 1807, is not
debatable.
We recognize that a different construc-
tion was placed upon § 6 of the act of 1887
in Re Heff, 197 U. S. 488, 49 L. ed. 848,
26 Sup. Ct. Rep. 506, but, after re-examin-
ing the question in the light of other pro-
visions in the act, and of many later enact-
ments, clearly reflecting what was intended
by Congress, we are constrained to hold
that the decision in that case is not well
grounded, and it is accordingly overruled.
Judgment reversed.
[602] UNITED STATES, Plff. in Err.,
V.
DENNIS QUIVER.
(See S. C. Reporter's ed. 602-606.)
Federal courts — Jurisdiction — crimo'
on Indian reservation — adultery.
Adultery committed by an Indian
Note. — On jurisdiction to punish crimea
committed by or against Indians — see notes
to State V. Campbell, 21 L.R.A. 169, and
Kitto ▼. State, L.R.A.1915F, 587.
241 U. S.
1016.
UNITBD STATE8 t. QUIVEB.
603
with another Indian on an Indian reserva-
tion cannot be regarded as punishable un-
der U. S. Penal Code, § 316 (Comp. Stat.
1013, § 10,489), in view of the failure of
that section to refer in terms to Indians,
and of the express enumeration in §§ 328,
320 (Comp. Stat. 1913, §§ 10,502, 10,503),
of certain other crimes as offenses against
the United States when committed on In-
dian reservations; nor is a different con-
clusion demanded on the theory that adul-
tery is not an offense "by one Indian
against the person or property of another
Indian," within the meaning of the provi-
sions of U. S. Rev. Stat. § 2146, Comp.
Stat. 1913, § 4149, excepting such offenses
from the operation of § 2145 (Comp. Stat.
1913, § 4148), by which the general crimi-
nal laws of the United States were ex-
tended to the Indian country.
[For other cases, see Courts, 1454-1471, in
Digest Sup. Ct. 1908.]
[No. 682.]
Submitted Fcbruarv 28, 1916. Decided June
12, 1916.
IN ERROR to the District Court of the
United States for the District of South
Dakota to review a judgment sustaining a
demurrer to and dismissing an indictment
for adultery committed by one Indian with
another Indian on an Indian reservation.
Affirmed, i
The facts are stated in the opinion.
Assistant Attorney General Warren sub-
mitted the cause for plaintiff in error:
Adultery is not an offense against the
person or property of any person.
Bassett v. United States, 137 U. S. 496,
34 L. ed. 702, 11 Sup. Ct. Rep. 165; Re
Mayfield, 141 U. S. 107, 35 L. ed. 635, 11
Sup. Ct. Rep. 939.
The enactment of the statutes incorpo-
rated in §§ 328 and 329 of the Criminal
Code (35 Stat, at Ia.1151, chap. 321, Comp.
Laws 1913, S§ 10,502, 10,503), neither ex-
pressly nor impliedly repealed or super-
seded the provisions of U. S. Rev. Stat. %
2145, Comp. SUt. 1913, § 4148.
Donnelly v. United States, 228 U. 8. 243,
57 L. ed. 820, 33 Sup. Ct. Rep. 449, Ann.
Cas. 1913E, 710.
The enabling act of the state of South
Dakota in nowise supersedes U. S. Rev.
Stat. § 2145, so far as an offense commit-
ted by Indians upon Indian reservations
within that state is involved.
United States v. Pelican, 282 U. 8. 442,
445, 58 L. ed. 676, 677, 34 Sup. Ct. Rep.
896.
1 Leave mnted to present a petition for
rehearing herein within sixty days if coun-
sel are so advised, on motion of Solicitor
General Davis for the United States.
June 12, 1916.
60 Ii. ed.
And S 329 of the Penal Code was enacted
in order to broaden the scope of jurisdic-
ti<Hi of the United States district court for
the district of South Dakota, and not to
repeal the jurisdiction it already had under
U. S. Rev. Stat. § 2145.
Hollister ▼. United States, 76 C. C. A.
337, 145 Fed. 777; United States v. Mc-
Bratney, 104 U. S. 621, 26 K ed. 869;
Draper v. United SUtes, 164 U. 8. 240, 41
L. ed. 419, 17 Sup. Ct. Rep. 107; Donnelly
V. United States, 228 U. S. 243, 57 L. ed.
820, 33 Sup. Ct. Rep. 449, Ann. Cas. 1913E,
710; United States v. Ewing, 47 Fed. 809.
Messrs. George A. Jeffers and Albert
G. Granger submitted the cause for de-
fendant in error:
It has been the policy of Congress, since
the organization of the government, to give
to the courts of the United States only such
limited jurisdiction as has been conferred
upon them, from time to time, by the acts
of Congress.
United States v. Hudson, 7 Cranch, 32,
3 L. ed. 260; Re Wilson, 140 U. S. 576,
578, 35 L. ed. 513, 514, 11 Sup. Ct. Rep.
870; United States v. Kagama, 118 U. S.
375, 30 L. ed. 228, 6 Sup. Ct. Rep. 1109.
Adultery between Indians on an Indian
reservation in the state of South Dakota is
not such a crime as was contemplated by
the acts of Congress.
Ex parte Crow Dog (Ex parte Kang-Gi-
Shun-Ca) 109 U. S. 556, 27 L. ed. 1030, 3
Sup. Ct. Rep. 306; Donnelly v. United
States, 228 U. S. 243, 57 L. ed. 820, 33 Sup.
Ct. Rep. 449, Ann. Cas. 1913E, 710; Re
Gon-shay-ee, 130 U. S. 343, 351, 32 L. ed
973, 976, 9 Sup. Ct. Rep. 542; State v.
Mimrod, 30 S. D. 239, 138 N. W. 377 ; State
V. Campbell, 53 Minn. 354, 21 L.R.A. 169,
55 N. W. 553; State v. George, '39 Or. 127,
65 Pac. 604; Re Blackbird, 109 Fed. 139;
People ex rel. Cusick ▼. Daly, 212 N. Y.
183, 105 N. E. 1048, Ann. Caa. 1915D, 367 ;
Ex parte Hart, 157 Fed. 130; Re Mayfield,
141 U. S. 107, 35 L. ed. 635, 11 Sup. Ct.
Rep. 939; United States v. King, 81 Fed.
625.
If there is any doubt as to whether or not
adultery between Indians on an Indian
reservation in the state of South Dakota
constitutes a crime, that doubt should be
resolved in favor of the defendant.
United States v. Brewer, 139 U. 8. 278,
286, 35 L. ed. 190, 193, 11 Sup. Ct. Rep.
538; Ex parte Webb, 226 U. 8. 663, 56 K
ed. 1248, 32 Sup. Ct. Rep. 769; State v.
George, 39 Or. 127, 65 Pao. 604.
Mr. Justice Tan DeTMiter delivered the
opinion of the court:
This is a prosecution for adultery com-
mitted on one of the Sioux Indian Be*
603^606
SUPREME CX)URT OF THE UNITED STATEa
Oct. TlcBX,
tions in the state of South Dakota. Both
participants in the act were Indians be-
longing to that reservation. The statute
upon which the prosecution is founded was
originally adopted as part of the act of
March 3, 1887 (chap. 397, 24 Stat, at L.
636), and is now f 316 of the Penal Code
[35 Stat, at L, 1149, chap. 321, Comp.
Stat. 1913, § 10,489]. The section makes
no mention of Indians, and the question for
decision is whether it embraces adultery
committed by one Indian with another
Indian, on an Indian reservation. The dis-
trict court answered the question in the
negative.
At an early period it became the settled
policy of Congress [604] to permit the per-
sonal and domestic relations of the Indians
with each other to be regulated, and offenses
by one Indian against the person or prop-
erty of another Indian to be dealt with, ac-
cording to their tribal customs and laws.
Thus the Indian intercourse acts of 1796
(chap. 30, 1 Stat, at L. 469), and 1802
(chap. 13, 2 Stat, at L. 139), provided for
the punishment of various offenses by white
persons against Indians, and by Indians
against white persons, but left tmtouched
those by Indians against each other; and
the act of 1834 (chap. 161, 4 Stat, at L.
729, Comp. Stat. 1913, § 4148), while pro-
viding that "so much of the laws of the
United States as provides for the pimish-
ment of crimes committed within any place
within the sole and exclusive jurisdiction of
the United States shall be in force in the
Indian coimtry," qualified its action by say-
ing, "the same shall not extend to crimes
committed by one Indian against the person
or property of another Indian." That pro-
vision with its qualification was later
carried into the Revised Statutes as SS
2145 and 2146, Comp. Stat. 1913, SS 4148,
4149. This was the situation when this
court, in Ex parte Crow Dog (Ex parte
Kang-6i-Shun-Ca) 109 U. S. 556, 27 L. ed.
1030, 3 Sup. Ct. Rep. 396, held that the
murder of an Indian by another Indian,
<m an Indian reservation, was not punish-
able under the laws of tiio United States,
and could be dealt with only according to
the laws of the tribe. The first change
came when, by the act of March 3, 1885
(chap. 341, 8 9> 23 Stat, at L. 385, Comp.
Stat. 1€18, § 10,502), now 8 328 of the
Penal Code, Congress provided for the pun-
ishment of murder, manslaughter, rape,
assault with intent to kill, assault with a
uangerous weapon, arson, burglary, and
larceny, when committed by one Indian
against the person or property of another
Indian. In other respects the policy re-
mained as before. After South Dakota be-
came a stateb Congress, acting upon a
1198
partial cession of jurisdietion by that state
(chap. 106, Laws 1901), provided by the
act of February 2, 1903, (chap. 351, 32
Stat, at L. 793, Comp. Stat 1913, f 10,603),
now 8 329 of the Penal Code, for the pun-
ishment of the particular offenses uanied
in the act of 1885 when [605] committed
on the Indian resorations in that state,
even thou^ committed by others than In-
dians; but this is without bearing here, for
it left the situation in respect of offenses by
one Indian agamst the person or property
of another Indian as it was after the act
of 1885.
We have now referred to all the statutes.
There is none dealing with bigamy, polyg-
amy, incest, adultery, or fornication,
which in terms refers to IndianL, these
matters always having been left to the
tribal customs and laws, and to such pre-
ventive and corrective measures as reason-
ably could be taken by the administrative
officers.
But counsel for the government ir.vite
attention to the letter of the statute, and
urge that adultery is not /*n offense **by
one Indian against the person or property
of another Indian," and therefore is not
within the exception in S 2146 of the Re-
vised Statutes (Comp. Stat. 1913, S 4149).
It is true that adultery is a voluntary act
on the part of both participants, and,
strictly speaking, not an offense against the
person of either. But are the words of the
exception to be taken so strictly T Murder
and manslaughter are concededly offenses
against the person, and much more serious
than is adultery. Was it intended that a
prosecution should lie for adultery, but
not for murder or manslaughter T Rape
also is concededly an offense against the
person, and is generally regarded as among
the most heinous, so much so that death
is often prescribed as the punishment. Was
it intended that a prosecution should lie
for adultery, where the woman's participa-
tion is voluntary, but not for rape, where
she is subjected to the same act forcibly
and against her willT Is it not obvious
that the words of the exception are used in
a sense which is more consonant with rea-
son T And are they not intended to be in
accord with the policy reflected by the
legislation of Congress and its administra-
tion for many years, that the relations of
the Indians among themselves — ^the conduct
of one toward another — is to be controlled
by the customs and laws of [606] the tribe,
save when Congress expressly or clearly
directs otherwise T In our opinion this is
the true view. The other would subject
them not only to the statute relating to
adultery, but also to many others whidi it
seems most reasonable to believe were not
14 1 U. 8.
IMS. ABBOTT t. BROWN. tOft
tnteoded by Congreai to b« applied to than. eb«rc^g him with iubomatlon of perjuiy
One of these prohiblta nuiTia^ between hj the persona who made affldavite in sup-
persons related within, and not tnclndins PO"^ "' the motion for the new trial, where
the fourth degreo of consanpiinlty, com- "ch damnrrer and "notion to qaash wera
pnted aeoording to U.e rules of toe eivil^w, ^r1l^rwf^^n:' I'^itj ^X'S
ud affixes a punishment of not nwia than ^ ^i^ ^^ji^^ „l,i^l,_ though true in
fifteen years' impriaonment for each vioU- fact, the court held in effect not to be well
tor. To justify a court in holding that founded in law, proceeding to auatain the
thsM lawB. are to be applied to Indiana, demurrer and quash the indictment on an-
there ehould be some clear proviiion to other groond, and one not taken by him,
that effect. CerUinly that U not so now. ^■. '*"* » previous adjournment order had
Beaidea, the enumeration in the arte of ?£?^^„^ *^* Jfff? ^ ' Xl"'?"-,,
188S and 1903, now li 32S and 329 of the '%m^lup.'ct! iwl?) "^
Penal Code, of certain offenses aa applicable
to Indiana in the reservations, carries with l^°- ^^^-l
it aome implication of a purpose to exclude
Judgment afllrmed.
Estopticl, III.
A-,
I PPEALfrom the District Court of the
. United States for the Southern Distrii^
JAMES J. ABBOTT. Appt.. °' Florida to review an order dUcharging a
^ ' '^'^ ' writ of habeas corpus. Reversed and cause
JAMES C. SHOWN, United SUtea Marshal "'r^.ttl";™".'^^',, TJ^.'^ZIlL
In and for the Southern District of The facts are stated in the opinion.
Florida. Mr. Charlea B. Parkblll argued the
cause and Bled a brief for appellant:
(See S. 0. Reporters ed. 606-613.) Every term continues until the call of the
next succeeding term, unless previously ad-
journed aine die; aiid until that time the
- delay In fll-
1. A breach of ■ court rule requiring judgment may be modified or stricken out.
notions for new trials to be made within Noonan v. Bradley, 12 Wall. 12B, 20 L.
four days after the entry of tiie verdict ed. 291; Rex v. Juaticea of Oxfordshire, 1
would, at the utmost, be a mere error of Maule A S. 442; Ex parte Friday, 43 Fed.
procedure, not affecting the jurisdiction. gig. 8 Am. Grim. Ren. 361 ; Ex parte Lanec.
(For other cnspi, aee 'ttlal. V. a. In Digest ,- ro.ii loo oi T Lq aec
Sup. Lt. 1B08.1 IB Wall. 1U2, Kl i.. ed. aoo.
Federal courts — term — keeping aUve Th« appellant's motion for a new trial
during absents of Judge. was acted upon and granted in term time,
2. A term of the Federal district court at a lawful t«rm of the United States dis-
for the southern district of Florida, which, trict eourt for the southern district of
under the Judicial Code, §§ 8-11, 76, must Florida
«?;K'^H°Pr"/i^'"*°'i'*''°"""?""' Florida v. Charlotte Harbor Phosphate
equity, and may hold special terms at any rv, it r- n i j7o in tt o *^„ ma Tit
time for the transaction of any kind of ^- 1? C- C. A. 472, 30 U. 8. App. 535, 70
bosincEB, was not brought to an end, so far ^™- "^6; East Tennessee Iron k Coal Co.
as criminal business was concerned, so as to '■ Wiggin, IS C. C. A. 510, 37 U. S. App
prevent the subsequent granting of a new 139, 68 Fed. 446; United States v. Finuell,.
trial, by an adjournment "in accordance 186 U. 8. 236, 242, 46 L. ed. 890, 8B2, 22
with" a apecifled court rule which, after Sup. ct Rep. 633; United States v. Pit-
referrmg to the legal requirement that the „„ 147 „_ g_ gflg gy„ 37 L. ed. 324, 326,-
court be always open for the transaction of ,_ o n. n .i,^ rr -rt ■ 1 .a
certain kinds of bSlineaa, ordera that, pend- J? ^"P, ?*■ ?IP- *f = ^T," I" ^°"'^„"^
ing the temporary ahsen^ of the judg^ the "■ S- B46, 87 1^ ed. 438, 13 Sup. a. Rep.
clerk be present dally for the transaction of B82; Harlan v. McGourm. 218 U. S. 442,
buainesB under the ordera of the judge, and 54 L. ed. 1101, 81 Sup. Ct. Rep. 44, 21 Ann.
that, upon such days as there Is buaineaa Cas, 849; United States v. McCarthy, 18
to be traneacted, the court be open and a Fed. 87; United States v. Radford, 131 Fed.
record of the same be entered upon the ^g. Harriaon v. German- American F. Ins.
ri-or"7S;er cases, see Courts. 807-314; New °^ ^J^'''^^- P""J" '• Hathaway, 40
Trial. VI. a. in Digest Bop. C[. IBOS.l * Me. 132; Bronaon v. Bchulten. 104 U. B.
Estoppel — aasiimlng Inconsistent posi- 410, 26 L. ed. 797; Duff v, Fisher, 16 Cal.
tlona In Judicial proceeding!. _—
3. A person acquitted of crime on a new 1 Leave granted to present petition for
trial granted after conviction ia not es- rehearing herein within sixty d»e If coun-
topped to assert the jurisdiction of the sel are ao advised, oa motion of Mr. Solicitor
court to grant such new trial by demurring Qeneral Davis tor the United States.
to, and moving to qnaah. an indictment June 12, 1910-
«0 I/, ed. lltt
607, 608
SUPREME COURT OF THE UNITED STATEa
Oct. Tebm,
375; State ex rel. Brainerd ▼. AdaniA, 84
Mo. 315; De Vail v. De Vail, 60 Or. 493, 40
L.R.A.(N.S.) 291, 118 Pac. 843, 120 Pac.
13, Ann. Cas. 1914A, 412; Ex parte Lange,
18 Wall. 192, 21 L. ed. 884; Ex parte Fri-
day, 43 Fed. 916, 8 Am. Grim. Rep. 351.
Even though the motion was made more
than four days after the rendition of the
verdict, and was required by the rule to be
made within four days, yet the court may
treat the motion for a new trial, filed out
of time, as a suggestion invoking the exer-
cise of judicial discretion.
Scott V. Joffee, 125 Mo. 673, 102 S. W.
1039; Emma Silver Min. Co. v. Park, 14
Blatchf. 411, Fed. Cas. No. 4,467; Rex v.
Teal, 11 East, 307, 10 Revised Rep. 516;
Reg. V. Newman, 3 Car. & K. 252, Dears. C.
C. 88, 1 El. & Bl. 268, 17 Jur. 617, 22 L.
J. Q. B. N. S. 156; Reg. v. Hetherington,
5 Jur. 529.
An estoppel may not be raised in crimi-
nal cases. It has no application to crimi-
nal causes. The accused may show the
actual state of facts, notwithstanding what
he may have said or done.
Hughes, Crim. Law & Proc. §§ 537, 3185;
Gillett, Indirect & Collateral Ev. § 119;
State V. Hutchinson, 60 Iowa, 478, 15 N. W.
298, 4 Am. Crim. Rep. 162; Jackson v. Peo-
ple, 126 111. 144, 18 N. E. 286; Moore v.
State, 53 Neb. 831, 74 N. W. 319; Bailey v.
State, 57 Neb. 710, 73 Am. St. Rep. 540, 78
N. W. 284, 11 Am. Crim. Rep. 660.
Assistant Attorney Ceneral Wallace ar-
gued the cause and filed a brief for appel-
lee:
The district court was without power to
entertain the second motion for a new trial.
Its order, therefore, and the second retrial
and apparent acquittal, were each and all
mere nullities.
United States v. Mayer, 235 U. S. 65, 67,
59 L. ed. 129, 135, 35 Sup. Ct. Rep. 16.
The appellant is estopped to assert that
there was not a final adjournment of the
court, and that the motion for a new trial
was not made after such final adjournment.
2 Co. Inst. p. 39; People v. Royce, 106
Cal. 187, 37 Pac. 630, 39 Pac. 524; State
V. Spaulding, 24 Kan. 1; State v. O'Brien,
94 Tenn. 79, 26 L.R.A. 252, 28 S. W. 311;
State ex rel. Clark v. District Ct. 31 Mont.
428, 78 Pac. 769, 3 Ann. Cas. 841 ; Bigelow,
Estoppel, 6th ed. pp. 783, 785; Davis v.
Wakelee, 156 U. S. 680, 691, 39 L. ed. 578,
586, 15 Sup. Ct. Rep. 555; Abbot v. Wilbur,
22 La. Ann. 368; Davis v. Cornwall, 15 C.
C. A. 559, 26 U. S. App. 777, 35 U. S. App.
315, 68 Fed. 522; Michels v. Olmstead, 157
U. S. 198, 39 L. ed. 671, 15 Sup. Ct. Rep.
580; Hughes v. Dundee Mortg. &, Trust
Invest. Co. 28 Fed. 46; The New York, 51
1200
C. C. A. 482, 113 Fed. 810; Long v. Lock-
man, 135 Fed. 197 ; Nixon v. Fidelity & D.
Co. 80 a C. A. 336, 150 Fed. 576; Smith
V. Warden, 19 Pa. 429; Taylor v. Crook, 136
Ala. 378, 96 Am. St Rep. 26, 34 So. 905;
Boatmen's Banl^ v. Fritzlen, 75 Kan. 490, 22
L.ILA.(N.S.) 1235, 89 Pac 915; Test v.
Larsh, 76 Ind. 460; Harbaugh v. Albertson,
102 Ind. 75, 1 N. £. 298; Kile v. YeUow-
head, 80 111. 211; Denver City Irrig. k
Water Co. v. Middaugh, 12 Colo. 436, 13
Am. St. Rep. 234, 21 Pac. 565; Arthur v.
Israel, 15 Colo. 153, 10 L.RJI. 693, 22 Am.
St. Rep. 381, 25 Pac. 81; Ellis v. White, 61
Iowa, 646, 17 N. W. 28; De Metton v. De-
Mello, 12 East, 234, 2 Campb. 420; Daniels
V. Tearney, 102 U. S. 415, 419, 421, 26 L
/ed. 187-189.
Mr. Justice Pitney delivered the opinion
of the court:
This is an appeal from a final order dis-
charging a writ of habeas corpus and re-
manding appellant to the custody of the
United States marshal. The facts are as fol-
lows : Appellant was indicted in the United
States district court for the southern dis-
trict of Florida, at Tampa, [608] for a vio-
lation of a section of the Criminal Code, and
in the month of March, 1912, was tried and
found guilty. On the 12th day of the same
month he was sentenced to confinement in
the penitentiary at Atlanta for the term of
one year and six months. On the same day,
and after passing the sentence, the court
entered the following order : '"Ordered that
court be adjourned in accordance with gen-
eral rule No. 1, and all orders and other
matters be entered as of the term. There-
upon court is adjourned as ordered.'' After
the entry of this order. Judge Locke, the
district judge, went to Jacksonville, in the
same district, and the deputy clerk noted on
the minutes from day to day that court was
open in accordance with general rule No. 1,
after which he entered orders made from
time to time by the court in vacation. On
May 24, 1912, appellant filed a motion for a
new trial upon the ground of newly disco?-
ered evidence, with several siffidavits in sup-
port of it. On June 26 Judge Locke, at
Jacksonville, granted this motion, and made
a proper order, pursuant to which appellant
was brought to trial on February 11, 1913,
when the jury disagreed. He was sigain
tried on March 13, 1914, and the jury re-
turned a verdict of not guilty. Thereafter,
add in February, 1915, the persons who had
made the affidavits in support of the motion
for a new trial were indicted for perjury,
and appellant was indicted for subornation
of perjury. Appellant demurred to this in-
dictment and moved to quash it upon the
ground that Judge Locke had no jurisdie-
S41 V. 8.
1915.
ABBOTT V. BROWN.
808-611
tion to grant a new trial because the mo-
tion was not filed within four days after
the verdict. The demurrer and motion to
quash were heard by the then presiding
judge, who sustained the demurrer and
quashed the indictment upon the ground
that Judge Locke had no power or author-
ity, after the making of the adjournment
order of March 12, 1912, to vacate or set
aside the sentence passed upon appellant on
that date.
[609] Thereafter, and on March 20, 1915,
the government procured a commitment to
be issued upon the original judgment of con-
viction, and it is under this writ that ap-
pellant is now held in custody.
Two questions arise: (1) Were the or-
der for a new trial, and the trial proceed-
ings had thereunder, null and void? (2)
If not, should they nevertheless be so re-
garded as against appellant, because of
what he did in obtaining the quashing of
the indictment for subornation of perjury?
Under the first head, counsel for appellee
cites a rule of the district court, reading
thus: ''Motions for new trials shall be
made within four days after the entry of
the verdict, during which time no judgment
shall be entered, except by leave of court,"
etc. We find in the record no evidence that
there was such a rule; but, assuming we
may take judicial notfce of its existence,
it was a mere regulation of practice, and a
breach of it would be, at the utmost, a
mere error of procedure, not affecting the
jurisdiction.*
The principal insistence, and the ground
upon which the court rested the decision
that is now under review, is that the ad-
journment order of March 12 brought the
term to an end, so far as criminal business
was concerned, and left the court without
jurisdiction to entertain the motion of May
24, or grant a new trial thereon, because a
court of law cannot set aside or alter its
final judgment after the expiration of the
term at which it was rendered, except pur-
suant to an application made within the
term. United States v. Mayer, 235 U. S.
55, 67, 59 L. ed. 129, 135, 35 Sup. Ct. Rep.
16.
The order of March 12 must be read in
connection with the general rule to which
it refers, and this must be interpreted in
the light of the law regulating the terms and
the business of the court. General rule No.
1 ia as follows:
''The law requiring the court to be always
open for the transaction of certain kinds of
business which may be [610] transacted
under the statutes, and under the orders
of the judge, who may at the time be ab-
sent from the place in which the court is
held, and which business can be transacted
60 Ij* ed.
by the clerk under the orders of the judge,
and is transacted from day to day in the
court, it is ordered that, pending the tem-
porary absence of the presiding judge of
this district from the district, or the divi-
sion of the district in which business is pre-
sented to be transacted, the clerk be pres-
ent, either by himself or his deputy, daily,
for the transaction of business, and upon
such days as there is business to be trans-
'acted the court be opened, and that a record
of the same be entered upon each of said
days upon the minutes."
The provisions of law referred to are to
be found in the Judicial Code (act of March
3, 1911, chap. 231, 36 SUt. at L. 1087,
Comp. Stat. 1913, § 1061), of which § 76
divides the state of Florida into two dis-
tricts, northern and southern, and provides:
"Terms of the district court for the south-
em district shall be held at Ocala on the
third Monday in January; at Tampa on
the second Monday in February; at Key
West on the first Mondays in May and No-
vember; at Jacksonville on the first Mon-
day in December; at Femandina on the
first Monday in April; and at Miami on
the fourth Monday in April. The district
court for the southern district shall be open
at all times for the purpose of hearing and
deciding causes of admiralty and maritime
jurisdiction."
Other sections to be considered are : Sec.
9 (§§ 574 and 638, Rev. Stat.), which de-
clares that the district courts, as courts of
admiralty and as courts of equity, shall be
deemed always open for the purpose of filing
pleadings, issuing and returning process,
and making interlocutory motions, orders,
etc., preparatory to the hearing upon the
merits; § 10 (§ 578, Rev. Stat.), requiring
such courts to hold monthly adjournments
of their regular terms for the trial of crimi-
nal causes when the business requires it;
[611] and § 11 (§ 581, Rev. Stat.), which
declares that a special term of the district
court may be held at the same place where
any regular term is held, or at such other
place in the district as the nature of the
business may require, and at such time and
upon such notice as may be ordered by the
district judge, and that any business may be
transacted at such special term which might
be transacted at a regular term.
The provision of § 76, which requires the
district court to be open at all times for
the purpose of hearing and deciding* ad-
miralty causes, traces its origin to the act
of February 23, 1847 (chi^). 20, 9 -Stat, at
\ L. 131, Comp. Stat. 1913, § 1061), which
I established the southern district of Florida,
I evidently for the especial purpose of dis-
I posing of admiralty business; and this par-
ticular provision was carried into the Re-
76 1201
«11-«18
SUPREME COURT OF THE UNITED STATES.
Got. TtMM,
vised Statutes as { 675. It covers the
hearing and deciding of admiralty causes,
while the provision now found in § 9, Ju-
dicial Code (§§ 674 and 638, Rev. Stat.),
which originated in an act of August 23,
1842 (chap. 188, 8 6, 6 Stat, at L. 617,
Comp. SUt. 1913, 8 976), relates to inter-
locutory proceed^gs **pr€^ratory to the
hearing."
The statutory provisions referred to are
designed to render the district courts read-
ily accessible to applicants for justice in
all branches of the jurisdiction; and while
they require those courts to be always open
only as courts of admiralty and as courts of
equity, they permit "special terms" to be
held at any time for the transaction of any
kind of business.
The celebrated remark of Lord Eldon:
'llie court of chancery is always open"
(Temple v. Bank of England, 6 Yes. Jr.
770, 771), evidenced the great adaptability
of the practice of that court to the needs
of litigants; and modem legislation has
shown a strong tendency to reform the prac-
tice of common-law courts by facilitating the
transaction of their business in vaction. The
sections we have quoted from the Judicial
Code indicate a policy of avoiding the hard-
ships consequent upon a closing [618]
of the court during vacations. The general
rule in question was evidently designed to
carry out this policy, and should receive a
liberal interpretation consonant with its
spirit: that is, as keeping the term alive, by
adjournments from day to day, pending the
temporary absence of the presiding judge,
so that court might and should be actually
opened upon such days as there was busi-
ness of any character to be transacted. Thus
interpreted, its effect was not different from
that of the rule which this court, in Harlan
V. McGourin, 218 U. S. 442, 449, 460, 64 L.
ed. 1101, 1105, 1106, 31 Sup. Ct. Rep. 44, 21
Ann. Cas. 849, construed as keeping the
court open from the beginning of one statu-
tory term until the beginning of the next.
Judge Locke so construed the general rule
and the adjournment order nuide under it,
when he entertained and granted the motion
for new trial filed May 24, 1912, and we are
satisfied that he committed no jurisdictional
error in so doing. It is obvious that the
order for a new trial necessarily vacated
the sentence of March 12, 1912, and that
the subsequent acquittal of appellant ex-
hausted the power of the court under the
first indictment.
Nor is appellant, in our opinion, estopped
to assert the jurisdiction of Judge Locke
to entertain the motion for a new trial.
The estoppel is sought to be based upon the
position he is said to have taken in de-
murring to and moving to quash the indict-
1202
ment for subornation of perjury. The ree-
ord shows, however, that the demurrer and
motion were based upon the ground that
the motion for new trial was not filed with-
in four days after verdict. This was true
in fact, but the court in effect held it not
well founded in law; for it proceeded to
sustain the demurrer and quash the indict-
ment u^n another ground, and one not
taken by appellant,' tnar., that the adjourn-
ment order of March 12, 1912, brought the
term to a conclusion and deprived Judge
Locke of power to set aside the final judg-
ment and sentence passed upon appellant
[613] on that day. The fundamental
ground of an estoppel is wanting, and we
need not weigh other considerations that
might operate against it.
The judgment of conviction having been
vacated by an order of the court, made
within the scope of its power and jurisdic-
tion, there remains no legal foundation for
the commitment issued on March 20, 1915,
and appellant is entitled to be discharged
from custody.
Final order reversed, and the cause re-
manded for further proceedings in con-
formity with this opinion.
Mr. Justice McReynolds took no part in
the consideration or decision of this case.
MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK, Petitioner,
V.
L. HILTON-GREEN and W. A. FinUy, Jr.,
as Executors of the Estate of C. L. Wig-
gins, Deceased.
(See S. C. Reporter's ed. 613-624.)
Insuranoe — false repreBentatlons —
fraudulent intent.
1. Material incorrect representations
in the application for a policy of life in-
surance, which is made an essential con-
stituent of the policy, if known to be un-
true by the assured when made, invalidate
the policy without further proof of actual,
conscious design to defraud.
LFor other cases, see Insurance, V. a, 4, In Di-
gest Sup. Ct. 1008.]
Notice — imputed — knowledge of agent.
2. The rule which imputes an agent's
knowledge to the principal does not apply
Note. — On effect of knowledge by insur-
ance agent of falsity of statement in ap-
plication— see note to Clemans v. Supreme
Assembly, R. S. G. F. 16 LJLA. 33.
On bad faith of insured as affecting
estoppel of insurer to set up falsity of
answers in application because of agenfs
knowledge of such falsity — see note to
Mudge V. Supreme Ct. L 0. F. 14 LJU.
' (N.S.) 279.
241 V. S.
1016. MUTUAL L. INS. CO. t. BILTON-QREEN.
when the third party was ae<^uainted with I in regard to matters material to the risk,
circumstances plainly indicating that the ' as a matter of law, there cannot be a re-
agent would not advise his principal. covery
^ 8Sp!*Ct"l90^* ■** ^°"'^* "• *• ^'^ ^*''"* ^tna L. Ins. Co. v. Moore, 231 U. S. 643,
Insurance — estoppel — agent's knowl- ^8 L. ed. 356, 34 Sup. Ct. Rep. 186 ; Pru-
edge « fraudulent misrepresenta- dential Ins. Co. v. Moore, 231 U. S. 560, 58
tlons. L. ed. 367, 34 Sup. Ct. Rep. 191; Thomer
3. The designation as agent of an in- v. John Hancock Mut. L. Ins. Co. 164 App.
surance company, made by Florida Gen. piv. 34, 149 K. Y. Supp. 345; Archer v.
Stat. § 2705, of any person who in anywise. Equitable Life Assur. Soc. 169 App. Div.
directly or indirectly, makes or causes to ^ ^ ^ ^ g ^^^ 53 j^ y. L. J.
be made any contract of insurance for or ,_' ' , xt au o* i. ■*# * t t
on account of such insurance company, does J?^ V^^^t'^'L^^I; ^"L"^ ^^*f^^''^ .V.^n
not affect the true relationship to the par- Co. 163 N. C. 367, 48 L.R.A.(N.8.) 714, 79
ties to a life insurance contract of the local S. E. 806, Ann. Cas. 1915B, 652; March v.
manager, soliciting agent, and local medical Metropolitan L. Ins. Co. 186 Pa. 640, 65
examiners, who were in fact designated Am. St. Rep. 887, 40 Atl. 1100; Equitable
agents of the company, with power to bind Life Assur. Soc. ▼. Keiper, 91 C. C. A. 433,
it within their apparent authority, and jgg y^^ 595 Mutual L. Ins. Co. ▼. Mullan,
their knowledge of the falsity and fraudu. ^^^ ^^ ^ ^^ ^^, 3^5 Metropolitan L.
loit character of material representations _ _ t»ui ^,0 tr i^iaiot-da
by the insured in the application, which is ^^^' Co. v. Brubaker, 78 Kan. 146, 18 L.R.A.
made an essential constituent of the policy, (N.S.) 362, 130 Am. St. Rep. 356, 96 Pac.
is not the knowledge of the company, and 62, 16 Ann. Cas. 267; Cobb v. Covenant
does not estop it to rely upon such misrep- Mut. Ben. Asso. 153 Mass. 176, 10 L.R.A.
resentatiohs as a defense to an action on the 606, 26 Am. St. Rep. 619, 26 N. E. 230 ;
policy. Lippincott v. Supreme Council, R. A., 64
^^SI D'iUt'sS^: ^ iSSsT""' """• '• "• •• N. J. L. 310, 45 Atl. 774; Farrell v. Secu-
rity Mut. L. Ins. Co. 60 C. C. A. 374, 125
[No. 126.] Fed. 684: Mutual L. Ins. Co. v. Powell, 133
^ _ , ^ J ,A ,n,r TV. -J J C. C. A. 417* 217 Fed. 566; Life Asso. of
Argued December 9 and 10 1916. Decided ^^^^.^ ^ Edwards, 86 C. C. A. 243, 159
June 12, 1916. p^ gg. Hubbard v. Mutual Reserve Fund
Oxr TtTDTrii ^#0 *; . .; *« ♦u-. TT«u^ Life Asso. 40 C. C. A. 665, 100 Fed. 719;
N WRIT of Certiorari to the United ^ii jj vr v i t t /^ on ^-i n a
a± 4. r*' •* r« * # a^«^-i« *«• Sladdcu V. Ncw York L. Ins. Co. 29 C. C. A.
States Circuit Court of Appeals for ^^- «.« tt o * ^on oi> i? j iaa t> j
*i. T?**i. r«j-^»,-4. ♦^ ™:*— - ;«^«r,«««* 696, 58 U. S. App. 482, 86 Fed. 102; Brady
the Fifth Circuit to review a judgment tt * j t •* t a n n n a oea oa
which affirmed a judgment of the Diatrict Y: United Life InB. Asso. 9 C C A. 252 20
Court for the Northed Diatrict of Florida V' ^.^PPf ^ ^'^ ^'^Jaf ' T ^r' « v"
in favor of plaintiffa in an action upon poli- ^„$*"^ b ^"''- ^- .^^.^ ^^ ^ '"' " ^^
de. of life*^ inmirance. Reveraed and re- f- 398; Foley v. Royal Arc«.um 161 NY.
manded for further proceeding.. J?«' ?f ^"'- ^Ji' ^P- «21. « N. E 456;
o V 1 -. 10T n n A Aa»r 011 McCollum V. Mutual L. Ins. Co. 65 Hun,
See same ca- below, 127 0. C. A. 467. 211 ^^,3 ^ ^^ ^ g^^^ 249. 124 N. Y. 642. 27
'ike fact, are stated in the opinion. N. E. 412 ; Foote v. ^tna L. In j^ Co 61
*^ N. Y. 571 ; Smith v. .£tna L. Ins. Co. 49 N.
Mr. Frederick li. Allen argued the Y. 211; Hoffman v. Metropolitan L. Ins.
cause, and, with Messrs. Emmett Wilson, Co. 141 App. Div. 713, 126 N. Y. Supp. 436;
Philip D. Beall, and Murray Downs, filed Dentz v. O'Neill, 25 Hun, 442; Kasprzyk v.
a brief for petitioner: Metropolitan L. Ins. Co. 79 Misc. 263, 140
N. Y. Supp. 211; Mutual Reserve Fund Life
Asso. V. Cotter, 72 Ark. 620, 83 S. W. 321;
Crosse v. Supreme Lodge, K. L. H. 254 111.
80, 45 L.ILA.(N.S.) 162, 98 N. E. 261;
Royal Neighbors v. Spore, 160 Ky. 572, 169
S. W. 984; Metropolitan L. Ins. Co. v
Schmidt, 29 Ky. L. Rep. 255, 93 S. W.
1055; Aloe v. Mutual Reserve Life Asso.
147 Mo. 561, 49 S. W. 553; Dwyer v. Mu-
tual L. Ins. Co. 72 N. H. 672, 68 Atl. 502 ;
Brunjes v. Metropolitan L. Ins. Co. 83 N.
J. L. 296, 84 Atl. 1062; Bryant v. Metro-
politan L. Ins. Co. 147 N. C. 180, 60 S. E.
983; Van Woert v. Modem Woodmen, 29
N. D. 441, 151 N. W. 224; Beard v. Royal
Neighbors, 53 Or. 102, 19 L.R.A.(N.S.) 798,
99 Pac. 83, 17 Ann. Cas. 1199; Smith v.
60 li. ed. 120S
What the company required of the appli-
cant, as a condition precedent to any bind-
ing contract, was, that he would observe
the utmost good faith towards it, and make
full, direct, and honest answers to a^l
questions, without ^evasion or fraud, and
without suppression, misrepresentation, or
concealment of facts with which the com-
pany ought to be made acquainted; and
that by so doing, and only by so doing,
would he be deemed to have made fair and
true answers.
Moulor V. American L. Ins. Co. Ill U. S.
835, 28 L. ed. 447, 4 Sup. Ct. Rep. 466.
Under the provisions of the policy sued
upon, it having been conclusively estab-
lished that Wiggins made false statements
SUPREME COURT OF THE UNITED STATES.
Oct.
Northwestern Mut. L. Ins. Co. 196 Pa. 314,
46 Atl. 426; Mengel v. Northwestern Mut.
L. Ins. Co. 176 Pa. 280, 35 Atl. 197 ; Fidel-
ity Mut. Life Asso. v. Harris, 94 Tex. 25,
86 Am. St. Rep. 813, 57 S. W. 635.
Wiggins made a false and untrue state-
ment with reference to a matter material
to the risk.
MinA L. Ins. Co. v. Moore, 231 U. S.
543, 58 L. ed. 35G, 34 Sup. Ct. Rep. 186;
Prudential Ins. Co. v. Moore, 231 U. S. 560,
58 L. ed. 367, 34 Sup. Ct. Rep. 191; Phoenix
Mut. L. Ins. Co. V. Raddin, 120 U. S. 183,
30 L. ed. 644, 7 Sup. Ct. Rep. 500; Jeffries
V. Economical Mut. L. Ins. Co. 22 Wall. 47,
22 L. ed. 833; Home L. Ins. Co. v. Myers,
50 C. C. A. 544, 112 Fed. 846; Security Mut.
L. Ins. Co. V. Webb, 55 L.R.A. 122, 45 C. C.
A. 648, 106 Fed. 808; Floyd v. Metropolitan
L. Ins. Co. — Del — , 90 Atl. 404 ; Kelly v.
Life Ins. Clearing Co. 113 Ala. 453, 21 So.
361; Moore v. Mutual Reserve Fund Life
Asso. 133 Mich. 526, 95 N. W. 573; Finn v.
Metropolitan L. Ins. Co. 70 N. J. L. 255, 57
Atl. 438; Edington v. JStna L. Ins. Co. 77
N. Y. 564, 100 N. Y, 536, 3 N. E. 315 ; Mc-
Collum V. Mutual L. Ins. Co. 55 Hun, 103, 8
N. Y. Supp. 249, 124 N. Y. p42, 27 N. E.
412; Stuart v. Mutual Reserve Fund Life
Asso. 78 Hun, 191, 28 N. Y. Supp. 944;
March v. Metropolitan L. Ins. Co. 186 Pa.
629, 65 Am. St. Rep. 887, 40 AtL 1100;
Mutual L. Ins. Co. v. Nichols, — Tex. Civ.
App. — , 24 S. W. 910; American Union L.
Ins. Co. V. Judge, 191 Pa. 484, 43 Atl. 374 ;
Meyer-Bruns v. Pennsylvania Mut. L. Ins.
Co. 189 Pa. 579, 42 Atl. 297; Hardy v.
Phoenix Mut. L. Ins. Co. 167 N. C. 22, 83
S. E. 5.
Wiggins intended to deceive the insurance
company.
Studwell V. Mutual Ben. Life Asso. 29
Jones & S. 287, 19 N. Y. Supp. 709, affirmed
without opinion in 139 N. Y. 615, 35 N. E.
204; Northwestern L. Ins. Co. v. Mont-
gomery, 116 Ga. 799, 43 S. E. 79; Williams
V. St. Louis L. Ins. Co. 97 Mo. App. 449, 71
8. W. 376; Graffam v. Burgess, 117 U. S.
180, 29 L. ed. 839, 6 Sup. Ct. Rep. 686.
Knowledge of an agent will not be im-
puted to his principal where the third
party and agent are committing a fraud
upon the principal.
Eagle Fire Co. v. Lewallen, 56 Fla. 246,
47 So. 947; Florida L. Ins. Co. v. Dillon,
63 Fla. 140, 58 So. 643; Maier y. Fidelity
Mut. Life Asso. 24 C. C. A. 239, 47 U. S.
App. 322, 78 Fed. 566; United States L.
Ins. Co. V. Smith, 34 C. C. A. 506, 92 Fed.
503; American Nat. Bank v. Miller, 107 C.
C. A. 456, 185 Fed. 338, 229 U. S. 517, 57
L. ed. 1310, 33 Sup. Ct. Rep. 883; Thomson-
Houston Electric Co. v. Capitol Electric Co.
12 C. C. A. 643, 22 U. S. App. 669, 65 Fed.
1204
341; Louisville Trust Co. v. LouisWlle, N.
A. & C. R. Co. 22 C. C. A. 378, 43 U. S. App.
550, 75 Fed. 433; Lindsey ▼. Lambert Bldg.
& L. Asso. 4 Fed. 48; Iverson y. Metro-
politan L. Ins. Co. 151 Cal. 746, 13 KILA.
(N.S.) 866, 91 Pac. 609; Loftin v. Great
Southern Home Benev. Asso. 9 Ga. App.
121, 70 S. E. 353; Forwood y. Prudential
Ins. Co. 117 Md. 254, 83 AU. 169; Bone-
well v. North American Acci. Ins. Co. 160
Mich. 137, 125 N. W. 59; Sprinkle v.
Knights Templar & M. Life Indemnity Co.
124 N. C. 405, 32 S. E. 734; Burruss v.
National Life Asso. 96 Va. 543, 32 S. E.
49; Elliott V. Knights of Modem Macca-
bees, 46 Wash. 320, 13 L.RJl.(NJS.) 856,
89 Pac. 929; Wilhelm v. Columbian
Knights, 149 Wis. 585, 136 N. W. 160.
The defendant did not ratify the acts of
Torrey, Hogue, or the medical examiners,
Turberville and Kilpatrick.
Oxford Lake Line v. First Nat. Bank, 40
Fla. 349, 24 So. 480; Skinner Mfg. Co. v.
Douville, 57 FU. 180, 49 So. 125.
The knowledge of Hogue, Torrey, and the
doctors cannot be imputed to the petitioner
to establish an estoppel or waiver.
Mutual L. Ins. Co. v. Powell, 133 C. C.
A. 417, 217 Fed. 565; John Hancock Mut.
L. Ins. Co. V. Houpt, 113 Fed. 572; Butler
v. Michigan Mut. L. Ins. Co. 184 N. Y. 337,
77 N. E. 398; Smith y. JBtna L. Ins. Co.
49 N. Y. 215; Flynn v. Equitable L. Assur.
Soc. 67 N. Y. 503, 23 Am. Rep. 134; Foot
V. Mtna, L. Ins. Co. 61 N. Y. 571; McCol-
lum y. Mutual L. Ins. Co. 55 Hun, 106, 8
N. Y. Supp. 249, 124 N. Y. 642, 27 N. E.
412; Lewis v. Phoenix Mut. L. Ins. Co. 39
Conn. IQO; Ryan v. World Mut. L. Ins. Co.
41 Conn. 168, 19 Am. Rep. 490; MatUon
V. Modern Samaritans, 91 Minn. 434, 98 N.
W. 330; Madsen v. Maryland Casualty Co.
168 Cal. 204, 142 Pac. 51; Dimick v. Met-
ropolitan L. Ins. Co. 69 N. J. L. 384, 62
L.RJI. 774, 55 Atl. 291; Silcox v. Grand
Fraternity, 79 N. J. L. 502, 76 Atl. 1018.
The statutes of the states of Massachu-
setts, Wisconsin, Missouri, Illinois, and
Texas contain provisions similar to the pro-
visions of the Florida statute on the sub-
ject of agents.
The purpose of the statutes was to make
a person doing the acts specified in the
statutes amenable to the penalties imposed
by the statutes in the event of the so-called
"agent" attempting to represent or repre-
senting a foreign corporation which had not
submitted itself to the jurisdiction of the
state.
Markey v. Mutual Ben. L. Ins. Co. 103
Mass. 78; Wood v. Firemen's F. Ins. Co. 126
Mass. 319; John R. Davis Lumber Co. v.
Hartford F. Ins. Co. 95 Wis. 226, 37 L.RJL
131, 70 N. W. 84; Hartford F. Ins. Co. y.
241 U. 8.
UUb MUTUAL I.. IKS. CX). t. BILTON-QEEEH.
Wftlker, M Tex. 473, 61 8. W. 70Si Mallan L. ed. B33; Andenon t. FiUgerald, 4 H. L.
V. N^tioutl Idle Aho. 168 Mo. App. H)3, Cm. 484, 17 Jur. 995; Macdtmald \. Iaw
163 8. W. 1066; United Firemen'B Ins. Co. Union F. t U Ini. Co. L. R. » Q. B. 828,
T. Thomu, 47 UR~&. 456, 34 C. C. A. 240, 43 L. J. Q. B. N. S. 131, 30 L. T. N. 8. CiS,
ez Fed. 127. 22 Wedc. Rep. 630; Edington v. Mta» U
H(«iie «M Wiggini'B broker. Ini. Co. 77 N. Y. 604, 100 N. Y. S36, 3 N.
United Firemen'* Iob. Co. t. Thomu, E, 315; Ph<enix Mut. L. Ina. Co. t. RaddlD,
nipn; Americu Stemm LAundiy Co. v. 120 U. S. 189, 30 U ed. 646, T Sup. Ct. Rep.
Hamburg Bremen F. Ina. Co. 121 Tenn. 13, GOO.
21 LJ{.A.(N.S.) 442, 113 S. W. 394. But answen to questiona propounded bf
Courts will enforce the coutracta aa made the inaurera in an application lor inanr-
by the partiea. ance, unleaa they are clearly ahown by the
M^er V. Fidelity Hut. life Aaao, 24 C. face of the contract to haTe been intended
C. A. 23S, 47 U. S. App. 322, 7B Fed. G6e; by both partiea to be wmrranties, to be
New York L. Ina. Co. v. Fletcher, 117 U. S. strictly and literally complied with, are to
619, 29 L. ed. 934, 0 Sup. Ct. Rep. 837; be conitrued aa repreaentationa, aa to wbieh
Rnaaell t. Prudential In*. Co. 176 N. Y. aubatAntial truth, in everything material to
188, 98 Am. St. Rep. HS6, 68 N. E. 262; the riik, la all that ia required of the appli-
Prorident Sav. Ufe Aaiur. Soc, t. Withers, cant.
138 Ky. 541, 116 S. W. 350; New York L. Moulor v. American U Ins. Co. Ill U. 8.
Ina. Co. V. O'Dom, 100 Miaa. 219, 6S So. 335, 2B L. ed. 447, 4 Sup. Ct. Rep. 460;
379, Ann. Caa. 1914A, 683; Ijam* t. Provi- Campbell v. New England Mut. L. Ins. Co.
dent Sav. Life Aaaur. Co. 186 Ho. 406, 84 08 Maas. 381 ; Thomson v. Weems, L. R. t
B. W. 61. App. Caa. 671; Phteniz Mut. L. Ina. Co. t.
Hr. W. A. Sloant argued the cause, ^'*'"; '"?";. . ^^ . ,^
and. with Meaara. F. B. Carter and A. C ,. ^^ *>" f ,"!.'""'. ""^'**^/? *^! 'PP"'*-
Blount, filed a brief for respondent*: *"'°: «^V3efeDdant was seeking for infor-
The blank form when flHed out and f"*'*"',^'**"''^ "P"° ^^^. ""'', ,'' *" ^
aigned by the applicant, and delivered to *'''?■-*''' ^'°^^^' duration of the l.fe to
the ag^t, constituted and completed the ^ '°^^'^- " "" "»» '«'="■« [^ 'n'""
«ppli«tion for insurance. Everything that -""V"" ." tf ^"""/^^'y *^P?«7 disorders.
(Minu,.^ »i.~ » 11 „i- I _ . I or functional diatorbancea, having no bear-
followed the application waa an element of . , ,., .. ?,.,
its result "^ upon health or continuance of life.
■ Mli.gto« T. ma. L. I... Co. 100 N. Y. ^'^■''°"' '■ """* ""^ "- ■"■ '^- ™
"E.imWi.g"lhU Jl .BMgultia mu.t ^"J"-^ «»•' ;»' >'l»n,mr,, 1..y1i«
b. r«olvrf .^li,« th, ™„p„y (Thomp- »• •I»'-«»«<U. b«l nml be .u.h u t« d»-
un .. PhmUIl... Co. 136 D S. 287, M L. "^ ." ''•'•"I!'. " '"•' ">' • '™". '"•'
ed. 408. 10 Sup. Ct. Rep. 1010). juid that f"°«'°"'- . „ ^ ^ ^ „
f ha »>■;«. _;ti .,.,« K.. r .. . J . Connecticut Mut. U In,. Co. v. UnioB
I'bSv,:^ ts,zz"^ "bi r"'rp%'"„". = "'■ " "- «■■ '"■ '
lutely required (McMaster v. New York L. *"'' ^ 1 P . ■ ",,. ,.
Ina. Co. 183 U. 8. 25-40, 46 L. ed- 04-73, ^ statement in the absence of a warranty.
22 Sup. Ct. Rep. 10), it should be held that
and ao being a representation, muat not
the application does not include the medical ""'? *f. "'f"' *■"* """'■ '" "**" *" """^
examiner's report; and so it has been held *''* P*"'"^' ''*" ^" ""<'* kno*"'^'?. with
( Boehm V. Commercial Alliance Ins. Co. 9 * fraudulent intent to mislead and deceive.
Misc. 629, 30 N. Y. Supp. 860, affirmed in '**"* ^- T""- ^°- '■ H^tlaender, 68 Neb.
35 N. Y. Supp. 1103; Higbee v. Guardian ^84, 94 N. W. 129, 4 Ann. Caa. 261.
Mut. L. Ins. Co. 66 Barb. 462). The lanjfuage of this policy requires that
The parties may, by their contract, make »■> avoiding representation shall not only
material a fact that would otherwise be im- be material and false, but fraudulent,
material, or make immaterial a fact that Pelican v. Mutual L. Ins. Co. 44 Mont,
would otherwise be material. Whether 277, 119 Pae. 778; -Etna L, Ins. Co. v. Out-
there ia other insurance on the same sub- law, 114 C. C. A. 608, 194 Fed. 862; Mu-
ject, and whether such insurance hag been tual I* Ins. Co. v. Hilton-Green, 127 C. C,
applied for and refused, are material facts; A. 467, 211 ,Fed. 31.
at least, when statements regarding them A soliciting agent who prepare* an appll-
are required by the insurers as part of the cation and geta the agent of another com-
faaaia of contract. P^ny to procure hia company to iasue a pol-
Carpenter v. Providence Washington Ins. icy is agent of the Inanrer, and his knowl-
Co. 16 Pet. 406, 10 L. ad. 1044; Jeffriea v. edge binda it.
Economical MuL L. Ina. Co. 22 Wall. 47, 22 ' ICausal t. Mlnneaota Farmers' Hot. F.
<0 lb ed. !>•»
SUPREME COURT OF THE UNITED STATES.
Got. Tbm,
Ins. AsBO. 31 Minn. 17, 47 Am. Rep. 776,
16 N. W. 430.
And such an agent, Boliciting the insur-
ance, preparing the application, giving it to
such other agent, and delivering the policy
and receiving the premium, is the agent of
the insurer.
Sias V. Roger Williams Ins. Co. 8 Fed.
183; May v. Western Assur. Co. 27 Fed.
200; Palatine Ins. Co. v. McElroy, 40 C. C.
A. 441, 100 Fed. 391; Ahlberg v. German
Ins. Co. 94 Mich. 259, 53 N. W. 1102; Bliss
V. Potomac F. Ins. Co. 134 Mich. 212, 95
N. W. 1083; Michigan F. & M. Ins. Co. v.
Wich, 8 Colo. App. 409, 46 Pac. 687 ; Queen
Ins. Co. V. Union Bank & T. Co. 49 C. C. A.
555, 111 F^d. 697.
The general rule that the knowledge of
an insurance agent is imputable to the com-
pany applies also in most instances to a
soliciting agent, with reference to matters
made known to him prior to the execution
of the policy.
Cooley, Briefs on Ins. p. 2524; Bliss v.
Potomac F. Ins. Co. 134 Mich. 212, 95 N. W.
1083; Union Mut. L. Ins. Co. v. Wilkinson,
13 Wall. 234-236, 20 L. ed. 623, 624.
Hogue was the agent of the petitioner
under Fla. Gen. Laws, §§ 2765, 2777.
New York L. Ins. Co. v. Russell, 23 C. G.
A. 43, 40 U. S. App. 530, 77 Fed. 106.
Under a like statute, a broker who ob-
tains for another, from the regular agent
of an insurance company, a policy which
he delivers to that other, and collects
premiums from him, is the agent of the
company, and his knowledge of facts af-
fecting the validity of the policy is equiva-
lent to knowledge of such facts by the com-
pany.
Welch y. Fire Asso. of Philadelphia, 120
WU. 466, 98 N. W. 227.
Under a like statute, a local agent may
make a verbal contract of insurance, and
waive conditions.
Zell V. Herman Farmers' Mut. Ins. Co. 76
Wis. 521, 44 N. W. 828.
And under the same statute, the agent is
authorized to change a policy.
Continental Ins. Co. v. Ruckman, 127 111.
364, 11 Am. St. Rep. 121, 20 N. E. 77.
And under a like statute this court has
said, in effect, that the agent (in that case
a local agent) stood in the same position
as the company's principal officer, • having
authority in the premises, and acting in the
home office.
Continental L. Ins. Co. t. Chamberlain,
132 U. S. 304-311, 33 L. ed. 341-344, 10
Sup. Ct. Rep. 87.
In a case where (as here) the agent of
one company, having failed to get insxir-
ance in his company, for an applicant,
sought and obtained it in another company,
1206
through that other company's agent, he wu
held (under the Wisconsin statute) to be
the agent of the latter company.
Speiser v. Phcenix Mut. L. Ins. Co. 110
Wis. 630, 97 N. W. 207.
And under the same statute, the same
rule was applied to the case where the
agent of one company applied to the agent
of another company for insurance upon an
applicant, and, in pursuance of such appli-
cation, a policy was issued. The person
who was agent of the first company wu
held to be the agent of the insurer.
Schomer v. Hekla F. Ins. Co. 60 Wis. 675,
7 N. W. 544 ; Alkan v. New Hampshire Ins.
Co. 53 Wis. 136, 10 N. W. 91.
The binding effect of the knowledge and
acts of the agent under a like statute
(Nebraska) is shown in New York L. Ins.
Co. V. Russell, 23 C. C. A. 43, 40 U. S. App.
630, 77 Fed. 106.
The question as to the defendants being
bound by knowledge of the general sgent,
made so by the statute, is foreclosed by the
decision of this court, in a case where an
Iowa statute made a solicitor for an insur-
ance company an agent of the company.
Continental L. Ins. Co. v. Chamberlain,
supra.
When a medical examiner is authorised
by an insurance company to fill up blanks
for answers to questions to be propounded
to applicants for insurance in a medical
examination, or filling them up is within
the apparent scope of his authority, and
he writes down false answers, and there-
after procures the signature of the appli-
cant thereto, who had given correct an-
swers to the questions, and the company
afterwards receives the premium, and issues
a policy, the company will, upon the death
of the insured, be estopped from insisting
on the falsity of the answers, although
warranted to be true.
Providence Life Assur. Soc. t. Reutlin-
ger, 68 Ark. 628, 26 S. W. 836; Dwelling
House Ins. Co. v. Brodie, 52 Ark. 11, 4
L.RJL 458, 11 8. W. 1016; Flynn v.
Equitable L. Ins. Co. 78 N. Y. 568, 34 Am.
Rep. 561; Grattan v. Metropolitan L. Ins.
Co. 80 N. Y. 281, 36 Aul Rep. 617, 92 N. Y.
274, 44 Am. Rep. 372; Connecticut General
L. Ins. Co. V. McMurdy, 89 Pa. 363; Pud-
ritzky v. Supreme Lodge, K. H. 76 Mich.
428, 43 N. W. 373; EquiUble L. Ins. Co.
V. Hazlewood, 75 Tex. 348, 7 LJtJk. 217, H
Am. St. Rep. 893, 12 S. W. 621; New York
L. Ins. Co. V. Russell, 23 C. C. A. 43, 40
U. S. App. 630. 77 Fed. 106; Hoeland v.
Western U. L. Ins. Co. 58 Wash. 100, 107
Pac 866; Endowment Rank, K. P. v. Cog-
bill, 99 Tenn. 28, 41 S. W. 840; Mutual Ben.
L. Ins. Co. v. Robison, 22 UELA. 826, 7 &
C. A. 444, 10 U. & App. 266, 68 Fed. jQgL
241 V. 8.
1910. ICtJTDAL L. INS. CO. v. HILTON-OREBN. «14
FTMiklin L. Id*. Co. v. Oftlligan, 71 Ark. Eunea v. Home Ida. Co. M D. S. 621, 24 L.
296, 100 Am. St. Rep. 73, 73 S. W. 102. ed. 298.
So much does the itatute make the per- The knowledge of Wiggins that the itBt*-
•on who directly or indirectly causea to be ment wu false did not avoid the polity,
made any owtract of inauranee tor or on nor would hie intent to defraud the de-
aeoonnt of an insurance company, to all fendant.
Intenta and purpoees an agent or repre- 2 Pom. Eq. Jur. g 894; Follette t. Uu-
•entative of (uch company, that the com- tual Acci. Asm. 110 N. C. 37T, 15 L-R.A.
pany cannot, even by its contract with the 868, 28 Am. St. Rep. 896, 14 S. B. 023, 107
insured, convert such person into the agent N. C. 241, 12 L.R.A. 315, 22 Am. St. Rep.
of the inaured. 878, IS 8. E. 370; Sun L. Ins. Co. v. Fhil-
Continental L. Ina. Co. t. Chamberlain, lips, — Ter. Civ. App. — , 70 S. W. 805;
132 U. S. 304, 33 L. ed. 341, 10 Sup. Ct. Miller v. Mutual Ren. L. Ins. Co. 31 Iowa,
Rep. 87. 216, 7 Am. Rep. 122; Speiser t. Phienis
Consultation of lAyaician within five Mut. L. Ins. Co. 119 Wis. 630, 97 N. W.
years was not material, unless about a 207; Continental L. Ins, Co. v. Chamber-
matUr which itself would make it mat«rial, laiu, 132 U. S. 304-310, 33 L. ed. 341-344,
— that is, which would alTect the aoundneaa 10 Sup. Ct. Rep. 87; Mutual Ben. L. Ins.
of the health or the length of the life, or Co. v. Robison, 22 L.R.A. 325, 7 C. C. A.
would derange vital functions, etc^-of the 444, 19 U. B- App. 266, 68 Fed. 728; Crouse
applicant. v. Hartford F. Ins. Co. 79 Mich. 249, 44 N.
Hoeland v. Western U. L. Ins. Co. 08 W. 49«.
Wash. 100, 107 Pac. Se6-, Blumcnthal v. The mere fact that Wiggins knew, If he
Berkshire L. Ina. Co. 134 Mich. 216, 104 read the application, that the anawer aa to
Am. St. Rep. 604, 96 N. W. 17; Franklin L. the prior application to the Prudential was
In*. Co. T. Galligan, 71 Ark. 295, 100 Am. not true, and that he knew that the agenta
St. Rep. 73, 73 6. W. 102; Valentini t. Met- knew that it was not true, does not prove
ropolitan L. Ins. Co. 106 App, Div, 4S7, 04 collusion.
N. Y. Supp. 758; Smith t. Metropolitan L. Speiser v. Phmnix Mut. U Ina. Co. 119
Ina. Co. 183 Pa. S04, 38 Atl, 1038; Genung \;pi^ 530, 97 K. W. 207.
V. MetropoliUn L. Ina. Co. 60 App. DJv. t^^ ,^at haa power to construe the re-
424, 69 N. Y. Supp. 1011. quirementa mode by the principal, and to
The fraud or diahoneaty of the agent will determine whether they have in a given
not defeat the policy. eaae been complied with or not, and if he
Fidelity Mut, F. Ina^ Co. v. Ix,we. 4 NA. ^^^ ;„ ,„^ y,^j U,„^ ^„ ^^ ^
Unof. 159, 93 N. W. 749; Germania L. ,„„„„„,,.„ „, ^^ffl„i„t „„„u.„„. .„j
i _ . ■ . . ,„■ , , ,„. „. incomplete or maumcient compliance, ana
Ins. Co. T. Lunkenheimer, 127 Ind. 536, 26 , -. >. . ■. ^ 1. -e - .
N. E. 1082; Germania F. ins, Co. v. Mckee. "=''*P'* '!', ''%'?"!f "™ "i^ "^ «>ffi='ent.
M 111. 494; Kiatcr t. Lebanon Mut. Ina! f,^" ^r„^.'^.^ f"" * T"f'"^" ^"- ^■
Co. 128 Pa. 6S3. 6 L.R.A. 846, 16 Am. St '" 01°^t«^, 21 Mich. 262. 4 Am. Rep- «3s
Rep. 606, 18 Atl. 447; Dwelling House Ina, ^ew York L. Ina. Co. v. Ruasell, 23 C, C. A.
Co: Y. Brodie, 52 Ark. 11, 4 L.R.A. 458, 11 «, « U- 8. App. 530, 77 Fed. 105; Ameri-
a. W. 1016; Menk y. Home Ins. Co. 76 Cal. <»" L. Ins. Co. V. Mahone, 21 Wall. 156, 22
60, 9 Am. St. Rep. 168, 14 Pac. 837. 18 Pac. L- •*. 694.
117; Creed v. Sun Fire Office, 101 Ala. 522, The representatirai in an application that
23 L.R.A. 177, 46 Am. St. Rep. 134, 14 80. an applicant has not been attended by a
823; Grattan v. Metropolitan L. Ina. Co. physician, nor has consulted one previoualy,
92 N. Y. 28S, 44 Am, Rep. 372. ia not folae, if the applicant merely omits
The refutation of the ides that the bind- to state a treatment for aome temporary
ing force of the knowledge of the agent Is ind is position.
based upon the presumption that the agent Blumenthal v. Berkahlre L, Ina. Co. 134
will communicate knowledge which he has Mich. 216, 104 Am. St. Rep. 604, 96 N. W.
gained to the principal runa through sev- 17.
eral decisions of this court, which hold Mere earelesanesa or negligence cannot
that when the applicant communicates to have the effect, in insurance representa-
the agent tacts which would prevent the in- tions, of fraud.
surer from accepting the risk, but the agent Penn Mut h, Ins. Co. t. Mecbanlea' Sav.
oonatmea such facte. Bad inserts bis con- Bank t T. Co. 38 UUl. TO, IB C. C. A.
stmction in the policy, the insurer is 316, 43 U. S. App. TO, 73 Fed. 604.
Union Mut L. Ins. Co. t. Wilkinson, 13 Mr. Justice HcReynalds delivered tlie
WaQ. 222, 20 L. ed. 617; Amerioan L. Ins. opinion of the eourti
Co. T. Mahone, 21 Wall. 1G2, £2 Lk ed. 003; Bespondsats sued to reeover upon four
• 0 L. ed. ISOT
614-617
SUPREME COURT OF THE UNITED STATES.
Cot. Tkbm,
policies, not different except as to numbers,
for $7,662 each, and dated December 16,
1908, on the life of their tesUtor, Wiggins,
who died March 26, 1910. By various pleas
the insurance company set up that applica-
tion upon which policies were based con-
tained material representations both false
and fraudulent. In reply the executors de-
nied truth of each plea, and also alleged
that if application [615] contained any
misrepresentations, the actual circum-
stances were known to company when poli-
cies issued.
Two separate application blanks, each
plainly printed upon a large, single sheet,
were filled out and presented. They are
substantially identical except medical ex-
aminer's report upon one, dated December
16, 1908, is signed by Geo. C. Kilpatrick,
M. D., in two places, while the other, dated
December 16, 1908, is twice signed by J. S.
TurberviUe, M. D. (Under the company's
rules, where insurance applied for amounted
to $30,000, two medical examinations were
required. )
At the top of each sheet the following
appears: "THIS APPLICATION made to
the Mutual Life Insurance Company of
New York is the basis and a part of a
proposed contract of insurance, subject to
the charter of the company and the laws
of the state of New York. I hereby agree
that all the following statements and an-
swers, and all those that I make to the
company's medical examiner, in continua-
tion of this application, are by me war-
ranted to be true, and are offered to the
company as a consideration of the contract,
which I hereby agree to accept, and which
shall not take effect unless and until the
first premium shall have been paid, during
my continuance in good health, and unless
also the policy shall have been signed by
the president and secretary and counter-
signed by the registrar of the company and
issued during my continuance in good
health; unless a binding receipt has been
issued as hereinafter provided."
Immediately thereafter are statements
concerning assured's address, occupation,
birth, character of policy desired, etc., and
finally this, alleged and shown to be un-
true: "22. I have never made an applica-
tion for life insurance to any company or
association upon which a policy has not
been issued on the plan and premium rate
originally applied for, except as to the fol-
lowing companies or associations: None,
and no such application [616] is now pend-
ing or awaiting decision." And this part
of the paper concludes:
1208
Dated at Pine Barren, Fla. Dec 15, 1908.
Signature of person 1
whose life is proposed V Cilbey L. Wiggins
for insurance, J
I have known the above named applicant
for six years and saw him sign this applica-
tion. I have issued binding receipt No. —
J. D. Torrey, Soliciting Agent,
[by rubber stamp]
J. D. Torrey, Manager,
Mobile, Ala.
On lower portion of the same page, undw
caption, "Medical Examiner's Report," are
sundry statements, ostensibly by applicant,
concerning his health history, etc., — among
them the following, alleged and ahown to
be untrue:
"3. (a) What illnesses, diseases, or acci-
dents have you had since childhood? Pneu-
monia. Number of attacks: One. Date
of each: 1899. Duration: Thirty days.
Severity: Not severe. Results: Com-
plete recoviery.
"4. State every physician whom you have
consulted in the past five years. None."
"8. Have you undergone any surgical
operation ? No."
"13. (a) Have you ever been under treat-
ment at any asylum, cure, hospital, or sani-
tarium. No."
"16. Have you ever been examined for a
policy in any company or association which
was not issued as applied for? No."
This division ends thus:
Dated at Pine Bar-
ren, State of Flori-
da the 15 day of
December 1908
Witness :
Geo. C. Kilpatrick,
M. D.
I certify that my
answers to the fore-
going questions are
correctly recorded by
the Medical Exami-
ner.
Cilbey L. Wiggins
Signature of person
examined.
[617] At the top of reverse page, under
"Medical Examiner's Report (Continued),*^
there are many answers purporting to be
replies to inquiries propounded by medical
examiner concerning applicant's figure, ap-
parent age, measurements, pulse, results of
physical examination and personal investi-
gations, etc. And then the following:
I certify that I
have made this ex-
amination at Pine
Barren, Fla., on
this 15 day of De-
cember, 1908, and
that the foregoing
questions have been
put, and the an-
swers of the appli-
cant recorded as
stated.
241 V. 6»
Geo. C. Kilpatrick^
M. D.
Medical Examiner.
1915.
MUTUAL L. INS. CO. y. HILTON^REEN.
617-620
The four policies, after being signed in
New York by the president, secretary, and
registrar of the company, were delivered to
assured in Florida. Among others, they
contain these clauses:
'This policy and the application herefor,
copy of wliich is indorsed hereon or at-
tached hereto, constitutes the entire con-
tract between the parties hereto. All state-
ments made by the insured shall, in the
absence of fraud, be deemed representations,
and not warranties, and no such statement
of the insured shall avoid or be used in
defense to a claim under this policy un-
less contained in the written application
herefor, a copy of which is indorsed hereon
or attached hereto.'' "Agents are not au-
thorized to modify this policy or to extend
the time for paying a premium."
During summer of 1907 assured suffered
serious pains in his head, and, after con-
sulting more than one physician, went to a
sanitarium at Montgomery, Alabama, and
was there operated on for a cystic enlarge-
ment of the lower jaw caused by an im-
pacted wisdom tooth. He was confined to
the sanitarium for ten days and remained
under [618] immediate care of a physician
from July 16th to August 13th, 1907.
Early in November, 1908, he applied to
Prudential Insurance Company of America
through J. C. Hogue, a special agent operat-
ing under J. R. Tapia, its manager at Mo-
bile, Alabama, for insurance amounting to
$40,000. The application was accompanied,
according to its requirements, by two medi-
cal reports dated November 3d and 4th,
signed respectively by Dr. J. C. McLeod
and Dr. Geo. C. Kilpatrick. Several weeks
later the company indicated unwillingness
to accept risk because of location, but the
application, although marked "withdrawn,"
was retained. At this time Wiggins had
$30,000 insurance with the Prudential, $20,-
000 with the Equitable, and $5,000 with
fraternal insurance companies.
The application of petitioner now under
consideration resulted from earnest and
persistent solicitation by the same J. C.
Hogue. The circumstances under which
papers were prepared and signed are not
entirely clear; but it appears without con-
tradiction that they were not signed by
assured in Torrey's presence — there was no
personal acquaintance between the two men.
Also that neither medical report was signed
by assured in presence of Dr. Geo. C. Kil-
patrick or Dr. J. 8. Turberville; and that
neither physician made the personal exami-
nation certified by him. The physicians
fiUed the blanks and signed their names at
Hogue's request and because of his repre-
sentations. Through Torrey, petitioner's
district manager at Mobile, the applica-
60 li. ed.
tion was forwarded to New York, and, rely-
ing upon its statements, officers there issued
policies and sent them to assured with
copies of application papers which, by refer-
ence, were incorporated therein. So far as
appears, assured accepted them without ob-
jection and paid the premiums.
An effort was made to show that facts
concerning Wiggins's medical history, for-
mer unsuccessful application to [619] Pru-
dential, and circumstances surroimding
transactions now in question, were known
by Hogue, the medical examiners, or Tor-
rey, each of whom, it is claimed, was peti-
tioner's agent.
Assured was sixty-one years of age, presi-
dent of a lumber company, apparently a
man of considerable wealth, and experienced
in insurance matters.
At conclusion of evidence, counsel for in-
surance company asked a directed verdict.
This was refused; and the court in effect
instructed the jury: That in order for
company successfully to defend upon ground
of false statements, these must have been
material, and made by Wiggins with knowl-
edge of their falsity, and with a fraudulent
purpose, — that is, with intent to deceive.
That if they believed it knew of their
falsity when application was accepted, no
defense could be based upon them. That
it knew the actual facts if the jury "should
find that an agent whose knowledge would
be the knowledge of the defendant did so
know." But if the jury found that falsity
of statements was within knowledge of
Hogue and Torrey and medical examiners,
and further found an understanding, tacit
or express, between Wigg)ns and said agents
to procure the policies by collusive co-opera-
tion to conceal the truth, there could be
no recovery. Excerpts which follow fairly
indicate general import of charge:
"The contract of insurance in this case
as expressed by the policies, embraces the
statements and representations of Wiggins,
the deceased, made to the agent, Hogue, or
to Kilpatridc, or Turberville, the medical
examiners. Such statements were required
to be truthfully made, and was a condi-
tion for the issuance of the contract, and
this contract provides that all statements
made by the insured shall, in the absence
of fraud, be deemed representations, and
not warranties. Whether the representations
made by Wiggins in his application for in-
surance had been rejected; or whether he
had been treated in a cure, sanitarium,
[680] or hospital; or whether he had un-
dergone a surgical operation; or whether
he had had any illness or disease; or
whether he had consulted a physician for
his health, to serve as a defense by the com-
pany to this action, depends on «!—*»•-»'•
620-622
SUPREBIB COURT OF THS UNITED STATES.
Oct. Tbm,
sueh statements were knowingly false and
fraadulently made.
"If Wiggins knew they were false, and
that he made them with the fraudulent purr
pose of obtaining the policy of insurance,
then such statements would avoid the policy
and would serve as a good defense by the
company; provided, that the company, at
the time it accepted the application of the
deceased as an insurance risk, had no knowl-
edge of the falsity of the statements and
representations made by Wiggins in his ap-
plication for insurance.
"The knowledge of the agent of the in-
surance company would be the knowledge
of the company, and if the agent represent-
ing the company in taking the application,
or the statements oi the medical examiners
had knowledge of the falsity of the state
ments, then the insurance company would
be estopped from setting up such false
statements or misrepresentations of which
they had knowledge before the issuance of
the policy, as a defense to this action.
"If you find from the evidence that the
statements of Wiggins in the several mat-
ters inquired about his health and opera-
tion and treatment in a sanitarium were
false, and further find th'^t the agents
Hogue, and Torrey and Turberville knew
they were false, and you further find from
the evidence that there was an understand-
ing, tacit or expressed, between Wiggins and
the said agents to procure the policies by
collusive co-operation to conceal the truth
from the company as to the several mat-
ters inquired about, then such conduct upon
the part of Wiggins would avoid the poli-
cies, and the plaintiffs could not recover in
this action."
Petitioner made timely objections and
presented special [621] requests, setting
forth its theory, which were denied. The
circuit court of appeals affirmed a judg-
ment upon verdict for respondents. Among
other things it said (127 C. 0. A. 467, 470,
471, 211 Fed. 31, 34, 35) :
"That, under the language of the policies
involved in this suit, the defendant, to
avoid the policies for false representations,
must establish their falsity, materiality,
and the knowledge of the insured, actual or
imputed, of their falsity.
"This leaves for consideration the repre-
sentation oi Uie insured that he had been
examined by Dr. Turberville, defendant's
medical examiner, and that the answers re-
corded by the medical examiner in his re-
port were correct. In truth, there was no
such examination had, and the insured must
have known that there 'was none, and the
representation that there had been one was ' ual."
1210
a material one. So with r^^rd to the rep-
resentation of the insured that there had
been no previous application for insurance
made by him and rejected, or not passed
upon favorably by the insurance companj.
liiifl was untrue, must have been known to
have been untrue by the insured when be
made it, and it was material. Either of
these two last representations would be suf-
ficient to avoid the policies, unless the. de-
fendant is estopped to rely upon them, bj
reason of its knowledge of their falsity. It
had such knowledge, if at all, because of
the knowledge of its agents and examiners,
who handled the matter for it/'
And further (p. 37) : "The statute [§ 2765.
General Statutes of Florida — copied in
iiiuurgin] prescribes that every [622] per-
son who receives money for an insurance
company in payment of a contract of insur-
ance, or who directly or indirectly causes to
be made any contract of insurance, shall be
deemed to all intents and purposes an agent
or representative of sueh company. Under
this description, we think Torrey, the de-
fendant's Mobile . manager, H^gue, the
soliciting agent, and the two medical ex-
aminers, were agents of the defendant to
all intents and purposes, and so, for the
purpose of charging it with notice of what
they know, when the policies were written."
All parties treat the policies as Florida
ooutracts. The medical examiners' reports
are plainly integral parts of application,
and by apt words the latter became an es-
sential constituent of the policies.
Considered in most favorable light pos-
sible, the above quoted incorrect statements
in the implication are nuiterial representa-
tions; and, nothing else appearing, if known
to be untrue by assured when m|uie, in-
validate the 4>olicy without further proof of
actual conscious design to defraud. Moulor
V. American L. Ins. Ck>. Ill U. S. 335, 345,
28 L. ed. 447, 450, 4 Sup. Ct. Rep. 466;
"2765. Agents. — ^Any person or firm in
this state, who receives or receipts for any
money on account of or for any contract
of insurance made by him or them, or for
such insurance company, association, firm
or individual, aforesaid, or who receives or
receipts for money from other persons to
be transmitted to anv such company, asso-
ciation, firm or individual, aforesaid, for
a policy of insurance, or any renewal there-
of, although such policy of insurance is not
signed by him or them, as agent or repre-
sentative of such company, asioeiatioii» nrm
or individual, or who in any wise directly
or indirectly makes or causes to be made,
any contract of insurance for or on account
of such insurance company, association, firm
or individual, shall be deemed to all intents
and purposes an agent or representative of
such company, association, firm, or Individ*
241 V. 8.
1916.
HOLMES T. CONWAY.
622-024
Phoenix Mut. L. Int. Co. t. Raddin, 120 U.
S. 183, 189, 30 L. ed. 644, 046, 7 Sup. Ct
Rep. 500; Altna L. Ins. Co. ▼. Moore, 231
U. S. 643, 666, 567, 68 L. ed. 356, 866, 366,
34 Sup. Ct. Rep. 186; May, las. 4th ed.
i 181.
The general rule which imputes an agent's
knowledge to the principal is well estab-
lished. The underlying reason for it is that
an innocent third party may properly pre-
sume the agent will perform his duty and
report all facts which affect the principal's
interest. But this general rule does not
apply when the third party knows [623]
there is no foundation for the ordinary pre-
sumption,— ^when he is acquainted with cir-
cumstances plainly indicating that the
agent will not advise his prindpaL The
rule is intended to protect those who exer-
cise good faith, and not as a shield for un-
fair dealing. Distaied Spirits (Harring-
ton V. United States) 11 Wall. 366, 367, 20
L. ed. 167, 171; American Surety Co. y.
Pauly, 170 U. S. 133, 156, 42 L. ed. 977,
986, 18 Sup. Ct. Rep. 662; American Nat.
Bank v. Miller, 229 U. S. 617, 621, 622, 67
L. ed. 1310, 1312, 1313, 33 Sup. Ct. Rep.
883; Mechem, Agency, 2d ed. § 1816.
Section 2766 6f the Florida statutes, su-
pra, undertakes to designate as agents cer-
tain persons who in fact act for an insur-
ance company in some particular; but it
does not fix the scope of their authority as
between the company and third persons, and
certainly does not raise special agents, with
limited authority, into general ones, pos-
sessing unlimited power. We assume Hogue,
Torrey, and the medical examiners were in
fact designated agents of the company, with
power to bind it within their apparent au-
thority; and in such circumstances the
statute does not affect their true relation-
ship to the parties. See Continental L. Ins.
Co. T. Chamberlain, 132 U. S. 304, 310, 33
L. ed. 341, 343, 10 Sup. Ct. Rep. 87; New
York L. Ins. Co. y. Russell, 23 C. C. A.
43, 40 U. S. App. 630, 77 Fed. 94, 103;
Wood y. Firemen's F. Ins. Co. 126 Mass.
316, 319; John R. Davis Lumber Co. y.
Hartford F. Ins. Co. 96 Wis. 226, 234, 285,
37 L.R.A, 131, 70 N. W. 84.
The assured at the least consciously per-
mitted an application containing material
misrepresentations to be presented by sub-
ordinate agents to officers of the insurance
company under circumstances which he
knew negatived any probability that the
actual facts would be revealed; and later
he accepted policies which he must have
imderstood were issued in reliance upon
statements both false and material. He
could claim nothing because of such In-
formation in the keeping of unfaithful sub-
ordinates. Moreover, the false representa-
60 14. ed.
I tions aeoompanied and were ewential parts
j of tiM policies finally accepted. He did not
repudiate, and therefore adopted and ap-
proved, the [684] representations upon
which they were based. Beyond doubt an
applicant for insurance should exercise
toward the company the same good faith
which may be rightly demanded of it. The
relationship demands fair dealing by both
parties. New York L. Ins. Co. v. Fletcher,
117 U. S. 619, 629, 633, 634, 29 L. ed. 934,
939, 940, 6 Sup. Ct. Rep. 837; Northern
Assur. Co. v. Grand View Bldg. Asso. 183
U. S. 308, 361, 46 L. ed. 213, 234, 22 Sup.
Ct. Rep. 133; United States L. Ins. Co. v.
Smith, 34 C. C. A. 606, 92 Fed. 603.
Considered with proper understanding of
the law, there Is no evidence to support a
verdict against petitioner, and the trial
court should have directed one in its favor.
Judgment of the Circuit Court of Ap-
peals is reversed and the cause remanded
to the United States District Court, North-
ern District of Florida, for further proceed-
ings in accordance with this opinion.
Reversed.
Mr. Justice Pitney dissents.
8. C. HOLMES, Plff. in Err.,
v.
E. S. CONWAY.
(See S.^ 0. Reporter's ed. 624-632.)
Constitutional law ^ due process of law
— summary proceeding ^ notice and
hearing.
The attorney for the mortgagee, and
later for the transferee of the certificate of
purchase under a sale on foreclosure, can-
not be said to have been deprived of his
property without adequate notice or fair
opportunity to defend, contrary to U. S.
Const., 14th Amend., by a summary order
directing him to restore to the treasury of
the court the proceeds of fire insurance poll-
NoTB. — ^As to what constitutes due
process of law, generally — see notes to
People v. O'Brien, 2 LJLA. 266; Kunts v.
Sumption, 2 L.bLA. 655; Re Qannon, 6
L.ILA. 359; Ulman v. Baltimore, 11 UELA.
224; Oilman v. Tucker, 13 Ii.ILA. 304;
Pearson v. Yewdall, 24 L. ed. U. S. 436, and
Wilson V. North Carolina, 42 L. ed. U. S.
866.
On notice and hearing required generally
to constitute due process of iaiR^— see notes
to Kunts V. SumpUon, 2 L.RJL 667;
Chauvin v. Valiton, 3 L.RJL 194, and
Ulman v. Baltimore, 11 LJELA. 226.
On notice of proceedings after jurisdic-
tion has attached as condition of due
process of law — see note to Griggi r. Han-
son, 62 L.RJL(N.S.) 1161.
626, 627
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
cies on the mortgaged property which he
had withdrawn and applied on a personal
judgment against the mortgagor, instead of
applying them towards redeeming the prop-
erty from the sale, in accordance with what
the court found was the agreement between
him and the counsel for the mortgagor,
where he was accorded two hearings, six
months apart, was present at every stage
of the proceedings, failed to suggest sur-
Srise or prejudice because no formal notice
ad been served on him, or any desire for
further hearing, and was perfectly acquaint-
ed with all the unusual circumstances.
[For other cases, see Constitutional Law, 696-
724, in Digest Sup. Ct. 1008.]
[No. 335.]
Argued May 1, 1916. Decided June 12,
1916.
IN ERROR to the Supreme Court of the
State of Kansas to review a judgment
which affirmed a summary order of the Dis-
trict Court of Woodson Coimty, in that
state, directing an attorney to restore to
the treasury of the court moneys which it
found that he had diverted. Affirmed.
See same case below, 92 Kan. 787, L.R.A.
— , — , 142 Pac. 263; on rehearing, 93 Kan.
246, L.R.A.— , — , 144 Pac. 205.
The facts are stated in the opinion.
Mr. Leonard S. Ferry argued the cause,
and, with Messrs. Thomas F. Doran and
John S. Dean, filed a brief for plaintiff in
error :
The supreme court of Kansas aprmed the
judgment of the district 'court on the
ground . that summary proceedings may be
employed in ^iforcing claims against at-
torneys for acts done in a professional
capacity. Summary proceedings must be
based upon notice, and the party must be
apprised of the nature and purpose of the
proceedings, and have an opportunity to be
heard.
37 Cyc. 630; 4 Cyc. 976; Ex parte Wall,
107 U. S. 265, 27 L. ed. 662, 2 Sup. Ct
Rep. 669; Jeffries v. Laurie, 23 Fed. 786;
Lynde v. Lynde, 64 N. J. Eq. 736, 97 Am.
St. Rep. 692, 68 L.RJI. 471, 52 Atl.
694; Galpin v. Page, 18 Wall. 368, 21
L. ed. 963; Union Bldg. & Sav. Asso.
V. Soderquist, 116 Iowa, 696, 87 N. W.
433; Simon v. Craft, 182 U. S. 427, 45
L. ed. 1166, 21 Sup. Ct. Rep. 836; Rees
V. Watertown, 19 Wall. 107, 122, 123,
22 L. ed. 72, 76, 77; Iowa C. R. Co. y.
Iowa, 160 U. S. 389, 40 L. ed. 467, 16 Sup.
Ct. Rep. 344; Davis v. St. Louis County,
66 Minn. 310, 33 L.R.A. 432, 60 Am. St.
Rep. 476, 67 N. W. 997; Kuntz v. Sumption,
2 L.R.A. 666, and note 117 Ind. 1, 19 N. E.
474; Davidson v. New Orleans, 96 U. S. 97,
24 L. ed. 616; 3 Words & Phrases, pp.
1212
2244, 2246; Hooker v. Los Angeles, 188 U.
S. 318, 47 L. ed. 491, 63 L.R.A. 471, 23 Sup.
Ct. Rep. 396.
The judgment affirmed by the supreme
court of Kansas was rendered against S.
C. Holmes without due process of law, as
required by the 14th Amendment of the
Constitution of the United States, as no
notice was given him, and no adequate op-
portunity to defend was afforded him.
Louisville & N. R. Co. v. Schmidt, 177 U.
S. 230, 44 L. ed. 747, 20 Sup. Ct. Rep. 620;
Simon v. Craft, 182 U. S. 427, 45 L. ed.
1165, 21 Sup. Ct. Rep. 836; Davis v. St.
Louis County, 66 Minn. 310, 33 L.R.A. 432,
60 Am. St. Rep. 476, 67 N. W. 997; Kunts
V. Sumption, 2 L.R.A. 655, and note 117
Ind. 1, 19 N. E. 474; Hooker v. Los Ange-
les, 188 U. S. 318, 47 L. ed. 491. 63 L.R.A.
471, 23 Sup. Ct. Rep. 396.
A man's business, occupation, profession,
or calling is his property, and is protected
and guaranteed by the Constitution of the
United States.
Slaughter-House Cases, 16 Wall. 36, 21 L.
ed. 394; Consolidated Steel &, Wire Co. v.
Murray, 80 Fed. 821; Ex parte Burr, 9
Wheat. 529, 6 L. ed. 152.
No counsel appeared for defendant in
error.
Mr. Justice McReynolds delivered the
opinion of the court:
Plaintiff in error, Holmes, a lawyer prac-
tising before the courts of Kansas, main-
tains that judgment has been rendered
against him, in a cause where he appeared
as counsel, without notice or opportunity
to defend, contrary to inhibitions of the
14th Amendment.
Acting for one Hess, he instituted pro-
ceedings against defendant in error in the
district court, Woodson county, Kansas,
seeking personal judgment on a note and
foreclosure of mortgage on real estate.
Judgment was rendered November 16, 1910,
for $2,612; and the sheriff sold the land
January 19, 1911, to Hess, for $1,700, sub-
ject to redemption within eighteen months.
An assignment prepared by Holmes imme-
diately transferred the certificate of pur-
chase to C. F. Harder, but no public record
of this transaction was made until August
24, 1912.
An insured building on the mortgaged
property burned shortly before sheriff's
sale, and, upon motion presented by Holmes,
the court made an order "restraining and
enjoining the said defendant Conway from
in any manner disposing of said insurance
policies upon the buildings on said mort-
gaged premises, or disposing of any moneys
[687] collected." Questions arose oonoeni-
ing validity of polidea, and, following aa
241 U. 8.
1915.
HOLMES V. CONWAY.
327-«29
agreement between Holmes and Hogueland,
attorney for Conway, a compromise was ef-
fected under which the companies paid
^1,076,— $500, February — , 1911, and $575,
March — , 1911. Conway and his attorney
claimed that, under the agreement, this sum
was to be applied towards redeeming the
land. Holmes claimed it was to go towards
discharging the personal judgment.
On February 24, 1911, $500 of the insur-
ance money was paid into court by Hogue-
land. Tlie clerk gave a receipt reciting,
"the same being in part payment of the re-
demption in the above-entitled cause." On
the next day this sum was withdrawn by
Holmes, and, as he claims, remitted to Hess.
On March 31, 1911, Hogueland delivered a
draft for remainder of insurance money to
Holmes, who claims that he remitted pro-
xieeds to Hess. Conway paid into court
$738.03, July 15, 1912, which, with the
$1,075 above referred to, made up amount
necessary to redeem property sold by sheriff,
and the clerk gave him a redemption receipt.
Exactly when Holmes began to represent
Harder is not clear. — certainly it was not
later than June 1, 1911. In August, 1912,
Holmes, as counsel, entered a motion for
an order directing the sheriff to convey to
Harder the land theretofore sold. Conway
resisted, claiming that, by paying the nec-
essary sum, he had redeemed the property.
Solution of the issue presented depended
upon professional conduct of Holmes, and
his affidavits were put in evidence. The
motion was denied; but a rehearing was
granted and took place in February, 1913.
Additional proofs, including two more of
his own affidavits, were offered by Holmes,
then present in court, and taken under con-
sideration. April 30, 1913, Holmes still
being present, the court denied motion for
instruction to sheriff, and further "ordered,
adjudged and decreed, that the plaintiff, A.
£. [628] Hess, and S. C. HoUnes, his attor-
ney of record, within thirty days from this
date, . . . return to and deposit in the
office of the clerk of this court, the sum of
One Thousand and Seventy-five ($1,075)
Dollars, together with interest
down to the day such sum is paid into the
office of the clerk of this court . . .
to be used in the redemption and cancela-
tion of certificate of purchase issued by the
sheriff of Woodson county, Kansas, to A. £.
Hess, plaintiff herein."
Without suggesting to the trial court that
he had been surprised or prejudiced because
no formal notice had been served upon him,
or that he wished the order set aside, or
desired to present additional proof, or take
any further action whatsoever,' and when
the thirty days were about to expire.
Holmes entered appeals to the supreme court
$0 li. ed.
of the state for himself and Harder; and
on very general assignments of errors, mak«
ing no mention of Federal right, the con-
troversy was there again presented and con-
sidered upon its merits.
Among other things the supreme court
said (92 Kan. 787, 1..RJI.--, — , 142 Pac.
253):
'*0n the eve of the sheriff's sale. Holmes
and Hogueland, as attorneys for their re-
spective clients, agreed that the insurance
money should be applied to the redemption
of the land. Hess purchased at the sheriff's
sale subject to this condition, and when he
assigned the oertifioate of purchase, he and
Holmes knew that the insurance money
would go to redeem the land, and not to
satisfy the excess judgment. This is the
turning point in the case. Mr. Holmes
claims he understood the agreement with
Mr. Hogueland differently. After carefully
considering all the strong arguments for
his view, this court, as already stated, feels
that the trial court was best able to deter-
mine the matter. The result is that Holmes
could draw the first payment of insurance
money from the clerk of the court, who had
received and receipted for it for redemption
[629] purposes, for the benefit of no one
but the holder of the certificate of purchase,
who at that time was Harder; and Holmes
received the proceeds of the draft for the
second instalment of insurance money for
the benefit of Harder. Soon afterwards.
Holmes is found in court, engaged in the
protection of Harder's interests as a holder
of the certificate of purchase. Holmes had
complete knowledge of all the facts relating
to the insurance money. Harder's son and
agent, F. H. Harder, was informed that
Holmes had received $1,075 to apply in re-
demption of the premises, and Harder him-
self is noncommittal on the subject of his
knowledge.
• • •
"On February 24, 1911, Conway, through
his attorney, paid to the clerk of the dis-
trict court the sum of $500 as redemption
money, and took the clerk's receipt accord-
ingly. Holmes could rightfully withdraw
this money for no purpose unless to pay it
to Harder. The draft for $575, which he
cashed, was redemption money also, and, if
not paid to Harder, ought to be in the
hands of the clerk. It is conceded that
Harder received none of the money. The
order, therefore, is a summary one, made
by the court in a pending proceeding, to
secure restoration to the treasury of the
court of moneys arising from the litigation
which the attorney has diverted.
...
"In the present case the court was act?'*'*
in its own behalf to secure the retur
629-682
SUPREME COURT OF THE UNITED STATES.
Oct. Tbm^
money belonging in its own custody. By
motion directed against the sheriff, filed for
his client. Harder, the attorney himself in-
stituted the investigation of his professional
conduct. That was the only substantial is-
sue in the case, and he was fully heard,
both as a witness and as an attorney, in
justification of his course. The evidence
which justifies the denial of an order
against the sheriff justifies the order against
him."
[630] A petition for rehearing was pre-
sented and considered by the supreme court.
Therein for the first time Holmes set up a
claim under the 14th Amendment. In its
opinion denying application, the court said
(93 Kan. 246, L.RJl.— -, — , 144 Pac. 206) :
''Holmes still insists that the order upon
him to restore to the clerk [of the court]
the redemption money which came into his
possession was irregular for informality of
procedure. The form of procedure in sum-
mary disciplinary proceedings is not con-
trolling so long as the essentials of fair
notice and opportunity to be heard are pres-
ent. In this case Harder's right to a deed
depended upon what his attorney's profes-
sional conduct had been. That was the pri-
mary issue tendered by the motion to re-
quire the sheriff to make a deed, and the
attorney himself filed the motion and
brought on the investigation. A trial was
had in which all the facts were developed,
Holmes and Hogueland gave their versions
of the agreement with respect to the applica-
tion of the insurance money. The money
was traced, step by step, from the insurance
company through Holmes to Hess. Holmes
was necessarily compelled to describe and
to defend his conduct, and did so by his own
testimony and by other evidence which he
adduced. The result was that in legal effect
he stood before the court as one of its of-
ficers who had diverted from its treasury
funds arising from the litigation. Then the
attorney asked for another hearing, which
was granted. While on the face of the rec-
ord he appeared as the attorney for Harder,
the substance of the issue still was what
the character of his professional conduct
had been. The nature of the charge iagainst
him had been fully disclosed at the first
trial. It appeared in detail and in writing
in the affidavits filed in the case. It was
that charge which he knew he must meet
at the second trial, which he had secured.
He had from August of one year to Febru-
ary of the next year in which to prepare.
1214
To say that he did not [681] make dne-
preparaticm would be to impute to him un-
faithfulness to Harder. He had command of
the case, took such testimony from his for^
mer client, Hess, as he desired, and pre>
sented such other evidence as he desired* in-
cluding additional affidavits of his own.
At the final trial he was given full oppor-
tunity to defend in his own way and to an
extent satisfactory to himself. Conse-
quently every requirement of due process of
law has been satisfied, and the court was
not called upon to go through the ceremon-
ious performance of instituting and prose-
cuting another proceeding; for the Bake of
stating the charges, giving notice, and hav-
ing a hearing, before entering the disci-
plinary order."
The sole question presented for our deter-
mination is whether plaintiff in error has
been deprived of a Federal right.
Ck>nsidering Holmes's position as an of-
ficer of the court, and patient hearings ac-
corded him, his own testimony, and duty to-
offer in evidence whatever was obtainable
and material, his actual presence at every
stage of the proceedings, his failure to sug-
gest surprise or desire for any further hear-
ing, the inquiry touching his conduct, pend-
ing for many months, his perfect acquain-
tance with all the unusual circumstances,,
including his own liability, and looking at
the substance, and not mere ^rm, of things,^
we are unable to say that he has been de-
prived of adequate notice or fair opportunity
to defend, and thereby denied due process
of law. The cause undoubtedly presents
difficulties not to be ignored; and our con-
clusion is restricted to the peculiar circum-
stances before us.
In Louisville & N. R. Go. v. Schmidt, 177
U. S. 230, 236, 44 L. ed. 747, 750, 20
Sup. Ct. Rep. 620, the principles applica-
ble here are announced and applied. "It
is no longer open to contention that the
due process clause of the 14th Amendment
to the Constitution of the United States
does not control mere forms of procedure
in state courts, or regulate practice therein.
All its [632] requirements are complied
with, provided in the proceedings which are
claimed not to have been due process of law
the person c<mdemned has had sufficient no-
tice, and adequate opportunity has been
afforded him to defend."
Affirmed.
Mr. Justice Pitney dissents.
241 V. 8.
MEMORA.3SrDA
OF
Cabbs D18PO8BD OF Without Opikionb.
[637] Lbonabd K. Coates, Plaintiff in Er-
ror, V. District of Columbia. [ No. 166.]
This case, as reported in vol. 241 U. S.
p. 637, has been already reported herein,
ante, p. 479.
WiixiAic B. Thompson, Plaintiff in Error,
V. Cnr OF St. Louis. [No. 167.]
This case, as reported in vol. 241 U. S.
p. 637, has been already reported herein,
ante, p. 480.
HiLMA Nelson, Plaintiff in Error, v. Rich-
ABD 6. Wood. [No. 168.]
This case, as reported in vol. 241 U. S.
p. 637, has been already reported herein,
ante, p. 480.
[638] Vandalia Railboad Ck)MPANT, Plain-
tiff in Error, y. Charles Stilwell. [No.
172.]
This case, as reported in yol. 241 U. 8.
p. 638, has been already reported herein,
ante, p. 480.
RoBEBT Kitchens, Appellant, v. J. C. Ham-
ilton, Sheriff, etc. [No. 672.]
This case, as reported in vol. 241 U. 8.
p. 638, has been already reported herein,
ante, p. 480.
Fbajtk R. Shatpuck, Trustee, etc., et al.,
Appellants, r. Tttle Guabantt & Subs-
tt Oompant. [No. 729.]
This case, as reported in toI. 241 U. S.
p. 638, has been already reported herein,
ante, p. 480.
60 li. ed.
[630] Gtbus Bradley, Plaintiff in Error,
V. Spokane & Inland Empire Railroad
Company. [No. 186.]
Error to state court — ^frivolous Federal
question.
In Error to the Supreme Court of tlie
State of Washington to review a judgment
which affirmed a judgment of the Superior
Court of Spokane County, in that state, in
favor of defendant in an action of eject-
ment.
See same case below, 79 Wash. 455,
L.R.A.— , —, 140 Pac. 688.
Mr. William H. Smiley for plaintiff in
error.
Mr. Will 6. Graves for defendant in er-
ror.
Januaiy 24, 1916. Per Curitum: Dis-
missed for want of jurisdiction upon the
authority of (1) New Orleans Waterworks
Co. v. Louisiana, 185 U. S. 336, 344, 46 L.
ed. 936, 941, 22 Sup. Ct. Rep. 691; Consoli-
dated Tump. Co. V. Norfolk & 0. V. R. Co.
228 U. S. 596, 600, 57 L. ed. 982, 983, 33
Sup. Ct. Rep. 609; Parker v. McLain, 237
U. S. 469, 471, 59 L. ed. 1051, 1053, 35 Sup.
Ct. Rep. 632; (2) Ross v. Oregon, 227 U. S.
150, 57 L. ed. 458, 33 Sup. Ct. Rep. 220,
Ann. Cas. 1914C, 224; Moore-Mansfield
Constr. Co. v. Electrical Installation Co.
234 U. S. 619, 58 L. ed. 1503, 34 Sup. Ct.
Rep. 941; Willoughby v. Chicago, 235 U.
S. 45, 59 L. ed. 123, 35 Sup. Ct. Rep. 23.
J. J. Broussard, Plaintiff in Error, v. R.
R. Baker,! Chief of Police of the City
of Beaumont, Tex. [No. 199.]
Error to state court — frivolous Federal
question.
In Error to the Court of Criminal Ap-
peals of the State of Texas to review a judg-
ment which affirmed a conviction in the Dis-
1 Death of N. N. Smith, and i4>pointment
of his successor, R. R. Baker, as chief of
police of the city of Beaumont, Texas, sug-
gested, and appearance of R. R. Baker, as
the party defendant in error herein, filed
and entered on Novemher 29, 1915.
1215
639-^1
SUPREME COURT OF THE UNITED STATES.
Oct. Tknc,
trict Court of Jefferson County,, in that
state, for maintaining a stock pen within
designated limits without a municipal per-
mit.
See same case below, 74 Tex. Crim. Rep.
333, L.RJI.— , — , 169 8. W. 660.
Mr. Frederick S. Tyler for plaintiff in
error.
No appearance for defendant in error.
January 24, 1916. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of ( 1 ) Consolidated Tump. Co. ▼.
Norfolk & 0. V. R. Co. 228 U. S. 696, 600,
67 L. ed. 982, 983, 33 Sup. Ct. Rep. 609;
Manhattan L. Ins. Co. ▼. Cohen, 234 U. S.
123, 137, 68 L..ed. 1246, 1264, 34 Sup. a.
Rep. 874; Easterling Lumber Co. v. Pierce,
236 U. S. 380, 382, 69 L. ed. 279, 281, 35
Sup. Ct. Rep. 133; (2) Fischer ▼. St. Louis,
194 U. S. 361, 48 L. e^. 1018, 24 Sup. Ct.
Rep. 673; Davis ▼. Massachusetts, 167
[640] U. S. 43, 42 L. ed. 71, 17 Sup. Ct.
Rep. 731; (3) Iowa C. R. Co. v. Iowa, 160
U. S. 389, 40 L. ed. 467, 16 Sup. Ct. Rep.
344; Washington y. Miller, 235 U. S. 422,
429, 59 L. ed. 295, 299, 36 Sup. Ct. Rep.
119; Roby y. South Park Comrs. 238 U. S.
610, 59 L. ed. 1488, 36 Sup. Ct. Rep. 791.
County of Sioux, Neb., Plaintiff in Error
V. Newton Rulk. [No. 207.]
Error to state court — Federal question.
In Error to the Supreme Court of the
State of Nebraska to review a judgment
which affirmed a judgment of the District
Court for Sioux County, in that state,
awarding damages to a landowner for land
taken for a section line road.
See same case below, 94 Neb. 736, 144 N.
W. 806.
Mr. Allen G. Fisher for plaintiff in error.
No brief filed for defendant in error.i
January 24, 1916. Per Curiam: Dis-
missed for want of jurisdiction upon the au-
thority of Stewart v. Kansas City, 239 U.
S. 14, ante, 120, 36 Sup. Ct. Rep. 15.
John H. Stbosnideb, Appellant, v. Eixmund
M. Allen, Warden, etc. [No. 343.]
Habeas corpus — Federal interference with
state administration of criminal law.
Appeal from the District Court of the
United States for the Northern District of
Illinois to review an order refusing relief
by habeas corpus to a person in custody
under a conviction in a state court of ob-
taining money by means of the confidence
game.
Mr. Benjamin C. Bachrach for appellant.
1 Appearance of Albert W. Crites was
entered for defendant in error, but no brief I
filed.
1216
Messrs. Patrick J. Luoey and Lester E
Strawn for appellee.
January 24, 1916. Per Curiam: Judg-
ment afflxined with costs upon the authority
of Urquhart v. Brown, 205 U. S. 179, 51 L
ed. 760, 27 Sup. Ct. Rep. 459; Re Spencer,
228 U. S. 652, 659-661, 57 L. ed. 1010-1013,
33 Sup. Ct. Rep. 709; Frank ▼. Mangum,
237 U. S. 309, 328, 329, 59 L. ed. 969, 980,
981, 35 Sup. Ct. Rep. 582.
Tallulah Falls Railway Company, Pic in-
tiff in Error, v. Mason County Supply
Company. [No. 222.]
Commerce — state regulation of carrier—
conflicting Federal regulation.
In Error to the Supreme Court of the
State of North Carolina to review a judg-
ment which affirmed a judgment of the
Superior Court of Macon County, in that
state, for the recovery of an overcharge on
an interstate freight shipment, and for the
penalty prescribed by a state statute for
failure to refund the overcharge.
See same case below, 166 N. C. 82, UELA.
— , — , 82 S. E. 13.
Mr. Hamilton McWhorter for plaintiff in
error.
No appearance for defendant in error.
February 21, 1916. Per Curiam: Judg-
ment reversed with costs upon the authority
of Southern R. Co. v. Reid, 222 U. S. 424,
56 L. ed. 257, 32 Sup. Ct. Rep. 140; [641]
Yasoo & M. Valley R. Co. v. Greenwood
Grocery Co. 227 U. S. 1, 57 L. ed. 389, 33
Sup. Ct. Rep. 213; Charleston & W. C. R.
Co. V. Vamville Furniture Co. 287 U. S.
597, 59 L. ed. 1137, 35 Sup. a. Rep. 715.
Illinois Central Railboad Company,
Plaintiff in Error, v. Chablbb W. Cous-
ins. [No. 227.]
Master and servant— employers' liability —
when servant is engaged in interstate com-
merce.
In Error to the Supreme Court of the
State of Minnesota to review a judgment
which affirmed a judgment of the District
Court of Ramsey County, in that state, in
favor of plaintiff in a suit brought under
the Federal employers' liability act.
See same case below, 126 Minn. 172,
L.R.A.— , — , 148 N. W. 58, 6 N. C. C. A.
182.
Mr. W. S. Horton for plaintiff in error.
Mr. Samuel A. Anderson for defendant
in error.
February 21, 1916. Per Curiam: Judg-
ment reversed with costs upon the authority
of Delaware, L. & W. R. Co. v. Yurkonis,
238 U. S. 439, 59 L. ed. 1397, 36 Sup. Ct
Rep. 902; Shanks v. Delaware, L. & W. R.
Co. 239 U. S. 556, ante, 436, 36 Sup. Ct
Rep. 188.
141 V. S.
1916.
MEMORANDA CASES.
641-64S
Paul Daxohk, Appellant, t. Albebt Boxx-
tOHWEiUEB, United States Marihal, etc.
[No. 794.]
Appeal — from district court — ^frivolons Fed-
eral qnesticm.
Appeal from the District Court of the
United States for the District of New Jer-
sey to review an order dismissing a writ
of habeas corpus.
Mr. Merritt Lane for appellant.
Mr. Solicitor General Davis for appellee.
February 21, 1916. Ptr Curiam: Dis-
missed for want of jurisdiction upon the au-
thority of (1) Fay V. Crozer, 217 U. S. 455,
64 L. ed. 837, 30 Sup. Ct. Rep. 568; Hannis
Distilling Co. v. Baltimore, 216 U. S. 285,
288, 54 L. ed. 482, 483, 30 Sup. Ct. Rep.
326; Hendricks v. United SUtes, 223 U. S.
178, 184, 56 L. ed. 394, 3i)6. 32 Sup. Ct.
Rep. 313; (2) Benson v. Henkel, 198 U. S.
1, 10, 11, 49 L. ed. 919, 922, 25 Sup. Ct. Rep.
569; Pierce v. Creecy, 210 U. S. 387, 401,
402, 52 L. ed. 1118, 1120, 1121, 28 Sup.
Ct Rep. 714; (3) Glasgow v. Mover, 225
U. S. 420, 56 L. ed. 1147, .32 Sup. (t. Rep.
763; Johnson v. Hoy, 227 U. S. 245, 57 L.
ed. 497, 33 Sup. Ct. Rep. 240; Henry v.
Henkel, 235 U. S. 219, 59 L. ed. 203, 85
Sup. Ct. Rep. 54.
[642] SouTHEBN Railway CoMPANt,
Plaintiff in Error, v. W. C. Thurston.
[Nos. 230, 231, 232, and 233.]
Commerce — state regulation of carrier— con-
flicting Federal legislation.
Four Writs of Error to the Supreme
Court of the State of North Carolina to
review judgments which affirmed judgments
of the Superior Court of Alamance County,
in that state, for the recovery of over-
charges on interstate freight shipments, and
for the penalty prescribed by a state statute
for failure to refund such overcharges.
See same case below, 165 N. C. 598, 81
8. K 785.
Mr. John K. Graves for plaintiff in error.
No appearance for defendant in error.
February 21, 1916. Per Curiam: Judg-
ments reversed with costs upon the authori-
ty of Southern R. Co. v. Reid, 222 U. S.
424, 56 L. ed. 257. 32 Sup. Ct. Rep. 140;
Yazoo ft M. Valley R. Co. v. Greenwood
Grocery Co. 227 U. S. 1, 57 L. ed. 389, 33
Sup. Ct. Rep. 213; Charleston & W. C. R.
Co. V. Vamville Furniture Co. 237 U. S.
697, 69 L. ed. 1137, 35 Sup. Ct Rep. 715.
Court of the State of Ohio to review an or-
der dismissing the petition for a writ of
error, directed to the Court of Appeals of
Cuyahoga County, in that state, which had
affirmed a judgment of the Court of Com-
mon Pleas of said county in favor of plain-
tiffs in personal -injury actions.
Mr. Frank S. Masten for plaintiff in er-
ror.
Mr. George H. Eichelberger for defend-
ants in error.
February 28, 1916. Per Curiam: Dis-
missed for want of jurisdiction upon the au-
thority of Western U. Teleg. Co. v. Crovo,
220 U. S. 364, 866, 55 L. ed. 498, 499, 31
Sup. Ct. Rep. 399; Norfolk & S. Tump.
Co. V. Virginia, 225 U. S. 264, 268, 269, aC
L. ed. 1082, 1085, 1086, 32 Sup. Ct. Rep. 828;
Stratton v. Stratton, 239 U. 8. 55, ante,
142, 36 Sup. Ct. Rep. 26.
Vaixet Steamship CoMPAinr, Plaintiff in
Error, v. JoHir J. Wattawa [No. 546] ;
and Valley Steamship Company, Plain-
tiff in error, v. John Mraz [No. 547].
Error to state court — to what court directed
—dismissal.
Two Writs of Error to the Supreme
«0 li. ed. 77
Mabtra L. Sitnb, Plaintiff in Error, T.
}^Ii8soLRi Stats Life Inbdbanoe Com-
pany. [No. 740.]
Error to district court — jurisdiction — ^Fed-
eral question.
In Error to the District Court of the
United States for the Eastern District of
Missouri to review a judgment in favor of
plaintiff in an action on a policy of life in-
surance for a portion only of the sum de-
manded.
Messrs. Frederick N. Judson and John
F. Green for plaintiff in error.
Mr. James C. Jones for defendant in er-
ror.
February 28, 1916. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of Cornell v. Green, 163 U. S. 75,
79, 80, 41 L. ed. 76-78, 16 Sup. Ct. Rep.
969; Arkansas v. Schlierholz, 179 U. S. 598,
601, 45 L. ed. 335, 337, 21 Sup. Ct. Rep.
229; Lampasas v. Bell, 180 [643] U. S.
276, 282, 45 L. ed. 527, 530, 21 Sup. a.
Rep. 368; Itow v. United SUtes, 233 U. S.
581, 583, 584, 58 L. ed. 1102, 1103, 84 Sup.
Ct. Rep. 609.
Ex pabte: in the Matteb of David Lamas,
Petitioner. [No. — , Original.]
Motion for leave to file petition for Writ
of Mandamus herein, and that a rule to
show cause issue.
Mr. A. Leo Everett for petitioner.
February 28, 1916. Denied. It is further
ordered that a writ of certiorari issue to 1 he
United States Circuit Court of Appeals for
the Second Circuit to bring up the record
in the case of David Lamar, Plaintiff in Er-
ror V. United States.
643-^5
SUPREME COURT OF THE UNITED STATES.
Oct.
Ex Paste: Ik ths Mattcb of Waltbb
Brandt, Petitioner. [No. — , Original.]
Motion for leave to file petition for Writ
of MandamiiB.
Mr. Frans E. Lindquitt for petitioner.
No appearance for respondent.
February 28, 1016. Denied.
State or Soutb Dakota ez rel. R. 0.
RiOHASDS et al.. Plaintiffs in Error/ ▼.
M. D. Whismak, as County Auditor of
Beadle County, South Dakota. [No. 819.]
Error to state court — frivolous Federal
question.
In Error to the Supreme Court of the
State of South Dakota to review a judgment
which affirmed a judgment ot the Circuit
Court of Beadle County, in that state, sus-
taining a demurrer to a complaint by
which it was sought to enjoin the enforce-
ment of a state primary election law.
See same case below, — S. D. — , L.RJI.
— , — , 154 N. W. 707.
Messrs. T. H. Null and Webster Ballinger
for plaintiffs in error.
Messrs. Clarence C. Caldwell and Samuel
Herrick for defendant in error.
March 6, 1916. Per Curiam: Dismissed
for want of jurisdiction upon the authority
of (1) Deming v. Carlisle Packing Co. 226
U. S. 102, 57 L. ed. l40, 33 Sup. Pt, Rep. 80 ;
Consolidated Tump. Co. v. Norfolk &. 0. V.
R. Co. 228 U. S. 596, 600, 57 L. ed. 982, 983,
33 Sup. Ct. Rep. 609; Parker v. McLain, 237
U. S. 469, 471, 472, 59 L. ed. 1051, 1053,
1054, 35 Sup. Ct. Rep. 632; (2) Luther v.
Borden, 7 How. 1, 12 L. ed. 581; Taylor
V. Beckham, 178 U. S. 548, 44 L. ed. 1187,
20 Sup. Ct. Rep. 890, 1009; [644] Pacific
States Teleph. & Teleg. Co. v. Oregon, 233
U. S. 118, 56 L. ed. 377, 32 Sup. Ct. Rep.
224; O^eill v. Leamer, 239 U. S. 244, 248,
ante, 249, 36 Sup. Ct. Rep. 54.
HncHHAK Coal ft Coke Company, Ap-
pellant and Petitioner, v. John Mitohell,
Individually, et al. [No. 241.]
Appeal — from circuit court of appeals — ju-
risdiction below — diverse citizenship.
Appeal from and Petition for a Writ of
Certiorari to the Circuit Court of Appeals
for the Fourth Circuit.
Mr. Hannis Taylor for appellant.
Mr. Charles E. Hogg for appellees.
March 13, 1916. Per Curiam: (1) Ap-
peal dismissed for want of jurisdiction upon
the authority of Shulthis v. McDougal, 225
U. S. 561, 569, 56 L. ed. 1205, 1210, 32 Sup.
Ct. Rep. 704; Omaha Electric Light & P.
Co. V. Omaha, 230 U. S. 123, 57 L. ed. 1419,
33 Sup. Ct. Rep. 974; St. Anthony Church
V. Pennsylvania R. Co. 237 U. S. 576-
577, 59 L. ed. 1119, 1121, 1122, 35 Sup. Ct.
Rep. 729. (2) Considering the petition for
1218
certiorari hitherto filed and upon which
action was previously postponed until the
merits of the case came to be disposed of,
it is ordered that the said petition be, and
the same is, granted, the record on appeal
to stand as a return to the writ of cer-
tiorari It is further ordered that the case,
on the return to the writ of certiorari, be
placed on the docket for argument before a
full bench.
Charles A. Thatoheb, Appellant and Plain-
tiff in Error, v. UmncD States of Am£BI-
ca et al. [No. 484.]
Appeal — in disbarment proceeding.
Appeal from and in Error to the United
States Circuit Court of Appeals for the
Sixth Circuit to review a judgment which
affirmed an order of the Circuit Court for
the Northern District of Ohio, disbarring
an attorney.
See same case below, 129 C. C. A. 255,
212 Fed. 801; on rehearing, 135 C. C. A
71, 219 Fed. 173.
Messrs. Rhea P. Cary, J. Raymond Hoov-
er, and Everett V. Abbot for appellant.
Mr. Solicitor General Davis for appellees.
March 13, 1916. Per Curiam: Dismissed
for want of [645] jurisdiction upon the
authority of Ex parte Bradley, 7 Wall. 364,
376, 19 L. ed. 214, 218; £x parte Robinson,
19 Wall. 513, 22 L. ed. 205.
Fabmebs & Mebciiaxts State Bank of
Waco, Appellant, v. M. C. H. Park, Trus-
tee of Slay den Kirkscy Woolen Mill,
Bankrupt. [No. 108.]
Appeal — review of facts-Msoncurrent find-
ings.
Api^eal from the United States Circuit
Court of Appekls for the Fifth Circuit to
review a decree which affirmed a decree of
the District Court for the Southern District
of Texas, refusing to allow a set-off in bank-
ruptcy proceedings.
See same case below, 126 C. C. A. 607, 209
Fed. 613.
Mr. 0. L. Stribling for appellant.
Messrs. James D. Williamson and Rhodes
S. Baker for appellee.
March 20, 1916. Per Curiam: Judgment
affirmed with costs upon the authority of
First Nat. Bank v. Littlefield, 226 U. S. 110,
112, 57 L. ed. 145, 146, 33 Sup. Ct. Rep. 69 ;
Washington Securities Co. v. United States,
234 U. S. 76, 78, 58 L. ed. 1220, 1222, 34
Sup. Ct. Rep. 725 ; Wright-Blodgett Co. Y.
United States, 236 U. S. 397, 402, 59 L. ed.
637, 639, 35 Sup. Ct. Rep. 339; National
Bank of Athens v. Shackelford, 239 U. S.
81, 82, ante, 158, 36 Sup. Ct. Rep. 17, and
cause remanded to the District Court of the
United States for the Western District of
Texas.
141 V. 8.
1015.
MEMORANDA CASES.
046-647
B08A Falco, Representing Her Minor QiiM,
Manuel Adoaldo Tiberio Ca^inchi y Falco,
Appellant» t. Sucobbsion of Saltadob
SuAu Mulct, Composed of His Widow,
Meria Hernandez Rodriguez, et al. [Ko.
295.]
Appeal — from Porto Rico supreme court —
juriadietion.
Appeal from the Supreme Court of Porto
Rico to review a decree which affirmed a
decree of the District Court of MayagQez, in
favor of defendants in a suit to recover back
sums paid which were not due.
See same case below, 18 P. R. R. 713.
[646] Mr. Jos6 R. F. Savage for appel-
lant.
Mr. Edward S. Paine for appellees.
March 20, 1916. Per Curiam: Dismissed
for want of jurisdiction upon the authority
of f 244 of the Judicial Code, Elzaburu v.
Chaves, 239 U. S. 283, 285, ante, 290, 36 Sup.
Ct. Rep. 47; Gsell v. Insular Collector, 239
U. a 93, ante, 163, 36 Sup. Ct. Rep. 39.
David H. Glass, Appellant, t. Altbb) H.
Woodman et al.i [No. 721.]
Appeal — from circuit court of appeals— ju-
risdiction— diverse citizenship case.
Appeal from the United IStates Circuit
Court of Appeals for the Eighth Circuit to
review a decree which affirmed an order of
the District Court for the Eastern Distriot
of Missouri, denying a petition for inter-
vention in a suit for the appointment of a
receiver and foreclosure.
See same case below, 139 C. C. A. 167,
223 Fed. 621.
Messrs. W. F. Guthrie and Emmet H.
Gamble for appellant.
Messrs. John 8. Leahy, Walter H. Saun-
ders, and Irvin V. Barth for appellees.
March 20, 1916. Per Curiam: Dismissed
for want of jurisdiction upon the authority
of ( 1 ) Bagley v.. General Fire Extinguisher
Co. 212 U. S. 477, 53 L. ed. 605, 29 Sup. Ct
Rep. 341; Omaha Electric Light & P. Co.
V. Omaha, 230 U. S. 123, 57 L. ed. 1419, 33
Sup. Ct. Rep. 974; St. Anthony Church v.
Pennsylvania R. Co. 237 U. S. 675-577, 59
L. ed. 1119-1123, 35 Sup. Ct. Rep. 720;
(2) St. Louis, K. C. & C. R. Co. v. Wabash
R. Co. 217 U. S. 247, 250, 54 L. ed. 752, 754,
30 Sup. Ct. Rep. 510; Railroad Commission
V. Worthington, 225 U. S. 101, 104, 56 L.
ed. 1004, 1000, 32 Sup.. Ct. Rep. 653;
1 Death of Alfred H. Woodman suggested,
and appearance of James P. Newell, public
administrator of the city of St. Louis, and
administrator of the estate of Alfred H.
Woodman, deceased, filed and entered on
March 13. 1916.
60 I4. ed.
ShuUhis ▼. McDougal, 225 U. S. 561,. 568,
56 L. ad. 1205, 1210, 32 Sup. Ct. Rep. 704.
The petition for Writ of Certiorari is de-
nied.
F. P. Seekatz, Plaintiff in Error, v. Medi-
na Valley Ibbigation CoMPA^tT et al.
[No. 294.]
Appeal— from district court — Federal ques-
tion.
In Error to the District Court of th*)
United States for the Western District of
Texas to review a decree fixing the amount
of damages in eminent domain proceedings.
Mr. C. L. Bass for plaintiff in error.
Mr. Floyd McGown for defendants in
error.
March 20, 1916. Per Curiam: Dismissed
for want of jurisdiction upon the authority
of (1) Consolidated Turnp. Co. v. Norfolk
& 0. V. R. Co. 228 U. S. 590, 600, 57 L. ed.
982, 988, 33 Sup. Ct. Rep. 609; Manhattan
t.. Ins. Co. V. Cohen, 234 U. S. 123, 137, 58
L. ed. 1245, 1254, 34 Sup. Ct. Rep. 874;
Easterling Lumber Co. v. Pierce, 235 U. S.
380, 59 L. ed. 270, 35 Sup. Ct. Rep. 133.
(2) Mississippi & R. River Boom Co. v.
Patterson, 98 U. S. 403, Z6 L. ed. 20G;
Madisonville Traction Co. v. St. Bernard
Min. Co. 196 [647] U. S. 230, 49 L. ed.
462, 25 Sup. Ct. Rep. 251 ; Mason City & Ft.
D. R. Co. V. Boynton, 204 U. S. 570, 51 L.
ed. 629, 27 Sup. Ct. Rep. 321; (3) Chica<;o,
B. ^ Q. R. Co. T. Chicago, 166 U. S. 220.
244, 245, 41 L. ed. 979, 987, 988, 17 Sup.
Ct. Rep. 581; Bauman v. Ross, 167 U. S.
648, 593, 42 L. ed. 270, 289, 17 Sup. Ct
Rep. 966; A Backus Jr. & Sons v. Fort
Street Union Depot Co. 169 U. S. 557, 569,
42 L. ed. 853, 859, 18 Sup. Ct. Rep. 445:
(4) Fallbrook Irrig. Dist. v. Bradley, 104
U. S. 112, 41 L. ed. 369, 17 Sup. Ct. Rep.
56; Hairston v. Danville k W. R. Co. 208
U. S. 598, 52 L. ed. 637, 28 Sup. Ct. Rep.
331, 13 Ann. Cas. 1008; O'Neill v. Leamer,
239 U. S. 244, 253, 254, ante, 249, 36 Sup.
Ct. Rep. 54.
Ex PARTE: In thv Matteb of Paul Bukva,
Petitioner. [No. — , Original.]
Motion for l^ive to file petition for Writ
of Mandamus.
Mr. William Wilhelm for petitioner.
No appearance for respondent.
March 20, 1916. Denied.
Ex PARTE: In thb matter or WnxiAic
Sage, Jr., Petitioner. [No. — , Original.]
Motion for leave to file petition for Writ
of Mai^damus.
Mr. Edward A. Alexander for petitioner.
No appearance for respondent.
Mfirch 20, 1916. Denied.
647-649
SUPREME COURT OF THE UNITED STATES.
Oct. Tkuc,
United Railways Ck>MPAirr of S. Louis,
Plaintiff in Error, ▼. Citt or St^ Louis.
[Nos. 366 and 367.]
Error to state oourt — Federal qnestion— de-
cision on non-Federal ground.
Two Writs of Error to the Supreme Oourt
of the State of Missouri to review judg-
ments which affirmed judgments of the Cir-
cuit Court of the City of St. Louis, enfor-
cing a license tax on street railway com-
panies.
See same case below in No. 365, 263 Mo.
387, 174 S. W. 78, No. 367, 263 Mo. 607, 174
S. W. 109.
Mr. Henry S. Priest for plaintiff in error.
Mr. Truman P. Young for defendant in
error.
April 10, 1916. Per Curiam: Dismissed
for want of jurisdiction upon the authority
of: (1) Eustis V. Bolles, 160 U. S. 361, 37
L. ed. 1111, 14 Sup. Ct. Rep. 131; Leathe ▼.
Thomas, 207 U. S. 93, 52 L. ed. 118, 28
Sup. Ct. Rep. 30; Holden Land ft Live Stock
Co. V. Inter-State Trading Co. 233 U. S.
536, 541, 68 L. ed. 1083, 1086, 34 Sup. Ct
Hep. 661; Mellon Co. v. McCafferty, 230
1648] U. S. 134, ante 181, 36 Sup. Ct. Rep.
94; (2) Consolidated Tump. Co. v. Norfolk
ft O. V. R. Co. 228 U. S. 696, 600, 67 L. ed.
982, 983, 33 Sup. Ct. Rep. 609; Parker v.
McLain, 237 U. S. 469, 471, 69 L. ed. 1061,
1063, 36 Sup. Ct. Rep. 632; Stewart v. Kan-
sas City, 239 U. S. 14, ante, 120, 36 Sup.
Ct. Rep. 16; (3) Lindsley v. Natural Car-
bonic Gas Co. 220 U. S. 61, 78, 66 L. ed.
369, 377, 31 Sup. Ct. Rep. 337, Ann. Cas.
1912C, 160; Chicago Dock ft Canal Co. v.
Fraley, 228 U. S. 680, 67 L. ed. 1022, 33
Sup. Ct. Rep. 716; Denver v. New York
Trust Co. 229 U. S. 123, 143, 67 L. ed. 1101,
1124, 33 Sup. Ct. Rep. 667; St. Louis
Southwestern R. Co. v. Arkansas, 236 U. S.
360, 366, 69 L. ed. 266, 273, 36 Sup. Ct.
Rep. 99.
St. Louis ft Suburban Railway Coicpant
et al.. Plaintiffs in Error, v. St. Loins
[No. 866]; Unitkd Railways Company
OF St. Louis, Plaintiff In Error, v. Cmr
of St. Louis, [No. 368] ; United Rail-
ways Company of St. Louis, Plaintiff in
Error, v. City of St. Louis [No. 869];
United Railways Company of St. Louis,
Plaintiff in Error, t. CXty of St. Louis
[No. 370]; United Railways Company
OF St. Loins, Plaintiff in Error, v. City
of St. Louis [No. 371]; and St. Loxtis
Transit Company, Plaintiff in Error, v.
City of St. Louis [No. 372].
Error to state court — Federal question —
decision on non-Federal ground.
Six Writs of Error to the Supreme Court
of the State of Missouri to review judg-
1220
ments which affirmed judgments of the Cit-
cuit Court of the City of St. Louis, oifor-
cing a license tax on street railway com-
panies.
See same case below, Nos. 366, 372, 263
Mo. 508, 174 S. W. 109, 110, Nos. 36S-371,
263 Mo. 507, 174 B. W. 109.
Mr. Henry S. Priest for plaintiffs in er-
ror.
Mr. Truman P. Young for defendant in
error.
April 10, 1916. Dismissed for the want of
jurisdiction.
H. K FiLL£B, Appellant, ▼. Ben Steele,
Sheriff, etc. [No. 731.]
Habeii6' Corpus — ^Federal interference with
state administration of criminal law.
Appeal from the District Court of the
United SUtes for the Western District of
Pennsylvania to review an order denying a
petition for a writ of habeas corpiis.
See same case below, 228 Fed. 242.
Messrs. Ralph D. Hurst and Thomas H.
Greevy for appellant.
Messrs. Cecil E. Heller, C. Ward Eicher.
and George E. Barron for appellee.
April 10, 1916. Per Curiam: Judgment
affirmed with costs upon the authority of:
(1) Ex parte Parks, 93 U. S. 18, 21, 23 L.
ed. 787, 788; Tinsley ▼. Anderson, 171 U.
S. 101, 105, 43 L. ed. 91, 96, 18 Sup. a.
Rep. 805; Frank v. Mangum, 237 U. S.
309, 326, 59 L. ed. 969, 979, 35 Sup. Ct.
Rep. 582; (2) Allen v. Georgia, 166 U. S.
138, 140, 41 L. ed. 949, 950, 17 Sup. Ct. Rep.
525; Felto v. Murphy, 201 U. S. 123, 129,
50 L. ed. 689, 692, 26 Sup. Ct. Rep. 366;
Twining v. New Jersey, 211 U. S. 78, 53
L. ed. 97, 29 Sup. Ct. Rep. 14; Jordan v.
Massachusetts, 225 U. S. 167, 56 L. ed. 1038,
32 Sup. Ct. Rep. 651; (3) Consolidated
Turnp. Co. v. Norfolk & 0. V. R. Co. 228
U. S. 596, 600, 57 L. ed. 982, 983, 33 Sup.
Ct Rep. 600; [649] Overton v. Oklahoma,
235 U. S. 31, 59 L. ed. 112, 35 Sup. Ct
Rep. 14; Stewart v. Kansas City, 239 U.
S. 14, ante, 120, 36 Sup. Ct Rep. 15.
MissouBi Paoifio Railway Compant,
Plaintiff in Error, v. Lababbk Floub
Mills Company. [No. 460.1
Error to state court — second appeal— dis-
missal.
In Error to the Supreme Court of the
State of Kansas to review a judgment en-
tered pursuant to the mandate of the Su-
preme Court of the United States on a
former writ of error.
See same case below, 94 Kan. 683, 147
Pac. 492.
I Messrs. Balie P. Waggener, A. E. Crane,
and W. P. Waggener for plaintiff in error.
141 V. 8.
1915.
MEMORANDA CASB6.
64IMI51
Metsn. Joseph O. Waters and Charles
Blood Smith for defendant in error.
April 17, 1916. Per Curiam: Dismissed
for want of jurisdiction with 10 per centum
damages, upon the authority of: (1) Rob-
erts T. Cooper, 20 How. 467, 481, 15 L. ed.
969, 973; Wayne County v. Kennicott, 94
U. S. 498, 24 L. ed. 260; Clark ▼. Keith,
106 U. S. 404, 27 L. ed. 302, 1 Sup. Ct. Rep.
568; Chaffin ▼. Taylor, 116 U. S. 567, 572,
29 L. ed. 727, 728, 6 Sup. Ct. Rep. 518;
Thompson v. Maxwell Land Grant & R. Co.
168 U. S. 451, 456, 42 L. ed. 539, 541, 18
Sup. Ct. Rep. 121; Illinois v. Illinois C. R.
Co. 184 U. S. 77, 90-93, 46 L. ed. 440, 446,
447, 22 Sup. Ct. Rep. 300; (2) Missouri P.
R. Co. ▼. Larabee Flour Mills Co. 211 U. S.
612, 53 L. ed. 352, 29 Sup. Ct. Rep. 214;
Missouri P. R. Co. v. Larabee, 234 U. S.
459, 58 L. ed. 1398, 34 Sup. Ct. Rep. 979.
Allison MAircHEsnB, Plaintiff in Error, t.
BOABO OF WaTEB COMMISSIONKBS of TH8
Cn-Y OF Hartfobo [No. 863]; Allisox
Manohssteb et al., Plaintiffs in Error
Y, BOABO OF WATES ColClflSSIONBBS OF
THK Cmr OF Habtford [No. 864] ; and
Emma Manchesteb et al., Plaintiffs in
Error, ▼. Board of Water Commission-
ers of the [650] Cmr of Habtford
[No. 865].
Constitutional law — due process — eminent
domain — ^taking land for storage reser-
voir — municipal water supply.
Three Writs of Error to the Supreme
Court of Errors of the State of Connecticut
to reyiew judgments which affirmed judg-
ments of the Superior Court of Littlefield
County, in that state, in favor of the peti-
tioners in condemnation proceedings.
See same case below, first appeal, 87 Conn.
193, 87 Atl. 870, Ann. Cas. 1915A, 1105,
second appeal, 89 Conn. 671, 96 Atl. 182.
Mr. Edward D. Robbins for plaintiffs in
error.
Messrs. Edward M. Day and Alvan Waldr
Hyde for defendant in error.
April 17, 1916. Per Curiam: Judgment
affirmed with costs upon the authority of:
Fallbrook Irrig. Dist. ▼. Bradley, 164 U. S.
112, 160, 41 L. ed. 360, 389, 17 Sup. Ct.
Rep. 56; CUrk ▼. Nash, 198 U. S. 361, 367-
369, 49 L. ed. 1085, 1087, 1088, 25 Sup. Ct.
Rep. 676, 4 Ann. Cas. 1171; Hairston ▼.
Danville & W. R. Co. 208 U. S. 598, 52 L.
ed. 637, 28 Sup. Ct. Rep. 331, 13 Ann. Cas.
1008; Union Lime Co. v. Chicago & N. W.
R. Co. 233 U. S. 211, 218, 219, 58 L.ed. 924,
928, 34 Sup. Ct. Rep. 522; O'Neill v. Lea-
rner, 239 U. S.' 244, 253, ante, 240, 36 Sup.
Ct. Rep. 54; Mt. Vernon- Woodberry Cotton
Duck Co. V. Alabama Interstate Power Co.
240 U. S. 30, 32, ante, 507, 511, 36 Sup. Ct. j
Rep. 234.
60 li. ed.
Ex pabtb: In toe MAxmi of James J.
Gbiffih and Gordon M. Peacock, Peti-
tioners. [No. — , Original.]
Motion for leave to fQe petition for a Writ
of Mandamus.
Mr. Arthur E. Dowell for petitioners.
April 17, 1916. Denied.
Mabt Mulcabe et al.. Administrators, etc..
Plaintiffs in Error, ▼. Crrr of Chicago,
[No. 312.]
Constitutional law— equal protection of the
laws — restriction of right to appeal.
In Error to the Supreme Court of the
State of Illinois to review a judgment re-
fusing a writ of error to the Appellate
Court of that state for the First District,
which had affirmed a judgment of the Cir-
cuit Court of Cook County in favor of de-
fendant in an action on a contract.
See same case below, in Appellate Court
of Illinois, 172 111. App. 195.
Mr. John W. Walsh for plaintiffs in error.
Mr. Chester E. Cleveland for defendant in
error.
April 24, 1916. Per Curiam: Judgment
affirmed with costs upon the authority of
Missouri v. Lewis (Bowman v. Lewis) 101
U. S. 22, 25 L. ed. 989; Cincinnati Street
R. Co. V. Snell, 193 U. 8. 30, 35-37, 48 L.
ed. 604, 607, 608, 24 Sup. Ct. Rep. 319.
EIansas Citt, Mexico, & Obient Railway
Company, Plaintiff in Error, v. State of
Texas. [No. 188.]
Error to state oourt — ^moot case — Federal
question.
[651] In Error to the Supreme Court of
the State of Texas to review a judgment
which modified a judgment of the Court of
Civil Appeals of that state for the Third
District, affirming a judgment of the Dis-
trict Court of Travis County, requiring a
railway company to build its line to a
county seat, by directing that the manda-
tory writ be suspended while the railway
remains in the hands of receivers.
See same case below, 106 Tex. 249, 163
S. W. 582.
Mr. Herbert S. Garrett for plaintiff in
error.
Mr. Frank L. Snodgrass for defendant in
error.
April 24, 1916. Per Curiam: Dismissed
for want of jurisdiction upon the authority
of: (1) Jones v. Montague, 194 U. S. 147,
48 L. ed. 913, 24 Sup. Ct. Rep. 611; Rich-
ardson V. McChesney, 218 U. S. 487, 54 L.
ed. 1121, 31 Sup. Ct. Rep. 43; Steams v.
Wood, 236 U. S. 75, 59 L. ed. 475, 35 Sup.
Ct. Rep. 229; (2) Kansas City Star Co. v.
Julian, 215 U. S. 589, 54 L. ed. 340, 30
Sup. Ct. Rep. 406; Forbes v. State Council,
216 U. S. 396-399, 64 L. ed. 584-536, 30
1211
6G1-653
SUPREME COURT OF THE UNITED STATES.
Got. Tebm,
Sup. Ct. Rep. 295; St. Louis & S. F. R. Go.
V. Shepherd, 240 U. ,S. 240, ante, 622, 36
Sup. Ct. Rep. 274; (3) Henkel v. Cincin-
nati, 177 U. S. 170, 44 L. ed. 720, 20 Sup.
Ct. Rep. 573; Fullerton ▼. Texas, 196 U. S.
192, 194, 49 L. ed. 443, 444, 25 Sup. Ct.
Rep. 221; Allen v. Arguimbau, 198 U. S.
149, 156, 49 L. ed. 990, 993, 25 Sup. Ct.
Rep. 622; Cleveland & P. R. Co. ▼. Cleve-
land, 235 U. S. 50, 55, 69 L. ed. 127, 128,
35 Sup. Ct. Rep. 21; (4) Deming v. Car-
lUle Packing Co. 226 U. S. 102, 57 L. ed.
140, 33 Sup. Ct. Rep. 80; Consolidated
Turnp. Co. v. Norfolk & 0. V. R. Co. 228
U. S. 596, 600, 57 L. ed. 982, 983, 33 Sup.
Ct. Rep. 609; Parker v. McLain, 237 U. S.
469, 471, 59 L. ed. 1051, 1053, 35 Sup.
Ct. Rep. 632. See Pinney v. Nelson, 183
U. S. 144, 147, 46 L. ed. 125, 127, 22 Sup.
Ct. Rep. 52; Abilene Nat. Bank v. Dolley,
228 U. S. 1, 5, 57 L. ed. 707, 709, 33 Sup.
Ct. Rep. 409; Lake Shore & M. S. R. Co.
▼. Ohio, 173 U. S. 285, 289, et seq., 43 L. ed.
702, 703, 19 Sup. Ct. Rep. 465; Cincinnati,
L & W. R. Co. V. Connersville, 218 U. S.
336, 54 L. ed. 1060, 31 Sup. Ct. Rep. 93, 20
Ann. Cas. 1206; Missouri P. R. Co. v. Kan-
sas, 236 U. S. 262, 283, et seq., 54 L. ed.
472, 481, 30 Sup. Ct. Rep. 330.
Wilson Ctpbesb Company, Appellant, v.
Enbique del Pozo t Maboos et aL [Na
135, October Term, 1914.]
Motion for leave to file in the trial court
a supplemental bill in the nature of a
bill of review.
See 236 U. S. 635, 59 L. ed. 758, 35 Sup.
Ct. Rep. 446.
Mr. John C. Cooper for appellant.
Messrs. Joseph H. Jones, William W.
Dewhurst, and John C. Jones for appellees.
May 1, 1916. Denied.
Ignatius Timothy Tbibich Lincoln, Ap-
pellant, V. James M. Poweb, Mabshal,
etc. [No. 793.]
Foreign extradition — ^habeas corpus.
Appeal from the District Court of the
United States for the Eastern District of |
New York to review an order refusing re-
lief by habeas corpus to a person in custody
under an extradition warrant.
See same case below, 228 Fed. 70.
Mr. Addison S. Pratt for appellant.
Mr. Charles Fox for appellee.
May 1, 1916. Per Curiam: Judgment
affirmed with costs upon the authority of
( 1 ) Re Oteiza y Cortes, 136 U. S. 330, 334,
34 L. ed. 464^ 466, 10 Sup. Ct. Rep. 1031,
8 Am. Crim. Rep. 241; Ornelas v. Ruiz, 161
U. S. 502, 508, 40 L. ed. 787, 789, 16 Sup.
Ct. Rep. 689; [652] Bryant v. United
SUtes, 167 U. S. 104, 105, 42 L. ed. 94, 95,
17 Sup. Ct. Rep. 744; Terlinden t. .^es,
184 U. S. 270, 278, 46 L. ed. 534, 541, 22
Sup. Ct. Rep. 484, 12 Am. Crim. Rep. 424;
Elias V. Ramirez, 215 U. S. 398, 406, 407,
54 L. ed. 253, 256, 257, 30 Sup. Ct. Rep.
131; McNamara ▼. Henkel, 226 U. S. 520,
523, 57 L. ed. 330, 332, 33 Sup. Ct. Rep. 146 ;
(2) David Kaufman & Sons Co. v. Smith,
216 U. S. 610, 54 L. ed. 636, 30 Sup. Ct.
Rep. 419; Toop v. Ulysses Land Co. 237 U.
S. 580, 59 L. ed. 1127, 35 Sup. Ct. Rep.
739 ; Manila Invest. Co. v. Trammell, 239
U. S. 31, ante, 129, 86 Sup. Ct. Rep. 12. '
1111
Daniel A. Long, Plaintiff in Error, t. John
£. Shepabd. [No. 324.]
Errqr X9 state court — Federal question —
local law.
•
In Error to the Supreme Court of the
State of Oklahoma to review a judgment
which, reversing a judgment of the District
Court of Hughes County, in that state, deny-
ing plaintiff's motion for judgment on the
pleadings in a suit to cancel a deed, directed
the entry of judgment for the cancelation
of such deed as to a part of the land covered
by it.
See same case below, 35 Okla. 489, 130
Pac. 131.
Messrs. Lewis C. Lawson and C. Dale
Wolfe for plaintiff in error.
No appearance for defendant in error.
May 8, 1916. Per Curiam: Dismissed
for the want of jurisdiction upon the au-
thority of National Foundry & Pipe Works
V. Oconto Water Supply Co. 183 U. S. 216,
237, 4Q L. ed. 157, 170, 22 Sup. Ct. Rep.
Ill; Vandalia R. Co. v. Indiana, 207 U. S.
359, 367, 52 L. ed. 246, 248, 28 Sup. a.
Rep. 130; Brinkmeier v. Missouri 1'. R.
Co. 224 U. S. 268, 270, 56 L. ed. 758, 760,
32 Sup. Ct. Rep. 412.
Ex PABTE: In the Mattes of ELenrr R.
Robinson, Petitioner. [No. , Orig-
inal.]
Motion for leave to file petition.
Messrs. George W. Ellis and R. E. West-
brooks for petitioner.
No appearance for respondent.
[653] May 8, 1916. Denied.
Anna C. Dunham et al.. Plaintiffs In £r-
ror, V. Claba V. Kauffman et al. [No.
189.] .
Error to state court — frivolous Federal
question.
In Error to the Supreme Court of the
State of Ohio to review a decree which af-
firmed a decree of the Court of Appeala of
Franklin County, in that state, affirming a
141 V. S.
1916.
MEMORANDA CASES.
653, 054
decree of the common pleas court which re-
fused to enjoin the consolidation of two cor-
porations.
See same case below, 90 Ohio St. 419, 108
N. E. 1118.
Mr. D. K. Watson for plaintiffs in error.
Mr. Charles C. Pavey for defendants in
error.
May 22, 1916. Per Curiam: Dismissed
for want of jurisdiction, upon the author-
ity of (1) Equitable Life Assur. Soc. v.
Brown, 187 U. S. 308, 314, 47 L. ed. 190,
193, 23 Sup. Ct. Rep. 123; Consolidated
Tump. Co. V. Norfolk & 0. V. R. Co. 228
U. S. 596, 600, 57 L. ed. 982, 983, 33 Sup.
Ct. Rep. 609; Manhattan L. Ins. Co. v.
Cohen, 234 U. S. 123, 137, 58 L. ed. 1245,
1254, 34 Sup. Ct. Rep. 874. (2) Penn-
sylvania College Cases, 13 Wall. 190, 20
L. ed. 550; Newburyport Water Co. v.
Newburyport, 193 U. S; 561, 48 L. ed. 795,
24 Sup. Ct. Rep. 553; Missouri P. R. Co.
V. Kansas, 216 U. S. 262, 274, 275, 54 L.
ed. 472, .477, 478, 30 Sup. Ct. Rep. 330
(3) Deming v. Carlisle Packing Co. 226
U. 6. 102, 105, 57 L. ed. 140, 142, 33 Sup.
Ct. Rep. 80: Ennis Waterworks ▼. Ennis,
233 U. S. 652, 658, 58 L. ed. 1139, 1141,
34 Sup. Ct. Rep. 767; Parker v. McLain,
237 U. 8. 469, 471, 59 L. ed. 1051, 1053, 35
Sup. Ct. Rep. 632.
RoBEBT D. KiKszT, Plaintiff in Error, v.
Plticouth Rock Squab Compant et aJ.
[No. 344.]
Appeal — ^from circuit court of appeals — ^ju-
risdiction.
In Error to the United States Circuit
Court of Appeals for* the First Circuit to
review a judgment which affirmed a judg-
ment of the District Court of Massachusetts
in favor of defendant in an action on an al-
leged judgment.
See same case below, 131 C. C. A. 178, 214
Fed. 766.
Mr. Robert D. Kinney, plaintiff in error,
pro se.
No appearance for defendants in error.
May 22, 1916. Per Curiam: Dismissed
for want of jurisdiction upon the author-
ity of (1) Bagley v. General Fire Extin-
guisher Co. 212 U. S. 477, 53 L. ed. ^05,
29 Sup. Ct. Rep. 341; Weir v. Rountree,
216 U. 8. 607, 54 L. ed. 635, 30 Sup. Ct.
Rep. 418; St. Anthony Church v. Penn-
sylvania R. Co. 237 U. S. 575, 59 L. ed
1119, 35 Sup. Ct. Rep. 729; (2) Provident
Sav. Life Assur. Soc. v. Ford, 114 U. S.
635, 64l, 642, 29 L. ed. 261, 263, 264, 5
Sup. Ct. Rep. 1104; Metcalf v. Watertown,
128 U. S. 586, 588, 32 L. ed. 543, 544, 9
Sup. Ct. Rep. 173; Pope v. Louisville, N.
60 Ii. ed.
A. & C. R. Co. 173 U. S. 573, 580, 581, 43
L. ed. 814, 817, 818, 19 Sup. Ct. Rep. 500.
See United States ex rel. Kinney v. United
States Fidelity & G. Co. 222 U. S. 283, 56
L. ed. 200, 32 Sup. Ct. Rep. 101; [654]
Kinney v. Plymouth Rock Squab Co. 236
U. S. 43, 59 L. ed. 457, 35 Sup. Ct. Rep.
236.
FiBST National Bank of Defiance,
Plaintiff in Error, v. William A. Keh-
NAST et al. [No. 333.1
Error to state court — Federal question — de-
cision on non- Federal ground.
In Error to the Supreme Court of the
State of Ohio to review a jiftgment which
affirmed a judgment of the Circuit Court of
Defiance County, in that state, which had
in turn affirmed a judgment of the Coni-
mon Pleas Court in favor of defendants in
an action by a national bank upon certain
promissory notes.
See same case below, 91 Ohio St. 377, 110
N. E. 1059.
Messrs. Robert Newbegin and Henry New-
begin for plaintiff in error.
Messrs. T. T. Shaw, Henry B. Harris, E.
J. Marshall, and H. W. Eraser for defend-
ants in error.
May 22, 1916. Per Curiam: Dismissed
for want of jurisdiction upon the author-
ity of (1) Eustis V. Bolles, 150 U. S. 361,
37 L. ed. 1111, 14 Sup. Ct. Rep. 131;
Chemical Nat. Bank v. City Bank, 160 U.
S. 646, 40 L. ed. 568, 16 Sup. Ct. Rep. 417;
Leathe v. Thomas, 207 U. S. 93, 52 L. ed.
118, 28 Sup. Ct. Rep. 30; Mellon Co. v.
MoCafferty, 239 U. S. 134, ante, 181, 36
Sup. Ct. Rep. 94; (2) Leather Mfrs. Nat.
Bank v. Cooper, 120 U. S. 778, 781, 30 L.
ed. 816, 818, 7 Sup. Ct. Rep. 777; Whitte-
more v. Amoskeag Nat. Bank, 134 U. S.
527, 530, 33 L. ed. 1002, 1004, 10 Sup. Ct.
Rep. 592; Petri v. Commercial Nat. Bank,
142 U. S. 644, 36 L. ed. 1144, 12 Sup. Ct.
Rep. 325; Herrmann v. Edwards, 238 U.
S. 107, 69 L. ed. 1224, 86 Sup. Ct Rep.
839.
St. Louis & Sait Fbanoisoo Railbdad Com-
FAirr, Plaintiff in Error, y. John H.
MouivTS. [No. 362.]
Carriers — limiting liability to agreed value
— Carmack amendment.
In Error to the Supreme Court of the
State of Oklahoma to review a judgment of
the District Court of Tillman County, in
that state, against a carrier, for the full
value of a horse killed in transit in inter-
state commerce, notwithstanding a limita-
tion of liability in the bill of lading to an
i^greed value.
192S
654-e66
SUPREME CX)URT OF THE UNITSD STATES.
OOT. TkiM,
See same case below, 44 Okla. 360, 144
Pac. 1036.
Mr. R. A. Kletnsehmidt for pUintifT in
error.
Ko oounsel appeared for defendant in
error.
June 6, 1916. Fw Ownam: Judgment
reversed with costs, and cause remanded for
further proceedings upon the authority of
Adams Exp. Co. v. Croninger, 226 U. S. 491,
67 L. ed. 314, 44 L.R.A.(N.S.) 257, 33 Sup.
Ct. Rep. 148; Missouri, K. & T. R. Go. v.
Harriman, 227 U. 8. 657, 57 L. ed. 690, 33
Sup. Ct. Rep. 397; Atchison, T. & S. F.
R. Co. V. Robinson, 233 U. S. 173, 58 L.
ed. 901, 34 Sup. Ct. Rep. 556; Georgia, F.
k A. R. Co. V. Blish Mill. Co. 241 U. S. 190,
ante, 948, 36 Sup. Ct Rep. 541.
[655] Ex PASTE: In thk Matteb of El-
BEST R. RoBiNSOif, Petitioner. [No. — ,
Original.]
Motion for leave to file an amended peti-
tion.
Mr. Richard E. Westbrooks for petitioner.
June 6, 1916. Denied.
OsANOE Wilson White, Plaintiff in Error,
V. State or Wyoming. [No. 578.]
Error to state court — frivolous Federal ques-
tion.
In Error to the Supreme Court of the
State of Wyoming to review a judgment
which affinhed a conviction of murder in
the District Court of Natrona County, in
that state.
See same case below, — Wyo. — ^ 147
Pac. 171; on rehearing, 148 Pac. 342.
Mr. A. E. L. Leckie for plaintiff in error.
Mr. Douglas A. Preston for defendant in
error.
June 12, 1916. Fw Curiam: Dismissed
for want of jurisdiction, upon the authority
of Deming v. Carlisle Packing Co. 226 U.
S. 102, 106, 67 L. ed. 140, 142, 83 Sup. Ct
Rep. 80; Consolidated Tump. Co. v. Nor-
folk & 0. V. R. Co. 228 U. S. 596, 600, 67
L. ed. 982, 983, 33 Sup. Ct. Rep. 609;
Overton v. Oklahoma, 236 U. S. 81, 69 L.
ed. 112, 35 Sup. Ct Rep. 14; Parker t. Mo-
Lain, 287 U. 8. 469, 471, 472, 69 L. ed.
1051, 1053, 1064, 35 Sup. Ct Rep. 682.
District of California, denying writs of
habeaa corpus.
See same case below, 137 C. C. A. 166,
221 Fed. 868.
Mr. Marshall B. Woodworth for appel-
lant
Mr. Solicitor General Davis for appellee.
June 12, 1916. Per Curiam: Dismissfd
for want of jurisdiction, upon the authority
of Lau Ow Bew v. United States, 144 U. 8.
47, 58, 36 1m ed. 340, 344, 12 Sup. Ct. Rep
517; Whitney v. Dick, 202 U. S. 132, 135,
60 L. ed. 963, 964, 26 Sup. Ct Rep. 584;
McClellan v. Carland, 217 U. S. 268, 278,
64 L. ed. 762, 766, 30 Sup. Ct. Rep. 501.
Petition for Writ of Certiorari herein
granted.
TtMOTHT Healt, Appellant, t. Saicukl W.
Backus, Commissioner, etc [No. 687.]
Appeal — ^from circuit court of appeals —
habeas corpus cases-^certiorari.
Appeal from the United States Circuit
Court of Appeals for the Ninth Circuit to
review a judgment which affirmed a judg-
ment of the District Court for the Northern ' p. 485.
1294
Ex PARTE: In the Mattbi of Watts,
Watts, & Co., Ltd., Petitioner. [No. — ,
Original.]
Motion for leave to file petition for Writ
of Mandamus.
Messrs. Mark W. Maclay, Jr., J. Parker
Kirlin, and John M. Woolsey for petitioner.
[656] June 12, 1916. Denied.
Ex PASTE: lir THE MATTER OF JOHN H.
Sears, as Trustee, Petitioner. [No. — ,
Original.]
Motion for leave to file petition for Writ
of Mandamus.
Mr. A. H. Ferguson, in behalf of Mr. Car-
roll G. Walter, for petitioner.
No appearance for respondent.
June 12, 1916. Denied.
Martin H. Free, Plaintiff In Error, y.
Western Union Telegraph Cokpant.
[No. 226.]
Motion to vacate judgment of dismissal
herein, and to restore case to the docket.
Messrs. B. I. Salinger and Frederick S.
Tyler for plaintiff in error.
Messrs. Rush Taggart and Francis Ray-
mond Stark for defendant in error.
Jims 12, 1916. Granted.
I
Wells Fargo ft Compant, Petitioner, t.
Mayor and Aldhrmen of Jersey City.
[No. 792.]
This case, as reported in vol. 241 U. S.
656, has been already reported herein, ante^
141 V. S.
1U16.
MEMORANDA CASES.
657-«59
[657] St. Louis Union Trust Coif pant,
Petitioner, ▼. Mart E. Mellon et al.
[No. 735.]
See same case below, 140 C. C. A. 607,
225 Fed. 603.
Mr. W. F. Wilson for petitioner.
No appearance for respondents.
January 24, 1916. Order of December
20, 1915, denying petition, vacated and set
aside, and a writ of certiorari granted.
Waldo P. Clement et al., Petitioners, ▼. D.
W. James. [No. 720.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
See same case below, 128 C. C. A. 470,
211 Fed. 972.
Messrs John R. Abney and Hollins N.
Randolph for petitioners.
Messrs. Alexander W. Smith, Theodore A.
Hammond, Victor Lamar Smith, and Alex-
ander W. Smith, Jr., for respondent.
January 24, 1916. Denied.
Yee Kong, Petitioner, v. W. W. Sibbat, Ira-
migration Inspector, et al. [No. 768.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Third Circuit.
See same case below, 141 C. C. A. 555,
227 Fed. 1.
Mr. Lowrie C. Barton for petitioner.
No appearance for respondents.
January 24, 1916. Denied.
Houston Oil Compant of Texas et al.,
Petitioners, v. Cobneua G. Goodbich et
al. [No. 784.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit
Messrs. Thomas M. Kennerly and William
[658] L. Marbury for petitioners.
No appearance for respondents.
January 31, 1916. Granted.
William A. Stowe, Plaintiff in Error, t.
EMifA F. Tatlob. [No. 221.]
Petition for a Writ of Certiorari to the
Superior Court of the State of Massa-
chusetts, or other proper proceeding under
the act of Congress of December 23, 1914.
Mr. HoUis R. Bailey for plaintiff in er-
ror.
Mr. James H. Vahey for defendant in
error. 1
January 31, 1916. Denied.
1 Appearance of Mr. Vahey entered for
defendant in error, but he filed no brief on
this petition.
«0 Ii. ed.
National Bank of CoifiaBCB or Seattlb,
Petitioner, v. United States. [No. 763.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appe^s for
the Ninth Circuit.
See same case below, 140 C. C. A. 219,
224 Fed. 679.
Messrs. James A. Kerr and E. 8. McCord
for petitioner.
No brief filed for respondent.
January 31, 1916. Denied.
Geobge L. Dube, Receiver, etc., Petitioner,
▼. William C. Wbight, Trustee, etc.
[No. 804.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
See same case below, 228 Fed. 1021.
Mr. John R. L. Smith for petitioner.
Messrs. Orville A. Park and Geo. 8.
Jones for respondent.
January 31, 1916. Denied.
Centbal Railboad Company or New Jee-
BET, Petitioner, v. Uniied States. [No.
805.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Third Circuit.
See same case below, 229 Fed. 501.
[659] Mr. Richard V. Lindabury for peti-
tioner.
Mr. G. Carroll Todd,* Assistant to the
Attorney General, for respondent.
February 21, 1916. Denied.
Bbuce Bobland, Petitidner, y. Nobtheen
Tbust Safe Deposit Company. [No.
821.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
See same case below, 228 Fed. 1019.
Messrs. George P. Fisher and Joslah Mo-
Roberts for petitioner.
Messrs. Robert H. Parkinson and Wallaot
R. Lane for respondent.
February 21, 1916. Denied.
National Bbake & Elsotbio Company, Pe-
titioner, y. Neils A. Chbi8tbn8EN et al.
[No. 824.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
See same case below, 229 Fed. 564.
Messrs. Parker W. Page, Thomajs B. Kerr,
J. Snowden Bell, and Charles A. Brown for
petitioner.
Messrs. Joseph B. Cotton, Willet M
Spooner, and William R. Rummler for re-
spondents.
February 21» 1916. Denied.
1996
659--662
SUPREME COURT OF THE UNITED STATES.
OOT. Tkbm,
Glabk PEASKy Petitioner, ▼. Rathbun-
JoNBs Enoineebino Cokfant. [No.
820.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit
Messrs. Perry J. Lewis and E. 0. Bran-
denburg for petitioner.
No appearance for respondent.
February 28, 1916. Granted.
WiLUAK FiLEiTB's SoNS COMPANY, Peti-
tioner, V. Charles F. Weed et aL [Ko.
827.]
Petition for a Writ of Certiorari to the
United States [660] Circuit Court of Ap-
peals for the First Circuit.
^IcsBfs. Louis D. Brandeis, William H.
Dunbar, and J. Butler Studley for peti-
tioner.
Messrs. Charles F. Choate, Jr., and Fred-
erick U. Nash for respondents.
February 28, 1916. Granted.
RoBEBT H. Gabdineb, stc., Petitioner, y.
William S. Butleb (Inc.) etc. [No. 831.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the First Circuit.
Messrs. Bentley J. Warren and Francis
B. James for petitioner.
Messrs. Charles F. Choate, Jr., and Fred-
erick H. Nash for respondent.
February 28, 1916. Granted.
Antonio Ciffo, Petitioner, ▼. Mabie Ciffo.
[No. 825.]
Petition for a Writ of Certiorari to the
Court of Appeals of the District of Colum-
bia.
See same case below, 44 App. D. C. 217.
Mr. Charles F. Carusi for petitioner.
Mr. W. Gwynne Gardiner for respond-
ent.
February 28, 1916. Denied.
Joseph H. Coubtnet, Trustee, ete., Peti-
tioner, ▼. Eugene A. Geobgoi. [No. 834.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
See same case below, 228 Fed. 869.
Messrs. Charles P. Hine and Rufua 8.
Day for petitioner.
Mr. E. H. Letchworth for respondent.
February 28, 1916. Denied.
J226
St. Louis Southwebtisn Railway Cox-
pant, Petitioner, ▼. Cboeijo Maodel et aL
[Ko. 836.]
[661] Petiti<m for a Writ of Certiorari
to the United States Circuit Court of Ap-
peals for the Fifth Circuit.
See same case below, 141 C. C. A. 671, 227
Fed. 1021.
Messrs. E. B. Perkins and Edward A
Haid for petitioner.
Mr. Perry J. Lewis for respondents.
February 28, 1916. Denied.
Pbess Pubushino Company, Petitioner, ▼.
Cassius E. Gillette. [No. 841.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
See same case below, 229 Fed. 108.
Messrs. Joseph H. Clioate and Howard
Taylor for petitioner.
Mr. D. Cady Herrick for respondent.
February 28, 1916. Denied.
Habby B. Hollins, Petitioner, v. A. Lso
EVEBBTT, Receiver, etc. [Ko. 844.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
See same case below, 229 Fed. 349.
Messrs. Charles K. Beekman and William
C. Armstrong for petitioner.
Mr. Leonard B. Smith for respondent.
February 28, 1916. Denied.
Maby C. Keyseb et al., Petitioners, t. W. H.
Milton, Receiver, etc [>io. 861.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
See same case below, 228 Fed. 594.
Messrs. Francis B. Carter, W. A. Blount,
and A. C. Blount for petitioners.
Mr. W. H. Watson for respondent.
February 28, 1916. Denied.
El Dia IirsuBANOE Compaiiy, Petitioner, v.
William S. Sinclaib. [No. 852.]
Petition for [662] a Writ of Certiorari
to the United States Circuit Court of Ap-
peals for the Second Circuit.
See same case below, 228 Fed. 833.
Mr. Wendell P. Barker for petitioner.
Mr. William Otis Badger, Jr., for re-
spondent.
February 28, 1916. Denied.
141 V. S.
J916.
MEMORANDA CASES.
662-664
W. E. Martiw, Jb., Trustee, etc., Petitioner,
▼. GoKMicBCiAL National Baick of
Maoon, Ga. [No. 839.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Mr. Rudolph S. Wimberly for petitioner.
Xo appearance for respondent.
March 6, 1916. Granted.
Cecil F. Adamson, Petitioner, v. David C.
Gujlland. [No. 878.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Mr. Percy B. Hills for petitioner.
No appearance for respondent.
March 13, 1916. Granted.
Jesse Isidor Stbaus et al., etc., Petitioners,
v. Victor Talking Machine Company.
[No. 840.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Messrs. Edniond E. Wise and Walter C.
Noyes for petitioners.
Messrs. Frederick A. Blount and Hector
T. Fenton for respondent.
March 6, 1916. Granted.
Union Trust Compant, Petitioner, v.
Minnie Kahn Gkosican et al. [No. 862.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Mr. William H. Atwell for petitioner.
Messrs. Francis Marion Etheridge and
J. M. McCormick for respondents.
March 6, lOlG. Granted.
Jacob Blumenthal, Trading as J. Blum-
entlial & Company, et al., Petitioners, v.
Benjahin L. [663] Strat et al., etc
[No. 797.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Third Circuit.
See same case below, 227 Fed. 843.
Mr. George F. Deiser for petitioners.
No appearance for respondents.
March 6, 1916. Denied.
TuBULAB Woven Fabric Compant, Petition-
er, T. National Mvtal Moij)ino Com-
pany. [No. 871.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the First Circuit.
See same case below, 227 Fed. 884.
Messrs. William Qninby, F. W. Lehmann,
Frank G. Gladney, Liyingston Gifford, and
Peter G. (Jerry for petitioner.
Mr. Charles F. Perkins for respondent.
March 6, 1016. Denied.
€0 li. ed.
Georob Rue, Petitioner, v. United States.
[No. 848.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fifth Circuit.
See same case below, 228 Fed. 1022.
Mr. Cecil H. Smith for petitioner.
No appearance for respondent.
March 13, 1016. Denied.
Edwabd W. G. Meebs, et al.. Petitioners, ▼.
Alrebt Childers. [No. 877.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
[664] for the Eighth Circuit.
See same case below, 228 Fed. 640.
Messrs. Julian C. Wilson, Walter P. Arm-
strong, and Daniel W. Baker for petitioners
No appearance for respondents.
March 13, 1916. Denied.
OscAB J. Weeks, Petitioner, ▼. United
States. [No. 870.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Mr. Walter Jeffreys Carlin for petitioner.
Mr. Solicitor General Davis for respuiid-
ent.
March 20, 1916. Granted.
Cnr OF Colobado, Texas, Petitioner, v.
Clabisse M. Habbison. [No. 880.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
See same case below, 228 Fed. 894.
Mr. Robert Toombs Neill for petitioner.
Mr. James T. Neville for respond^it.
April 3, 1916. Denied.
Alvin H. Stoxjt, Petitioner, v. United
States. [No. 894.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 227 Fed. 799.
Mr. H. L. Stuart for petitioner.
No appearance for respondent.
April 3, 1916. Denied.
1197
66i-d67
SUPREME COURT OF THE UNITED STATES.
Ooi. Tbm,
William E. Cbutchlxt, Petitioner, y. Na-
tional FntiPBOOFiNO CoicPAirr. [No.
898.]
Petition for a Writ of Certiorari to the
Court of Appeals of the District of Colum-
bia.
See same ease below, 44 Wash. L. Rep. 20.
Mr. Daniel W. Baker for petitioner.
Messrs. Walter C. Clephane and Alan B.
Clephane for respondent.
April 3, 1916. Denied.
[665] C. W. Johnson, Tbusive, etc., Peti-
tioner, v. Louisvillb Woolen Mills.
[No. 901]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
See same case below, 228 Fed. 606.
Mr. D. A. Sachs for petitioner.
Mr. Keith L. Bullitt for respondent.
April 3, 1916. Denied.
Oboboe a. Fuller Company, Petitioner, ▼.
Otib Elevator Company. [No. 909.]
Petition for a Writ of Certiorari to the
Court of Appeals of the District of Colum-
bia.
Mr. Edward S. DuTall, Jr., for peti-
tioner.
Messrs. Frederick D. McKenney and J. S.
Flannery for respondent.
April 10, 1916. Granted.
Clabk Pease et al., Petitioners, ▼. Rath-
bun-Jones Enqineebing Company. [No.
911.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Messrs. Perry J. Lewis and Edwin C.
Brandenburg for petitioners.
No appearance for respondent.
April 10, 1916. Granted.
VicTOB Hebbebt et al., Petitioners, v. Shan-
ley Company. [No. 924.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Messrs. Nathan Burkan and W. J.
Hughes for petitioners.
Mr. Abraham S. Gilbert for respondent.
April 10, 1916. Granted.
John Chubgh Company, Petitioner, y. Hil-
LiABD Hotel Company et al. [No. 930.]
Petition [666] for a Writ of Certiorari
to the United States Circuit Court of Ap-
peals for the Second Circuit.
Mr. Moses H. Grosman for petitioner.
Mr. Levi Cooke for respondents.
April 10, 1916. Granted.
1228
Helen Hise et al.. Petitioners, y. We8Teb5
Coal ft Mnmvo Company. [No. 683.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ei£^th Circuit.
See same case below, 132 C. C. A. 482.
216 Fed. 338.
Mr. John H. Vaughn for petitioners.
Messrs. Edward J. White and Thomas B.
Pryor for respondent.
April 10, 1916. Denied.
Monaonock Mills, Petitioner, v. Henbt E.
FusHEY, Administrator, etc. [No. 683.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the First Circuit.
See same case below, 140 C. C. A 72,
224 Fed. 386.
Mr. H. W. Parker for petitioner.
Mr. George F. Morris for respondent.
AprU 10, 1916. Denied.
Gold Medal Camp Fubnitube Manufao-
tubing Company, Petitioner, v. Tblc-
SCOPE Cot Bed Company. [No. 861.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
See same case below, 229 Fed. 1002.
Mr. Charles F. Fawsett for petitioner.
Mr. Alan D. Kenyon for respondent
April 10, 1916. Denied.
Pebcy B. Suluvan, Petitioner, ▼. Umted
States. [No. 906.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
[667] the Seventh Circuit.
Messrs. Leslie A. Gilmore and Frank S.
Bright for petitioner.
Mr. Solicitor General Daris for respond-
ent.
April 10, 1916. ' Denied.
Fbanklin Huff et al., Petitioners, ▼.
United States. [No. 917.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
See same case below, 228 Fed. 892.
Messrs. C. L. Bartlett, John D. Little,
Marion Smith, A. G. Powell, and M. F.
Goldstein for petitioners.
Mr. Solicitor General Davis and Mr. As-
sistant i^ttorney General Wallace for re-
spondent.
April 10, 1916. Denied.
141 V. 8.
191&
MEMORANDA CA8S&
667-600
Bklb Watib Hkatb GoicPAirr, Petitioner,
y. PlTTSBUBQK WATB HkATEB COICPANT.
[No. 922.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Third Circuit.
See same case below, 228 Fed. 674.
Mr. Melville Church f<nr petitioner.
No appearance for respondent.
April 10, 1916. Denied.
Paul E^gush et al.. Petitioners, t. Ella
Wymax Bbown et al. [No. 931.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Third Circuit.
See same case below, 229 Fed. 34.
Messrs. H. C. Brome and Andrew Foulds,
Jr., for petitioners.
Mr. Chauncey Q. Parker for respondents.
AprU 10, 1916. Denied.
Hbnbt C. Callaohan, Petitioner, y. Com-
mon wealth OF MASaAOHUBEITB. [No.
937.]
[668] Petition for a Writ of Certiorari
to the Superior Court of the State of Mas-
sachusetts.
See same case below, in Supreme Judicial
Court of Massachusetts, 223 Mass. 160, 111
N. E. 773.
Messrs. Joseph F. CConnell, Bernard J.
Killion, and Charles Toye for petitioner.
No appearance for respondent.
April 10, 1916. Denied.
W. A. Gaines & Company, Petitioner, y.
Hkllman Distillino Company, etc. [No.
906.]
Petition for a writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 88 C. C. A. 437, 161
Fed. 495.
Messrs. Edmund F. Trabne, D. W. Lind-
scy, and James Loye Hopkins for petitioner.
Messrs. W. T. Ellis and Luther Ely Smith
for respondent.
April 17, 1916. Denied.
W. O. Simpson et al.. Petitioners, y. United
Stai-es. [No 916.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ninth Circuit.
See same case below, 229 Fed. 940.
Mr. William H. Atwell for petitioners.
No appearance for respondent.
April 17, 1916. Denied.
€0 li. ed.
Chablbb T. Tuckeb, Petitioner, y. Unito
States. [No. 921.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
See same case below, 140 CCA. 279,
224 Fed. 833.
Messrs. Charles T. Tucker, in fnvpria per-
aona, Nathaniel H. Maxwell, and Francis
B. James for petitioner.
Mr. Solicitor General Dayis and Mr. As-
sistant Attorney General Wallace for re-
spondent.
April 17. 1916. Denied.
John K. Rose, etc., et al.. Petitioners, y.
Peteb McCleixand, Jr. [No. 933.]
Petition for a Writ of Certiorari to the
United States Circuit Court of [669] Ap-
peals for the Fifth Circuit
See same case below, 137 C. C. A. 619,
222 Fed. 67.
Messrs. Richard I. Munroe, Marshall Sur-
ratt, and J. J. Darlington for petitioners.
Messrs. Francis Marion Etheridge and
James Manson McCormick for respondent.
April 17, 1916. Denied.
Anna S. Hopkins, Petitioner, y. Lawbence
Hull, Trustee, etc [No. 944.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
See same case below, 229 Fed. 378.
Mr. J. Grattan MacMahon for petitioner.
Winifred Sullivan for respondent.
AprU 17, 1916. Denied.
Alexander Nisbet, as Commissioner, etc..
Petitioner, v. Federal Title & Trust
Company. [No. 946.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 229 Fed. 644.
Messrs. Elijah N. Zoline and John T.
Bottom for petitioner.
Messrs. Ernest Morris and William W.
Grant, Jr., for respondent.
April 17, 1916. Denied.
United States, as Trustee, etc., Petitioner,
y. HiBAH Chase. [No. 954.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Mr. Solicitor General Davis for petitioner.
Messrs. Hiram Chase and William R.
King for respondent.
April 24, 1916. Granted.
1119
669-672
SUPREME COURT OF THE UNITED STATES.
Got. Temm,
R. L. MouiDBif, Trustee, etc., Petitioner, ▼.
Pablin & Obbndobit Implbicent Com-
PAirr et al. [No. §23.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
See same case below, L.RAl. — , — , 228
Fed. 111.
Mr. Jesse P. Gates for petitioner.
Messrs. Frjancis Marion Etheridge and
Joseph Manson McCormick for respondents.
[670J April 24, 1916. Denied.
Mason & Hangeb Company, Petitioner, v.
Michael Shabon. [No. 948.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
See same case below, first appeal, 135
C. C. A. 276, 219 Fed. 526; second appeal,
231 Fed. 861.
Mr. Herman S. Hertwig for petitioner.
Mr. Sydney A. Symc for respondent.
AprU 24, 1916. Denied.
Stcabns Coal and Lumbeb Compant, Pe-
titioner, V. John S. Van Winkle et al.
[No. 956.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
See same case below, 137 C. C. A. 314, 22]
Fed. 590.
Mr. James N. Sharp for petitioner.
Mr. James Garnett for respondents.
April 24, 1916. Denied.
Habbt Oliveb, Petitioner, ▼. United States.
[No. 938.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ninth Circuit.
See same case below, 230 Fed. 971.
Messrs. George A. Knight and Charles J.
Heggerty for petitioner.
Mr. Solicitor General Davis for respond-
ent.
May 1, 1916. Denied.
John P. Bbooan, Petitioner, y. National
Subett Company. [No. 949.]
Petition for a Writ of Certiorari to the
United States Circuit Court of [671] Ap-
peals for the Sixth Circuit.
See same case below, L.R.A. — ^ — ^ 228
Fed. 677.
Mr. John A. Cline for petitioner.
Mr. Thomas H. Hogsett for respondent.
May 1, 1916. Denied.
ISSO
Geoboe W. Bowen, etc., Petttioner, ▼. Dices
Pbesb Quabd Manueactubino Compant
et al. [No. 856.]
Petition for a Writ of Certiorari to the
United States Cireoit Court of Appeala for
the Second Circuit.
See same case below, 229 Fed. 573.
Mr. Charles F. Fawsett for petitioner.
No counsel appeared for respondents.
May 8, 1916. Denied.
Matob and Cirr Counsel of Baltimobe,
Petitioner, v. United Railways & Elec-
TBic Company of Baltimobb. [No. 955.]
Petition for a Writ of Certiorari to the
Coprt of Appeals of the State of Maryland.
See same case below, — Md. -^, 96 Atl.
880.
Mr. S. S. Field for petitioner.
Mr. Sylvan Hayes Lauchheimer for re-
spondent.
May 8, 1916. Denied.
WnjJAM W. Downey, Receiver, etc., Pe-
titioner, v. Habtfobd Fibe Insubancb
Company. [No. 958.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fourth Circuit.
See same case below, 139 C. C. A. 237, 223
Fed. 707.
Messrs. John 0. Henson and Malcolm
Jackson for petitioner.
Messrs. W. Calvin Chesnut and John W.
Davis for respondent.
May 8, 1916. Denied.
GUABANTY TbUST COMPANY OF NEW YOBR
et al.. Petitioners, v. Bettendobf Axle
Company. [No. 967.]
Petition for a Writ of Certiorari to th*r
[672] United States Circuit Court of Ap-
peals for the Eighth Circuit.
See same case below, 139 C. C. A. 132, 223
Fed. 542.
Mr. Alfred W. Kiddle for petitioners.
Mr. James R. SheflSeld for respondent
May 8, 1916. Denied.
Bbonx National Bank, Petitioner, ▼.
Mabcus Rosenthal, Trustee, etc [Na
970.]
Petition for a Writ of Certiorari to th»
United States Circuit Court of Appeals for
the Second Circuit.
See same case below, 231 Fed. 691.
Messrs. Charles D. Folsom and John Hall
Jones for petitioner.
Mr. Eugene L. Bondy for respondent.
May 8, 1916. Denied.
141 V. B.
1916.
MEMORANDA CASES.
672-675
J. A. Fbxbmi, AdminiBtrator, etc.. Peti-
tioner, T. Chioaoo, JjAkx Shobb, & South
Bend Railway Company. [No. 972.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
Mr. John N. Hughes for petitioner.
Mr. S. H. Tolles for respondent.
May 8, 1916. Denied.
Bates County, in the State of Missouri,
et al., Petitioners, v. Percy A. Hipple et
al., etc. [No. 976.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 138 C. C. A. 430,
223 Fed. 22.
Mr. John T. Barker for petitioners.
Mr. William M. Williams for respond-
ents.
May 8, 1916. Denied.
ViBoiNiA Railway k Power Company et
al.. Petitioners, v. Charles Hall Davis.
[No. 980.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fourth Circuit.
See same case below, 229 Fed. 633.
Messrs. [673] £. Randolph Williams,
Charles P. Howland, Eppa Hunton, Jr.,
Arthur H. Van Brunt, and Henry W. An-
derson for petitioners.
Mr. James Mann for respondent.
May 8, 1916. Denied.
British Steamship Company (Ltd.), etc.,
Petitioner, ▼. Mary A. Clarile. [No.
983.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the-^Fifth Circuit.
Messrs. J. Parker Kirlin, Charles R.
Hickox, and Mark W. Maclay, Jr., for peti-
tioner.
Messrs. W. A. Blount, A. C. Blount, and
F. B. Carter for respondent.
May 8, 1916. Denied.
National Carbon Company et al., Peti-
tioners, V. Ohio Motor Car Company et
al. [No. 984.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
See same case below, 230 Fed. 370.
Mr. W. B. Mente for petitioners.
Messrs. Province M. Pogue and Harry M.
Hoffheimer for respondents.
May 22, 1916. Denied.
60 li. ed.
W. L. Wilson, Petitioner, t. Frank Waldo
et al. [No. 996.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fourth Circuit.
See same case below, 231 Fed. 654.
Messrs. Julius C. Martin, Thomas S. Rol-
lins, and George H. Wright for petitioner.
Mr. James H. Merrimon for respondents.
May 22, 1916. Denied.
Crescent Milling Company, Petitioner, v.
H. N. Strait Manufacturing Company.
[No. 939.]
[674] Petition for a Writ of Certiorari
to the United States Circuit Court of Ap-
peals for the Eighth Circuit.
See same case below, 227 Fed. 804.
Messrs. Harris Richardson and £. C.
Brandenburg for petitioner.
Mr. John I. Dille for respondent.
May 22, 1916. Denied.
Alice State Bank et al.. Petitioners, t.
Houston Pasture Company. [No. 973.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Messrs. Henry W. Taft and Walter P.
Napier for petitioners.
Mr. William D. Gordon for respondent.
May 22, 1916. Granted.
L. T. Hays, Petitioner, v. United States.
[No. 978.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Mr. Harry 0. Glasser for petitioner.
No appearance for respondent.
May 22, 1916. Granted.
William McCoACii, Collector, etc., Peti-
tioner, ▼. Insurance Company of North
America. [No. 998.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Third Circuit.
Mr. Solicitor General Davis for peti-
tioner.
Messrs. G. W. Pepper and Bayard Henry
for respondent.
May 22, 1916. Granted.
William H. Miner, Petitioner, t. T. H.
Symington Company. [No. 1018.]
Petition for a [676] Writ of Certiorari
to the United States Circuit Court of Ap-
peals for the Seventh Circuit.
Messrs. Charles C. Lenthicum and George
I. Haight for petitioner.
Messrs. Melville Church and Gilbert P
Ritter for respondent.
June 5, 1916. Granted.
1231
•76-^77
SUPREME COURT OF THE UNITED STATES.
Oct. TkBM,
H. B. H0LLIN8 k CoMPAKT, Petitioner, ▼.
A. Leo Evkbbtt, aB Receiver, etc. [No.
086.]
Petition for a Writ of Certiorari to the
United SUtes Circuit Court of Appeals for
the Second Circuit.
See same case below, 232 Fed. 124.
Meears. Charles K. Beekman and William
C. Armstrong for petitioner.
Mr. Leonard B. Smith for respondent.
June 5, 1916. Denied.
Leiiioh k Whjebsbabbe Coal Company,
Petitioner, t. Habitord k New York
Tbamsfobtation Company. [No. 994.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
See same case below, 140 C. C. A. 1, 225
Fed. 483.
Mr. Jackson E. Reynolds for petitioner.
Mr. John W. Grifl&n for respondent.
June 5, 1916. Denied.
William H. Coopbb, Petitioner, t. United
States. [No. 1006.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
See same case below, 232 Fed. 81.
Mr. John W. Griggs for petitioner.
Mr. Solicitor General Davis for respond-
ent.
June 5, 1916. Denied.
William F. Murray, Postmaster, Petition-
er, V. Post Publishing Company. [No.
1007.]
Petition for a Writ of Certiorari to the
United States Circuit [676] Court of Ap-
peals for the First Circuit.
See same case below, 230 Fed. 773.
Mr. Solicitor General Davis for petitioner.
Mr. Edmund A. Whitman for respondent
June 5, 1916. Denied.
William I. Lewis, etc. Petitioner, y. In-
ternational Steam Pump Company et
al. [No. 1015.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Messrs. Merritt Lane and W. Bourke
Cockran for petitioner.
Messrs. Charles H. Russell, Paul D.
Cravath, and William W. Green for respond-
ents.
June 5, 1916. Denied.
1282
D18TBICT OF Columbia, Pttitioner, t. Wash-
ington Gas Light Company. [No. 1017.]
Petition for a Writ of Certiorari to the
Court of Appeals for the Diatrict of Co-
lumbia.
See same case below, 44 Waah. L. Rep.
262.
Messrs. Conrad H. Syme and F. H.
Stephens for petitioner.
Messrs. Benjamin S. Minor, Colley W.
Bell, and J. J. Darlington for respondent
June 6, 1916. Denied.
Whitney Eaklb Habmon, Petitioner, ▼.
Unfted States. [No. 1022.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appesls
for the First Circuit.
See same case below, 139 C. C. A. 19, 223
Fed. 425.
Mr. A. Coulter Wells for petitioner.
No counsel appeared for respondent.
June 5, 1916. Denied.
Marconi Wibelbss Telegbapk. Compaivt
OF America, Petitioner, v. Emil J. Simon.
[No. 1013.]
Petition for a Writ of Certiorari to th'i
United States [677] Circuit Court of Ap-
peals for the Second Circuit.
Mr. John W. Griggs for petitioner.
Mr. Walter H. Pumphrey for respondent
June 12, 1916. Granted.
Watts, Watts, k Company, Petitioner, ▼.
Unions Austbiaca oe Navigazione, etc.
[No. 1046.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Messrs. J. Parker Kirlin, John M. Wool-
sey, and Mark W. Maclay, Jr., for peti-
tioner.
Mr. Charles S. Haight for respondent.
June 12, 1916. Granted.
Fields S. Pendleton, Petitioner, t. Bennkb
Line. [No. 1041.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Messrs. Avery F. Cushman and Harvey
D. Goulder for petitioner.
Mr. D. Roger Englar for respondent.
June 12, 1916. Granted, conditioned on
the petitioner furnishing a bond within
twenty days, in an amount to secure pay-
ment of the judgment, the amount of the
bond to be satisfactory to the circuit ju-
tice, and to be approved by him.
S41 U. 8.
1915.
MEMORANDA CASES.
677-680
United States kz ul. William F. Aaant
T. Fbanklin K. Laick, Secretary of the
Interior. [No. 706.]
Petition for a Writ of Certiorari to the
Court of Appeals of the District of Co-
lombia to bring up the whole record and
cause.
Messrs. Samuel Maddox, H. Prescott
Gatley, and J. H. Camahan for petitioner.
No brief filed for respondent.
June 12, 1916. Denied.
[678] Ctnthia Lendbat, Petitioner, t.
Chicago, Bublington, k Quinot Kail-
BOAD Compant. [No. 764.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
Mr. E. F. Thompson for petitioner.
Messrs. F. B. Daniels and William Burry
for respondent.
June 12, 1916. Denied.
Baixdbis Clothing Compant, Petitioner, t.
BUBICHAM-MUNGEB-ROOT DbY GOOD8 COM-
PANY et al. [N08. 991, 992.]
Petitions for Writs of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit
See same case below, 228 Fed. 470.
Messrs. James H. Harkless, D. R. Hite,
and Clifford Histed for petitioner.
Mr. Edwin A. Krauthoff for respondents.
June 12, 1916. Denied.
John W. Enbight et al.. Petitioners, t.
Abthub Yanoet. [No. 1001.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
See same case below, 230 Fed. 641.
Mr. Grafton L. McGill for petitioners.
Messrs. John Dymond, Jr., and A. Oiffen
Levy for respondent.
June 12, 1916. Denied.
Union Terminal Company et al.. Petition-
ers, T. TUBNSB CONSTBUOnON COMPANY.
[No. 1006.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
See same case below, 229 Fed. 702.
Mr. J. T. O. Crawford for petitioners.
Mr. Richard P. Marks for respondent.
June 12, 1916. Denied.
•0 li. ed.
James F. Bishop, Administrator, etc., Pe-
titiimer, v. Edwabd B. Pbyob, Receiver,
etc [No. 1014.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
Mr. E. F. Thompson for petitioner.
Messrs. John M. Zane, Charles F. Morse,
and James L. Minnie for respondent.
[679] June 12, 1916. Denied.
First National Bank or Roswell, Peti-
tioner, V. HoGQSON Bbothebs. [No.
1019.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 231 Fed. 869.
Mr. William C. Reid for petitioner.
Mr. Selden Bacon for respondents.
June 12, 1916. Denied.
Joseph F. Wilson ft Company, Claimant,
etc.. Petitioner, v. South Atlantic
Steamship Company. [No. 1020.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
See same case below, 231 Fed. 101.
Messrs. J. Parker Kirlin, William R.
Leaken, and Mark W. Maclay, Jr., for peti-
tioner.
Mr. Samuel B. Adams for respondent.
June 12, 1916. Denied.
Cobnelia E. Clement, Petitioner, t. Maby
Ann Whittakeb, etc. [No. 1024.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Third Circuit.
See same case below, 231 Fed. 940.
Messrs. Robert H. McCarter, Gilbert Col-
lins, and A. V. Dawes for petitioner.
Mr. Bayard Stockton for respondent.
June 12, 1916. Denied.
St. Louis Southwbstebn Railway Oom-
PANY, Petitioner, t. W. H. MdLAUGHLiN
et al. [No. 1026.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
See same case below, 232 Fed. 678.
Messrs. Edward A. Haid, A. L. Burford,
and W. T. Wooldridge for petitioner.
Messrs. George B. Rose, W. E. Heming-
way, J. F. Loughborough, and V. M. Miles
for respondents.
[680] Juno 12, 1916. Denied.
78 ISSS
680-682
SUPREBIB OOURT OF THE UNITED STATES.
Oor. Tknc,
ICiXOOiTADO 4 OoMPAinr, PetiiioiMr, t. New
YoiK k Cuba Mail Stkaimhif Oompaht.
[No. 1027.]
Petition for a Writ of Certiorari to the
United States Circuit Court of i^peale for
the Second Circuit.
See eame case below, 140 C. 0. A. 877,
226 Fed. 368.
Mr. Daniel P. Haji for petitioner.
Messrs. Norman B. Beecher and Boseoe
H. Hupper for respondent.
June 12, 1916. Denied.
J. Baoon k Sons, Petitioner, t. Bobebt C.
KniKKAD. [No. 1028.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
See same case below, 230 Fed. 362.
Mr. WUliam Marshall Bullitt for peti-
tioner.
Mr. H. H. Nettelroth for respondent.
June 12, 1016. Denied.
MoNTGOMBRY Wabd k CoMPANT (Inc.),
Petitioner, v. Iowa Washing MAORuns
CoMPAirr. [No. 1036.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Messrs. Taylor E. Brown and Clarence E.
Mehlhope for petitioner.
Messrs. Robert H. Parkinson and Wallace
R. Lane for respondent.
June 12, 1016. Denied.
WBamroHOUBB Elbctbxo k Makutaotobp
ING CoMPAirr et al.. Petitioners, t. Idaho-
Obbgon [681] Light k Pow^ Compant
et al. [No. 1030.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ninth Circuit.
See same case below, 180 C. C. A. 608,
224 Fed. 30.
Mr. Charles E. Rushmore for petitioners.
Messrs. James H. Richards and OliTer 0.
Haga for respondents.
June 12, 1016. Denied.
Obahd T^ruNK Railway Ooicpaht, Peti-
tioner, T. UifiTBD States. [No. 1040.]
Petition for a Writ of Certiorari to the
United States Circuit Court of AppeiJs for
the Seventh Circuit.
See same case below, 220 Fed. 116.
Mr. G. W. Kretsinger, Jr., lor peti-
tioner.
No appearance for respondent.
June 12, 1016. Denied.
1SS4
WmiAM E. D. Stokbb si aL, Petitfoaers,
T. HOWABD H. WiLIlAMS 0t BL [No.
1042.]
Petitk» for a Writ of Certiorari to the
United States Circuit Court of il^^peals for
the Third Circuit.
See same case below, 141 C. C. A. 146,
826' Fed. 148.
Mr. Charles L. Craig for petitioners.
Messrs. Howard H. Williams and Georgt
C. Kobbi for respondents.
June 12, 1016. Denied.
TwoBHKD CoifCBKTB Steel Compant, Peti-
tioner, T. COBBUOATD BaB CoiiPANT.
[No. 1046.]
Petition for a Writ of Certiorari to the
United States Circuit Court of AppeaUi for
the Second Circuit.
See same case below, 188 a C. A. 114, 222
Fed. 514.
Mr. Fred L. Chappell fdr petitioner.
Mr. James A. Carr for respondent.
June 12, 1816. Denied.
L. P. ft J. H. Smith CoicpAirr, Petitioner,
y. Calumet TBahbit Compant, etc [No.
1050.]
Petition for a Writ of Certiorari to the
United States [682] Circuit Court of Ap-
peads for the Sixth Circuit.
See same case below, 228 Fed. 481.
Messrs. Harvey D. Goulder and Frank 8.
Mas ten for petitioner.
Messrs. William B. Cadj and Francis S.
Laws for respondent.
June 12, 1016. Denied.
Hawoood k Ayebt Transit Compaht, Peti-'
tioner, y. Mbaposd Transpobtation Cox-
pant [No. 1051] ; and Hawgooo ft Atbt
Transit Compant, Petitioner, t. Eua
Williams, Administratrix, etc [No.
1052].
Petition for Writs of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit
See same ease below, 282 Fed. 564.
Mr. Harvey D. Goulder for petitioner.
Messrs. Charles E. Kremer and Qeorgc L
Canfield for respondents.
June 12, 1816. Denied.
Inditsndbnt Pneumatic Tool Oompant,
Petitioner, t. Burks Elbctbio Compant.
[No. 1053.]
Petition for a Writ of Certiorari to the
United States Circuit Court of il^^peals for
the Second Circuit.
Mr. John Robert Taylor for petitioner.
Mr. Clifton V. Edwards for respondent
June 12, 1016. Denied.
S41 V. S.
1916.
MEMORANDA CASB8.
68»-«86
OABia H. O0LLIN8 et aL, Pl&intifft in |
Error, t. Rurus PhillipbI et al., Tnu-
teeiT etc, at aL [No. 173.]
In Error to' the Supreme Court of the
State of Pennsylvania.
Mesnrt. Charles K. Robinson and Jas. W.
Collins for plaintiffs in error.
Messrs. William J. Kyle and John 0.
Bayne for defendants in error.
[683] January 12, 1916. Dismissed with
costs, pursuant to the Tenth Rule.
D. F. Deatoit, Plaintiff in Error, t. Com-
MONWEALTB OF KENTUCKY. [No. 177.]
In Error to the Court of Appeals of the
State of Kentucky.
Mr. Edward S. Jouett for plaintiff in
•jrror.
No appearance for defendant in error.
January 13, 1916. Dismissed with costs,
pursuant to the Tenth Rule.
United States, Appellant, t. Melvxn
Booth,' Administrator, etc. [No. 192.]
Appeal from the Court of Claims.
The Attornqr General for appellant.
Mr. George A. King for appellee.
January 17, 1916. Dismissed on motion
of counsel for the appellant.
J. C. McClelland, as State Auditor of the
State of Oklahoma, et al., Appellants, t.
MissouBi, Kansas, ft Texas Railway
Company. [No. 206.]
Appeal from the District Court of the
United States for the Western District of
Oklahoma.
Mr. Charles West for appellants.
No appearance for appellee.
January 20, 1916. Dismissed with costs,
pursuant to the Tenth Rule.
Rebecca Loth et al., Plaintiffs in Error, t.
City of St. Louis et al. [No. 190.]
In Error to the Supreme [684] Court of
the State of Missouri.
Mr. David Goldsmith for plaintiffs in
error.
Mr. Truman P. Toung for defendants in
error.
January 20, 1916. Dismissed with costs
on motion of counsel for the plaintiffs in
error.
i Appearance of Rufus Phillips, William
Phillips, Phoebe Jsne Phillips, Emily Phil-
lips, Ruth PhiUips, William Phillips, and
Charles Phillips, trustees under the will of
William S. Phillips, etc., et al., as parties
defendant in error in this cause, filed and
entered on October 12, 1915.
• Death of Olin R. Booth suggested, and
appearance of Melven Booth, as adminis-
trator of Olin R. Booth, deceased, as the
5 arty appellee herein, filed and entered on
annary 10, 1916.
•0 li. ed.
Chu Tax Noah, Petitioner, t. SAimsL W.
Backus, Commissioner, ete. [No. 768.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ninth Circuit
See same case below, 141 CCA. 276,
226 Fed. 446.
Messrs. 0. P. Stidger and C. L. BouvS for
petitioner.
No appearanse for respondent.
January 24, 1916. Dismissed on motion
of counsel for the petitioner.
Mabtin H. Fbeb, Plaintiff in Error, T.
Westebn Union Teleqbaph Coicpany.
[No. 226.]
In Error to the Supreme Court of the
State of Wisconsin.
Mr. B. I. Salinger for plaintiff in error.
Messrs. Rush Tsggart, George H. Fea-
rons, and Francis Raymond Stark for de-
fendant in error.
January 24, 1916. Dismissed with costs
pursuant to the Tenth Rule.
Anna Toung, Appellant, t. West End
SiSEET Railway Company et al. [No.
261.]
Appeal from the District Court of the
United States for the District of Massa-
chusetts.
Mr. Burton E. Eames for appellant.
Messrs. Alex. Britton, Evans Browne, and
Charles A. Williams for appellees.
January 26, 1916. Dismissed with costs,
pursuant to the Tenth Rule.
[685] Amy Cubtis, Appellant, t. West End
Stbeztt Railway Company et al. [No.
252.]
Appeal from the District Court of the
United States for the District of Massa-
chusetts.
Mr. Burton E. Eames for appellant.
Messrs. Charles A. Williams, Alex. Brit-
ton, and Evans Browne for appellees.
January 26, 1916. Dismissed with eosts,
pursuant to the Tenth Rule.
Conqbeqaoi6n ds la Mi8i6n db San Vi-
CENTK DB Paul, Appellant, v. Fbanoisoo
Reyxs y Muabbs and El Banco Espafiol
FUipino. [No. 868.]
Appeal from the Supreme Court of the
Philippine Islands.
No appearance for appellant
Mr. Evans Browne for appellees.
February 21, 1916. Docketed and dis-
missed with costs, on motion of counsel for
the appellees.
ISSft
686-687
SUPREME COURT OF THE UNITED STATES.
Cot. Tebm,
W. 0. Haoan et al., Plaintiffs in Error, v.
Madison F. Laskik. [No. 313.]
In Error to the Superior Court of Cochise
County, State of Arizona.
Mr. Benjamin C. Tunison for plaintiffs in
error.
No appearance for defendant in error.
February 21, 1016. Dismissed with costd,
on motion of counsel for the plaintiffs in
error.
Southern Obbgon Company, Plaintiff in
Error, t. W. W. Qagb, Sheriff of Coos
Counly, Oregon [No. 544.]
In Error to the Supreme Court of the
State of Oregon.
Messrs. Joseph Simon and John M. Gear-
in for plaintiff in error.
No appearance for defendant in error.
February 21, 1916. Dismissed with costs,
on motion of counsel for the plaintiff in
error.
[686] Erie Railboad Company, Plaintiff
in Error, ▼. George Prowski, as Admin-
istrator, etc. [No. 584.]
In Error to the Supreme Court of the
State of New York.
Mr. George F. Brownell for plaintiff in
error.
No appearance for defendant in error.
February 21, 1916. Dismissed with costs,
on motion of coimsel for the plaintiff io
error.
CuBnci Brothers Company, Appellant, v.
Harry E. Barnard et al. [No. 243.]
Appeal from the United States Circuit
Court of Appeals for the Seventh Circuit.
Mr. Lawrence Maxwell for appellant.
Mr. Bert Winters for appellees.
February 23, 1916. Dismissed without
costs to either party« per stipulation of
counseL
State of Sottth Dakota, Complainant, t.
Charles H. Cassill. [No. 13, Original.]
Messrs. Cllirence C. Caldwell, Robert J.
Gamble, and Edward E. Wagner for com-
plainant.
No appearance for respondent.
February 29, 1916. Dismissed per stipu-
lation of counseL
19S6
Northern Express Compakt, Plaintiff in
Error, v. State or Washington. [No.
298.]
In Error to the Supreme Court of the
State of Washington.
See same case below, first appeal, 80 Wash
309, 141 Pac 757 ; second i^peal, 81 Wash.
701, 143 Pac 99.
Mr. Charles W. Bunn for plaintiff in er-
ror.
No appearance for defendant in error.
February 29, 1916. Dismissed with costs,
on motion of counsel for the plaintiff in
error.
Joe Judge and M. Buntinn;, Plaintiffs in
Error, v. P'rank M. Powers, Judge, etc,
et al. [No. 10.]
In Error [687] to the Supreme Court of
the State of Iowa.
See same case below, 156 Iowa, 251, 136
N. W. 315, Ann. Cas. 1915B, 280.
Messrs. B. I. Salinger and Frederick S.
Tyler for plaintiffs in error.
No appearance for defendants in error.
March 2, 1916. Dismissed with costs, on
motion of counsel for the plaintiffs in error.
National Surety Company et al.. Plain-
tiffs in Error, v. United States to the
USE OF J. A. HoLUXGER et al. [No. 2G7.1
In Error to the United States Circuit
Court of Appeals for the Third Circuit.
See same case below, first appeal, 130 C.
C. A. 65, 213 Fed. 429.
Mr. A. C. Stamm for plaintiffs in error.
Mr. John E. Fox for defendants in error.
March 6; 1916. Dismissed with costs, on
motion of counsel for the plaintiffs in
error.
William A. Stowe, Plaintiff in Error, t.
Emma F. Taylor. [No. 221.]
In Error to the Superior Court of the
State of Massachusetts.
Mr. Hollis R. Bailey for plaintiff in error.
Mr. James H. Vahey for defendant in
error.
March 8, 1916. Dismissed with costs, on
motion of counsel for the plaintiff in error.
J. P. Cunningham, Appellant, v. J. P.
Floxtrnoy, Sheriff, etc., et al. [No. 297.]
Appeal from the District C-ourt of the
United States for the Western District of
Louisiana.
Mr. Taliaferro Alexander for appellant
No appearance for appellees.
March 14, 1916. Dismissed with costs,
pursuant to the Tenth Rule:
14 1 U. 6.
1915.
MEMORANDA CAS£8.
087-e90
Mabbaohusettb Bonding & Insubance
CtoMFANT, Plaintiff in Error, ▼. Realty
TtoST OoMPAirT [688] et &1. [No. 304.]
In Error to the Supreme Ck>urt of the
State of Georgia.
See same case below, 142 Ga. 400, 83 S.
E. 210.
Messrs. John D. Little, Arthur G. Powell,
Marion Smith, Max F. Goldstein, and
Eugene Dodd for plaintiff in error.
Messrs. Hudson Moore, William A. Wim-
bish, and Leonard Haas for defendants in
error.
March 15, 1016. Dismissed with costs,
un motion of counsel for the plaintiff in
error.
JuDSON Habmon, Receiver, etc.. Plaintiff in
Error, ▼. Andrew C. Bbown, Adminis-
trator, etc. [No. 738.]
In Error to the Supreme Sourt of the
State of Indiana.
Mr. John B. Elam for plaintiff in error.
No appearance for defendant in error.
March 17, 1016. Dismissed with costs,
per stipulation.
Feancisoo Goenaoa t Olba et al., Appel-
lants, V. EusA Gallabdo t Seart et al.
[No. 316.]
Appeal from the District Court of the
United States for Porto Rico.
Mr. N. 6. K. Pettingin for appellants.
Messrs. Frederic R. Coudert and Howard
Thayer Kingsbury for appellees.
March 17, 1016. Dismissed with costs, on
motion of counsel for the appellants.
Geobqe Wakefield, Appellant, y. John J.
Bradley, Marshal, etc., et al. [No. 032.]
Appeal from the District Court of the
United States for the Northern District of
Illinois.
No appearance for appellant.
The Attorney General and the Solicitor
General for appellees.
April 3, 1016. Docketed and dismissed
with costs, on motion of counsel for the
appellees.
[689] Lucius E. Judson, as Trustee, etc.,
Petitioner, ▼. William A. Nash, as Trus-
tee, etc., et al. [No. 276.]
On Writ of Certiorari to the United
States Circuit Court of Appeals for the
Second Circuit.
See same case helow, 130 C. C. A. 288,
213 Fed. 774.
Mr. Oscar A. Lewis for petitioner.
Mr. John M. Bowers for respondents.
April 3, 1016. Dismissed with costs, on
motion of counsel for the petitioner.
60 li. ed.
WnjiAM Whallet, Plaintiff in Error, t.
Philadelphia k Reading Railway Com-
pany. [No. 626.]
In Error to the Supreme Court of the
State of Pennsylvania.
See same case below, 248 Pa. 208, 03 Atl.
1016.
Messrs. John C. Bell and A. Frank Ashton
for plaintiff in error.
Mr. William Clarke Mason for defendant
in error.
April 3, 1016. Dismissed with costs, on
motion of counsel for the plaintiff in error.
Chin Quock Wah» Appellant, v. Henby M.
White, Commissioner, etc. [No. 713.]
Appeal from the District Court of the
United States for the Western District of
Washington.
Mr. Joseph F. O'Connell for appellani.
No appearance for appellee.
April 3, 1016. Dismissed with costs, pur-
suant to the Tenth Rule.
M. Heimeb, Plaintiff in Error, v. State ov
Gboboia. [No. 034.]
In Error to the Court of Appeals of tha
State of Georgia.
No appearance for plaintiff in error.
Mr. William Wallace, Jr., for defend-
ant in error.
April 5, 1016. Docketed and dismissed
with costs on motion of counsel for defend-
ant in error.
[690] American Surety Company of
New York, Plaintiff in Error, v. State
OF Idaho, to and for the use and bene-
fit OF Clara Mills, et al. [No. 609.]
In Error to the Supreme Court of the
State of Idaho.
Messrs. James H. Richards and Oliver O.
Haga for plaintiff in error.
No appearance for defendant in error.
April 17, 1916. Dismissed, each party
paying its own costs, per stipulation of
counsel.
S. S. White Dental Manufacturing Com-
pany, Petitioner, v. Oscar H. Pieper et
al., etc. [No. 718.]
On Writ of Certiorari to the United
States Circuit Court of Appeals for the
Seventh Circuit.
See same case below, 228 Fed. 30.
Messrs. Henry N. Paul, Jr., Jos. C. Fra-
ley, and Edward Rector for petitioner.
Mr. Charl^ A. Brown for respondents.
April 17, 1916. Dismissed with costs, on
motion of oounsel for the petitioner.
tSST
690-692
SUPREME COURT OF THE UNITED STATES.
Oct. Tknc,
Qeobqb W. Caldwkll et aL, etc.. Plaintiffs
in Error, y. Qbobob W. Donaohxt et al.
(No. 461.] .
In Error to the Supreme Court of the
State of Arkansaa.
Mr. J. W. Blaekwood for plaintiffs in
error.
Messrs. W. E. Hemingway, G. B. Rose,
and J. F. Loughborough for defendants in
error.
April 24, 1916. Dismissed with costs, on
motion of counsel for the plaintiffs in error.
Swift & CoicPAinr, Plaintiff in Error, t.
AoNBS Catani. [No. 789.]
In Error to the Supreme Court of the
State of PennsylTania.
See same case below, 251 Pa. 62, L.ILA.
— , — , 96 Atl. 981.
Mr. Charles B. Lenahan for plaintiff in
«rror.
Mr. Rush Trescott for defendant in error.
April 24, 1916. Dismissed per stipula-
tion.
[691] JoHif F. CUB8IN8, Appellant, v.
Mississippi Riveb Commission et al. [No.
89.]
Appeal from the District Court of the
United States for the Western District of
Tennessee.
Mr. Bamette E. Moses for appellant.
Mr. H. F. Roleson for appellees.
April 24, 1916. Dismissed with costs,
pursuant to the Tenth Rule.
Ex PABTB: In the Mattes of the Motion
PicruBB Patents Company, Petitioner.
[No. 24, Original.]
Petition for Writ of Mandamus.
Mr. Melville Church for petitioner.
No appearance for respondent.
April 24, 1916. Dismissed on motion of
counsel for petitioner.
James F. Thbift, Comptroller of the city
of Baltimore, Plaintiff in Error, v. Philip
D. Laibd. [No. 379.]
In Error to the Court of Appeals of the
State of Maryland.
See same case below, 125 Md. 66, 98 Atl.
449.
Messrs. Alexander Preston and S. S. Field
for plaintiff in error.
Mr. W. Cabell Bruce for defendant in
error.
April 28, 1916. Dismissed with costs, on
motion of counsel for the plaintiff in error.
1SS8
United States of Amebiga, Appellant, ▼.
Lake Shobe k Mighioan Sodthbbii
Railway Company et al. [No. 846.]
Appeal from the District Court of the
United States for the Southern District of
Ohio.
The Attorney General for appellant.
No appearance for appellees.
May 1, 1916. Dismissed on motion of
counsel for the appellant.
Pennsylvania Railboad Company, Plain*
tiff in Error, v. Kate Seteba, as Admin-
istratrix, [692] etc. [No. 238.]
In Error to the Supreme Court of tht
SUte of New York.
See same case below, in Appellate Diri-
sion, 162 App. Div. 927, 147 N. Y. Supp.
1140.
Messrs. Frederic D. McKenn^ and Har-
old J. Adams for plaintiff in error.
No appearanos for defendant in error.
May 1, 1916. Dismissed with costs, on
motion of counsel for the plaintiff in er-
ror.
A. S. Down, Re<jeiver, etc., et al., Plaintiff*
in Error, ▼. Unitid Mine Wobkebs of
Amebioa et al. [No. 771.]
In Error to the District Court of the
United States for the Western District of
Arkansas.
Mr. James B. MoDonough for plaintiffs
in error.
Messrs. Qeorge L. Grant and Henry War-
rum for defendants in error.
May 2, 1916. Dismissed with costs on
motion of counsd for the plaintiffs in er-
ror.
Maes Cbaig, Plaintiff in Error, t. Com-
monwealth or Kentucky. [No. 272.]
In Error to the Hardin County Quarter-
ly Court, the State of Kentucky.
Mr. Hobson L. James for plaintiff in
error.
Mr. Arthur H. Mann for defendant in
error.
May 3, 1916. Judgment reversed with
costs, and cause remanded for further pro-
ceedings upon confession of error by the
defendant in error, and on motion of coun-
sel for the defendant in error.
PoBTBB Lawbon, Plaintiff in Error, ▼.
State or Louisiana. [No. 377.]
In Error to the Supreme Court of the
State of Louisiana.
Mr. Taliafero Alexander for plaintiff iE
error.
No appearance for defendant in error.
May 4, 1916. Dismissed with costs, pur-
suant to the Tenth Rule.
S41 U. 8.
1916.
HEMOBANDA CASES.
693, 694
[M8] Unro STAm et al^ i4>pellant% v.
St. Louzb» Ibon Mouhtahi , ft Southbh
Railwat CkniFANT et al. [No. 806.]
Appeal from the District Court of the
United States for the Sartem District of
lUiiioia.
See same case below, 217 Fed. 80.
Ihe Attorn^ General for appellants.
Messrs. Edw. A. Haid and Henry Q. Her-
bel for appelleea.
May 22, 1916. Dismissed on motion of
counsel for the appellants.
CntciifNATi, New Oblbans, 4 Texas Pa-
ciFio Railway Coicpakt, Plaintiff in Er-
ror, T. E. G. Mabsinqalb, as Adminis-
trator, et al. [No. 887.]
In Error to the Court of Appeals of the
State of Kentucky.
See same case below, 161 Ky. 640, 171
S. W. 480.
Messrs. John Galrin and Edward Colston
for plaintiff in error.
Mr. Jamea N. Sharp for defendants in
€rror.
May 22, 1916. Dismissed with costs, on
motion of counsel for the plaintiff in error.
Postal Telbqbaph Compaitt, Appellant, t.
ClTT OF POBlLAlfD. [No. 878.]
Appeal from the District Court of the
United States for the District of Oregon.
Messrs. William D. Fenton and Alfred
A. Hampson for appellant.
No appearance for appellee.
June 6, 1916. Dismissed with costs, on
motion of counsel for the appellant.
I^IOOLA Cbbbi, as Italian Consular Agent,
etc. Plaintiff in Error, t. Giovanni
Paoano, Administrator, etc. [No. 908.]
In Error to the Supreme Court of the
State of Ohio.
Mr. Newton D. Bak«r for plaintiff in er-
ror.
«0 Ii. ed.
No counsel appeared for defendant in er-
ror.
June 6, 1916. Dismissed with costs, on
motion of counsel for the plaintiff in error.
[604] Chaujbs Fbank et al.. Appellants,
T. Union PAcmo Bailboao Coicpant et
al. [No. 727.]
Appeal from the United States Circuit
Court of Api^eals for the Eighth Circuit.
Messrs. Samuel Untermyer, Louis Mar-
shall, Myron L. Learned, and Abraham
Benedict for appellants.
Mr. N. H. Loomis for appellees.
June 12, 1916. Dismissed with costs, on
motion of oounsd for the appellants.
GaST RkALTT k iNTBSnCKNT COHPANT et al..
Plaintiffs in Error, t. Sohneidbb Gean-
ITB Company. [No. 211.]
Error to state court — rehearing.
In Error to the Supreme Court of the
State of Missouri to review a judgment
which affirmed a judgment of the St. Louis
City Circuit Court in favor of plaintiff in
a suit to collect a paving tax. On petition
for rehearing.
See ante, 528.
Messrs. Hickman P. Rodgers, William K.
Koemer, Charles H. Danes, Truman P.
Toung, Frederick W. Lehmann, and Benja-
min Schnurmacher for the petition.
Messrs. Robert A. Holland, Jr., Thomas G.
Rutledge, Jacob M. Lashly, and David Gold-
smith, opposed.
March 20, 1916. Memorandum by Mr.
Justice Holmes: Our decision is limited,
of course, to the particular ordinance before
the court; to the assessment of three quar-
ters, determined in the mode described, and
to those who, like the plaintiff in error, have
suffered from the inequalities that have no
justification in law.
Motion for leave to file petition denied.
1S89
APPENDIX L
frxi^xMmt Cmirt of tlie WLniUA J(tate&
1918.
ORDER.
n is ordflnd thai gtMral ord« in iNuikmptej No. tl b« Miimdsd to •■ t» ndL
M foUowt!
XXL Proof of DdMe.
1. DepoiitloBt to prore claims against a bankrupt's estate shall be eorroetlj entitled
in the court and in the cause. When made to proTe a debt due to a partnership, it
must appear on oath that the deponent is a member of the partnership; when made
bj an agent, tiie reason the deposition Is not made by the claimant in person must be
stated; and when made to prore a debt due to a corporation, the deposition shall be
made bj the treasurer, or, if the corporation has no treasurer, bj the officer whose duties
most nearly correspond to those of treasurer; if the treasurer or corresponding officer
is not within the distriet wherein the bankruptcy proceedings are pending, the deposition
may be made by some officer or agent of the corporation having knowledge of the facts.
Depositions to prore debts existing in open account shall state when the debt became or
will become due; and if it consists of items maturing at different dates the arerage due
date shall be stated, in default of which it shall not be necessary to compute interest
upoxk it. All such depositions shall oontain an arerment that no note has been reeetved
for such account, nor any judgment rendered thereon. Proofs of debt recelTed by any
trustee shall be deUrered to the retose to iHmm the eaass is relsrred.
Wovemhmr 1, 1919.
•• Ii. •«. IS41
APPENDIX IL
fupvtnu Court of tht WiniUA J^tateSt
lauw
osxAii, jonm bvobbb
I^OB Hm ooBTHiIng of th« court on Juiiuurj t, Ult, tiM Ohitf Jwftte nidi
Owmtlmmm of the Bar:
It giTW me the profoundeet eorrow to itote tlie wrenuioe whldi kas taken pltee el
tkoee ties of penonal affection and respect which united m to our brother, Mr. Juti«
Lamar, earned by hie untimely death last night. And thhi eorrow, I know, ia diared
by hia brethren of the Bar, to whom he wai to rtrongly and derotedfy attadied, and
willy I am confident, be participated in by aU kia eoontrymen aa they eome to fed tiial
the country will be for the future depriyed of the bleetinge which would haTc coom
from the future diacharge d hia dutiea aa a Biember of thia court with that oon^lenoaf
ability and enlightened derotion to duty to clearly manifeited during the period wUflk
kaa gone by since he took up hia dutiea here thia day fiye yeara ago.
The funeral ceremonies will take place at kia koma In Ai^guata, Qeoigia, on Wednesdsy
aazt Mr. Justice Van Defanter, Mr. Justice Pitaey, and Mr. Justice IfeBeynolda will,
aa a committee appointed by the court, attend the funeral aa its representatlTea. As a
maris of the affection we hon him and of respect for hia memoiy, ttie court will stsad
adjourned until Thursday morning nesL
The bar of the Supreme Court of the United Statea and tha officers of the aoort mel
hi the court-room in the Capitol at 12 o'doek, on Saturday, May 87, 191t.
On motion of Mr. Solicitor General Dafis, Honorable Hoke QmiXk waa lintii
ehairman and Mr. James D. Maher was elected sseretaij.
On taking the chair. Senator Smith saldt
We meet to^y as members of the bar of the Supreme Court to pay tribvie to the
saemory of Mr. Justice Lamar. He took kia seat on this bench January S^ 1911. The
sbkness which stepped his work b^gan in the summer of 1916. In this short period
he fixed his place among the great justices of this court.
Those of us who practised law with him in his natiye state, and before him wbSlk
he was a justice of the supreme court of Qeorgia, were not surprised at the eaae with
whkh he won the confidence and admiration d the bar of the nation.
Jooeph Rucker Lamar was bom in Elbert county, Qeorgia. Hia parenta were Msiy
Booker, daughter af a snoeessful planter and banker, and Jamea & lamar, a wfrfir^**
dtkeOospeL
1141 141 U. 1.
He WAS educated la tlM best echooli and fti the UaiTeriltf ef Geoifift.
and the remoTal of hie father to LouisTille, Kentaofcj* to take diarge of a churoh ther%
forced him to leaTe the Universitj before graduatioa. He eabeeqneiitly graduated fron
Bethany College Weet Virginia. He studied law at Waihington and Lee University,
and was admitted to the bar at Angnstay Qeorgia» in April, 1878b
Possessed of a bright^ logical mind, a retentire memory, and a thirst for knowledgs^
he applied himself with inteass seal to the study of law. He mads n^iid progress In
his profession, and sooo became one of the leaders of a bar of imusaal ability.
While his Ills was dsroted to the Bar and the bench, his eoltore was broad, and hs
did not faU to SMst the highest re^onsibilities of a dtiieiL Ho took aettTe interest
in erocy movement to ssrve his fellowmen. He found time to teach a BlUo class In
his father's ehnish, and gavo to tho dass his rich knowledgs oi the fieriptnres and his
general leamlig.
BeqHmdiDg to the call of his feUow eitisens, he served two terms in the Georgia Icgia*
latore, from 1888 to 1889. Many gifted men were his eoUeaguesb but all gave
him first pUcs as a profound lawyer.
He was the author of several important acts of Judicial reform, and was subsequently
selected as one of the three commissioners to codify the laws of Georgia. While engaged
in this service he prepared several other important acts simplifying Judicial procedure.
In the division of the work of tho commimion, revision of the Oivil Code was
asBigned to Mr. Lamar. The scheme of the original Oode embodied the statutes d
the state, sad common-law principles, in sections clearly and briefly sKpressed. Mr.
Lamar completed the Oode to date^ addii^, aceording to the original scheme, all
material furnished by dedsicps of the suprsme court. The manner In which he did
this work elssms him as one of the most capable of civil code authors.
He was appointed in January, 1903, a justice of the state supreme court, ffis talents
and his temperament peculiarly fitted him for the bench. He loved judicial labor.
While upon the supreme court bench of Georgia I heard him say that he was almost
afraid to admit how much he enjoyed the work. In two years he wrote more than
two hundred opinions. Ths reader of his opinions cannot fail to be impreesed with
the leamiag of the writer, and with the clear and striking form or coq^ression, carrying
satisfiustoiy and coavinciag reasoning.
His eonsdentious devotion to the duties of the ofiice taxed his health, and by advice
of his physician, he resigned in April, 1906. Speaking of his resignation, his learned
sssociate upon the beach. Judge Andrew Cobb^ wrote: "His retirement from the bench
of the state supreme court was the occasion of the greatest rcgrst ca the part of his
assodatssy who had beea so much aided by his presence among them, and called forth
expressions of the sincerest regret from members of the bar."
Immedlatdy upon his reslgnatloa Judge Lamar returned to the active practice of
law at Augusta, Georgia.
As a practitioner at the bar, Mr. Lamar had fsw equals. He was always thoroughly
piepared, the entire master of the case In head. Whether discussing law or facts,
before court or Jury, he was dear, brillisat, liQgical, and convincing. When you opposed
bim, yon Islt his power, but appreciated his courte^f and perfect fairness. When
associated with him, there was a ssnss of rdiof. Tou could bs certain that his part of
tho trial would bs q;>leadidly sustaiaed, with aever the posdbility of bluader.
Jnsties Lamar was a sma of great determination and perfect eoarsf^ but he was
so gsatls sad m*fiJ^»^ that sJl who know him loved him. In this he was not difTerent
from his great v<»»f»n*tij L. Q» 0. Laauur. I once heard President Cleveland compare
John O. Carlisle aad L. Q. a Lamar. Ho paid tribute to the great ability of cash,
and thea said 'l>ut I loved Lodus Lamar.**
Prssidsat Taft, Just after his eleetkm, speat part sf the wlat« at Augusta. He was
frequcatly throwa with Mr. Lamar.
Fairly aoqualated with Preddeat Taft from his Aeddcns ss efareult eourt Judgs^
bdlsvlag that a great Judge would recogalse tho Judieial quallficatloas of aaother, sad
kaowti^ Judge Lamar, I that early featured the opiaka thatg If a vacaacy oesarrsd
•• li. a«. ISM
tlM SvpraM Govt t» wUA «ba PMldMi eooU affpoM a 8o«lh«a
k€ would BUM Jm Lunar.
laaBSfPir to an inquiry by PtcddantTMaald^f for in nptnitm ■■ tn We mnltimifloM
lor jvttiM of tlio Supfonio Ooort^ the Hon. Joseph B, Oanning» fittoi bj intiaMlt
aequaintaneo uid othonriao to giTo <^inloa« aamrwedt In tha qmoMtrj of
makoop I do not know wliieh most to oommwidi tho nuui or tfba lawyw. His
lusnihig is Tsst; his fadlitj for abqoiring mors^ remsriaUa If I wsrs sailed npon
to eonstmet a model for a Jndgs^ I woold take Lamar as hs is» oaHtj sh^pinf off
•cnneidiat of his too pafwsUkiwg searoh for flnalitj of tnith» wfaish sometimes ksips
bim reaching out bejond tho sea waaik, i^ere other eoDsellsnt Jndgm woold be wflUiv
to drop aadior."
The ConsUtution of the United States is the greatest pc^tieal legacy sfsr ^twm to
a people. Mr. Justice Lamar was dsfoted to the Oonstitiition. snd to aU ths institntUms
of his eovntrj.
He was fifty-four years of sge when he began hia waik here. Tie him II was tte IdssI
aenrice, and to ns he waa the ideal Judge.
<<When the ermine fell upon hia ahoulders It toadied nothing Isss apotleas than ttseU*
''How great is the office of judges and the honor of him wlio wor^i^ fills it. Then
is nothing beyond ft"
We honor his memory, snd mourn that he was not permitted to sarre the allotted
period ol threescore years and ten.
In the language of the bar of hia own atate^ we can truthfully aay sf himt
"Great Jurist^ great Judge, great man, thou hast done weU."
On motion of Kr. W. O. Brant^y, the Chair appointed a Committee on Besolutions:
OOMMimEB C^ BE80LDTI0N&
Mr. Wm. O. Brantley, CShairman; Mr. Thomaa W. Hardwiek; Mr. John W. Davia;
Mr. Nathaniel Wilaon; Mr. Frederick W. Lehmann; Mr. Frederic D. McKenney; Mr.
Hannia Taylor; Mr. Alfred P. Thom; Mr. Hcniy E. Davis; Mr. 8. 8. Qregory.
Mr. Wm. O. Brantley* for the 0(»nmittee^ preeented the following!
BBSDLDTIONa
B€9ol90d, That the memebera of the bar of the Supreme Court of the United Statea
lament the untimely death of the late Joaeph Rucker Lamar, Aseodate Justice of the
Supreme Court of the United Statea, and record their appreciation of hia leamiagi
ability, and high character, the affectionate regard with which they now d&eriah hia
memoiy, and the great loaa to the bench and the country occaaioned by hia death.
A native Qeorgian, he waa bom of an iUustrioua family, and by hia life'a work not
only auatained the beat traditiona thereof, but added lustre to the great name he bora.
He waa the aacond of the Georgia Lamara to win a place on the bench of the Supreme
Court of the United Statea, the firat being the late L. Q. a Lamar, appointed from the
atate of MiaaiaaippL Each of theae two Lamara brought to the court aupcrb mental
equipment, lofty Ideala, Intenae Americanlam and eonaecratlon to duty, and by the
product of hia labora more than vindicated the wiadom of hia i4>pointment.
Joaeph Budcer Lamar waa horn October 14th, 1867, and after a eoUcgiate edttestlen
came to the bar at twenty-one yeara of age. Hia entire life thereafter waa one el
devolion to the law, for he never knew any other field of labor.
Aa a practitioner at tfbe bar he won renown and aucceaa, and, at a eomparativ^ earty
age^ eaaUy ranked among the laadera d the bar of hia atate. Aa aa aatagoniat he was
atiNiys formidable^ for he was alwsys prq^ared* but he was also always deli^tfuL His
t944 Ml V. ■•
eemrtwy wm Hmrmlag. H« wms always fair* and neither tooght nor wonld ht knre
any mean adTantafe.
In 1892 he waa ehosen an one of three commiseiooere to codify the laws of hie state
and the work lie there did* resulting in the Oode of 1896, will cnrer stand as a monument
to his discriminating Judgment, to his industry, and to the thoroughnees and complete-
nces with which he performed eadi task assigned to him.
Prior to this work of eodiiication he senred for two terms as a member of the lower
house of the general assembly of (Georgia, and to the legislatiye field he carried the
training and habits of the lawyer, giving to his state, upon all public questions, the
eareful prepaimtJoii, the thou^tlul consideration, the sound adrioe, and unswerving
loyalty ol attorney to client. He was always earnest, always sincere, and never knew
tali one way to discharge any duty, and that way was to discharge it to the very best
efkbahOitj.
te Jaimary 18th, 1908, he took his seat as an associate Justice of the supreme court
«f tfba state of Qeorgia, and reeigned- therefrom in 1906 on account of his health, and
tlM practice of law.
Droits of this service were found in the affection and admiration for him of his
on the bench, and of the bar of the state, and in strong virile opinions,
ehaslcaHy sKpressed, which to^y, as then, enrich the permanent judicial literature of
hiasUta.
On December 12th, 1910, he was i4>pointed an associate Justice of the Supreme Court
if the United Statea. Hia appointment was shortly thereafter confirmed by the senate,
and on Januaiy 8d, 1911, he took his seat on the bench. He died at his home in the
city of Washington on January 2d, 1916, not quite completing five years of service.
From the day upon which he entered this service he consecrated his life and all that
was in him to the faithful performance of its duties. His application, his untiring
research, his painstaking care^ and his patient labor were known to all who had dealings
with the court.
Others have been and no doubt will be permitted to give more years of service to
their country on this great bench than was he, but to him was given the high privilege,
by excessive and never-ending toil, to give his life. No man could give more.
Measured by time, his service was not long, but measured by reaults, a great service
was completed. He served long enough to demonstrate his aptitude and fitness for the
work, and long enough to leave upon the archivea of his country the enduring impress
of a great and Just Judge.
His life was one of devotion to American ideals. He was ever a student of his country's
history, and no man was more familiar than he with the origin of the government under
which he lived, or with the foundation principles upon which it rests. The extent and
the limitations of its power were clearly defined in his mind and full well he knew how
liberty came, and how, only, it can be preseryed.
To the office of associate Justice of the Supreme Court of the United States he brought
the ability, the strength, the courage, and the patriotism to preserve our Republic as
the Fathers founded it, and all these he dedicated to that great end.
In May, 1914, he was invited by the President to serve as a special commissioner of
the President, in connection with commissioners from certain South American countries,
in the matter of mediation in the troubled affairs of our neighboring Republic of
Mezioo. With his habitual response to every call of duty he accepted the invitation and
assumed the responsibilities thereby imposed. The commissioners so selected met with
eommissioners from Mexico at Niagara Falls soon after their appointment, and
eoneluded their delicate and important labors in the month of July following, to the
satiafaetion of the several govermenta participating.
Ho waa by nature kind and gentle, but beneath his kindliness of manner there was
a flxednesa of purpose and a courage of steel that knew no yielding. He was cautious
and eareful, but once the path of duty became clear he followed it to the end. He
n«v«r faltered in the pursuit of truth.
The sweetness and gentleness of his nature, the charm of his personality, the readiness
sf kla sympathy were soeh that to know him was to love him. The same listening ear
M li. •«. It4ft
tibat MM Jndft he gav« to adToeftUb ht aiwaji kept ttttuned to hear the Toloe of hiuMB%.
He loved his fellows, and to him the breath of friendship was as inoense. It sweetwed,
inspiredf and strengthened his life.
Li the rich follness of his ^jnipathetie heart, iHien he came to prepare his Issi will
and testament^ in 1809, he iaeorporated therein the following beaattfol statenentt '^
friendships ma^j and preeious I leave to mj familj in the hope that thej wll] hi
dierished and eontinned. I know oi no enmities; bat if soeh nnhappify herealtsr ariM^
let them be forgotten.**
Wh«B the end came for him. It Is predons to beUere that there was still an absenw
of all enmities, and that he went ont into the Qreat Bejond, leaving bddnd him a world
of friends onlj. What more priceless heritage could he have beyieathedt
Re90lv€d, That the Attomej Qeneral be asked to preeent theee resolutions to tht
court, with the request that ti&ej be entered upon the records^ and that the diairmsa
of this meeting be directed to forward a copj of them to the family of the late Justiee
Lamar, accompanied bj an expression oi max profound ^^pathj for them la their
overwhelming bereavement.
RKMAHKH OF WM. O. BRANTLEY.
Mr, {fluiirmamf
It was mj privilege to know Justice Lamar long and intimatdy. He poeaessed my
respect, mj admiration, and mj affection. I first knew him when we served together
at members of the Georgia legislature, and It was there that I came to know the woa-
derful deamesa of his perception, the power of hia logic, the varied character of hit
information, and the thoroughnesa and conecientiouaneea with which he did hia work;
and also came to know the deanliness of his life and the gentlenees of his nature.
I had the opportunity to bear testimony to his worth to Preddent Taft prior to
his appointment to this great court. On that occadon. President Taft said to me, that
la filling the vacandea then existing on tiie bench of the Supreme Court It waa hii
deaire to find men who were big enough, coiuageoua enough, able enough, and patriotie
enough, to preaerve thia Republic aa it waa founded, and it mattered not to him from
what aection of our common country they came, nor what their politica were. I was
proud to give my assurance that Mr. Lamar meaaured up to theee great qualiflcatioas,
and I am happy now to believe that thia assurance was more than vindicated by the
record of Justice Lamar in the discharge of his Judicial dutiea.
Mr. Chairman, the purity of the life that Justice Lamar lived, and the deeds he
wrought^ known to us all, q>eak their own eloquent «ilogy of the man and his Ufe^
and there are no words of mine that can add anything thereto. I can only bear tcstimoiiy
to the strength of my devotion to him, and declare my high estiniate of him as man, se
lawyer, and as Judge, and the great sorrow Into which we were all plunged when ha waf
taken from ua. I move the adoption of the reaolutiona aubmitted.
RRMARKfl OF MR. B. MARYDf UNDKRWOOD.
Mr, 0Ka4rman:
We of the atate of Georgia were glad and proud when the great ability and aterUag
character of our compatriot^ the late Juatice Lamar, were recqgniaed and rewarded fay
hia devation to the bench of the Supreme Court of the United Statea.
We were happier still to see our faith Justified in his splendid work, evidenced horn
the beginning by the dear and learned opinions he wrote while a member d this Court,
and we noted with greateat aatiafaction tiie progreadve development of hia powera.
We now mourn hia untimely death at the very aenith of hia powera and uaofnlneHk
and sadly realise that our country haa loat one of her ableat and moat faithful aarvanta
and humanity one of Ita dioicest spirits.
We whA knew hl■^ already, have been taq^ by hla abaeaaa hoar mnsb wm ihall
IIM Mi v. t.
APPKNDDL
mias hit cordial and loring naftura mod the daUgfitfiil d^rai of penoaal ***■"— ""V«w wttk
him. Lika all ol hia iriend% I cheriah hia maaotj aa a paraooal bkitliig.
Aa a eiiiaen ol the atate whidi gave him birth and whioh ha honored and
10 well* I paj trUrata la hia mk&marj^
KKMAKKg OF HR. HANNIS TAYLOR.
Mr, OkmSmnamT
In his tender and noble-minded easaj on FMondahip CHoero haa laldt *What eaa be
more delightful than to be near to one to whom you may speak on all sobjecta Juat
as to yourself. Where would be the great enjoyment in proeperity, if you had not one
to rejoice in It equally with yourself t And adyersity would indeed be difficult to endure
without aomeone who would bear it eren with greater regret than yourself. In short,
all other objecta that are sought' after are sererally suited to some one single purpoee:
Riches, that you may spend them; power, that you may be oourted; honors, that you
may be extolled; pleasures, that you may enjoy them; good health, that you may be
exempt from harm, and perform the functions of the body. Whereaa friendahip com-
prises the greatest number of objects possible; wherever you turn it is at hand; shut out
of no place, never out of season, never irksome; and therefore we do not use lire and
water, as they say, on more oocaaiona than we do friendship. And I am not now spealdnf
of commonplace or ordinary friendship (though even that brings ddight and benefit),
but of real and true friendahip, such as belonged to those of whom very few are recorded;
for prosperity, friendship renders more brilliant; and adversity more supportable, by
dividing and communicating it.**
I have borrowed these reflections on friendship, Mr. Chairman, from one of the greatest
maatera of human emotions^ becauae Bir. Justice Lamar possessed in a very eminent
degree what may be called, without ezaggeraticm, a genius for friendship. It waa a
part of hia religion; it waa a part of hia life. To such an extent waa that true that
when the time came for him to execute his last will and testament ha described his
friendships aa the most precious of his possessions. In his will he said, with touching
pathoa — ^"I bequeath my friendships to my children.** I cannot elaim to have been
within the charmed circle of the dead Justice'a friendships. And yet a very oordial
acquaintance waa fast ripening into friendship when the pale messenger came with
hia inverted tordi and beckoned him away. As our homes wore not far apart it waa
my habit, during the last few yeara of hia lif^ to visit him at stated intervals, and to
commune with him upon all the problema now pressing upon ua. In that way I waa
able to make a rough inventoiy of hia thougfata and feelings; in a word, to understand
his eatimatea of the duties and reaponaibilities of Ufa.
No member of thia court waa ever more impressed than Justice Lamar with Ita
auguat dignity and ita national and international importanesw Ha realised the fMct
that he had besn called to a great magistracy, and the single ambition of hia life waa
to diadiarge ita dutiea w<»ihify. A ripe culture and a long and active experience at
the bar had well equipped him for hia task. And so, surrounded In hia home with
an ample and well-seleeted library, he wrought for five yeara in laying the foundations
of a reputation aa a judge whidi will be permanent. Those of you who are familiar
with hia deddona fully appreciate not only thdr depth and breadth, bat the finished
elegaaee and lucidity of the language In whieh they were expressed. Throu|^ them all
there is a dear-mindedness which never missed the real point at iasua; throu|^ them
all there is an honesty of purpoee which never stopped to shallow sophistries aa a meens
of foreing a eonduaion. To hia Judicial style w may wdl apply the Horatian epigrai»—
Bimpl99 Q$^U0 rotmmduB,
There ia only one kind of sectionalism of whidi I approve. I refer to that oommendabla
apirit of generous rivalry whidi pronpta eadi grand divlaion of our eommon eountry
to aend to thla capital aa Ita representatlvea ita best and wisest men. In that way eaeh
seetion makea for itadf a place la our invidble hall of fame. Aa a Southern man I
tmivm that I Isd a special pride In tha icmarkaUa eoatrlbattaa agr seetiott haa
•• li. ad.
AFPBNDDL
mmd» to the peraoiuMl of thk gnat eoart Of Its nine Ohlof JaticM^ four kavo
oo&tribiited bj Hit South: Rutledga, Marahall, Tanij and White. Of its sixty Assodats
Justicss, twenty haro been eontributed by the South: Harrisoii of Maiylaad, Blair of
Yirginia, Iredeil of North Carolina, Chase of Maryland, Washington of Virginia, Mooie
of Nortii Carolina, Johnson of South Carolina;, Todd of Virginia, Duvall of Maryland,
THmblo of Virginia, Wayne of Georgia, Barbour of Virginia, Catron of Tennessee,
MeKJnkj of Alabama, Daniel of Virginia, Campbell of Alabama, L. Q. C. Lamar of
Mississippi, Jackson of Tennessee^ Lurton of Tennessee, and Joseph Rueker Lamar ol
Georgia. Only the families of Field and Lamar have enjoyed the distinction of eontiibn-
ting two members each to the staff of this court
In a proud yet stricken spirit the South yiews these obsequies of her distinguished
son, because she feels that her last contribution to the staff of this oourt was in erery
wi^ a worthy one. Within the brief time allotted to him Joseph Rueker Lamar
adiioFed as much as the most ambitious and exacting mother oould haye expected of
him. Ho was adequate in all things. I shall th/eref ore. close this humble tribute as I
b^gan it, with a quotation from the famous essay on Friendship, in which Cicero
epitomised, twenty centuries sgo, the life and character of Justice Lamar as I under-
stand it. In speaking of liis lost and cherished friend Scipio, the great word-painter
said: "What shall I say of his most engaging manners; of his dutiful conduct to his
mother; his generosity to his sisters; his kindness to his friends; his uprightness toward
alL These are known to you; and how dear he was to the states was displayed by her
mourning at his death. How, therefore, could the accession of a few years have bene-
fited such a mant F(Hr although old age is not burdensome (as I recollect Cato asserted,
in oonyersation with myself and Scipio the year before he died), yet it takes away that
freshness which Scipio eyen then possessed. Wherefore his life was such that nothing
could be added to it, either in respect of good fortune or of glory: moreoYer, the yeiy
suddenness of his death took away the consciousness of it."
VMt tamem Memperqit^ vivetj virtutem enim amari UlUu viri quae emtimota mon mt.
Ds Amiot^io, XXVII.
He liyes and shall forever live; for it was his virtues that endeared him to me, and
they can never
KKMARK8 OF MR. FRANK WARREN HACKETT.
Wo of the bar have listened with ^^pathetic ear to what has been said of our
friend, Bir. Justice Lamar, by lawyers from Georgia and Alabama. Perhaps it is now
appropriate that, ooming as I do from New Hampshire, I add a word of tribute to his
memory. I am the further encouraged, Mr. Chairman, because of the felicitous relation
you yourself bear to the state of New Hampshire.
Sometimes I have wondered whether the public, who are not lawyers, or familiar
with the traditions of our profession, understand what these bar meetings mean. I fear
that there may be those who imagine that what is said is perfunctory, and that the
custom is followed only becauss it has been long established. That is far from the
truth. I can myself certify, from forty-three years' experience as a member of the
bar of this court, how genuine and heartfelt are the expressions that on these occasions
coBM from the bar, in testimony of the worth of a deceased justice.
I recall the drcumstanoe of my being present, at ths meeting held in 1873, in memory
of Chlel Justiee Chase; and I believe that I can say that since that time I have
attended nearly every one of the bar meetings held In this room. Well do I remember
the prooesdings that took place upon the death of Matt Carpenter, when Judge Black,
speaking from where I now stand, closed his remarks with the exclamation, **l did love
the man.** We were overcome with emotion at hearing those simple words.
I wish I had time, but there is no time, to go a little into an expression of the meaning
and the value of these meetinga. They furnish the only importunity that the bar has
to testify to the merits of a Judge whom they have learned to esteem, and to regard as
a frlsnil These oooasions have their value, because th^ bring to light, as it weio, and
114t 141 U. S.
APPENDIX.
flmphatiM the relation that exists between bench and bar. Unless that relation ba
eordial, unless the two have eonfidenoe, each in the other, the cause of Justios is not
subserved as it should be. There is a pride on the part of the bar in the eonvietion
that we not only trust each other, as we do implicitly in our business, but that wa
trust the judge, and the Judge trusts us. This feeling of the existence of a genuine
and complete confidence helps measurably in the administration of justies.
But I must hasten to say a word in regard to the personality of Mr. Justios Lamar.
It was not my priTilege to know him any further than by way of a passing acquaintance.
Let mc confess, however, that the first time I saw him on this bench I was captiyated
by his oountenance. I do not recall another instance of, at first sight, becoming wholly
eonquered by the looks of a man, as in the case of Mr. Justice Lamar. It may be
sentimental to say it, but it seemed to me that there was in his face an aspect of
benignity, of gentleness, and of happiness, — and yet no lack of vigor or firmness. That
I feel sure, sums up the best qualities a Judge can possess. The thought came into
mind, — ^here is one who will listen to you kindly and considerately, and then decide Justly.
Trivial though this circumstance may be, I deem it not unworthy of being mentioned,
in order that it may go upon record; for in years to come the bar will be grateful to
learn, be it never so little, of the personal characteristics of any justice of this court.
We have already heard with what signal ability Mr. Justice Lamar served as a
member of the highest court in his native state of Georgia. We know what promise
attended his taking a seat upon this bench.
Heretofore, these meetings have been called to express the feelings of the bar upon
the passing away of a justice, or— on very rare occasions — of a great lawyer. These
men had finished their lifowork. The record of usefulness had been made up. To-day,
we mourn because one who had scarcely reached the maturity of his powers haa besn
cut down.
But we must be thankful that Mr. Justice Lamar, in the span of life that was hts»
had indeed accomplished so much. We know that he approved himself an able, a faithful,
and a true man. We can assure ourselves that, had he lived, his woric would have besn
of increasingly large value to his country.
I am grateful for the privilege, coming as I do from New England, of adding a word
to what has been said by my friends from the South, and of bearing witness with than
that there was plainly to be seen in Mr. Justice Lamar a man of noble build who had
already advanced far on the road to distinction — a man whose name shall be borne upon
the records of this oourt as, in a marked degree, a wise, a pure-minded, and a sound
juriai.
REMARKS OF MR. ALFRED P. THOM.
A little over five years ago many members of the American bar stood in this roon
with uncovered heads, and saw one of their number take the oath as a Justice of this
Honorable Court.
It was my privilege to be here and to witness the induction into office of tha new
Justice, Joseph Rucker Lamar of Georgia.
Nowhere in that assemblage of lawyers — nowhere in any part of this naticm where
ha was known — was there a doubt of the purity of his soul or of the elevation or rectitude
or soundness of his moral standards. By universal acclaim he was weloomed here
as worthy to be trusted with the ideals and responsibilities of justice, as Justios existed
and was cherished in the hearts and oonsciencea of the American people.
It was known that he had lived an upright life; that he cherished no enmities; thai
lie possessed no class consciousness or hatreds; that he loved his neighbor; that ha had
no purpose, and, in his purity and majesty of soul, there could exist no purpoas^ except
to learn what justice was and to administer it with equal hand and In untainted quality
to all men alike.
It was realized that by his whole life he had fitted himself for this great work, and
Ibat he measured up to the standard set by the Amerionn P^P^ '^ their Judges, which
APPBNDEL
nqpdxtdf not obIj that thaj ahould Urt upright^ moral. Mid intelleotoal Urm, but thai
ihtj malt prMenre aa untamiahad Nputatloiiv ao that no aaadow of doubt eonld
laat upon tha qiialitj of Juatioa aa adminiatcvad In tha aourta. lb ba a Jndga^ a lawyer
ia reqKmaiMa not oidj lor what ha 1% hut tot idiat ha ia thoni^t to be. It ia nnwitiel
that ha ahould haTo not onfy ahareeter but standing. AH men knew that Jnatioe Lamar
not onlj had deaerred hot had aohloTad this q^otleat reputattoa, and ao^ In tha aUeat
▼erdiet of the bar and of the people, he atood iq^prored.
For ftra jaara ha eop tinned la tha hi|^ office of juatioe of thia conrti Bj no aat of
hia on the bench, bj no act of hia in priyate life, did he dlaappdnt pubBo azpeetatlon
or lower the atandarda appropriate to be maintained by a member of thia great tribanaL
Galled upon to conaider and determine great oontroveriiea in which the interarta and
paaaiona of men, of partiea and of goTemmenta, wore acutely taTotred, he nercr loat hia
Judicial p<^ae, he never deeoended from the lerene heighta of impartial Judgment^ ha
never turned hia back on weakneea or cringed before the demands oi power.
HIb name baa passed into history in important^ and, in many instances. In eoatroUlBg
aasoeiatioa with great causes^ which have become creatiye foroea in moulding our Juria-
prudenoe^ and have served to advance the standards and conoq»tiona of juatice
Ha waa faithful to the Constitution. Ha did not regard it aa an antiquated or out-
gro^m instrument^ but aa a living force, embodying the true prindplea of liberty and
Justice^ and capable of adaptation, in the realm of government, ao aa to meet Jnst^
and equitably the demanda of human Justice and of human progress^ Just as, ia the
moral and apiritual world, the principles of the sermon on the Mount are eternal and
eapable of adaptation to all the changing needs of the human souL
At tha altar of the Constitution he worshipped with the simple fidth of one who never
doubted, and who found both his strength and his inspiration In the great principles
of Juatioe^ equality, and liberty, which he believed to be eternal aa they were announced
by the Fathera wlien they created thia Republic and dedicated It to msnlrhid. He
bellsffa^ aa atrongly expreasad In a recent patriotic utterance^ thatr-
With wiadom and with patient skill.
Wide learning and prof oundest thou|^^
With sealous and unselfish will.
Our patriotic fathers wrought.
Tliey laid foundati<ma deep and wlde^
ThcT made their own immortal plan»
And reared on linea before untried,
A home for freedom and for man.
They fortified eadi sacred riffht,
lliey shielded all from fraud or wrong*
Tbe^ curbed the power of selfish might^
And armed the weak against the strong.
Upon themselves they put restraint
Lest hastv passion, given range.
Should silence reason with complaint,
And bring some needless harmfui changa.
Through storm and stress, through many fear%
Through war and fierce domestic strife
Down through the lapse of dianging years^
They guard^ well tha Natlon'a Bfa.
Hia Constitution; stUl It standa,
August, majeatic, loftv, lone;
Ko ftJvic wrought by human hands
Such strength and symmetry has shown.
The Oonstltotlon; there It atanda
A beacon In a storm-tossed world;
And peace will reign in other landa
When they Ita banner have unfurled.
• •• • • • • • •
MM J41 V« a.
W« lort tlM mMi wlio g»v« H birl^
W« TiHMrate til eforr daiiM;
BoiifB preteetor of tlM haarlkt
HoTB guardian of tha awU/'a lamib
To na balooga tba plooa tuk
Tb ward from H au thiaatantng locab
Both thoaa who tnrk 'tea^ friMidahip'k
iJid thoaa who daal it hoaftila Uowat
Ta rouaa tha paopla af tha laad
Tb know tha traaanra thij
And amita mtft aaarilagioaa Hand
That* a laiaad to harm or auka it
Now UMi Jnatiaa Lalnar'a aaraer la cndad, and ha haa han laid hj tandar handa la
an honorad graTO^ wa who anrrlTa can b^gin to taka loma Juat BMaaura of hia Hf^ and
aan tmfy aaj of him tihat in all that he did here ha atrugthflnad tha aonfldoioa af
In tha purity of Jnatlea and kapt InTlolata tha faith of tha Conatitntiim.
Tha Baaohitkna wara adoptad, and^ on iMitlon of Mr. SoUaitor Qanarml DtufU, tha
BDPBSia OOUBT OF TEE UNITED STATES.
MONDAY, JUNE Ifi, Itlt.
;t Tha Ohiaf Jnatie^ Mr. Juatioa MoKamia, Mr. Jnatiaa Hofanaai Mr. Jaatlai
Van Dafant«« Mr. Jnatiaa Pteiy, Mr. Juatioa MaRcgrnolda, and Mr. Jnatiaa Brandala.
Mr. AttoHMif Gcnaral Gregory addroaaad tha aoort aa foUotwat
M^ U plaaaa 9<ntr Emuon: For tha Moond thna within a yaar H haa haeoma my
dntj and aad priril^ga to prasant to 7011 Baaolutiona paaaed hj tha bar on tha daath
of a BMrnbar of thla ooort
Upon tha fmrnm oocaaian I paid an Inadeqnata tributa to ona who had ban a friend
from mj youth. It waa not mj priyilega to ooma in intimate eontaet with the late
Juatice Lamar until a Tory faw jaara before hia death, and yet the feeling whidi moyea
moat la one of keen peraonal loaii a feeling that a great light haa gone out, not merely
that iUumined the l«gal ahadowe, but one that warmed the haarta of men and nmda
Under, nobler, and more eharitaUab
In recalling tha peraonality of a really great man who haa left ua wa do not aea
him aa a aomUnation of Tarioua Intellectual and moral ^ualitieai On the contrary, wa
ramcmber him aa tha poeeoaeoc of acme ana atrlking diaraatarlatk^ aiiieh, ilka Saul,
aon of Klah, towered abofe Ita brethren and challenged the attention of all obaenrara.
Whila Juatica Lamar waa a powerful adToaatCb a wlae eounaelor, an able and Juat
iQdg% a anltured gentleman, and a great dtiaHi, Ua dominating charaateriatia waa a
paenllerjy winnlqg aourteiy, a kindly conaideratlon for all with whom ha eaoM In aen-
taal Ha waa bom and brad among a people who have alwaya diarlihod thla quality,
aai yat In hia eaaa It waa not the reaalt of aaiocfation and tralnlog. By a perfeaify
natural proceaa ha garnered the annahine of life and diepanaed it niiSk, a prodigal hand.
In contemplating a life Uka thla you think of Hawthome'i tribute to the fragrant
white water VQj of the Concord riyer, of how he marrelad at ita capaalty for abaorMng
only lordineaa and perfume^ and we refleeti aa did tho author, an how aoma p»nna
ftif'*!*Vtt cmly what la a^ and aril from tha laaM moral afarenmatanaaa iHiidi cupp^T
•PUa«. llfti
IFPXNDIZ.
good and booatifiil reialt%— the fragnuiei of oeleitifail flowwv— to ttio dmOj Mfio il
Tho power to aee^ to iq>precUte, to aboorb, oad to ezproio what ia good oonoa tnm
tho hoart, and this man, like Abou Ben Adheni« would have said to the angel wHh ttt
goldn book, '^rite me aa one that lorea hia fellow men."
I doobt not that it waa beeanae of thia marked characteriitie that Jnatice Lamar
waa selected bj the Preaidont in the summer of 1014, from all the able men of the natkNi,
to repreoent the United States at the conference called by Argentina, Bradl, and Ghlk^
to consider the delicate Mexican problem. Surely no more critical altoation ooold
hare ariesn to test to the utmost the best qualities of heart and mind. Ha approached
its consideration carrjing in his right hand "gentle peace to silenoe enTioaa tongues^"
and no socih mission waa ever more succeasfullj carried out.
Being a man of this type, and of strong intellect and wide learning, ho natnrallj
hrooght to the sto^ of questions of abstract law a sjrmpathetic intereat and enthusiaBm
whieh made eren the dry bones live again. He was never satisfied with his work wliUfl
any possibility of further effort remained. Where others would have rested content,
his ardent seal for perfect accomplishment spurred him to continued labor. Aceuracj,
simplicity, and clearness of expression were his constant aim and his marked achievement
In appraising the woric of his professional brethren he was most generous. He took
Intense pleasure in the accomplishments of others, and often pronounced their work
"well done," with genuine enthusiasm, where he would have criticised it if his own.
Joseph Rucker Lamar was the son of Rev. James 8. Lamar and Mary Rudcer Lamar.
Hia family waa of Huguenot descent, the founder, Thomas Lamar, having settled in
Maryland in 1663. His ancestors moved to Georgia in 1766, and have taken a promi-
nent part in the public life of the state.
After attending preparatory schools in Georgia, he matriculated at the State Universitj
in 1874, but before graduating entered Bethany College, West Virginia, of whUh Dr.
William Kimbrough Pendleton, afterwards his father-in-law, waa president. He grad-
uated from this institution in 1877, and after studying law at Waahington and Lee
University was, on April 16, 1878, admitted to the bar in Augusta, Georgia, where he
opened an office and established his home. On January 80, 1870, he married Miai
Clarinda Huntington Pendleton, who, with two sons, survives him.
The society of Augusta has always been cultured, and young Lamar waa from mrlj
manhood one of the most charming of that delightful circle, and rapidly became one
of the leading spirits in the social and civic life of the community.
From 1886 through 1880, Mr. Lamar represented Richmond county, in which Augusts
is situated, in the Georgia legislature. He was the author of some of the most important
legislation of hia state, notably the act regulating the exercise of the right of eminent
domain, and the laws governing voluntary assignments.
Shortly after ending his legislative services he was appointed one of the codifiers who
revised and edited the Code of Georgia of 1806. His labors on this commission were
moat able and of great service to the state.
Meanwhile his practice had become wide and varied, and extended throughout Georgia
and neighboring statea. There were few cases of great magnitude in that aection in
iHiioh he was not employed.
On January 13, 1003, the governor appointed Bir. Lamar a justice of the supreme
court of the state to fill a vacancy on that bench, and he waa elected to the position in
1904. He resigned in the spring of 1005 and returned to the ^ractioe of law at Augusta.
He waa the authc^ of a number of historie and literary contributions^ many of whidi
are to be found in the printed volumea of the reporta of the Georgia Bar Association, of
which ha waa an active member.
SzoepI while on the state bench, he served as a member of the board of law examiners
for ad*"itfffi?" to the bar of Georgia from the organizaticm of that institution until
hia appointment as a member of thia oourt. He was chairman of thia board from
Iba §ptia§ of 1005 until his removal to Waahington.
Mftl 141 V. S.
APPBNDIZ.
Ob December 12, 1910, he wm nominated hj FrmLimt Tiafi to be la aeioeUte Jnftiee ci
the Supreme Court of the United StateBy wm confiimad by the Soiate on December 15th,
and took hit eeat on January t, 1911.
His aenficea on the bench of thia court are well known. During the fiTe jeari el
Hi dnratlim, he participated in the decisiona ol 1470 eaaea, wrote the opinion of the
eourt in 114 and the diaeenting opinion in 8. Hia opiniona are found in yolumea 220 to
tS8, incluflive, of the United States Reporta. Hia iound judgment, wide learning, and
great clearness and facility of expreaaion won for him the ccmfldence and admiration
of the bar and the public
Perhapa the moat important opiniona rendered by Justice Lamar were in the caaea
of United Statea ▼. Grimaud, 220 U. 8. 606, 66 L. ed. 663, 81 Sup. Ot Rep. 480;
Gompers ▼. Buck's Stoye k Range Co. 221 U. S. 418, 66 L. ed. 707, 64 L.RJL(N.S.)
874, 31 Sup. Ct Rep. 492; United States ▼. Midwest Oil Co. 236 U. 8. 459, 50 L.
ed. 673, 36 Sup. Ct Rep. 300; United States ▼. Delaware, L. ft W. R. Co. 238 U. &. 616,
59 Lw ed. 1438, 35 Sup. Ct Rep. 873.
In United States ▼. Grimaud, the Secretary of i^iculture had passed an order for-
bidding grazing on public lands without permits. The defendanta were charged with
violating thia order, and contended that the act of Congress making it an offense to
disobey the regulation of the Secretary waa unconstitutional in that it attempted to
delegate l^slative authority. The decision overrules this contention.
Li the case of Gompers y. Buck's Stove k Range Co., plaintiffs in error were charged
with oontempt in violating an injunction of tiie supreme court of the District of
Columbia by publication of an "unfair" list It was held that the publication was a
contempt, but that the proceedings were not properly brought.
The caae of United States v. Midwest Oil Co., was brought to test the government's
right to oil lands valued at many milliona of dollars, and involved the authority ol
the Preaident to withdraw such lands from public entry. It was decided that tha
President had this authority.
United States v. Delaware, L. ft W. R. Co., arose under the commodity clause of the
act to regulate commerce and under the anti-trust act The railroad company at the
time of the paasage of the commodity clause was engaged in mining, buying, transporting,
and selling anthracite eoaL To devest itsdf of title before transportation began, it
caused the ooal company to be organized with stockholders and officers in common with
itself. The railroad company then caused the output of ita mines to be transferred to
the coal company under a contract which placed the latter company largely, if not
completely^ frtthin the power of the former.
The district court dismissed the petition. The Supreme Court reversed this decision,
holding that by reason of having stockholders and officers in common, and by reason,
further, of the above-mentioned contract, the two companies were so united in ownership
and management aa to give the railroad company an interest in the coal of the coal
company, and that, therefore^ the transportation of such coal by the railroad company
constituted a violation of the commodity clause. The court also held that the contract
in question violated the anti-trust act
In 1011 Yale University, in recognition of his learning and ability, conferred on
Justice Lamar the degree of Doctor of Laws.
He waa active in many spheres of public work in the communities in which he lived,
and in the Christian Church, of which he waa a devout member.
Ha died in this dty on January 2, 1916, having just entered upon hia fifty-ninth year.
He waa in the zenith of hia powers and nasfulnesa iriien seized wiih the fatal illness
which terminated hia Ufa.
Thia ia a brief outline of the man's character and life. It eonv^s no idea of hia vivid
personality. It faintly portraya hia kindly nature and the loving service to country,
family, and friends bereft
Beyond their admiration for hia talenta and accomplishments will stand foremost with
an privileged to know him, their recollection of hia warm, magnetic nature.
Strang, arden^ a man among men^ a warrior ia avary battia lor tmth and right.
•• li. ed. ilftf
Ahraji fmdj lor 9nrj oonfliei whkh wodki wtnam Hit mnm kt mfmtmi^ k« vm
«M oi whoM it ■onld with perfect tmth be laidi
^'Wb life was fuitle; Mid the elcoMBti
80 ndz'd in Idin. that Nature ml^t iUmA «p
And laj to all the world, Ihie wae a man.* *
I Mw road the BeeolutlQiia^
The (Mef Jiuiloe reepondedt
Ifr. Attomj Qeneral, there ii nothing to be added to the boaotlM trftale whkh
the reeolutione of the bar, 10 appreeiatively bj 70U preeented, pej to the memorj of Mr.
Jnatioe Lamar. Ae I graq;> their ultimate lignifieanoe^ thej are intended prindpallj
to oKpreea the appreciation by hia brethren of the bar of hia fealtj to the nioble ideali
of the profeeaion and of the honor which hia life and work hare reflected on that
profeiaion. In facti while expreiaing the profound rc^et which the death of Mr. Juitioe
Lamar haa ocoaaioned, aa I underatand the reaolntiona, they leek not aimplj to eaprcM
that regret, but rather, aa it were, to lay the foundationa in the permanent recorda of
thia eourt of a monument to hia memoiy which ihall continue to qieak of hia great
moral and mental qualitiea, of hia courageoua and oonidentioua diacharge of judicial
duty, long after we ouroelvea shall have gone.
Admirable aa are these aims of the resolutions, I find it difBcult to oompletety adjust
myself to them. Ah, how can it be otherwise, since at the yery mention of the death
of our brother Lamar all sense of exultation or pride at the high ideala to which hii
life oonformed fades out of my thoughts, and there remaina only the sense of peraonsl
sorrow at the loss occaaioned by the severance of those ties which were so cherished
and by which hia brethren were bound to him, — a sorrow whoae depth cannot be fnl^
fathomed without the knowledge begotten by association in judicial work of the
attributea of hia nature, so gentle, so true, so faithful, so brave, so generous^ so dsvotedl
But controlling personal feelings, let me endeavor to bring myself into harmonionf
relationa with the purposes of the resolutions by making some few suggestions aa to
impree8i<Mis made upon me by his work on this bench, and pointing out the ^«m<w"»t
faitellectual influencea whidi, in my opinion, formed and controlled hia abatraet era-
ceptiona aa to some important questions, and which consequently tended to shape the
oondusions which he reached in the discharge of hia dutiea concerning sueh questioDa.
Too young to have been a participant in the Civil War, he waa yet old enough to have
appreciated the anguish of that appalling conflict^ the multitude of noble Uvea on
both sides which were forever stilled, the homes made deaolate^ the flelda wasted^ and
the blight of a destroyed society and of nearly all prosperity, which came at least
in one section, aa a result of that struggle, — impreesions which in the very nature
of things indelibly atamped upon hia developing life the dread oonsequenoea which
necessarily would follow hi the wake of a disintegrated union and a deatroyed national
life. He waa, moreover, old enough to have understood and appreciated the anguish,
more a|^[MUling than the calamity of the war, of the period whidi followed In ita wake^
and thus to have also impressed upon his nature beyond the possibility ol forgetfulness
tiie destruction of individual right which would arise from reducing the states to mere
dependent vassals deprived of local autonomy and to be governed from afar by a
osntralised government, whether of eoEecutive power or of bureauoratle authority. Thus
hidubitably» agr belief is, it resulted that when by training his mind came to o^plon
the sources of oar oonstitutional life, his opinions came to bo oompoaite; that li^ la
hia mind there resulted, aa It were, a fusion of state and national power, united but
not destroyed, both eo-operatlng to the perpetuation of the other. In other word% hia
opiniona came by a natural process to embody the very conoepta 190a whIdi our inati-
tntiona muat rest
Reared virtually in the atmosphere of an agricultural oommunlty, iHien by the force
ol hia ability he came in later life to consider a wider ranges — ^that ia, the relation to
iFor ttoie RaaohitiflB^ ass antob p. lUL
uxk otli«r of direrM uid ■eemlngly ocmflieting MtiTitiM, and th« poMibilitj of oo-ordl-
natiiig and pieawting thai all, — ^it alio mwrn to ■• dear thai the prooeaa whioh had
■hapad hia oonTietiona aa to our oonatitntional gorwnment eama to mold hia opinkma
OB the aobjaoti Jnat stated. In other word% he came folly to appreelate that to aaamne
a aoeiety resting soldj npon the poranit of agrienltnre^ and which would bo oonilned
is tiiat relation, was a negation of the ezistenoe of aodety itself, which In ita Tery
ftsenes embodies the oomplez resnltanta of aU the aeiiTitlea of human Hf^ glTing riso
to tho corresponding duty to harmonise and adjust them to each other ao thai thej all
might livo and derelop for the blcnslng and adyanoement of mankind.
In praetioe it may be said that theae ultimate conTictions were iq>plled by Ifr. Jostlca
Lamar in hia diadiaigo of Judicial duty in a threefold aspects Firsts tho relation of
tho aetlTltiea of IndiTiduals and their results to each other; aeoond, the relation between
the power of the statea and that of the nation; and, third, the obligation and effect
of the limitations impoeed upon all goTemment as the consequence of those great guar*
antics In fayor of indiyidual ri^t forming an inherent part of our constitutional system.
As to tho first, it is enou|^ to say that the opinions expressed by Mr. Justice Lamar
in the performance of his duties here afford apt examples of ths keenness of his appre-
datloB of the duty to adjust between conflicting actiyitlea so aa to preserys the rights
of all by protecting the righta of each. Aa to the second, intensely local aa were hia
affections and hia tles^ nothing Is more dearly portrayed by his work on this bench
than ths broad conception which he entertained of the duty to uphold and sustain the
authority of the Unicm as to the subjects coming within the legitimate scope of Its
power as conferred by the Constitutiim. As to the third, no demonstration could be
more complete than tiiat afforded by his work, of the fixed opinion on his part aa to
the duty to uphold and perpetuate the great guaranties of indiyidual freedom as
declared by the Constitution, to the end thai the freedom of all might not pass away
foreyer. Conyinced aa he was from his study of the souross of our constitutlcoal
Institutions^ that their enjoyment waa dependent upon the Umitatlona In fafor cd
Indiyidual ri^t whidi the Constitution expressed, and that such limitations were
essential to secure us from the anguish and turmoil and tyranny and the disappearance
el freedom which had always resulted where such guaranties did not exist or were not
adhered to^ he had come to feel that for the purpose of their preseryation he waa but a
trustee for the millions who were to come. His mind was too penetrating to listen for
a moment to the suggestion that freedom would be secured by destroying prindplea which
were essential to its preseryation, or that wrong would result unless truths which
wcra eiemal were yiolated. Thus controlled, his work on this bench leayes no room
to doubt that no thought of mere expediency, no mere conyiction concerning economic
problems, no belief that the guaranties were becoming obeolete or thai thdr enforcement
would Incur popular odium, eyer ewayed his unalterable conyiction and irreyocaUa
purpose to uphold and protect the great guaranties with eyery faculty which he possessed.
In considering such questions there shone eyer in hie heart the light of Georgia fireddea
and the great duty he owed to those firesides, indeed, to eyery indiyidual, not only in
Georgia but elsewhere^ to see to It that by no act of his did the inherent prindples of
Indiyidual freedom guaranteed by the Constitution fail to recdve enforcement, or their
sIBcacy become Impaired by misconception or misrepresentation.
0 true American and deyoted public seryant, 0 cherished friend and faithful comrade^
0 swesi and noble soul, may It be yoochaafed that the results of your work may endure
and fructify for the preseryation of the righta of mankind, and may there be giyen to
«a who remain, wiping from our eyea the mists begotten by your loas, to see thai
through the m^rcj of the inscrutable proyidenos of Qod you hnye been called to lesi
and to your axceeding rewardl
Lit the Resolutions be recorded.
ADDSNDUIL
Report of ths Committee appointed by the Supreme Court of Ckorgia to prepare m
Memorial commcmoratiya of the life and character of Honorable Joeeph Rocker Lamar,
APPSMDn.
«& Ainodato Justin of the Supreme Court of the United Statci^ mad fonoer^
AiaoeUte Jmtioe of the Supreme Court of Georgia.
Joeepb Rucker Leamr wme bom at Rnekerfrille, in Elbert eountj, Georgia, en Oetobtr
14» 1867, and died in the city of Waehington, D. C^ on the 2d day of January, 1911
Bom— died. Theee two eyente come in erery life, but life is not measured by the
intervening years. The final estimate cannot he made until the dose, and then mnit
depend not upon years, but deeds, not upon how long one lived, but how much he lived.
Measured by this standard, his life was full and rich.
He was a descendant of Thomas Lamar, a Huguenot, who settled in Maryland in 1663.
His ancestors moved to Georgia in 1755, and have acted a prominent part in the
public life of the state and country. He was the son of James 8. Lamar and Msry
Rucker Lamar. His father was a distinguished minister of the Christian Church and
for many years pastor of that church in the city of Augusta. He attended school at
the Martin Institute at Jefferson, Georgia, and the Richmond Academy at Augusts,
Georgia, Penn Lucy School near Baltimore, and matriculated at the University of
Georgia in 1874, but before graduating there entered Bethany College, West Virginia,
in which he taught for one term and from which he was graduated in 1877. He attended
the Law School of Washington and Lee University, and was admitted to the bar in Au-
gusta on April 16, 1878.
On the 30th of January, 1879, he married Miss Clarinda King Pendleton, the daughter
of Dr. William K. Pendleton and Catherine Huntington King, a daughter of Judge
Leicester King of Warren, Ohio. Her father was President of Bethany College until
his resignation in 1885, and afterwards President Emeritus until his death ia 1899.
No better fortune ever came to him than this marriage. It was a life of congenial com-
panionship, mutual admiration, esteem, and love. Her fine literary tastes and her
liberal culture fitted her for the best social and official circles. As wife and mother
she filled the highest offices of her sex, and was a blessing to th^ home.
From 1886 to 1889 he represented Richmond coimty in the Georgia legislature. He
was the author of the eminent domain act, the auditors act, and the assignment act
He was appointed to fill the unexpired term of Justice Little on the bench of the
supreme court of Georgia, on January 13, 1903, was elected to that office in 1904, and
resigned in 1905, when he resumed the practice of law at Augusta. He wrote more
than two hundred opinions, embraced in six volumes of the Georgia Reports. He wai
appointed by President Taft to the Supreme Court of the United Statoi on December
12, 1910, was confirmed within three days thereafter, and took the oath of office on
January 3, 1911. His appointment was hailed with universal and supreme satisfaction
and approval by the bench and bar of Georgia, and his fellow-citizens generally.
He was at once recognized by his associates as eminently qualified to sit with them
in that highest of judicial tribunals,* fulfilled the high expectation of the profession, and
vindicated the wisdom of his appointments It may be said of him, as was said of
another distinguished justice of that court, that "when the ermine fell upon his
shoulders it touched nothing less spotless than itself." As was aptly said by Dr.
Hadley, President of Yale University, in conferring upon him the degree of LLJ).,
in 1011, the honor oonferred by his selection for this exalted station was emphasized
by the fact that the President who appointed him is himself a great jurist who had
more than once been invited to a seat in that court, and who ignored party lines in the
appointment.
In the beginning of his career in this eourt he was called on to pass upon the
Standard Oil Case and the Tobacco Trust Company case. His opinions as a judge were
brief but comprehensive, and displayed a thorough knowledge of the law involved,
expressed with clearness and force.
He was appointed by President Wilson as a member of what is known as the A.
B. G. Conferenoe^ growing out of the situation with Mexico. It was a very high honor
thai oat oi all tha jurists, statesmen, and diplomats of the oountry, ho should havo
one of the two aelaeied for this pUoo. Tho plaot eallad for a mj ki|^ eH«
•I sbility, for tact, for wisdom, for that self-eontrol that oould liBton when lilenoe was
called for, and qieak when eomething must be laid and rightly said. An exeeee of temper
er an inapt or ambiguous ^peeeh might have defeated the purpoee of the Oonf erenoe. Its
in detail has not been made public, but It maj be said that it resulted In a
feeling between the United States and the countries of South Amerirs, and iHiUe
wa ennnot now fully see the importance of what it accomplished, we must recognias It
ss a great public stfrice.
The high honors he enjoyed came to him unsought. Using a much-misused wardt
end without flattery, which he nerer used of others, and of himself would not receiys with
favor, which is an offense alike to good morals and good taste^ we call him a great Jurist^
a great Judge, and a great Man.
His knowledge of law was encyclopedic He understood ita philosophy and was
permeated by its spirit. He was versed in its general principles and familiar with the
technicalities of pleading and practice. It cannot be truly said of any man that he
knows It all, but It may be said of him that he had unusual knowledge of every branch
of law, Knglish and American, its history, growth, and development, whether contained
In the common law, in statutes or constitutions or judicial decisions. His investigations
were exhaustive. As a counselor he was wise. In argument he employed the force of
the best logie and the attraction of the most lucid and felicitous expression.
He had a just ccmception of the dignity and importance of the legal professlooy ei
the qualifications necessary to constitute one a worthy member, a keen sense of the
dutisB and reqx>nsibilities it imposed, and never lowered the standard required by the
bluest Ideala In answer to an inquiry by President Tkft, asking for an (pinion as
to his qualifications as a lawyer for Supreme Court Justice^ the Honorable Joe^h B.
Gumming, eminently qualified by intimate acquaintance and otherwise, answered: "In
the symmetry of Lamar's makeup I don't know which most to commend, the man or the
lawyer. In the latter aspeat, as far as I can judges his present learning is vast, and
his facility for acquiring more, remarkable. He digs de^. Is eloeely logical, but at
the same time intellectually candid and broadminded, and with a great gift f^ clear
and forcible exposition of his viewa If I were called on to construct a model for a
judge, I would take Lamar as he is, only diipping off somewhat of his too painstaking
search for finality of truth, which sometimes keeps him reaching out beyond the sea
mark, where other exodlent judges would be willing to drop anchor. This characteristic^
liowever, increases the burden but lessens not the excellence of his work."
How great is the office of the judge and the honor of him who worthily fills iti There
is nothing beyond it. It is the ne pku ultra of the loftiest ambition. What dignity,
what majesty, what solenmity invests it. It speaks with the voice of supreme authority.
It is clothed with the power to deal with property, with reputation, with liberty. It
may pronounce the sentence which deprives of that which God only can give. To
pronounce final judgment from which there is no appeal Is a divine prerogative.
Hie historic and literary contributions to the profession may be found in the Reports
of the Georgia Bar Association of 1892, 1808, 1900,* 1907, 1008, 1918, and embrace the
following subjects: "Georgia's Contribution to Law Reform," "Georgia Law Books,"
"A Century's Progress in Law," "History of the Establishment of the Supreme Court
of Georgia," "Memorial of Chief Justice Logan B. Bleckley," and "The Bench and Bar
of Georgia During the Eighteenth Century," which he began with the query, "Who
was the first lawyer in Georgia?" and with the charscteristie tenacity of purpose
pursued it until he found not only the first lawyer, but the first judge and the first Jury.
His work in the preparation of these papers and addresses. Involving, as it did, tho
careful examination of the earliest records at home, including the voluminous Colonial
and Revolutionary records of Georgia, compiled by Governor Candler, which he read
through and upon which he made marginal notes, and the obtaining of some firom
abroad, is a monument of his passionate devotion to the earliest history of Georgia.
The historical knowledge furnished is of incalculabla value to the preeeot and future
generations, and tka Jkonor due him for iheee treammee i» imereaeed hg the faet thai the§
•• Ii. ad. iSif
Hmm pi^Mrt ni addrenoi nbitivf to Georgia Uw are emlnentlj worthj of a flaea
\m the enrrieulum etf erery law Mhool in the ttatc^ asd the etate library and woaU
JQtMf the neoeaaaiy eipeoditure lor that purpoee.
Hk addreM before the Alabama State Bar Aaaodatloa on July 4, 1910^ waa a ^plendii
tribote to the '^orfc aad Poaitioii of Amfrrican Ooorta." b thla addreii he tolofi
ym, what H would be weU to reeaU In thU day iriien It baa been aaaalled, that the
poww to paee upon the Talidity of lawe waa iuTolyed If not expreoify eonf^rred bj
the profiaion of Magna Oharta, *that if anything be procured by any pereon eontrary
to the premlae^ the eame ihall be null and ▼old.*' Splendid^ rerlewing the work of
American courts he waa inspired by the feeling ''that we are a part of a gieat lya-
tm whUA la diaeeminating Ita benign Influence to the lalee of the aea and the
uttermoet parte of the earth;** and looking down the Tiata of the future he waa
thrilled by a Tiaion of the day when our courta ihould take part in a caae and
announce aome Tital principle that would be cited and followed around the c^ba.
One of hia greateet addreseee waa before the Ladiee* Memorial Aaeodatlon etf
Athene, Qeorgia, on April 26, 1002, on The Priyate Soldier of the Oonfederacy.** In
all that haa been qK)ken and written there cannot be found a more iplendld tribute.
He apeaka of 'The War without adjcctlTe, without word of explanation.'' He graphlealfy
portraya the South'a unpreparedneea for war; reealle that the combined loeeee of the
Kngli^, Pruisian, and French armies at Waterloo did not exceed the loeeee at Qettys-
burg; that the casualtiea at Sadowa fought between the Austriana and Fmsslans^ where
a quarter of a million men were engaged on each side, each army greater than the eom-
bined forcea of the Federals and Confederates at Qet^rsburg, were mudi leas^ aa th^
were also at Sedan. He detracta nothing from the honor due thoee who eommanded,
but he giyea hif^est honor to the courage and endurance of the priyate eoldier, whom he
calls the hero of the Confederacy. It waa a statesmanlike discussion of the eauaea that
led to the war, and a patriotic warning against the dangera which It left Ia Ita path.
It waa loyal to Southern sentiment and pride, but without a note of sectioual animooity.
The greatness of this address can be better appreciated by recalling that Ha author,
who with auflh fandliarity and philoeophy discussee the causee, the progreas, the
achieyements^ and the reeults^ with the knowledge of an intelligent participant, waa
not bom when theee causes began, and waa only fiye years old when they cnlm<nated In
that atruggle, which he calla the oyerahadowlng eyent in our history*
It waa heard by a number of distinguished men from eyery section of the country,
members of an educational conyention in seaoion at the time^ and the editor ol the
"Brooklyn Eagle*' asked for the priyil^ge of publishing it for general distrlbutioa.
This waa done, with an introduction by Dr. Shaw, editor of the "Beylew of Royiewa.*
He waa one of the three citizens, learned in the law, selected by the goyemor,
the diief Juatice and aasociate Juaticea of the supreme court of the states to prepare
the Code of 1806, and if he had done nothing else, this alone would stand aa a per-
petual monument commemorating dtaiinent public seryice.
His learning waa far beyond the domain of the law. It embraced the dasale^ the
historic^ the scientiflc. He waa a scholar without pedantry, a geniua without eceen*
trkity. Hia makeup was such a combination of strength and simplicity, oi OMrlt and
modesty, of public and priyate yirtue, of intellectual ability and noUlity of eharaeter,
aa made him a great man.
He Uyed the best of aU Uyee, a life of senrice,— the seryice that haa that dlyfaM
attribute etf forgetfulnees of self and thought of othera.
He waa an humble, consistent Christian. His knowledge of the Scriptures waa yaat and
accurate^ and for many years waa empl<^yed In teaching a Bible elasa In tho diureh
oi which ho waa a loyal member. He was not driyen about by strange and diyers
doolrlnee, but stood steadfastly by the old landmarks.
He Uyed aroeh beoauae he loyed much. He loyed the beautiful In natnre and artt
ha loyed Mrda and trees and flowera; he loyed hia fdlowa.
'n?,
rito ■• M «M wk9 Vofwm hit lallow-
"The tiifal wroU Mid TanWiil. TIm Bist idA%
It CUM t|^ with a grmi wdnniafUi^tb
And ahodPed the aaniM iHiom 1ot« of Qod had bkili
Aad. lol Ben Adbcm't bmm led tU the — ^^
Hi l9f«d hit fkiendi. His •kfaUoa to tha hi|^iMt station ntfw ^oOtd Urn. Iti
aKItiido never chilled the wurmth end glow of his friendships^ nor oooled the eordinlltj
ef his auuiner to the hnmWest scqnfclitnnes.
He lofed his natiTS states hsr history^ her trtditioas^ her people. In the warp and
woof of his being he was a Oeoigiaa. His legal domieil maj havo been hi Wadilagtom
dtj, bat in qpirit he had nerer remored from Georgia and Angnsta. He loved hia
eonntry, her ajstsm of goTemnmt^ her eontributions to human liberty and to the
progress sai ehrilimtioB of ths world. He was throng and throni^ an Ameriesn.
Ponnsal to his srprssssd desirs^ he was laid to rest with siaqple fmieral eersmon j«
attended bj the presnee of Ifr. Jnstiee Pitney^ llr. Justice Van Devanter and ICr.
Jnstiee lisBiynold% and the Marshal of the flapreme Court of the United States^
wpr^bentatiTes from the local and State Bar Associations, and a eoncoorse of friends
and feUow*eitiaens whose admiration and esteem he had so richly merited and enjoyed.
ffis body Use bnried in ths city ho loved with such passionate devotion, and to
whoBS interests— social, educational, religions, and oommercial — ^he had generoosly eon-
tribated with heart end mind and purse, bat he livee and will live. The higheet tribute
we can offer is worth more to us than to him. He needs it not He has written his
own eulogy, more eloquent than sny words of oars can pronounce. He has builded his
own Bumument in strength end symmetry more enduring than marble or granite^ and
SKMO beaotifal than was onr oonoeived by tlie n^nd of genius, or diiseled by the
deft hand of sculptor.
He may not hear what we say of him. Lst ps listen to what he ssys to us. He ^eaks
in a voice eolemn with the emphasis of another world. It ssys to his family in the
flret item of his last will and testamentt '^y fkiendships^ many and precious, I
leave to my family in the hope that they will be dierished and continued. I know
of no enmities, but If such hereafter unhi^pily arisen let them be forgotten.*
It says to his friends^ ''Ssy not goodnight^ but in some brighter elime bid me
good morning.*
It says to u% Honor and dignify your profession. Cherish the memory end imitate
the esample oi the great and good men who have gone before you. Love truth; love
Justloe; uphold eonstltatsd authority. Rmnember you are sworn olBcers of the law,
and it shmild be your supreme pleasure, as it is your sacred duty, to oppoes wrong,
to defend the rfi^t, and to terminate eontentions. Do not forget that yoa are annointed
priests of service in a temple whoee alters should be kept undeJiled, and whoee
ministers shoold be dean.
Let us answer this voices thou|^ oor wofds are a poor eipisislon of iHiat our
hearts feelt Great Jurist, great Judge, great man, thou hast done welL Thou hast shed
hmtre 190a thy state end eoantry. Thon hast bsen a worthy exemplar dt faithful,
intelligent eervioe in the highest stations^ and adorned every private relation in life,
and into thie Ugh tribunal, enridied and adorned by thy ehsracter end ssrvices, this
hi|^ tribunal, the last and sorest defender of the right to Ufe^ liberty and property,
we come moimiing thy death, but rejoidng In thy life, and crown thee with our un-
^^jlng gratitude, admiration and esteen.
J. C. C. Bluk, Horace IL Hddcn, Spencer R. Atkinson, J. R. Pottle, Wm. A. Little,
Joel Bianham,' Andrew J. Cobb, E. H. Callaway, John B, Candler, A. B. lawtcib
Samuel B. Adams^ AIsk a King, A. U Millsr, a H. Sibl^, P. W. MsUrim, Sam
Bennett, Heuy S. Qoetchisa
•P li. •«. &!»•
APPENDIX ni
S^vipvtmt (X^onrt of the WxiUA J^tates.
IMiw
OBDER.
It if ordmd hj <h« murft tihai tkt bond praMotad Iqt tk« atfdial lUi 4i^ It
approred and raoordad.
APPENDIX IV.
jfnpvtmt (X^onrt of tite WuiM J^tateSa
19111
ORDER
Tka Raportv karfaf rapraaaatad tihai oariag to tlia mmAar ai dadaJeaa «l Ika
praaant tarm it would ba impraoUeabla to put tha raporta in ona yoluma, it is tharafora
BOW hara ordarad thmt ha pnUiah an additioiial Toluma in thia yaar paraaaBl la
1 196 of tha Jvdidal Ctoda^ appiotad Marah Z^ 19U.
JTofv* M. i$l§.
IIM 141 U. S.
JVPPENDIX V.
S^nvfvtmt C0urt ni tht fSLnittA jitfttes.
Ounnii Ttex, 1911.
ORDER.
£^ it ordered hj ibM eourt that teetioiis 2 and 0 of rule 10 of lliia ao«irt h%, aad Am
■ame are herebj, amended io at to read at followt;
t, Immediatelj after the detignation of the parte of the record to be printed or the
expiration of the time allotted therefor, the clerk ihall make an ettimate of the eott
of printing the record, hit fee for preparing it for the printer and tapenriting fee^ and
other probable feet^ and upon application therefor thall fumith the tame to the party
docketing the oate. If tueh ettimated tum be not paid within ninety dajt tfter the
cause it docketed, it thall be the duty ol the clerk to report that fact to the court,
and thereupon tiie caute will be ditmitted, unlett good caute to the contrary it thowa.
9. When the record it filed, or within twenty dayt thereafter, tiie plaintUT la error
or appellant may file with the clerk a ttatement of the pointt on which he intendt to
rely and of the partt of the record which he thinkt necettary for the oonaldtratioB
thereof, with proof of tenrice of the tame on the adverae party. The adrerte party,
within thirty dayt thereafter, may detignate in writing, filed with the cleric, additiimal
partt ol the record whidi he thinkt material; and, if he thall not do to, he thall be
held to have eontented to a hetrlng on the partt detignated by the plaiatiff la error
or appellant. If partt of the record thall be to detignated by one or both of the
partiet, the clerk thall print thote partt only; aad the oourt will oonilder nothiig
but thote partt ol the record and the pointt to ttated. If at the hearing it thall appear
that any material part of the record hat not been printed, the writ of error or appeal
Biay be ditmitted or tueh other order made at the eiroumttaneet may appear to the
eourt to require. If the defendant in error or appellee thall ha^e canted unneettaaiy
partt of the record to be printed^ imh order at to eotli iHiy be made at the eonrt
thall think proper*
Hie feet of the elerk nader rule £4, teottoa 7, 'riian be eompvted, at al pretnti
m the foliot ia the reeord at filed, aad ihaU be ia foU for the perfonaaaae of hit
dotiet in the eseeutioa hereof.
Thete amendmentt thall go into effect May 1, 191I.
(/Vetmlftlad Mmnk 90, 1916.)
00 Ii. •«. MOl
APPENDIX VL
Sin^tmt Cimrt of the Wxittd JItates*
TUC« 191ii
ORDER.
Ikt ddif Jnstiw mlUkt ^'OmttUimmk of the bar, ft ii aij priTikge to oimoimeo ftot tti
PMddMt of tlio Unltai StatM hM fUkd tho ▼aoaiMj on this b«Mh kj tho oppolBlmBl
«l Mr. Louis D. Braadeity ol liaaaaohutettt. Mr. Braiidoio is prmat snd rssdj to
tsks ths osth of oOes. Ths elvk will rood his oommiision.'*
Ths MHUiissioB wss then r«sd« snd ths osth sdMinistsred bj ths elsric, snd Mr.
Jvstiss Brsndsis took his ssst upon ths bsnsh.
§9 191$.
APPENDIX VIL
S^npxttat dDottrt at tht WxiUA JItateSt
ORDER
It Is sffdsffsd tei mk S7 bs smcndsd bj sdding Ihs following ssstlont
4. Li svj ssss whsrs ths tisM fat frumfUig a pstition for svtionuri Is uLyimdj
Ifmitsd bj ststiits sad iHmts ths sonrt hss sdjonnsd lor ths tsm, ths pstition msj bt
darinf sash tAimanmmA snd within ths psriod prsserlbsd, bj flUig lt| to-
with ths printsd rsoerd snd brisfli^ in ths oflfes of ths e]srk» sad sash iliac
riiall h«fs ths ssais sffsot ss s presitstioa in <qp«n ooort
/mm IK 1916.
ItOt Ml V. •.
\
APPENDIX Vili.
mm^
Sinpxtmt Cimrt of tlue Wnited JItxteit
Tmoi, m§.
ORDER.
IWfit te?i*f V9m Ml Aaodate JvstlM of tliit ao«irt i^poiated rfaet tite
MtDt M thk tflrm.
It li Mrdored thai the f olkmiag ftUotMBl Im mad* of tiM Ohkf JvstlM aad
Jmiiien of this oourt among Ilia eirenita agreaablj to tlia aat of Cnngraw fai
aad fivfidady aad that anah aHotaiat ba cnterad of raeard^ Tiat
fbr tha Fint Cbnait, Ollfw W«daD HoIm% Aamlata JiiMm.
Vor tha Saaoiid CSreiiit^ Loida D. BiaadaK Aa^wiata Jnattaiw
Bbr tha Third Girenit^ ICahlon Pitatj, AModato Jaatiaa.
Vor tha Voinrth Gireatti Xdwafd D. Whiti^ Chiaf Jnattaiw
9^ tha mik Oirentlb Edward D. Whiti^ Ghiaf Jnallaii
lor tha SbcCh Olreiiit^ WUllaa R. Dajr, AaMolata Jvaftiea.
Itr tha Bafwth Cireiiit» Jamoa 0. MoRajmolda. Aiaodata Jnatte
9^ tha Sii^th Cirenit, Willie Van Daraatflr, Aaoodata JiMtkiw
Wm tha Ninth Circaitb JoMph Mf.Kanna, Ifaoaiata JaaUai^
Jmm n. 1916.
APPENDIX IX
jkuTfttWit <K0nrt sd tht Wmttd jitatesa
ins.
ORDER.
H li BOW hara aitead Ij tta aovt «iaft aO tha caaea on the dookat aal iirfiij
an tha other huainMB of tha tana aoi diapoatd af b% and tha mam aia haraly, aoatiauii
ta tha aart tn.
Jfmml%WlL
4\
ii
n